[Title 32 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2023 Edition]
[From the U.S. Government Publishing Office]



[[Page 1]]

          
          
          Title 32

                                     National Defense


                              ________________________

                                   Parts 191 to 399

                                   Revised as of July 1, 2023

          Containing a codification of documents of general 
          applicability and future effect

          As of July 1, 2023
                    Published by the Office of the Federal Register 
                    National Archives and Records Administration as a 
                    Special Edition of the Federal Register

[[Page ii]]

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                            Table of Contents



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

  Title 32:
    SUBTITLE A--Department of Defense (Continued)
          Chapter I--Office of the Secretary of Defense 
          (Continued)                                                5
  Finding Aids:
      Table of CFR Titles and Chapters........................    1021
      Alphabetical List of Agencies Appearing in the CFR......    1041
      List of CFR Sections Affected...........................    1051

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

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

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

[[Page v]]



                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
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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 
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evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

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[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
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that volume.

[[Page vii]]

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    Oliver A. Potts,
    Director,
    Office of the Federal Register
    July 1, 2023







[[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, 2023.

    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, Stephen J. Frattini was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of John 
Hyrum Martinez.

[[Page 1]]



                       TITLE 32--NATIONAL DEFENSE




                 (This volume contains parts 191 to 399)

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

              SUBTITLE A--Department of Defense (Continued)

                                                                    Part

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

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              Subtitle A--Department of Defense (Continued)

[[Page 5]]



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




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

                       SUBCHAPTER M--MISCELLANEOUS
Part                                                                Page
191             The DoD Civilian Equal Employment 
                    Opportunity (EEO) Program...............           9
192             Equal opportunity in off-base housing.......          16
193             Highways for national defense...............          24
194

[Reserved]

195             Nondiscrimination in federally assisted 
                    programs of the Department of Defense--
                    effectuation of Title VI of the Civil 
                    Rights Act of 1964......................          26
196             Nondiscrimination on the basis of sex in 
                    education programs or activities 
                    receiving Federal financial assistance..          36
197             Historical research in the files of the 
                    Office of the Secretary of Defense (OSD)          53
199             Civilian Health and Medical Program of the 
                    Uniformed Services (CHAMPUS)............          65
200             Civil money penalty authorities for the 
                    TRICARE Program.........................         387
202             Restoration Advisory Boards.................         403
203             Technical Assistance for Public 
                    Participation (TAPP) in defense 
                    environmental restoration activities....         410
207

[Reserved]

208             National Security Education Program (NSEP) 
                    and NSEP service agreement..............         421
209

[Reserved]

210             Enforcement of State traffic laws on DoD 
                    installations...........................         427
211             Mission compatibility evaluation process....         428
212             Procedures and support for non-Federal 
                    entities authorized to operate on 
                    Department of Defense (DoD) 
                    installations...........................         434
213             Support for non-Federal entities authorized 
                    to operate on DoD installations.........         439

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216             Military recruiting and Reserve Officer 
                    Training Corps Program access to 
                    institutions of higher education........         441
218             Guidance for the determination and reporting 
                    of nuclear radiation dose for DoD 
                    participants in the atmospheric nuclear 
                    test program (1945-1962)................         448
219             Protection of human subjects................         453
220             Collection from third party payers of 
                    reasonable charges for healthcare 
                    services................................         471
221             DOD Identity Management.....................         484
222             DOD Mandatory Declassification Review (MDR) 
                    Program.................................         489
223             DOD Unclassified Controlled Nuclear 
                    Information (UCNI)......................         493
225             Commissary credit and debit card user fee...         500
226             Shelter for the homeless....................         501
228             Security Protective Force...................         503
229             Protection of archaeological resources: 
                    Uniform regulations.....................         506
230             Financial institutions on DoD installations.         519
231             Procedures governing banks, credit unions 
                    and other financial institutions on DoD 
                    installations...........................         521
232             Limitations on terms of consumer credit 
                    extended to service members and 
                    dependents..............................         554
233             Federal Voting Assistance Program (FVAP)....         564
234             Conduct on the Pentagon Reservation.........         570
236             Department of Defense (DoD)--Defense 
                    Industrial Base (DIB) cyber security 
                    (CS) activities.........................         575
238             DoD assistance to non-government, 
                    entertainment-oriented media productions         582
239             Homeowners Assistance Program--application 
                    processing..............................         600
240             DOD Information Assurance Scholarship 
                    Program (IASP)..........................         609
241             Pilot program for temporary exchange of 
                    information technology personnel........         614
243             Department of Defense ratemaking procedures 
                    for Civil Reserve Air Fleet contracts...         617
245             Plan for the Emergency Security Control of 
                    Air Traffic (ESCAT).....................         622
246             Stars and Stripes (S&S) newspaper and 
                    business operations.....................         632
247             Department of Defense newspapers, magazines 
                    and civilian enterprise publications....         646
250             Withholding of unclassified technical data 
                    from public disclosure..................         664
251             National Language Service Corps (NLSC)......         673

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252             Professional U.S. Scouting Organization 
                    operations at U.S. military 
                    installations overseas..................         676
257             Acceptance of service of process............         678
259             Uniform relocation assistance and real 
                    property acquisition for Federal and 
                    federally-assisted programs.............         679
260             Vending facility program for the blind on 
                    DoD-controlled Federal property.........         679
263             Traffic and vehicle control on certain 
                    Defense Mapping Agency sites............         685
264             International interchange of patent rights 
                    and technical information...............         687
269             Civil monetary penalty inflation adjustment.         690
273             Defense materiel disposition................         692
274             Regulations governing competitive bidding on 
                    U.S. Government guaranteed military 
                    export loan agreements..................         803
275             Right to Financial Privacy Act..............         804
277             Implementation of the Program Fraud Civil 
                    Remedies Act............................         806
281             Settling personnel and general claims and 
                    processing advance decision requests....         821
282             Procedures for settling personnel and 
                    general claims and processing advance 
                    decision requests.......................         822
283             Waiver of debts resulting from erroneous 
                    payments of pay and allowances..........         830
284             Waiver procedures for debts resulting from 
                    erroneous payments of pay and allowances         832
            SUBCHAPTER N--FREEDOM OF INFORMATION ACT PROGRAM
286             DoD Freedom of Information Act (FOIA) 
                    Program.................................         842
286h            Release of acquisition-related information..         856
                      SUBCHAPTER O--PRIVACY PROGRAM
310             Protection of privacy and access to and 
                    amendment of individual records under 
                    the Privacy Act of 1974.................         861
339             DOD guidance documents......................        1011
           SUBCHAPTER P--OBTAINING DOD INFORMATION [RESERVED]

[[Page 9]]



                       SUBCHAPTER M_MISCELLANEOUS





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



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

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

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



Sec. 191.1  Purpose.

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

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



Sec. 191.2  Applicability and scope.

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

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

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

[[Page 10]]

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

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

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



Sec. 191.3  Definitions.

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

[[Page 11]]

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

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

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



Sec. 191.4  Policy.

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

[[Page 12]]

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

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



Sec. 191.5  Responsibilities.

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

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

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

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

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

[[Page 13]]

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

[[Page 14]]

policy must be authorized by the Component head.

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



Sec. 191.6  Procedures.

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

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

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

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

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

[[Page 15]]

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

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



Sec. 191.7  Civilian EEO program staff.

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



Sec. 191.8  Defense equal opportunity council and EEO boards.

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

[[Page 16]]

designee. The Board shall support the DEOC and shall be made up of 
designated EEO and personnel representatives from the DoD Components and 
such other individuals as may be necessary to carry out the work of the 
DEOC and implement this part. The Board shall work with career 
management officials, other key management officials, and union 
representatives in developing policies, programs, and objectives.
    (c) The DoD SEP Boards shall be chaired by the DoD SEP Managers. 
These Boards shall be comprised of designated SEP Managers from the DoD 
Components and such other individuals as may be necessary to advise and 
assist in EEO activities and policy development in the Department of 
Defense. The Boards shall work with career management officials, other 
key management officials, and union representatives in developing 
policies, programs, and objectives.
    (d) The DEOC, Civilian EEO Review Board, and each SEP Board 
established at the DoD level shall have a Charter that describes its 
organization, management, functions, and operating procedures, 
consistent with DoD Directive 5105.18. \10\
---------------------------------------------------------------------------

    \10\ See footnote 1 to Sec. 191.2(c).
---------------------------------------------------------------------------

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

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



Sec. 191.9  Information requirements.

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

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



Sec. 191.10  Effective date.

    This part is effective May 21, 1987.



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



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

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


[[Page 17]]


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

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



Sec. 192.1  Purpose.

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

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



Sec. 192.2  Applicability.

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

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



Sec. 192.3  Definitions.

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

[[Page 18]]

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



Sec. 192.4  Policy.

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

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

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

[[Page 19]]

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

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



Sec. 192.5  Responsibilities.

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

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

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

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



Sec. 192.6  Procedures.

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

    \3\ See footnote 1 to Sec. 192.4.

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



          Sec. Appendix A to Part 192--Checklist for Commanders

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

[[Page 20]]

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



           Sec. Appendix B to Part 192--Procedures and Reports

                     A. Off-Base Housing Procedures

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

                 B. Complaint Procedures--United States

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

[[Page 21]]

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

[[Page 22]]

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

[[Page 23]]

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

[[Page 24]]

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

           C. Compliant Procedures--Outside the United States

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

                        D. Reporting Requirements

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



PART 193_HIGHWAYS FOR NATIONAL DEFENSE--Table of Contents



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

    Authority: 5 U.S.C. 301.

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



Sec. 193.1  Purpose and scope.

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



Sec. 193.2  Applicability.

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



Sec. 193.3  Policy.

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

[[Page 25]]



Sec. 193.4  Authorities and responsibilities.

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

                           PART 194 [RESERVED]

[[Page 26]]



PART 195_NONDISCRIMINATION IN FEDERALLY ASSISTED PROGRAMS OF
THE DEPARTMENT OF DEFENSE_EFFECTUATION OF TITLE VI OF THE CIVIL
RIGHTS ACT OF 1964--Table of Contents



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

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

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

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



Sec. 195.1  Purpose.

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



Sec. 195.2  Definitions.

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

[[Page 27]]

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



Sec. 195.3  Application.

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

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



Sec. 195.4  Policy.

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

[[Page 28]]

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

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



Sec. 195.5  Responsibilities.

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

[[Page 29]]

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

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



Sec. 195.6  Assurances required.

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

[[Page 30]]

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

[[Page 31]]

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

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



Sec. 195.7  Compliance information.

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

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



Sec. 195.8  Conduct of investigations.

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

[[Page 32]]

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

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



Sec. 195.9  Procedure for effecting compliance.

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

[[Page 33]]

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

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



Sec. 195.10  Hearings.

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

[[Page 34]]

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

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



Sec. 195.11  Decisions and notices.

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

[[Page 35]]

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

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



Sec. 195.12  Judicial review.

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



Sec. 195.13  Effect on other issuances.

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



Sec. 195.14  Implementation.

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



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

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

[[Page 36]]

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

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



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



                         Subpart A_Introduction

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

                           Subpart B_Coverage

196.200 Application.

[[Page 37]]

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

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

196.300 Admission.
196.305 Preference in admission.
196.310 Recruitment.

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

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

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

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

                          Subpart F_Procedures

196.600 Notice of covered programs.
196.605 Enforcement procedures.

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

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



                         Subpart A_Introduction



Sec. 196.100  Purpose and effective date.

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



Sec. 196.105  Definitions.

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

[[Page 38]]

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

[[Page 39]]

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



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

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



Sec. 196.115  Assurance required.

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

[[Page 40]]

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



Sec. 196.120  Transfers of property.

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



Sec. 196.125  Effect of other requirements.

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



Sec. 196.130  Effect of employment opportunities.

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



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

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

[[Page 41]]

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



Sec. 196.140  Dissemination of policy.

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



                           Subpart B_Coverage



Sec. 196.200  Application.

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



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

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

[[Page 42]]

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



Sec. 196.210  Military and merchant marine educational institutions.

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



Sec. 196.215  Membership practices of certain organizations.

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



Sec. 196.220  Admissions.

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



Sec. 196.225  Educational institutions eligible to submit transition plans.

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



Sec. 196.230  Transition plans.

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

[[Page 43]]

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



Sec. 196.235  Statutory amendments.

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

[[Page 44]]

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



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



Sec. 196.300  Admission.

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

[[Page 45]]

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



Sec. 196.305  Preference in admission.

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



Sec. 196.310  Recruitment.

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



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



Sec. 196.400  Education programs or activities.

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

[[Page 46]]

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



Sec. 196.405  Housing.

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

[[Page 47]]

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



Sec. 196.410  Comparable facilities.

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



Sec. 196.415  Access to course offerings.

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



Sec. 196.420  Access to schools operated by LEAs.

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



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

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

[[Page 48]]

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



Sec. 196.430  Financial assistance.

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



Sec. 196.435  Employment assistance to students.

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



Sec. 196.440  Health and insurance benefits and services.

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

[[Page 49]]

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



Sec. 196.445  Marital or parental status.

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



Sec. 196.450  Athletics.

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

[[Page 50]]

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



Sec. 196.455  Textbooks and curricular material.

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



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



Sec. 196.500  Employment.

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

[[Page 51]]

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



Sec. 196.505  Employment criteria.

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



Sec. 196.510  Recruitment.

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



Sec. 196.515  Compensation.

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



Sec. 196.520  Job classification and structure.

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



Sec. 196.525  Fringe benefits.

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

[[Page 52]]

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



Sec. 196.530  Marital or parental status.

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



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

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



Sec. 196.540  Advertising.

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



Sec. 196.545  Pre-employment inquiries.

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



Sec. 196.550  Sex as a bona fide occupational qualification.

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

[[Page 53]]

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



                          Subpart F_Procedures



Sec. 196.600  Notice of covered programs.

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



Sec. 196.605  Enforcement procedures.

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

[65 FR 52885, Aug. 30, 2000]



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



Sec.
197.1 Purpose.
197.2 Applicability.
197.3 Definitions.
197.4 Policy.
197.5 Responsibilities.
197.6 Procedures.

Appendix A to Part 197--Explanation of FOIA Exemptions and 
          Classification Categories

    Authority: 5 U.S.C. 301, Executive Order 13526, 5 U.S.C. 552b, and 
Pub. L. 102-138.

    Source: 80 FR 65935, Oct. 28, 2015, unless otherwise noted.



Sec. 197.1  Purpose.

    This part, in accordance with the authority in DoD Directive 5110.4, 
implements policy and updates procedures for the programs that permit 
authorized personnel to perform historical research in records created 
by or in the custody of Office of the Secretary of Defense (OSD) 
consistent with Executive Order 13526; DoD Manual 5230.30, ``DoD 
Mandatory Declassification Review (MDR) Program'' (available at http://
www.dtic.mil/ whs/directives/corres/ pdf/523030m.pdf); 32 CFR part 286; 
32 CFR part 310; DoD Manual 5200.01, ``DoD Information Security 
Program'' Volumes 1-4 (available at http://www.dtic.mil/ whs/directives/
corres/ pdf/520001_vol1.pdf, http://www.dtic.mil/ whs/directives/corres/ 
pdf/520001_vol2.pdf, http://www.dtic.mil/ whs/directives/corres/ pdf/
520001_vol3.pdf, and http://www.dtic.mil/ whs/directives/corres/ pdf/
520001_vol4.pdf); 36 CFR 1230.10 and 36 CFR part 1236; DoD Directive 
5230.09, ``Clearance of DoD Information for Public Release'' (available 
at http://www.dtic.mil/ whs/directives/corres/ pdf/523009p.pdf); and 32 
CFR 197.5.



Sec. 197.2  Applicability.

    This part applies to:
    (a) The Office of the Secretary of Defense (OSD), the Defense 
Agencies, and the DoD Field Activities in the National Capital Region 
that are serviced by Washington Headquarters Services (WHS) (referred to 
collectively in this part as the ``WHS-Serviced Components'').
    (b) All historical researchers as defined in Sec. 197.3.
    (c) Cabinet Level Officials, Former Presidential Appointees (FPAs) 
to include their personnel, aides and researchers, seeking access to 
records containing information they originated, reviewed, signed, or 
received while serving in an official capacity.



Sec. 197.3  Definitions.

    The following definitions apply to this part:

[[Page 54]]

    Access. The availability of or the permission to consult records, 
archives, or manuscripts. The ability and opportunity to obtain 
classified, unclassified, or administratively controlled information or 
records.
    Electronic records. Records stored in a form that only a computer 
can process and satisfies the definition of a federal record, also 
referred to as machine-readable records or automatic data processing 
records (including email).
    Historical researchers or requestors. A person approved to conduct 
research in OSD files for historical information to use in a DoD 
approved project (e.g., agency historical office projects, books, 
articles, studies, or reports), regardless of the person's employment 
status. Excluded are Military personnel assigned to OSD; OSD employees, 
contractors, and students conducting research in response to academic 
requirements.
    Records (also referred to as federal records or official records). 
All books, papers, maps, photographs, machine-readable materials, or 
other documentary materials, regardless of physical form or 
characteristics, made or received by an agency of the U.S. 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 
U.S. Government or because of the informational value of data in them.



Sec. 197.4  Policy.

    It is OSD policy that:
    (a) Pursuant to Executive Order 13526, anyone requesting access to 
classified material must possess the requisite security clearance.
    (b) Members of the public seeking the declassification of DoD 
documents under the provisions of section 3.5 of Executive Order 13526 
will contact the appropriate OSD Component as listed in DoD Manual 
5230.30.
    (c) Records and information requested by FPA and approved historical 
researchers will be accessed at a facility under the control of the 
National Archives and Records Administration (NARA), NARA's Archives II 
in College Park, Maryland, a Presidential library, or an appropriate 
U.S. military facility or a DoD activity in accordance with Vol 3 of DoD 
Manual 5200.01, ``DoD Information Security Program,'' February 24, 2012, 
as amended.
    (d) Access to records and information will be limited to the 
specific records within the scope of the proposed research request over 
which OSD has authority and to any other records for which the written 
consent of other agencies with authority has been granted in accordance 
with Vol 3 of DoD Manual 5200.01, ``DoD Information Security Program,'' 
February 24, 2012, as amended.
    (e) Access to unclassified OSD Component records and information 
will be permitted consistent with the restrictions of the exemptions of 
5 U.S.C. 552(b) (also known and referred to in this part as the 
``Freedom of Information Act'' (FOIA), 32 CFR part 286, Sec. 197.5 of 
this part, and consistent with 32 CFR part 310. The procedures for 
access to classified information will be used if the requested 
unclassified information is contained in OSD files whose overall 
markings are classified.
    (f) Except as otherwise provided in DoD Manual 5200.01 volume 3, no 
person may have access to classified information unless that person has 
been determined to be trustworthy and access is essential to the 
accomplishment of a lawful and authorized purpose.
    (g) Persons outside the Executive Branch who are engaged in approved 
historical research projects may be granted access to classified 
information, consistent with the provisions of Executive Order 13526 and 
DoD Manual 5200.01 volume 1 provided that the OSD official with 
classification jurisdiction over that information grants access.
    (h) Contractors working for Executive Branch agencies may be allowed 
access to classified OSD Component files provided the contractors meet 
all the required criteria for such access as an historical researcher 
including the appropriate level of personnel security clearance set 
forth in paragraphs (a) and (i) of this section. No copies of OSD 
records and information may be released directly to the contractors. The 
Washington Headquarters Services

[[Page 55]]

Records and Declassification Division (WHS/RDD) will be responsible for 
ensuring that the contractor safeguards the documents and the 
information is only used for the project for which it was requested per 
section 4.1 of Executive Order 13526, ``Classified National Security 
Information,'' December 29, 2009.
    (i) All DoD-employed requesters, to include DoD contractors, must 
have critical nuclear weapons design information (CNWDI) to access CNWDI 
information. All other non DoD and non-Executive Branch personnel must 
have a Department of Energy-issued ``Q'' clearance to access CNWDI 
information in accordance with DoD Manual 5220.22, ``National Industrial 
Security Program Operating Manual (NISPOM),'' February 28, 2006, as 
amended.
    (j) The removal of federal records and information from OSD custody 
is not authorized; this includes copies and email according to 36 CFR 
1230.10. Copies of records and information that are national security 
classified will remain under the control of the agency.
    (k) Access for FPAs is limited to records they originated, reviewed, 
signed, or received while serving as Presidential appointees, unless 
there is another basis for providing access in accordance with Vol 3 of 
DoD Manual 5200.01, ``DoD Information Security Program,'' February 24, 
2012, as amended.
    (l) Authorization is required from all agencies whose classified 
information is, or is expected to be, in the requested files prior to 
granting approval for access. Separate authorizations for access to 
records and information maintained in OSD Component office files or at 
the federal records centers will not be required in accordance with Vol 
3 of DoD Manual 5200.01, ``DoD Information Security Program,'' February 
24, 2012, as amended.



Sec. 197.5  Responsibilities.

    (a) The Director of Administration (DA), Office of the Deputy Chief 
Management Officer (ODCMO), or designee is the approval authority for 
access to DoD information in OSD Component files and in files at the 
National Archives, Presidential libraries, and other similar 
institutions in accordance with DoD Directive 5110.4 and DoD Manual 
5230.30.
    (b) OSD Records Administrator. Under the authority, direction, and 
control of the DA, ODCMO, the OSD Records Administrator:
    (1) Exercises approval authority for research access to OSD and WHS 
Serviced Components records, information, and the Historical Research 
Program.
    (2) Maintains records necessary to process and monitor each case.
    (3) Obtains all required authorizations.
    (4) Obtains, when warranted, the legal opinion of the General 
Counsel of the Department of Defense regarding the requested access.
    (5) Coordinates, with the originator, on the public release review 
on documents selected by the researchers for use in unclassified 
projects in accordance with DoD Directive 5230.09 and DoD Instruction 
5230.29, ``Security and Policy Review of DoD Information for Public 
Release'' (available at http://www.dtic.mil/ whs/directives/corres/ pdf/
523029p.pdf).
    (6) Coordinates requests with the OSD Historian.
    (7) Provides prospective researchers the procedures necessary for 
requesting access to OSD Component files.
    (c) The WHS-serviced Components heads, when requested:
    (1) Determine whether access is for a lawful and authorized 
government purpose or in the interest of national security.
    (2) Determine whether the specific records requested are within the 
scope of the proposed historical research.
    (3) Determine the location of the requested records.
    (4) Provide a point of contact to the OSD Records Administrator.



Sec. 197.6  Procedures.

    (a) Procedures for historical researchers permanently assigned 
within the Executive Branch working on official projects. (1) In 
accordance with Sec. 197.5, the WHS-serviced Components heads, when 
requested, will:
    (i) Make a written determination that the requested access is 
essential to the accomplishment of a lawful and authorized U.S. 
Government purpose,

[[Page 56]]

stating whether the requested records can be made available. If 
disapproved, cite specific reasons.
    (ii) Provide the location of the requested records, including 
accession and box numbers if the material has been retired to the 
Washington National Records Center (WNRC).
    (iii) Provide a point of contact for liaison with the OSD Records 
Administrator if any requested records are located in OSD Component 
working files.
    (2) The historical researcher or requestor will:
    (i) Submit a request for access to OSD files to: OSD Records 
Administrator, WHS/Records and Declassification Division, 4800 Mark 
Center Drive, Suite 02F09-02, Alexandria, VA 22350-3100.
    (ii) All requests must be signed by an appropriate official and must 
contain:
    (A) The name(s) of the researcher(s) and any assistant(s), level of 
security clearance, and the federal agency, institute, or company to 
which the researcher is assigned.
    (B) A statement on the purpose of the project, including whether the 
final product is to be classified or unclassified.
    (C) An explicit description of the information being requested and, 
if known, the originating office, so that the identification and 
location of the information may be facilitated.
    (D) Appropriate higher authorization of the request.
    (E) Ensure researcher's security manager or personnel security 
office verifies his or her security clearances in writing to the OSD 
Records Administrator's Security Manager.
    (iii) Maintain the file integrity of the records being reviewed, 
ensuring that no records are removed and that all folders are replaced 
in the correct box in their proper order.
    (iv) Make copies of any documents pertinent to the project, ensuring 
that staples are carefully removed and that the documents are re-stapled 
before they are replaced in the folder.
    (v) Submit the completed manuscript for review prior to public 
presentation or publication to:

WHS/Chief, Security Review Division, Office of Security Review, 1155 
Defense Pentagon, Washington, DC 20301-1155.

    (vi) If the requester is an official historian of a federal agency 
requiring access to DoD records at the National Archives facilities or a 
Presidential library, the requested must be addressed directly to the 
pertinent facility with an information copy sent to the OSD Records 
Administrator. The historian's security clearances must be verified to 
the National Archives or the Presidential library.
    (3) The use of computers, laptops, computer tablets, personal 
digital assistants, recorders, or similar devices listed in Sec. 
197.6(f) is prohibited. Researchers will use letter-sized paper 
(approximately 8\1/2\ by 11 inches), writing on only one side of the 
page. Each page of notes must pertain to only one document.
    (4) The following applies to all notes taken during research:
    (i) All notes are considered classified at the level of the document 
from which they were taken.
    (ii) Indicate at the top of each page of notes the document:
    (A) Originator.
    (B) Date.
    (C) Subject (if the subject is classified, indicate the 
classification).
    (D) Folder number or other identification.
    (E) Accession number and box number in which the document was found.
    (F) Security classification of the document.
    (iii) Number each page of notes consecutively.
    (iv) Leave the last 1\1/2\ inches on the bottom of each page of 
notes blank for use by the reviewing agencies.
    (v) Ensure the notes are legible, in English, and in black ink.
    (vi) All notes must be given to the staff at the end of each day. 
The facility staff will forward the notes to the OSD Records 
Administrator for an official review and release to the researcher.
    (5) The OSD Records Administrator will:
    (i) Process all requests from Executive Branch employees requesting 
access to OSD Component files for official projects.
    (ii) Determine which OSD Component originated the requested records 
and, if

[[Page 57]]

necessary, request an access determination from the OSD Component and 
the location of the requested records, including but not limited to 
electronic information systems, databases or accession number and box 
numbers if the hardcopy records have been retired offsite.
    (iii) Request authorization for access from other OSD Component as 
necessary.
    (A) Official historians employed by federal agencies may have access 
to the classified information of any other agency found in DoD files, as 
long as authorization for access has been obtained from these agencies.
    (B) If the requester is not an official historian, authorization for 
access must be obtained from the Central Intelligence Agency (CIA), 
National Security Council (NSC), Department of State (DOS), and any 
other non-DoD agency whose classified information is expected to be 
found in the files to be accessed.
    (iv) Make a written determination as to the researcher's 
trustworthiness based on the researcher having been issued a security 
clearance.
    (v) Compile all information on the request for access to classified 
information, to include evidence of an appropriately issued personnel 
security clearance, and forward the information to the DA, ODCMO; OSD 
Component or designee, who will make the access determination.
    (vi) Notify the researcher of the authorization and conditions for 
access to the requested records or of the denial of access and the 
reason(s).
    (vii) Ensure that all conditions for access and release of 
information for use in the project are met.
    (viii) Make all necessary arrangements for the researcher to visit 
the review location and review the requested records.
    (ix) Provide all requested records and information under OSD control 
in electronic formats consistent with 36 CFR part 1236. For all other 
information, a staff member will be assigned to supervise the 
researcher's copying of pertinent documents at the assigned facility.
    (x) If the records are maintained in the OSD Component's working 
files, arrange for the material to be converted to electronic format for 
the researchers to review.
    (xi) Notify the National Archives, Presidential library, or military 
facility of the authorization and access conditions of all researchers 
approved to research OSD records held in those facilities.
    (b) Procedures for the DOS Foreign Relations of the United States 
(FRUS) series. (1) The DOS historians will:
    (i) Submit requests for access to OSD files. The request should list 
the names and security clearances for the historians doing the research 
and an explicit description, including the accession and box numbers, of 
the files being requested. Submit request to: OSD Records Administrator, 
WHS/Records and Declassification Division, 4800 Mark Center Dr, Suite 
02F09-02, Alexandria, VA 22380-2100.
    (ii) Submit to the OSD Records Administrator requests for access for 
members of the Advisory Committee on Historical Diplomatic Documentation 
to documents copied by the DOS historians for the series or the files 
reviewed to obtain the documents.
    (iii) Request that the DOS Diplomatic Security staff verify all 
security clearances in writing to the OSD Records Administrator's 
Security Manager.
    (iv) Give all document copies to the OSD Records Administrator staff 
member who is supervising the copying as they are made.
    (v) Submit any OSD documents desired for use or pages of the 
manuscript containing OSD classified information for declassification 
review prior to publication to the Chief, Security Review Division at: 
WHS/Chief, Security Review Division, Office of Security Review, 1155 
Defense Pentagon, Washington, DC 20301-1155.
    (2) The OSD Records Administrator will:
    (i) Determine the location of the records being requested by the DOS 
for the FRUS series according to Title IV of Public Law 102-138, ``The 
Foreign Relations of the United States Historical Series.''
    (ii) Act as a liaison with the CIA, NSC, and any other non-OSD 
agency for access by DOS historians to records

[[Page 58]]

and information and such non-DoD agency classified information expected 
to be interfiled with the requested OSD records.
    (iii) Obtain written verification from the DOS Diplomatic Security 
staff of all security clearances, including ``Q'' clearances.
    (iv) Make all necessary arrangements for the DOS historians to 
access, review, and copy documents selected for use in their research in 
accordance with procedures in accordance with Sec. 197.6(a).
    (v) Provide a staff member to supervise document copying in 
accordance with the guidance provided in Sec. 197.6(d) of this part.
    (vi) Compile a list of the documents that were copied by the DOS 
historians.
    (vii) Scan and transfer copies to DOS in NARA an approved electronic 
format.
    (viii) Submit to the respective agency a list of CIA and NSC 
documents copied and released to the DOS historians.
    (ix) Process DOS Historian Office requests for members of the 
Advisory Committee on Historical Diplomatic Documentation with 
appropriate security clearances to have access to documents copied and 
used by the DOS historians to compile the FRUS series volumes or to the 
files that were reviewed to obtain the copied documents. Make all 
necessary arrangements for the Advisory Committee to review any 
documents that are at the WNRC.
    (c) Procedures for historical researchers not permanently assigned 
to the Executive Branch. (1) The WHS-serviced Components heads, when 
required, will:
    (i) Recommend to the DA, ODCMO, or his or her designee, approval or 
disapproval of requests to access OSD information. State whether access 
to, release, and clearance of the requested information is in the 
interest of national security and whether the information can be made 
available. If disapproval is recommended, specific reasons should be 
cited.
    (ii) Provide the location of the requested information, including 
but not limited to the office, component, information system or 
accession and box numbers for any records that have been retired to the 
WNRC.
    (iii) Provide a point of contact for liaison with the OSD Records 
Administrator if any requested records are located in OSD Component 
working files.
    (2) The OSD Records Administrator will:
    (i) Process all requests from non-Executive Branch researchers for 
access to OSD or WHS-serviced Components files. Certify via the WHS 
Security Officer that the requester has the appropriate clearances.
    (ii) Determine which OSD Component originated the requested records 
and, as necessary, obtain written recommendations for the research to 
review the classified information.
    (iii) Obtain prior authorization to review their classified 
information from the DOS, CIA, NSC, and any other agency whose 
classified information is expected to be interfiled with OSD records.
    (iv) Obtain agreement from the researcher(s) and any assistant(s) 
that they will comply with conditions governing access to the classified 
information (see Figure to Sec. 197.6).

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[GRAPHIC] [TIFF OMITTED] TR28OC15.014

    (v) If the requester is an FPA, submit a memorandum after completion 
of the actions described in this part to WHS, Human Resources 
Directorate, Security Operations Division, requesting the issuance 
(including an interim) or reinstatement of an inactive security

[[Page 62]]

clearance for the FPA and any assistant and a copy of any signed form 
letters. The Security Division will contact the researcher(s) and any 
assistant(s) to obtain the forms required to reinstate or initiate the 
personnel security investigation to obtain a security clearance. Upon 
completion of the adjudication process, notify the OSD Records 
Administrator in writing of the reinstatement, issuance, or denial of a 
security clearance.
    (vi) Make a written determination as to the researcher's 
trustworthiness based on his or her having been issued a security 
clearance.
    (vii) Compile all information on the request for access to 
classified information, to include either evidence of an appropriately 
issued or reinstated personnel security clearance. Forward the 
information to the DA, ODCMO or designee, who will make the final 
determination on the applicant's eligibility for access to classified 
OSD or WHS-serviced Component files. If the determination is favorable, 
the DA, ODCMO or designee will then execute an authorization for access, 
which will be valid for not more than 2 years.
    (viii) Notify the researcher of the approval or disapproval of the 
request. If the request has been approved, the notification will 
identify the files authorized for review and specify that the 
authorization:
    (A) Is approved for a predetermined time period.
    (B) Is limited to the designated files.
    (C) Does not include access to records and/or information of other 
federal agencies, unless such access has been specifically authorized by 
those agencies.
    (ix) Make all necessary arrangements for the researcher to visit the 
WNRC and review any requested records that have been retired there, to 
include written authorization, conditions for the access, and a copy of 
the security clearance verification.
    (x) If the requested records are at the WNRC, make all necessary 
arrangements for the scanning of documents.
    (xi) If the requested records are maintained in OSD or WHS-serviced 
Component working files, make arrangements for the researcher to review 
the requested information and, if authorized, copy pertinent documents 
in the OSD or WHS-serviced Component's office. Provide the OSD Component 
with a copy of the written authorization and conditions under which the 
access is permitted.
    (xii) Compile a list of all the documents requested by the 
researcher.
    (xiii) Coordinate the official review on all notes taken and 
documents copied by the researcher.
    (xiv) If the classified information to be reviewed is on file at the 
National Archives, a Presidential library, or other facility, notify the 
pertinent facility in writing of the authorization and conditions for 
access.
    (3) The researcher will:
    (i) Submit a request for access to OSD Component files to OSD 
Records Administrator, WHS/Records and Declassification Division, 4800 
Mark Center Drive, Suite 02F09-02, Alexandria VA 22350-3100. The request 
must contain:
    (A) As explicit a description as possible of the information being 
requested so that identification and location of the information may be 
facilitated.
    (B) A statement as to how the information will be used, including 
whether the final project is to be classified or unclassified.
    (C) A statement as to whether the researcher has a security 
clearance, including the level of clearance and the name of the issuing 
agency.
    (D) The names of any persons who will be assisting the researcher 
with the project. If the assistants have security clearances, provide 
the level of clearance and the name of the issuing agency.
    (E) A signed copy of their agreement (see Figure) to safeguard the 
information and to authorize a review of any notes and manuscript for a 
determination that they contain no classified information. Each project 
assistant must also sign a copy of the letter.
    (F) The forms necessary to obtain a security clearance, if the 
requester is an FPA without an active security clearance. Each project 
assistant without an active security clearance will also need to 
complete these forms. If

[[Page 63]]

the FPA or assistant have current security clearances, their personnel 
security office must provide verification in writing to the OSD Records 
Administrator's Security Manager.
    (ii) Maintain the integrity of the files being reviewed, ensuring 
that no records are removed and that all folders are replaced in the 
correct box in their proper order.
    (iii) If copies are authorized, give all copies to the custodian of 
the files at the end of each day. The custodian will forward the copies 
of the documents to the OSD Records Administrator for a declassification 
review and release to the requester.
    (A) For records at the WNRC, if authorized, provide the requested 
information in an electronic format. Review will occur only in the 
presence of an OSD Records Administrator staff member.
    (B) Ensure that all staples are carefully removed and that the 
documents are re-stapled before the documents are replaced in the 
folder.
    (C) Submit all classified and unclassified notes made from the 
records to the custodian of the files at the end of each day of 
research. The custodian will transmit the notes to the OSD Records 
Administrator for an official review and release to the researcher at 
the completion of researcher's project.
    (D) Submit the final manuscript to the OSD Records Administrator for 
forwarding to the Chief, Security Review Division, Office of Security 
Review, for a security review and public release clearance in accordance 
with DoD Directive 5230.09 and DoD 5220.22-M, ``National Industrial 
Security Program Operating Manual (NISPOM)'' (available at http://
www.dtic.mil/ whs/directives/corres/ pdf/522022m.pdf) prior to 
publication, presentation, or any other public use.
    (d) Procedures for document review for the FRUS series. (1) When 
documents are being reviewed, a WHS/RDD staff member must be present at 
all times.
    (2) The records maybe reviewed at a Presidential Library Archives 
II, College Park Maryland, WNRC, Suitland, Maryland, or an appropriate 
military facility. All requested information will remain under the 
control of the WHS/RDD staff until a public release review is completed, 
and then provided in electronic formats.
    (3) If the requested records have been reviewed in accordance with 
the automatic declassification provisions of Executive Order 13526, any 
tabs removed during the research and copying must be replaced in 
accordance with DoD Manual 5200.01 volume 2.
    (4) The number of boxes to be reviewed will determine which of the 
following procedures will apply. The WHS/RDD staff member will make that 
determination at the time the request is processed. When the historian 
completes the review of the boxes, he or she must contact the WHS/RDD to 
establish a final schedule for scanning the documents. To avoid a 
possible delay, a tentative schedule will be established at the time 
that the review schedule is set.
    (i) For 24 boxes or fewer, review and scanning will take place 
simultaneously. Estimated time to complete scanning is 7 work days.
    (ii) For 25 boxes or more, the historian will review the boxes and 
mark the documents that are to be scanned using WHS/RDD authorized 
reproduction tabs.
    (iii) If the review occurs at facilities that OSD does not control 
ownership of the document, the documents must be given to the WHS/RDD 
staff member for transmittal for processing.
    (5) WHS/RDD will notify the historian when the documents are ready 
to be picked up. All administrative procedures for classified material 
transfers will be followed in accordance with DoD Manual 5200.01 volume 
1 and DoD 5220.22-M and appropriate receipt for unclassified information 
will be used.
    (e) Procedures for copying documents. (1) The records will be 
reviewed and copied at a Presidential Library, Archives II, College Park 
Maryland, WNRC, Suitland, Maryland, or an appropriate U.S. military 
facility.
    (2) If the requested records have been reviewed in accordance with 
the automatic declassification provisions of Executive Order 13526 any 
tabs removed during the research and copying must be replaced in 
accordance with DoD Manual 5200.01 volume 2.
    (3) The researcher will mark the documents that he or she wants to 
copy

[[Page 64]]

using WHS/RDD authorized reproduction tabs.
    (4) Any notes taken during the review process must be given to the 
WHS/RDD staff member present for transmittal to the WHS/RDD.
    (5) All reproduction charges are to the responsibility of the 
researcher.
    (6) All documents requested will be copied to an approved electronic 
format by WHS/RDD staff after official review.
    (i) The researcher will need to bring paper, staples, staple 
remover, and stapler.
    (ii) When the researcher completes the review of the boxes, he or 
she must contact the WHS/RDD to establish a final schedule for scanning 
the requested documents.
    (iii) When the documents are scanned, the WHS/RDD will notify the 
researcher.
    (iv) All questions pertaining to the review, copying, or transmittal 
of OSD documents must be addressed to the WHS/RDD staff member.
    (f) General guidelines for researching DoD records. DoD records and 
information are unique and often cannot be replaced should they be lost 
or damaged. In order to protect its collections and archives, the OSD 
Records Administrator has set rules that researchers must follow.
    (1) Researchers will work in room assigned. Researchers are not 
allowed in restricted areas.
    (2) Special care must be taken in handling all records. Records may 
not be leaned on, written on, folded, traced from, or handled in any way 
likely to damage them.
    (3) Records should be kept in the same order in which they are 
presented.
    (4) Items that may not be brought into these research areas include, 
but are not limited to:
    (i) Briefcases.
    (ii) Cases for equipment (laptop computers).
    (iii) Computers. This includes laptops, tablet computers, personal 
digital assistants, smart phones, and other similar devices.
    (iv) Cellular phones.
    (v) Computer peripherals including handheld document scanners and 
digital or analog cameras.
    (vi) Containers larger than 9.5 x 6.25 (e.g., 
paper bags, boxes, backpacks, shopping bags, and sleeping bags).
    (vii) Food, drinks (includes bottled water) and cigarettes, cigars, 
or pipes.
    (viii) Handbags or purses larger than 9.5 x 
6.25.
    (ix) Luggage.
    (x) Musical instruments and their cases.
    (xi) Newspapers.
    (xii) Outerwear (e.g., raincoats and overcoats).
    (xiii) Pets (exception for service animals, i.e., any guide dog or 
signal dog that is trained to provide a service to a person with a 
disability).
    (xiv) Scissors or other cutting implements.
    (xv) Televisions and audio or video equipment.
    (xvi) Umbrellas.
    (5) Eating, drinking, or smoking is prohibited.





    Sec. Appendix A to Part 197--Explanation of FOIA Exemptions and 
                        Classification Categories

    (a) Explanation of FOIA Exemptions and Classification Categories--
(1) Explanation of FOIA Exemptions. Exemptions and their explanations 
are provided in the Table to Appendix A. See chapter III of 32 CFR part 
286 for further information.

           Table to Appendix A--Explanation of FOIA Exemptions
------------------------------------------------------------------------
             Exemption                           Explanation
------------------------------------------------------------------------
(b)(1).............................  Applies to records and information
                                      currently and properly classified
                                      in the interest of national
                                      security.
(b)(2).............................  Applies to records related solely
                                      to the internal personnel rules
                                      and practices of an agency.
(b)(3).............................  Applies to records and information
                                      protected by another law that
                                      specifically exempts the
                                      information from public release.
(b)(4).............................  Applies to records and information
                                      on trade secrets and commercial or
                                      financial information obtained
                                      from a private source which would
                                      cause substantial competitive harm
                                      to the source if disclosed.

[[Page 65]]

 
(b)(5).............................  Applies to records and information
                                      of internal records that are
                                      deliberative in nature and are
                                      part of the decision making
                                      process that contain opinions and
                                      recommendations.
(b)(6).............................  Applies to records or information
                                      the release of which could
                                      reasonably be expected to
                                      constitute a clearly unwarranted
                                      invasion of the personal privacy
                                      of individuals.
(b)(7).............................  Applies to records or information
                                      compiled for law enforcement
                                      purposes that could: (a)
                                      Reasonably be expected to
                                      interfere with law enforcement
                                      proceedings; (b) deprive a person
                                      of a right to a fair trial or
                                      impartial adjudication; (c)
                                      reasonably be expected to
                                      constitute an unwarranted invasion
                                      of the personal privacy of others;
                                      (d) disclose the identity of a
                                      confidential source; (e) disclose
                                      investigative techniques and
                                      procedures; or (f) reasonably be
                                      expected to endanger the life or
                                      physical safety of any individual.
(b)(8).............................  Applies to records and information
                                      for the use of any agency
                                      responsible for the regulation or
                                      supervision of financial
                                      institutions.
(b)(9).............................  Applies to records and information
                                      containing geological and
                                      geophysical information (including
                                      maps) concerning wells.
------------------------------------------------------------------------

    (2) Classification Categories. Information will not be considered 
for classification unless its unauthorized disclosure could reasonably 
be expected to cause identifiable or describable damage to the national 
security in accordance with section 1.2 of Executive Order 13526, and it 
pertains to one or more of the following:
    (i) Military plans, weapons systems, or operations;
    (ii) Foreign government information;
    (iii) Intelligence activities (including covert action), 
intelligence sources or methods, or cryptology;
    (iv) Foreign relations or foreign activities of the United States, 
including confidential sources;
    (v) Scientific, technological, or economic matters relating to the 
national security;
    (vi) U.S. Government programs for safeguarding nuclear materials or 
facilities;
    (vii) Vulnerabilities or capabilities of systems, installations, 
infrastructures, projects, plans, or protection services relating to the 
national security; or
    (viii) The development, production, or use of weapons of mass 
destruction.
    (b) [Reserved]



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



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

Appendix A to Part 199--Acronyms

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

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



Sec. 199.1  General provisions.

    (a) Purpose. This part prescribes guidelines and policies for the 
administration of the Civilian Health and Medical Program of the 
Uniformed Services (CHAMPUS) for the Army, the Navy, the Air Force, the 
Marine Corps, the Coast Guard, the Commissioned Corps of the U.S. Public 
Health Service (USPHS) and the Commissioned Corps of the National 
Oceanic and Atmospheric Administration (NOAA).
    (b) Applicability--(1) Geographic. This part is applicable 
geographically within the 50 States of the United States, the District 
of Columbia, the Commonwealth of Puerto Rico, and the United States 
possessions and territories, and

[[Page 66]]

in all foreign countries, unless specific exemptions are granted in 
writing by the Director, OCHAMPUS, or a designee.
    (2) Agency. The provisions of this part apply throughout the 
Department of Defense (DoD), the Coast Guard, the Commissioned Corps of 
the USPHS, and the Commissioned Corps of the NOAA.
    (c) Authority and responsibility--(1) Legislative authority--(i) 
Joint regulations. 10 U.S.C. chapter 55 authorizes the Secretary of 
Defense, the Secretary of Health and Human Services, and the Secretary 
of Transportation jointly to prescribe regulations for the 
administration of CHAMPUS.
    (ii) Administration. 10 U.S.C. chapter 55 also authorizes the 
Secretary of Defense to administer CHAMPUS for the Army, Navy, Air 
Force, and Marine Corps under DoD jurisdiction, the Secretary of 
Transportation to administer CHAMPUS for the Coast Guard, when the Coast 
Guard is not operating as a service in the Navy, and the Secretary of 
Health and Human Services to administer CHAMPUS for the Commissioned 
Corps of the NOAA and the USPHS.
    (2) Organizational delegations and assignments--(i) Assistant 
Secretary of Defense (Health Affairs) (ASD(HA)). The Secretary of 
Defense, by 32 CFR part 367, delegated authority to the ASD(HA) to 
provide policy guidance, management control and coordination as required 
for CHAMPUS, and to develop, issue, and maintain regulations with the 
coordination of the Military Departments and consistent with DoD 5025.1-
M. \1\ Additional implementing authority is contained in DoD Directive 
5105.46. \2\
---------------------------------------------------------------------------

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

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

[[Page 67]]

    (7) Convey appropriate CHAMPUS information to providers of care, 
practitioners, professional societies, health industry organizations, 
fiscal agents, hospital contractors, and others who have need of such 
information.
    (8) Collect, maintain, and analyze program cost and utilization data 
appropriate for preparation of budgets, fiscal planning, and as 
otherwise needed to carry out CHAMPUS programs and missions.
    (9) Arrange for the facilities logistical and administrative support 
to be provided by the Military Departments.
    (10) Execute such other functions as appropriate to administer the 
programs and missions assigned.
    (B) Direct and control of the office, activities, and functions of 
OCHAMPUS Europe (OCHAMPUSEUR).

    Note: The Director, OCHAMPUS, may also establish similar offices for 
OCHAMPUS Southern Hemisphere (OCHAMPUSSO) and OCHAMPUS Pacific 
(OCHAMPUSPAC).

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

[[Page 68]]

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

[[Page 69]]

provided unnecessary services. Such information will be released only 
for the purpose of conducting an investigation or prosecution, or for 
the administration of titles XVIII and XIX of the Social Security Act, 
provided that the information will be released only to the agency's 
enforcement branch and that the agency will preserve the confidentiality 
of the information received and will not disclose such information for 
other than program purposes.
    (m) Disclosure of information to the public. Records and information 
acquired in the administration of CHAMPUS are records of the Department 
of Defense and may be disclosed in accordance with DoD Directive 5400.7 
\3\, DoD 5400.7-R \4\, and DoD 5400.11-R \5\ (codified in 32 CFR parts 
286 and 286a), constituting the applicable DoD Directives and DoD 
Regulations implementing the Freedom of Information and the Privacy 
Acts.
---------------------------------------------------------------------------

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

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

[[Page 70]]

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

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



Sec. 199.2  Definitions.

    (a) General. In an effort to be as specific as possible as to the 
word and intent of CHAMPUS, the following definitions have been 
developed. While

[[Page 71]]

many of the definitions are general and some assign meaning to 
relatively common terms within the health insurance environment, others 
are applicable only to CHAMPUS; however, they all appear in this part 
solely for the purpose of the Program. Except when otherwise specified, 
the definitions in this section apply generally throughout this part.
    (b) Specific definitions. Abortion. Abortion means the intentional 
termination of a pregnancy by artificial means done for a purpose other 
than that of producing a live birth. A spontaneous, missed or threatened 
abortion or termination of an ectopic (tubal) pregnancy are not included 
within the term ``abortion'' as used herein.
    Absent treatment. Services performed by Christian Science 
practitioners for a person when the person is physically present.

    Note: Technically, ``Absent Treatment'' is an obsolete term. The 
current Christian Science terminology is ``treatment through prayer and 
spiritual means,'' which is employed by an authorized Christian Science 
practitioner either with the beneficiary being present or absent. 
However, to be considered for coverage under CHAMPUS, the beneficiary 
must be present physically when a Christian Science service is rendered, 
regardless of the terminology used.

    Abuse. For the purposes of this part, abuse is defined as any 
practice that is inconsistent with accepted sound fiscal, business, or 
professional practice which results in a CHAMPUS claim, unnecessary 
cost, or CHAMPUS payment for services or supplies that are: (1) Not 
within the concepts of medically necessary and appropriate care, as 
defined in this part, or (2) that fail to meet professionally recognized 
standards for health care providers. The term ``abuse'' includes 
deception or misrepresentation by a provider, or any person or entity 
acting on behalf of a provider in relation to a CHAMPUS claim.

    Note: Unless a specific action is deemed gross and flagrant, a 
pattern of inappropriate practice will normally be required to find that 
abuse has occurred. Also, any practice or action that constitutes fraud, 
as defined by this part, would also be abuse.

    Abused dependent. An eligible spouse or child, who meets the 
criteria in Sec. 199.3 of this part, of a former member who received a 
dishonorable or bad-conduct discharge or was dismissed from a Uniformed 
Service as a result of a court-martial conviction for an offense 
involving physical or emotional abuse or was administratively discharged 
as a result of such an offense, or of a member or former member who has 
had their entitlement to receive retired pay terminated because of 
misconduct involving physical or emotional abuse.
    Accidental injury. Physical bodily injury resulting from an external 
force, blow or fall, or the ingestion of a foreign body or harmful 
substance, requiring immediate medical treatment. Accidental injury also 
includes animal and insect bites and sunstrokes. For the purpose of 
CHAMPUS, the breaking of a tooth or teeth does not constitute a physical 
bodily injury.
    Active duty. Full-time duty in the Uniformed Services of the United 
States. It includes duty on the active list, full-time training duty, 
annual training duty, and attendance while in the active Military 
Service, at a school designated as a Service school by law or by the 
Secretary of the Military Department concerned.
    Active duty member. A person on active duty in a Uniformed Service 
under a call or order that does not specify a period of 30 days or less.
    Activities of daily living. Care that consists of providing food 
(including special diets), clothing, and shelter; personal hygiene 
services; observation and general monitoring; bowel training or 
management (unless abnormalities in bowel function are of a severity to 
result in a need for medical or surgical intervention in the absence of 
skilled services); safety precautions; general preventive procedures 
(such as turning to prevent bedsores); passive exercise; companionship; 
recreation; transportation; and such other elements of personal care 
that reasonably can be performed by an untrained adult with minimal 
instruction or supervision. Activities of daily living may also be 
referred to as ``essentials of daily living''.
    Acupuncture. The practice of inserting needles into various body 
parts to pierce specific peripheral nerves for the

[[Page 72]]

production of counter-irritation to relieve the discomfort of pain, 
induce surgical anesthesia, or for other treatment purposes.

    Note: Acupuncture is not covered by CHAMPUS.

    Adequate Medical Documentation, Medical Treatment Records. Adequate 
medical documentation contains sufficient information to justify the 
diagnosis, the treatment plan, and the services and supplies furnished. 
Under CHAMPUS, it is required that adequate and sufficient clinical 
records be kept by the health care provider(s) to substantiate that 
specific care was actually and appropriately furnished, was medically 
necessary and appropriate (as defined by this part), and to identify the 
individual(s) who provided the care. All procedures billed must be 
documented in the records. In determining whether medical records are 
adequate, the records will be reviewed under the generally acceptable 
standards such as the applicable Joint Commission on Accreditation of 
Healthcare Organizations (JCAHO) standards, the Peer Review Organization 
(PRO) standards (and the provider's state or local licensing 
requirements) and other requirements specified by this part. In general, 
the documentation requirements for a professional provider are not less 
in the outpatient setting than the inpatient setting.
    Adequate medical documentation, mental health records. Adequate 
medical documentation provides the means for measuring the type, 
frequency, and duration of active treatment mechanisms employed and 
progress under the treatment plan. Under CHAMPUS, it is required that 
adequate and sufficient clinical records be kept by the provider to 
substantiate that specific care was actually and appropriately 
furnished, was medically or psychologically necessary (as defined by 
this part), and to identify the individual(s) who provided the care. 
Each service provided or billed must be documented in the records. In 
determining whether medical records are adequate, the records will be 
reviewed under the generally acceptable standards (e.g., the standards 
of an accrediting organization approved by the Director, and the 
provider's state or local licensing requirements) and other requirements 
specified by this part. The psychiatric and psychological evaluations, 
physician orders, the treatment plan, integrated progress notes (and 
physician progress notes if separate from the integrated progress 
notes), and the discharge summary are the more critical elements of the 
mental health record. However, nursing and staff notes, no matter how 
complete, are not a substitute for the documentation of services by the 
individual professional provider who furnished treatment to the 
beneficiary. In general, the documentation requirements of a 
professional provider are not less in the outpatient setting than the 
inpatient setting. Furthermore, even though a hospital that provides 
psychiatric care may be accredited under The Joint Commission (TJC) 
manual for hospitals rather than the behavioral health standards manual, 
the critical elements of the mental health record listed above are 
required for CHAMPUS claims.
    Adjunctive dental care. Dental care which is medically necessary in 
the treatment of an otherwise covered medical (not dental) condition, is 
an integral part of the treatment of such medical condition and is 
essential to the control of the primary medical condition; or, is 
required in preparation for or as the result of dental trauma which may 
be or is caused by medically necessary treatment of an injury or disease 
(iatrogenic).
    Admission. The formal acceptance by a CHAMPUS authorized 
institutional provider of a CHAMPUS beneficiary for the purpose of 
diagnosis and treatment of illness, injury, pregnancy, or mental 
disorder.
    Adopted child. A child taken into one's own family by legal process 
and treated as one's own child. In case of adoption, CHAMPUS eligibility 
begins as of 12:01 a.m. of the day of the final adoption decree.

    Note: There is no CHAMPUS benefit entitlement during any interim 
waiting period.

    All-inclusive per diem rate. The OCHAMPUS determined rate that 
encompasses the daily charge for inpatient care and, unless specifically 
excepted, all other treatment determined

[[Page 73]]

necessary and rendered as part of the treatment plan established for a 
patient, and accepted by OCHAMPUS.
    Allowable charge. The CHAMPUS-determined level of payment to 
physicians, other individual professional providers and other providers, 
based on one of the approved reimbursement methods set forth in Sec. 
199.14 of this part. Allowable charge also may be referred to as the 
CHAMPUS-determined reasonable charge.
    Allowable cost. The CHAMPUS-determined level of payment to hospitals 
or other institutions, based on one of the approved reimbursement 
methods set fourth in Sec. 199.14 of this part. Allowable cost may also 
be referred to as the CHAMPUS-determined reasonable cost.
    Ambulance. A specially designed vehicle for transporting the sick or 
injured that contains a stretcher, linens, first aid supplies, oxygen 
equipment, and such lifesaving equipment required by state and local 
law, and that is staffed by personnel trained to provide first aid 
treatment.
    Ambulatory Payment Classifications (APCs). Payment of services under 
the TRICARE OPPS is based on grouping outpatient procedures and services 
into ambulatory payment classification groups based on clinical and 
resource homogeneity, provider concentration, frequency of service and 
minimal opportunities for upcoding and code fragmentation. Nationally 
established rates for each APC are calculated by multiplying the APC's 
relative weight derived from median costs for procedures assigned to the 
APC group, scaled to the median cost of the APC group representing the 
most frequently provided services, by the conversion factor.
    Amount in dispute. The amount of money, determined under this part, 
that CHAMPUS would pay for medical services and supplies involved in an 
adverse determination being appealed if the appeal were resolved in 
favor of the appealing party. See Sec. 199.10 for additional 
information concerning the determination of ``amount in dispute'' under 
this part.
    Anesthesia services. The administration of an anesthetic agent by 
injection or inhalation, the purpose and effect of which is to produce 
surgical anesthesia characterized by muscular relaxation, loss of 
sensation, or loss of consciousness when administered by or under the 
direction of a physician or dentist in connection with otherwise covered 
surgery or obstetrical care, or shock therapy. Anesthesia services do 
not include hypnosis or acupuncture.
    Appealable issue. Disputed questions of fact which, if resolved in 
favor of the appealing party, would result in the authorization of 
CHAMPUS benefits, or approval as an authorized provider in accordance 
with this part. An appealable issue does not exist if no facts are in 
dispute, if no CHAMPUS benefits would be payable, or if there is no 
authorized provider, regardless of the resolution of any disputed facts. 
See Sec. 199.10 for additional information concerning the determination 
of ``appealable issue'' under this part.
    Appealing party. Any party to the initial determination who files an 
appeal of an adverse determination or requests a hearing under the 
provisions of this part.
    Appropriate medical care. (i) Services performed in connection with 
the diagnosis or treatment of disease or injury, pregnancy, mental 
disorder, or well-baby care which are in keeping with the generally 
accepted norms for medical practice in the United States;
    (ii) The authorized individual professional provider rendering the 
medical care is qualified to perform such medical services by reason of 
his or her training and education and is licensed or certified by the 
state where the service is rendered or appropriate national organization 
or otherwise meets CHAMPUS standards; and
    (iii) The services are furnished economically. For purposes of this 
part, ``economically'' means that the services are furnished in the 
least expensive level of care or medical environment adequate to provide 
the required medical care regardless of whether or not that level of 
care is covered by CHAMPUS.
    Approved teaching programs. For purposes of CHAMPUS, an approved 
teaching program is a program of graduate medical education which has 
been duly approved in its respective specialty or subspecialty by the 
Accreditation

[[Page 74]]

Council for Graduate Medical Education of the American Medical 
Association, by the Committee on Hospitals of the Bureau of Professional 
Education of the American Osteopathic Association, by the Council on 
Dental Education of the American Dental Association, or by the Council 
on Podiatry Education of the American Podiatry Association.
    Assistant Secretary of Defense (Health Affairs). An authority of the 
Assistant Secretary of Defense (Health Affairs) includes any person 
designated by the Assistant Secretary to exercise the authority 
involved.
    Assistive technology devices. Equipment that generally does not 
treat an underlying injury, illness, disease or their symptoms. 
Assistive technology devices are authorized only under the Extended Care 
Health Option (ECHO). Assistive technology devices help an ECHO 
beneficiary overcome or remove a disability and are used to increase, 
maintain, or improve the functional capabilities of an individual. 
Assistive technology devices may include non-medical devices but do not 
include any structural alterations (e.g., permanent structure of 
wheelchair ramps or alterations to street curbs) service animals (e.g., 
Seeing Eye dogs, hearing/handicapped assistance animals, etc.) or 
specialized equipment and devices whose primary purpose is to enable the 
individual to engage in sports or recreational events. Assistive 
technology devices are authorized only under coverage criteria 
determined by the Director, TRICARE Management Activity to assist in the 
reduction of the disabling effects of a qualifying condition for 
individuals eligible to receive benefits under the ECHO program, as 
provided in Sec. 199.5.
    Attending physician. The physician who has the primary 
responsibility for the medical diagnosis and treatment of the patient. A 
consultant or an assistant surgeon, for example, would not be an 
attending physician. Under very extraordinary circumstances, because of 
the presence of complex, serious, and multiple, but unrelated, medical 
conditions, a patient may have more than one attending physician 
concurrently rendering medical treatment during a single period of time. 
An attending physician also may be a teaching physician.
    Augmentative communication device (ACD). A voice prosthesis as 
determined by the Secretary of Defense to be necessary because of 
significant conditions resulting from trauma, congenital anomalies, or 
disease. Also referred to as Speech Generating Device.
    Authorized provider. A hospital or institutional provider, 
physician, or other individual professional provider, or other provider 
of services or supplies specifically authorized to provide benefits 
under CHAMPUS in Sec. 199.6 of this part.
    Automobile liability insurance. Automobile liability insurance means 
insurance against legal liability for health and medical expenses 
resulting from personal injuries arising from operation of a motor 
vehicle. Automobile liability insurance includes:
    (1) Circumstances in which liability benefits are paid to an injured 
party only when the insured party's tortious acts are the cause of the 
injuries; and
    (2) Uninsured and underinsured coverage, in which there is a third-
party tortfeasor who caused the injuries (i.e., benefits are not paid on 
a no-fault basis), but the insured party is not the tortfeasor.
    Backup hospital. A hospital which is otherwise eligible as a CHAMPUS 
institutional provider and which is fully capable of providing emergency 
care to a patient who develops complications beyond the scope of 
services of a given category of CHAMPUS-authorized freestanding 
institutional provider and which is accessible from the site of the 
CHAMPUS-authorized freestanding institutional provider within an average 
transport time acceptable for the types of medical emergencies usually 
associated with the type of care provided by the freestanding facility.
    Balance billing. A provider seeking any payment, other than any 
payment relating to applicable deductible and cost sharing amounts, from 
a beneficiary for CHAMPUS covered services for any amount in excess of 
the applicable CHAMPUS allowable cost or charge.
    Bariatric Surgery. Surgical procedures performed to treat co-morbid 
conditions associated with morbid obesity.

[[Page 75]]

Bariatric surgery is based on two principles: (1) Divert food from the 
stomach to a lower part of the digestive tract where the normal mixing 
of digestive fluids and absorption of nutrients cannot occur (i.e., 
Malabsorptive surgical procedures); or (2) Restrict the size of the 
stomach and decrease intake (i.e., Restrictive surgical procedures).
    Basic program. The primary medical benefits set forth in Sec. 
199.4, generally referred to as the Civilian Health and Medical Program 
of the Uniformed Services (CHAMPUS) as authorized under chapter 55 of 
title 10 United States Code, were made available to eligible 
beneficiaries under this part.
    Beneficiary. An individual who has been determined to be eligible 
for CHAMPUS benefits, as set forth in Sec. 199.3 of this part.
    Beneficiary liability. The legal obligation of a beneficiary, his or 
her estate, or responsible family member to pay for the costs of medical 
care or treatment received. Specifically, for the purposes of services 
and supplies covered by CHAMPUS, beneficiary liability includes any 
annual deductible amount, cost-sharing amounts, or, when a provider does 
not submit a claim on a participating basis on behalf of the 
beneficiary, amounts above the CHAMPUS-determined allowable cost or 
charge. Beneficiary liability also includes any expenses for medical or 
related services and supplies not covered by CHAMPUS.
    Biotelemetry. A diagnostic or monitoring procedure for the detection 
or measurement of human physiologic functions from a distance using a 
biotelemetry device to remotely monitor various vital signs of 
ambulatory patients. Biotelemetry may also be referred to as remote 
physiologic monitoring of physiologic parameters. See Sec. 199.4.
    Birthing center. A health care provider which meets the applicable 
requirements established by Sec. 199.6(b) of this part.
    Birthing room. A room and environment designed and equipped to 
provide care, to accommodate support persons, and within which a woman 
with a low-risk, normal, full-term pregnancy can labor, deliver and 
recover with her infant.
    Brace. An orthopedic appliance or apparatus (an orthosis) used to 
support, align, or hold parts of the body in correct position. For the 
purposes of CHAMPUS, it does not include orthodontic or other dental 
appliances.
    CAHs. A small facility that provides limited inpatient and 
outpatient hospital services primarily in rural areas and meets the 
applicable requirements established by Sec. 199.6(b)(4)(xvi).
    Capped rate. The maximum per diem or all-inclusive rate that CHAMPUS 
will allow for care.
    Case management. Case management is a collaborative process which 
assesses, plans, implements, coordinates, monitors, and evaluates the 
options and services required to meet an individual's health needs, 
including mental health and substance use disorder needs, using 
communication and available resources to promote quality, cost effective 
outcomes.
    Case-mix index. Case-mix index is a scale that measures the relative 
difference in resources intensity among different groups receiving home 
health services.
    Certified nurse-midwife. An individual who meets the applicable 
requirements established by Sec. 199.6(c) of this part.
    Certified psychiatric nurse specialist. A licensed, registered nurse 
who meets the criteria in Sec. 199.6(c)(3)(iii)(G).
    CHAMPUS DRG-Based Payment System. A reimbursement system for 
hospitals which assigns prospectively-determined payment levels to each 
DRG based on the average cost of treating all CHAMPUS patients in a 
given DRG.
    CHAMPUS fiscal intermediary. An organization with which the 
Director, OCHAMPUS, has entered into a contract for the adjudication and 
processing of CHAMPUS claims and the performance of related support 
activities.
    CHAMPUS Health Benefits Advisors (HBAs). Those individuals located 
at Uniformed Services medical facilities (on occasion at other 
locations) and assigned the responsibility for providing CHAMPUS 
information, information concerning availability of care from the 
Uniformed Services direct medical care system, and generally assisting 
beneficiaries (or sponsors). The term

[[Page 76]]

also includes ``Health Benefits Counselor'' and ``CHAMPUS Advisor.''
    Chemotherapy. The administration of approved antineoplastic drugs 
for the treatment of malignancies (cancer) via perfusion, infusion, or 
parenteral methods of administration.
    Child. An unmarried child of a member or former member, who meets 
the criteria (including age requirements) in Sec. 199.3 of this part.
    Chiropractor. A practitioner of chiropractic (also called 
chiropraxis); essentially a system of therapeutics based upon the claim 
that disease is caused by abnormal function of the nerve system. It 
attempts to restore normal function of the nerve system by manipulation 
and treatment of the structures of the human body, especially those of 
the spinal column.

    Note: Services of chiropractors are not covered by CHAMPUS.

    Christian science nurse. An individual who has been accredited as a 
Christian Science Nurse by the Department of Care of the First Church of 
Christ, Scientist, Boston, Massachusetts, and listed (or eligible to be 
listed) in the Christian Science Journal at the time the service is 
provided. The duties of Christian Science nurses are spiritual and are 
nonmedical and nontechnical nursing care performed under the direction 
of an accredited Christian Science practitioner. There exist two levels 
of Christian Science nurse accreditation:
    (i) Graduate Christian Science nurse. This accreditation is granted 
by the Department of Care of the First Church of Christ, Scientist, 
Boston, Massachusetts, after completion of a 3-year course of 
instruction and study.
    (ii) Practical Christian Science nurse. This accreditation is 
granted by the Department of Care of the First Church of Christ, 
Scientist, Boston, Massachusetts, after completion of a 1-year course of 
instruction and study.
    Christian Science practitioner. An individual who has been 
accredited as a Christian Science Practitioner for the First Church, 
Scientist, Boston, Massachusetts, and listed (or eligible to be listed) 
in the Christian Science Journal at the time the service is provided. An 
individual who attains this accreditation has demonstrated results of 
his or her healing through faith and prayer rather than by medical 
treatment. Instruction is executed by an accredited Christian Science 
teacher and is continuous.
    Christian Science sanatorium. A sanatorium either operated by the 
First Church of Christ, Scientist, or listed and certified by the First 
Church of Christ, Scientist, Boston, Massachusetts.
    Chronic medical condition. A medical condition that is not curable, 
but which is under control through active medical treatment. Such 
chronic conditions may have periodic acute episodes and may require 
intermittent inpatient hospital care. However, a chronic medical 
condition can be controlled sufficiently to permit generally 
continuation of some activities of persons who are not ill (such as work 
and school).
    Chronic renal disease (CRD). The end stage of renal disease which 
requires a continuing course of dialysis or a kidney transplantation to 
ameliorate uremic symptoms and maintain life.
    Clinical psychologist. A psychologist, certified or licensed at the 
independent practice level in his or her state, who meets the criteria 
in Sec. 199.6(c)(3)(iii)(A).
    Clinical social worker. An individual who is licensed or certified 
as a clinical social worker and meets the criteria listed in Sec. 
199.6.
    Clinically meaningful endpoints. As used the definition of reliable 
evidence in this paragraph (b) and Sec. 199.4(g)(15), the term 
clinically meaningful endpoints means objectively measurable outcomes of 
clinical interventions or other medical procedures, expressed in terms 
of survival, severity of illness or condition, extent of adverse side 
effects, diagnostic capability, or other effect on bodily functions 
directly associated with such results.
    Collateral visits. Sessions with the patient's family or significant 
others for purposes of information gathering or implementing treatment 
goals.
    Combined daily charge. A billing procedure by an inpatient facility 
that uses an inclusive flat rate covering all professional and ancillary 
charges without any itemization.

[[Page 77]]

    Complications of pregnancy. One of the following, when commencing or 
exacerbating during the term of the pregnancy:
    (i) Caesarean delivery; hysterectomy.
    (ii) Pregnancy terminating before expiration of 26 weeks, except a 
voluntary abortion.
    (iii) False labor or threatened miscarriage.
    (iv) Nephritis or pyelitis of pregnancy.
    (v) Hyperemesis gravidarum.
    (vi) Toxemia.
    (vii) Aggravation of a heart condition or diabetes.
    (viii) Premature rupture of membrane.
    (ix) Ectopic pregnancy.
    (x) Hemorrhage.
    (xi) Other conditions as may be determined by the Director, 
OCHAMPUS, or a designee.
    Confinement. That period of time from the day of admission to a 
hospital or other institutional provider, to the day of discharge, 
transfer, or separation from the facility, or death. Successive 
admissions also may qualify as one confinement provided not more than 60 
days have elapsed between the successive admissions, except that 
successive admissions related to a single maternity episode shall be 
considered one confinement, regardless of the number of days between 
admissions.
    Conflict of interest. Includes any situation where an active duty 
member (including a reserve member while on active duty) or civilian 
employee of the United States Government, through an official federal 
position, has the apparent or actual opportunity to exert, directly or 
indirectly, any influence on the referral of CHAMPUS beneficiaries to 
himself or herself or others with some potential for personal gain or 
appearance of impropriety. For purposes of this part, individuals under 
contract to a Uniformed Service may be involved in a conflict of 
interest situation through the contract position.
    Congenital anomaly. A condition existing at or from birth that is a 
significant deviation from the common form or norm and is other than a 
common racial or ethnic feature. For purposes of CHAMPUS, congenital 
anomalies do not include anomalies relating to teeth (including 
malocclusion or missing tooth buds) or structures supporting the teeth, 
or to any form of hermaphroditism or sex gender confusion. Examples of 
congenital anomalies are harelip, birthmarks, webbed fingers or toes, or 
such other conditions that the Director, OCHAMPUS, or a designee, may 
determine to be congenital anomalies.

    Note: Also refer to Sec. 199.4(e)(7) of this part.

    Consultation. A deliberation with a specialist physician, dentist, 
or qualified mental health provider requested by the attending physician 
primarily responsible for the medical care of the patient, with respect 
to the diagnosis or treatment in any particular case. A consulting 
physician or dentist or qualified mental health provider may perform a 
limited examination of a given system or one requiring a complete 
diagnostic history and examination. To qualify as a consultation, a 
written report to the attending physician of the findings of the 
consultant is required.
    Note: Staff consultations required by rules and regulations of the 
medical staff of a hospital or other institutional provider do not 
qualify as consultation.

    Consultation appointment. An appointment for evaluation of medical 
symptoms resulting in a plan for management which may include elements 
of further evaluation, treatment and follow-up evaluation. Such an 
appointment does not include surgical intervention or other invasive 
diagnostic or therapeutic procedures beyond the level of very simply 
office procedures, or basic laboratory work but rather provides the 
beneficiary with an authoritative opinion.
    Consulting physician or dentist. A physician or dentist, other than 
the attending physician, who performs a consultation.
    Conviction. For purposes of this part, ``conviction'' or 
``convicted'' means that (1) a judgment of conviction has been entered, 
or (2) there has been a finding of guilt by the trier of fact, or (3) a 
plea of guilty or a plea of nolo contendere has been accepted by a court 
of competent jurisdiction, regardless of whether an appeal is pending.

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    Coordination of benefits. The coordination, on a primary or 
secondary payer basis, of the payment of benefits between two or more 
health care coverages to avoid duplication of benefit payments.
    Corporate services provider. A health care provider that meets the 
applicable requirements established by Sec. 199.6(f).
    Cosmetic, reconstructive, or plastic surgery. Surgery that can be 
expected primarily to improve the physical appearance of a beneficiary, 
or that is performed primarily for psychological purposes, or that 
restores form, but does not correct or improve materially a bodily 
function.
    Cost-share. The amount of money for which the beneficiary (or 
sponsor) is responsible in connection with otherwise covered inpatient 
and outpatient services (other than the annual fiscal year deductible or 
disallowed amounts) as set forth in Sec. Sec. 199.4(f) and 199.5(b) of 
this part. Cost-sharing may also be referred to as ``co-payment.''
    Custodial care. The term ``custodial care'' means treatment or 
services, regardless of who recommends such treatment or services or 
where such treatment or services are provided, that:
    (1) Can be rendered safely and reasonably by a person who is not 
medically skilled; or
    (2) Is or are designed mainly to help the patient with the 
activities of daily living.
    Days. Calendar days.
    Deceased member. A person who, at the time of his or her death, was 
an active duty member of a Uniformed Service under a call or order that 
did not specify a period of 30 days or less.
    Deceased reservist. A reservist in a Uniformed Service who incurs or 
aggravates an injury, illness, or disease, during, or on the way to or 
from, active duty training for a period of 30 days or less or inactive 
duty training and dies as a result of that specific injury, illness or 
disease.
    Deceased retiree. A person who, at the time of his or her death, was 
entitled to retired or retainer pay or equivalent pay based on duty in a 
Uniformed Service. For purposes of this part, it also includes a person 
who died before attaining age 60 and at the time of his or her death 
would have been eligible for retired pay as a reservist but for the fact 
that he or she was not 60 years of age, and had elected to participate 
in the Survivor Benefit Plan established under 10 U.S.C. chapter 73.
    Deductible. Payment by an individual beneficiary or family of a 
specific first dollar amount of the TRICARE allowable amount for 
otherwise covered outpatient services or supplies obtained in any 
program year. The dollar amount of deductible per individual or family 
is calculated as specified by law.
    Deductible certificate. A statement issued to the beneficiary (or 
sponsor) by a TRICARE contractor certifying to deductible amounts 
satisfied by a beneficiary for any applicable program year.
    Defense Enrollment Eligibility Reporting System (DEERS). An 
automated system maintained by the Department of Defense for the purpose 
of:
    (1) Enrolling members, former members and their dependents, and
    (2) Verifying members', former members' and their dependents' 
eligibility for health care benefits in the direct care facilities and 
for CHAMPUS.
    Dental care. Services relating to the teeth and their supporting 
structures.
    Dentist. Doctor of Dental Medicine (D.M.D.) or Doctor of Dental 
Surgery (D.D.S.) who is licensed to practice dentistry by an appropriate 
authority.
    Dependent. Individuals whose relationship to the sponsor (including 
NATO members who are stationed in or passing through the United States 
on official business when authorized) leads to entitlement to benefits 
under this part. (See Sec. 199.3 of this part for specific categories 
of dependents).
    Deserter or desertion status. A service member is a deserter, or in 
a desertion status, when the Uniformed Service concerned has made an 
administrative determination to that effect, or the member's period of 
unauthorized absence has resulted in a court-martial conviction of 
desertion. Administrative declarations of desertion normally are made 
when a member has been an unauthorized absentee for over 30 days, but 
particular circumstances may result in an earlier declaration. 
Entitlement to CHAMPUS benefits ceases as of 12:01 a.m. on the day 
following the

[[Page 79]]

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

[[Page 80]]

    (iii) Entitlement to receive care from the Uniformed Services 
medical facilities;
    (iv) Entitlement to receive care from Veterans Administration 
medical care facilities; or
    (v) Part C of the Individuals with Disabilities Education Act for 
services and items provided in accordance with Part C of the IDEA that 
are medically or psychologically necessary in accordance with the 
Individual Family Service Plan and that are otherwise allowable under 
the CHAMPUS Basic Program or the Extended Care Health Option (ECHO).
    Dual compensation. Federal Law (5 U.S.C. 5536) prohibits active duty 
members or civilian employees of the United States Government from 
receiving additional compensation from the government above their normal 
pay and allowances. This prohibition applies to CHAMPUS cost-sharing of 
medical care provided by active duty members or civilian government 
employees to CHAMPUS beneficiaries.
    Duplicate equipment. An item of durable equipment, durable medical 
equipment, or assistive technology items, as defined in this section 
that serves the same purpose that is served by an item of durable 
equipment, durable medical equipment, or assistive technology item 
previously cost-shared by TRICARE. For example, various models of 
stationary oxygen concentrators with no essential functional differences 
are considered duplicate equipment, whereas stationary and portable 
oxygen concentrators are not considered duplicates of each other because 
the latter is intended to provide the user with mobility not afforded by 
the former. Also, a manual wheelchair and electric wheelchair, both of 
which otherwise meet the definition of durable equipment or durable 
medical equipment, would not be considered duplicates of each other if 
each is found to provide an appropriate level of mobility. For the 
purpose of this Part, durable equipment, durable medical equipment, or 
assistive technology items that are essential in providing a fail-safe 
in-home life support system or that replace in-like-kind an item of 
equipment that is not serviceable due to normal wear, accidental damage, 
a change in the beneficiary's condition, or has been declared 
adulterated by the U.S. FDA, or is being or has been recalled by the 
manufacturer is not considered duplicate equipment.
    Durable equipment. Equipment that--
    (1) Is a medically necessary item, which can withstand repeated use;
    (2) Is primarily and customarily used to serve a medical purpose; 
and
    (3) Is generally not useful to an individual in the absence of an 
illness or injury. It includes durable medical equipment as defined in 
Sec. 199.2, wheelchairs, iron lungs, and hospital beds. It does not 
include equipment (including wheelchairs) used or designed primarily for 
use in sports or recreational activities.
    Durable medical equipment. Durable equipment that is medically 
appropriate to--
    (1) Improve, restore, or maintain the function of a malformed, 
diseased, or injured body part or can otherwise minimize or prevent the 
deterioration of the beneficiary's function or condition; or
    (2) Maximize the beneficiary's function consistent with the 
beneficiary's physiological or medical needs.
    Economic interest. (1) Any right, title, or share in the income, 
remuneration, payment, or profit of a CHAMPUS-authorized provider, or of 
an individual or entity eligible to be a CHAMPUS-authorized provider, 
resulting, directly or indirectly, from a referral relationship; or any 
direct or indirect ownership, right, title, or share, including a 
mortgage, deed of trust, note, or other obligation secured (in whole or 
in part) by one entity for another entity in a referral or accreditation 
relationship, which is equal to or exceeds 5 percent of the total 
property and assets of the other entity.
    (2) A referral relationship exists when a CHAMPUS beneficiary is 
sent, directed, assigned or influenced to use a specific CHAMPUS-
authorized provider, or a specific individual or entity eligible to be a 
CHAMPUS-authorized provider.
    (3) An accreditation relationship exists when a CHAMPUS-authorized 
accreditation organization evaluates for

[[Page 81]]

accreditation an entity that is an applicant for, or recipient of 
CHAMPUS-authorized provider status.
    Emergency inpatient admission. An unscheduled, unexpected, medically 
necessary admission to a hospital or other authorized institutional 
provider for treatment of a medical condition meeting the definition of 
medical emergency and which is determined to require immediate inpatient 
treatment by the attending physician.
    Entity. For purposes of Sec. 199.9(f)(1), ``entity'' includes a 
corporation, trust, partnership, sole proprietorship or other kind of 
business enterprise that is or may be eligible to receive reimbursement 
either directly or indirectly from CHAMPUS.
    Essential Access Community Hospital (EACH). A hospital that is 
designated by the Centers for Medicare and Medicaid Services (CMS) as an 
EACH and meets the applicable requirements established by Sec. 
199.14(a)(7)(vi).
    Extended Care Health Option (ECHO). The TRICARE program of 
supplemental benefits for qualifying active duty family members as 
described in Sec. 199.5.
    External Partnership Agreement. The External Partnership Agreement 
is an agreement between a military treatment facility commander and a 
CHAMPUS authorized institutional provider, enabling Uniformed Services 
health care personnel to provide otherwise covered medical care to 
CHAMPUS beneficiaries in a civilian facility under the Military-Civilian 
Health Services Partnership Program. Authorized costs associated with 
the use of the facility will be financed through CHAMPUS under normal 
cost-sharing and reimbursement procedures currently applicable under the 
basic CHAMPUS.
    External Resource Sharing Agreement. A type External Partnership 
Agreement, established in the context of the TRICARE program by 
agreement of a military medical treatment facility commander and an 
authorized TRICARE contractor. External Resource Sharing Agreements may 
incorporate TRICARE features in lieu of standard CHAMPUS features that 
would apply to standard External Partnership Agreements.
    Extramedical individual providers of care. Individuals who do 
counseling or nonmedical therapy and whose training and therapeutic 
concepts are outside the medical field, as specified in Sec. 199.6 of 
this part.
    Extraordinary physical or psychological condition. A complex 
physical or psychological clinical condition of such severity which 
results in the beneficiary being homebound as defined in this section.
    Facility charge. The term ``facility charge'' means the charge, 
either inpatient or outpatient, made by a hospital or other 
institutional provider to cover the overhead costs of providing the 
service. These costs would include building costs, i.e. depreciation and 
interest; staffing costs; drugs and supplies; and overhead costs, i.e., 
utilities, housekeeping, maintenance, etc.
    Former member. An individual who is eligible for, or entitled to, 
retired pay, at age 60, for non-Regular service in accordance with 
chapter 1223, title 10, United States Code but who has been discharged 
and who maintains no military affiliation. These former members, at age 
60, and their eligible dependents are entitled to medical care, 
commissary, exchange, and MWR privileges. Under age 60, they and their 
eligible dependents are entitled to commissary, exchange, and MWR 
privileges only.
    Former spouse. A former husband or wife of a Uniformed Service 
member or former member who meets the criteria as set forth in Sec. 
199.3(b)(2)(ii) of this part.
    Fraud. For purposes of this part, fraud is defined as (1) a 
deception or misrepresentation by a provider, beneficiary, sponsor, or 
any person acting on behalf of a provider, sponsor, or beneficiary with 
the knowledge (or who had reason to know or should have known) that the 
deception or misrepresentation could result in some unauthorized CHAMPUS 
benefit to self or some other person, or some unauthorized CHAMPUS 
payment, or (2) a claim that is false or fictitious, or includes or is 
supported by any written statement which asserts a material fact which 
is false or fictitious, or includes or is supported by any written 
statement that (a) omits a material fact and (b) is

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false or fictitious as a result of such omission and (c) is a statement 
in which the person making, presenting, or submitting such statement has 
a duty to include such material fact. It is presumed that, if a 
deception or misrepresentation is established and a CHAMPUS claim is 
filed, the person responsible for the claim had the requisite knowledge. 
This presumption is rebuttable only by substantial evidence. It is 
further presumed that the provider of the services is responsible for 
the actions of all individuals who file a claim on behalf of the 
provider (for example, billing clerks); this presumption may only be 
rebutted by clear and convincing evidence.
    Freestanding. Not ``institution-affiliated'' or ``institution-
based.''
    Full-time course of higher education. A complete, progressive series 
of studies to develop attributes such as knowledge, skill, mind, and 
character, by formal schooling at a college or university, and which 
meets the criteria set out in Sec. 199.3 of this part. To qualify as 
full-time, the student must be carrying a course load of a minimum of 12 
credit hours or equivalent each semester.
    General staff nursing service. All nursing care (other than that 
provided by private duty nurses) including, but not limited to, general 
duty nursing, emergency room nursing, recovery room nursing, intensive 
nursing care, and group nursing arrangements performed by nursing 
personnel on the payroll of the hospital or other authorized 
institution.
    Good faith payments. Those payments made to civilian sources of 
medical care who provided medical care to persons purporting to be 
eligible beneficiaries but who are determined later to be ineligible for 
CHAMPUS benefits. (The ineligible person usually possesses an erroneous 
or illegal identification card.) To be considered for good faith 
payments, the civilian source of care must have exercised reasonable 
precautions in identifying a person claiming to be an eligible 
beneficiary.
    Habilitation. The provision of functional capacity, absent from 
birth due to congenital anomaly or developmental disorder, which 
facilitates performance of an activity in the manner, or within the 
range considered normal, for a human being.
    Handicap. For the purposes of this part, the term ``handicap'' is 
synonymous with the term ``disability.''
    High-risk pregnancy. A pregnancy is high-risk when the presence of a 
currently active or previously treated medical, anatomical, 
physiological illness or condition may create or increase the likelihood 
of a detrimental effect on the mother, fetus, or newborn and presents a 
reasonable possibility of the development of complications during labor 
or delivery.
    Homebound. A beneficiary's condition is such that there exists a 
normal inability to leave home and, consequently, leaving home would 
require considerable and taxing effort. Any absence of an individual 
from the home attributable to the need to receive health care 
treatment--including regular absences for the purpose of participating 
in therapeutic, psychosocial, or medical treatment in an adult day-care 
program that is licensed or certified by a state, or accredited to 
furnish adult day-care services in the--state shall not disqualify an 
individual from being considered to be confined to his home. Any other 
absence of an individual from the home shall not disqualify an 
individual if the absence is infrequent or of relatively short duration. 
For purposes of the preceding sentence, any absence for the purpose of 
attending a religious service shall be deemed to be an absence of 
infrequent or short duration. Also, absences from the home for non-
medical purposes, such as an occasional trip to the barber, a walk 
around the block or a drive, would not necessarily negate the 
beneficiary's homebound status if the absences are undertaken on an 
infrequent basis and are of relatively short duration. An exception is 
made to the above homebound definitional criteria for beneficiaries 
under the age of 18 and those receiving maternity care. The only 
homebound criteria for these special beneficiary categories is written 
certification from a physician attesting to the fact that leaving the 
home would place the beneficiary at medical risk. In addition to the 
above, absences, whether regular or infrequent,

[[Page 83]]

from the beneficiary's primary residence for the purpose of attending an 
educational program in a public or private school that is licensed and/
or certified by a state, shall not negate the beneficiary's homebound 
status.
    Home health discipline. One of six home health disciplines covered 
under the home health benefit (skilled nursing services, home health 
aide services, physical therapy services, occupational therapy services, 
speech-language pathology services, and medical social services).
    Home health market basket index. An index that reflects changes over 
time in the prices of an appropriate mix of goods and services included 
in home health services.
    Hospice care. Hospice care is a program which provides an integrated 
set of services and supplies designed to care for the terminally ill. 
This type of care emphasizes palliative care and supportive services, 
such as pain control and home care, rather than cure-oriented services 
provided in institutions that are otherwise the primary focus under 
CHAMPUS. The benefit provides coverage for a humane and sensible 
approach to care during the last days of life for some terminally ill 
patients.
    Hospital, acute care (general and special). An institution that 
meets the criteria as set forth in Sec. 199.6(b)(4)(i) of this part.
    Hospital, psychiatric. An institution that meets the criteria as set 
forth in Sec. 199.6(b)(4)(ii) of this part.
    Illegitimate child. A child not recognized as a lawful offspring; 
that is, a child born of parents not married to each other.
    Immediate family. The spouse, natural parent, child and sibling, 
adopted child and adoptive parent, stepparent, stepchild, grandparent, 
grandchild, stepbrother and stepsister, father-in-law, mother-in-law of 
the beneficiary, or provider, as appropriate. For purposes of this 
definition only, to determine who may render services to a beneficiary, 
the step-relationship continues to exist even if the marriage upon which 
the relationship is based terminates through divorce or death of one of 
the parents.
    Independent laboratory. A freestanding laboratory approved for 
participation under Medicare and certified by the Health Care Financing 
Administration.
    Infirmaries. Facilities operated by student health departments of 
colleges and universities to provide inpatient or outpatient care to 
enrolled students. When specifically approved by the Director, OCHAMPUS, 
or a designee, a boarding school infirmary also is included.
    Initial determination. A formal written decision on a CHAMPUS claim, 
a request for benefit authorization, a request by a provider for 
approval as an authorized CHAMPUS provider, or a decision disqualifying 
or excluding a provider as an authorized provider under CHAMPUS. 
Rejection of a claim or a request for benefit or provider authorization 
for failure to comply with administrative requirements, including 
failure to submit reasonably requested information, is not an initial 
determination. Responses to general or specific inquiries regarding 
CHAMPUS benefits are not initial determinations.
    In-out surgery. Surgery performed in the outpatient department of a 
hospital or other institutional provider, in a physician's office or the 
office of another individual professional provider, in a clinic, or in a 
``freestanding'' ambulatory surgical center which does not involve a 
formal inpatient admission for a period of 24 hours or more.
    Inpatient. A patient who has been admitted to a hospital or other 
authorized institution for bed occupancy for purposes of receiving 
necessary medical care, with the reasonable expectation that the patient 
will remain in the institution at least 24 hours, and with the 
registration and assignment of an inpatient number or designation. 
Institutional care in connection with in and out (ambulatory) surgery is 
not included within the meaning of inpatient whether or not an inpatient 
number or designation is made by the hospital or other institution. If 
the patient has been received at the hospital, but death occurs before 
the actual admission occurs, an inpatient admission exists as if the 
patient had lived and had been formally admitted.

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    Inpatient Rehabilitation Facility (IRF). A facility classified by 
CMS as an IRF and meets the applicable requirements established by Sec. 
199.6(b)(4)(xx) (which includes the requirement to be a Medicare 
participating provider).
    Institution-affiliated. Related to a CHAMPUS-authorized 
institutional provider through a shared governing body but operating 
under a separate and distinct license or accreditation.
    Institution-based. Related to a CHAMPUS-authorized institutional 
provider through a shared governing body and operating under a common 
license and shared accreditation.
    Institutional provider. A health care provider which meets the 
applicable requirements established by Sec. 199.6(b) of this part.
    Intensive care unit (ICU). A special segregated unit of a hospital 
in which patients are concentrated by reason of serious illness, usually 
without regard to diagnosis. Special lifesaving techniques and equipment 
regularly and immediately are available within the unit, and patients 
are under continuous observation by a nursing staff specially trained 
and selected for the care of this type patient. The unit is maintained 
on a continuing rather than an intermittent or temporary basis. It is 
not a postoperative recovery room nor a postanesthesia room. In some 
large or highly specialized hospitals, the ICUs may be further refined 
for special purposes, such as for respiratory conditions, cardiac 
surgery, coronary care, burn care, or neurosurgery. For the purposes of 
CHAMPUS, these specialized units would be considered ICUs if they 
otherwise conformed to the definition of an ICU.
    Intensive outpatient program (IOP). A treatment setting capable of 
providing an organized day or evening program that includes assessment, 
treatment, case management and rehabilitation for individuals not 
requiring 24-hour care for mental health disorders, to include substance 
use disorders, as appropriate for the individual patient. The program 
structure is regularly scheduled, individualized and shares monitoring 
and support with the patient's family and support system.
    Intern. A graduate of a medical or dental school serving in a 
hospital in preparation to being licensed to practice medicine or 
dentistry.
    Internal Partnership Agreement. The Internal Partnership Agreement 
is an agreement between a military treatment facility commander and a 
CHAMPUS-authorized civilian health care provider which enables the use 
of civilian health care personnel or other resources to provide medical 
care to CHAMPUS beneficiaries on the premises of a military treatment 
facility under the Military-Civilian Health Services Partnership 
Program. These internal agreements may be established when a military 
treatment facility is unable to provide sufficient health care services 
for CHAMPUS beneficiaries due to shortages of personnel and other 
required resources.
    Internal Resource Sharing Agreement. A type of Internal Partnership 
Agreement, established in the context of the TRICARE program by 
agreement of a military medical treatment facility commander and 
authorized TRICARE contractor. Internal Resource Sharing Agreements may 
incorporate TRICARE features in lieu of standard CHAMPUS features that 
would apply to standard Internal Partnership Agreements.
    Item, Service, or Supply. Includes (1) any item, device, medical 
supply, or service claimed to have been provided to a beneficiary 
(patient) and listed in an itemized claim for CHAMPUS payment or a 
request for payment, or (2) in the case of a claim based on costs, any 
entry or omission in a cost report, books of account, or other documents 
supporting the claim.
    Laboratory and pathological services. Laboratory and pathological 
examinations (including machine diagnostic tests that produce hard-copy 
results) when necessary to, and rendered in connection with medical, 
obstetrical, or surgical diagnosis or treatment of an illness or injury, 
or in connection with well-baby care.
    Legitimized child. A formerly illegitimate child who is considered 
legitimate by reason of qualifying actions recognized in law.
    Licensed practical nurse (L.P.N.). A person who is prepared 
specially in the scientific basis of nursing; who is a

[[Page 85]]

graduate of a school of practical nursing; whose qualifications have 
been examined by a state board of nursing; and who has been authorized 
legally to practice as an L.P.N. under the supervision of a physician.
    Licensed vocational nurse (L.V.N.) A person who specifically is 
prepared in the scientific basis or nursing; who is a graduate of a 
school of vocational nursing; whose qualifications have been examined by 
a state board of nursing; and who has been authorized legally to 
practice as a L.V.N. under the supervision of a physician.
    Long Term Care Hospital (LTCH). A hospital that is classified by the 
Centers for Medicare and Medicaid Services (CMS) as an LTCH and meets 
the applicable requirements established by Sec. 199.6(b)(4)(v) (which 
includes the requirement to be a Medicare participating provider).
    Low-risk pregnancy. A pregnancy is low-risk when the basis for the 
ongoing clinical expectation of a normal uncomplicated birth, as defined 
by reasonable and generally accepted criteria of maternal and fetal 
health, is documented throughout a generally accepted course of prenatal 
care.
    Major life activity. Breathing, cognition, hearing, seeing, and age 
appropriate ability essential to bathing, dressing, eating, grooming, 
speaking, stair use, toilet use, transferring, and walking.
    Marriage and family therapist, certified. An extramedical individual 
provider who meets the requirements outlined in Sec. 199.6.
    Maternity care. Care and treatment related to conception, delivery, 
and abortion, including prenatal and postnatal care (generally through 
the 6th post-delivery week), and also including treatment of the 
complications of pregnancy.
    Medicaid. Those medical benefits authorized under Title XIX of the 
Social Security Act provided to welfare recipients and the medically 
indigent through programs administered by the various states.
    Medical. The generally used term which pertains to the diagnosis and 
treatment of illness, injury, pregnancy, and mental disorders by trained 
and licensed or certified health professionals. For purposes of CHAMPUS, 
the term ``medical'' should be understood to include ``medical, 
psychological, surgical, and obstetrical,'' unless it is specifically 
stated that a more restrictive meaning is intended.
    Medical emergency. The sudden and unexpected onset of a medical 
condition or the acute exacerbation of a chronic condition that is 
threatening to life, limb, or sight, and requires immediate medical 
treatment or which manifests painful symptomatology requiring immediate 
palliative efforts to alleviate suffering. Medical emergencies include 
heart attacks, cardiovascular accidents, poisoning, convulsions, kidney 
stones, and such other acute medical conditions as may be determined to 
be medical emergencies by the Director, OCHAMPUS, or a designee. In the 
case of a pregnancy, a medical emergency must involve a sudden and 
unexpected medical complication that puts the mother, the baby, or both, 
at risk. Pain would not, however, qualify a maternity case as an 
emergency, nor would incipient birth after the 34th week of gestation, 
unless an otherwise qualifying medical condition is present. Examples of 
medical emergencies related to pregnancy or delivery are hemorrhage, 
ruptured membrane with prolapsed cord, placenta previa, abruptio 
placenta, presence of shock or unconsciousness, suspected heart attack 
or stroke, or trauma (such as injuries received in an automobile 
accident).
    Medically or psychologically necessary preauthorization. A pre (or 
prior) authorization for payment for medical/surgical or psychological 
services based upon criteria that are generally accepted by qualified 
professionals to be reasonable for diagnosis and treatment of an 
illness, injury, pregnancy, and mental disorder.
    Medical supplies and dressings (consumables). Necessary medical or 
surgical supplies (exclusive of durable medical equipment) that do not 
withstand prolonged, repeated use and that are needed for the proper 
medical management of a condition for which benefits are otherwise 
authorized under CHAMPUS, on either an inpatient or

[[Page 86]]

outpatient basis. Examples include disposable syringes for a diabetic, 
colostomy sets, irrigation sets, and ace bandages.
    Medically or psychologically necessary. The frequency, extent, and 
types of medical services or supplies which represent appropriate 
medical care and that are generally accepted by qualified professionals 
to be reasonable and adequate for the diagnosis and treatment of 
illness, injury, pregnancy, and mental disorders or that are reasonable 
and adequate for well-baby care.
    Medicare. These medical benefits authorized under Title XVIII of the 
Social Security Act provided to persons 65 or older, certain disabled 
persons, or persons with chronic renal disease, through a national 
program administered by the DHHS, Health Care Financing Administration, 
Medicare Bureau.
    Medication assisted treatment (MAT). MAT for diagnosed opioid use 
disorder is a holistic modality for recovery and treatment that employs 
evidence-based therapy, including psychosocial treatments and 
psychopharmacology, and FDA-approved medications as indicated for the 
management of withdrawal symptoms and maintenance.
    Member. An individual who is affiliated with a Service, either an 
active duty member, Reserve member, active duty retired member, or 
Retired Reserve member. Members in a retired status are not former 
members. Also referred to as the sponsor.
    Mental disorder, to include substance use disorder. For purposes of 
the payment of CHAMPUS benefits, a mental disorder is a nervous or 
mental condition that involves a clinically significant behavioral or 
psychological syndrome or pattern that is associated with a painful 
symptom, such as distress, and that impairs a patient's ability to 
function in one or more major life activities. A substance use disorder 
is a mental condition that involves a maladaptive pattern of substance 
use leading to clinically significant impairment or distress; impaired 
control over substance use; social impairment; and risky use of a 
substance(s). Additionally, the mental disorder must be one of those 
conditions listed in the current edition of the Diagnostic and 
Statistical Manual of Mental Disorders. ``Conditions Not Attributable to 
a Mental Disorder,'' or V codes, are not considered diagnosable mental 
disorders. Co-occurring mental and substance use disorders are common 
and assessment should proceed as soon as it is possible to distinguish 
the substance related symptoms from other independent conditions.
    Mental health therapeutic absence. A therapeutically planned absence 
from the inpatient setting. The patient is not discharged from the 
facility and may be away for periods of several hours to several days. 
The purpose of the therapeutic absence is to give the patient an 
opportunity to test his or her ability to function outside the inpatient 
setting before the actual discharge.
    Missing in action (MIA). A battle casualty whose whereabouts and 
status are unknown, provided the absence appears to be involuntary and 
the service member is not known to be in a status of unauthorized 
absence.

    Note: Claims for eligible CHAMPUS beneficiaries whose sponsor is 
classified as MIA are processed as dependents of an active duty service 
member.

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

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

    Most-favored rate. The lowest usual charge to any individual or 
third-party payer in effect on the date of the admission of a CHAMPUS 
beneficiary.
    Natural childbirth. Childbirth without the use of chemical induction 
or augmentation of labor or surgical procedures other than episiotomy or 
perineal repair.
    Naturopath. A person who practices naturopathy, that is, a drugless 
system of therapy making use of physical forces such as air, light, 
water, heat, and massage.


[[Page 87]]


    Note: Services of a naturopath are not covered by CHAMPUS.

    NAVCARE clinics. Contractor owned, staffed, and operated primary 
clinics exclusively serving uniformed services beneficiaries pursuant to 
contracts awarded by a Military Department.
    No-fault insurance. No-fault insurance means an insurance contract 
providing compensation for health and medical expenses relating to 
personal injury arising from the operation of a motor vehicle in which 
the compensation is not premised on whom may have been responsible for 
causing such injury. No-fault insurance includes personal injury 
protection and medical payments benefits in cases involving personal 
injuries resulting from operation of a motor vehicle.
    Nonavailability statement. A certification by a commander (or a 
designee) of a Uniformed Services medical treatment facility, recorded 
on DEERS, generally for the reason that the needed medical care being 
requested by a non-TRICARE Prime enrolled beneficiary cannot be provided 
at the facility concerned because the necessary resources are not 
available in the time frame needed.
    Nonparticipating provider. A hospital or other authorized 
institutional provider, a physician or other authorized individual 
professional provider, or other authorized provider that furnished 
medical services or supplies to a CHAMPUS beneficiary, but who did not 
agree on the CHAMPUS claim form to participate or to accept the CHAMPUS-
determined allowable cost or charge as the total charge for the 
services. A nonparticipating provider looks to the beneficiary or 
sponsor for payment of his or her charge, not CHAMPUS. In such cases, 
CHAMPUS pays the beneficiary or sponsor, not the provider.
    North Atlantic Treaty Organization (NATO) member. A military member 
of an armed force of a foreign NATO nation who is on active duty and 
who, in connection with official duties, is stationed in or passing 
through the United States. The foreign NATO nations are Belgium, Canada, 
Denmark, France, Federal Republic of Germany, Greece, Iceland, Italy, 
Luxembourg, the Netherlands, Norway, Portugal, Spain, Turkey, and the 
United Kingdom.
    Not-for-profit entity. An organization or institution owned and 
operated by one or more nonprofit corporations or associations formed 
pursuant to applicable state laws, no part of the net earnings of which 
inures, or may lawfully inure, to the benefit of any private shareholder 
or individual.
    Occupational therapist. A person who is trained specially in the 
skills and techniques of occupational therapy (that is, the use of 
purposeful activity with individuals who are limited by physical injury 
of illness, psychosocial dysfunction, developmental or learning 
disabilities, poverty and cultural differences, or the aging process in 
order to maximize independence, prevent disability, and maintain health) 
and who is licensed to administer occupational therapy treatments 
prescribed by a physician.
    Off-label use of a drug or device. A use other than an intended use 
for which the prescription drug, biologic or device is legally marketed 
under the Federal Food, Drug, and Cosmetic Act or the Public Health 
Services Act. This includes any use that is not included in the approved 
labeling for an approved drug, licensed biologic, approved device or 
combination product; any use that is not included in the cleared 
statement of intended use for a device that has been determined by the 
Food and Drug Administration (FDA) to be substantially equivalent to a 
legally marketed predicate device and cleared for marketing; and any use 
of a device for which a manufacturer or distributor would be required to 
seek pre-market review by the FDA in order to legally include that use 
in the device's labeling.
    Office-based opioid treatment. TRICARE authorized providers acting 
within the scope of their licensure or certification to prescribe 
outpatient supplies of the medication to assist in withdrawal management 
(detoxification) and/or maintenance of opioid use disorder, as regulated 
by 42 CFR part 8, addressing office-based opioid treatment (OBOT).
    Official formularies. A book of official standards for certain 
pharmaceuticals

[[Page 88]]

and preparations that are not included in the U.S. Pharmacopeia.
    Opioid Treatment Program. Opioid Treatment Programs (OTPs) are 
service settings for opioid treatment, either free standing or hospital 
based, that adhere to the Department of Health and Human Services' 
regulations at 42 CFR part 8 and use medications indicated and approved 
by the Food and Drug Administration. Treatment in OTPs provides a 
comprehensive, individually tailored program of medication therapy 
integrated with psychosocial and medical treatment and support services 
that address factors affecting each patient, as certified by the Center 
for Substance Abuse Treatment (CSAT) of the Department of Health and 
Human Services' Substance Abuse and Mental Health Services 
Administration. Treatment in OTPs can include management of withdrawal 
symptoms (detoxification) from opioids and medically supervised 
withdrawal from maintenance medications. Patients receiving care for 
substance use and co-occurring disorders care can be referred to, or 
otherwise concurrently enrolled in, OTPs.
    Optometrist (Doctor of Optometry). A person trained and licensed to 
examine and test the eyes and to treat visual defects by prescribing and 
adapting corrective lenses and other optical aids, and by establishing 
programs of exercises.
    Oral surgeon (D.D.S. or D.M.D.). A person who has received a degree 
in dentistry and who limits his or her practice to oral surgery, that 
is, that branch of the healing arts that deals with the diagnosis and 
the surgical correction and adjunctive treatment of diseases, injuries, 
and defects of the mouth, the jaws, and associated structures.
    Orthopedic shoes. Shoes prescribed by an orthopedic surgeon to 
effect changes in foot or feet position and alignment and which are not 
an integral part of a brace.
    Other allied health professionals. Individual professional providers 
other than physicians, dentists, or extramedical individual providers, 
as specified in Sec. 199.6 of this part.
    Other special institutional providers. Certain specialized medical 
treatment facilities, either inpatient or outpatient, other than those 
specifically defined, that provide courses of treatment prescribed by a 
doctor of medicine or osteopathy; when the patient is under the 
supervision of a doctor of medicine or osteopathy during the entire 
course of the inpatient admission or the outpatient treatment; when the 
type and level of care and services rendered by the institution are 
otherwise authorized in this part; when the facility meets all licensing 
or other certification requirements that are extant in the jurisdiction 
in which the facility is located geographically; which is accredited by 
the Joint Commission or other accrediting organization approved by the 
Director if an appropriate accreditation program for the given type of 
facility is available; and which is not a nursing home, intermediate 
facility, halfway house, home for the aged, or other institution of 
similar purpose.
    Outpatient. A patient who has not been admitted to a hospital or 
other authorized institution as an inpatient.
    Ownership or control interest. For purposes of Sec. 199.9(f)(1), a 
``person with an ownership or control interest'' is anyone who
    (1) Has directly or indirectly a 5 percent or more ownership 
interest in the entity; or
    (2) Is the owner of a whole or part interest in any mortgage, deed 
of trust, note, or other obligation secured (in whole or in part) by the 
entity or any of the property or assets thereof, which whole or part 
interest is equal to or exceeds 5 percent of the total property and 
assets of the entity; or
    (3) Is an officer or director of the entity if the entity is 
organized as a corporation; or
    (4) Is a partner in the entity if the entity is organized as a 
partnership.
    Partial hospitalization. A treatment setting capable of providing an 
interdisciplinary program of medically monitored therapeutic services, 
to include management of withdrawal symptoms, as medically indicated. 
Services may include day, evening, night and weekend treatment programs

[[Page 89]]

which employ an integrated, comprehensive and complementary schedule of 
recognized treatment approaches. Partial hospitalization is a time-
limited, ambulatory, active treatment program that offers 
therapeutically intensive, coordinated, and structured clinical services 
within a stable therapeutic environment. Partial hospitalization is an 
appropriate setting for crisis stabilization, treatment of partially 
stabilized mental disorders, to include substance disorders, and a 
transition from an inpatient program when medically necessary.
    Participating provider. A CHAMPUS-authorized provider that is 
required, or has agreed by entering into a CHAMPUS participation 
agreement or by act of indicating ``accept assignment'' on the claim 
form, to accept the CHAMPUS-allowable amount as the maximum total charge 
for a service or item rendered to a CHAMPUS beneficiary, whether the 
amount is paid for fully by CHAMPUS or requires cost-sharing by the 
CHAMPUS beneficiary.
    Part-time or intermittent home health aide and skilled nursing 
services. Part-time or intermittent means skilled nursing and home 
health aide services furnished any number of days per week as long as 
they are furnished (combined) less than 8 hours each day and 28 or fewer 
hours each week (or, subject to review on a case-bay-case basis as to 
the need for care, less than 8 hours each day and 35 or fewer hours per 
week).
    Party to a hearing. An appealing party or parties and CHAMPUS.
    Party to the initial determination. Includes CHAMPUS and also refers 
to a CHAMPUS beneficiary and a participating provider of services whose 
interests have been adjudicated by the initial determination. In 
addition, a provider who has been denied approval as an authorized 
CHAMPUS provider is a party to that initial determination, as is a 
provider who is disqualified or excluded as an authorized provider under 
CHAMPUS, unless the provider is excluded based on a determination of 
abuse or fraudulent practices or procedures under another federal or 
federally funded program. See Sec. 199.10 for additional information 
concerning parties not entitled to administrative review under the 
CHAMPUS appeals and hearing procedures.
    Pastoral counselor. An extramedical individual provider who meets 
the requirements outlined in Sec. 199.6.
    Pharmaceutical Agent. Drugs, biological products, and medical 
devices under the regulatory authority of the Food and Drug 
Administration.
    Pharmacist. A person who is trained specially in the scientific 
basis of pharmacology and who is licensed to prepare and sell or 
dispense drugs and compounds and to make up prescriptions ordered by a 
physician.
    Physical medicine services or physiatry services. The treatment of 
disease or injury by physical means such as massage, hydrotherapy, or 
heat.
    Physical therapist. A person who is trained specially in the skills 
and techniques of physical therapy (that is, the treatment of disease by 
physical agents and methods such as heat, massage, manipulation, 
therapeutic exercise, hydrotherapy, and various forms of energy such as 
electrotherapy and ultrasound), who has been authorized legally (that 
is, registered) to administer treatments prescribed by a physician and 
who is entitled legally to use the designation ``Registered Physical 
Therapist.'' A physical therapist also may be called a physiotherapist.
    Physician. A person with a degree of Doctor of Medicine (M.D.) or 
Doctor of Osteopathy (D.O.) who is licensed to practice medicine by an 
appropriate authority.
    Physician in training. Interns, residents, and fellows participating 
in approved postgraduate training programs and physicians who are not in 
approved programs but who are authorized to practice only in a hospital 
or other institutional provider setting, e.g., individuals with 
temporary or restricted licenses, or unlicensed graduates of foreign 
medical schools.
    Podiatrist (Doctor of Podiatry or Surgical Chiropody). A person who 
has received a degree in podiatry (formerly called chiropody), that is, 
that specialized field of the healing arts that deals with the study and 
care of the foot, including its anatomy, pathology, and medical and 
surgical treatment.

[[Page 90]]

    Preauthorization. A decision issued in writing, or electronically by 
the Director, TRICARE Management Activity, or a designee, that TRICARE 
benefits are payable for certain services that a beneficiary has not yet 
received. The term prior authorization is commonly substituted for 
preauthorization and has the same meaning.
    Prescription drugs and medicines. Drugs and medicines which at the 
time of use were approved for commercial marketing by the U.S. Food and 
Drug Administration, and which, by law of the United States, require a 
physician's or dentist's prescription, except that it includes insulin 
for known diabetics whether or not a prescription is required. Drugs 
grandfathered by the Federal Food, Drug and Cosmetic Act of 1938 may be 
covered under CHAMPUS as if FDA approved. Prescription drugs and 
medicines may also be referred to as ``pharmaceutical agents''.

    Note: The fact that the U.S. Food and Drug Administration has 
approved a drug for testing on humans would not qualify it within this 
definition.

    Preventive care. Diagnostic and other medical procedures not related 
directly to a specific illness, injury, or definitive set of symptoms, 
or obstetrical care, but rather performed as periodic health screening, 
health assessment, or health maintenance.
    Primary caregiver. An individual who renders to a beneficiary 
services to support the activities of daily living (as defined in Sec. 
199.2) and specific services essential to the safe management of the 
beneficiary's condition.
    Primary payer. The plan or program whose medical benefits are 
payable first in a double coverage situation.
    PRIMUS clinics. Contractor owned, staffed, and operated primary care 
clinics exclusively serving uniformed services beneficiaries pursuant to 
contracts awarded by a Military Department.
    Private room. A room with one bed that is designated as a private 
room by the hospital or other authorized institutional provider.
    Profound hearing loss (adults). An ``adult'' (a spouse as defined in 
section 32 CFR 199.3(b) of this part of a member of the Uniformed 
Services on active duty for more than 30 days) with a hearing threshold 
of:
    (1) 40 dB HL or greater in one or both ears when tested at 500, 
1,000, 1,500, 2,000, 3,000, or 4,000Hz; or
    (2) 26 dB HL or greater in one or both ears at any three or more of 
those frequencies; or
    (3) A speech recognition score less than 94 percent.
    Profound hearing loss (children). A ``child'' (an unmarried child of 
an active duty member who otherwise meets the criteria (including age 
requirements) in 32 CFR 199.3 of this part) with a 26dB HL or greater 
hearing threshold level in one or both ears when tested in the frequency 
range at 500, 1,000, 2,000, 3,000 or 4,000 Hz.
    Program year. The appropriate year (e.g., calendar year, fiscal 
year, rolling 12-month period, etc.) specified in the administration of 
TRICARE programs for application of unique requirements or limitations 
(e.g., enrollment fees, deductibles, catastrophic loss protection, etc.) 
on covered health care services obtained or provided during the 
designated time period.
    Progress notes. Progress notes are an essential component of the 
medical record wherein health care personnel provide written evidence of 
ordered and supervised diagnostic tests, treatments, medical procedures, 
therapeutic behavior and outcomes. In the case of mental health care, 
progress notes must include: the date of the therapy session; length of 
the therapy session; a notation of the patient's signs and symptoms; the 
issues, pathology and specific behaviors addressed in the therapy 
session; a statement summarizing the therapeutic interventions attempted 
during the therapy session; descriptions of the response to treatment, 
the outcome of the treatment, and the response to significant others; 
and a statement summarizing the patient's degree of progress toward the 
treatment goals. Progress notes do not need to repeat all that was said 
during a therapy session but must document a patient contact and be 
sufficiently detailed to allow for both peer review and audits to 
substantiate the quality and quantity of care rendered.
    Prosthetic device (prosthesis). An artificial substitute for a 
missing body part.

[[Page 91]]

    Prosthetic or Prosthetic device (prosthesis). A prosthetic or 
prosthetic device (prosthesis) determined by the Secretary of Defense to 
be necessary because of significant conditions resulting from trauma, 
congenital anomalies, or diseases.
    Prosthetic supplies. Supplies that are necessary for the effective 
use of a prosthetic or prosthetic device.
    Provider. A hospital or other institutional provider, a physician, 
or other individual professional provider, or other provider of services 
or supplies as specified in Sec. 199.6 of this part.
    Provider exclusion and suspension. The terms ``exclusion'' and 
``suspension'', when referring to a provider under CHAMPUS, both mean 
the denial of status as an authorized provider, resulting in items, 
services, or supplies furnished by the provider not being reimbursed, 
directly or indirectly, under CHAMPUS. The terms may be used 
interchangeably to refer to a provider who has been denied status as an 
authorized CHAMPUS provider based on (1) a criminal conviction or civil 
judgment involving fraud, (2) an administrative finding of fraud or 
abuse under CHAMPUS, (3) an administrative finding that the provider has 
been excluded or suspended by another agency of the Federal Government, 
a state, or a local licensing authority, (4) an administrative finding 
that the provider has knowingly participated in a conflict of interest 
situation, or (5) an administrative finding that it is in the best 
interests of the CHAMPUS or CHAMPUS beneficiaries to exclude or suspend 
the provider.
    Provider termination. When a provider's status as an authorized 
CHAMPUS provider is ended, other than through exclusion or suspension, 
based on a finding that the provider does not meet the qualifications, 
as set forth in Sec. 199.6 of this part, to be an authorized CHAMPUS 
provider.
    Psychiatric emergency. A psychiatric inpatient admission is an 
emergency when, based on a psychiatric evaluation performed by a 
physician (or other qualified mental health care professional with 
hospital admission authority), the patient is at immediate risk of 
serious harm to self or others as a result of a mental disorder and 
requires immediate continuous skilled observation at the acute level of 
care.
    Public facility. A public authority or entity legally constituted 
within a State (as defined in this section) to administer, control or 
perform a service function for public health, education or human 
services programs in a city, county, or township, special district, or 
other political subdivision, or such combination of political 
subdivisions or special districts or counties as are recognized as an 
administrative agency for a State's public health, education or human 
services programs, or any other public institution or agency having 
administrative control and direction of a publicly funded health, 
education or human services program.
    Public facility adequacy. An available public facility shall be 
considered adequate when the Director, OCHAMPUS, or designee, determines 
that the quality, quantity, and frequency of an available service or 
item otherwise allowable as a CHAMPUS benefit is sufficient to meet the 
beneficiary's specific disability related need in a timely manner.
    Public facility availability. A public facility shall be considered 
available when the public facility usually and customarily provides the 
requested service or item to individuals with the same or similar 
disability related need as the otherwise equally qualified CHAMPUS 
beneficiary.
    Qualified accreditation organization. A not-for-profit corporation 
or a foundation that:
    (1) Develops process standards and outcome standards for health care 
delivery programs, or knowledge standards and skill standards for health 
care professional certification testing, using experts both from within 
and outside of the health care program area or individual specialty to 
which the standards are to be applied;
    (2) Creates measurable criteria that demonstrate compliance with 
each standard;
    (3) Publishes the organization's standards, criteria and evaluation 
processes so that they are available to the general public;
    (4) Performs on-site evaluations of health care delivery programs, 
or provides testing of individuals, to measure

[[Page 92]]

the extent of compliance with each standard;
    (5) Provides on-site evaluation or individual testing on a national 
or international basis;
    (6) Provides to evaluated programs and tested individuals time-
limited written certification of compliance with the organization's 
standards;
    (7) Excludes certification of any program operated by an 
organization which has an economic interest, as defined in this section, 
in the accreditation organization or in which the accreditation 
organization has an economic interest;
    (8) Publishes promptly the certification outcomes of each program 
evaluation or individual test so that it is available to the general 
public; and
    (9) Has been found by the Director, OCHAMPUS, or designee, to apply 
standards, criteria, and certification processes which reinforce CHAMPUS 
provider authorization requirements and promote efficient delivery of 
CHAMPUS benefits.
    Qualified mental health provider. Psychiatrists or other physicians; 
clinical psychologists, certified psychiatric nurse specialists, 
certified clinical social workers, certified marriage and family 
therapists, TRICARE certified mental health counselors, pastoral 
counselors under a physician's supervision, and supervised mental health 
counselors under a physician's supervision.
    Radiation therapy services. The treatment of diseases by x-ray, 
radium, or radioactive isotopes when ordered by the attending physician.
    Rare diseases. TRICARE/CHAMPUS defines a rare disease as any disease 
or condition that has a prevalence of less than 200,000 persons in the 
United States.
    Referral. The act or an instance of referring a TRICARE beneficiary 
to another authorized provider to obtain necessary medical treatment. 
Generally, when a referral is required to qualify health care as a 
covered benefit, only a TRICARE-authorized physician may make such a 
referral unless this regulation specifically allows another category of 
TRICARE-authorized provider to make a referral as allowed within the 
scope of the provider's license. In addition to referrals which may be 
required for certain health care to be a covered TRICARE benefit, the 
TRICARE Prime program under Sec. 199.17 generally requires Prime 
enrollees to obtain a referral for care through a primary care manager 
(PCM) or other authorized care coordinator to avoid paying higher 
deductible and cost-sharing for otherwise covered TRICARE benefits.
    Registered nurse. A person who is prepared specially in the 
scientific basis of nursing, who is a graduate of a school of nursing, 
and who is registered for practice after examination by a state board of 
nurse examiners or similar regulatory authority, who holds a current, 
valid license, and who is entitled legally to use the designation R.N.
    Rehabilitation. The reduction of an acquired loss of ability to 
perform an activity in the manner, or within the range considered 
normal, for a human being.
    Rehabilitative therapy. Any rehabilitative therapy that is necessary 
to improve, restore, or maintain function, or to minimize or prevent 
deterioration of function, of a patient and prescribed by a physician.
    Reliable evidence. (1) As used in Sec. 199.4(g)(15), the term 
reliable evidence means only:
    (i) Well controlled studies of clinically meaningful endpoints, 
published in refereed medical literature.
    (ii) Published formal technology assessments.
    (iii) The published reports of national professional medical 
associations.
    (iv) Published national medical policy organization positions; and
    (v) The published reports of national expert opinion organizations.
    (2) The hierarchy of reliable evidence of proven medical 
effectiveness, established by (1) through (5) of this paragraph, is the 
order of the relative weight to be given to any particular source. With 
respect to clinical studies, only those reports and articles containing 
scientifically valid data and published in the refereed medical and 
scientific literature shall be considered as meeting the requirements of 
reliable evidence. Specifically not included in

[[Page 93]]

the meaning of reliable evidence are reports, articles, or statements by 
providers or groups of providers containing only abstracts, anecdotal 
evidence or personal professional opinions. Also not included in the 
meaning of reliable evidence is the fact that a provider or a number of 
providers have elected to adopt a drug, device, or medical treatment or 
procedure as their personal treatment or procedure of choice or standard 
of practice.
    Representative. Any person who has been appointed by a party to the 
initial determination as counsel or advisor and who is otherwise 
eligible to serve as the counsel or advisor of the party to the initial 
determination, particularly in connection with a hearing.
    Reservist. A person who is under an active duty call or order to one 
of the Uniformed Services for a period of 30 days or less or is on 
inactive training.
    Resident (medical). A graduate physician or dentist who has an M.D. 
or D.O. degree, or D.D.S. or D.M.D. degree, respectively, is licensed to 
practice, and who choose to remain on the house staff of a hospital to 
get further training that will qualify him or her for a medical or 
dental specialty.
    Residential treatment center (RTC). A facility (or distinct part of 
a facility) which meets the criteria in Sec. 199.6(b)(4)(vii).
    Respite care. Respite care is short-term care for a patient in order 
to provide rest and change for those who have been caring for the 
patient at home, usually the patient's family.
    Retired category. Retirees and their family members who are 
beneficiaries covered by 10 U.S.C. 1086(c), other than Medicare-eligible 
beneficiaries as described in 10 U.S.C. 1086(d).
    Retiree. For ease of reference in this part only, and except as 
otherwise specified in this part, the term means a member or former 
member of a Uniformed Service who is entitled to retired, retainer, or 
equivalent pay based on duty in a Uniformed Service.
    Routine eye examinations. The services rendered in order to 
determine the refractive state of the eyes.
    Sanction. For purpose of Sec. 199.9, ``sanction'' means a provider 
exclusion, suspension, or termination.
    Secondary payer. The plan or program whose medical benefits are 
payable in double coverage situations only after the primary payer has 
adjudicated the claim.
    Semiprivate room. A room containing at least two beds. If a room is 
designated publicly as a semiprivate accommodation by the hospital or 
other authorized institutional provider and contains multiple beds, it 
qualifies as a semiprivate room for the purposes of CHAMPUS.
    Serious physical disability. Any physiological disorder or condition 
or anatomical loss affecting one or more body systems which has lasted, 
or with reasonable certainty is expected to last, for a minimum period 
of 12 contiguous months, and which precludes the person with the 
disorder, condition or anatomical loss from unaided performance of at 
least one Major Life Activity as defined in this section.
    Skilled nursing facility. An institution (or a distinct part of an 
institution) that meets the criteria as set forth in Sec. 
199.6(b)(4)(vi).
    Skilled nursing services. Skilled nursing services includes 
application of professional nursing services and skills by an RN, LPN, 
or LVN, that are required to be performed under the general supervision/
direction of a TRICARE-authorized physician to ensure the safety of the 
patient and achieve the medically desired result in accordance with 
accepted standards of practice.
    Sole community hospital (SCH). A hospital that is designated by CMS 
as an SCH and meets the applicable requirements established by Sec. 
199.6(b)(4)(xvii).
    Spectacles, eyeglasses, and lenses. Lenses, including contact 
lenses, that help to correct faulty vision.
    Speech generating device (SGD). See Augmentative Communication 
Device.
    Sponsor. A member or former member of a Uniformed Service upon whose 
status his or her dependents' eligibility for CHAMPUS is based. A 
sponsor also includes a person who, while a member of the Uniformed 
Services and after becoming eligible to be retired on the basis of years 
of service, has his or her eligibility to receive retired pay terminated 
as a result of misconduct involving abuse of a spouse or dependent

[[Page 94]]

child. It also includes NATO members who are stationed in or passing 
through the United States on official business when authorized. It also 
includes individuals eligible for CHAMPUS under the Transitional 
Assistance Management Program.
    Spouse. A lawful husband or wife, who meets the criteria in Sec. 
199.3 of this part, regardless of whether or not dependent upon the 
member or former member for his or her own support.
    State. For purposes of this part, any of the several States, the 
District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth 
of the Northern Mariana Islands, and each territory and possession of 
the United States.
    State victims of crime compensation programs. Benefits available to 
victims of crime under the Violent Crime Control and Law Enforcement 
Act.
    Student status. A dependent of a member or former member of a 
Uniformed Service who has not passed his or her 23rd birthday, and is 
enrolled in a full-time course of study in an institution of higher 
learning.
    Substance use disorder rehabilitation facility (SUDRF). A facility 
or a distinct part of a facility that meets the criteria in Sec. 
199.6(b)(4)(xiv).
    Supervised mental health counselor. An extramedical individual 
provider who meets the requirements outlined in Sec. 199.6.
    Supplemental insurance plan. A health insurance policy or other 
health benefit plan offered by a private entity to a CHAMPUS 
beneficiary, that primarily is designed, advertised, marketed, or 
otherwise held out as providing payment for expenses incurred for 
services and items that are not reimbursed under CHAMPUS due to program 
limitations, or beneficiary liabilities imposed by law. CHAMPUS 
recognizes two types of supplemental plans, general indemnity plans, and 
those offered through a direct service health maintenance organization 
(HMO).
    (1) An indemnity supplemental insurance plan must meet all of the 
following criteria:
    (i) It provides insurance coverage, regulated by state insurance 
agencies, which is available only to beneficiaries of CHAMPUS.
    (ii) It is premium based and all premiums relate only to the CHAMPUS 
supplemental coverage.
    (iii) Its benefits for all covered CHAMPUS beneficiaries are 
predominantly limited to non-covered services, to the deductible and 
cost-shared portions of the pre-determined allowable charges, and/or to 
amounts exceeding the allowable charges for covered services.
    (iv) It provides insurance reimbursement by making payment directly 
to the CHAMPUS beneficiary or to the participating provider.
    (v) It does not operate in a manner which results in lower 
deductibles or cost-shares than those imposed by law, or that waives the 
legally imposed deductibles or cost-shares.
    (2) A supplemental insurance plan offered by a Health Maintenance 
Organization (HMO) must meet all of the following criteria:
    (i) The HMO must be authorized and must operate under relevant 
provisions of state law.
    (ii) The HMO supplemental plan must be premium based and all 
premiums must relate only to CHAMPUS supplemental coverage.
    (iii) The HMO's benefits, above those which are directly reimbursed 
by CHAMPUS, must be limited predominantly to services not covered by 
CHAMPUS and CHAMPUS deductible and cost-share amounts.
    (iv) The HMO must provide services directly to CHAMPUS beneficiaries 
through its affiliated providers who, in turn, are reimbursed by 
CHAMPUS.
    (v) The HMO's premium structure must be designed so that no overall 
reduction in the amount of the beneficiary deductibles or cost-shares 
will result.
    Suppliers of portable X-ray services. A supplier that meets the 
conditions of coverage of the Medicare program, set forth in the 
Medicare regulations (42 CFR 405.1411 through 405.1416 (as amended)) or 
the Medicaid program in the state in which the covered service is 
provided.
    Surgery. Medically appropriate operative procedures, including 
related preoperative and postoperative care; reduction of fractures and 
dislocations; injections and needling procedures of

[[Page 95]]

the joints; laser surgery of the eye; and those certain procedures 
listed in Sec. 199.4(c)(2)(i) of this part.
    Surgical assistant. A physician (or dentist or podiatrist) who 
assists the operating surgeon in the performance of a covered surgical 
service when such assistance is certified as necessary by the attending 
surgeon, when the type of surgical procedure being performed is of such 
complexity and seriousness as to require a surgical assistant, and when 
interns, residents, or other house staff are not available to provide 
the surgical assistance services in the specialty area required.
    Suspension of claims processing. The temporary suspension of 
processing (to protect the government's interests) of claims for care 
furnished by a specific provider (whether the claims are submitted by 
the provider or beneficiary) or claims submitted by or on behalf of a 
specific CHAMPUS beneficiary pending action by the Director, OCHAMPUS, 
or a designee, in a case of suspected fraud or abuse. The action may 
include the administrative remedies provided for in Sec. 199.9 or any 
other Department of Defense issuance (e.g. DoD issuances implementing 
the Program Fraud Civil Remedies Act), case development or investigation 
by OCHAMPUS, or referral to the Department of Defense-Inspector General 
or the Department of Justice for action within their cognizant 
jurisdictions.
    Teaching physician. A teaching physician is any physician whose 
duties include providing medical training to physicians in training 
within a hospital or other institutional provider setting.
    Telephonic consultations: A covered consultation service conducted 
via telephone call between TRICARE-authorized providers, including a 
verbal and written report to the patient's treating/requesting physician 
or other TRICARE-authorized provider.
    Telephonic office visits. A covered service provided via a telephone 
call between a beneficiary who is an established patient and a TRICARE-
authorized provider. See Sec. 199.4.
    Third-party billing agent. Any entity that acts on behalf of a 
provider to prepare, submit and monitor claims, excluding those entities 
that act solely as a collection agency.
    Third-party payer. Third-payer means an entity that provides an 
insurance, medical service, or health plan by contract or agreement, 
including an automobile liability insurance or no fault insurance 
carrier and a worker's compensation program or plan, and any other plan 
or program (e.g., homeowners insurance) that is designed to provide 
compensation or coverage for expenses incurred by a beneficiary for 
medical services or supplies. For purposes of the definition of ``third-
party payer,'' an insurance, medical service, or health plan includes a 
preferred provider organization, an insurance plan described as Medicare 
supplemental insurance, and a personal injury protection plan or medical 
payments benefit plan for personal injuries resulting from the operation 
of a motor vehicle.

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

    Timely filing. The filing of CHAMPUS claims within the prescribed 
time limits as set forth in Sec. 199.7 of this part.
    Transitional Assistance Management Program (TAMP). The program 
established under 10 U.S.C. Sec. 1145(a) and Sec. 199.3(e) of this 
part.
    Treatment plan. A detailed description of the medical care being 
rendered or expected to be rendered a CHAMPUS beneficiary seeking 
approval for inpatient and other benefits for which preauthorization is 
required as set forth in Sec. 199.4(b). Medical care described in the 
plan must meet the requirements of medical and psychological necessity. 
A treatment plan must include, at a minimum, a diagnosis (either current 
International Statistical Classification of Diseases and Related Health 
Problems (ICD) or current Diagnostic and Statistical Manual of Mental 
Disorders (DSM)); detailed reports of prior treatment, medical history, 
family history, social history, and physical examination; diagnostic

[[Page 96]]

test results; consultant's reports (if any); proposed treatment by type 
(such as surgical, medical, and psychiatric); a description of who is or 
will be providing treatment (by discipline or specialty); anticipated 
frequency, medications, and specific goals of treatment; type of 
inpatient facility required and why (including length of time the 
related inpatient stay will be required); and prognosis. If the 
treatment plan involves the transfer of a CHAMPUS patient from a 
hospital or another inpatient facility, medical records related to that 
inpatient stay also are required as a part of the treatment plan 
documentation.
    TRICARE certified mental health counselor. An allied health 
professional who meets the requirements outlined in Sec. 199.6.
    TRICARE Extra. The preferred-provider option of the TRICARE program 
made available prior to January 1, 2018, under which TRICARE Standard 
beneficiaries may obtain discounts on cost sharing as a result of using 
TRICARE network providers.
    TRICARE for Life. The Medicare wraparound coverage option of the 
TRICARE program made available to an eligible beneficiary by reason of 
10 U.S.C. 1086(d).
    TRICARE Hospital Outpatient Prospective Payment System (OPPS). OPPS 
is a hospital outpatient prospective payment system, based on nationally 
established APC payment amounts and standardized for geographic wage 
differences that includes operating and capital-related costs that are 
directly related and integral to performing a procedure or furnishing a 
service in a hospital outpatient department.
    TRICARE Prime. The managed care option of the TRICARE program 
established under Sec. 199.17.
    TRICARE program. The program established under Sec. 199.17.
    TRICARE Reserve Select. The program established under 10 U.S.C. 
1076d and Sec. 199.24 of this Part.
    TRICARE Retired Reserve. The program established under 10 U.S.C. 
1076e and Sec. 199.25.
    TRICARE Select. The self-managed, preferred-provider network option 
under the TRICARE Program established by 10 U.S.C. 1075 and Sec. 199.17 
to replace TRICARE Extra and Standard after December 31, 2017.
    TRICARE Standard. The TRICARE program made available prior to 
January 1, 2018, covering health benefits contracted for under the 
authority of 10 U.S.C. section 1079(a) or 1086(a) and subject to the 
same rates and conditions as apply to persons covered under those 
sections.
    TRICARE Young Adult. The program authorized by and described in 
Sec. 199.26 of this part.
    Uniform HMO benefit. The health care benefit established by Sec. 
199.18.
    Uniformed Services. The Army, Navy, Air Force, Marine Corps, Coast 
Guard, Commissioned Corps of the USPHS, and the Commissioned Corps of 
the NOAA.
    Veteran. A person who served in the active military, naval, or air 
service, and who was discharged or released therefrom under conditions 
other than dishonorable.

    Note: Unless the veteran is eligible for ``retired pay,'' 
``retirement pay,'' or ``retainer pay,'' which refers to payments of a 
continuing nature and are payable at fixed intervals from the government 
for military service neither the veteran nor his or her dependents are 
eligible for benefits under CHAMPUS.

    Waiver of benefit limits. Extension of current benefit limitations 
under the Case Management Program, of medical care, services, and/or 
equipment, not otherwise a benefit under the TRICARE/CHAMPUS program.
    Well-child care. A specific program of periodic health screening, 
developmental assessment, and routine immunization for dependents under 
six years of age.
    Widow or Widower. A person who was a spouse at the time of death of 
a member or former member and who has not remarried.
    Worker's compensation benefits. Medical benefits available under any 
worker's compensation law (including the Federal Employees Compensation 
Act), occupational disease law, employers liability law, or any other 
legislation of similar purpose, or under the maritime doctrine of 
maintenance, wages, and cure.
    X-ray services. An x-ray examination from which an x-ray film or 
other

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image is produced, ordered by the attending physician when necessary and 
rendered in connection with a medical or surgical diagnosis or treatment 
of an illness or injury, or in connection with maternity or well-baby 
care.

[51 FR 24008, July 1, 1986]

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

    Effective Date Note: At 88 FR 19854, Apr. 4, 2023, Sec. 199.2 was 
amended in paragraph (b) by adding in alphabetical order definitions for 
``Ambulatory Surgery Center (ASC)'', ``Cancer hospital'', and 
``Children's hospital'', effective Oct. 1, 2023. For the convenience of 
the user, the added and revised text is set forth as follows:



Sec. 199.2  Definitions.

                                * * * * *

    (b) * * *
    Ambulatory Surgery Center (ASC). Any distinct entity that is 
classified by the Centers for Medicare and Medicaid Services (CMS) as an 
Ambulatory Surgical Center (ASC) under 42 CFR part 416 and meets the 
applicable requirements established by Sec. 199.6(b)(4)(x). Any ASC 
that would otherwise meet the CMS classification as an ASC but does not 
have a participation agreement with Medicare due to the nature of the 
patients they treat (e.g., pediatric) must meet the applicable 
requirements established by Sec. 199.6(b)(4)(x) in order to be a 
TRICARE authorized ASC. All ASCs must also enter into participation 
agreements with TRICARE as required by Sec. 199.6(b)(4)(x) in order to 
be an authorized TRICARE provider of ASC services. Additionally, ASCs 
are prohibited from billing TRICARE beneficiaries for procedures that 
are not included in Medicare's ASC list of procedures allowable for 
facility fee payment in an ASC setting, unless the beneficiary agreed in 
advance in writing to pay for the non-covered services, in accordance 
with the ``hold harmless'' provision under Sec. 
199.6(b)(4)(x)(B)(1)(ii) and (iii).

                                * * * * *

    Cancer hospital. A specialty hospital that is classified by CMS as a 
Cancer Hospital as specified in 42 CFR 412.23 and meets the applicable 
requirements established by Sec. 199.6(b)(4)(i).

                                * * * * *

    Children's hospital. A specialty hospital that is classified by CMS 
as a Children's Hospital as specified in 42 CFR 412.23 and meets the 
applicable requirements established by Sec. 199.6(b)(4)(i).

                                * * * * *



Sec. 199.3  Eligibility.

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

[[Page 98]]

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

[[Page 99]]

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

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

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

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

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

[[Page 100]]

Service who incurs or aggravates an injury, illness, or disease, during, 
or on the way to or from, active duty training for a period of 30 days 
or less or inactive duty training, and the reservist dies as a result of 
that specific injury, illness or disease.
    (4) An unmarried person. An unmarried person placed in the home of a 
member or former member prior to adoption. To be a dependent child, the 
unmarried person must not have reached the age of 21 (or otherwise meets 
the requirements of a student or incapacitated child set out in 
paragraphs (b)(2)(ii)(H)(1) or (b)(2)(ii)(H)(2) of this section) and has 
been placed in the home of the member or former member by a recognized 
placement agency or by any other source authorized by State or local law 
to provide adoption placement, in anticipation of legal adoption by the 
member or former member.
    (iii) Abused dependents--(A) Categories of abused dependents. An 
abused dependent may be either a spouse or a child. Eligibility for 
either class of abused dependent results from being either:
    (1) The spouse (including a former spouse) or child of a member who 
has received a dishonorable or bad-conduct discharge, or dismissal from 
a Uniformed Service as a result of a court-martial conviction for an 
offense involving physical or emotional abuse of the spouse or child, or 
was administratively discharged as a result of such an offense. Until 
October 17, 1998, Medical benefits are limited to care related to the 
physical or emotional abuse and for a period of 12 months following the 
member's separation from the Uniformed Service. On or after October 17, 
1998, medical benefits can include all under the Basic Program and under 
the Extended Care Health Option for the period that the spouse or child 
is in receipt of transitional compensation under section 1059 of title 
10 U.S.C.
    (2) The spouse (including a former spouse) or child of a member or 
former member who while a member and as a result of misconduct involving 
abuse of the spouse or child has eligibility to receive retired pay on 
the basis of years of service terminated.
    (B) Requirements for categories of abused dependents--(1) Abused 
spouse. As long as the spouse is receiving payments from the DoD 
Military Retirement Fund under court order, the spouse is eligible for 
health care under the same conditions as any spouse of a retired member. 
The abused spouse must:
    (i) Under paragraph (b)(2)(iii)(A)(1) of this section, be a lawful 
husband or wife or a former spouse of the member; or
    (ii) Under paragraph (b)(2)(iii)(A)(2) of this section, be a lawful 
husband or wife or a former spouse of the member or former member, and 
the spouse is receiving payments from the Department of Defense Military 
Retirement Fund under 10 U.S.C. 1408(h) pursuant to a court order; and
    (A) Be a victim of the abuse; and
    (B) Have been married to the member or former member at the time of 
the abuse; or
    (C) Be the natural or adoptive parent of a dependent child of the 
member or former member who was the victim of the abuse.
    (2) Abused child. The abused child must:
    (i) Under paragraph (b)(2)(iii)(A)(1) of this section, be a 
dependent child of the member or former member.
    (ii) Under paragraph (b)(2)(iii)(A)(2) of this section,
    (A) Have been a member of the household where the abuse occurred; 
and
    (B) Be an unmarried legitimate child, including an adopted child or 
stepchild of the member or former member; and
    (C) Be under the age of 18; or
    (D) Be incapable of self support because of a mental or physical 
incapacity that existed before becoming 18 years of age and be dependent 
on the member or former member for over one-half of his or her support; 
or
    (E) If enrolled in a full-time course of study in an institution of 
higher learning recognized by the Secretary of Defense (for the purposed 
of 10 U.S.C. 1408(h)), be under 23 years of age and be dependent on the 
member or former member for over one-half of his or her support.
    (F) The dependent child is eligible for health care, regardless of 
whether any court order exists, under the same conditions as any 
dependent of a retired member.

[[Page 101]]

    (3) TAMP eligibles. A former member, including his or her 
dependents, who is eligible under the provisions of the Transitional 
Assistance Management Program as described in paragraph (e) of this 
Sec. 199.3.
    (iv) An unmarried person who is placed in the legal custody of a 
member or former member by a court of competent jurisdiction in the 
United States (or possession of the United States) for a period of at 
least 12 consecutive months. The unmarried person shall be considered a 
dependent of the member or former member under this section provided he 
or she otherwise meets the following qualifications:
    (A) Has not reached the age of 21 unless he or she otherwise meets 
the requirements of a student set out in paragraph (b)(2)(ii)(H)(1) of 
this section or the requirements for being incapacitated as set out in 
paragraph (b)(2)(ii)(H)(2) of this section and the incapacitation 
occurred while he or she was a dependent of the member or former member 
through court ordered legal custody;
    (B) Is dependent on the member or former member for over one-half of 
the person's support;
    (C) Resides with the member or former member unless separated by the 
necessity of military service or to receive institutional care as a 
result of disability or incapacitation or under such other authorized 
circumstances; and,
    (D) Is not a dependent of a member or former member under any other 
provision of law or regulation.
    (3) Eligibility under TRICARE Senior Pharmacy Program. Section 711 
of the National Defense Authorization Act for Fiscal Year 2001 (Public 
Law 106-398, 114 Stat. 1654) established the TRICARE Senior Pharmacy 
Program effective April 1, 2001. To be eligible for this program, a 
person is required to be:
    (i) Medicare eligible, who is:
    (A) 65 years of age or older; and
    (B) Entitled to Medicare Part A; and
    (C) Enrolled in Medicare Part B, except for a person who attained 
age 65 prior to April 1, 2001, is not required to enroll in Part B; and
    (ii) Otherwise qualified under one of the following categories:
    (A) A retired uniformed service member who is entitled to retired or 
retainer pay, or equivalent pay including survivors who are annuitants; 
or
    (B) A dependent of a member of the uniformed services described in 
one of the following:
    (1) A member who is on active duty for a period of more than 30 days 
or died while on such duty; or
    (2) A member who died from an injury, illness, or disease incurred 
or aggravated while the member was:
    (i) On active duty under a call or order to active duty of 30 days 
or less, on active duty for training, or on inactive duty training; or
    (ii) Traveling to or from the place at which the member was to 
perform or had performed such active duty, active duty for training, or 
inactive duty training.

    Note to paragraph (b)(3)(ii)(B): Dependent under Section 711 of the 
National Defense Authorization Act for Fiscal Year 2001 includes spouse, 
unremarried widow/widower, child, parent/parent-in-law, unremarried 
former spouse, and unmarried person in the legal custody of a member or 
former member, as those terms of dependency are defined and periods of 
eligibility are set forth in 10 U.S.C. 1072(2).

    (4) Medal of Honor recipients. (i) A former member of the armed 
forces who is a Medal of Honor recipient and who is not otherwise 
entitled to medical and dental benefits has the same CHAMPUS eligibility 
as does a retiree.
    (ii) Immediate dependents. CHAMPUS eligible dependents of a Medal of 
Honor Recipient are those identified in paragraphs (b)(2)(i) of this 
section (except for former spouses) and (b)(2)(ii) of this section 
(except for a child placed in legal custody of a Medal of Honor 
recipient under (b)(2)(ii)(H)(4) of this section).
    (iii) Effective date. The CHAMPUS eligibility established by 
paragraphs (b)(4)(i) and (ii) of this section is applicable to health 
care services provided on or after October 30, 2000.
    (5) Reserve Component Members issued delayed-effective-date orders--
(i) Member. A member of a reserve component of the armed forces who is 
ordered to active duty for a period of more than 30 consecutive days in 
support of a contingency operation under a provision of

[[Page 102]]

law referred to in section 101(a)(13)(B) of Title 10, United States 
Code, that provides for active-duty service to begin on a date after the 
date of the issuance of the order.
    (ii) Dependents. CHAMPUS eligible dependents under this paragraph 
(b)(5) are those identified in paragraphs (b)(2)(i) (except former 
spouses) and (b)(2)(ii) of this section.
    (iii) Effective date. The eligibility established by paragraphs 
(b)(5)(i) and (ii) of this section shall begin on or after November 6, 
2003, and shall be effective on the later of the date that is:
    (A) The date of issuance of the order referred to in paragraph 
(b)(5)(i) of this section; or
    (B) 180 days before the date on which the period of active duty is 
to begin.
    (iv) Termination date. The eligibility established by paragraphs 
(b)(5)(i) and (ii) of this section ends upon entry of the member onto 
active duty (at which time CHAMPUS eligibility for the dependents of the 
member is established under paragraph (b)(2) of this section) or upon 
cancellation or amendment of the orders referred to in paragraph 
(b)(5)(i) of this section such that they no longer meet the requirements 
of that paragraph (b)(5)(i).
    (c) Beginning dates of eligibility. (1) Beginning dates of 
eligibility depend on the class to which the individual belongs and the 
date the individual became a member of the class. Those who join after 
the class became eligible attain individual eligibility on the date they 
join.
    (2) Beginning dates of eligibility for each class of spouse 
(excluding spouses who are victims of abuse and eligible spouses of 
certain deceased reservists) are as follows:
    (i) A spouse of a member for:
    (A) Medical benefits authorized by the Dependents' Medical Care Act 
of 1956, December 7, 1956;
    (B) Outpatient medical benefits under the Basic Program, October 1, 
1966;
    (C) Inpatient medical benefits under the Basic Program and benefits 
under the Extended Care Health Option, January 1, 1967;
    (ii) A spouse of a former member:
    (A) For medical benefits under the Basic Program, January 1, 1967.
    (B) Ineligible for benefits under the Extended Care Health Option.
    (iii) A former spouse:
    (A) For medical benefits under the Basic Program, dates of beginning 
eligibility are as indicated for each category of eligible former spouse 
identified within paragraph (b)(2)(i) of this section.
    (B) Ineligible for benefits under the Extended Care Health Option.
    (3) Beginning dates of eligibility for spouses who are victims of 
abuse (excluding spouses who are victims of abuse of certain deceased 
reservists) are as follows:
    (i) An abused spouse meeting the requirements of paragraph 
(b)(2)(iii)(A)(1) of this section, including an eligible former spouse:
    (A) For medical and dental care for problems associated with the 
physical or emotional abuse under the Basic Program for a period of up 
to one year (12 months) following the person's separation from the 
Uniformed Service, November 14, 1986.
    (B) For all medical and dental benefits under the Basic Program for 
the period that the spouse is in receipt of transitional compensation 
under section 1059 of title 10 U.S.C., October 17, 1998.
    (C) For medical and dental care for problems associated with the 
physical or emotional abuse under the Extended Care Health Option for a 
period up to one year (12 months) following the person's separation from 
the Uniformed Service, November 14, 1986.
    (D) For all medical and dental benefits described in section 199.5 
for the period that the spouse is in receipt of transitional 
compensation under section 1059 of title 10 U.S.C., October 17, 1998.
    (ii) An abused spouse meeting the requirements of paragraphs 
(b)(2)(iii)(A)(2) of this section, including an eligible former spouse:
    (A) For all benefits under the CHAMPUS Basic Program, October 23, 
1992.
    (B) Ineligible for benefits under the Extended Care Health Option.
    (4) Beginning dates of eligibility for spouses of certain deceased 
reservists, including spouses who are victims of

[[Page 103]]

abuse of certain deceased reservists, are as follows:
    (i) A spouse meeting the requirements of paragraph (b)(2)(i) of this 
section, including an eligible former spouse:
    (A) For benefits under the Basic Program, November 14, 1986.
    (B) Ineligible for benefits under the Extended Care Health Option.
    (ii) An abused spouse of certain deceased reservists, meeting the 
requirements of paragraphs (b)(2)(iii) of this section, including an 
eligible former spouse, for the limited benefits and period of 
eligibility described in paragraphs (b)(2)(iii) of this section:
    (A) For benefits under the Basic Program, November 14, 1986.
    (B) For benefits under the Extended Care Health Option, November 14, 
1986.
    (iii) An abused spouse of certain deceased reservists, including an 
eligible former spouse, meeting the requirements of paragraphs 
(b)(2)(iii) of this section:
    (A) For benefits under the Basic Program, October 23, 1992.
    (B) Ineligible for benefits under the Extended Care Health Option.
    (5) Beginning dates of eligibility for each class of dependent 
children, (excluding dependent children of certain deceased reservists, 
abused children and incapacitated children whose incapacity occurred 
between the ages of 21 and 23 while enrolled in a full-time course of 
study in an institution of higher learning), are as follows:
    (i) Legitimate child, adopted child, or legitimate stepchild of a 
member, for:
    (A) Medical benefits authorized by the Dependents' Medical Care Act 
of 1956, December 7, 1956;
    (B) Outpatient medical benefits under the Basic Program, October 1, 
1966;
    (C) Inpatient medical benefits under the Basic Program and benefits 
under the Extended Care Health Option, January 1, 1967;
    (ii) Legitimate child, adopted child or legitimate stepchild of 
former members:
    (A) For medical benefits under the Basic Program, January 1, 1967.
    (B) Ineligible for benefits under the Extended Care Health Option.
    (iii) Illegitimate child of a male or female member or former member 
whose paternity/maternity has been determined judicially and the member 
or former member has been directed to support the child, for:
    (A) All benefits for which otherwise entitled, August 31, 1972.
    (B) Extended Care Health Option benefits limited to dependent 
children of members only, August 31, 1972.
    (iv) Illegitimate child of:
    (A) A male member or former member whose paternity has not been 
determined judicially:
    (B) A female member or former member who resides with, or in a home 
provided by the member or former member, or who was residing in a home 
provided by the member or former member at the time of the member's or 
former member's death, and who is or continues to be dependent on the 
member for over one-half of his or her support, or was so dependent on 
the member or former member at the time of death;
    (C) A spouse of a member or former member who resides with or in a 
home provided by the member or former member, or the parent who is the 
spouse of the member or former member or was the spouse of a member or 
former member at the time of death, and who is and continues to be 
dependent upon the member or former member for over one-half of his or 
her support, or was so dependent on the member or former member at the 
time of death; for:
    (1) All benefits for which otherwise eligible, January 1, 1969.
    (2) Extended Care Health Option limited to dependent children of 
members only, January 1, 1969.
    (6) Beginning dates of eligibility for children of certain deceased 
reservists who meet the requirements of paragraph (b)(2)(ii)(H)(3) of 
this section, excluding incapacitated children who meet the requirements 
of paragraph (b)(2)(ii)(H)(2) of this section, for:
    (i) Benefits under the Basic program, November 14, 1986.
    (ii) Not eligible for benefits under the Extended Care Health 
Option.
    (7) Beginning dates of eligibility for children who are victims of 
abuse, including incapacitated children who meet

[[Page 104]]

the requirements of paragraph (b)(2)(ii)(H)(2) of this section are as 
follows:
    (i) An abused child meeting the requirements of paragraph 
(b)(2)(iii)(A)(1) of this section:
    (A) Medical and dental care for problems associated with the 
physical or emotional abuse under the Basic Program for a period of up 
to one year (12 months) following the person's separation from the 
Uniformed Service, November 14, 1986.
    (B) For all medical and dental benefits under the Basic Program for 
the period that the child is in receipt of transitional compensation 
under section 1059 of title 10 U.S.C., October 17, 1998.
    (C) Medical and dental care for problems associated with the 
physical or emotional abuse under the Extended Care Health Option for a 
period up to one year (12 months) following the person's separation from 
the Uniformed Service, November 14, 1986.
    (D) For all medical and dental benefits described in section 199.5 
for the period that the child is in receipt of transitional compensation 
under section 1059 of title 10 U.S.C., October 17, 1998.
    (ii) An abused child meeting the requirements of paragraphs 
(b)(2)(iii)(A)(2) of this section:
    (A) For all benefits under the CHAMPUS Basic Program, October 23, 
1992.
    (B) Ineligible for benefits under the Extended Care Health Option.
    (8) Beginning dates of eligibility for incapacitated children who 
meet the requirements of paragraph (b)(2)(ii)(H)(2) of this section, 
whose incapacity occurred between the ages of 21 and 23 while enrolled 
in a full-time course of study in an institution of higher learning 
approved by the Administering Secretary or the Department of Education, 
and, are or were at the time of the member's or former member's death, 
dependent on the member or former member for over one-half of their 
support, for:
    (i) All benefits for which otherwise entitled, October 23, 1992.
    (ii) Extended Care Health Option benefits limited to children of 
members only, October 23, 1992.
    (9) Beginning dates of eligibility for a child who meets the 
requirements of paragraph (b)(2)(ii)(H)(4) and:
    (i) Has been placed in custody by a court:
    (A) All benefits for which entitled, July 1, 1994.
    (B) Extended Care Health Option benefits limited to children of 
members only, July 1, 1994.
    (ii) Has been placed in custody by a recognized adoption agency:
    (A) All benefits for which entitled, October 5, 1994.
    (B) Extended Care Health Option benefits limited to children of 
members only, October 5, 1994.
    (iii) Has been placed in the home of a member by a placement agency 
or by any other source authorized by State or local law to provide 
adoption placement, in anticipation of the legal adoption of the member:
    (A) All benefits for which entitled, January 6, 2006.
    (B) Extended Care Health Option benefits limited to children of 
members only, January 6, 2006.
    (10) Beginning dates of eligibility for a retiree for:
    (i) Medical benefits under the Basic Program January 1, 1967.
    (ii) Retirees and their dependents are not eligible for benefits 
under the Extended Care Health Option.
    (d) Dual eligibility. Dual eligibility occurs when a person is 
entitled to benefits from two sources. For example, when an active duty 
member is also the dependent of another active duty member, a retiree, 
or a deceased active duty member or retiree, dual eligibility, that is, 
entitlement to direct care from the Uniformed Services medical care 
system and CHAMPUS is the result. Since the active duty status is 
primary, and it is the intent that all medical care be provided an 
active duty member through the Uniformed Services medical care system, 
CHAMPUS eligibility is terminated as of 12:01 a.m. on the day following 
the day the dual eligibility begins. However, any dependent children in 
a marriage of two active duty persons or of an active duty member and a 
retiree, are CHAMPUS eligible in the same manner as dependent children 
of a marriage involving only one CHAMPUS

[[Page 105]]

sponsor. Should a spouse or dependent who has dual eligibility leave 
active duty status, that person's CHAMPUS eligibility is reinstated as 
of 12:01 a.m. of the day active duty ends, if he or she otherwise is 
eligible as a dependent of a CHAMPUS sponsor.

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

    (e) Eligibility under the Transitional Assistance Management Program 
(TAMP). (1) A member of the armed forces is eligible for transitional 
health care if the member is:
    (i) A member who is involuntarily separated from active duty.
    (ii) A member of a Reserve component who is separated from active 
duty to which called or ordered in support of a contingency operation if 
the active duty is active duty for a period of more than 30 consecutive 
days.
    (iii) A member who is separated from active duty for which the 
member is involuntarily retained under 10 U.S.C. 12305 in support of a 
contingency operation; or
    (iv) A member who is separated from active duty served pursuant to a 
voluntary agreement of the member to remain on active duty for a period 
of less than 1 year in support of a contingency operation.
    (v) A member who receives a sole survivorship discharge (as defined 
in section 1174(i) of this title).
    (vi) A member who is separated from Active Duty who agrees to become 
a member of the Selected Reserve of the Ready Reserve of a reserve 
component.
    (2) A spouse (as described in paragraph (b)(2)(i) of this section 
except former spouses) and child (as described in paragraph (b)(2)(ii) 
of this section) of a member described in paragraph (e)(1) of this 
section is also eligible for TAMP benefits under TRICARE.
    (3) TAMP benefits under TRICARE begin on the day after the member is 
separated from active duty, and, if such separation occurred on or after 
November 6, 2003, end 180 days after such date. TRICARE benefits 
available to both the member and eligible family members are generally 
those available to family members of members of the uniformed services 
under this Part. However, during TAMP eligibility, a member of a Reserve 
Component as described in paragraph (e)(1)(ii) of this section, is 
entitled to dental care to which a member of the uniformed services on 
active duty for more than 30 days is entitled. Each branch of service 
will determine eligibility for its members and eligible family members 
and provide data to DEERS.
    (f) Changes in status which result in termination of CHAMPUS 
eligibility. Changes in status which result in a loss of CHAMPUS 
eligibility as of 12:01 a.m. of the day following the day the event 
occurred, unless otherwise indicated, are as follows:
    (1) Changes in the status of a member. (i) When an active duty 
member's period of active duty ends, excluding retirement or death.
    (ii) When an active duty member is placed on desertion status 
(eligibility is reinstated when the active duty member is removed from 
desertion status and returned to military control).

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

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

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

    (iii) Attainment of entitlement to hospital insurance benefits (Part 
A) under Medicare except as provided in paragraphs (b)(3), (f)(3)(vii), 
(f)(3)(viii) and (f)(3)(ix) of this section.
    (3) Changes in the status of a dependent. (i) Divorce, except for 
certain classes of former spouses as provided in paragraph (b)(2)(i) of 
this section and the member or former member's own children (i.e., 
legitimate, adopted, and

[[Page 106]]

judicially determined illegitimate children).

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

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

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

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

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

    (viii) End stage renal disease. All beneficiaries, except dependents 
of active duty members, lose their CHAMPUS eligibility when Medicare 
coverage becomes available to a person because of chronic renal disease 
unless the following conditions have been met. CHAMPUS eligibility will 
continue if:
    (A) The individual is under 65 years old;
    (B) The individual became eligible for Medicare under the provisions 
of 42 U.S.C. 426-1(a);
    (C) The individual is enrolled in Part B of Medicare; and
    (D) The individual has applied and qualified for continued CHAMPUS 
eligibility through the Defense Enrollment Eligibility Reporting System 
(DEERS).
    (ix) Individuals with certain disabilities. Each case relating to 
Medicare eligibility resulting from being disabled requires individual 
investigation. All beneficiaries except dependents of active duty 
members lose their CHAMPUS eligibility when Medicare coverage becomes 
available to a disabled person unless the following conditions have been 
met. CHAMPUS eligibility will continue if:
    (A) The individual is under 65 years old;
    (B) The individual became eligible for Medicare under the provisions 
of 42 U.S.C. 426(b)(2);
    (C) The individual is enrolled in Part B of Medicare except that in 
the case of a retroactive determination of entitlement to Medicare Part 
A hospital insurance benefits for a person under 65 years of age there 
is no requirement to enroll in Medicare Part B from the Medicare Part A 
entitlement date until the issuance of such retroactive determination; 
and

[[Page 107]]

    (D) The individual has applied and qualified for continued CHAMPUS 
eligibility through the Defense Enrollment Eligibility Reporting System 
(DEERS).
    (x) Disabled students, that is children age 21 or 22, who are 
pursuing a full-time course of higher education and who, either during 
the school year or between semesters, suffer a disabling illness or 
injury with resultant inability to resume attendance at the institution 
remain eligible for CHAMPUS medical benefits for 6 months after the 
disability is removed or until the student passes his or her 23rd 
birthday, whichever occurs first. However, if recovery occurs before the 
23rd birthday and there is resumption of a full-time course of higher 
education, CHAMPUS benefits can be continued until the 23rd birthday. 
The normal vacation periods during an established school year do not 
change the eligibility status of a dependent child 21 or 22 years old in 
a full time student status. Unless an incapacitating condition existed 
before, and at the time of, a dependent child's 21st birthday, a 
dependent child 21 or 22 years old in student status does not have 
eligibility and may not qualify for eligibility under the requirements 
related to mental or physical incapacity as described in paragraph 
(b)(2)(ii)(H)(2) of this section.
    (g) Reinstatement of CHAMPUS eligibility. Circumstances which result 
in reinstatement of CHAMPUS eligibility are as follows:
    (1) End Stage renal disease. Unless CHAMPUS eligibility has been 
continued under paragraph (f)(3)(viii) of the section, when Medicare 
eligibility ceases for end-stage renal disease patients, CHAMPUS 
eligibility resumes if the person is otherwise still eligible. He or she 
is required to take action to be reinstated as a CHAMPUS beneficiary and 
to obtain a new identification card.
    (2) Disability. Some disabilities are permanent, others temporary. 
Each case must be reviewed individually. Unless CHAMPUS eligibility has 
been continued under paragraph (f)(3)(ix) of this section, when 
disability ends and Medicare eligibility ceases, CHAMPUS eligibility 
resumes if the person is otherwise still eligible. Again, he or she is 
required to take action to obtain a new CHAMPUS identification card.
    (3) Enrollment in Medicare Part B. For individuals whose CHAMPUS 
eligibility has terminated pursuant to paragraph (f)(2)(iii) or 
(f)(3)(vi) of this section due to beneficiary action to decline Part B 
of Medicare, CHAMPUS eligibility resumes, effective on the date Medicare 
Part B coverage begins, if the person subsequently enrolls in Medicare 
Part B and the person is otherwise still eligible.
    (h) Determination of eligibility status. Determination of an 
individual's eligibility as a CHAMPUS beneficiary is the primary 
responsibility of the Uniformed Service in which the member or former 
member is, or was, a member, or in the case of dependents of a NATO 
military member, the Service that sponsors the NATO member. For the 
purpose of program integrity, the appropriate Uniformed Service shall, 
upon request of the Director, OCHAMPUS, review the eligibility of a 
specific person when there is reason to question the eligibility status. 
In such cases, a report on the results of the review and any action 
taken will be submitted to the Director, OCHAMPUS, or a designee.
    (i) Procedures for determination of eligibility. Procedures for the 
determination of eligibility are prescribed within the Department of 
Defense Instruction 1000.13 available at local military facilities 
personnel offices.
    (j) CHAMPUS procedures for verification of eligibility. (1) 
Eligibility for CHAMPUS benefits will be verified through the Defense 
Enrollment Eligibility Reporting System (DEERS) maintained by the 
Uniformed Services, except for abused dependents as set forth in 
paragraph (b)(2)(iii) of this section. It is the responsibility of the 
CHAMPUS beneficiary, or parent, or legal representative, when 
appropriate, to provide the necessary evidence required for entry into 
the DEERS file to establish CHAMPUS eligibility and to ensure that all 
changes in status that may affect eligibility be reported immediately to 
the appropriate Uniformed Service for action.
    (2) Ineligibility for CHAMPUS benefits may be presumed in the 
absence of

[[Page 108]]

prescribed eligibility evidence in the DEERS file.
    (3) The Director, OCHAMPUS, shall issue guidelines as necessary to 
implement the provisions of this section.

[64 FR 46135, Aug. 24, 1999, as amended at 66 FR 9654, Feb. 9, 2001; 66 
FR 16400, Mar. 26, 2001; 66 FR 40606, Aug. 3, 2001; 67 FR 15725, Apr. 3, 
2002; 68 FR 23032, Apr. 30, 2003; 68 FR 32361, May 30, 2003; 69 FR 
51564, Aug. 20, 2004; 69 FR 60554, Oct. 12, 2004; 70 FR 12802, Mar. 16, 
2005; 72 FR 2447, Jan. 19, 2007; 75 FR 50883, Aug. 18, 2010; 76 FR 
81367, Dec. 28, 2011; 77 FR 38176, June 27, 2012; 80 FR 55254, Sept. 15, 
2015]



Sec. 199.4  Basic program benefits.

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

[[Page 109]]

    (ii) Disclosure is necessary to permit authorized governmental 
officials to investigate and prosecute criminal actions, or
    (iii) Disclosure is authorized or required specifically under the 
terms of the Privacy Act or Freedom of Information Act (refer to Sec. 
199.1(m) of this part).

For the purposes of determining the applicability of and implementing 
the provisions of Sec. Sec. 199.8, 199.11, and 199.12, or any provision 
of similar purpose of any other medical benefits coverage or 
entitlement, OCHAMPUS or CHAMPUS fiscal intermediaries may release, 
without consent or notice to any beneficiary or sponsor, to any person, 
organization, government agency, provider, or other entity any 
information with respect to any beneficiary when such release 
constitutes a routine use published in the Federal Register in 
accordance with DoD 5400.11-R (Privacy Act (5 U.S.C. 552a)). Before a 
person's claim of benefits will be adjudicated, the person must furnish 
to CHAMPUS information that reasonably may be expected to be in his or 
her possession and that is necessary to make the benefit determination. 
Failure to provide the requested information may result in denial of the 
claim.
    (6) Physical examinations. The Director, OCHAMPUS, or a designee, 
may require a beneficiary to submit to one or more medical (including 
psychiatric) examinations to determine the beneficiary's entitlement to 
benefits for which application has been made or for otherwise authorized 
medically necessary services and supplies required in the diagnosis or 
treatment of an illness or injury (including maternity and well-baby 
care). When a medical examination has been requested, CHAMPUS will 
withhold payment of any pending claims or preauthorization requests on 
that particular beneficiary. If the beneficiary refuses to agree to the 
requested medical examination, or unless prevented by a medical reason 
acceptable to OCHAMPUS, the examination is not performed within 90 days 
of initial request, all pending claims for services and supplies will be 
denied. A denial of payments for services or supplies provided before 
(and related to) the request for a physical examination is not subject 
to reconsideration. The medical examination and required beneficiary 
travel related to performing the requested medical examination will be 
at the expense of CHAMPUS. The medical examination may be performed by a 
physician in a Uniformed Services medical facility or by an appropriate 
civilian physician, as determined and selected by the Director, 
OCHAMPUS, or a designee who is responsible for making such arrangements 
as are necessary, including necessary travel arrangements.
    (7) Claims filing deadline. For all services provided on or after 
January 1, 1993, to be considered for benefits, all claims submitted for 
benefits must, except as provided in Sec. 199.7, be filed with the 
appropriate CHAMPUS contractor no later than one year after the services 
are provided. Unless the requirement is waived, failure to file a claim 
within this deadline waives all rights to benefits for such services or 
supplies.
    (8) Double coverage and third party recoveries. CHAMPUS claims 
involving double coverage or the possibility that the United States can 
recover all or a part of its expenses from a third party, are 
specifically subject to the provisions of Sec. 199.8 or Sec. 199.12 of 
this part as appropriate.
    (9) Nonavailability Statements within a 40-mile catchment area. 
Unless required by action of the Assistant Secretary of Defense for 
Health Affairs (ASD(HA)) under this paragraph (a)(9), nonavailability 
statements are not required. If they are required by ASD(HA) action, in 
some geographic locations, CHAMPUS beneficiaries not enrolled in TRICARE 
Prime may be required to obtain a nonavailability statement from a 
military medical treatment facility in order to receive specifically 
identified health care services from a civilian provider. If the 
required care cannot be provided through the Uniformed Service facility, 
the hospital commander, or a designee, will issue a Nonavailability 
Statement (NAS) (DD Form 1251). Failure to secure such a statement may 
waive the beneficiary's rights to benefits under CHAMPUS/TRICARE.

[[Page 110]]

    (i) With the exception of maternity services, the ASD(HA) may 
require an NAS prior to TRICARE cost-sharing for additional services 
from civilian sources if such services are to be provided to a 
beneficiary who lives within a 40-mile catchment area of an MTF where 
such services are available and the ASD(HA):
    (A) Demonstrates that significant costs would be avoided by 
performing specific procedures at the affected MTF or MTFs; or
    (B) Determines that a specific procedure must be provided at the 
affected MTF or MTFs to ensure the proficiency levels of the 
practitioners at the MTF or MTFs; or
    (C) Determines that the lack of NAS data would significantly 
interfere with TRICARE contract administration; and
    (D) Provides notification of the ASD(HA)'s intent to require an NAS 
under this authority to covered beneficiaries who receive care at the 
MTF or MTFs that will be affected by the decision to require an NAS 
under this authority; and
    (E) Provides at least 60-day notification to the Committees on Armed 
Services of the House of Representatives and the Senate of the ASD(HA)'s 
intent to require an NAS under this authority, the reason for the NAS 
requirement, and the date that an NAS will be required.
    (ii) Rules in effect at the time civilian medical care is provided 
apply. The applicable rules and regulations regarding Nonavailability 
Statements in effect at the time the civilian care is rendered apply in 
determining whether a NAS is required.
    (iii) The Director, TMA is responsible for issuing the procedural 
rules and regulations regarding Nonavailability Statements. Such rules 
and regulations should address:
    (A) When and for what services a NAS is required. However, a NAS may 
not be required for services otherwise available at an MTF located 
within a 40-mile radius of the beneficiary's residence when another 
insurance plan or program provides the beneficiary's primary coverage 
for the services. This requirement for an NAS does not apply to 
beneficiaries enrolled in TRICARE Prime, even when those beneficiaries 
use the point-of-service option under Sec. 199.17(n)(3) of this part; 
and
    (B) When and how notifications will be made to a beneficiary who is 
not enrolled in TRICARE Prime as to whether or not he or she resides in 
a geographic area that requires obtaining a NAS; and
    (C) What information relating to claims submissions, including the 
documentation, if any, that is required to document that a valid NAS was 
issued. However, when documentation of a NAS is required, then that 
documentation shall be valid for the adjudication of CHAMPUS claims for 
all related care otherwise authorized by this part which is received 
from a civilian source while the beneficiary resided within the 
Uniformed Service facility catchment area which issued the NAS.
    (iv) In the case of any service subject to a NAS requirement under 
this paragraph (a)(9) and also subject to a preadmission (or other pre-
service) authorization requirement under Sec. 199.4 or Sec. 199.15 of 
this part, the administrative processes for the NAS and pre-service 
authorization may be combined.
    (10) [Reserved]
    (11) Quality and Utilization Review Peer Review Organization 
program. All benefits under the CHAMPUS program are subject to review 
under the CHAMPUS Quality and Utilization Review Peer Review 
Organization program pursuant to Sec 199.15.
    (12) [Reserved]
    (13) Implementing instructions. The Director, OCHAMPUS shall issue 
policies, procedures, instructions, guidelines, standards and/or 
criteria to implement this section.
    (14) Confidentiality of substance use disorder treatment. Release of 
any patient identifying information, including that required to 
adjudicate a claim, must comply with the provisions of section 543 of 
the Public Health Service Act, as amended, (42 U.S.C. 290dd-2), and 
implementing regulations at 42 CFR part 2, which governs the release of 
medical and other information from the records of patients undergoing 
treatment of substance use disorder. If the patient refuses to authorize 
the release of medical records which are, in the opinion of the 
Director, Defense

[[Page 111]]

Health Agency, or a designee, necessary to determine benefits on a claim 
for treatment of substance use disorder, the claim will be denied.
    (b) Institutional benefits--(1) General. Services and supplies 
provided by an institutional provider authorized as set forth in Sec. 
199.6 may be cost-shared only when such services or supplies: are 
otherwise authorized by this part; are medically necessary; are ordered, 
directed, prescribed, or delivered by an OCHAMPUS-authorized individual 
professional provider as set forth in Sec. 199.6 or by an employee of 
the authorized institutional provider who is otherwise eligible to be a 
CHAMPUS authorized individual professional provider; are delivered in 
accordance with generally accepted norms for clinical practice in the 
United States; meet established quality standards; and comply with 
applicable definitions, conditions, limitations, exceptions, or 
exclusions as otherwise set forth in this part.
    (i) Billing practices. To be considered for benefits under Sec. 
199.4(b), covered services and supplies must be provided and billed for 
by a hospital or other authorized institutional provider. Such billings 
must be fully itemized and sufficiently descriptive to permit CHAMPUS to 
determine whether benefits are authorized by this part. Depending on the 
individual circumstances, teaching physician services may be considered 
an institutional benefit in accordance with Sec. 199.4(b) or a 
professional benefit under Sec. 199.4(c). See paragraph (c)(3)(xiii) of 
this section for the CHAMPUS requirements regarding teaching physicians. 
In the case of continuous care, claims shall be submitted to the 
appropriate CHAMPUS fiscal intermediary at least every 30 days either by 
the beneficiary or sponsor or, on a participating basis, directly by the 
facility on behalf of the beneficiary (refer to Sec. 199.7).
    (ii) Successive inpatient admissions. Successive inpatient 
admissions shall be deemed one inpatient confinement for the purpose of 
computing the active duty dependent's share of the inpatient 
institutional charges, provided not more than 60 days have elapsed 
between the successive admissions, except that successive inpatient 
admissions related to a single maternity episode shall be considered one 
confinement, regardless of the number of days between admissions. For 
the purpose of applying benefits, successive admissions will be 
determined separately for maternity admissions and admissions related to 
an accidental injury (refer to Sec. 199.4(f)).
    (iii) Related services and supplies. Covered services and supplies 
must be rendered in connection with and related directly to a covered 
diagnosis or definitive set of symptoms requiring otherwise authorized 
medically necessary treatment.
    (iv) Inpatient, appropriate level required. For purposes of 
inpatient care, the level of institutional care for which Basic Program 
benefits may be extended must be at the appropriate level required to 
provide the medically necessary treatment except for patients requiring 
skilled nursing facility care. For patients for whom skilled nursing 
facility care is adequate, but is not available in the general locality, 
benefits may be continued in the higher level care facility. General 
locality means an area that includes all the skilled nursing facilities 
within 50 miles of the higher level facility, unless the higher level 
facility can demonstrate that the skilled nursing facilities are 
inaccessible to its patients. The decision as to whether a skilled 
nursing facility is within the higher level facility's general locality, 
or the skilled nursing facility is inaccessible to the higher level 
facility's patients shall be a CHAMPUS contractor initial determination 
for the purposes of appeal under Sec. 199.10 of this part. CHAMPUS 
institutional benefit payments shall be limited to the allowable cost 
that would have been incurred in the skilled nursing facility, as 
determined by the Director, OCHAMPUS, or a designee. If it is determined 
that the institutional care can be provided reasonably in the home 
setting, no CHAMPUS institutional benefits are payable.
    (v) General or special education not covered. Services and supplies 
related to the provision of either regular or special education 
generally are not covered. Such exclusion applies whether a separate 
charge is made for education or whether it is included as a

[[Page 112]]

part of an overall combined daily charge of an institution. In the 
latter instance, that portion of the overall combined daily charge 
related to education must be determined, based on the allowable costs of 
the educational component, and deleted from the institution's charges 
before CHAMPUS benefits can be extended. The only exception is when 
appropriate education is not available from or not payable by the 
cognizant public entity. Each case must be referred to the Director, 
OCHAMPUS, or a designee, for review and a determination of the 
applicability of CHAMPUS benefits.
    (vi) Substance use disorder treatment exclusions. (A) The programmed 
use of physical measures, such as electric shock, alcohol, or other 
drugs as negative reinforcement (aversion therapy) is not covered, even 
if recommended by a physician.
    (B) Domiciliary settings. Domiciliary facilities generally referred 
to as halfway or quarterway houses are not authorized providers and 
charges for services provided by these facilities are not covered.
    (2) Covered hospital services and supplies--(i) Room and board. 
Includes special diets, laundry services, and other general housekeeping 
support services (inpatient only).
    (ii) General staff nursing services.
    (iii) ICU. Includes specialized units, such as for respiratory 
conditions, cardiac surgery, coronary care, burn care, or neurosurgery 
(inpatient only).
    (iv) Operating room, recovery room. Operating room and recovery 
room, including other special treatment rooms and equipment, and 
hyperbaric chamber.
    (v) Drugs and medicines. Includes sera, biologicals, and 
pharmaceutical preparations (including insulin) that are listed in the 
official formularies of the institution or facility at the time of use. 
(To be considered as an inpatient supply, drugs and medicines must be 
consumed during the specific period the beneficiary is a registered 
inpatient. Drugs and medicines prescribed for use outside the hospital, 
even though prescribed and obtained while still a registered inpatient, 
will be considered outpatient supplies and the provisions of paragraph 
(d) of this section will apply.)
    (vi) Durable medical equipment, medical supplies, and dressings. 
Includes durable medical equipment, medical supplies essential to a 
surgical procedure (such as artificial heart valve and artificial ball 
and socket joint), sterile trays, casts, and orthopedic hardware. Use of 
durable medical equipment is restricted to an inpatient basis.

    Note: If durable medical equipment is to be used on an outpatient 
basis or continued in outpatient status after use as an inpatient, 
benefits will be provided as set forth in paragraph (d) of this section 
and cost-sharing will be on an outpatient basis (refer to paragraph 
(a)(4) of this section).

    (vii) Diagnostic services. Includes clinical laboratory 
examinations, x-ray examinations, pathological examinations, and machine 
tests that produce hard-copy results. Also includes CT scanning under 
certain limited conditions.
    (viii) Anesthesia. Includes both the anesthetic agent and its 
administration.
    (ix) Blood. Includes blood, plasma and its derivatives, including 
equipment and supplies, and its administration.
    (x) Radiation therapy. Includes radioisotopes.
    (xi) Physical therapy.
    (xii) Oxygen. Includes equipment for its administration.
    (xiii) Intravenous injections. Includes solution.
    (xiv) Shock therapy.
    (xv) Chemotherapy.
    (xvi) Renal and peritoneal dialysis.
    (xvii) Psychological evaluation tests. When required by the 
diagnosis.
    (xviii) Other medical services. Includes such other medical services 
as may be authorized by the Director, OCHAMPUS, or a designee, provided 
they are related directly to the diagnosis or definitive set of symptoms 
and rendered by a member of the institution's medical or professional 
staff (either salaried or contractual) and billed for by the hospital.
    (xix) Medication assisted treatment. Covered drugs and medicines for 
the treatment of substance use disorder include the substitution of a 
therapeutic drug, with addictive potential, for a

[[Page 113]]

drug addiction when medically or psychologically necessary and 
appropriate medical care for a beneficiary undergoing supervised 
treatment for a substance use disorder.
    (xx) Withdrawal management (detoxification). For a beneficiary 
undergoing treatment for a substance use disorder, this includes 
management of a patient's withdrawal symptoms (detoxification).
    (3) Covered services and supplies provided by special medical 
treatment institutions or facilities, other than hospitals or RTCs--(i) 
Room and board. Includes special diets, laundry services, and other 
general housekeeping support services (inpatient only).
    (ii) General staff nursing services.
    (iii) Drugs and medicines. Includes sera, biologicals, and 
pharmaceutical preparations (including insulin) that are listed in the 
official formularies of the institution or facility at the time of use. 
(To be considered as an inpatient supply, drugs and medicines must be 
consumed during the specific period the beneficiary is a registered 
inpatient. Drugs and medicines prescribed for use outside the authorized 
institutional provider, even though prescribed and obtained while still 
a registered inpatient, will be considered outpatient supplies and the 
provisions of paragraph (d) of this section will apply.).
    (iv) Durable medical equipment, medical supplies, and dressings. 
Includes durable medical equipment, sterile trays, casts, orthopedic 
hardware and dressings. Use of durable medical equipment is restricted 
to an inpatient basis.

    Note: If the durable medical equipment is to be used on an 
outpatient basis or continued in outpatient status after use as an 
inpatient, benefits will be provided as set forth in paragraph (d) of 
this section, and cost-sharing will be on an outpatient basis (refer to 
paragraph (a)(4) of this section).

    (v) Diagnostic services. Includes clinical laboratory examinations, 
x-ray examinations, pathological examination, and machine tests that 
produce hard-copy results.
    (vi) Blood. Includes blood, plasma and its derivatives, including 
equipment and supplies, and its administration.
    (vii) Physical therapy.
    (viii) Oxygen. Includes equipment for its administration.
    (ix) Intravenous injections. Includes solution.
    (x) Shock therapy.
    (xi) Chemotherapy.
    (xii) Psychological evaluation tests. When required by the 
diagnosis.
    (xiii) Renal and peritoneal dialysis.
    (xiv) Skilled nursing facility (SNF) services. Covered services in 
SNFs are the same as provided under Medicare under section 1861(h) and 
(i) of the Social Security Act (42 U.S.C. 1395x(h) and (i)) and 42 CFR 
part 409, subparts C and D, except that the Medicare limitation on the 
number of days of coverage under section 1812(a) and (b) of the Social 
Security Act (42 U.S.C. 1395d(a) and (b)) and 42 CFR 409.61(b) shall not 
be applicable under TRICARE. Skilled nursing facility care for each 
spell of illness shall continue to be provided for as long as medically 
necessary and appropriate. For a SNF admission to be covered under 
TRICARE, the beneficiary must have a qualifying hospital stay meaning an 
inpatient hospital stay of three consecutive days or more, not including 
the hospital leave day. (The three-day hospital stay requirement is 
waived for the duration of the President's national emergency for the 
coronavirus disease 2019 (COVID-19) outbreak.) The beneficiary must 
enter the SNF within 30 days of leaving the hospital, or within such 
time as it would be medically appropriate to begin an active course of 
treatment, where the individual's condition is such that SNF care would 
not be medically appropriate within 30 days after discharge from a 
hospital. The skilled services must be for a medical condition that was 
either treated during the qualifying three-day hospital stay, or started 
while the beneficiary was already receiving covered SNF care. 
Additionally, an individual shall be deemed not to have been discharged 
from a SNF, if within 30 days after discharge from a SNF, the individual 
is again admitted to a SNF. Adoption by TRICARE of most Medicare 
coverage standards does not include Medicare coinsurance amounts. 
Extended care services furnished to an inpatient of a SNF by such SNF 
(except as provided in paragraphs (b)(3)(xiv)(C), (b)(3)(xiv)(F), and 
(b)(3)(xiv)(G) of this section) include:

[[Page 114]]

    (A) Nursing care provided by or under the supervision of a 
registered professional nurse;
    (B) Bed and board in connection with the furnishing of such nursing 
care;
    (C) Physical or occupational therapy or speech-language pathology 
services furnished by the SNF or by others under arrangements with them 
by the facility;
    (D) Medical social services;
    (E) Such drugs, biological, supplies, appliances, and equipment, 
furnished for use in the SNF, as are ordinarily furnished for the care 
and treatment of inpatients;
    (F) Medical services provided by an intern or resident-in-training 
of a hospital with which the facility has such an agreement in effect; 
and
    (G) Such other services necessary to the health of the patients as 
are generally provided by SNFs, or by others under arrangements with 
them made by the facility.
    (xv) Other medical services. Other medical services may be 
authorized by the Director, OCHAMPUS, or a designee, provided they are 
related directly to the diagnosis or definitive set of symptoms and 
rendered by a member of the institution's medical or professional staff 
(either salaried or contractual) and billed for by the authorized 
institutional provider of care.
    (xvi) Medication assisted treatment. Covered drugs and medicines for 
the treatment of substance use disorder include the substitution of a 
therapeutic drug, with addictive potential, for a drug addiction when 
medically or psychologically necessary and appropriate medical care for 
a beneficiary undergoing supervised treatment for a substance use 
disorder.
    (xvii) Withdrawal management (detoxification). For a beneficiary 
undergoing treatment for a substance use disorder, this includes 
management of a patient's withdrawal symptoms (detoxification).
    (4) Services and supplies provided by RTCs--(i) Room and board. 
Includes use of residential facilities such as food service (including 
special diets), laundry services, supervised reasonable recreational and 
social activity services, and other general services as considered 
appropriate by the Director, OCHAMPUS, or a designee.
    (ii) Patient assessment. Includes the assessment of each child or 
adolescent accepted by the RTC, including clinical consideration of each 
of his or her fundamental needs, that is, physical, psychological, 
chronological age, developmental level, family, educational, social, 
environmental, and recreational.
    (iii) Diagnostic services. Includes clinical laboratory 
examinations, x-ray examinations, pathological examinations, and machine 
tests that produce hard-copy results.
    (iv) Psychological evaluation tests.
    (v) Treatment of mental disorders. Services and supplies that are 
medically or psychologically necessary to diagnose and treat the mental 
disorder for which the patient was admitted to the RTC. Covered services 
and requirements for qualifications of providers are as listed in 
paragraph (c)(3)(ix) of this section.
    (vi) Other necessary medical care. Emergency medical services or 
other authorized medical care may be rendered by the RTC provided it is 
professionally capable of rendering such services and meets standards 
required by the Director, OCHAMPUS. It is intended, however, that 
CHAMPUS payments to an RTC should primarily cover those services and 
supplies directly related to the treatment of mental disorders that 
require residential care.
    (vii) Criteria for determining medical or psychological necessity. 
In determining the medical or psychological necessity of services and 
supplies provided by RTCs, the evaluation conducted by the Director, 
OCHAMPUS (or designee) shall consider the appropriate level of care for 
the patient, the intensity of services required by the patient, and the 
availability of that care. In addition to the criteria set forth in this 
paragraph (b)(4) of this section, additional evaluation standards, 
consistent with such criteria, may be adopted by the Director, OCHAMPUS 
(or designee). RTC services and supplies shall not be considered 
medically or psychologically necessary unless, at a minimum, all the 
following criteria are clinically determined in the evaluation to be 
fully met:

[[Page 115]]

    (A) Patient has a diagnosable psychiatric disorder.
    (B) Patient exhibits patterns of disruptive behavior with evidence 
of disturbances in family functioning or social relationships and 
persistent psychological and/or emotional disturbances.
    (C) RTC services involve active clinical treatment under an 
individualized treatment plan that provides for:
    (1) Specific level of care, and measurable goals/objectives relevant 
to each of the problems identified;
    (2) Skilled interventions by qualified mental health professionals 
to assist the patient and/or family;
    (3) Time frames for achieving proposed outcomes; and
    (4) Evaluation of treatment progress to include timely reviews and 
updates as appropriate of the patient's treatment plan that reflects 
alterations in the treatment regimen, the measurable goals/objectives, 
and the level of care required for each of the patient's problems, and 
explanations of any failure to achieve the treatment goals/objectives.
    (D) Unless therapeutically contraindicated, the family and/or 
guardian must actively participate in the continuing care of the patient 
either through direct involvement at the facility or geographically 
distant family therapy. (In the latter case, the treatment center must 
document that there has been collaboration with the family and/or 
guardian in all reviews.)
    (5) Extent of institutional benefits--(i) Inpatient room 
accommodations--(A) Semiprivate. The allowable costs for room and board 
furnished an individual patient are payable for semiprivate 
accommodations in a hospital or other authorized institution, subject to 
appropriate cost-sharing provisions (refer to paragraph (f) of this 
section). A semiprivate accommodation is a room containing at least two 
beds. Therefore, if a room publicly is designated by the institution as 
a semiprivate accommodation and contains multiple beds, it qualifies as 
semiprivate for the purpose of CHAMPUS.
    (B) Private. A room with one bed that is designated as a private 
room by the hospital or other authorized institutional provider. The 
allowable cost of a private room accommodation is covered only under the 
following conditions:
    (1) When its use is required medically and when the attending 
physician certifies that a private room is necessary medically for the 
proper care and treatment of a patient; or
    (2) When a patient's medical condition requires isolation; or
    (3) When a patient (in need of immediate inpatient care but not 
requiring a private room) is admitted to a hospital or other authorized 
institution that has semiprivate accommodations, but at the time of 
admission, such accommodations are occupied; or
    (4) When a patient is admitted to an acute care hospital (general or 
special) without semiprivate rooms.
    (C) Duration of private room stay. The allowable cost of private 
accommodations is covered under the circumstances described in paragraph 
(b)(5)(i)(B) of this section until the patient's condition no longer 
requires the private room for medical reasons or medical isolation; or, 
in the case of the patient not requiring a private room, when a 
semiprivate accommodation becomes available; or, in the case of an acute 
care hospital (general or special) which does not have semiprivate 
rooms, for the duration of an otherwise covered inpatient stay.
    (D) Hospital (except an acute care hospital, general or special) or 
other authorized institutional provider without semiprivate 
accommodations. When a beneficiary is admitted to a hospital (except an 
acute care hospital, general or special) or other institution that has 
no semiprivate accommodations, for any inpatient day when the patient 
qualifies for use of a private room (as set forth in paragraphs 
(b)(5)(i)(B) (1) and (2) of this section) the allowable cost of private 
accommodations is covered. For any inpatient day in such a hospital or 
other authorized institution when the patient does not require medically 
the private room, the allowable cost of semiprivate accommodations is 
covered, such allowable costs to be determined by the Director, 
OCHAMPUS, or a designee.
    (ii) General staff nursing services. General staff nursing services 
cover all nursing care (other than that provided

[[Page 116]]

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

[[Page 117]]

such services is made through the facility.
    (6) Inpatient mental health services. Inpatient mental health 
services are those services furnished by institutional and professional 
providers for treatment of a nervous or mental disorder (as defined in 
Sec. 199.2) to a patient admitted to a CHAMPUS-authorized acute care 
general hospital; a psychiatric hospital; or, unless otherwise exempted, 
a special institutional provider.
    (i) Criteria for determining medical or psychological necessity. In 
determining the medical or psychological necessity of acute inpatient 
mental health services, the evaluation conducted by the Director, 
OCHAMPUS (or designee) shall consider the appropriate level of care for 
the patient, the intensity of services required by the patient, and the 
availability of that care. The purpose of such acute inpatient care is 
to stabilize a life-threatening or severely disabling condition within 
the context of a brief, intensive model of inpatient care in order to 
permit management of the patient's condition at a less intensive level 
of care. Such care is appropriate only if the patient requires services 
of an intensity and nature that are generally recognized as being 
effectively and safely provided only in an acute inpatient hospital 
setting. In addition to the criteria set forth in this paragraph (b)(6) 
of this section, additional evaluation standards, consistent with such 
criteria, may be adopted by the Director, OCHAMPUS (or designee). Acute 
inpatient care shall not be considered necessary unless the patient 
needs to be observed and assessed on a 24-hour basis by skilled nursing 
staff, and/or requires continued intervention by a multidisciplinary 
treatment team; and in addition, at least one of the following criteria 
is determined to be met:
    (A) Patient poses a serious risk of harm to self and/or others.
    (B) Patient is in need of high dosage, intensive medication or 
somatic and/or psychological treatment, with potentially serious side 
effects.
    (C) Patient has acute disturbances of mood, behavior, or thinking.
    (ii) Emergency admissions. Admission to an acute inpatient hospital 
setting may be on an emergency or on a non-emergency basis. In order for 
an admission to qualify as an emergency, the following criteria, in 
addition to those in paragraph (b)(6)(i) of this section, must be met:
    (A) The patient must be at immediate risk of serious harm to self 
and or others based on a psychiatric evaluation performed by a physician 
(or other qualified mental health professional with hospital admission 
authority); and
    (B) The patient requires immediate continuous skilled observation 
and treatment at the acute psychiatric level of care.
    (iii)-(iv)[Reserved]
    (7) Emergency inpatient hospital services. In the case of a medical 
emergency, benefits can be extended for medically necessary inpatient 
services and supplies provided to a beneficiary by a hospital, including 
hospitals that do not meet CHAMPUS standards or comply with the 
nondiscrimination requirements under title VI of the Civil Rights Act 
and other nondiscrimination laws applicable to recipients of federal 
financial assistance, or satisfy other conditions herein set forth. In a 
medical emergency, medically necessary inpatient services and supplies 
are those that are necessary to prevent the death or serious impairment 
of the health of the patient, and that, because of the threat to the 
life or health of the patient, necessitate, the use of the most 
accessible hospital available and equipped to furnish such services. 
Emergency services are covered when medically necessary for the active 
medical treatment of the acute phases of substance withdrawal 
(detoxification), for stabilization and for treatment of medical 
complications for substance use disorder. The availability of benefits 
depends upon the following three separate findings and continues only as 
long as the emergency exists, as determined by medical review. If the 
case qualified as an emergency at the time of admission to an 
unauthorized institutional provider and the emergency subsequently is 
determined no longer to exist, benefits will be extended up through the 
date of notice to the beneficiary and provider that

[[Page 118]]

CHAMPUS benefits no longer are payable in that hospital.
    (i) Existence of medical emergency. A determination that a medical 
emergency existed with regard to the patient's condition;
    (ii) Immediate admission required. A determination that the 
condition causing the medical emergency required immediate admission to 
a hospital to provide the emergency care; and
    (iii) Closest hospital utilized. A determination that diagnosis or 
treatment was received at the most accessible (closest) hospital 
available and equipped to furnish the medically necessary care.
    (8) Residential treatment for substance use disorder--(i) In 
general. Rehabilitative care, to include withdrawal management 
(detoxification), in an inpatient residential setting of an authorized 
hospital or substance use disorder rehabilitative facility, whether 
free-standing or hospital-based, is covered on a residential basis. The 
medical necessity for the management of withdrawal symptoms must be 
documented. Any withdrawal management (detoxification) services provided 
by the substance use disorder rehabilitation facility must be under 
general medical supervision.
    (ii) Criteria for determining medical or psychological necessity of 
residential treatment for substance use disorder. Residential treatment 
for substance use disorder will be considered necessary only if all of 
the following conditions are present:
    (A) The patient has been diagnosed with a substance use disorder.
    (B) The patient is experiencing withdrawal symptoms or potential 
symptoms severe enough to require inpatient care and physician 
management, or who have less severe symptoms that require 24-hour 
inpatient monitoring or the patient's addiction-related symptoms, or 
concomitant physical and emotional/behavioral problems reflect 
persistent dysfunction in several major life areas.
    (iii) Services and supplies. The following services and supplies are 
included in the per diem rate approved for an authorized residential 
treatment for substance use disorder.
    (A) Room and board. Includes use of the residential treatment 
program facilities such as food service (including special diets), 
laundry services, supervised therapeutically constructed recreational 
and social activities, and other general services as considered 
appropriate by the Director, or a designee.
    (B) Patient assessment. Includes the assessment of each individual 
accepted by the facility, and must, at a minimum, consist of a physical 
examination; psychiatric examination; psychological assessment; 
assessment of physiological, biological and cognitive processes; case 
management assessment; developmental assessment; family history and 
assessment; social history and assessment; educational or vocational 
history and assessment; environmental assessment; and recreational/
activities assessment. Assessments conducted within 30 days prior to 
admission to a residential treatment program for substance use disorder 
(SUD) may be used if approved and deemed adequate to permit treatment 
planning by the residential treatment program for SUD.
    (C) Psychological testing. Psychological testing is provided based 
on medical and psychological necessity.
    (D) Treatment services. All services, supplies, equipment and space 
necessary to fulfill the requirements of each patient's individualized 
diagnosis and treatment plan. All mental health services must be 
provided by a TRICARE authorized individual professional provider of 
mental health services. [Exception: Residential treatment programs that 
employ individuals with master's or doctoral level degrees in a mental 
health discipline who do not meet the licensure, certification, and 
experience requirements for a qualified mental health provider but are 
actively working toward licensure or certification may provide services 
within the all-inclusive per diem rate, but such individuals must work 
under the clinical supervision of a fully qualified mental health 
provider employed by the facility.]
    (iv) Case management required. The facility must provide case 
management that helps to assure arrangement of community based support 
services, referral of suspected child or elder abuse

[[Page 119]]

or domestic violence to the appropriate state agencies, and effective 
after care arrangements, at a minimum.
    (v) Professional mental health benefits. Professional mental health 
benefits are billed separately from the residential treatment program 
per diem rate only when rendered by an attending, TRICARE authorized 
mental health professional who is not an employee of, or under contract 
with, the program for purposes of providing clinical patient care.
    (vi) Non-mental health related medical services. Separate billing 
will be allowed for otherwise covered non-mental health related 
services.
    (9) Psychiatric and substance use disorder partial hospitalization 
services--(i) In general. Partial hospitalization services are those 
services furnished by a TRICARE authorized partial hospitalization 
program and authorized mental health providers for the active treatment 
of a mental disorder. All services must follow a medical model and vest 
patient care under the general direction of a licensed TRICARE 
authorized physician employed by the partial hospitalization program to 
ensure medication and physical needs of all the patients are considered. 
The primary or attending provider must be a TRICARE authorized mental 
health provider (see paragraph (c)(3)(ix) of this section), operating 
within the scope of his/her license. These categories include 
physicians, clinical psychologists, certified psychiatric nurse 
specialists, clinical social workers, marriage and family counselors, 
TRICARE certified mental health counselors, pastoral counselors, and 
supervised mental health counselors. All categories practice 
independently except pastoral counselors and supervised mental health 
counselors who must practice under the supervision of TRICARE authorized 
physicians. Partial hospitalization services and interventions are 
provided at a high degree of intensity and restrictiveness of care, with 
medical supervision and medication management. Partial hospitalization 
services are covered as a basic program benefit only if they are 
provided in accordance with paragraph (b)(9) of this section. Such 
programs must enter into a participation agreement with TRICARE; and be 
accredited and in substantial compliance with the specified standards of 
an accreditation organization approved by the Director.
    (ii) Criteria for determining medical or psychological necessity of 
psychiatric and SUD partial hospitalization services. Partial 
hospitalization services will be considered necessary only if all of the 
following conditions are present:
    (A) The patient is suffering significant impairment from a mental 
disorder (as defined in Sec. 199.2) which interferes with age 
appropriate functioning or the patient is in need of rehabilitative 
services for the management of withdrawal symptoms from alcohol, 
sedative-hypnotics, opioids, or stimulants that require medically-
monitored ambulatory detoxification, with direct access to medical 
services and clinically intensive programming of rehabilitative care 
based on individual treatment plans.
    (B) The patient is unable to maintain himself or herself in the 
community, with appropriate support, at a sufficient level of 
functioning to permit an adequate course of therapy exclusively on an 
outpatient basis, to include outpatient treatment program, outpatient 
office visits, or intensive outpatient services (but is able, with 
appropriate support, to maintain a basic level of functioning to permit 
partial hospitalization services and presents no substantial imminent 
risk of harm to self or others). These patients require medical support; 
however, they do not require a 24-hour medical environment.
    (C) The patient is in need of crisis stabilization, acute symptom 
reduction, treatment of partially stabilized mental health disorders, or 
services as a transition from an inpatient program.
    (D) The admission into the partial hospitalization program is based 
on the development of an individualized diagnosis and treatment plan 
expected to be effective for that patient and permit treatment at a less 
intensive level.
    (iii) Services and supplies. The following services and supplies are 
included in the per diem rate approved for an authorized partial 
hospitalization program:
    (A) Board. Includes use of the partial hospital facilities such as 
food service,

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supervised therapeutically constructed recreational and social 
activities, and other general services as considered appropriate by the 
Director, or a designee.
    (B) Patient assessment. Includes the assessment of each individual 
accepted by the facility, and must, at a minimum, consist of a physical 
examination; psychiatric examination; psychological assessment; 
assessment of physiological, biological and cognitive processes; case 
management assessment; developmental assessment; family history and 
assessment; social history and assessment; educational or vocational 
history and assessment; environmental assessment; and recreational/
activities assessment. Assessments conducted within 30 days prior to 
admission to a partial program may be used if approved and deemed 
adequate to permit treatment planning by the partial hospital program.
    (C) Psychological testing. Treatment services. All services, 
supplies, equipment and space necessary to fulfill the requirements of 
each patient's individualized diagnosis and treatment plan. All mental 
health services must be provided by a TRICARE authorized individual 
professional provider of mental health services. [Exception: partial 
hospitalization programs that employ individuals with master's or 
doctoral level degrees in a mental health discipline who do not meet the 
licensure, certification, and experience requirements for a qualified 
mental health provider but are actively working toward licensure or 
certification, may provide services within the all-inclusive per diem 
rate, but such individuals must work under the clinical supervision of a 
fully qualified mental health provider employed by the partial 
hospitalization program.]
    (iv) Case management required. The facility must provide case 
management that helps to assure the patient appropriate living 
arrangements after treatment hours, transportation to and from the 
facility, arrangement of community based support services, referral of 
suspected child or elder abuse or domestic violence to the appropriate 
state agencies, and effective after care arrangements, at a minimum.
    (v) Educational services required. Programs treating children and 
adolescents must ensure the provision of a state certified educational 
component which assures that patients do not fall behind in educational 
placement while receiving partial hospital treatment. CHAMPUS will not 
fund the cost of educational services separately from the per diem rate. 
The hours devoted to education do not count toward the therapeutic 
intensive outpatient program or full day program.
    (vi) Family therapy required. The facility must ensure the provision 
of an active family therapy treatment component, which assures that each 
patient and family participate at least weekly in family therapy 
provided by the institution and rendered by a TRICARE authorized 
individual professional provider of mental health services. There is no 
acceptable substitute for family therapy. An exception to this 
requirement may be granted on a case-by-case basis by the Clinical 
Director, or designee, only if family therapy is clinically 
contraindicated.
    (vii) Professional mental health benefits. Professional mental 
health benefits are billed separately from the partial hospitalization 
per diem rate only when rendered by an attending, TRICARE authorized 
mental health professional who is not an employee of, or under contract 
with, the partial hospitalization program for purposes of providing 
clinical patient care.
    (viii) Non-mental health related medical services. Separate billing 
will be allowed for otherwise covered, non-mental health related medical 
services.
    (10) Intensive psychiatric and substance use disorder outpatient 
services--(i) In general. Intensive outpatient services are those 
services furnished by a TRICARE authorized intensive outpatient program 
and qualified mental health provider(s) for the active treatment of a 
mental disorder, to include substance use disorder.
    (ii) Criteria for determining medical or psychological necessity of 
intensive outpatient services. In determining the medical or 
psychological necessity of intensive outpatient services, the evaluation 
conducted by the Director, or

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designee, shall consider the appropriate level of care, based on the 
patient's clinical needs and characteristics matched to a service's 
structure and intensity. In addition to the criteria set for this 
paragraph (b)(10) of this section, additional evaluation standards, 
consistent with such criteria, may be adopted by the Director, or 
designee. Treatment in an intensive outpatient setting shall not be 
considered necessary unless the patient requires care that is more 
intensive than an outpatient treatment program or outpatient office 
visits and less intensive than inpatient psychiatric care or a partial 
hospital program. Intensive outpatient services will be considered 
necessary only if the following conditions are present:
    (A) The patient is suffering significant impairment from a mental 
disorder, to include a substance use disorder (as defined in Sec. 
199.2), which interferes with age appropriate functioning. Patients 
receiving a higher intensity of treatment may be experiencing moderate 
to severe instability, exacerbation of severe/persistent disorder, or 
dangerousness with some risk of confinement. Patients receiving a lower 
intensity of treatment may be experiencing mild instability with limited 
dangerousness and low risk for confinement.
    (B) The patient is unable to maintain himself or herself in the 
community, with appropriate support, at a sufficient level of 
functioning to permit an adequate course of therapy exclusively in an 
outpatient treatment program or an outpatient office basis (but is able, 
with appropriate support, to maintain a basic level of functioning to 
permit a level of intensive outpatient treatment and presents no 
substantial imminent risk of harm to self or others).
    (C) The patient is in need of stabilization, symptom reduction, and 
prevention of relapse for chronic mental illness. The goal of 
maintenance of his or her functioning within the community cannot be met 
by outpatient office visits, but requires active treatment in a stable, 
staff-supported environment;
    (D) The admission into the intensive outpatient program is based on 
the development of an individualized diagnosis and treatment plan 
expected to be effective for that patient and permit treatment at a less 
intensive level.
    (iii) Services and supplies. The following services and supplies are 
included in the per diem rate approved for an authorized intensive 
outpatient program.
    (A) Patient assessment. Includes the assessment of each individual 
accepted by the facility.
    (B) Treatment services. All services, supplies, equipment, and space 
necessary to fulfill the requirements of each patient's individualized 
diagnosis and treatment plan. All mental health services must be 
provided by a TRICARE authorized individual qualified mental health 
provider. [Exception: Intensive outpatient programs that employ 
individuals with master's or doctoral level degrees in a mental health 
discipline who do not meet the licensure, certification, and experience 
requirements for a qualified mental health provider but are actively 
working toward licensure or certification, may provide services within 
the all-inclusive per diem rate but such individuals must work under the 
clinical supervision of a fully qualified mental health provider 
employed by the facility.]
    (iv) Case management. When appropriate, and with the consent of the 
person served, the facility should coordinate the care, treatment, or 
services, including providing coordinated treatment with other services.
    (v) Professional mental health benefits. Professional mental health 
benefits are billed separately from the intensive outpatient per diem 
rate only when rendered by an attending, TRICARE authorized qualified 
mental health provider who is not an employee of, or under contract 
with, the program for purposes of providing clinical patient care.
    (vi) Non-mental health related medical services. Separate billing 
will be allowed for otherwise covered, non-mental health related medical 
services.
    (11) Opioid treatment programs--(i) In general. Outpatient treatment 
and management of withdrawal symptoms for substance use disorder 
provided at a TRICARE authorized opioid treatment program are covered. 
If the patient is medically in need of management of

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withdrawal symptoms, but does not require the personnel or facilities of 
a general hospital setting, services for management of withdrawal 
symptoms are covered. The medical necessity for the management of 
withdrawal symptoms must be documented. Any services to manage 
withdrawal symptoms provided by the opioid treatment program must be 
under general medical supervision.
    (ii) Criteria for determining medical or psychological necessity of 
an opioid treatment program are set forth in 42 CFR part 8.
    (iii) Services and supplies. The following services and supplies are 
included in the reimbursement approved for an authorized opioid 
treatment program.
    (A) Patient assessment. Includes the assessment of each individual 
accepted by the facility.
    (B) Treatment services. All services, supplies, equipment, and space 
necessary to fulfill the requirements of each patient's individualized 
diagnosis and treatment plan. All mental health services must be 
provided by a TRICARE authorized individual professional provider of 
mental health services. [Exception: opioid treatment programs that 
employ individuals with degrees in a mental health discipline who do not 
meet the licensure, certification, and experience requirements for a 
qualified mental health provider but work under the clinical supervision 
of a fully qualified mental health provider employed by the facility.]
    (iv) Case management. Care, treatment, or services should be 
coordinated among providers and between settings, independent of whether 
they are provided directly by the organization or by an organization or 
by an outside source, so that the individual's needs are addressed in a 
seamless, synchronized, and timely manner.
    (c) Professional services benefit--(1) General. Benefits may be 
extended for those covered services described in paragraph (c) of this 
section that are provided in accordance with good medical practice and 
established standards of quality by physicians or other authorized 
individual professional providers, as set forth in Sec. 199.6 of this 
part. Such benefits are subject to all applicable definitions, 
conditions, exceptions, limitations, or exclusions as maybe otherwise 
set forth in this or other Sections of this part. Except as otherwise 
specifically authorized, to be considered for benefits under paragraph 
(c) of this section, the described services must be rendered by a 
physician, or prescribed, ordered, and referred medically by a physician 
to other authorized individual professional providers. Further, except 
under specifically defined circumstances, there should be an attending 
physician in any episode of care. (For example, certain services of a 
clinical psychologist are exempt from this requirement. For these 
exceptions, refer to Sec. 199.6.)
    (i) Billing practices. To be considered for benefits under paragraph 
(c) of this section, covered professional services must be performed 
personally by the physician or other authorized individual professional 
provider, who is other than a salaried or contractual staff member of a 
hospital or other authorized institution, and who ordinarily and 
customarily bills on a fee-for-service basis for professional services 
rendered. Such billings must be itemized fully and be sufficiently 
descriptive to permit CHAMPUS to determine whether benefits are 
authorized by this part. See paragraph (c)(3)(xiii) of this section for 
the requirements regarding the special circumstances for teaching 
physicians. For continuing professional care, claims should be submitted 
to the appropriate CHAMPUS fiscal intermediary at least every 30 days 
either by the beneficiary or sponsor, or directly by the physician or 
other authorized individual professional provider on behalf of a 
beneficiary (refer to Sec. 199.7).
    (ii) Services must be related. Covered professional services must be 
rendered in connection with and directly related to a covered diagnosis 
or definitive set of symptoms requiring medically necessary treatment.
    (iii) Telehealth services. Health care services covered by TRICARE 
and provided through the use of telehealth modalities including 
telephone services for: telephonic office visits; telephonic 
consultations; electronic transmission of data or biotelemetry or remote 
physiologic monitoring services and

[[Page 123]]

supplies, are covered services to the same extent as if provided in 
person at the location of the patient if those services are medically 
necessary and appropriate for such modalities. The Director will 
establish special procedures for payment for such services. 
Additionally, where appropriate, in order to incentive the use of 
telehealth services, the Director may modify the otherwise applicable 
beneficiary cost-sharing requirements in paragraph (f) of this section 
which otherwise apply.
    (2) Covered services of physicians and other authorized profession 
providers.
    (i) Surgery. Surgery means operative procedures, including related 
preoperative and postoperative care; reduction of fractures and 
dislocations; injection and needling procedures of the joints; laser 
surgery of the eye; and the following procedures:

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

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

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

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

    (xv) [Reserved]
    (xvi) Routine eye examinations. Coverage for routine eye 
examinations is limited to dependents of active duty members, to one 
examination per calendar year per person, and to services rendered on or 
after October 1, 1984, except as provided under paragraph (c)(3)(xi) of 
this section.
    (3) Extent of professional benefits--
    (i) Multiple Surgery. In cases of multiple surgical procedures 
performed during the same operative session, benefits shall be extended 
as follows:
    (A) One hundred (100) percent of the CHAMPUS-determined allowable 
charge for the major surgical procedure (the procedure for which the 
greatest amount is payable under the applicable reimbursement method); 
and
    (B) Fifty (50) percent of the CHAMPUS-determined allowable charge 
for each of the other surgical procedures;
    (C) Except that:
    (1) If the multiple surgical procedures include an incidental 
procedure, no benefits shall be allowed for the incidental procedure.
    (2) If the multiple surgical procedures involve specific procedures 
identified by the Director, OCHAMPUS, benefits shall be limited as set 
forth in CHAMPUS instructions.

[[Page 124]]

    (ii) Different types of inpatient care, concurrent. If a beneficiary 
receives inpatient medical care during the same admission in which he or 
she also receives surgical care or maternity care, the beneficiary shall 
be entitled to the greater of the CHAMPUS-determined allowable charge 
for either the inpatient medical care or surgical or maternity care 
received, as the case may be, but not both; except that the provisions 
of this paragraph (c)(3)(ii) shall not apply if such inpatient medical 
care is for a diagnosed condition requiring inpatient medical care not 
related to the condition for which surgical care or maternity care is 
received, and is received from a physician other than the one rendering 
the surgical care or maternity care.

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

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

[[Page 125]]

consultation and surgery (performed by the same physician), benefits may 
be extended for the consultation, subject to review.
    (viii) Anesthesia administered by the attending physician. A 
separate benefit is not payable for anesthesia administered by the 
attending physician (surgeon or obstetrician) or dentist, or by the 
surgical, obstetrical, or dental assistant.
    (ix) Treatment of mental disorders, to include substance use 
disorder. In order to qualify for CHAMPUS mental health benefits, the 
patient must be diagnosed by a TRICARE authorized qualified mental 
health professional practicing within the scope of his or her license to 
be suffering from a mental disorder, as defined in Sec. 199.2
    (A) Covered diagnostic and therapeutic services. CHAMPUS benefits 
are payable for the following services when rendered in the diagnosis or 
treatment of a covered mental disorder by a TRICARE authorized qualified 
mental health provider practicing within the scope of his or her 
license. Qualified mental health providers are: Psychiatrists or other 
physicians; clinical psychologists, certified psychiatric nurse 
specialists, certified clinical social workers, certified marriage and 
family therapists, TRICARE certified mental health counselors, pastoral 
counselors under a physician's supervision, and supervised mental health 
counselors under a physician's supervision.
    (1) Individual psychotherapy, adult or child. A covered individual 
psychotherapy session is no more than 60 minutes in length. An 
individual psychotherapy session of up to 120 minutes in length is 
payable for crisis intervention.
    (2) Group psychotherapy. A covered group psychotherapy session is no 
more than 90 minutes in length.
    (3) Family or conjoint psychotherapy. A covered family or conjoint 
psychotherapy session is no more than 90 minutes in length. A family or 
conjoint psychotherapy session of up to 180 minutes in length is payable 
for crisis intervention.
    (4) Psychoanalysis. Psychoanalysis is covered when provided by a 
graduate or candidate of a psychoanalytic training institution 
recognized by the American Psychoanalytic Association and when 
preauthorized by the Director, or a designee.
    (5) Psychological testing and assessment. Psychological testing and 
assessment is covered when medically or psychologically necessary. 
Psychological testing and assessment performed as part of an assessment 
for academic placement are not covered.
    (6) Administration of psychotropic drugs. When prescribed by an 
authorized provider qualified by licensure to prescribe drugs.
    (7) Electroconvulsive treatment. When provided in accordance with 
guidelines issued by the Director.
    (8) Collateral visits. Covered collateral visits are those that are 
medically or psychologically necessary for the treatment of the patient.
    (9) Medication assisted treatment. Medication assisted treatment, 
combining pharmacotherapy and holistic care, to include provision in 
office-based opioid treatment by an authorized TRICARE provider, is 
covered. The practice of an individual physician in office-based 
treatment is regulated by the Department of Health and Human Services' 
42 CFR 8.12,the Center for Substance Abuse Treatment (CSAT), and the 
Drug Enforcement Administration (DEA), along with individual state and 
local regulations.
    (B) Therapeutic settings--(1) Outpatient psychotherapy. Outpatient 
psychotherapy generally is covered for individual, family, conjoint, 
collateral, and/or group sessions.
    (2) Inpatient psychotherapy. Coverage of inpatient psychotherapy is 
based on medical or psychological necessity for the services identified 
in the patient's treatment plan.
    (C) Covered ancillary therapies. Includes art, music, dance, 
occupational, and other ancillary therapies, when included by the 
attending provider in an approved inpatient, SUDRF, residential 
treatment, partial hospital, or intensive outpatient program treatment 
plan and under the clinical supervision of a qualified mental health 
professional. These ancillary therapies are not separately reimbursed 
professional services but are included within the institutional 
reimbursement.

[[Page 126]]

    (D) Review of claims for treatment of mental disorder. The Director 
shall establish and maintain procedures for review, including 
professional review, of the services provided for the treatment of 
mental disorders.
    (x) Physical and occupational therapy. Assessment and treatment 
services of a CHAMPUS-authorized physical or occupational therapist may 
be cost-shared when:
    (A) The services are prescribed and monitored by a physician, 
certified physician assistant, certified nurse practitioner or Doctor of 
Podiatric Medicine (Podiatrist) acting within the scope of their 
license.
    (B) The purpose of the prescription is to reduce the disabling 
effects of an illness, injury, or neuromuscular disorder; and
    (C) The prescribed treatment increases, stabilizes, or slows the 
deterioration of the beneficiary's ability to perform specified 
purposeful activity in the manner, or within the range considered 
normal, for a human being.
    (xi) Well-child care. Benefits routinely are covered for well-child 
care from birth to under six years of age. These periodic health 
examinations are designed for prevention, early detection and treatment 
of disease and consist of screening procedures, immunizations and risk 
counseling.
    (A) The following services are covered when required as a part of 
the specific well-child care program and when rendered by the attending 
pediatrician, family physician, certified nurse practitioner, or 
certified physician assistant.
    (1) Newborn examination, heredity and metabolic screening, and 
newborn circumcision.
    (2) Periodic health supervision visits, in accordance with American 
Academy of Pediatrics (AAP) guidelines, intended to promote the optimal 
health for infants and children to include the following services:
    (i) History and physical examination and mental health assessment.
    (ii) Vision, hearing, and dental screening.
    (iii) Developmental appraisal to include body measurement.
    (iv) Immunizations as recommenced by the Centers for Disease Control 
(CDC).
    (v) Pediatric risk assessment for lead exposure and blood lead level 
test.
    (vi) Tuberculosis screening.
    (vii) Blood pressure screening.
    (viii) Measurement of hemoglobin and hematocrit for anemia.
    (ix) Urinalysis.
    (x) Health guidance and counseling, including breastfeeding and 
nutrition counseling.
    (B) Additional services or visits required because of specific 
findings or because the particular circumstances of the individual case 
are covered if medically necessary and otherwise authorized for benefits 
under CHAMPUS.
    (C) The Deputy Assistant Secretary of Defense, Health Services 
Financing, will determine when such services are separately reimbursable 
apart from the health supervision visit.
    (xii) [Reserved]
    (xiii) Physicians in a teaching setting.
    (A) Teaching physicians.
    (1) General. The services of teaching physicians may be reimbursed 
on an allowable charge basis only when the teaching physician has 
established an attending physician relationship between the teaching 
physician and the patient or when the teaching physician provides 
distinct, identifiable, personal services (e.g., services rendered as a 
consultant, assistant surgeon, etc.). Attending physician services may 
include both direct patient care services or direct supervision of care 
provided by a physician in training. In order to be considered an 
attending physician, the teaching physician must:
    (i) Review the patient's history and the record of examinations and 
tests in the institution, and make frequent reviews of the patient's 
progress; and
    (ii) Personally examine the patient; and
    (iiii) Confirm or revise the diagnosis and determine the course of 
treatment to be followed; and
    (iv) Either perform the physician's services required by the patient 
or supervise the treatment so as to assure that appropriate services are 
provided by physicians in training and that the care meets a proper 
quality level; and

[[Page 127]]

    (v) Be present and ready to perform any service performed by an 
attending physician in a nonteaching setting when a major surgical 
procedure or a complex or dangerous medical procedure is performed; and
    (vi) Be personally responsible for the patient's care, at least 
throughout the period of hospitalization.
    (2) Direct supervision by an attending physician of care provided by 
physicians in training. Payment on the basis of allowable charges may be 
made for the professional services rendered to a beneficiary by his/her 
attending physician when the attending physician provides personal and 
identifiable direction to physicians in training who are participating 
in the care of the patient. It is not necessary that the attending 
physician be personally present for all services, but the attending 
physician must be on the provider's premises and available to provide 
immediate personal assistance and direction if needed.
    (3) Individual, personal services. A teaching physician may be 
reimbursed on an allowable charge basis for any individual, identifiable 
service rendered to a CHAMPUS beneficiary, so long as the service is a 
covered service and is normally reimbursed separately, and so long as 
the patient records substantiate the service.
    (4) Who may bill. The services of a teaching physician must be 
billed by the institutional provider when the physician is employed by 
the provider or a related entity or under a contract which provides for 
payment to the physician by the provider or a related entity. Where the 
teaching physician has no relationship with the provider (except for 
standard physician privileges to admit patients) and generally treats 
patients on a fee-for-service basis in the private sector, the teaching 
physician may submit claims under his/her own provider number.
    (B) Physicians in training. Physicians in training in an approved 
teaching program are considered to be ``students'' and may not be 
reimbursed directly by CHAMPUS for services rendered to a beneficiary 
when their services are provided as part of their employment (either 
salaried or contractual) by a hospital or other institutional provider. 
Services of physicians in training may be reimbursed on an allowable 
charge basis only if:
    (1) The physician in training is fully licensed to practice medicine 
by the state in which the services are performed, and
    (2) The services are rendered outside the scope and requirements of 
the approved training program to which the physician in training is 
assigned.
    (d) Other benefits--(1) General. Benefits may be extended for the 
allowable charge of those other covered services and supplies described 
in paragraph (d) of this section, which are provided in accordance with 
good medical practice and established standards of quality by those 
other authorized providers described in Sec. 199.6. Such benefits are 
subject to all applicable definitions, conditions, limitations, or 
exclusions as otherwise may be set forth in this or other chapters of 
this Regulation. To be considered for benefits under paragraph (d) of 
this section, the described services or supplies must be prescribed and 
ordered by a physician. Other authorized individual professional 
providers acting within their scope of licensure may also prescribe and 
order these services and supplies unless otherwise specified in 
paragraph (d) of this section.
    (2) Billing practices. To be considered for benefits under paragraph 
(d) of this section, covered services and supplies must be provided and 
billed for by an authorized provider as set forth in Sec. 199.6 of this 
part. Such billing must be itemized fully and described sufficiently, 
even when CHAMPUS payment is determined under the CHAMPUS DRG-based 
payment system, so that CHAMPUS can determine whether benefits are 
authorized by this part. Except for claims subject to the CHAMPUS DRG-
based payment system, whenever continuing charges are involved, claims 
should be submitted to the appropriate CHAMPUS fiscal intermediary at 
least every 30 days (monthly) either by the beneficiary or sponsor or 
directly by the provider. For claims subject to the CHAMPUS DRG-based 
payment system, claims may be submitted only after the beneficiary has 
been discharged or transferred from the hospital.

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    (3) Other covered services and supplies--(i) Blood. If whole blood 
or plasma (or its derivatives) are provided and billed for by an 
authorized institution in connection with covered treatment, benefits 
are extended as set forth in paragraph (b) of this section. If blood is 
billed for directly to a beneficiary, benefits may be extended under 
paragraph (d) in the same manner as a medical supply.
    (ii) Durable equipment--(A) Scope of benefit. (1) Durable equipment, 
which is for the specific use of the beneficiary and is ordered by an 
authorized individual professional provider listed in Sec. 
199.6(c)(3)(i), (ii) or (iii), acting within his or her scope of 
licensure shall be covered if the durable equipment meets the definition 
in Sec. 199.2 and--
    (i) Provides the medically appropriate level of performance and 
quality for the medical condition present and
    (ii) Is not otherwise excluded by this part.
    (2) Items that may be provided to a beneficiary as durable equipment 
include:
    (i) Durable medical equipment as defined in Sec. 199.2;
    (ii) Wheelchairs. A wheelchair, which is medically appropriate to 
provide basic mobility, including reasonable additional costs for 
medically appropriate modifications to accommodate a particular 
physiological or medical need, may be covered as durable equipment. An 
electric wheelchair, or TRICARE approved alternative to an electric 
wheelchair (e.g., scooter) may be provided in lieu of a manual 
wheelchair when it is medically indicated and appropriate to provide 
basic mobility. Luxury or deluxe wheelchairs, as described in paragraph 
(d)(3)(ii)(A)(3) of this section, include features beyond those required 
for basic mobility of a particular beneficiary are not authorized.
    (iii) Iron lungs.
    (iv) Hospital beds.
    (v) Cardiorespiratory monitors under conditions specified in 
paragraph (d)(3)(ii)(B) of this section.
    (3) Whether a prescribed item of durable equipment provides the 
medically appropriate level of performance and quality for the 
beneficiary's condition must be supported by adequate documentation. 
Luxury, deluxe, immaterial, or non- essential features, which increase 
the cost of the item relative to a similar item without those features, 
based on industry standards for a particular item at the time the 
equipment is prescribed or replaced for a beneficiary, are not 
authorized. Only the ``base'' or ``basic'' model of equipment (or more 
cost- effective alternative equipment) shall be covered, unless 
customization of the equipment, or any accessory or item of supply for 
any durable medical equipment, is essential, as determined by the 
Director (or designee), for--
    (i) Achieving therapeutic benefit for the patient;
    (ii) Making the equipment serviceable; or
    (iii) Otherwise assuring the proper functioning of the equipment.
    (B) Cardiorespiratory monitor exception. (1) When prescribed by a 
physician who is otherwise eligible as a CHAMPUS individual professional 
provider, or who is on active duty with a United States Uniformed 
Service, an electronic cardiorespiratory monitor, including technical 
support necessary for the proper use of the monitor, may be cost-shared 
as durable medical equipment when supervised by the prescribing 
physician for in-home use by:
    (i) An infant beneficiary who has had an apparent life-threatening 
event, as defined in guidelines issued by the Director, OCHAMPUS, or a 
designee, or
    (ii) An infant beneficiary who is a subsequent or multiple birth 
biological sibling of a victim of sudden infant death syndrome (SIDS), 
or
    (iii) An infant beneficiary whose birth weight was 1,500 grams or 
less, or
    (iv) An infant beneficiary who is a pre-term infant with pathologic 
apnea, as defined in guidelines issued by the Director, OCHAMPUS, or a 
designee, or
    (v) Any beneficiary who has a condition or suspected condition 
designated in guidelines issued by the Director, OCHAMPUS, or a 
designee, for which the in-home use of the cardiorespiratory monitor 
otherwise meets Basic Program requirements.
    (2) The following types of services and items may be cost-shared 
when

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provided in conjunction with an otherwise authorized cardiorespiratory 
monitor:
    (i) Trend-event recorder, including technical support necessary for 
the proper use of the recorder.
    (ii) Analysis of recorded physiological data associated with monitor 
alarms.
    (iii) Professional visits for services otherwise authorized by this 
part, and for family training on how to respond to an apparent life 
threatening event.
    (iv) Diagnostic testing otherwise authorized by this part.
    (C) Exclusions. Durable equipment, which is otherwise qualified as a 
benefit is excluded from coverage under the following circumstances:
    (1) Durable equipment for a beneficiary who is a patient in a type 
of facility that ordinarily provides the same type of durable equipment 
item to its patients at no additional charge in the usual course of 
providing its services.
    (2) Durable equipment, which is available to the beneficiary from a 
Uniformed Services Medical Treatment Facility.
    (D) Basis for reimbursement. (1) Durable equipment may be provided 
on a rental or purchase basis. Coverage of durable equipment will be 
based on the price most advantageous to the government taking into 
consideration the anticipated duration of the medically necessary need 
for the equipment and current price information for the type of item. 
The cost analysis must include a comparison of the total price of the 
item as a monthly rental charge, a lease-purchase price, and a lump-sum 
purchase price and a provision for the time value of money at the rate 
determined by the U.S. Department of Treasury. If a beneficiary wishes 
to obtain an item of durable equipment with deluxe, luxury, immaterial 
or non-essential features, the beneficiary may agree to accept TRICARE 
coverage limited to the allowable amount that would have otherwise been 
authorized for a similar item without those features. In that case, the 
TRICARE coverage is based upon the allowable amount for the kind of 
durable equipment normally used to meet the intended purpose (i.e., the 
standard item least costly). The provider shall not hold the beneficiary 
liable for deluxe, luxury, immaterial, or non- essential features that 
cannot be considered in determining the TRICARE allowable costs. 
However, the beneficiary shall be held liable if the provider has a 
specific agreement in writing from the beneficiary (or his or her 
representative) accepting liability for the itemized difference in costs 
of the durable equipment with deluxe, luxury, or immaterial features and 
the TRICARE allowable costs for an otherwise authorized item without 
such features.
    (2) In general, repairs of beneficiary owned durable equipment are 
covered when necessary to make the equipment serviceable and replacement 
of durable equipment is allowed when the durable equipment is not 
serviceable because of normal wear, accidental damage or when 
necessitated by a change in the beneficiary's condition. However, 
repairs of durable equipment damaged while using the equipment in a 
manner inconsistent with its common use, and replacement of lost or 
stolen rental durable equipment are excluded from coverage. In addition, 
repairs of deluxe, luxury, or immaterial features of durable equipment 
are excluded from coverage.
    (iii) Medical supplies and dressings (consumables)--(A) In general. 
In general, medical supplies and dressings (consumables) are those that 
do not withstand prolonged, repeated use. Such items must be related 
directly to an appropriate and verified covered medical condition of the 
specific beneficiary for whom the item was purchased and obtained from a 
medical supply company, a pharmacy, or authorized institutional 
provider. Examples of covered medical supplies and dressings are 
disposable syringes for a known diabetic, colostomy sets, irrigation 
sets, and elastic bandages. An external surgical garment specifically 
designed for use follow a mastectomy is considered a medical supply 
item.

    Note 1 to paragraph (d)(3)(iii)(A): Generally, the allowable charge 
of a medical supply item will be under $100. Any item over this amount 
must be reviewed to determine whether it would qualify as a DME item. If 
it is, in fact, a medical supply item and does not represent an 
excessive charge, it can be considered for benefits under paragraph 
(d)(3)(iii) of this section.


[[Page 130]]


    (B) Medically necessary food and medical equipment and supplies 
necessary to administer such food (other than durable medical equipment 
and supplies) when prescribed for dietary management of a covered 
disease or condition. (1) Medically necessary food, including a low 
protein modified food product or an amino acid preparation product, may 
be covered when:
    (i) Furnished pursuant to the prescription, order, or recommendation 
of a TRICARE authorized provider acting within the provider's scope of 
license/certificate of practice, for the dietary management of a covered 
disease or condition;
    (ii) Is a specifically formulated and processed product (as opposed 
to a naturally occurring foodstuff used in its natural state) for the 
partial or exclusive feeding of an individual by means of oral intake or 
enteral feeding by tube;
    (iii) Is intended for the dietary management of an individual who, 
because of therapeutic or chronic medical needs, has limited or impaired 
capacity to ingest, digest, absorb, or metabolize ordinary foodstuffs or 
certain nutrients, or who has other special medically determined 
nutrient requirements, the dietary management of which cannot be 
achieved by the modification of the normal diet alone;
    (iv) Is intended to be used under medical supervision, which may 
include in a home setting; and
    (v) Is intended only for an individual receiving active and ongoing 
medical supervision under which the individual requires medical care on 
a recurring basis for, among other things, instructions on the use of 
the food.
    (2) Medically necessary food does not include:
    (i) Food taken as part of an overall diet designed to reduce the 
risk of a disease or medical condition or as weight-loss products, even 
if the food is recommended by a physician or other health care 
professional;
    (ii) Food marketed as gluten-free for the management of celiac 
disease or non-celiac gluten sensitivity;
    (iii) Food marketed for the management of diabetes; or
    (iv) Such other products as the Director, Defense Health Agency 
determines appropriate.
    (3) Covered disease or condition under paragraph (d)(3)(iii)(B) of 
this section means:
    (i) Inborn errors of metabolism;
    (ii) Medical conditions of malabsorption;
    (iii) Pathologies of the alimentary tract or the gastrointestinal 
tract;
    (iv) A neurological or physiological condition; and
    (v) Such other diseases or conditions the Director, Defense Health 
Agency determines appropriate.
    (iv) Oxygen. Oxygen and equipment for its administration are 
covered. Benefits are limited to providing a tank unit at one location 
with oxygen limited to a 30-day supply at any one time. Repair and 
adjustment of CHAMPUS-purchased oxygen equipment also is covered.
    (v) Ambulance. Civilian ambulance service is covered when medically 
necessary in connection with otherwise covered services and supplies and 
a covered medical condition. For the purpose of TRICARE payment, 
ambulance service is an outpatient service (including in connection with 
maternity care) with the exception of otherwise covered transfers 
between hospitals which are cost-shared on an inpatient basis. Ambulance 
transfers from a hospital based emergency room to another hospital more 
capable of providing the required care will also be cost-shared on an 
inpatient basis.

    Note: The inpatient cost-sharing provisions for ambulance transfers 
only apply to otherwise covered transfers between hospitals, i.e., acute 
care, general, and special hospitals; psychiatric hospitals; and long-
term hospitals.

    (A) Ambulance service cannot be used instead of taxi service and is 
not payable when the patient's condition would have permitted use of 
regular private transportation; nor is it payable when transport or 
transfer of a patient is primarily for the purpose of having the patient 
nearer to home, family, friends, or personal physician. Except as 
described in paragraph (d)(3)(v)(C)(1) of this section transport must be 
to the closest appropriate facility by the least costly means.

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    (B) Vehicles such as medicabs or ambicabs function primarily as 
public passenger conveyances transporting patients to and from their 
medical appointments. No actual medical care is provided to the patients 
in transit. These types of vehicles do not qualify for benefits for the 
purpose of CHAMPUS payment.
    (C) Except as described in paragraph (d)(3)(v)(C)(1)(1) of this 
section, ambulance services by other than land vehicles (such as a boat 
or airplane) may be considered only when the pickup point is 
inaccessible by a land vehicle, or when great distance or other 
obstacles are involved in transporting the patient to the nearest 
hospital with appropriate facilities and the patient's medical condition 
warrants speedy admission or is such that transfer by other means is 
contraindicated.
    (1) Advanced life support air ambulance and certified advanced life 
support attendant are covered services for solid organ and stem cell 
transplant candidates.
    (2) Advanced life support air ambulance and certified advanced life 
support attendant shall be reimbursed subject to standard reimbursement 
methodologies.
    (vi) Drugs and medicines. Drugs and medicines that by United States 
law require a prescription are also referred to as ``legend drugs.'' 
Legend drugs are covered when prescribed by a physician or other 
authorized individual professional provider acting within the scope of 
the provider's license and ordered or prescribed in connection with an 
otherwise covered condition or treatment, and not otherwise excluded by 
TRICARE. This includes Rh immune globulin.
    (A) Drugs administered by a physician or other authorized individual 
professional provider as an integral part of a procedure covered under 
paragraph (b) or (c) of this section (such as chemotherapy) are not 
covered under this subparagraph inasmuch as the benefit for the 
institutional services or the professional services in connection with 
the procedure itself also includes the drug used.
    (B) CHAMPUS benefits may not be extended for drugs not approved by 
the U.S. Food and Drug Administration for commercial marketing. Drugs 
grandfathered by the Federal Food, Drug and Cosmetic Act of 1938 may be 
covered under CHAMPUS as if FDA approved.
    (C) Over-the-counter (OTC) drugs (drugs that by United States law do 
not require a prescription), in general, are not covered. However, 
insulin is covered for a known diabetic even in states that do not 
require a prescription for its purchase. In addition, OTC drugs used for 
smoking cessation are covered when all requirements under the TRICARE 
smoking cessation program are met as provided in paragraph (e)(30) of 
this section.
    (D) Medically necessary vitamins used for the management of a 
covered disease or condition pursuant to a prescription, order, or 
recommendation of a TRICARE authorized provider acting within the 
provider's scope of license/certificate of practice. For purposes of 
this paragraph (d)(3)(vi)(D), the term ``covered disease or condition'' 
means:
    (1) Inborn errors of metabolism;
    (2) Medical conditions of malabsorption;
    (3) Pathologies of the alimentary tract or the gastrointestinal 
tract;
    (4) A neurological or physiological condition;
    (5) Pregnancy in relation to prenatal vitamins, with the limitation 
the prenatal vitamins that require a prescription in the United States 
may be covered for prenatal care only;
    (6) Such other disease or conditions the Director, Defense Health 
Agency determines appropriate.
    (vii) Prosthetics, prosthetic devices, and prosthetic supplies, as 
determined by the Secretary of Defense to be necessary because of 
significant conditions resulting from trauma, congenital anomalies, or 
disease. Additionally, the following are covered:
    (A) Any accessory or item of supply that is used in conjunction with 
the device for the purpose of achieving therapeutic benefit and proper 
functioning;
    (B) Services necessary to train the recipient of the device in the 
use of the device;
    (C) Repair of the device for normal wear and tear or damage;
    (D) Replacement of the device if the device is lost or irreparably 
damaged

[[Page 132]]

or the cost of repair would exceed 60 percent of the cost of 
replacement.
    (viii) Orthopedic braces and appliances. The purchase of leg braces 
(including attached shoes), arm braces, back braces, and neck braces is 
covered, orthopedic shoes, arch supports, shoe inserts, and other 
supportive devices for the feet, including special-ordered, custom-made 
built-up shoes or regular shoes subsequently built up, are not covered.
    (ix) Diabetes Self-Management Training (DSMT). A training service or 
program that educates diabetic patients about the successful self-
management of diabetes. It includes the following criteria: Education 
about self-monitoring of blood glucose, diet, and exercise; an insulin 
treatment plan developed specifically for the patient who is insulin-
dependent; and motivates the patient to use the skills for self-
management. The DSMT service or program must be accredited by the 
American Diabetes Association.
    Coverage limitations on the provision of this benefit will be as 
determined by the Director, TRICARE Management Activity, or designee.
    (e) Special benefit information--(1) General. There are certain 
circumstances, conditions, or limitations that impact the extension of 
benefits and that require special emphasis and explanation. This 
paragraph (e) sets forth those benefits and limitations recognized to be 
in this category. The benefits and limitations herein described also are 
subject to all applicable definitions, conditions, limitations, 
exceptions, and exclusions as set forth in this or other sections of 
this part, except as otherwise may be provided specifically in this 
paragraph (e).
    (2) Abortion. The statute under which CHAMPUS operates prohibits 
payment for abortions with one single exception--where the life of the 
mother would be endangered if the fetus were carried to term. Covered 
abortion services are limited to medical services and supplies only. 
Physician certification is required attesting that the abortion was 
performed because the mother's life would be endangered if the fetus 
were carried to term. Abortions performed for suspected or confirmed 
fetal abnormality (e.g., anencephalic) or for mental health reasons 
(e.g., threatened suicide) do not fall within the exceptions permitted 
within the language of the statute and are not authorized for payment 
under CHAMPUS.

    Note: Covered abortion services are limited to medical services or 
supplies only for the single circumstance outlined above and do not 
include abortion counseling or referral fees. Payment is not allowed for 
any services involving preparation for, or normal followup to, a 
noncovered abortion. The Director, OCHAMPUS, or a designee, shall issue 
guidelines describing the policy on abortion.

    (3) Family planning. The scope of the CHAMPUS family planning 
benefit is as follows:
    (i) Birth control (such as contraception)--(A) Benefits provided. 
Benefits are available for services and supplies related to preventing 
conception, including the following:
    (1) Surgical inserting, removal, or replacement of intrauterine 
devices.
    (2) Measurement for, and purchase of, contraceptive diaphragms (and 
later remeasurement and replacement).
    (3) Prescription contraceptives.
    (4) Surgical sterilization (either male or female).
    (B) Exclusions. The family planning benefit does not include the 
following:
    (1) Prophylactics (condoms).
    (2) Spermicidal foams, jellies, and sprays not requiring a 
prescription.
    (3) Services and supplies related to noncoital reproductive 
technologies, including but not limited to artificial insemination 
(including any costs related to donors or semen banks), in-vitro 
fertilization and gamete intrafallopian transfer.
    (4) Reversal of a surgical sterilization procedure (male or female).
    (ii) Genetic testing. Genetic testing essentially is preventive 
rather than related to active medical treatment of an illness or injury. 
However, under the family planning benefit, genetic testing is covered 
when performed in certain high risk situations. For the purpose of 
CHAMPUS, genetic testing includes to detect developmental abnormalities 
as well as purely genetic defects.
    (A) Benefits provided. Benefits may be extended for genetic testing 
performed on a pregnant beneficiary under the

[[Page 133]]

following prescribed circumstances. The tests must be appropriate to the 
specific risk situation and must meet one of the following criteria:
    (1) The mother-to-be is 35 years old or older; or
    (2) The mother- or father-to-be has had a previous child born with a 
congenital abnormality; or
    (3) Either the mother- or father-to-be has a family history of 
congenital abnormalities; or
    (4) The mother-to-be contracted rubella during the first trimester 
of the pregnancy; or
    (5) Such other specific situations as may be determined by the 
Director, OCHAMPUS, or a designee, to fall within the intent of 
paragraph (e)(3)(ii) of this section.
    (B) Exclusions. It is emphasized that routine or demand genetic 
testing is not covered. Further, genetic testing does not include the 
following:
    (1) Tests performed to establish paternity of a child.
    (2) Tests to determine the sex of an unborn child.
    (4) [Reserved]
    (5) Transplants. (i) Organ transplants. Basic Program benefits are 
available for otherwise covered services or supplies in connection with 
an organ transplant procedure, provided such transplant procedure is in 
accordance with accepted professional medical standards and is not 
considered unproven.
    (A) General. (1) Benefits may be allowed for medically necessary 
services and supplies related to an organ transplant for:
    (i) Evaluation of potential candidate's suitability for an organ 
transplant, whether or not the patient is ultimately accepted as a 
candidate for transplant.
    (ii) Pre- and post-transplant inpatient hospital and outpatient 
services.
    (iii) Pre- and post-operative services of the transplant team.
    (iv) Blood and blood products.
    (v) FDA approved immunosuppression drugs to include off-label uses 
when determined to be medically necessary for the treatment of the 
condition for which it is administered, according to accepted standards 
of medical practice.
    (vi) Complications of the transplant procedure, including inpatient 
care, management of infection and rejection episodes.
    (vii) Periodic evaluation and assessment of the successfully 
transplanted patient.
    (viii) The donor acquisition team, including the costs of 
transportation to the location of the donor organ and transportation of 
the team and the donated organ to the location of the transplant center.
    (ix) The maintenance of the viability of the donor organ after all 
existing legal requirements for excision of the donor organ have been 
met.
    (2) TRICARE benefits are payable for recipient costs when the 
recipient of the transplant is a CHAMPUS beneficiary, whether or not the 
donor is a CHAMPUS beneficiary.
    (3) Donor costs are payable when:
    (i) Both the donor and recipient are CHAMPUS beneficiaries.
    (ii) The donor is a CHAMPUS beneficiary but the recipient is not.
    (iii) The donor is the sponsor and the recipient is a CHAMPUS 
beneficiary. (In such an event, donor costs are paid as a part of the 
beneficiary and recipient costs.)
    (iv) The donor is neither a CHAMPUS beneficiary nor a sponsor, if 
the recipient is a CHAMPUS beneficiary. (Again, in such an event, donor 
costs are paid as a part of the beneficiary and recipient costs.)
    (4) If the donor is not a CHAMPUS beneficiary, TRICARE benefits for 
donor costs are limited to those directly related to the transplant 
procedure itself and do not include any medical care costs related to 
other treatment of the donor, including complications.
    (5) TRICARE benefits will not be allowed for transportation of an 
organ donor.
    (B) [Reserved]
    (ii) Stem cell transplants. TRICARE benefits are payable for 
beneficiaries whose conditions are considered appropriate for stem cell 
transplant according to guidelines adopted by the Executive Director, 
TMA, or a designee.
    (6) Eyeglasses, spectacles, contact lenses, or other optical 
devices. Eyeglasses, spectacles, contact lenses, or

[[Page 134]]

other optical devices are excluded under the Basic Program except under 
very limited and specific circumstances.
    (i) Exception to general exclusion. Benefits for glasses and lenses 
may be extended only in connection with the following specified eye 
conditions and circumstances:
    (A) Eyeglasses or lenses that perform the function of the human 
lens, lost as a result of intraocular surgery or ocular injury or 
congenital absence.

    Note: Notwithstanding the general requirement for U.S. Food and Drug 
Administration approval of any surgical implant set forth in paragraph 
(d)(3)(vii) of this section, intraocular lenses are authorized under 
CHAMPUS if they are either approved for marketing by FDA or are subject 
to an investigational device exemption.

    (B) ``Pinhole'' glasses prescribed for use after surgery for 
detached retina.
    (C) Lenses prescribed as ``treatment'' instead of surgery for the 
following conditions:
    (1) Contract lenses used for treatment of infantile glaucoma.
    (2) Corneal or scleral lenses prescribed in connection with 
treatment of keratoconus.
    (3) Scleral lenses prescribed to retain moisture when normal tearing 
is not present or is inadequate.
    (4) Corneal or scleral lenses prescribed to reduce a corneal 
irregularity other than astigmatism.
    (ii) Limitations. The specified benefits are limited further to one 
set of lenses related to one of the qualifying eye conditions set forth 
in paragraph (e)(6)(i) of this section. If there is a prescription 
change requiring a new set of lenses (but still related to the 
qualifying eye condition), benefits may be extended for a second set of 
lenses, subject to specific medical review.
    (7) [Reserved]
    (8) Cosmetic, reconstructive, or plastic surgery. For the purposes 
of CHAMPUS, cosmetic, reconstructive, or plastic surgery is surgery that 
can be expected primarily to improve physical appearance or that is 
performed primarily for psychological purposes or that restores form, 
but does not correct or improve materially a bodily function.

    Note: If a surgical procedure primarily restores function, whether 
or not there is also a concomitant improvement in physical appearance, 
the surgical procedure does not fall within the provisions set forth in 
this paragraph (e)(8).

    (i) Limited benefits under CHAMPUS. Benefits under the Basic Program 
generally are not available for cosmetic, reconstructive, or plastic 
surgery. However, under certain limited circumstances, benefits for 
otherwise covered services and supplies may be provided in connection 
with cosmetic, reconstructive, or plastic surgery as follows:
    (A) Correction of a congenital anomaly; or
    (B) Restoration of body form following an accidental injury; or
    (C) Revision of disfiguring and extensive scars resulting from 
neoplastic surgery.
    (D) Reconstructive breast surgery following a medically necessary 
mastectomy performed for the treatment of carcinoma, severe fibrocystic 
disease, other nonmalignant tumors or traumatic injuries.
    (E) Penile implants and testicular prostheses for conditions 
resulting from organic origins (i.e., trauma, radical surgery, disease 
process, for correction of congenital anomaly, etc.). Also, penile 
implants for organic impotency.

    Note: Organic impotence is defined as that which can be reasonably 
expected to occur following certain diseases, surgical procedures, 
trauma, injury, or congenital malformation. Impotence does not become 
organic because of psychological or psychiatric reasons.

    (F) Generally, benefits are limited to those cosmetic, 
reconstructive, or plastic surgery procedures performed no later than 
December 31 of the year following the year in which the related 
accidental injury or surgical trauma occurred, except for authorized 
postmastectomy breast reconstruction for which there is no time 
limitation between mastectomy and reconstruction. Also, special 
consideration for exception will be given to cases involving children 
who may require a growth period.
    (ii) General exclusions. (A) For purposes of CHAMPUS, dental 
congenital anomalies such as absent tooth buds or malocclusion 
specifically are excluded.

[[Page 135]]

    (B) Cosmetic, reconstructive, or plastic surgery procedures 
performed primarily for psychological reasons or as a result of the 
aging process also are excluded.
    (C) Procedures performed for elective correction of minor 
dermatological blemishes and marks or minor anatomical anomalies also 
are excluded.
    (D) Any procedures related to sex gender changes, except as provided 
in paragraph (g)(29) of this section, are excluded.
    (iii) Noncovered surgery, all related services and supplies 
excluded. When it is determined that a cosmetic, reconstructive, or 
plastic surgery procedure does not qualify for CHAMPUS benefits, all 
related services and supplies are excluded, including any institutional 
costs.
    (iv) Example of noncovered cosmetic, reconstructive, or plastic 
surgery procedures. The following is a partial list of cosmetic, 
reconstructive, or plastic surgery procedures that do not qualify for 
benefits under CHAMPUS. This list is for example purposes only and is 
not to be construed as being all-inclusive.
    (A) Any procedure performed for personal reasons to improve the 
appearance of an obvious feature or part of the body that would be 
considered by an average observer to be normal and acceptable for the 
patient's age or ethnic or racial background.
    (B) Cosmetic, reconstructive, or plastic surgical procedures that 
are justified primarily on the basis of a psychological or psychiatric 
need.
    (C) Augmentation mammoplasties. Augmentation mammoplasties, except 
for breast reconstruction following a covered mastectomy and those 
specifically authorized in paragraph (e)(8)(i) of this section.
    (D) Face lifts and other procedures related to the aging process.
    (E) Reduction mammoplasties. Reduction mammoplasties (unless there 
is medical documentation of intractable pain, not amenable to other 
forms of treatment, resulting from large, pendulous breasts or unless 
performed as an integral part of an authorized breast reconstruction 
procedure under paragraph (e)(8)(i) of this section, including reduction 
of the collateral breast for purposes of ensuring breast symmetry)
    (F) Panniculectomy; body sculpture procedures.
    (G) Repair of sagging eyelids (without demonstrated and medically 
documented significant impairment of vision).
    (H) Rhinoplasties (without evidence of accidental injury occurring 
within the previous 6 months that resulted in significant obstruction of 
breathing).
    (I) Chemical peeling for facial wrinkles.
    (J) Dermabrasion of the face.
    (K) Elective correction of minor dermatological blemishes and marks 
or minor anatomical anomalies.
    (L) Revision of scars resulting from surgery or a disease process, 
except disfiguring and extensive scars resulting from neoplastic 
surgery.
    (M) Removal of tattoos.
    (N) Hair transplants.
    (O) Electrolysis.
    (P) [Reserved]
    (Q)) Penile implant procedure for psychological impotency or as 
related to sex gender changes, as prohibited by section 1079 of title 
10, United States Code.
    (R) Insertion of prosthetic testicles as related to sex gender 
changes, as prohibited by section 1079 of title 10, United States Code.
    (9) Care related to non-covered initial surgery or treatment. (i) 
Benefits are available for otherwise covered services and supplies 
required in the treatment of complications resulting from a non-covered 
incident of treatment (such as nonadjunctive dental care or cosmetic 
surgery) but only if the later complication represents a separate 
medical condition such as a systemic infection, cardiac arrest, and 
acute drug reaction. Benefits may not be extended for any later care or 
a procedure related to the complication that essentially is similar to 
the initial non-covered care. Examples of complications similar to the 
initial episode of care (and thus not covered) would be repair of facial 
scarring resulting from dermabrasion for acne.
    (ii) Benefits are available for otherwise covered services and 
supplies required in the treatment of complications (unfortunate 
sequelae) and any necessary follow-on care resulting from a non-covered 
incident of treatment

[[Page 136]]

provided in an MTF, when the initial non-covered service has been 
authorized by the MTF Commander and the MTF is unable to provide the 
necessary treatment of the complications or required follow-on care, 
according to the guidelines adopted by the Director, DHA, or a designee.
    (iii) Benefits are available for otherwise covered services and 
supplies required in the treatment of complications (unfortunate 
sequelae) and any necessary follow-on care resulting from a non-covered 
incident of treatment provided in the private sector pursuant to a 
properly granted waiver under Sec. 199.16(f). The Director, DHA, or 
designee, shall issue guidelines for implementing this provision.
    (10) Dental. TRICARE/CHAMPUS does not include a dental benefit. 
However, in connection with dental treatment for patients with 
developmental, mental, or physical disabilities or for pediatric 
patients age 5 or under, only institutional and anesthesia services may 
be provided as a benefit. Under very limited circumstances, benefits are 
available for dental services and supplies when the dental services are 
adjunctive to otherwise covered medical treatment.
    (i) Adjunctive dental care: Limited. Adjunctive dental care is 
limited to those services and supplies provided under the following 
conditions:
    (A) Dental care which is medically necessary in the treatment of an 
otherwise covered medical (not dental) condition, is an integral part of 
the treatment of such medical condition and is essential to the control 
of the primary medical condition. The following is a list of conditions 
for which CHAMPUS benefits are payable under this provision:
    (1) Intraoral abscesses which extend beyond the dental alveolus.
    (2) Extraoral abscesses.
    (3) Cellulitis and osteitis which is clearly exacerbating and 
directly affecting a medical condition currently under treatment.
    (4) Removal of teeth and tooth fragments in order to treat and 
repair facial trauma resulting from an accidental injury.
    (5) Myofacial Pain Dysfunction Syndrome.
    (6) Total or complete ankyloglossia.
    (7) Adjunctive dental and orthodontic support for cleft palate.
    (8) The prosthetic replacement of either the maxilla or the mandible 
due to the reduction of body tissues associated with traumatic injury 
(e.g., impact, gun shot wound), in addition to services related to 
treating neoplasms or iatrogenic dental trauma.

    Note: The test of whether dental trauma is covered is whether the 
trauma is solely dental trauma. Dental trauma, in order to be covered, 
must be related to, and an integral part of medical trauma; or a result 
of medically necessary treatment of an injury or disease.

    (B) Dental care required in preparation for medical treatment of a 
disease or disorder or required as the result of dental trauma caused by 
the medically necessary treatment of an injury or disease (iatrogenic).
    (1) Necessary dental care including prophylaxis and extractions when 
performed in preparation for or as a result of in-line radiation therapy 
for oral or facial cancer.
    (2) Treatment of gingival hyperplasia, with or without periodontal 
disease, as a direct result of prolonged therapy with Dilantin 
(diphenylhydantoin) or related compounds.
    (C) Dental care is limited to the above and similar conditions 
specifically prescribed by the Director, OCHAMPUS, as meeting the 
requirements for coverage under the provisions of this section.
    (ii) General exclusions. (A) Dental care which is routine, 
preventative, restorative, prosthodontic, periodontic or emergency does 
not qualify as adjunctive dental care for the purposes of CHAMPUS except 
when performed in preparation for or as a result of dental trauma caused 
by medically necessary treatment of an injury or disease.
    (B) The adding or modifying of bridgework and dentures.
    (C) Orthodontia, except when directly related to and an integral 
part of the medical or surgical correction of a cleft palate or when 
required in preparation for, or as a result of, trauma to the teeth and 
supporting structures caused by medically necessary treatment of an 
injury or disease.

[[Page 137]]

    (iii) Preauthorization required. In order to be covered, adjunctive 
dental care requires preauthorization from the Director, TRICARE 
Management Activity, or a designee, in accordance with paragraph (a)(12) 
of this section. When adjunctive dental care involves a medical (not 
dental) emergency (such as facial injuries resulting from an accident), 
the requirement for preauthorization is waived. Such waiver, however, is 
limited to the essential adjunctive dental care related to the medical 
condition requiring the immediate emergency treatment. A complete 
explanation, with supporting medical documentation, must be submitted 
with claims for emergency adjunctive dental care.
    (iv) Covered oral surgery. Notwithstanding the above limitations on 
dental care, there are certain oral surgical procedures that are 
performed by both physicians and dentists, and that are essentially 
medical rather than dental care. For the purposes of CHAMPUS, the 
following procedures, whether performed by a physician or dentist, are 
considered to be in this category and benefits may be extended for 
otherwise covered services and supplies without preauthorization:
    (A) Excision of tumors and cysts of the jaws, cheeks, lips, tongue, 
and roof and floor of the mouth, when such conditions require a 
pathological (histological) examination.
    (B) Surgical procedures required to correct accidental injuries of 
the jaws, cheeks, lips, tongue, and roof and floor of the mouth.
    (C) Treatment of oral or facial cancer.
    (D) Treatment of fractures of facial bones.
    (E) External (extra-oral) incision and drainage of cellulitis.
    (F) Surgery of accessory sinuses, salivary glands, or ducts.
    (G) Reduction of dislocations and the excision of the 
temporomandibular joints, when surgery is a necessary part of the 
reduction.
    (H) Any oral surgical procedure that falls within the cosmetic, 
reconstructive, or plastic surgery definition is subject to the 
limitations and requirements set forth in paragraph (e)(8) of this 
section.

    Note: Extraction of unerupted or partially erupted, malposed or 
impacted teeth, with or without the attached follicular or development 
tissues, is not a covered oral surgery procedure except when the care is 
indicated in preparation for medical treatment of a disease or disorder 
or required as a result of dental trauma caused by the necessary medical 
treatment of an injury or illness. Surgical preparation of the mouth for 
dentures is not covered by CHAMPUS.

    (v) Inpatient hospital stay in connection with non-adjunctive, 
noncovered dental care. Institutional benefits specified in paragraph 
(b) of this section may be extended for inpatient hospital stays related 
to noncovered, nonadjunctive dental care when such inpatient stay is 
medically necessary to safeguard the life of the patient from the 
effects of dentistry because of the existence of a specific and serious 
nondental organic impairment currently under active treatment. 
(Hemophilia is an example of a condition that could be considered a 
serious nondental impairment.) Preauthorization by the Director, 
OCHAMPUS, or a designee, is required for such inpatient stays to be 
covered in the same manner as required for adjunctive dental care 
described in paragraph (e)(10)(iii) of this section. Regardless of 
whether or not the preauthorization request for the hospital admission 
is approved and thus qualifies for institutional benefits, the 
professional service related to the nonadjunctive dental care is not 
covered.
    (vi) Anesthesia and institutional costs for dental care for children 
and certain other patients. Institutional benefits specified in 
paragraph (b) of this section may be extended for hospital and in-out 
surgery settings related to noncovered, nonadjunctive dental care when 
such outpatient care or inpatient stay is in conjunction with dental 
treatment for patients with developmental, mental, or physical 
disabilities or for pediatric patients age 5 or under. For these 
patients, anesthesia services will be limited to the administration of 
general anesthesia only. Patients with developmental, mental, or 
physical disabilities are those patients with conditions that prohibit 
dental treatment in a safe and effective manner. Therefore, it is 
medically or psychologically necessary for these patients to require

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general anesthesia for dental treatment. Patients with physical 
disabilities include those patients having disabilities as defined in 
Sec. 199.2 as a serious physical disability. Preauthorization by the 
Director, TRICARE Management Activity, or a designee, is required for 
such outpatient care or inpatient stays to be covered in the same manner 
as required for adjunctive dental care described in paragraph 
(e)(10)(iii) of this section. Regardless of whether or not the 
preauthorization request for outpatient care or hospital admission is 
approved and thus qualifies for institutional benefits, the professional 
service related to the nonadjunctive dental care is not covered, with 
the exception of coverage for anesthesia services.
    (11) Drug abuse. Under the Basic Program, benefits may be extended 
for medically necessary prescription drugs required in the treatment of 
an illness or injury or in connection with maternity care (refer to 
paragraph (d) of this section). However, TRICARE benefits cannot be 
authorized to support or maintain an existing or potential drug abuse 
situation whether or not the drugs (under other circumstances) are 
eligible for benefit consideration and whether or not obtained by legal 
means. Drugs, including the substitution of a therapeutic drug with 
addictive potential for a drug of addiction, prescribed to beneficiaries 
undergoing medically supervised treatment for a substance use disorder 
as authorized under paragraphs (b) and (c) of this section are not 
considered to be in support of, or to maintain, an existing or potential 
drug abuse situation and are allowed. The Director may prescribe 
appropriate policies to implement this prescription drug benefit for 
those undergoing medically supervised treatment for a substance use 
disorder.
    (i) Limitations on who can prescribe drugs. CHAMPUS benefits are not 
available for any drugs prescribed by a member of the beneficiary's 
family or by a nonfamily member residing in the same household with the 
beneficiary or sponsor.
    (ii) [Reserved]
    (iii) Kinds of prescription drugs that are monitored carefully by 
CHAMPUS for possible abuse situations--(A) Narcotics. Examples are 
Morphine and Demerol.
    (B) Nonnarcotic analgesics. Examples are Talwin and Darvon.
    (C) Tranquilizers. Examples are Valium, Librium, and Meprobamate.
    (D) Barbiturates. Examples are Seconal and Nembuttal.
    (E) Nonbarbituate hypnotics. Examples are Doriden and Chloral 
Hydrate.
    (F) Stimulants. Examples are amphetamines.
    (iv) CHAMPUS fiscal intermediary responsibilities. CHAMPUS fiscal 
intermediaries are responsible for implementing utilization control and 
quality assurance procedures designed to identify possible drug abuse 
situations. The CHAMPUS fiscal intermediary is directed to screen all 
drug claims for potential overutilization and irrational prescribing of 
drugs, and to subject any such cases to extensive review to establish 
the necessity for the drugs and their appropriateness on the basis of 
diagnosis or definitive symptoms.
    (A) When a possible drug abuse situation is identified, all claims 
for drugs for that specific beneficiary or provider will be suspended 
pending the results of a review.
    (B) If the review determines that a drug abuse situation does in 
fact exist, all drug claims held in suspense will be denied.
    (C) If the record indicates previously paid drug benefits, the prior 
claims for that beneficiary or provider will be reopened and the 
circumstances involved reviewed to determine whether or not drug abuse 
also existed at the time the earlier claims were adjudicated. If drug 
abuse is later ascertained, benefit payments made previously will be 
considered to have been extended in error and the amounts so paid 
recouped.
    (D) Inpatient stays primarily for the purpose of obtaining drugs and 
any other services and supplies related to drug abuse also are excluded.
    (v) Unethical or illegal provider practices related to drugs. Any 
such investigation into a possible drug abuse that uncovers unethical or 
illegal drug dispensing practices on the part of an institution, a 
pharmacy, or physician will be referred to the professional or 
investigative agency having jurisdiction. CHAMPUS fiscal intermediaries

[[Page 139]]

are directed to withhold payment of all CHAMPUS claims for services and 
supplies rendered by a provider under active investigation for possible 
unethical or illegal drug dispensing activities.
    (vi) Detoxification. The above monitoring and control of drug abuse 
situations shall in no way be construed to deny otherwise covered 
medical services and supplies related to drug detoxification (including 
newborn, addicted infants) when medical supervision is required.
    (12) [Reserved]
    (13) Domiciliary care. The statute under which CHAMPUS operates also 
specifically excludes domiciliary care (refer to Sec. 199.2 of this 
part for the definition of ``Domiciliary Care'').
    (i) Examples of domiciliary care situations. The following are 
examples of domiciliary care for which CHAMPUS benefits are not payable.
    (A) Home care is not available. Institutionalization primarily 
because parents work, or extension of a hospital stay beyond what is 
medically necessary because the patient lives alone, are examples of 
domiciliary care provided because there is no other family member or 
other person available in the home.
    (B) Home care is not suitable. Institutionalization of a child 
because a parent (or parents) is unable to provide a safe and nurturing 
environment due to a mental or substance use disorder, or because 
someone in the home has a contagious disease, are examples of why 
domiciliary care is being provided because the home setting is 
unsuitable.
    (C) Family unwilling to care for a person in the home. A child who 
is difficult to manage may be placed in an institution, not because 
institutional care is medically necessary, but because the family does 
not want to handle him or her in the home. Such institutionalization 
would represent domiciliary care, that is, the family being unwilling to 
assume responsibility for the child.
    (ii) Benefits available in connection with a domiciliary care case. 
Should the beneficiary receive otherwise covered medical services or 
supplies while also being in a domiciliary care situation, CHAMPUS 
benefits are payable for those medical services or supplies, or both, in 
the same manner as though the beneficiary resided in his or her own 
home. Such benefits would be cost-shared as though rendered to an 
outpatient.
    (iii) General exclusion. Domiciliary care is institutionalization 
essentially to provide a substitute home--not because it is medically 
necessary for the beneficiary to be in the institution (although there 
may be conditions present that have contributed to the fact that 
domiciliary care is being rendered). CHAMPUS benefits are not payable 
for any costs or charges related to the provision of domiciliary care. 
While a substitute home or assistance may be necessary for the 
beneficiary, domiciliary care does not represent the kind of care for 
which CHAMPUS benefits can be provided.
    (14) CT scanning--(i) Approved CT scan services. Benefits may be 
extended for medically necessary CT scans of the head or other 
anatomical regions of the body when all of the following conditions are 
met:
    (A) The patient is referred for the diagnostic procedure by a 
physician.
    (B) The CT scan procedure is consistent with the preliminary 
diagnosis or symptoms.
    (C) Other noninvasive and less costly means of diagnosis have been 
attempted or are not appropriate.
    (D) The CT scan equipment is licensed or registered by the 
appropriate state agency responsible for licensing or registering 
medical equipment that emits ionizing radiation.
    (E) The CT scan equipment is operated under the general supervision 
and direction of a physician.
    (F) The results of the CT scan diagnostic procedure are interpreted 
by a physician.
    (ii) Review guidelines and criteria. The Director, OCHAMPUS, or a 
designee, will issue specific guidelines and criteria for CHAMPUS 
coverage of medically necessary head and body part CT scans.
    (15) Morbid obesity. The TRICARE morbid obesity benefit is limited 
to those bariatric surgical procedures for which the safety and efficacy 
has been proven comparable or superior to conventional therapies and is 
consistent with the generally accepted norms for

[[Page 140]]

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

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

    (ii) Treatment of complications. (A) Payment may be extended for 
repeat bariatric surgery when medically necessary to correct or treat 
complications from the initial covered bariatric surgery (a takedown). 
For instance, the surgeon in many cases will do a gastric bypass or 
gastroplasty to help the patient avoid regaining the weight that was 
lost. In this situation, payment is authorized even though the patient's 
condition technically may not meet the definition of morbid obesity 
because of the weight that was already lost following the initial 
surgery.
    (B) Payment is authorized for otherwise covered medical services and 
supplies directly related to complications of obesity when such services 
and supplies are an integral and necessary part of the course of 
treatment that was aggravated by the obesity.
    (iii) Exclusions. CHAMPUS payment may not be extended for weight 
control services, weight control/loss programs, dietary regimens and 
supplements, appetite suppressants and other medications; food or food 
supplements, exercise and exercise programs, or other programs and 
equipment that are primarily intended to control weight or for the 
purpose of weight reduction, regardless of the existence of co-morbid 
conditions.
    (16) Maternity care. (i) Benefit. The CHAMPUS Basic Program may 
share the cost of medically necessary services and supplies associated 
with maternity care which are not otherwise excluded by this part.
    (ii) Cost-share. Maternity care cost-share shall be determined as 
follows:
    (A) Inpatient cost-share formula applies to maternity care ending in 
childbirth in, or on the way to, a hospital inpatient childbirth unit, 
and for maternity care ending in a non-birth outcome not otherwise 
excluded by this part.
    (B) Ambulatory surgery cost-share formula applies to maternity care 
ending in childbirth in, or on the way to, a birthing center to which 
the beneficiary is admitted and from which the beneficiary has received 
prenatal care, or a hospital-based outpatient birthing room.
    (C) Outpatient cost-share formula applies to maternity care which 
terminates in a planned childbirth at home.
    (D) Otherwise covered medical services and supplies directly related 
to ``Complications of pregnancy,'' as defined in Sec. 199.2 of this 
part, will be cost-shared on the same basis as the related maternity 
care for a period not to exceed 42 days following termination of the 
pregnancy and thereafter cost-shared on the basis of the inpatient or 
outpatient status of the beneficiary when medically necessary services 
and supplies are received.
    (17) Biofeedback Therapy. Biofeedback therapy is a technique by 
which a person is taught to exercise control over a physiologic process 
occurring within the body. By using modern biomedical instruments the 
patient learns how a specific physiologic system within his body 
operates and how to modify the performance of this particular system.
    (i) Benefits Provided. CHAMPUS benefits are payable for services and 
supplies in connection with electrothermal, electromyograph and

[[Page 141]]

electrodermal biofeedback therapy when there is documentation that the 
patient has undergone an appropriate medical evaluation, that their 
present condition is not responding to or no longer responds to other 
forms of conventional treatment, and only when provided as treatment for 
the following conditions:
    (A) Adjunctive treatment for Raynaud's Syndrome.
    (B) Adjunctive treatment for muscle re-education of specific muscle 
groups or for treating pathological muscle abnormalities of spasticity, 
or incapacitating muscle spasm or weakness.
    (ii) Limitations. Payable benefits include initial intake 
evaluation. Treatment following the initial intake evaluation is limited 
to a maximum of 20 inpatient and outpatient biofeedback treatments per 
calendar year.
    (iii) Exclusions. Benefits are excluded for biofeedback therapy for 
the treatment of ordinary muscle tension states or for psychosomatic 
conditions. Benefits are also excluded for the rental or purchase of 
biofeedback equipment.
    (iv) Provider Requirements. A provider of biofeedback therapy must 
be a CHAMPUS-authorized provider. (Refer to Sec. 199.6, ``Authorized 
Providers). If biofeedback treatment is provided by other than a 
physician, the patient must be referred by a physician.
    (v) Implementation Guidelines. The Director of OCHAMPUS shall issue 
guidelines as are necessary to implement the provision of this 
paragraph.
    (18) Cardiac rehabilitation. Cardiac rehabilitation is the process 
by which individuals are restored to their optimal physical, medical, 
and psychological status, after a cardiac event. Cardiac rehabilitation 
is often divided into three phases. Phase I begins during inpatient 
hospitalization and is managed by the patient's personal physician. 
Phase II is a medically supervised outpatient program which begins 
following discharge. Phase III is a lifetime maintenance program 
emphasizing continuation of physical fitness with periodic followup. 
Each phase includes an exercise component, patient education, and risk 
factor modification. There may be considerable variation in program 
components, intensity, and duration.
    (i) Benefits Provided. CHAMPUS benefits are available on an 
inpatient or outpatient basis for services and supplies provided in 
connection with a cardiac rehabilitation program when ordered by a 
physician and provided as treatment for patients who have experienced 
the following cardiac events within the preceding twelve (12) months:
    (A) Myocardial Infarction.
    (B) Coronary Artery Bypass Graft.
    (C) Coronary Angioplasty.
    (D) Percutaneous Transluminal Coronary Angioplasty
    (E) Chronic Stable Angina (see limitations below).
    (F) Heart valve surgery.
    (G) Heart or Heart-lung Transplantation.
    (ii) Limitations. Payable benefits include separate allowance for 
the initial evaluation and testing. Outpatient treatment following the 
initial intake evaluation and testing is limited to a maximum of thirty-
six (36) sessions per cardiac event, usually provided 3 sessions per 
week for twelve (12) weeks. Patients diagnosed with chronic stable 
angina are limited to one treatment episode (36 sessions) in a calendar 
year.
    (iii) Exclusions. Phase III cardiac rehabilitation lifetime 
maintenance programs performed at home or in medically unsupervised 
settings are not covered.
    (iv) Providers. A provider of cardiac rehabilitation services must 
be a TRICARE authorized hospital (see Sec. 199.6 (b)(4)(i)) or a 
freestanding cardiac rehabilitation facility that meets the requirements 
of Sec. 199.6 (f). All cardiac rehabilitation services must be ordered 
by a physician.
    (v) Payment. Payment for outpatient treatment will be based on an 
all inclusive allowable charge per session. Inpatient treatment will be 
paid based upon the reimbursement system in place for the hospital where 
the services are rendered.
    (vi) Implementation Guidelines. The Director of OCHAMPUS shall issue 
guidelines as are necessary to implement the provisions of this 
paragraph.
    (19) Hospice care. Hospice care is a program which provides an 
integrated set of services and supplies designed to care for the 
terminally ill. This type of

[[Page 142]]

care emphasizes palliative care and supportive services, such as pain 
control and home care, rather than cure-oriented services provided in 
institutions that are otherwise the primary focus under CHAMPUS. The 
benefit provides coverage for a humane and sensible approach to care 
during the last days of life for some terminally ill patients.
    (i) Benefit coverage. CHAMPUS beneficiaries who are terminally ill 
(that is, a life expectancy of six months or less if the disease runs 
its normal course) will be eligible for the following services and 
supplies in lieu of most other CHAMPUS benefits:
    (A) Physician services.
    (B) Nursing care provided by or under the supervision of a 
registered professional nurse.
    (C) Medical social services provided by a social worker who has at 
least a bachelor's degree from a school accredited or approved by the 
Council on Social Work Education, and who is working under the direction 
of a physician. Medical social services include, but are not limited to 
the following:
    (1) Assessment of social and emotional factors related to the 
beneficiary's illness, need for care, response to treatment, and 
adjustment to care.
    (2) Assessment of the relationship of the beneficiary's medical and 
nursing requirements to the individual's home situation, financial 
resources, and availability of community resources.
    (3) Appropriate action to obtain available community resources to 
assist in resolving the beneficiary's problem.
    (4) Counseling services that are required by the beneficiary.
    (D) Counseling services provided to the terminally ill individual 
and the family member or other persons caring for the individual at 
home. Counseling, including dietary counseling, may be provided both for 
the purpose of training the individual's family or other care-giver to 
provide care, and for the purpose of helping the individual and those 
caring for him or her to adjust to the individual's approaching death. 
Bereavement counseling, which consists of counseling services provided 
to the individual's family after the individual's death, is a required 
hospice service but it is not reimbursable.
    (E) Home health aide services furnished by qualified aides and 
homemaker services. Home health aides may provide personal care 
services. Aides also may perform household services to maintain a safe 
and sanitary environment in areas of the home used by the patient. 
Examples of such services are changing the bed or light cleaning and 
laundering essential to the comfort and cleanliness of the patient. Aide 
services must be provided under the general supervision of a registered 
nurse. Homemaker services may include assistance in personal care, 
maintenance of a safe and healthy environment, and services to enable 
the individual to carry out the plan of care. Qualifications for home 
health aides can be found in 42 CFR 484.36.
    (F) Medical appliances and supplies, including drugs and 
biologicals. Only drugs that are used primarily for the relief of pain 
and symptom control related to the individual's terminal illness are 
covered. Appliances may include covered durable medical equipment, as 
well as other self-help and personal comfort items related to the 
palliation or management of the patient's condition while he or she is 
under hospice care. Equipment is provided by the hospice for use in the 
beneficiary's home while he or she is under hospice care. Medical 
supplies include those that are part of the written plan of care. 
Medical appliances and supplies are included within the hospice all-
inclusive rates.
    (G) Physical therapy, occupational therapy and speech-language 
pathology services provided for purposes of symptom control or to enable 
the individual to maintain activities of daily living and basic 
functional skills.
    (H) Short-term inpatient care provided in a Medicare participating 
hospice inpatient unit, or a Medicare participating hospital, skilled 
nursing facility (SNF) or, in the case of respite care, a Medicaid-
certified nursing facility that additionally meets the special hospice 
standards regarding staffing and patient areas. Services provided in an 
inpatient setting must conform to the written plan of care. Inpatient 
care

[[Page 143]]

may be required for procedures necessary for pain control or acute or 
chronic symptom management. Inpatient care may also be furnished to 
provide respite for the individual's family or other persons caring for 
the individual at home. Respite care is the only type of inpatient care 
that may be provided in a Medicaid-certified nursing facility. The 
limitations on custodial care and personal comfort items applicable to 
other CHAMPUS services are not applicable to hospice care.
    (ii) Core services. The hospice must ensure that substantially all 
core services are routinely provided directly by hospice employees; 
i.e., physician services, nursing care, medical social services, and 
counseling for individuals and care givers. Refer to paragraphs 
(e)(19)(i)(A), (e)(19)(i)(B), (e)(19)(i)(C), and (e)(19)(i)(D) of this 
section.
    (iii) Non-core services. While non-core services (i.e., home health 
aide services, medical appliances and supplies, drugs and biologicals, 
physical therapy, occupational therapy, speech-language pathology and 
short-term inpatient care) may be provided under arrangements with other 
agencies or organizations, the hospice must maintain professional 
management of the patient at all times and in all settings. Refer to 
paragraphs (e)(19)(i)(E), (e)(19)(i)(F), (e)(19)(i)(G), and 
(e)(19)(i)(H) of this section.
    (iv) Availability of services. The hospice must make nursing 
services, physician services, and drugs and biologicals routinely 
available on a 24-hour basis. All other covered services must be made 
available on a 24-hour basis to the extent necessary to meet the needs 
of individuals for care that is reasonable and necessary for the 
palliation and management of the terminal illness and related condition. 
These services must be provided in a manner consistent with accepted 
standards of practice.
    (v) Periods of care. Hospice care is divided into distinct periods 
of care. The periods of care that may be elected by the terminally ill 
CHAMPUS beneficiary shall be as the Director, TRICARE determines to be 
appropriate, but shall not be less than those offered under Medicare's 
Hospice Program.
    (vi) Conditions for coverage. The CHAMPUS beneficiary must meet the 
following conditions/criteria in order to be eligible for the hospice 
benefits and services referenced in paragraph (e)(19)(i) of this 
section.
    (A) There must be written certification in the medical record that 
the CHAMPUS beneficiary is terminally ill with a life expectancy of six 
months or less if the terminal illness runs its normal course.
    (1) Timing of certification. The hospice must obtain written 
certification of terminal illness for each of the election periods 
described in paragraph (e)(19(vi)(B) of this section, even if a single 
election continues in effect for two, three or four periods.
    (i) Basic requirement. Except as provided in paragraph 
(e)(19(vi)(A)(1)(ii) of this section the hospice must obtain the written 
certification no later than two calendar days after the period begins.
    (ii) Exception. For the initial 90-day period, if the hospice cannot 
obtain the written certifications within two calendar days, it must 
obtain oral certifications within two calendar days, and written 
certifications no later than eight calendar days after the period 
begins.
    (2) Sources of certification. Physician certification is required 
for both initial and subsequent election periods.
    (i) For the initial 90-day period, the hospice must obtain written 
certification statements (and oral certification statements if required 
under paragraph (e)(19(vi)(A)(i)(ii) of this section) from:
    (A) The individual's attending physician if the individual has an 
attending physician; and
    (B) The medical director of the hospice or the physician member of 
the hospice interdisciplinary group.
    (ii) For subsequent periods, the only requirement is certification 
by one of the physicians listed in paragraph (e)(19)(vi)(A)(2)(i)(B) of 
this section.
    (B) The terminally ill beneficiary must elect to receive hospice 
care for each specified period of time; i.e., the two 90-day periods, a 
subsequent 30-day period, and a final period of unlimited duration. If 
the individual is found to be mentally incompetent, his or her

[[Page 144]]

representative may file the election statement. Representative means an 
individual who has been authorized under State law to terminate medical 
care or to elect or revoke the election of hospice care on behalf of a 
terminally ill individual who is found to be mentally incompetent.
    (1) The episodes of care must be used consecutively; i.e., the two 
90-day periods first, then the 30-day period, followed by the final 
period. The periods of care may be elected separately at different 
times.
    (2) The initial election will continue through subsequent election 
periods without a break in care as long as the individual remains in the 
care of the hospice and does not revoke the election.
    (3) The effective date of the election may begin on the first day of 
hospice care or any subsequent day of care, but the effective date 
cannot be made prior to the date that the election was made.
    (4) The beneficiary or representative may revoke a hospice election 
at any time, but in doing so, the remaining days of that particular 
election period are forfeited and standard CHAMPUS coverage resumes. To 
revoke the hospice benefit, the beneficiary or representative must file 
a signed statement of revocation with the hospice. The statement must 
provide the date that the revocation is to be effective. An individual 
or representative may not designate an effective date earlier than the 
date that the revocation is made.
    (5) If an election of hospice benefits has been revoked, the 
individual, or his or her representative may at any time file a hospice 
election for any period of time still available to the individual, in 
accordance with Sec. 199.4(e)(19)(vi)(B).
    (6) A CHAMPUS beneficiary may change, once in each election period, 
the designation of the particular hospice from which he or she elects to 
receive hospice care. To change the designation of hospice programs the 
individual or representative must file, with the hospice from which care 
has been received and with the newly designated hospice, a statement 
that includes the following information:
    (i) The name of the hospice from which the individual has received 
care and the name of the hospice from which he or she plans to receive 
care.
    (ii) The date the change is to be effective.
    (7) Each hospice will design and print its own election statement to 
include the following information:
    (i) Identification of the particular hospice that will provide care 
to the individual.
    (ii) The individual's or representative's acknowledgment that he or 
she has been given a full understanding of the palliative rather than 
curative nature of hospice care, as it relates to the individual's 
terminal illness.
    (iii) The individual's or representative's acknowledgment that he or 
she understands that certain other CHAMPUS services are waived by the 
election.
    (iv) The effective date of the election.
    (v) The signature of the individual or representative, and the date 
signed.
    (8) The hospice must notify the CHAMPUS contractor of the 
initiation, change or revocation of any election.
    (C) The beneficiary must waive all rights to other CHAMPUS payments 
for the duration of the election period for:
    (1) Care provided by any hospice program other than the elected 
hospice unless provided under arrangements made by the elected hospice; 
and
    (2) Other CHAMPUS basic program services/benefits related to the 
treatment of the terminal illness for which hospice care was elected, or 
to a related condition, or that are equivalent to hospice care, except 
for services provided by:
    (i) The designated hospice;
    (ii) Another hospice under arrangement made by the designated 
hospice; or
    (iii) An attending physician who is not employed by or under 
contract with the hospice program.
    (3) Basic CHAMPUS coverage will be reinstated upon revocation of the 
hospice election.
    (D) A written plan of care must be established by a member of the 
basic interdisciplinary group assessing the patient's needs. This group 
must have at least one physician, one registered professional nurse, one 
social worker, and one pastoral or other counselor.

[[Page 145]]

    (1) In establishing the initial plan of care the member of the basic 
interdisciplinary group who assesses the patient's needs must meet or 
call at least one other group member before writing the initial plan of 
care.
    (2) At least one of the persons involved in developing the initial 
plan must be a nurse or physician.
    (3) The plan must be established on the same day as the assessment 
if the day of assessment is to be a covered day of hospice care.
    (4) The other two members of the basic interdisciplinary group--the 
attending physician and the medical director or physician designee--must 
review the initial plan of care and provide their input to the process 
of establishing the plan of care within two calendar days following the 
day of assessment. A meeting of group members is not required within 
this 2-day period. Input may be provided by telephone.
    (5) Hospice services must be consistent with the plan of care for 
coverage to be extended.
    (6) The plan must be reviewed and updated, at intervals specified in 
the plan, by the attending physician, medical director or physician 
designee and interdisciplinary group. These reviews must be documented 
in the medical records.
    (7) The hospice must designate a registered nurse to coordinate the 
implementation of the plan of care for each patient.
    (8) The plan must include an assessment of the individual's needs 
and identification of the services, including the management of 
discomfort and symptom relief. It must state in detail the scope and 
frequency of services needed to meet the patient's and family's needs.
    (E) Complete medical records and all supporting documentation must 
be submitted to the CHAMPUS contractor within 30 days of the date of its 
request. If records are not received within the designated time frame, 
authorization of the hospice benefit will be denied and any prior 
payments made will be recouped. A denial issued for this reason is not 
an initial determination under Sec. 199.10, and is not appealable.
    (vii) Appeal rights under hospice benefit. A beneficiary or provider 
is entitled to appeal rights for cases involving a denial of benefits in 
accordance with the provisions of this part and Sec. 199.10.
    (20) [Reserved]
    (21) Home health services. Home health services are covered when 
furnished by, or under arrangement with, a home health agency (HHA) that 
participates in the TRICARE program, and provides care on a visiting 
basis in the beneficiary's home. Covered HHA services are the same as 
those provided under Medicare under section 1861(m) of the Social 
Security Act (42 U.S.C. 1395x(m)) and 42 CFR part 409, subpart E.
    (i) Benefit coverage. Coverage will be extended for the following 
home health services subject to the conditions of coverage prescribed in 
paragraph (e)(21)(ii) of this section:
    (A) Part-time or intermittent skilled nursing care furnished by a 
registered nurse or a licensed practical (vocational) nurse under the 
supervision of a registered nurse;
    (B) Physical therapy, speech-language pathology, and occupational 
therapy;
    (C) Medical social services under the direction of a physician;
    (D) Part-time or intermittent services of a home health aide who has 
successfully completed a state-established or other training program 
that meets the requirements of 42 CFR Part 484;
    (E) Medical supplies, a covered osteoporosis drug (as defined in the 
Social Security Act 1861(kk), but excluding other drugs and biologicals) 
and durable medical equipment;
    (F) Medical services provided by an interim or resident-in-training 
of a hospital, under an approved teaching program of the hospital in the 
case of an HHA that is affiliated or under common control of a hospital; 
and
    (G) Services at hospitals, SNFs or rehabilitation centers when they 
involve equipment too cumbersome to bring to the home but not including 
transportation of the individual in connection with any such item or 
service.
    (ii) Conditions for Coverage. The following conditions/criteria must 
be met in order to be eligible for the HHA benefits and services 
referenced in paragraph (e)(21)(i) of this section:

[[Page 146]]

    (A) The person for whom the services are provided is an eligible 
TRICARE beneficiary.
    (B) The HHA that is providing the services to the beneficiary has in 
effect a valid agreement to participate in the TRICARE program.
    (C) Physician certifies the need for home health services because 
the beneficiary is homebound.
    (D) The services are provided under a plan of care established and 
approved by a physician.
    (1) The plan of care must contain all pertinent diagnoses, including 
the patient's mental status, the types of services, supplies, and 
equipment required, the frequency of visits to be made, prognosis, 
rehabilitation potential, functional limitations, activities permitted, 
nutritional requirements, all medications and treatments, safety 
measures to protect against injury, instructions for timely discharge or 
referral, and any additional items the HHA or physician chooses to 
include.
    (2) The orders on the plan of care must specify the type of services 
to be provided to the beneficiary, both with respect to the professional 
who will provide them and the nature of the individual services, as well 
as the frequency of the services.
    (E) The beneficiary must need skilled nursing care on an 
intermittent basis or physical therapy or speech-language pathology 
services, or have continued need for occupational therapy after the need 
for skilled nursing care, physical therapy, or speech-language pathology 
services has ceased.
    (F) The beneficiary must receive, and an HHA must provide, a 
patient-specific, comprehensive assessment that:
    (1) Accurately reflects the patient's current health status and 
includes information that may be used to demonstrate the patient's 
progress toward achievement of desired outcomes;
    (2) Identifies the beneficiary's continuing need for home care and 
meets the beneficiary's medical, nursing, rehabilitative, social, and 
discharge planning needs.
    (3) Incorporates the use of the current version of the Outcome and 
Assessment Information Set (OASIS) items, using the language and 
groupings of the OASIS items, as specified by the Director, TRICARE 
Management Activity.
    (G) TRICARE is the appropriate payer.
    (H) The services for which payment is claimed are not otherwise 
excluded from payment.
    (I) Any other conditions of coverage/participation that may be 
required under Medicare's HHA benefit; i.e., coverage guidelines as 
prescribed under Sections 1861(o) and 1891 of the Social Security Act 
(42 U.S.C. 1395x(o) and 1395bbb), 42 CFR Part 409, Subpart E and 42 CFR 
Part 484.
    (22) Pulmonary rehabilitation. TRICARE benefits are payable for 
beneficiaries whose conditions are considered appropriate for pulmonary 
rehabilitation according to guidelines adopted by the Executive 
Director, TMA, or a designee.
    (23) A speech generating device (SGD) as defined in Sec. 199.2 of 
this part is covered as a voice prosthesis. The prosthesis provisions 
found in paragraph (d)(3)(vii) of this section apply.
    (24) A hearing aid, but only for a dependent of a member of the 
uniformed services on active duty and only if the dependent has a 
profound hearing loss as defined in Sec. 199.2 of this part. Medically 
necessary and appropriate services and supplies, including hearing 
examinations, required in connection with this hearing aid benefit are 
covered.
    (25) Rehabilitation therapy as defined in Sec. 199.2 of this part 
to improve, restore, or maintain function, or to minimize or prevent 
deterioration of function, of a patient when prescribed by a physician. 
The rehabilitation therapy must be medically necessary and appropriate 
medical care, rendered by an authorized provider, necessary to the 
establishment of a safe and effective maintenance program in connection 
with a specific medical condition, and must not be custodial care or 
otherwise excluded from coverage.
    (26) National Institutes of Health clinical trials. By law, and 
pursuant to an agreement between the Department of Defense and the 
Department of Health and Human Services, the general prohibition against 
CHAMPUS cost-sharing of unproven drugs, devices, and medical treatments 
or procedures may be

[[Page 147]]

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

[[Page 148]]

    (A) General. During public health emergencies (e.g., a national 
state of emergency declared by the President), TRICARE may cover cost-
sharing for TRICARE-eligible patients who participate in Phase I, II, 
III, or IV trials that are sponsored by the NIH or an NIH Institute for 
the purposes of treatment or prevention of the pandemic or public health 
emergency.
    (B) National Institute of Allergy and Infectious Diseases (NIAID)-
sponsored clinical trials for COVID-19. For the duration of the 
President's national emergency regarding the COVID-19 outbreak, TRICARE 
will cover cost-sharing for those TRICARE-eligible patients selected to 
participate in NIAID-sponsored Phase I, II, III, and IV studies 
examining the treatment or prevention of COVID-19 and its associated 
sequelae (e.g., cardiac and pulmonary issues). TRICARE will continue to 
cover cost-sharing for any eligible beneficiary enrolled in such a study 
until the conclusion of that study, even if the national emergency ends 
before the conclusion of the study.
    (1) TRICARE will cost-share all medical care (including associated 
health complications) and testing required to determine eligibility for 
an NIAID-sponsored trial, including the evaluation for eligibility at 
the institution conducting the NIAID-sponsored study. TRICARE will cost-
share all medical care required as a result of participation in NIAID-
sponsored studies. This includes purchasing and administering all 
approved pharmaceutical agents (except for NIAID-funded investigational 
drugs), all inpatient and outpatient care, including diagnostic, 
laboratory, rehabilitation, and home health services not otherwise 
reimbursed under an NIAID grant program if the following conditions are 
met:
    (i) Such treatments are NIAID-sponsored Phase I, Phase II, Phase 
III, or Phase IV protocols;
    (ii) The patient continues to meet entry criteria for said protocol;
    (iii) The institutional and individual providers are TRICARE-
authorized providers; and
    (iv) The requirements for Phase I protocols in paragraph 
(e)(26)(iii)(B)(2) of this section are met.
    (2) Requirements for Phase I protocols are:
    (i) Standard treatment has been or would be ineffective, does not 
exist, or there is no superior non-investigational treatment 
alternative;
    (ii) The available clinical or preclinical data provide a reasonable 
expectation that the treatment will be at least as effective as the non-
investigational alternative;
    (iii) The facility and personnel providing the treatment are capable 
of doing so by virtue of their experience, training, and volume of 
patients treated to maintain expertise; and
    (iv) The referring physician has concluded that the enrollee's 
participation in such a trial would be appropriate based upon the 
satisfaction of paragraphs (e)(26)(iii)(B)(2)(i) through (iii) of this 
section.
    (3) TRICARE will not provide reimbursement for care rendered in the 
NIH Clinical Center or costs associated with non-treatment research 
activities associated with the clinical trials.
    (4) Cost-shares and deductibles applicable to TRICARE will also 
apply under the NIAID-sponsored clinical trials.
    (5) The Director, Defense Health Agency (or designee), shall issue 
procedures and guidelines establishing NIAID-sponsorship of clinical 
trials and the administrative process by which individual patients apply 
for and receive cost-sharing under NIAID-sponsored COVID-19 clinical 
trials.
    (27) TRICARE will cost share forensic examinations following a 
sexual assault or domestic violence. The forensic examination includes a 
history of the event and a complete physical and collection of forensic 
evidence, and medical and psychological follow-up care. The examination 
for sexual assault also includes, but is not limited to, a test kit to 
retrieve forensic evidence, testing for pregnancy, testing for sexually 
transmitted disease and HIV, and medical services and supplies for 
prevention of sexually transmitted diseases, HIV, pregnancy, and 
counseling services.
    (28) Preventive care. The following preventive services are covered:
    (i) Cervical, breast, colon and prostate cancer screenings according 
to

[[Page 149]]

standards issued by the Director, TRICARE Management Activity, based on 
guidelines from the U.S. Department of Health and Human Services. The 
standards may establish a specific schedule that includes frequency, age 
specifications, and gender of the beneficiary, as appropriate.
    (ii) Immunizations as recommended by the Centers for Disease Control 
and Prevention (CDC).
    (iii) Well-child visits for children under 6 years of age as 
described in paragraph (c)(3)(xi) of this section.
    (iv) Health promotion and disease prevention visits (which may 
include all of the services provided pursuant to Sec. 199.17(f)(2)) for 
beneficiaries 6 years of age or older may be provided in connection with 
immunizations and cancer screening examinations authorized by paragraphs 
(e)(28)(i) and (ii) of this section).
    (v) Breastfeeding support, supplies (including breast pumps and 
associated equipment), and counseling.
    (29) Physical examinations. In addition to the health promotion and 
disease prevention visits authorized in paragraph (e)(28)(iv) of this 
section, the following physical examinations are specifically 
authorized:
    (i) Physical examinations for dependents of Active Duty military 
personnel who are traveling outside the United States. The examination 
must be required because of an Active Duty member's assignment and the 
travel is being performed under orders issued by a Uniformed Service. 
Any immunizations required for a dependent of an Active Duty member to 
travel outside of the United States is covered as a preventive service 
under paragraph (e)(28) of this section.
    (ii) Physical examinations for beneficiaries ages 5-11 that are 
required for school enrollment and that are provided on or after October 
30, 2000.
    (iii) Other types of physical examinations not listed above are 
excluded including routine, annual, or employment-requested physical 
examinations and routine screening procedures that are not part of 
medically necessary care or treatment or otherwise specifically 
authorized by statute.
    (30) Smoking cessation program. The TRICARE smoking cessation 
program is a behavioral modification program to assist eligible 
beneficiaries who desire to quit smoking. The program consists of a 
pharmaceutical benefit; smoking cessation counseling; access to a toll-
free quit line for non-medical assistance; and, access to print and 
internet web-based tobacco cessation materials.
    (i) Availability. The TRICARE smoking cessation program is available 
to all TRICARE beneficiaries who reside in one of the 50 United States 
or the District of Columbia who are not eligible for Medicare benefits 
authorized under Title XVIII of the Social Security Act. In addition, 
pursuant to Sec. 199.17, if authorized by the Assistant Secretary of 
Defense (Health Affairs), the TRICARE smoking cessation program may be 
implemented in whole or in part in areas outside the 50 states and the 
District of Columbia for active duty members and their dependents who 
are enrolled in TRICARE Prime (overseas Prime beneficiaries). In such 
cases, the Assistant Secretary of Defense (Health Affairs) may also 
authorize modifications to the TRICARE smoking cessation program rules 
and procedures as may be appropriate to the overseas area involved. 
Notice of the use of this authority, not otherwise mentioned in this 
paragraph (e)(30), shall be published in the Federal Register.
    (ii) Benefits. There is no requirement for an eligible beneficiary 
to be diagnosed with a smoking related illness to access benefits under 
this program. The specific benefits available under the TRICARE smoking 
cessation program are:
    (A) Pharmaceutical agents. Products available under this program are 
identified through the DoD Pharmacy and Therapeutics Committee, 
consistent with the DoD Uniform Formulary in Sec. 199.21. Smoking 
cessation pharmaceutical agents, including FDA-approved over-the-counter 
(OTC) pharmaceutical agents, are available through the TRICARE Mail 
Order Pharmacy (TMOP) or the MTF at no cost to the beneficiary. Smoking 
cessation pharmaceuticals through the TRICARE program will not be 
available at any retail pharmacies. A prescription from

[[Page 150]]

a TRICARE-authorized provider is required to obtain any pharmaceutical 
agent used for smoking cessation, including OTC agents. For overseas 
Prime beneficiaries, pharmaceutical agents may be provided either in the 
MTF or through the TMOP where such facility or service is available.
    (B) Face-to-face smoking cessation counseling. Both individual and 
group smoking cessation counseling are covered. The number and mix of 
face-to-face counseling sessions covered under this program shall be 
determined by the Director, TMA; however, shall not exceed the limits 
established in paragraph (e)(30)(iii) of this section. A TRICARE-
authorized provider listed in Sec. 199.6 must render all counseling 
sessions.
    (C) Toll-free quit line. Access to a non-medical toll-free quit line 
7 days a week, 24 hours a day will be available. The quit line will be 
staffed with smoking cessation counselors trained to assess a 
beneficiary's readiness to quit, identify barriers to quitting, and 
provide specific suggested actions and motivational counseling to 
enhance the chances of a successful quit attempt. When appropriate, quit 
line counselors will refer beneficiaries to a TRICARE-authorized 
provider for medical intervention. The quit line may, at the discretion 
of the Director, TMA, include the opportunity for the beneficiary to 
request individual follow-up contact initiated by quit line personnel; 
however, the beneficiary is not required to participate in the quit line 
initiated follow-up. Printed educational materials on the effects of 
tobacco use will be provided to the beneficiary upon request. This 
benefit may be made available to overseas Prime beneficiaries should the 
ASD(HA) exercise his authority to do so and provide appropriate notice 
in the Federal Register.
    (D) Web-based resources. Downloadable educational materials on the 
effects of tobacco use will be available through the internet or other 
electronic media. This service may be made available to overseas Prime 
beneficiaries in all locations where web based resources are available. 
There shall be no requirement to create web based resources in any 
geographic area in order to make this service available.
    (f) Beneficiary or sponsor liability--(1) General. As stated in the 
introductory paragraph to this section, the Basic Program is essentially 
a supplemental program to the Uniformed Services direct medical care 
system. To encourage use of the Uniformed Services direct medical care 
system wherever its facilities are available and appropriate, the Basic 
Program benefits are designed so that it is to the financial advantage 
of a CHAMPUS beneficiary or sponsor to use the direct medical care 
system. When medical care is received from civilian sources, a CHAMPUS 
beneficiary is responsible for payment of certain deductible and cost-
sharing amounts in connection with otherwise covered services and 
supplies. By statute, this joint financial responsibility between the 
beneficiary or sponsor and CHAMPUS is more favorable for dependents of 
members than for other classes of beneficiaries.
    (2) Dependents of members of the Uniformed Services. CHAMPUS 
beneficiary or sponsor liability set forth for dependents of members is 
as follows:
    (i) Annual calendar year deductible for outpatient services and 
supplies.
    (A) For care rendered all eligible beneficiaries prior to April 1, 
1991, or when the active duty sponsor's pay grade is E-4 or below, 
regardless of the date of care:
    (1) Individual Deductible: Each beneficiary is liable for the first 
fifty dollars ($50.00) of the CHAMPUS-determined allowable amount on 
claims for care provided in the same calendar year.
    (2) Family Deductible: The total deductible amount for all members 
of a family with the same sponsor during one calendar year shall not 
exceed one hundred dollars ($100.00).
    (B) For care rendered on or after April 1, 1991, for all CHAMPUS 
beneficiaries except dependents of active duty sponsors in pay grades E-
4 or below.
    (1) Individual Deductible: Each beneficiary is liable for the first 
one hundred and fifty dollars ($150.00) of the CHAMPUS-determined 
allowable amount on claims for care provided in the same calendar year.
    (2) Family Deductible: The total deductible amount for all members 
of a

[[Page 151]]

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

    (A) Inpatient cost-sharing payable with each separate inpatient 
admission. A separate cost-sharing amount (as described in paragraph 
(f)(2) of this section) is payable for each inpatient admission to a 
hospital or other authorized institution, regardless of the purpose of 
the admission (such as medical

[[Page 152]]

or surgical), regardless of the number of times the beneficiary is 
admitted, and regardless of whether or not the inpatient admissions are 
for the same or related conditions; except that successive inpatient 
admissions shall be deemed one inpatient confinement for the purpose of 
computing the inpatient cost-share payable, provided not more than 60 
days have elapsed between the successive admissions. However, 
notwithstanding this provision, all admissions related to a single 
maternity episode shall be considered one confinement, regardless of the 
number of days between admissions (refer to paragraph (b) of this 
section).
    (B) Multiple family inpatient admissions. A separate cost-sharing 
amount is payable for each inpatient admission, regardless of whether or 
not two or more beneficiary members of a family are admitted at the same 
time or from the same cause (such as an accident). A separate 
beneficiary inpatient cost-sharing amount must be applied for each 
separate admission on each beneficiary member of the family.
    (C) Newborn patient in his or her own right. When a newborn infant 
remains as an inpatient in his or her own right (usually after the 
mother is discharged), the newborn child becomes the beneficiary and 
patient and the extended inpatient stay becomes a separate inpatient 
admission. In such a situation, a new, separate inpatient cost-sharing 
amount is applied. If a multiple birth is involved (such as twins or 
triplets) and two or more newborn infants become patients in their own 
right, a separate inpatient cost-sharing amount must be applied to the 
inpatient stay for each newborn child who has remained as an inpatient 
in his or her own right.
    (iii) Outpatient cost-sharing. Dependents of members of the 
Uniformed Services are responsible for payment of 20 percent of the 
CHAMPUS-determined allowable cost or charge beyond the annual calendar 
year deductible amount (as described in paragraph (f)(2)(i) of this 
section) for otherwise covered services or supplies provided on an 
outpatient basis by authorized providers.
    (iv) Ambulatory surgery. Notwithstanding the above provisions 
pertaining to outpatient cost-sharing, dependents of members of the 
Uniformed Services are responsible for payment of $25 for surgical care 
that is authorized and received while in an outpatient status and that 
has been designated in guidelines issued by the Director, OCHAMPUS, or a 
designee.
    (v) [Reserved]
    (vi) Transitional Assistance Management Program (TAMP). Members of 
the Armed Forces (and their family members) who are eligible for TAMP 
under paragraph 199.3(e) of this Part are subject to the same 
beneficiary or sponsor liability as family members of members of the 
uniformed services described in this paragraph (f)(2).
    (3) Former members and dependents of former members. CHAMPUS 
beneficiary liability set forth for former members and dependents of 
former members is as follows:
    (i) Annual calendar year deductible for outpatient services or 
supplies. The annual calendar year deductible for otherwise covered 
outpatient services or supplies provided former members and dependents 
of former members is the same as the annual calendar year outpatient 
deductible applicable to dependents of active duty members of rank E-5 
or above (refer to paragraph (f)(2)(i)(A) or (B) of this section).
    (ii) Inpatient cost-sharing. Inpatient admissions to a hospital or 
other authorized institutional provider (refer to Sec. 199.6, including 
inpatient admission to a residential treatment center, substance use 
disorder rehabilitation facility residential treatment program, or 
skilled nursing facility) shall be cost-shared on an inpatient basis. 
The cost-sharing for inpatient services subject to the TRICARE DRG-based 
payment system and the TRICARE per diem system shall be the lesser of 
the respective per diem copayment amount multiplied by the total number 
of days in the hospital (except for the day of discharge under the DRG 
payment system), or 25 percent of the hospital's billed charges. For 
other inpatient services, the cost-share shall be 25% of the CHAMPUS-
determined allowable charges.
    (iii) Outpatient cost-sharing. Former members and dependents of 
former members are responsible for payment

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of 25 percent of the CHAMPUS-determined allowable costs or charges 
beyond the annual calendar year deductible amount (as described in 
paragraph (f)(2)(i) of this section) for otherwise covered services or 
supplies provided on an outpatient basis by authorized providers.
    (4) Former spouses. CHAMPUS beneficiary liability for former spouses 
eligible under the provisions set forth in Sec. 199.3 of this part is 
as follows:
    (i) Annual calendar year deductible for outpatient services or 
supplies. An eligible former spouse is responsible for the payment of 
the first $150.00 of the CHAMPUS-determined reasonable costs or charges 
for otherwise covered outpatient services or supplies provided in any 
one calendar year. (Except for services received prior to April 1, 1991, 
the deductible amount is $50.00). The former spouse cannot contribute 
to, nor benefit from, any family deductible of the member or former 
member to whom the former spouse was married or of any CHAMPUS-eligible 
children.
    (ii) Inpatient cost-sharing. Eligible former spouses are responsible 
for payment of cost-sharing amounts the same as those required for 
former members and dependents of former members.
    (iii) Outpatient cost-sharing. Eligible former spouses are 
responsible for payment of 25 percent of the CHAMPUS-determined 
reasonable costs or charges beyond the annual calendar year deductible 
amount for otherwise covered services or supplies provided on an 
outpatient basis by authorized providers.
    (5) Cost-Sharing under the Military-Civilian Health Services 
Partnership Program. Cost-sharing is dependent upon the type of 
partnership program entered into, whether external or internal. (See 
paragraph (p) of Sec. 199.1, for general requirements of the Military-
Civilian Health Services Partnership Program.)
    (i) External Partnership Agreement. Authorized costs associated with 
the use of the civilian facility will be financed through CHAMPUS under 
the normal cost-sharing and reimbursement procedures applicable under 
CHAMPUS.
    (ii) Internal Partnership Agreement. Beneficiary cost-sharing under 
internal agreements will be the same as charges prescribed for care in 
military treatment facilities.
    (6)-(7) [Reserved]
    (8) Cost-sharing for services provided under special discount 
arrangements--(i) General rule. With respect to services determined by 
the Director, OCHAMPUS (or designee) to be covered by Sec. 199.14(e), 
the Director, OCHAMPUS (or designee) has authority to establish, as an 
exception to the cost-sharing amount normally required pursuant to this 
section, a different cost-share amount that appropriately reflects the 
application of the statutory cost-share to the discount arrangement.
    (ii) Specific applications. The following are examples of 
applications of the general rule; they are not all inclusive.
    (A) In the case of services provided by individual health care 
professionals and other noninstitutional providers, the cost-share shall 
be the usual percentage of the CHAMPUS allowable charge determined under 
Sec. 199.14(e).
    (B) In the case of services provided by institutional providers 
normally paid on the basis of a pre-set amount (such as DRG-based amount 
under Sec. 199.14(a)(1) or per-diem amount under Sec. 199.14(a)(2)), 
if the discount rate is lower than the pre-set rate, the cost-share 
amount that would apply for a beneficiary other than an active duty 
dependent pursuant to the normal pre-set rate would be reduced by the 
same percentage by which the pre-set rate was reduced in setting the 
discount rate.
    (9) Waiver of deductible amounts or cost-sharing not allowed--(i) 
General rule. Because deductible amounts and cost sharing are 
statutorily mandated, except when specifically authorized by law (as 
determined by the Director, OCHAMPUS), a provider may not waive or 
forgive beneficiary liability for annual deductible amounts or inpatient 
or outpatient cost sharing, as set forth in this section.
    (ii) Exception for bad debts. This general rule is not violated in 
cases in which a provider has made all reasonable attempts to effect 
collection, without success, and determines in accordance with generally 
accepted fiscal

[[Page 154]]

management standards that the beneficiary liability in a particular case 
is an uncollectible bad debt.
    (iii) Remedies for noncompliance. Potential remedies for 
noncompliance with this requirement include:
    (A) A claim for services regarding which the provider has waived the 
beneficiary's liability may be disallowed in full, or, alternatively, 
the amount payable for such a claim may be reduced by the amount of the 
beneficiary liability waived.
    (B) Repeated noncompliance with this requirement is a basis for 
exclusion of a provider.
    (10) Catastrophic loss protection for basic program benefits. 
Calendar year limits, or catastrophic caps, on the amounts beneficiaries 
are required to pay are established as follows:
    (i) Dependents of active duty members. The maximum family liability 
is $1,000 for deductibles and cost-shares based on allowable charges for 
Basic Program services and supplies received in a calendar year.
    (ii) All other beneficiaries. For all other categories of 
beneficiary families (including those eligible under CHAMPVA) the 
calendar year cap is $3,000.
    (iii) Payment after cap is met. After a family has paid the maximum 
cost-share and deductible amounts (dependents of active duty members 
$1,000 and all others $3,000), for a calendar year, CHAMPUS will pay 
allowable amounts for remaining covered services through the end of that 
calendar year.

    Note to paragraph (f)(10): Under the Defense Authorization Act for 
Fiscal Year 2001, the cap for beneficiaries other than dependents of 
active duty members was reduced from $7,500 to $3,000 effective October 
30, 2000. Prior to this, the Defense Authorization Act for Fiscal Year 
1993 reduced this cap from $10,000 to $7,500 on October 1, 1992. The cap 
remains at $1,000 for dependents of active duty members.

    (11) Beneficiary or sponsor liability under the Pharmacy Benefits 
Program. Beneficiary or sponsor liability under the Pharmacy Benefits 
Program is addressed in Sec. 199.21.
    (12) Elimination of cost-sharing for certain preventive services.
    (i) Effective for dates of service on or after October 14, 2008, 
beneficiaries, subject to the limitation in paragraph (f)(12)(iii) of 
this section, shall not pay any cost-share for preventive services 
listed in paragraph (e)(28)(i) through (iv) of this section. The 
beneficiary shall not be required to pay any portion of the cost of 
these preventive services even if the beneficiary has not satisfied the 
deductible for that year.
    (ii) Beneficiaries who paid a cost-share for preventive services 
listed in paragraph (e)(28)(i) through (iv) of this section on or after 
October 14, 2008, may request reimbursement until January 28, 2013 
according to procedures established by the Director, TRICARE Management 
Activity.
    (iii) This elimination of cost-sharing for preventive services does 
not apply to any beneficiary who is a Medicare-eligible beneficiary. For 
purposes of this section, the term ``Medicare-eligible'' beneficiary is 
defined in 10 U.S.C. 1111(b) and refers to a person eligible for 
Medicare Part A.
    (iv) Appropriate copayments and deductibles will apply for all 
services not listed in paragraph (e)(28) of this section, whether 
considered preventive in nature or not.
    (13) Special transition rule for the last quarter of calendar year 
2017. In order to transition deductibles and catastrophic caps from a 
fiscal year basis to a calendar year basis, the deductible amount and 
the catastrophic cap amount specified in paragraph (f) of this section 
will be applicable to the 15-month period of October 1, 2016 through 
December 31, 2017.
    (g) Exclusions and limitations. In addition to any definitions, 
requirements, conditions, or limitations enumerated and described in 
other sections of this part, the following specifically are excluded 
from the Basic Program:
    (1) Not medically or psychologically necessary. Services and 
supplies that are not medically or psychologically necessary for the 
diagnosis or treatment of a covered illness (including mental disorder, 
to include substance use disorder) or injury, for the diagnosis and 
treatment of pregnancy or well-baby care except as provided in the 
following paragraph.
    (2) Unnecessary diagnostic tests. X-ray, laboratory, and 
pathological services

[[Page 155]]

and machine diagnostic tests not related to a specific illness or injury 
or a definitive set of symptoms except for cancer screening mammography 
and cancer screening papanicolaou (PAP) tests provided under the terms 
and conditions contained in the guidelines adopted by the Director, 
OCHAMPUS.
    (3) Institutional level of care. Services and supplies related to 
inpatient stays in hospitals or other authorized institutions above the 
appropriate level required to provide necessary medical care.
    (4) Diagnostic admission. Services and supplies related to an 
inpatient admission primarily to perform diagnostic tests, examinations, 
and procedures that could have been and are performed routinely on an 
outpatient basis.

    Note: If it is determined that the diagnostic x-ray, laboratory, and 
pathological services and machine tests performed during such admission 
were medically necessary and would have been covered if performed on an 
outpatient basis, CHAMPUS benefits may be extended for such diagnostic 
procedures only, but cost-sharing will be computed as if performed on an 
outpatient basis.

    (5) Unnecessary postpartum inpatient stay, mother or newborn. 
Postpartum inpatient stay of a mother for purposes of staying with the 
newborn infant (usually primarily for the purpose of breast feeding the 
infant) when the infant (but not the mother) requires the extended stay; 
or continued inpatient stay of a newborn infant primarily for purposes 
of remaining with the mother when the mother (but not the newborn 
infant) requires extended postpartum inpatient stay.
    (6) Therapeutic absences. Therapeutic absences from an inpatient 
facility, except when such absences are specifically included in a 
treatment plan approved by the Director, OCHAMPUS, or a designee. For 
cost-sharing provisions refer to Sec. 199.14, paragraph (f)(3).
    (7) Custodial care. Custodial care as defined in Sec. 199.2.
    (8) Domiciliary care. Domiciliary care as defined in Sec. 199.2.
    (9) Rest or rest cures. Inpatient stays primarily for rest or rest 
cures.
    (10) Amounts above allowable costs or charges. Costs of services and 
supplies to the extent amounts billed are over the CHAMPUS determined 
allowable cost or charge, as provided for in Sec. 199.14.
    (11) No legal obligation to pay, no charge would be made. Services 
or supplies for which the beneficiary or sponsor has no legal obligation 
to pay; or for which no charge would be made if the beneficiary or 
sponsor was not eligible under CHAMPUS; or whenever CHAMPUS is a 
secondary payer for claims subject to the CHAMPUS DRG-based payment 
system, amounts, when combined with the primary payment, which would be 
in excess of charges (or the amount the provider is obligated to accept 
as payment in full, if it is less than the charges).
    (12) Furnished without charge. Services or supplies furnished 
without charge.
    (13) Furnished by local, state, or Federal Government. Services and 
supplies paid for, or eligible for payment, directly or indirectly by a 
local, state, or Federal Government, except as provided under CHAMPUS, 
or by government hospitals serving the general public, or medical care 
provided by a Uniformed Service medical care facility, or benefits 
provided under title XIX of the Social Security Act (Medicaid) (refer to 
Sec. 199.8 of this part).
    (14) Study, grant, or research programs. Services and supplies 
provided as a part of or under a scientific or medical study, grant, or 
research program.
    (15) Unproven drugs, devices, and medical treatments or procedures. 
By law, CHAMPUS can only cost-share medically necessary supplies and 
services. Any drug, device, or medical treatment or procedure, the 
safety and efficacy of which have not been established, as described in 
this paragraph (g)(15), is unproved and cannot be cost-shared by CHAMPUS 
except as authorized under paragraph 199.4(e)(26) of this part.
    (i) A drug, device, or medical treatment or procedure is unproven:
    (A) If the drug or device cannot be lawfully marketed without the 
approval or clearance of the United States Food and Drug Administration 
(FDA) and approval or clearance for marketing has not been given at the 
time the drug or device is furnished to the patient.

    Note to paragraph (g)(15)(i)(A): Although the use of drugs and 
medicines not approved

[[Page 156]]

by the FDA for commercial marketing, that is for use by humans, (even 
though permitted for testing on humans) is excluded from coverage as 
unproven, drugs grandfathered by the Federal Food, Drug and Cosmetic Act 
of 1938 may be covered by CHAMPUS as if FDA approved.
    Certain cancer drugs, designated as Group C drugs (approved and 
distributed by the National Cancer Institute) and Treatment 
Investigational New Drugs (INDs), are not covered under CHAMPUS because 
they are not approved for commercial marketing by the FDA. However, 
medical care related to the use of Group C drugs and Treatment INDs can 
be cost-shared under CHAMPUS when the patient's medical condition 
warrants their administration and the care is provided in accordance 
with generally accepted standards of medical practice. For the duration 
of the President's national emergency in response to the COVID-19 
outbreak, TRICARE will cost-share investigational drugs provided for the 
treatment of COVID-19 under expanded access.
    CHAMPUS will consider coverage of off-label uses of drugs and 
devices that meet the definition of Off-Label Use of a Drug or Device in 
Sec. 199.2(b). Approval for reimbursement of off-label uses requires 
review for medical necessity and also requires demonstrations from 
medical literature, national organizations, or technology assessment 
bodies that the off-label use of the drug or device is safe, effective, 
and in accordance with nationally accepted standards of practice in the 
medical community.

    (B) If a medical device (as defined by 21 U.S.C. 321(h)) with an 
Investigational Device Exemption (IDE) approved by the Food and Drug 
Administration is categorized by the FDA as experimental/investigational 
(FDA Category A).

    Note: CHAMPUS will consider for coverage a device with an FDA-
approved IDE categorized by the FDA as non-experimental/investigational 
(FDA Category B) for CHAMPUS beneficiaries participating in FDA approved 
clinical trials. Coverage of any such Category B device is dependent on 
its meeting all other requirements of the laws and rules governing 
CHAMPUS and upon the beneficiary involved meeting the FDA-approved IDE 
study protocols.

    (C) Unless reliable evidence shows that any medical treatment or 
procedure has been the subject of well-controlled studies of clinically 
meaningful endpoints, which have determined its maximum tolerated dose, 
its toxicity, its safety, and its efficacy as compared with standard 
means of treatment or diagnosis. (See the definition of reliable 
evidence in Sec. 199.2 of this part for the procedures used in 
determining if a medical treatment or procedure is unproven.)
    (D) If reliable evidence shows that the consensus among experts 
regarding the medical treatment or procedure is that further studies or 
clinical trials are necessary to determine its maximum tolerated doses, 
its toxicity, its safety, or its effectiveness as compared with the 
standard means of treatment or diagnosis (see the definition of reliable 
evidence in Sec. 199.2 for the procedures used in determining if a 
medical treatment or procedure is unproven).
    (ii) CHAMPUS benefits for rare diseases are reviewed on a case-by-
case basis by the Director, Office of CHAMPUS, or a designee. In 
reviewing the case, the Director, or a designee, may consult with any or 
all of the following sources to determine if the proposed therapy is 
considered safe and effective:
    (A) Trials published in refereed medical literature.
    (B) Formal technology assessments.
    (C) National medical policy organization positions.
    (D) National professional associations.
    (E) National expert opinion organizations.
    (iii) Care excluded. This exclusion from benefits includes all 
services directly related to the unproven drug, device, or medical 
treatment or procedure. However, CHAMPUS may cover services or supplies 
when there is no logical or causal relationship between the unproven 
drug, device or medical treatment or procedure and the treatment at 
issue or where such a logical or causal relationship cannot be 
established with a sufficient degree of certainty. This CHAMPUS coverage 
is authorized in the following circumstances:
    (A) Treatment that is not related to the unproven drug, device or 
medical treatment or procedure; e.g., medically necessary in the absence 
of the unproven treatment.
    (B) Treatment which is necessary follow-up to the unproven drug, 
device or medical treatment or procedure but

[[Page 157]]

which might have been necessary in the absence of the unproven 
treatment.
    (16) Immediate family, household. Services or supplies provided or 
prescribed by a member of the beneficiary's immediate family, or a 
person living in the beneficiary's or sponsor's household.
    (17) Double coverage. Services and supplies that are (or are 
eligible to be) payable under another medical insurance or program, 
either private or governmental, such as coverage through employment or 
Medicare (refer to Sec. 199.8 of this part).
    (18) Nonavailability Statement required. Services and supplies 
provided under circumstances or in geographic locations requiring a 
Nonavailability Statement (DD Form 1251), when such a statement was not 
obtained.
    (19) Preauthorization required. Services or supplies which require 
preauthorization if preauthorization was not obtained. Services and 
supplies which were not provided according to the terms of the 
preauthorization. The Director, OCHAMPUS, or a designee, may grant an 
exception to the requirement for preauthorization if the services 
otherwise would be payable except for the failure to obtain 
preauthorization.
    (20) Psychoanalysis or psychotherapy, part of education. 
Psychoanalysis or psychotherapy provided to a beneficiary or any member 
of the immediate family that is credited towards earning a degree or 
furtherance of the education or training of a beneficiary or sponsor, 
regardless of diagnosis or symptoms that may be present.
    (21) Runaways. Inpatient stays primarily to control or detain a 
runaway child, whether or not admission is to an authorized institution.
    (22) Services or supplies ordered by a court or other government 
agency. Services or supplies, including inpatient stays, directed or 
agreed to by a court or other governmental agency. However, those 
services and supplies (including inpatient stays) that otherwise are 
medically or psychologically necessary for the diagnosis or treatment of 
a covered condition and that otherwise meet all CHAMPUS requirements for 
coverage are not excluded.
    (23) Work-related (occupational) disease or injury. Services and 
supplies required as a result of occupational disease or injury for 
which any benefits are payable under a worker's compensation or similar 
law, whether or not such benefits have been applied for or paid; except 
if benefits provided under such laws are exhausted.
    (24) Cosmetic, reconstructive, or plastic surgery. Services and 
supplies in connection with cosmetic, reconstructive, or plastic surgery 
except as specifically provided in paragraph (e)(8) of this section.
    (25) Surgery, psychological reasons. Surgery performed primarily for 
psychological reasons (such as psychogenic).
    (26) Electrolysis.
    (27) Dental care. Dental care or oral surgery, except as 
specifically provided in paragraph (e)(10) of this section.
    (28) Obesity, weight reduction. Service and supplies related 
``solely'' to obesity or weight reduction or weight control whether 
surgical or nonsurgical; wiring of the jaw or any procedure of similar 
purpose, regardless of the circumstances under which performed (except 
as provided in paragraph (e)(15) of this section).
    (29) Sex gender changes. Services and supplies related to sex gender 
change, also referred to as sex reassignment surgery, as prohibited by 
section 1079 of title 10, United States Code. This exclusion does not 
apply to surgery and related medically necessary services performed to 
correct sex gender confusion/intersex conditions (that is, ambiguous 
genitalia) which has been documented to be present at birth.
    (30) Therapy or counseling for sexual dysfunctions or sexual 
inadequacies. Sex therapy, sexual advice, sexual counseling, sex 
behavior modification, psychotherapy for mental disorders involving 
sexual deviations (i.e., transvestic fetishm), or other similar 
services, and any supplies provided in connection with therapy for 
sexual dysfunctions or inadequacies.
    (31) Corns, calluses, and toenails. Removal of corns or calluses or 
trimming of toenails and other routine podiatry services, except those 
required as a result of a diagnosed systemic medical

[[Page 158]]

disease affecting the lower limbs, such as severe diabetes.
    (32) Dyslexia.
    (33) Surgical sterilization, reversal. Surgery to reverse surgical 
sterilization procedures.
    (34) Noncoital reproductive procedures including artifical 
insemination, in-vitro fertilization, gamete intrafallopian transfer and 
all other such reproductive technologies. Services and supplies related 
to artificial insemination (including semen donors and semen banks), in-
vitro fertilization, gamete intrafallopian transfer and all other 
noncoital reproductive technologies.
    (35) Nonprescription contraceptives.
    (36) Tests to determine paternity or sex of a child. Diagnostic 
tests to establish paternity of a child; or tests to determine sex of an 
unborn child.
    (37) Preventive care. Except as stated in paragraph (e)(28) of this 
section, preventive care, such as routine, annual, or employment-
requested physical examinations and routine screening procedures.
    (38) Chiropractors and naturopaths. Services of chiropractors and 
naturopaths whether or not such services would be eligible for benefits 
if rendered by an authorized provider.
    (39) Counseling. Educational, vocational, non-medical nutritional 
counseling, counseling for socioeconomic purposes, stress management, 
and/or lifestyle modification purposes, except the following are not 
excluded:
    (i) Services provided by a certified marriage and family therapist, 
pastoral or mental health counselor in the treatment of a mental 
disorder as specifically provided in paragraph (c)(3)(ix) of this 
section and in Sec. 199.6.
    (ii) Diabetes self-management training (DSMT) as specifically 
provided in paragraph (d)(3)(ix) of this section.
    (iii) Smoking cessation counseling and education as specifically 
provided in paragraph (e)(30) of this section.
    (iv) Services provided by alcoholism rehabilitation counselors only 
when rendered in a CHAMPUS-authorized treatment setting and only when 
the cost of those services is included in the facility's CHAMPUS-
determined allowable cost rate.
    (v) Medical nutritional therapy (also referred to as medical 
nutritional counseling) required in the administration of the medically 
necessary foods, services and supplies authorized in paragraph 
(d)(3)(iii)(B) of this section, medically necessary vitamins authorized 
in paragraph (d)(3)(vi)(D) of this section, or when medically necessary 
for other authorized covered services.
    (40) Acupuncture. Acupuncture, whether used as a therapeutic agent 
or as an anesthetic.
    (41) Hair transplants, wigs/hair pieces/cranial prosthesis.

    Note: In accordance with section 744 of the DoD Appropriation Act 
for 1981 (Pub. L. 96-527), CHAMPUS coverage for wigs or hairpieces is 
permitted effective December 15, 1980, under the conditions listed 
below. Continued availability of benefits will depend on the language of 
the annual DoD Appropriation Acts.

    (i) Benefits provided. Benefits may be extended, in accordance with 
the CHAMPUS-determined allowable charge, for one wig or hairpiece per 
beneficiary (lifetime maximum) when the attending physician certifies 
that alopecia has resulted from treatment of a malignant disease and the 
beneficiary certifies that a wig or hairpiece has not been obtained 
previously through the U.S. Government (including the Veterans 
Administration).
    (ii) Exclusions. The wig or hairpiece benefit does not include 
coverage for the following:
    (A) Alopecia resulting from conditions other than treatment of 
malignant disease.
    (B) Maintenance, wig or hairpiece supplies, or replacement of the 
wig or hairpiece.
    (C) Hair transplants or any other surgical procedure involving the 
attachment of hair or a wig or hairpiece to the scalp.
    (D) Any diagnostic or therapeutic method or supply intended to 
encourage hair regrowth.
    (42) Education or training. Self-help, academic education or 
vocational training services and supplies, unless the provisions of 
Sec. 199.4, paragraph (b)(1)(v) relating to general or special 
education, apply.
    (43) Exercise/relaxation/comfort/sporting items or sporting devices. 
Exercise equipment, to include items primarily and customarily designed 
for use in sports

[[Page 159]]

or recreational activities, spas, whirlpools, hot tubs, swimming pools 
health club memberships or other such charges or items.
    (44) Exercise. General exercise programs, even if recommended by a 
physician and regardless of whether or not rendered by an authorized 
provider. In addition, passive exercises and range of motion exercises 
also are excluded, except when prescribed by a physician and rendered by 
a physical therapist concurrent to, and as an integral part of, a 
comprehensive program of physical therapy.
    (45) [Reserved]
    (46) Vision care. Eye exercises or visual training (orthoptics).
    (47) Eye and hearing examinations. Eye and hearing examinations 
except as specifically provided in paragraphs (c)(2)(xvi), (c)(3)(xi), 
and (e)(24) of this section, or except when rendered in connection with 
medical or surgical treatment of a covered illness or injury.
    (48) Prosthetic devices. Prostheses other than those determined by 
the Director, OCHAMPUS to be necessary because of significant conditions 
resulting from trauma, congenital anomalies, or disease. All dental 
prostheses are excluded, except for those specifically required in 
connection with otherwise covered orthodontia directly related to the 
surgical correction of a cleft palate anomaly.
    (49) Orthopedic shoes. Orthopedic shoes, arch supports, shoe 
inserts, and other supportive devices for the feet, including special-
ordered, custom-made built-up shoes, or regular shoes later built up.
    (50) Eyeglasses. Eyeglasses, spectacles, contact lenses, or other 
optical devices, except as specifically provided under paragraph (e)(6) 
of this section.
    (51) Hearing aids. Hearing aids or other auditory sensory enhancing 
devices, except those allowed in paragraph (e)(24) of this section.
    ((52) Telephone services. Services or advice rendered by telephone 
are excluded. Exceptions:
    (i) Medically necessary and appropriate Telephonic office visits are 
covered as authorized in paragraph (c)(1)(iii) of this section.
    (ii) A diagnostic or monitoring procedure which incorporates 
electronic transmission of data or remote detection and measurement of a 
condition, activity, or function (biotelemetry) is not excluded when:
    (A) The procedure without electronic transmission of data or 
biotelemetry is otherwise an explicit or derived benefit of this 
section;
    (B) The addition of electronic transmission of data or biotelemetry 
to the procedure is found by the Director, CHAMPUS, or designee, to be 
medically necessary and appropriate medical care which usually improves 
the efficiency of the management of a clinical condition in defined 
circumstances; and
    (C) The each data transmission or biotelemetry devices incorporated 
into a procedure that is otherwise an explicit or derived benefit of 
this section, has been classified by the U.S. Food and Drug 
Administration, either separately or as a part of a system, for 
consistent use with the defined circumstances in paragraph (g)(52)(ii) 
of this section.
    (53) Air conditioners, humidifiers, dehumidifiers, and purifiers.
    (54) Elevators or chair lifts.
    (55) Alterations. Alterations to living spaces or permanent features 
attached thereto, even when necessary to accommodate installation of 
covered durable medical equipment or to facilitate entrance or exit.
    (56) Clothing. Items of clothing or shoes, even if required by 
virtue of an allergy (such as cotton fabric as against synthetic fabric 
and vegetable-dyed shoes).
    (57) Food, food substitutes. Food, food substitutes, vitamins, or 
other nutritional supplements, including those related to prenatal care, 
except as authorized in paragraphs (d)(3)(iii)(B) and (d)(3)(vi)(D) of 
this section.
    (58) Enuretic. Enuretic conditioning programs, but enuretic alarms 
may be cost-shared when determined to be medically necessary in the 
treatment of enuresis.
    (59) Duplicate equipment. As defined in Sec. 199.2, duplicate 
equipment is excluded.
    (60) Autopsy and postmortem.

[[Page 160]]

    (61) Camping. All camping even though organized for a specific 
therapeutic purpose (such as diabetic camp or a camp for emotionally 
disturbed children), and even though offered as a part of an otherwise 
covered treatment plan or offered through a CHAMPUS-approved facility.
    (62) Housekeeper, companion. Housekeeping, homemaker, or attendant 
services; sitter or companion.
    (63) Non-covered condition/treatment, unauthorized provider. All 
services and supplies (including inpatient institutional costs) related 
to a non-covered condition or treatment, including any necessary follow-
on care or the treatment of complications, are excluded from coverage 
except as provided under paragraph (e)(9) of this section. In addition, 
all services and supplies provided by an unauthorized provider are 
excluded.
    (64) Comfort or convenience. Personal, comfort, or convenience items 
such as beauty and barber services, radio, television, and telephone.
    (65) [Reserved]
    (66) Megavitamin psychiatric therapy, orthomolecular psychiatric 
therapy.
    (67) Transportation. All transportation except by ambulance, as 
specifically provided under paragraph (d), and except as authorized in 
paragraph (e)(5) of this section.
    (68) Travel. All travel even though prescribed by a physician and 
even if its purpose is to obtain medical care, except as specified in 
paragraph (a)(6) of this section in connection with a CHAMPUS-required 
physical examination and as specified in Sec. 199.17(n)(2)(vi).
    (69) Institutions. Services and supplies provided by other than a 
hospital, unless the institution has been approved specifically by 
OCHAMPUS. Nursing homes, intermediate care facilities, halfway houses, 
homes for the aged, or institutions of similar purpose are excluded from 
consideration as approved facilities under the Basic Program.

    Note: In order to be approved under CHAMPUS, an institution must, in 
addition to meeting CHAMPUS standards, provide a level of care for which 
CHAMPUS benefits are payable.

    (70)-(71) [Reserved]
    (72) [Reserved]
    (73) Economic interest in connection with mental health admissions. 
Inpatient mental health services (including both acute care and RTC 
services) are excluded for care received when a patient is referred to a 
provider of such services by a physician (or other health care 
professional with authority to admit) who has an economic interest in 
the facility to which the patient is referred, unless a waiver is 
granted. Requests for waiver shall be considered under the same 
procedure and based on the same criteria as used for obtaining 
preadmission authorization (or continued stay authorization for 
emergency admissions), with the only additional requirement being that 
the economic interest be disclosed as part of the request. This 
exclusion does not apply to services under the Extended Care Health 
Option (ECHO) in Sec. 199.5 or provided as partial hospital care. If a 
situation arises where a decision is made to exclude CHAMPUS payment 
solely on the basis of the provider's economic interest, the normal 
CHAMPUS appeals process will be available.
    (74) Not specifically listed. Services and supplies not specifically 
listed as a benefit in this part. This exclusion is not intended to 
preclude extending benefits for those services or supplies specifically 
determined to be covered within the intent of this part by the Director, 
OCHAMPUS, or a designee, even though not otherwise listed.

    Note: The fact that a physician may prescribe, order, recommend, or 
approve a service or supply does not, of itself, make it medically 
necessary or make the charge an allowable expense, even though it is not 
listed specifically as an exclusion.

    (h) Payment and liability for certain potentially excludable 
services under the Peer Review Organization program--(1) Applicability. 
This subsection provides special rules that apply only to services 
retrospectively determined under the Peer Review organization (PRO) 
program (operated pursuant to Sec. 199.15) to be potentially excludable 
(in whole or in part) from the basic program under paragraph (g) of this 
section. Services may be excluded by reason of being not medically 
necessary (paragraph (g)(1) of this section), at an inappropriate level 
(paragraph (g)(3) of this section), custodial care (paragraph

[[Page 161]]

(g)(7) of this section) or other reason relative to reasonableness, 
necessity or appropriateness (which services shall throughout the 
remainder of this subsection, be referred to as ``not medically 
necessary''). (Also throughout the remainder of the subsection, 
``services'' includes items and ``provider'' includes supplier). This 
paragraph does not apply to coverage determinations made by OCHAMPUS or 
the fiscal intermediaries which are not based on medical necessity 
determinations made under the PRO program.
    (2) Payment for certain potentially excludable expenses. Services 
determined under the PRO program to be potentially excludable by reason 
of the exclusions in paragraph (g) of this section for not medically 
necessary services will not be determined to be excludable if neither 
the beneficiary to whom the services were provided nor the provider 
(institutional or individual) who furnished the services knew, or could 
reasonably have been expected to know, that the services were subject to 
those exclusions. Payment may be made for such services as if the 
exclusions did not apply.
    (3) Liability for certain excludable services. In any case in which 
items or services are determined excludable by the PRO program by reason 
of being not medically necessary and payment may not be made under 
paragraph (h)(2) of this section because the requirements of paragraph 
(h)(2) of this section are not met, the beneficiary may not be held 
liable (and shall be entitled to a full refund from the provider of the 
amount excluded and any cost share amount already paid) if:
    (i) The beneficiary did not know and could not reasonably have been 
expected to know that the services were excludable by reason of being 
not medically necessary; and
    (ii) The provider knew or could reasonably have been expected to 
know that the items or services were excludable by reason of being not 
medically necessary.
    (4) Criteria for determining that beneficiary knew or could 
reasonably have been expected to have known that services were 
excludable. A beneficiary who receives services excludable by reason of 
being not medically necessary will be found to have known that the 
services were excludable if the beneficiary has been given written 
notice that the services were excludable or that similar or comparable 
services provided on a previous occasion were excludable and that notice 
was given by the OCHAMPUS, CHAMPUS PRO or fiscal intermediary, a group 
or committee responsible for utilization review for the provider, or the 
provider who provided the services.
    (5) Criteria for determining that provider knew or could reasonably 
have been expected to have known that services were excludable. An 
institutional or individual provider will be found to have known or been 
reasonably expected to have known that services were excludable under 
this subsection under any one of the following circumstances:
    (i) The PRO or fiscal intermediary had informed the provider that 
the services provided were excludable or that similar or reasonably 
comparable services were excludable.
    (ii) The utilization review group or committee for an institutional 
provider or the beneficiary's attending physician had informed the 
provider that the services provided were excludable.
    (iii) The provider had informed the beneficiary that the services 
were excludable.
    (iv) The provider had received written materials, including notices, 
manual issuances, bulletins, guides, directives or other materials, 
providing notification of PRO screening criteria specific to the 
condition of the beneficiary. Attending physicians who are members of 
the medical staff of an institutional provider will be found to have 
also received written materials provided to the institutional provider.
    (v) The services that are at issue are the subject of what are 
generally considered acceptable standards of practice by the local 
medical community.
    (vi) Preadmission authorization was available but not requested, or 
concurrent review requirements were not followed.

[51 FR 24008, July 1, 1986]

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

[[Page 162]]

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



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

    (a) General. (1) The TRICARE ECHO is essentially a supplemental 
program to the TRICARE Basic Program. It does not provide acute care nor 
benefits available through the TRICARE Basic Program.
    (2) The purpose of the ECHO is to provide an additional financial 
resource for an integrated set of services and supplies designed to 
assist in the reduction of the disabling effects of the ECHO-eligible 
dependent's qualifying condition. Services include those necessary to 
maintain, minimize or prevent deterioration of function of an ECHO-
eligible dependent.
    (3) The Government's cost-share for ECHO or ECHO home health 
benefits during any program year is limited as stated in this section. 
In order to transition the program year from a fiscal year to a calendar 
year basis, the Government's annual cost-share limitation specified in 
paragraph (f) of this section shall be prorated for the last quarter of 
calendar year 2018 as authorized by 10 U.S.C. 1079(f)(2)(A).
    (b) Eligibility. (1) The following categories of TRICARE/CHAMPUS 
beneficiaries with a qualifying condition are ECHO-eligible dependents:
    (i) A spouse, child, or unmarried person (as described in Sec. 
199.3(b)(2)(i), (b)(2)(ii), or (b)(2)(iv)) of a member of the Uniformed 
Services on active duty for a period of more than 30 days.
    (ii) An abused dependent as described in Sec. 199.3(b)(2)(iii).
    (iii) A spouse, child, or unmarried person (as described in Sec. 
199.3(b)(2)(i), (b)(2)(ii), or (b)(2)(iv)), of a member of the Uniformed 
Services who dies while on active duty for a period of more than 30 days 
and whose death occurs on or after October 7, 2001. In such case, an 
eligible surviving spouse remains eligible for benefits under the ECHO 
for a period of 3 years from the date the active duty sponsor dies. Any 
other eligible surviving dependent remains eligible for benefits under 
the ECHO for a period of three years from the date the active duty 
sponsor dies or until the surviving eligible dependent:
    (A) Attains 21 years of age, or
    (B) Attains 23 years of age or ceases to pursue a full-time course 
of study prior to attaining 23 years of age, if, at 21 years of age, the 
eligible surviving dependent is enrolled in a full-time course of study 
in a secondary school or in a full-time course of study in an 
institution of higher education approved by Secretary of Defense and 
was, at the time of the sponsor's death, in fact dependent on the member 
for over one-half of such dependent's support.
    (iv) A spouse, child, or unmarried person (as defined in paragraphs 
Sec. 199.3(b)(2)(i), (b)(2)(ii), or (b)(2)(iv)) of a deceased member of 
the Uniformed Services who, at the time of the member's death was 
receiving benefits under ECHO, and the member at the time of death was 
eligible for receipt of hostile-fire pay, or died as a result of a 
disease or injury incurred while eligible for such pay. In such a case, 
the surviving dependent remains eligible for benefits under ECHO through 
midnight of the dependent's twenty-first birthday.
    (2) Qualifying condition. The following are qualifying conditions:
    (i) Mental retardation. A diagnosis of moderate or severe mental 
retardation made in accordance with the criteria of the current edition 
of the ``Diagnostic and Statistical Manual of Mental Disorders'' 
published by the American Psychiatric Association.
    (ii) Serious physical disability. A serious physical disability as 
defined in Sec. 199.2.
    (iii) Extraordinary physical or psychological condition. An 
extraordinary physical or psychological condition as defined in Sec. 
199.2.
    (iv) Infant/toddler. Beneficiaries under the age of 3 years who are 
diagnosed with a neuromuscular developmental condition or other 
condition that is expected to precede a diagnosis of moderate or severe 
mental retardation or a serious physical disability, shall be deemed to 
have a qualifying condition for the ECHO. The Director, TRICARE 
Management Activity or designee shall establish criteria for ECHO 
eligibility in lieu of the requirements of paragraphs (b)(2)(i), (ii) or 
(iii) of this section.

[[Page 163]]

    (v) Multiple disabilities. The cumulative effect of multiple 
disabilities, as determined by the Director, TRICARE Management Activity 
or designee shall be used in lieu of the requirements of paragraphs 
(b)(2)(i), (ii) or (iii) of this section to determine a qualifying 
condition when the beneficiary has two or more disabilities involving 
separate body systems.
    (3) Loss of ECHO eligibility. Eligibility for ECHO benefits ceases 
as of 12:01 a.m. of the day following the day that:
    (i) The sponsor ceases to be an active duty member for any reason 
other than death; or
    (ii) Eligibility based upon the abused dependent provisions of 
paragraph (b)(1)(ii) of this section expires; or
    (iii) Eligibility based upon the deceased sponsor provisions of 
paragraphs (b)(1)(iii) or (iv) of this section expires; or
    (iv) Eligibility based upon a beneficiary's participation in the 
Transitional Assistance Management Program ends; or
    (v) The Director, TRICARE Management Activity or designee determines 
that the beneficiary no longer has a qualifying condition.
    (c) ECHO benefit. Items and services that the Director, TRICARE 
Management Activity or designee has determined are capable of 
confirming, arresting, or reducing the severity of the disabling effects 
of a qualifying condition, includes, but are not limited to:
    (1) Diagnostic procedures to establish a qualifying condition or to 
measure the extent of functional loss resulting from a qualifying 
condition.
    (2) Medical, habilitative, rehabilitative services and supplies, 
durable equipment and assistive technology (AT) devices that assist in 
the reduction of the disabling effects of a qualifying condition. 
Benefits shall be provided in the beneficiary's home or another 
environment, as appropriate. An AT device may be covered only if it is 
recommended in a beneficiary's Individual Educational Program (IEP) or, 
if the beneficiary is not eligible for an IEP, the AT device is an item 
or educational learning device normally included in an IEP and is 
preauthorized under ECHO as an integral component of the beneficiary's 
individual comprehensive health care services plan (including 
rehabilitation) as prescribed by a TRICARE authorized provider.
    (i) An AT device may be covered under ECHO only if it is not 
otherwise covered by TRICARE as durable equipment, a prosthetic, 
augmentation communication device, or other benefits under Sec. 199.4.
    (ii) An AT device may include an educational learning device 
directly related to the beneficiary's qualifying condition when 
recommended by an IEP and not otherwise provided by State or local 
government programs. If an individual is not eligible for an IEP, an 
educational learning device normally included in the IEP may be 
authorized as if directly related to the beneficiary's qualifying 
condition and prescribed by a TRICARE authorized provider as part of the 
beneficiary's individual comprehensive health care services plan.
    (iii) Electronic learning devices may include the hardware and 
software as appropriate. The Director, DHA, shall determine the types 
and (or) platforms of electronic devices and the replacement lifecycle 
of the hardware and its supporting software. All upgrades or 
replacements shall require a recommendation from the individual's IEP or 
the individual's comprehensive health care services plan.
    (iv) Duplicative or redundant hardware platforms are not authorized.
    Note to paragraph (c)(2)(iv): When one or more electronic platforms 
such as a desktop computer, laptop, notebook or tablet can perform the 
same functions in relation to the teaching or educational objective 
directly related to the qualifying condition, it is the intent of this 
provision to allow only one electronic platform that may be chosen by 
the beneficiary. Duplicative or redundant platforms are not allowed; 
however, a second platform may be obtained, if the individual's IEP 
recommends one platform such as a computer for the majority of the 
learning objectives, but there exists another objective, which cannot be 
performed on that platform. In these limited circumstances, the 
beneficiary may submit a request with the above justification to the 
Director, TMA, who may authorize a second device.
    (v) AT devices damaged through improper use of the device may not be 
replaced until the device would next be eligible for a lifecycle 
replacement.

[[Page 164]]

    (vi) AT devices do not include equipment or devices whose primary 
purpose is to assist the individual to engage in sports or recreational 
activities.
    (3) Training that teaches the use of assistive technology devices or 
to acquire skills that are necessary for the management of the 
qualifying condition. Such training is also authorized for the 
beneficiary's immediate family. Vocational training, in the 
beneficiary's home or a facility providing such, is also allowed.
    (4) Special education as provided by the Individuals with 
Disabilities Education Act and defined at 34 CFR 300.26 and that is 
specifically designed to accommodate the disabling effects of the 
qualifying condition.
    (5) Institutional care within a state, as defined in Sec. 199.2, in 
private nonprofit, public, and state institutions and facilities, when 
the severity of the qualifying condition requires protective custody or 
training in a residential environment. For the purpose of this section 
protective custody means residential care that is necessary when the 
severity of the qualifying condition is such that the safety and well-
being of the beneficiary or those who come into contact with the 
beneficiary may be in jeopardy without such care.
    (6) Transportation of an ECHO beneficiary receiving benefits under 
paragraph (c)(5), and a medical attendant when necessary to assure the 
beneficiary's safety, to or from a facility or institution to receive 
authorized ECHO services or items.
    (7) Respite care. TRICARE beneficiaries enrolled in ECHO are 
eligible for a maximum of 16 hours of respite care per month. Respite 
care is defined in Sec. 199.2. Respite care services will be provided 
by a TRICARE-authorized HHA and will be designed to provide health care 
services for the covered beneficiary. The benefit will not be 
cumulative, that is, any respite hours not used in one month will not be 
carried over or banked for use on another occasion.
    (i) TRICARE-authorized home health agencies must provide and bill 
for all authorized ECHO respite care services through established 
TRICARE claims' mechanisms. No special billing arrangements will be 
authorized in conjunction with coverage that may be provided by Medicaid 
or other federal, state, community or private programs.
    (ii) For authorized ECHO respite care, TRICARE will reimburse the 
allowable charges or negotiated rates.
    (iii) The Government's cost-share incurred for these services 
accrues to the program year benefit limit of $36,000.
    (8) Other services. (i) Assistive services. Services of qualified 
personal assistants, such as an interpreter or translator for ECHO 
beneficiaries who are deaf or mute and readers for ECHO beneficiaries 
who are blind, when such services are necessary in order for the ECHO 
beneficiary to receive authorized ECHO benefits.
    (ii) Equipment adaptation. The allowable equipment and an AT device 
purchase shall include such services and modifications to the equipment 
as necessary to make the equipment usable for a particular ECHO 
beneficiary.
    (iii) Equipment maintenance. Reasonable repairs and maintenance of 
the beneficiary owned or rented DE or AT devices provided by this 
section shall be allowed while a beneficiary is registered in the ECHO 
Program. Repairs of DE and/or AT devices damaged while using the item in 
a manner inconsistent with its common use, and replacement of lost or 
stolen rental DE are not authorized coverage as an ECHO benefit. In 
addition, repairs and maintenance of deluxe, luxury, or immaterial 
features of DE or AT devices are not authorized coverage as an ECHO 
benefit.
    (d) ECHO Exclusions--(1) Basic Program. Benefits allowed under the 
TRICARE Basic Program will not be provided through the ECHO.
    (2) Inpatient care. Inpatient acute care for medical or surgical 
treatment of an acute illness, or of an acute exacerbation of the 
qualifying condition, is excluded.
    (3) Structural alterations. Alterations to living space and 
permanent fixtures attached thereto, including alterations necessary to 
accommodate installation of equipment or AT devices to facilitate 
entrance or exit, are excluded.
    (4) Homemaker services. Services that predominantly provide 
assistance with household chores are excluded.

[[Page 165]]

    (5) Dental care or orthodontic treatment. Both are excluded.
    (6) Deluxe travel or accommodations. The difference between the 
price for travel or accommodations that provide services or features 
that exceed the requirements of the beneficiary's condition and the 
price for travel or accommodations without those services or features is 
excluded.
    (7) Equipment. Purchase or rental of DE and AT devices otherwise 
allowed by this section is excluded when:
    (i) The beneficiary is a patient in an institution or facility that 
ordinarily provides the same type of equipment or AT devices to its 
patients at no additional charge in the usual course of providing 
services; or
    (ii) The item is available to the beneficiary from a Uniformed 
Services Medical Treatment Facility; or
    (iii) The item has deluxe, luxury, immaterial or nonessential 
features that increase the cost to the Department relative to a similar 
item without those features; or
    (iv) The item is a duplicate DE or an AT device, as defined in Sec. 
199.2.
    (v) The item (or charge for access to such items through health club 
membership or other activities) is exercise equipment including an item 
primarily and customarily designed for use in sports or recreational 
activities, spa, whirlpool, hot tub, swimming pool, an electronic device 
used to locate or monitor the location of the beneficiary, or other 
similar items or charges.
    (8) Maintenance agreements. Maintenance agreements for beneficiary 
owned or rented equipment or AT device are excluded.
    (9) No obligation to pay. Services or items for which the 
beneficiary or sponsor has no legal obligation to pay are excluded.
    (10) Public facility or Federal government. Services or items paid 
for, or eligible for payment, directly or indirectly by a public 
facility, as defined in Sec. 199.2, or by the Federal government, other 
than the Department of Defense, are excluded for training, 
rehabilitation, special education, assistive technology devices, 
institutional care in private nonprofit, public, and state institutions 
and facilities, and if appropriate, transportation to and from such 
institutions and facilities, except when such services or items are 
eligible for payment under a state plan for medical assistance under 
Title XIX of the Social Security Act (Medicaid). Rehabilitation and 
assistive technology services or supplies may be available under the 
TRICARE Basic Program.
    (11) Study, grant, or research programs. Services and items provided 
as a part of a scientific clinical study, grant, or research program are 
excluded.
    (12) Unproven status. Drugs, devices, medical treatments, 
diagnostic, and therapeutic procedures for which the safety and efficacy 
have not been established in accordance with Sec. 199.4 are excluded.
    (13) Immediate family or household. Services or items provided or 
prescribed by a member of the beneficiary's immediate family, or a 
person living in the beneficiary's or sponsor's household, are excluded.
    (14) Court or agency ordered care. Services or items ordered by a 
court or other government agency, which are not otherwise an allowable 
ECHO benefit, are excluded.
    (15) Excursions. Excursions are excluded regardless of whether or 
not they are part of a program offered by a TRICARE-authorized provider. 
The transportation benefit available under ECHO is specified elsewhere 
in this section.
    (16) Drugs and medicines. Drugs and medicines that do not meet the 
requirements of Sec. 199.4 or Sec. 199.21 are excluded.
    (17) Therapeutic absences. Therapeutic absences from an inpatient 
facility or from home for a homebound beneficiary are excluded.
    (18) Custodial care. Custodial care, as defined in Sec. 199.2 is 
not a stand-alone benefit. Services generally rendered as custodial care 
may be provided only as specifically set out in this section.
    (19) Domiciliary care. Domiciliary care, as defined in Sec. 199.2, 
is excluded.
    (20) Respite care. Respite care for the purpose of covering primary 
caregiver (as defined in Sec. 199.2) absences due to deployment, 
employment, seeking of employment or to pursue education is

[[Page 166]]

excluded. Authorized respite care covers only the ECHO beneficiary, not 
siblings or others who may reside in or be visiting in the beneficiary's 
residence.
    (e) ECHO Home Health Care (EHHC). The EHHC benefit provides coverage 
of home health care services and respite care services specified in this 
section.
    (1) Home health care. Covered ECHO home health care services are the 
same as, and provided under the same conditions as those services 
described in Sec. 199.4(e)(21)(i), except that they are not limited to 
part-time or intermittent services. Custodial care services, as defined 
in Sec. 199.2, may be provided to the extent such services are provided 
in conjunction with authorized ECHO home health care services, including 
the EHHC respite care benefit specified in this section. Beneficiaries 
who are authorized EHHC will receive all home health care services under 
EHHC and no portion will be provided under the Basic Program. TRICARE-
authorized home health agencies are not required to use the Outcome and 
Assessment Information Set (OASIS) to assess beneficiaries who are 
authorized EHHC.
    (2) Respite care. EHHC beneficiaries whose plan of care includes 
frequent interventions by the primary caregiver(s) are eligible for 
respite care services in lieu of the ECHO general respite care benefit. 
For the purpose of this section, the term ``frequent'' means ``more than 
two interventions during the eight-hour period per day that the primary 
caregiver would normally be sleeping.'' The services performed by the 
primary caregiver are those that can be performed safely and effectively 
by the average non-medical person without direct supervision of a health 
care provider after the primary caregiver has been trained by 
appropriate medical personnel. EHHC beneficiaries in this situation are 
eligible for a maximum of eight hours per day, 5 days per week, of 
respite care by a TRICARE-authorized home health agency. The home health 
agency will provide the health care interventions or services for the 
covered beneficiary so that the primary caregiver is relieved of the 
responsibility to provide such interventions or services for the 
duration of that period of respite care. The home health agency will not 
provide baby-sitting or child care services for other members of the 
family. The benefit is not cumulative, that is, any respite care hours 
not used in a given day may not be carried over or banked for use on 
another occasion. Additionally, the eight-hour respite care periods will 
not be provided consecutively, that is, a respite care period on one 
calendar day will not be immediately followed by a respite care period 
the next calendar day. The Government's cost-share incurred for these 
services accrue to the maximum yearly ECHO Home Health Care benefit.
    (3) EHHC eligibility. The EHHC is authorized for beneficiaries who 
meet all applicable ECHO eligibility requirements and who:
    (i) Physically reside within the 50 United States, the District of 
Columbia, Puerto Rico, the Virgin Islands, or Guam; and
    (ii) Are homebound, as defined in Sec. 199.2; and
    (iii) Require medically necessary skilled services that exceed the 
level of coverage provided under the Basic Program's home health care 
benefit; and/or
    (iv) Require frequent interventions by the primary caregiver(s) such 
that respite care services are necessary to allow primary caregiver(s) 
the opportunity to rest; and
    (v) Are case managed to include a reassessment at least every 90 
days, and receive services as outlined in a written plan of care; and
    (vi) Receive all home health care services from a TRICARE-authorized 
home health agency, as described in Sec. 199.6(b)(4)(xv), in the 
beneficiary's primary residence.
    (4) EHHC plan of care. A written plan of care is required prior to 
authorizing ECHO home health care. The plan must include the type, 
frequency, scope and duration of the care to be provided and support the 
professional level of provider. Reimbursement will not be authorized for 
a level of provider not identified in the plan of care.
    (5) EHHC exclusions--(i) General. ECHO Home Health Care services and 
supplies are excluded from those who are being provided continuing 
coverage of home health care as participants of

[[Page 167]]

the former Individual Case Management Program for Persons with 
Extraordinary Conditions (ICMP-PEC) or previous case management 
demonstrations.
    (ii) Respite care. Respite care for the purpose of covering primary 
caregiver absences due to deployment, employment, seeking of employment 
or to pursue education is excluded. Authorized respite care covers only 
the ECHO beneficiary, not siblings or others who may reside in or be 
visiting in the beneficiary's residence.
    (f) Cost-share liability--(1) No deductible. ECHO benefits are not 
subject to a deductible amount.
    (2) Sponsor cost-share liability. (i) Regardless of the number of 
family members receiving ECHO benefits or ECHO Home Health Care in a 
given month, the sponsor's cost-share is according to the following 
table:

            Table 1--Monthly Cost-Share by Member's Pay Grade
------------------------------------------------------------------------
 
------------------------------------------------------------------------
E-1 through E-5.................................................     $25
E-6.............................................................      30
E-7 and O-1.....................................................      35
E-8 and O-2.....................................................      40
E-9, W-1, W-2 and O-3...........................................      45
W-3, W-4 and O-4................................................      50
W-5 and O-5.....................................................      65
O-6.............................................................      75
O-7.............................................................     100
O-8.............................................................     150
O-9.............................................................     200
O-10............................................................     250
------------------------------------------------------------------------

    (ii) The Sponsor's cost-share shown in Table 1 in paragraph 
(f)(2)(i) of this section will be applied to the first allowed ECHO 
charges in any given month. The Government's share will be paid, up to 
the maximum amount specified in paragraph (f)(3) of this section, for 
allowed charges after the sponsor's cost-share has been applied.
    (iii) The provisions of Sec. 199.18(d)(1) and (e)(1) regarding 
elimination of copayments for active duty family members enrolled in 
TRICARE Prime do not eliminate, reduce, or otherwise affect the 
sponsor's cost-share shown in Table 1 in paragraph (f)(2)(i) of this 
section.
    (iv) The sponsor's cost-share shown in Table 1 in paragraph 
(f)(2)(i) of this section does not accrue to the Basic Program's 
Catastrophic Loss Protection under 10 U.S.C. 1079(b)(5) as shown at 
Sec. Sec. 199.4(f)(10) and 199.18(f).
    (3) Government cost-share liability--(i) ECHO. The total Government 
share of the cost of all ECHO benefits, except ECHO Home Health Care 
(EHHC) and EHHC respite care, provided in a given program year to a 
beneficiary, may not exceed $36,000 after application of the allowable 
payment methodology.
    (ii) ECHO home health care. (A) The maximum annual program year 
Government cost-share per EHHC-eligible beneficiary for ECHO home health 
care, including EHHC respite care may not exceed the local wage-adjusted 
highest Medicare Resource Utilization Group (RUG-III) category cost for 
care in a TRICARE-authorized skilled nursing facility.
    (B) When a beneficiary moves to a different locality within the 50 
United States, the District of Columbia, Puerto Rico, the Virgin 
Islands, or Guam, the annual program year cap will be recalculated to 
reflect the maximum established under paragraph (f)(3)(ii)(A) of this 
section for the beneficiary's new location and will apply to the EHHC 
benefit for the remaining portion of that program year.
    (g) Benefit payment--(1) Transportation. The allowable amount for 
transportation of an ECHO beneficiary is limited to the actual cost of 
the standard published fare plus any standard surcharge made to 
accommodate any person with a similar disability or to the actual cost 
of specialized medical transportation when non-specialized transport 
cannot accommodate the beneficiary's qualifying condition related needs, 
or when specialized transport is more economical than non-specialized 
transport. When transport is by private vehicle, the allowable amount is 
limited to the Federal government employee mileage reimbursement rate in 
effect on the date the transportation is provided.
    (2) Equipment. (i) The TRICARE allowable amount for DE or AT devices 
shall be calculated in the same manner as DME allowable through section 
199.4 of this title, and accrues to the program year benefit limit 
specified in paragraph (f)(3) of this section.

[[Page 168]]

    (ii) Cost-share. A cost-share, as provided by paragraph (f)(2) of 
this section, is required for each month in which equipment or an AT 
device is purchased under this section. However, in no month shall a 
sponsor be required to pay more than one cost-share regardless of the 
number of benefits the sponsor's dependents received under this section.
    (3) For-profit institutional care provider. Institutional care 
provided by a for-profit entry may be allowed only when the care for a 
specific ECHO beneficiary:
    (i) Is contracted for by a public facility as a part of a publicly 
funded long-term inpatient care program; and
    (ii) Is provided based upon the ECHO beneficiary's being eligible 
for the publicly funded program which has contracted for the care; and
    (iii) Is authorized by the public facility as a part of a publicly 
funded program; and
    (iv) Would cause a cost-share liability in the absence of TRICARE 
eligibility; and
    (v) Produces an ECHO beneficiary cost-share liability that does not 
exceed the maximum charge by the provider to the public facility for the 
contracted level of care.
    (4) ECHO home health care and EHHC respite care. (i) TRICARE-
authorized home health agencies must provide and bill for all authorized 
home health care services through established TRICARE claims' 
mechanisms. No special billing arrangements will be authorized in 
conjunction with coverage that may be provided by Medicaid or other 
federal, state, community or private programs.
    (ii) For authorized ECHO home health care and respite care, TRICARE 
will reimburse the allowable charges or negotiated rates.
    (iii) The maximum monthly Government reimbursement for EHHC, 
including EHHC respite care, will be based on the actual number of hours 
of EHHC services rendered in the month, but in no case will it exceed 
one-twelfth of the annual maximum Government cost-share as determined in 
this section and adjusted according to the actual number of days in the 
month the services were provided.
    (h) Other Requirements--(1) Applicable part. All provisions of this 
part, except the provisions of Sec. 199.4 unless otherwise provided by 
this section or as directed by the Director, TRICARE Management Activity 
or designee, apply to the ECHO.
    (2) Registration. Active duty sponsors must register potential ECHO-
eligible beneficiaries through the Director, TRICARE Management 
Activity, or designee prior to receiving ECHO benefits. The Director, 
TRICARE Management Activity, or designee will determine ECHO eligibility 
and update the Defense Enrollment Eligibility Reporting System 
accordingly. Unless waived by the Director, TRICARE Management Activity 
or designee, sponsors must provide evidence of enrollment in the 
Exceptional Family Member Program provided by their branch of Service at 
the time they register their family member(s) for the ECHO.
    (3) Benefit authorization. All ECHO benefits require authorization 
by the Director, TRICARE Management Activity or designee prior to 
receipt of such benefits.
    (i) Documentation. The sponsor shall provide such documentation as 
the Director, TRICARE Management Activity or designee requires as a 
prerequisite to authorizing ECHO benefits. Such documentation shall 
describe how the requested benefit will contribute to confirming, 
arresting, or reducing the disabling effects of the qualifying 
condition, including maintenance of function or prevention of further 
deterioration of function, of the beneficiary.
    (ii) Format. An authorization issued by the Director, TRICARE 
Management Activity or designee shall specify such description, dates, 
amounts, requirements, limitations or information as necessary for exact 
identification of approved benefits and efficient adjudication of 
resulting claims.
    (iii) Valid period. An authorization for ECHO benefits shall be 
valid until such time as the Director, TRICARE Management Activity or 
designee determines that the authorized services are no longer 
appropriate or required or the beneficiary is no longer eligible under 
paragraph (b) of this section.
    (iv) Authorization waiver. The Director, TRICARE Management Activity 
or

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designee may waive the requirement for a written authorization for 
rendered ECHO benefits that, except for the absence of the written 
authorization, would be allowable as an ECHO benefit.
    (v) Public facility use. (A) An ECHO beneficiary residing within a 
state must demonstrate that a public facility is not available and 
adequate to meet the needs of their qualifying condition. Such 
requirements shall apply to beneficiaries who request authorization for 
training, rehabilitation, special education, assistive technology, and 
institutional care in private nonprofit, public, and state institutions 
and facilities, and if appropriate for beneficiaries receiving 
institutional care, transportation to and from such institutions and 
facilities. The maximum Government cost-share for services that require 
demonstration of public facility non-availability or inadequacy is 
limited to $36,000 per program year per beneficiary. State-administered 
plans for medical assistance under Title XIX of the Social Security Act 
(Medicaid) are not considered available and adequate facilities for the 
purpose of this section.
    (B) The domicile of the beneficiary shall be the basis for the 
determination of public facility availability when the sponsor and 
beneficiary are separately domiciled due to the sponsor's move to a new 
permanent duty station or due to legal custody requirements.
    (C) Written certification, in accordance with information 
requirements, formats, and procedures established by the director, 
TRICARE Management Activity or designee that requested ECHO services or 
items cannot be obtained from public facilities because the services or 
items are not available and adequate, is a prerequisite for ECHO benefit 
payment for training, rehabilitation, special education, assistive 
technology, and institutional care in private nonprofit, public, and 
state institutions and facilities, and if appropriate, transportation to 
and from such institutions and facilities.
    (1) An administrator or designee of a public facility may make such 
certification for a beneficiary residing within the service area of that 
public facility.
    (2) The Director, TRICARE Management Activity or designee may 
determine, on a case-by-case basis, that apparent public facility 
availability or adequacy for a requested type of service or item cannot 
be substantiated for a specific beneficiary's request for ECHO benefits 
and therefore is not available.
    (i) A case-specific determination shall be based upon a written 
statement by the beneficiary (or sponsor or guardian acting on behalf of 
the beneficiary) which details the circumstances wherein a specific 
individual representing a specific public facility refused to provide a 
public facility use certification, and such other information as the 
Director, TRICARE Management Activity or designee determines to be 
material to the determination.
    (ii) A case-specific determination of public facility availability 
by the Director, TRICARE Management Activity or designee is conclusive 
and is not appealable under Sec. 199.10.
    (4) Repair or maintenance of DE owned by the beneficiary or an AT 
device is exempt from the public facility-use certification 
requirements.
    (5) The requirements of this paragraph (h)(3)(v)(A) notwithstanding, 
no public facility use certification is required for services and items 
that are provided under Part C of the Individuals with Disabilities 
Education Act in accordance with the Individualized Family Services Plan 
and that are otherwise allowable under the ECHO.
    (i) Implementing instructions. The Director, TRICARE Management 
Activity or designee shall issue TRICARE policies, instructions, 
procedures, guidelines, standards, and criteria as may be necessary to 
implement the intent of this section.
    (j) Effective date. All changes to this section are effective as of 
October 14, 2008, and claims for ECHO benefits provided on or after that 
date will be reprocessed retroactively to that date as necessary.

[69 FR 51564, Aug. 20, 2004, as amended at 71 FR 47092, Aug. 16, 2006; 
72 FR 2447, Jan. 19, 2007; 75 FR 47711, Aug. 9, 2010; 79 FR 78713, Dec. 
31, 2014; 81 FR 27329, May 6, 2016; 82 FR 45447, Sept. 29, 2017; 86 FR 
36217, July 9, 2021]

[[Page 170]]



Sec. 199.6  TRICARE--authorized providers.

    (a) General. This section sets forth general policies and procedures 
that are the basis for the CHAMPUS cost-sharing of medical services and 
supplies provided by institutions, individuals, or other types of 
providers. Providers seeking payment from the Federal Government through 
programs such as CHAMPUS have a duty to familiarize themselves with, and 
comply with, the program requirements.
    (1) Listing of provider does not guarantee payment of benefits. The 
fact that a type of provider is listed in this section is not to be 
construed to mean that CHAMPUS will automatically pay a claim for 
services or supplies provided by such a provider. The provider who 
actually furnishes the service(s) must, in fact, meet all licensing and 
other requirements established by this part to be an authorized 
provider; the provider must not be the subject of sanction under Sec. 
199.9; and, cost-sharing of the services must not otherwise be 
prohibited by this part. In addition, the patient must in fact be an 
eligible beneficiary and the services or supplies billed must be 
authorized and medically necessary, regardless of the standing of the 
provider.
    (2) Outside the United States or emergency situations within the 
United States. Outside the United States or within the United States and 
Puerto Rico in emergency situations, the Director, OCHAMPUS, or a 
designee, after review of the facts, may provide payment to or on behalf 
of a beneficiary who receives otherwise covered services or supplies 
from a provider of service that does not meet the standards described in 
this part.

    Note: Only the Secretary of Defense, the Secretary of Health and 
Human Services, or the Secretary of Transportation, or their designees, 
may authorize (in emergency situations) payment to civilian facilities 
in the United States that are not in compliance with title VI of the 
Civil Rights Act of 1964. For the purpose of the Civil Rights Act only, 
the United States includes the 50 states, the District of Columbia, 
Puerto Rico, Virgin Islands, American Samoa, Guam, Wake Island, Canal 
Zone, and the territories and possessions of the United States.

    (3) Dual compensation/Conflict of interest. Title 5, United States 
Code, section 5536 prohibits medical personnel who are active duty 
Uniformed Service members or civilian employees of the Government from 
receiving additional Government compensation above their normal pay and 
allowances for medical care furnished. In addition, Uniformed Service 
members and civilian employees of the Government are generally 
prohibited by law and agency regulations and policies from participating 
in apparent or actual conflict of interest situations in which a 
potential for personal gain exists or in which there is an appearance of 
impropriety or incompatibility with the performance of their official 
duties or responsibilities. The Departments of Defense, Health and Human 
Services, and Transportation have a responsibility, when disbursing 
appropriated funds in the payment of CHAMPUS benefits, to ensure that 
the laws and regulations are not violated. Therefore, active duty 
Uniformed Service members (including a reserve member while on active 
duty and civilian employees of the United States Government shall not be 
authorized to be CHAMPUS providers. While individual employees of the 
Government may be able to demonstrate that the furnishing of care to 
CHAMPUS beneficiaries may not be incompatible with their official duties 
and responsibilities, the processing of millions of CHAMPUS claims each 
year does not enable Program administrators to efficiently review the 
status of the provider on each claim to ensure that no conflict of 
interest or dual compensation situation exists. The problem is further 
complicated given the numerous interagency agreements (for example, 
resource sharing arrangements between the Department of Defense and the 
Veterans Administration in the provision of health care) and other 
unique arrangements which exist at individual treatment facilities 
around the country. While an individual provider may be prevented from 
being an authorized CHAMPUS provider even though no conflict of interest 
or dual compensation situation exists, it is essential for CHAMPUS to 
have an easily administered, uniform rule which will ensure compliance 
with

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the existing laws and regulations. Therefore, a provider who is an 
active duty Uniformed Service member or civilian employee of the 
Government shall not be an authorized CHAMPUS provider. In addition, a 
provider shall certify on each CHAMPUS claim that he/she is not an 
active duty Uniformed Service member or civilian employee of the 
Government.
    (4) [Reserved]
    (5) Utilization review and quality assurance. Providers approved as 
authorized CHAMPUS providers have certain obligations to provide 
services and supplies under CHAMPUS which are (i) furnished at the 
appropriate level and only when and to the extent medically necessary 
under the criteria of this part; (ii) of a quality that meets 
professionally recognized standards of health care; and, (iii) supported 
by adequate medical documentation as may be reasonably required under 
this part by the Director, OCHAMPUS, or designee, to evidence the 
medical necessity and quality of services furnished, as well as the 
appropriateness of the level of care. Therefore, the authorization of 
CHAMPUS benefits is contingent upon the services and supplies furnished 
by any provider being subject to pre-payment or post-payment utilization 
and quality assurance review under professionally recognized standards, 
norms, and criteria, as well as any standards or criteria issued by the 
Director, OCHAMPUS, or a designee, pursuant to this part. (Refer to 
Sec. Sec. 199.4, 199.5, and 199.7 of this part.)
    (6) Exclusion of beneficiary liability. In connection with certain 
utilization review, quality assurance and preauthorization requirements 
of section 199.4 of this part, providers may not hold patients liable 
for payment for certain services for which CHAMPUS payment is 
disallowed. With respect to such services, providers may not seek 
payment from the patient or the patient's family. Any such effort to 
seek payment is a basis for termination of the provider's authorized 
status.
    (7) Provider required. In order to be considered for benefits, all 
services and supplies shall be rendered by, prescribed by, or furnished 
at the direction of, or on the order of a CHAMPUS-authorized provider 
practicing within the scope of his or her license.
    (8) Participating providers. A CHAMPUS-authorized provider is a 
participating provider, as defined in Sec. 199.2 under the following 
circumstances:
    (i) Mandatory participation. (A) An institutional provider in Sec. 
199.6(b), in order to be an authorized provider under TRICARE, must be a 
participating provider for all claims.
    (B) A SNF or a HHA, in order to be an authorized provider under 
TRICARE, must enter into a participation agreement with TRICARE for all 
claims.
    (C) Corporate services providers authorized as CHAMPUS providers 
under the provisions of paragraph (f) of this section must enter into a 
participation agreement as provided by the Director, OCHAMPUS, or 
designee.
    (ii) Voluntary participation--(A) Total claims participation: The 
participating provider program. A CHAMPUS-authorized provider that is 
not required to participate by this part may become a participating 
provider by entering into an agreement or memorandum of understanding 
(MOU) with the Director, OCHAMPUS, or designee, which includes, but is 
not limited to, the provisions of paragraph (a)(13) of this section. The 
Director, OCHAMPUS, or designee, may include in a participating provider 
agreement/MOU provisions that establish between CHAMPUS and a class, 
category, type, or specific provider, uniform procedures and conditions 
which encourage provider participation while improving beneficiary 
access to benefits and contributing to CHAMPUS efficiency. Such 
provisions shall be otherwise allowed by this part or by DoD Directive 
or DoD Instruction specifically pertaining to CHAMPUS claims 
participation. Participating provider program provisions may be 
incorporated into an agreement/MOU to establish a specific CHAMPUS-
provider relationship, such as a preferred provider arrangement.
    (B) Claim-specific participation. A CHAMPUS-authorized provider that 
is not required to participate and that has not entered into a 
participation agreement pursuant to paragraph (a)(8)(ii)(A) of this 
section may elect to

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

[[Page 173]]

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

[[Page 174]]

    (B) Institutional claims subject to the CHAMPUS DRG-based 
reimbursement method or a CHAMPUS-determined all-inclusive rate 
reimbursement method, may be submitted only after the beneficiary has 
been discharged or transferred from the institutional provider's 
facility or program.
    (C) Institutional claims for Residential Treatment Centers and all 
other institutional providers, except those listed in (B) above, should 
be submitted to the appropriate CHAMPUS fiscal intermediary at least 
every 30 days.
    (2) Nondiscrimination policy. Except as provided below, payment may 
not be made for inpatient or outpatient care provided and billed by an 
institutional provider found by the Federal Government to practice 
discrimination in the admission of patients to its services on the basis 
of race, color, or national origin. Reimbursement may not be made to a 
beneficiary who pays for care provided by such a facility and submits a 
claim for reimbursement. In the following circumstances, the Secretary 
of Defense, or a designee, may authorize payment for care obtained in an 
ineligible facility:
    (i) Emergency care. Emergency inpatient or outpatient care.
    (ii) Care rendered before finding of a violation. Care initiated 
before a finding of a violation and which continues after such violation 
when it is determined that a change in the treatment facility would be 
detrimental to the health of the patient, and the attending physician so 
certifies.
    (iii) Other facility not available. Care provided in an ineligible 
facility because an eligible facility is not available within a 
reasonable distance.
    (3) Procedures for qualifying as a CHAMPUS-approved institutional 
provider. General and special hospitals otherwise meeting the 
qualifications outlined in paragraphs (b)(4) (i), (ii), and (iii), of 
this section are not required to request CHAMPUS approval formally.
    (i) JCAH accreditation status. Each CHAMPUS fiscal intermediary 
shall keep informed as to the current JCAH accreditation status of all 
hospitals and skilled nursing facilities in its area; and the provider's 
status under Medicare, particularly with regard to compliance with title 
VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d(1)). The Director, 
OCHAMPUS, or a designee, shall specifically approve all other authorized 
institutional providers providing services to CHAMPUS beneficiaries. At 
the discretion of the Director, OCHAMPUS, any facility that is certified 
and participating as a provider of services under title XVIII of the 
Social Security Act (Medicare), may be deemed to meet CHAMPUS 
requirements. The facility must be providing a type and level of service 
that is authorized by this part.
    (ii) Required to comply with criteria. Facilities seeking CHAMPUS 
approval will be expected to comply with appropriate criteria set forth 
in paragraph (b)(4) of this section. They also are required to complete 
and submit CHAMPUS Form 200, ``Required Information, Facility 
Determination Instructions,'' and provide such additional information as 
may be requested by OCHAMPUS. An onsite evaluation, either scheduled or 
unscheduled, may be conducted at the discretion of the Director, 
OCHAMPUS, or a designee. The final determination regarding approval, 
reapproval, or disapproval of a facility will be provided in writing to 
the facility and the appropriate CHAMPUS fiscal intermediary.
    (iii) Notice of peer review rights. All health care facilities 
subject to the DRG-based payment system shall provide CHAMPUS 
beneficiaries, upon admission, with information about peer review 
including their appeal rights. The notices shall be in a form specified 
by the Director, OCHAMPUS.
    (iv) Surveying of facilities. The surveying of newly established 
institutional providers and the periodic resurveying of all authorized 
institutional providers is a continuing process conducted by OCHAMPUS.
    (v) Institutions not in compliance with CHAMPUS standards. If a 
determination is made that an institution is not in compliance with one 
or more of the standards applicable to its specific category of 
institution, CHAMPUS shall take immediate steps to bring about 
compliance or terminate the approval as an authorized institution in 
accordance with Sec. 199.9(f)(2).

[[Page 175]]

    (vi) Participation agreements required for some hospitals which are 
not Medicare-participating. Notwithstanding the provisions of this 
paragraph (B)(3), a hospital which is subject to the CHAMPUS DRG-based 
payment system but which is not a Medicare-participating hospital must 
request and sign an agreement with OCHAMPUS. By signing the agreement, 
the hospital agrees to participate on all CHAMPUS inpatient claims and 
accept the requirements for a participating provider as contained in 
paragraph (a)(8) of Sec. 199.6. Failure to sign such an agreement shall 
disqualify such hospital as a CHAMPUS-approved institutional provider.
    (4) Categories of institutional providers. The following categories 
of institutional providers may be reimbursed by CHAMPUS for services 
provided CHAMPUS beneficiaries subject to any and all definitions, 
conditions, limitation, and exclusions specified or enumerated in this 
part.
    (i) Hospitals, acute care, general and special. An institution that 
provides inpatient services, that also may provide outpatient services 
(including clinical and ambulatory surgical services), and that:
    (A) Is engaged primarily in providing to inpatients, by or under the 
supervision of physicians, diagnostic and therapeutic services for the 
medical or surgical diagnosis and treatment of illness, injury, or 
bodily malfunction (including maternity).
    (B) Maintains clinical records on all inpatients (and outpatients if 
the facility operates an outpatient department or emergency room).
    (C) Has bylaws in effect with respect to its operations and medical 
staff.
    (D) Has a requirement that every patient be under the care of a 
physician.
    (E) Provides 24-hour nursing service rendered or supervised by a 
registered professional nurse, and has a licensed practical nurse or 
registered professional nurse on duty at all times.
    (F) Has in effect a hospital utilization review plan that is 
operational and functioning.
    (G) In the case of an institution in a state in which state or 
applicable local law provides for the licensing of hospitals, the 
hospital:
    (1) Is licensed pursuant to such law, or
    (2) Is approved by the agency of such state or locality responsible 
for licensing hospitals as meeting the standards established for such 
licensing.
    (H) Has in effect an operating plan and budget.
    (I) Is accredited by the JCAH or meets such other requirements as 
the Secretary of Health and Human Services, the Secretary of 
Transportation, or the Secretary of Defense finds necessary in the 
interest of the health and safety of patients who are admitted to and 
furnished services in the institution.

    Note to paragraph (b)(4)(i)(I): For the duration of Medicare's 
``Hospitals Without Walls'' initiative for the coronavirus disease 2019 
(COVID-19) outbreak, any entity that temporarily enrolls with Medicare 
as a hospital may be temporarily exempt from certain institutional 
requirements for acute care hospitals under TRICARE. To the extent 
practicable, the Director, Defense Health Agency (DHA), will adopt by 
administrative policy any process requirement related to Medicare's 
Hospitals Without Walls initiative.

    (ii) Organ transplant centers. To obtain TRICARE approval as an 
organ transplant center, the center must be a Medicare approved 
transplant center or meet the criteria as established by the Executive 
Director, TMA, or a designee.
    (iii) Organ transplant consortia. TRICARE shall approve individual 
pediatric organ transplant centers that meet the criteria established by 
the Executive Director, TMA, or a designee.
    (iv) Hospitals, psychiatric. A psychiatric hospital is an 
institution which is engaged primarily in providing services to 
inpatients for the diagnosis and treatment of mental disorders.
    (A) There are two major categories of psychiatric hospitals:
    (1) The private psychiatric hospital category includes both 
proprietary and the not-for-profit nongovernmental institutions.
    (2) The second category is those psychiatric hospitals that are 
controlled, financed, and operated by departments

[[Page 176]]

or agencies of the local, state, or Federal Government and always are 
operated on a not-for-profit basis.
    (B) In order for the services of a psychiatric hospital to be 
covered, the hospital shall comply with the provisions outlined in 
paragraph (b)(4)(i) of this section. All psychiatric hospitals shall be 
accredited under an accrediting organization approved by the Director, 
in order for their services to be cost-shared under CHAMPUS. In the case 
of those psychiatric hospitals that are not accredited because they have 
not been in operation a sufficient period of time to be eligible to 
request an accreditation survey, the Director, or a designee, may grant 
temporary approval if the hospital is certified and participating under 
Title XVIII of the Social Security Act (Medicare, Part A). This 
temporary approval expires 12 months from the date on which the 
psychiatric hospital first becomes eligible to request an accreditation 
survey by an accrediting organization approved by the Director.
    (C) Factors to be considered in determining whether CHAMPUS will 
cost-share care provided in a psychiatric hospital include, but are not 
limited to, the following considerations:
    (1) Is the prognosis of the patient such that care provided will 
lead to resolution or remission of the mental illness to the degree that 
the patient is of no danger to others, can perform routine daily 
activities, and can be expected to function reasonably outside the 
inpatient setting?
    (2) Can the services being provided be provided more economically in 
another facility or on an outpatient basis?
    (3) Are the charges reasonable?
    (4) Is the care primarily custodial or domiciliary? (Custodial or 
domiciliary care of the permanently mentally ill or retarded is not a 
benefit under the Basic Program.)
    (D) Although psychiatric hospitals are accredited under an 
accrediting organization approved by Director, their medical records 
must be maintained in accordance with accrediting organization's current 
standards manual, along with the requirements set forth in Sec. 
199.7(b)(3). The hospital is responsible for assuring that patient 
services and all treatment are accurately documented and completed in a 
timely manner.
    (v) Long Term Care Hospital (LTCH). LTCHs must meet all the criteria 
for classification as an LTCH under 42 CFR part 412, subpart O, as well 
as all of the requirements of this part in order to be considered an 
authorized LTCH under the TRICARE program.
    (A) In order for the services of LTCHs to be covered, the hospitals 
must comply with the provisions outlined in paragraph (b)(4)(i) of this 
section. In addition, in order for services provided by such hospitals 
to be covered by TRICARE, they must be primarily for the treatment of 
the presenting illness.
    (B) Custodial or domiciliary care is not coverable under TRICARE, 
even if rendered in an otherwise authorized LTCH.
    (C) The controlling factor in determining whether a beneficiary's 
stay in a LTCH is coverable by TRICARE is the level of professional 
care, supervision, and skilled nursing care that the beneficiary 
requires, in addition to the diagnosis, type of condition, or degree of 
functional limitations. The type and level of medical services required 
or rendered is controlling for purposes of extending TRICARE benefits; 
not the type of provider or condition of the beneficiary.
    (vi) Skilled nursing facility. A skilled nursing facility is an 
institution (or a distinct part of an institution) that is engaged 
primarily in providing to inpatients medically necessary skilled nursing 
care, which is other than a nursing home or intermediate facility, and 
which:
    (A) Has policies that are developed with the advice of (and with 
provisions for review on a periodic basis by) a group of professionals, 
including one or more physicians and one or more registered nurses, to 
govern the skilled nursing care and related medical services it 
provides.
    (B) Has a physician, a registered nurse, or a medical staff 
responsible for the execution of such policies.
    (C) Has a requirement that the medical care of each patient must be 
under the supervision of a physician, and provides for having a 
physician available to furnish necessary medical care in case of an 
emergency.

[[Page 177]]

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

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

    (K) Is an authorized provider under the Medicare program, and meets 
the requirements of Title 18 of the social Security Act, sections 
1819(a), (b), (c), and (d) (42 U.S.C. 1395i-3(a)-(d)).

    Note: If a pediatric SNF is certified by Medicaid, it will be 
considered to meet the Medicare certification requirement in order to be 
an authorized provider under TRICARE.

    (vii) Residential treatment centers. This paragraph (b)(4)(vii) 
establishes the definition of and eligibility standards and requirements 
for residential treatment centers (RTCs).
    (A) Organization and administration--(1) Definition. A Residential 
Treatment Center (RTC) is a facility or a distinct part of a facility 
that provides to beneficiaries under 21 years of age a medically 
supervised, interdisciplinary program of mental health treatment. An RTC 
is appropriate for patients whose predominant symptom presentation is 
essentially stabilized, although not resolved, and who have persistent 
dysfunction in major life areas. Residential treatment may be 
complemented by family therapy and case management for community based 
resources. Discharge planning should support transitional care for the 
patient and family, to include resources available in the geographic 
area where the patient will be residing. The extent and pervasiveness of 
the patient's problems require a protected and highly structured 
therapeutic environment. Residential treatment is differentiated from:
    (i) Acute psychiatric care, which requires medical treatment and 24-
hour availability of a fullrange of diagnostic and therapeutic services 
to establish and implement an effective plan of care which will reverse 
life-threatening and/or severely incapacitating symptoms;
    (ii) Partial hospitalization, which provides a less than 24-hour-
per-day, seven-day-per-week treatment program for patients who continue 
to exhibit psychiatric problems but can function with support in some of 
the major life areas;
    (iii) A group home, which is a professionally directed living 
arrangement with the availability of psychiatric consultation and 
treatment for patients with significant family dysfunction and/or 
chronic but stable psychiatric disturbances;
    (iv) Therapeutic school, which is an educational program 
supplemented by psychological and psychiatric services;
    (v) Facilities that treat patients with a primary diagnosis of 
substance use disorder; and
    (vi) Facilities providing care for patients with a primary diagnosis 
of mental retardation or developmental disability.
    (2) Eligibility. (i) In order to qualify as a TRICARE authorized 
provider, every RTC must meet the minimum basic standards set forth in 
paragraphs

[[Page 178]]

(b)(4)(vii)(A) through (C) of this section, and as well as such 
additional elaborative criteria and standards as the Director determines 
are necessary to implement the basic standards.
    (ii) To qualify as a TRICARE authorized provider, the facility is 
required to be licensed and operate in substantial compliance with state 
and federal regulations.
    (iii) The facility is currently accredited by an accrediting 
organization approved by the Director.
    (iv) The facility has a written participation agreement with 
OCHAMPUS. The RTC is not a CHAMPUS-authorized provider and CHAMPUS 
benefits are not paid for services provided until the date upon which a 
participation agreement is signed by the Director.
    (B) Participation agreement requirements. In addition to other 
requirements set forth in this paragraph (b)(4)(vii), for the services 
of an RTC to be authorized, the RTC shall have entered into a 
Participation Agreement with OCHAMPUS. The period of a participation 
agreement shall be specified in the agreement, and will generally be for 
not more than five years. In addition to review of a facility's 
application and supporting documentation, an on-site inspection by 
OCHAMPUS authorized personnel may be required prior to signing a 
Participation Agreement. Retroactive approval is not given. In addition, 
the Participation Agreement shall include provisions that the RTC shall, 
at a minimum:
    (1) Render residential treatment center inpatient services to 
eligible CHAMPUS beneficiaries in need of such services, in accordance 
with the participation agreement and CHAMPUS regulation;
    (2) Accept payment for its services based upon the methodology 
provided in Sec. 199.14(f) or such other method as determined by the 
Director;
    (3) Accept the CHAMPUS all-inclusive per diem rate as payment in 
full and collect from the CHAMPUS beneficiary or the family of the 
CHAMPUS beneficiary only those amounts that represent the beneficiary's 
liability, as defined in Sec. 199.4, and charges for services and 
supplies that are not a benefit of CHAMPUS;
    (4) Make all reasonable efforts acceptable to the Director, to 
collect those amounts, which represents the beneficiary's liability, as 
defined in Sec. 199.4;
    (5) Comply with the provisions of Sec. 199.8, and submit claims 
first to all health insurance coverage to which the beneficiary is 
entitled that is primary to CHAMPUS;
    (6) Submit claims for services provided to CHAMPUS beneficiaries at 
least every 30 days (except to the extent a delay is necessitated by 
efforts to first collect from other health insurance). If claims are not 
submitted at least every 30 days, the RTC agrees not to bill the 
beneficiary or the beneficiary's family for any amounts disallowed by 
CHAMPUS;
    (7) Certify that:
    (i) It is and will remain in compliance with the TRICARE standards 
and provisions of paragraph (b)(4)(vii) of this section establishing 
standards for Residential Treatment Centers; and
    (ii) It will maintain compliance with the CHAMPUS Standards for 
Residential Treatment Centers Serving Children and Adolescents with 
Mental Disorders, as issued by the Director, except for any such 
standards regarding which the facility notifies the Director that it is 
not in compliance.
    (8) Designate an individual who will act as liaison for CHAMPUS 
inquiries. The RTC shall inform OCHAMPUS in writing of the designated 
individual;
    (9) Furnish OCHAMPUS, as requested by OCHAMPUS, with cost data 
certified by an independent accounting firm or other agency as 
authorized by the Director, OCHAMPUS;
    (10) Comply with all requirements of this section applicable to 
institutional providers generally concerning accreditation requirements, 
preauthorization, concurrent care review, claims processing, beneficiary 
liability, double coverage, utilization and quality review, and other 
matters;
    (11) Grant the Director, or designee, the right to conduct quality 
assurance audits or accounting audits with full access to patients and 
records (including records relating to patients who are not CHAMPUS 
beneficiaries) to determine the quality and cost-effectiveness of care 
rendered. The audits may

[[Page 179]]

be conducted on a scheduled or unscheduled (unannounced) basis. This 
right to audit/review includes, but is not limited to:
    (i) Examination of fiscal and all other records of the RTC which 
would confirm compliance with the participation agreement and 
designation as a TRICARE authorized RTC;
    (ii) Conducting such audits of RTC records including clinical, 
financial, and census records, as may be necessary to determine the 
nature of the services being provided, and the basis for charges and 
claims against the United States for services provided CHAMPUS 
beneficiaries;
    (iii) Examining reports of evaluations and inspections conducted by 
federal, state and local government, and private agencies and 
organizations;
    (iv) Conducting on-site inspections of the facilities of the RTC and 
interviewing employees, members of the staff, contractors, board 
members, volunteers, and patients, as required;
    (v) Audits conducted by the United States Government Accountability 
Office.
    (C) Other requirements applicable to RTCs. (1) Even though an RTC 
may qualify as a TRICARE authorized provider and may have entered into a 
participation agreement with CHAMPUS, payment by CHAMPUS for particular 
services provided is contingent upon the RTC also meeting all conditions 
set forth in Sec. 199.4 especially all requirements of Sec. 
199.4(b)(4).
    (2) The RTC shall provide inpatient services to CHAMPUS 
beneficiaries in the same manner it provides inpatient services to all 
other patients. The RTC may not discriminate against CHAMPUS 
beneficiaries in any manner, including admission practices, placement in 
special or separate wings or rooms, or provisions of special or limited 
treatment.
    (3) The RTC shall assure that all certifications and information 
provided to the Director, incident to the process of obtaining and 
retaining authorized provider status is accurate and that it has no 
material errors or omissions. In the case of any misrepresentations, 
whether by inaccurate information being provided or material facts 
withheld, authorized status will be denied or terminated, and the RTC 
will be ineligible for consideration for authorized provider status for 
a two year period.
    (viii) Christian Science sanatoriums. The services obtained in 
Christian Science sanatoriums are covered by CHAMPUS as inpatient care. 
To qualify for coverage, the sanatorium either must be operated by, or 
be listed and certified by the First Church of Christ, Scientist.
    (ix) Infirmaries. Infirmaries are facilities operated by student 
health departments of colleges and universities to provide inpatient or 
outpatient care to enrolled students. Charges for care provided by such 
facilities will not be cost-shared by CHAMPUS if the student would not 
be charged in the absence of CHAMPUS, or if student is covered by a 
mandatory student health insurance plan, in which enrollment is required 
as a part of the student's school registration and the charges by the 
college or university include a premium for the student health insurance 
coverage. CHAMPUS will cost-share only if enrollment in the student 
health program or health insurance plan is voluntary.

    Note: An infirmary in a boarding school also may qualify under this 
provision, subject to review and approval by the Director, OCHAMPUS or a 
designee.

    (x) Other special institution providers. (A) General. (1) Care 
provided by certain special institutional providers (on either an 
inpatient or outpatient basis), may be cost-shared by CHAMPUS under 
specified circumstances and only if the provider is specifically 
identified in paragraph (b)(4)(x) of this section.
    (i) The course of treatment is prescribed by a doctor of medicine or 
osteopathy.
    (ii) The patient is under the supervision of a physician during the 
entire course of the inpatient admission or the outpatient treatment.
    (iii) The type and level of care and service rendered by the 
institution are otherwise authorized by this part.
    (iv) The facility meets all licensing or other certification 
requirements that are extant in the jurisdiction in which the facility 
is located geographically.

[[Page 180]]

    (v) Is other than a nursing home, intermediate care facility, home 
for the aged, halfway house, or other similar institution.
    (vi) Is accredited by the JCAH or other CHAMPUS-approved 
accreditation organization, if an appropriate accreditation program for 
the given type of facility is available. As future accreditation 
programs are developed to cover emerging specialized treatment programs, 
such accreditation will be a prerequisite to coverage by CHAMPUS for 
services provided by such facilities.
    (2) To ensure that CHAMPUS beneficiaries are provided quality care 
at a reasonable cost when treated by a special institutional provider, 
the Director, OCHAMPUS may:
    (i) Require prior approval of all admissions to special 
institutional providers.
    (ii) Set appropriate standards for special institutional providers 
in addition to or in the absence of JCAHO accreditation.
    (iii) Monitor facility operations and treatment programs on a 
continuing basis and conduct onsite inspections on a scheduled and 
unscheduled basis.
    (iv) Negotiate agreements of participation.
    (v) Terminate approval of a case when it is ascertained that a 
departure from the facts upon which the admission was based originally 
has occurred.
    (vi) Declare a special institutional provider not eligible for 
CHAMPUS payment if that facility has been found to have engaged in 
fraudulent or deceptive practices.
    (3) In general, the following disclaimers apply to treatment by 
special institutional providers:
    (i) Just because one period or episode of treatment by a facility 
has been covered by CHAMPUS may not be construed to mean that later 
episodes of care by the same or similar facility will be covered 
automatically.
    (ii) The fact that one case has been authorized for treatment by a 
specific facility or similar type of facility may not be construed to 
mean that similar cases or later periods of treatment will be extended 
CHAMPUS benefits automatically.
    (B) Types of providers. The following is a list of facilities that 
have been designated specifically as special institutional providers.
    (1) Free-standing ambulatory surgical centers. Care provided by 
freestanding ambulatory surgical centers may be cost-shared by CHAMPUS 
under the following circumstances:
    (i) The treatment is prescribed and supervised by a physician.
    (ii) The type and level of care and services rendered by the center 
are otherwise authorized by this part.
    (iii) The center meets all licensing or other certification 
requirements of the jurisdiction in which the facility is located.
    (iv) The center is accredited by the JCAH, the Accreditation 
Association for Ambulatory Health Care, Inc. (AAAHC), or such other 
standards as authorized by the Director, OCHAMPUS.
    (v) A childbirth procedure provided by a CHAMPUS-approved free-
standing ambulatory surgical center shall not be cost-shared by the 
CHAMPUS unless the surgical center is also a CHAMPUS-approved birthing 
center institutional provider as established by the birthing center 
provider certification requirement of this Regulation.
    (2) [Reserved]
    (xi) Birthing centers. A birthing center is a freestanding or 
institution-affiliated outpatient maternity care program which 
principally provides a planned course of outpatient prenatal care and 
outpatient childbirth service limited to low-risk pregnancies; excludes 
care for high-risk pregnancies; limits childbirth to the use of natural 
childbirth procedures; and provides immediate newborn care.
    (A) Certification requirements. A birthing center which meets the 
following criteria may be designated as an authorized CHAMPUS 
institutional provider:
    (1) The predominant type of service and level of care rendered by 
the center is otherwise authorized by this part.
    (2) The center is licensed to operate as a birthing center where 
such license is available, or is specifically licensed as a type of 
ambulatory health care facility where birthing center specific license 
is not available, and meets all applicable licensing or certification 
requirements that are extant in the

[[Page 181]]

state, county, municipality, or other political jurisdiction in which 
the center is located.
    (3) The center is accredited by a nationally recognized 
accreditation organization whose standards and procedures have been 
determined to be acceptable by the Director, OCHAMPUS, or a designee.
    (4) The center complies with the CHAMPUS birthing center standards 
set forth in this part.
    (5) The center has entered into a participation agreement with 
OCHAMPUS in which the center agrees, in part, to:
    (i) Participate in CHAMPUS and accept payment for maternity services 
based upon the reimbursement methodology for birthing centers;
    (ii) Collect from the CHAMPUS beneficiary only those amounts that 
represent the beneficiary's liability under the participation agreement 
and the reimbursement methodology for birthing centers, and the amounts 
for services and supplies that are not a benefit of the CHAMPUS;
    (iii) Permit access by the Director, OCHAMPUS, or a designee, to the 
clinical record of any CHAMPUS beneficiary, to the financial and 
organizational records of the center, and to reports of evaluations and 
inspections conducted by state or private agencies or organizations;
    (iv) Submit claims first to all health benefit and insurance plans 
primary to the CHAMPUS to which the beneficiary is entitled and to 
comply with the double coverage provisions of this part;
    (v) Notify CHAMPUS in writing within 7 days of the emergency 
transport of any CHAMPUS beneficiary from the center to an acute care 
hospital or of the death of any CHAMPUS beneficiary in the center.
    (6) A birthing center shall not be a CHAMPUS-authorized 
institutional provider and CHAMPUS benefits shall not be paid for any 
service provided by a birthing center before the date the participation 
agreement is signed by the Director, OCHAMPUS, or a designee.
    (B) CHAMPUS birthing center standards. (1) Environment: The center 
has a safe and sanitary environment, properly constructed, equipped, and 
maintained to protect health and safety and meets the applicable 
provisions of the ``Life Safety Code'' of the National Fire Protection 
Association.
    (2) Policies and procedures: The center has written administrative, 
fiscal, personnel and clinical policies and procedures which 
collectively promote the provision of high-quality maternity care and 
childbirth services in an orderly, effective, and safe physical and 
organizational environment.
    (3) Informed consent: Each CHAMPUS beneficiary admitted to the 
center will be informed in writing at the time of admission of the 
nature and scope of the center's program and of the possible risks 
associated with maternity care and childbirth in the center.
    (4) Beneficiary care: Each woman admitted will be cared for by or 
under the direct supervision of a specific physician or a specific 
certified nurse-midwife who is otherwise eligible as a CHAMPUS 
individual professional provider.
    (5) Medical direction: The center has written memoranda of 
understanding (MOU) for routine consultation and emergency care with an 
obstetrician-gynecologist who is certified or is eligible for 
certification by the American Board of Obstetrics and Gynecology or the 
American Osteopathic Board of Obstetrics and Gynecology and with a 
pediatrician who is certified or eligible for certification by the 
American Board of Pediatrics or by the American Osteopathic Board of 
Pediatrics, each of whom have admitting privileges to at least one 
backup hospital. In lieu of a required MOU, the center may employ a 
physician with the required qualifications. Each MOU must be renewed 
annually.
    (6) Admission and emergency care criteria and procedures. The center 
has written clinical criteria and administrative procedures, which are 
reviewed and approved annually by a physician related to the center as 
required by paragraph (b)(4)(xi)(B)(5) above, for the exclusion of a 
woman with a high-risk pregnancy from center care and for management of 
maternal and neonatal emergencies.
    (7) Emergency treatment. The center has a written memorandum of 
understanding (MOU) with at least one

[[Page 182]]

backup hospital which documents that the hospital will accept and treat 
any woman or newborn transferred from the center who is in need of 
emergency obstetrical or neonatal medical care. In lieu of this MOU with 
a hospital, a birthing center may have an MOU with a physician, who 
otherwise meets the requirements as a CHAMPUS individual professional 
provider, and who has admitting privileges to a backup hospital capable 
of providing care for critical maternal and neonatal patients as 
demonstrated by a letter from that hospital certifying the scope and 
expected duration of the admitting privileges granted by the hospital to 
the physician. The MOU must be reviewed annually.
    (8) Emergency medical transportation. The center has a written 
memorandum of understanding (MOU) with at least one ambulance service 
which documents that the ambulance service is routinely staffed by 
qualified personnel who are capable of the management of critical 
maternal and neonatal patients during transport and which specifies the 
estimated transport time to each backup hospital with which the center 
has arranged for emergency treatment as required in paragraph 
(b)(4)(xi)(B)(7) above. Each MOU must be renewed annually.
    (9) Professional staff. The center's professional staff is legally 
and professionally qualified for the performance of their professional 
responsibilities.
    (10) Medical records. The center maintains full and complete written 
documentation of the services rendered to each woman admitted and each 
newborn delivered. A copy of the informed consent document required by 
paragraph (b)(4)(xi)(B)(3), above, which contains the original signature 
of the CHAMPUS beneficiary, signed and dated at the time of admission, 
must be maintained in the medical record of each CHAMPUS beneficiary 
admitted.
    (11) Quality assurance. The center has an organized program for 
quality assurance which includes, but is not limited to, written 
procedures for regularly scheduled evaluation of each type of service 
provided, of each mother or newborn transferred to a hospital, and of 
each death within the facility.
    (12) Governance and administration. The center has a governing body 
legally responsible for overall operation and maintenance of the center 
and a full-time employee who has authority and responsibility for the 
day-to-day operation of the center.
    (xii) Psychiatric and substance use disorder partial hospitalization 
programs. This paragraph (b)(4)(xii) establishes the definition of and 
eligibility standards and requirements for psychiatric and substance use 
disorder partial hospitalization programs.
    (A) Organization and administration--(1) Definition. Partial 
hospitalization is defined as a time-limited, ambulatory, active 
treatment program that offers therapeutically intensive, coordinated, 
and structured clinical services within a stable therapeutic milieu. 
Partial hospitalization programs serve patients who exhibit psychiatric 
symptoms, disturbances of conduct, and decompensating conditions 
affecting mental health. Partial hospitalization is appropriate for 
those whose psychiatric and addiction-related symptoms or concomitant 
physical and emotional/behavioral problems can be managed outside the 
hospital for defined periods of time with support in one or more of the 
major life areas. A partial hospitalization program for the treatment of 
substance use disorders is an addiction-focused service that provides 
active treatment to children and adolescents, or adults aged 18 and 
over.
    (2) Eligibility. (i) To qualify as a TRICARE authorized provider, 
every partial hospitalization program must meet minimum basic standards 
set forth in paragraphs (b)(4)(xii)(A) through (D) of this section, as 
well as such additional elaborative criteria and standards as the 
Director determines are necessary to implement the basic standards. Each 
partial hospitalization program must be either a distinct part of an 
otherwise-authorized institutional provider or a free-standing program. 
Approval of a hospital by TRICARE is sufficient for its partial 
hospitalization program to be an authorized TRICARE provider. Such 
hospital-based partial hospitalization programs are not required to be 
separately authorized by TRICARE.

[[Page 183]]

    (ii) To be approved as a TRICARE authorized provider, the facility 
is required to be licensed and operate in substantial compliance with 
state and federal regulations.
    (iii) The facility is required to be currently accredited by an 
accrediting organization approved by the Director. Each PHP authorized 
to treat substance use disorder must be accredited to provide the level 
of required treatment by an accreditation body approved by the Director.
    (iv) The facility is required to have a written participation 
agreement with OCHAMPUS. The PHP is not a CHAMPUS-authorized provider 
and CHAMPUS benefits are not paid for services provided until the date 
upon which a participation agreement is signed by the Director.
    (B) Participation agreement requirements. In addition to other 
requirements set forth in this paragraph (b)(4)(xii), in order for the 
services of a PHP to be authorized, the PHP shall have entered into a 
Participation Agreement with OCHAMPUS. A single consolidated 
participation agreement is acceptable for all units of the TRICARE 
authorized facility granted that all programs meet the requirements of 
this part. The period of a Participation Agreement shall be specified in 
the agreement, and will generally be for not more than five years. The 
PHP shall not be considered to be a CHAMPUS authorized provider and 
CHAMPUS payments shall not be made for services provided by the PHP 
until the date the participation agreement is signed by the Director. In 
addition to review of a facility's application and supporting 
documentation, an on-site inspection by OCHAMPUS authorized personnel 
may be required prior to signing a participation agreement. The 
Participation Agreement shall include at least the following 
requirements:
    (1) Render partial hospitalization program services to eligible 
CHAMPUS beneficiaries in need of such services, in accordance with the 
participation agreement and CHAMPUS regulation.
    (2) Accept payment for its services based upon the methodology 
provided in Sec. 199.14, or such other method as determined by the 
Director;
    (3) Accept the CHAMPUS all-inclusive per diem rate as payment in 
full and collect from the CHAMPUS beneficiary or the family of the 
CHAMPUS beneficiary only those amounts that represent the beneficiary's 
liability, as defined in Sec. 199.4, and charges for services and 
supplies that are not a benefit of CHAMPUS;
    (4) Make all reasonable efforts acceptable to the Director to 
collect those amounts, which represent the beneficiary's liability, as 
defined in Sec. 199.4;
    (5) Comply with the provisions of Sec. 199.8, and submit claims 
first to all health insurance coverage to which the beneficiary is 
entitled that is primary to CHAMPUS;
    (6) Submit claims for services provided to CHAMPUS beneficiaries at 
least every 30 days (except to the extent a delay is necessitated by 
efforts to first collect from other health insurance). If claims are not 
submitted at least every 30 days, the PHP agrees not to bill the 
beneficiary or the beneficiary's family for any amounts disallowed by 
CHAMPUS;
    (7) Certify that:
    (i) It is and will remain in compliance with the TRICARE standards 
and provisions of paragraph (b)(4)(xii) of this section establishing 
standards for psychiatric and substance use disorder partial 
hospitalization programs; and
    (ii) It will maintain compliance with the CHAMPUS Standards for 
Psychiatric Substance Use Disorder Partial Hospitalization Programs, as 
issued by the Director, except for any such standards regarding which 
the facility notifies the Director, or designee, that it is not in 
compliance.
    (8) Designate an individual who will act as liaison for CHAMPUS 
inquiries. The PHP shall inform the Director, or designee, in writing of 
the designated individual;
    (9) Furnish OCHAMPUS, as requested by OCHAMPUS, with cost data 
certified by an independent accounting firm or other agency as 
authorized by the Director;
    (10) Comply with all requirements of this section applicable to 
institutional providers generally concerning accreditation requirements, 
preauthorization,

[[Page 184]]

concurrent care review, claims processing, beneficiary liability, double 
coverage, utilization and quality review, and other matters;
    (11) Grant the Director, or designee, the right to conduct quality 
assurance audits or accounting audits with full access to patients and 
records (including records relating to patients who are not CHAMPUS 
beneficiaries) to determine the quality and cost-effectiveness of care 
rendered. The audits may be conducted on a scheduled or unscheduled 
(unannounced) basis. This right to audit/review includes, but is not 
limited to:
    (i) Examination of fiscal and all other records of the PHP which 
would confirm compliance with the participation agreement and 
designation as a TRICARE authorized PHP provider;
    (ii) Conducting such audits of PHP records including clinical, 
financial, and census records, as may be necessary to determine the 
nature of the services being provided, and the basis for charges and 
claims against the United States for services provided CHAMPUS 
beneficiaries;
    (iii) Examining reports of evaluations and inspections conducted by 
federal, state and local government, and private agencies and 
organizations;
    (iv) Conducting on-site inspections of the facilities of the PHP and 
interviewing employees, members of the staff, contractors, board 
members, volunteers, and patients, as required;
    (v) Audits conducted by the United States General Account Office.
    (C) Other requirements applicable to PHPs. (1) Even though a PHP may 
qualify as a TRICARE authorized provider and may have entered into a 
participation agreement with CHAMPUS, payment by CHAMPUS for particular 
services provided is contingent upon the PHP also meeting all conditions 
set forth in Sec. 199.4.
    (2) The PHP may not discriminate against CHAMPUS beneficiaries in 
any manner, including admission practices, placement in special or 
separate wings or rooms, or provisions of special or limited treatment.
    (3) The PHP shall assure that all certifications and information 
provided to the Director incident to the process of obtaining and 
retaining authorized provider status is accurate and that is has no 
material errors or omissions. In the case of any misrepresentations, 
whether by inaccurate information being provided or material facts 
withheld, authorized provider status will be denied or terminated, and 
the PHP will be ineligible for consideration for authorized provider 
status for a two year period.
    (xiii) Hospice programs. Hospice programs must be Medicare approved 
and meet all Medicare conditions of participation (42 CFR part 418) in 
relation to CHAMPUS patients in order to receive payment under the 
CHAMPUS program. A hospice program may be found to be out of compliance 
with a particular Medicare condition of participation and still 
participate in the CHAMPUS as long as the hospice is allowed continued 
participation in Medicare while the condition of noncompliance is being 
corrected. The hospice program can be either a public agency or private 
organization (or a subdivision thereof) which:
    (A) Is primarily engaged in providing the care and services 
described under Sec. 199.4(e)(19) and makes such services available on 
a 24-hour basis.
    (B) Provides bereavement counseling for the immediate family or 
terminally ill individuals.
    (C) Provides for such care and services in individuals' homes, on an 
outpatient basis, and on a short-term inpatient basis, directly or under 
arrangements made by the hospice program, except that the agency or 
organization must:
    (1) Ensure that substantially all the core services are routinely 
provided directly by hospice employees.
    (2) Maintain professional management responsibility for all services 
which are not directly furnished to the patient, regardless of the 
location or facility in which the services are rendered.
    (3) Provide assurances that the aggregate number of days of 
inpatient care provided in any 12-month period does not exceed 20 
percent of the aggregate number of days of hospice care during the same 
period.
    (4) Have an interdisciplinary group composed of the following 
personnel

[[Page 185]]

who provide the care and services described under Sec. 199.4(e)(19) and 
who establish the policies governing the provision of such care/
services:
    (i) A physician;
    (ii) A registered professional nurse;
    (iii) A social worker; and
    (iv) A pastoral or other counselor.
    (5) Maintain central clinical records on all patients.
    (6) Utilize volunteers.
    (7) The hospice and all hospice employees must be licensed in 
accordance with applicable Federal, State and local laws and 
regulations.
    (8) The hospice must enter into an agreement with CHAMPUS in order 
to be qualified to participate and to be eligible for payment under the 
program. In this agreement the hospice and CHAMPUS agree that the 
hospice will:
    (i) Not charge the beneficiary or any other person for items or 
services for which the beneficiary is entitled to have payment made 
under the CHAMPUS hospice benefit.
    (ii) Be allowed to charge the beneficiary for items or services 
requested by the beneficiary in addition to those that are covered under 
the CHAMPUS hospice benefit.
    (9) Meet such other requirements as the Secretary of Defense may 
find necessary in the interest of the health and safety of the 
individuals who are provided care and services by such agency or 
organization.
    (xiv) Substance use disorder rehabilitation facilities. This 
paragraph (b)(4)(xiv) establishes the definition of eligibility 
standards and requirements for residential substance use disorder 
rehabilitation facilities (SUDRF).
    (A) Organization and administration--(1) Definition. A SUDRF is a 
residential or rehabilitation facility, or distinct part of a facility, 
that provides medically monitored, interdisciplinary addiction-focused 
treatment to beneficiaries who have psychoactive substance use 
disorders. Qualified health care professionals provide 24-hour, seven-
day-per-week, assessment, treatment, and evaluation. A SUDRF is 
appropriate for patients whose addiction-related symptoms, or 
concomitant physical and emotional/behavioral problems reflect 
persistent dysfunction in several major life areas. Residential or 
inpatient rehabilitation is differentiated from:
    (i) Acute psychoactive substance use treatment and from treatment of 
acute biomedical/emotional/behavioral problems; which problems are 
either life-threatening and/or severely incapacitating and often occur 
within the context of a discrete episode of addiction-related biomedical 
or psychiatric dysfunction;
    (ii) A partial hospitalization center, which serves patients who 
exhibit emotional/behavioral dysfunction but who can function in the 
community for defined periods of time with support in one or more of the 
major life areas;
    (iii) A group home, sober-living environment, halfway house, or 
three-quarter way house;
    (iv) Therapeutic schools, which are educational programs 
supplemented by addiction-focused services;
    (v) Facilities that treat patients with primary psychiatric 
diagnoses other than psychoactive substance use or dependence; and
    (vi) Facilities that care for patients with the primary diagnosis of 
mental retardation or developmental disability.
    (2) Eligibility. (i) In order to become a TRICARE authorized 
provider, every SUDRF must meet minimum basic standards set forth in 
paragraphs (b)(4)(xiv)(A) through (C) of this section, as well as such 
additional elaborative criteria and standards as the Director determines 
are necessary to implement the basic standards.
    (ii) To be approved as a TRICARE authorized provider, the SUDRF is 
required to be licensed and operate in substantial compliance with state 
and federal regulations.
    (iii) The SUDRF is currently accredited by an accrediting 
organization approved by the Director. Each SUDRF must be accredited to 
provide the level of required treatment by an accreditation body 
approved by the Director.
    (iv) The SUDRF has a written participation agreement with OCHAMPUS. 
The SUDRF is not considered a TRICARE authorized provider, and CHAMPUS 
benefits are not paid for services provided until the date upon which a 
participation agreement is signed by the Director.

[[Page 186]]

    (B) Participation agreement requirements. In addition to other 
requirements set forth in this paragraph (b)(4)(xiv), in order for the 
services of an inpatient rehabilitation center for the treatment of 
substance use disorders to be authorized, the center shall have entered 
into a Participation Agreement with OCHAMPUS. A single consolidated 
participation agreement is acceptable for all units of the TRICARE 
authorized facility. The period of a Participation Agreement shall be 
specified in the agreement, and will generally be for not more than five 
years. The SUDRF shall not be considered to be a CHAMPUS authorized 
provider and CHAMPUS payments shall not be made for services provided by 
the SUDRF until the date the participation agreement is signed by the 
Director. In addition to review of the SUDRF's application and 
supporting documentation, an on-site visit by OCHAMPUS representatives 
may be part of the authorization process. The Participation Agreement 
shall include at least the following requirements:
    (1) Render applicable services to eligible CHAMPUS beneficiaries in 
need of such services, in accordance with the participation agreement 
and CHAMPUS regulation;
    (2) Accept payment for its services based upon the methodology 
provided in Sec. 199.14, or such other method as determined by the 
Director;
    (3) Accept the CHAMPUS-determined rate as payment in full and 
collect from the CHAMPUS beneficiary or the family of the CHAMPUS 
beneficiary only those amounts that represent the beneficiary's 
liability, as defined in Sec. 199.4, and charges for services and 
supplies that are not a benefit of CHAMPUS;
    (4) Make all reasonable efforts acceptable to the Director to 
collect those amounts which represent the beneficiary's liability, as 
defined in Sec. 199.4;
    (5) Comply with the provisions of Sec. 199.8, and submit claims 
first to all health insurance coverage to which the beneficiary is 
entitled that is primary to CHAMPUS;
    (6) Furnish OCHAMPUS with cost data, as requested by OCHAMPUS, 
certified to by an independent accounting firm or other agency as 
authorized by the Director;
    (7) Certify that:
    (i) It is and will remain in compliance with the provisions of 
paragraph (b)(4)(xiv) of the section establishing standards for 
substance use disorder rehabilitation facilities; and
    (ii) It has conducted a self-assessment of the facility's compliance 
with the CHAMPUS Standards for Substance Use Disorder Rehabilitation 
Facilities, as issued by the Director and notified the Director of any 
matter regarding which the facility is not in compliance with such 
standards; and
    (iii) It will maintain compliance with the CHAMPUS Standards for 
Substance Use Disorder Rehabilitation Facilities, as issued by the 
Director, except for any such standards regarding which the facility 
notifies the Director that it is not in compliance.
    (8) Designate an individual who will act as liaison for CHAMPUS 
inquiries. The SUDRF shall inform OCHAMPUS in writing of the designated 
individual;
    (9) Furnish OCHAMPUS, as requested by OCHAMPUS, with cost data 
certified by an independent accounting firm or other agency as 
authorized by the Director;
    (10) Comply with all requirements of this section applicable to 
institutional providers generally concerning accreditation requirements, 
preauthorization, concurrent care review, claims processing, beneficiary 
liability, double coverage, utilization and quality review, and other 
matters;
    (11) Grant the Director, or designee, the right to conduct quality 
assurance audits or accounting audits with full access to patients and 
records (including records relating to patients who are not CHAMPUS 
beneficiaries) to determine the quality and cost effectiveness of 
carerendered. The audits may be conducted on a scheduled or unscheduled 
(unannounced) basis. This right to audit/review included, but is not 
limited to:
    (i) Examination of fiscal and all other records of the center which 
would confirm compliance with the participation agreement and 
designation as an authorized TRICARE provider;
    (ii) Conducting such audits of center records including clinical, 
financial,

[[Page 187]]

and census records, as may be necessary to determine the nature of the 
services being provided, and the basis for charges and claims against 
the United States for services provided CHAMPUS beneficiaries;
    (iii) Examining reports of evaluations and inspection conducted by 
federal, state and local government, and private agencies and 
organizations;
    (iv) Conducting on-site inspections of the facilities of the SUDRF 
and interviewing employees, members of the staff, contractors, board 
members, volunteers, and patients, as required.
    (v) Audits conducted by the United States Government Accountability 
Office.
    (C) Other requirements applicable to substance use disorder 
rehabilitation facilities.
    (1) Even though a SUDRF may qualify as a TRICARE authorized provider 
and may have entered into a participation agreement with CHAMPUS, 
payment by CHAMPUS for particular services provided is contingent upon 
the SUDRF also meeting all conditions set forth in Sec. 199.4.
    (2) The center shall provide inpatient services to CHAMPUS 
beneficiaries in the same manner it provides services to all other 
patients. The center may not discriminate against CHAMPUS beneficiaries 
in any manner, including admission practices, placement in special or 
separate wings or rooms, or provisions of special or limited treatment.
    (3) The substance use disorder facility shall assure that all 
certifications and information provided to the Director, incident to the 
process of obtaining and retaining authorized provider status, is 
accurate and that it has no material errors or omissions. In the case of 
any misrepresentations, whether by inaccurate information being provided 
or material facts withheld, authorized provider status will be denied or 
terminated, and the facility will be ineligible for consideration for 
authorized provider status for a two year period.
    (xv) Home health agencies (HHAs). HHAs must be Medicare approved and 
meet all Medicare conditions of participation under sections 1861(o) and 
1891 of the Social Security Act (42 U.S.C. 1395x(o) and 1395bbb) and 42 
CFR part 484 in relation to TRICARE beneficiaries in order to receive 
payment under the TRICARE program. An HHA may be found to be out of 
compliance with a particular Medicare condition of participation and 
still participate in the TRICARE program as long as the HHA is allowed 
continued participation in Medicare while the condition of noncompliance 
is being corrected. An HHA is a public or private organization, or a 
subdivision of such an agency or organization, that meets the following 
requirements:
    (A) Engaged in providing skilled nursing services and other 
therapeutic services, such as physical therapy, speech-language 
pathology services, or occupational therapy, medical services, and home 
health aide services.
    (1) Makes available part-time or intermittent skilled nursing 
services and at least one other therapeutic service on a visiting basis 
in place of residence used as a patient's home.
    (2) Furnishes at least one of the qualifying services directly 
through agency employees, but may furnish the second qualifying service 
and additional services under arrangement with another HHA or 
organization.
    (B) Policies established by a professional group associated with the 
agency or organization (including at least one physician and one 
registered nurse) to govern the services and provides for supervision of 
such services by a physician or a registered nurse.
    (C) Maintains clinical records for all patients.
    (D) Licensed in accordance with State and local law or is approved 
by the State or local licensing agency as meeting the licensing 
standards, where applicable.
    (E) Enters into an agreement with TRICARE in order to participate 
and to be eligible for payment under the program. In this agreement the 
HHA and TRICARE agree that the HHA will:
    (1) Not charge the beneficiary or any other person for items or 
services for which the beneficiary is entitled to have payment under the 
TRICARE HHA prospective payment system.
    (2) Be allowed to charge the beneficiary for items or services 
requested by the beneficiary in addition to those

[[Page 188]]

that are covered under the TRICARE HHA prospective payment system.
    (F) Abide by the following consolidated billing requirements:
    (1) The HHA must submit all TRICARE claims for all home health 
services, excluding durable medical equipment (DME), while the 
beneficiary is under the home health plan without regard to whether or 
not the item or service was furnished by the HHA, by others under 
arrangement with the HHA, or under any other contracting or consulting 
arrangement.
    (2) Separate payment will be made for DME items and services 
provided under the home health benefit which are under the DME fee 
schedule. DME is excluded from the consolidated billing requirements.
    (3) Home health services included in consolidated billing are:
    (i) Part-time or intermittent skilled nursing;
    (ii) Part-time or intermittent home health aide services;
    (iii) Physical therapy, occupational therapy and speech-language 
pathology;
    (iv) Medical social services;
    (v) Routine and non-routine medical supplies;
    (vi) A covered osteoporosis drug (not paid under PPS rate) but 
excluding other drugs and biologicals;
    (vii) Medical services provided by an intern or resident-in-training 
of a hospital, under an approved teaching program of the hospital in the 
case of an HHA that is affiliated or under common control of a hospital;
    (viii) Services at hospitals, SNFs or rehabilitation centers when 
they involve equipment too cumbersome to bring home.
    (G) Meet such other requirements as the Secretary of Health and 
Human Services and/or Secretary of Defense may find necessary in the 
interest of the health and safety of the individuals who are provided 
care and services by such agency or organization.
    (xvi) Critical Access Hospitals (CAHs). CAHs must meet all 
conditions of participation under 42 CFR 485.601 through 485.645 in 
relation to TRICARE beneficiaries in order to receive payment under the 
TRICARE program. If a CAH provides inpatient psychiatric services or 
inpatient rehabilitation services in a distinct part unit, the distinct 
part unit must meet the conditions of participation in 42 CFR 485.647, 
with the exception of being paid under the inpatient prospective payment 
system for psychiatric facilities as specified in 42 CFR 412.1(a)(2) or 
the inpatient prospective payment system for rehabilitation hospitals or 
rehabilitation units as specified in 42 CFR 412.1(a)(3). Upon 
implementation of TRICARE's IRF PPS in Sec. 199.14(a)(10), if a CAH 
provides inpatient rehabilitation services in a distinct part unit, the 
distinct part unit shall be paid under TRICARE's IRF PPS.
    (xvii) Sole community hospitals (SCHs). SCHs must meet all the 
criteria for classification as an SCH under 42 CFR 412.92, in order to 
be considered an SCH under the TRICARE program.
    (xviii) Intensive outpatient programs. This paragraph (b)(4)(xviii) 
establishes standards and requirements for intensive outpatient 
treatment programs for psychiatric and substance use disorder.
    (A) Organization and administration--(1) Definition. Intensive 
outpatient treatment (IOP) programs are defined in Sec. 199.2. IOP 
services consist of a comprehensive and complimentary schedule of 
recognized treatment approaches that may include day, evening, night, 
and weekend services consisting of individual and group counseling or 
therapy, and family counseling or therapy as clinically indicated for 
children and adolescents, or adults aged 18 and over, and may include 
case management to link patients and their families with community based 
support systems.
    (2) Eligibility. (i) In order to qualify as a TRICARE authorized 
provider, every intensive outpatient program must meet the minimum basic 
standards set forth in paragraphs (b)(4)(xviii)(A) through (C) of this 
section, as well as additional elaborative criteria and standards as the 
Director determines are necessary to implement the basic standards. Each 
intensive outpatient program must be either a distinct part of an 
otherwise-authorized institutional provider or a free-standing 
psychiatric or substance use disorder intensive outpatient program. 
Approval of a hospital by TRICARE is sufficient for its IOP to be an 
authorized

[[Page 189]]

TRICARE provider. Such hospital-based intensive outpatient programs are 
not required to be separately authorized by TRICARE.
    (ii) To qualify as a TRICARE authorized provider, the IOP is 
required to be licensed and operate in substantial compliance with state 
and federal regulations.
    (iii) The IOP is currently accredited by an accrediting organization 
approved by the Director. Each IOP authorized to treat substance use 
disorder must be accredited to provide the level of required treatment 
by an accreditation body approved by the Director.
    (iv) The facility has a written participation agreement with 
TRICARE. The IOP is not considered a TRICARE authorized provider and 
TRICARE benefits are not paid for services provided until the date upon 
which a participation agreement is signed by the Director.
    (B) Participation agreement requirements. In addition to other 
requirements set forth in paragraph (b)(4)(xii) of this section, in 
order for the services of an IOP to be authorized, the IOP shall have 
entered into a Participation Agreement with TRICARE. A single 
consolidated participation agreement is acceptable for all units of the 
TRICARE authorized facility granted that all programs meet the 
requirements of this part. The period of a Participation Agreement shall 
be specified in the agreement, and will generally be for not more than 
five years. In addition to review of a facility's application and 
supporting documentation, an on-site inspection by DHA authorized 
personnel may be required prior to signing a participation agreement. 
The Participation Agreement shall include at least the following 
requirements:
    (1) Render intensive outpatient program services to eligible TRICARE 
beneficiaries in need of such services, in accordance with the 
participation agreement and TRICARE regulation.
    (2) Accept payment for its services based upon the methodology 
provided in Sec. 199.14, or such other method as determined by the 
Director;
    (3) Collect from the TRICARE beneficiary or the family of the 
TRICARE beneficiary only those amounts that represent the beneficiary's 
liability, as defined in Sec. 199.4, and charges for services and 
supplies that are not a benefit of TRICARE;
    (4) Make all reasonable efforts acceptable to the Director to 
collect those amounts, which represent the beneficiary's liability, as 
defined in Sec. 199.4;
    (5) Comply with the provisions of Sec. 199.8, and submit claims 
first to all health insurance coverage to which the beneficiary is 
entitled that is primary to TRICARE;
    (6) Submit claims for services provided to TRICARE beneficiaries at 
least every 30 days (except to the extent a delay is necessitated by 
efforts to first collect from other health insurance). If claims are not 
submitted at least every 30 days, the IOP agrees not to bill the 
beneficiary or the beneficiary's family for any amounts disallowed by 
TRICARE;
    (7) Free-standing intensive outpatient programs shall certify that:
    (i) It is and will remain in compliance with the provisions of 
paragraph (b)(4)(xii) of this section establishing standards for 
psychiatric and SUD IOPs;
    (ii) It has conducted a self-assessment of the facility's compliance 
with the CHAMPUS Standards for Intensive Outpatient Programs, as issued 
by the Director, and notified the Director of any matter regarding which 
the facility is not in compliance with such standards; and
    (iii) It will maintain compliance with the TRICARE standards for 
IOPs, as issued by the Director, except for any such standards regarding 
which the facility notifies the Director, or a designee that it is not 
in compliance.
    (8) Designate an individual who will act as liaison for TRICARE 
inquiries. The IOP shall inform TRICARE, or a designee in writing of the 
designated individual;
    (9) Furnish OCHAMPUS with cost data, as requested by OCHAMPUS, 
certified by an independent accounting firm or other agency as 
authorized by the Director.
    (10) Comply with all requirements of this section applicable to 
institutional providers generally concerning accreditation requirements, 
preauthorization,

[[Page 190]]

concurrent care review, claims processing, beneficiary liability, double 
coverage, utilization and quality review, and other matters;
    (11) Grant the Director, or designee, the right to conduct quality 
assurance audits or accounting audits with full access to patients and 
records (including records relating to patients who are not CHAMPUS 
beneficiaries) to determine the quality and cost effectiveness of care 
rendered. The audits may be conducted on a scheduled or unscheduled 
(unannounced) basis. This right to audit/review included, but is not 
limited to:
    (i) Examination of fiscal and all other records of the center which 
would confirm compliance with the participation agreement and 
designation as an authorized TRICARE provider;
    (ii) Conducting such audits of center records including clinical, 
financial, and census records, as may be necessary to determine the 
nature of the services being provided, and the basis for charges and 
claims against the United States for services provided CHAMPUS 
beneficiaries;
    (iii) Examining reports of evaluations and inspection conducted by 
federal, state and local government, and private agencies and 
organizations;
    (iv) Conducting on-site inspections of the facilities of the IOP and 
interviewing employees, members of the staff, contractors, board 
members, volunteers, and patients, as required.
    (v) Audits conducted by the United States Government Accountability 
Office.
    (C) Other requirements applicable to Intensive Outpatient Programs 
(IOP). (1) Even though an IOP may qualify as a TRICARE authorized 
provider and may have entered into a participation agreement with 
CHAMPUS, payment by CHAMPUS for particular services provided is 
contingent upon the IOP also meeting all conditions set forth in Sec. 
199.4.
    (2) The IOP may not discriminate against CHAMPUS beneficiaries in 
any manner, including admission practices, placement in special or 
separate wings or rooms, or provisions of special or limited treatment.
    (3) The IOP shall assure that all certifications and information 
provided to the Director incident to the process of obtaining and 
retaining authorized provider status is accurate and that is has no 
material errors or omissions. In the case of any misrepresentations, 
whether by inaccurate information being provided or material facts 
withheld, authorized provider status will be denied or terminated, and 
the IOP will be ineligible for consideration for authorized provider 
status for a two year period.
    (xix) Opioid Treatment Programs (OTPs). This paragraph (b)(4)(xix) 
establishes standards and requirements for Opioid Treatment Programs.
    (A) Organization and administration. (1) Definition. Opioid 
Treatment Programs (OTPs) are defined in Sec. 199.2. Opioid Treatment 
Programs (OTPs) are organized, ambulatory, addiction treatment services 
for patients with an opioid use disorder. OTPs have the capacity to 
provide daily direct administration of medications without the 
prescribing of medications. Medication supplies for patients to take 
outside of OTPs originate from within OTPs. OTPs offer medication 
assisted treatment, patient-centered, recovery-oriented individualized 
treatment through addiction counseling, mental health therapy, case 
management, and health education.
    (2) Eligibility. (i) Every free-standing Opioid Treatment Program 
must be accredited by an accrediting organization recognized by 
Director, under the current standards of an accrediting organization, as 
well as meet additional elaborative criteria and standards as the 
Director determines are necessary to implement the basic standards. OTPs 
adhere to requirements of the Department of Health and Human Services' 
42 CFR part 8, the Substance Abuse and Mental Health Services 
Administration's Center for Substance Abuse Treatment, and the Drug 
Enforcement Agency. OTPs must be either a distinct part of an otherwise 
authorized institutional provider or a free-standing program. Approval 
of hospitals by TRICARE is sufficient for their OTPs to be authorized 
TRICARE providers. Such hospital-based OTPs, if certified under 42 CFR 
8, are not required to be separately authorized by TRICARE.

[[Page 191]]

    (ii) To qualify as a TRICARE authorized provider, OTPs are required 
to be licensed and operate in substantial compliance with state and 
federal regulations.
    (iii) OTPs have a written participation agreement with OCHAMPUS. 
OTPs are not considered a TRICARE authorized provider, and CHAMPUS 
benefits are not paid for services provided until the date upon which a 
participation agreement is signed by the Director.
    (B) Participation agreement requirements. In addition to other 
requirements set forth in this paragraph (b)(4)(xix), in order for the 
services of OTPs to be authorized, OTPs shall have entered into a 
Participation Agreement with TRICARE. A single consolidated 
participation agreement is acceptable for all units of a TRICARE 
authorized facility. The period of a Participation Agreement shall be 
specified in the agreement, and will generally be for not more than five 
years. In addition to review of a facility's application and supporting 
documentation, an on-site inspection by DHA authorized personnel may be 
required prior to signing a participation agreement. The Participation 
Agreement shall include at least the following requirements:
    (1) Render services from OTPs to eligible TRICARE beneficiaries in 
need of such services, in accordance with the participation agreement 
and TRICARE regulation.
    (2) Accept payment for its services based upon the methodology 
provided in Sec. 199.14, or such other method as determined by the 
Director;
    (3) Collect from the TRICARE beneficiary or the family of the 
TRICARE beneficiary only those amounts that represent the beneficiary's 
liability, as defined in Sec. 199.4, and charges for services and 
supplies that are not a benefit of TRICARE;
    (4) Make all reasonable efforts acceptable to the Director to 
collect those amounts, which represent the beneficiary's liability, as 
defined in Sec. 199.4;
    (5) Comply with the provisions of Sec. 199.8, and submit claims 
first to all health insurance coverage to which the beneficiary is 
entitled that is primary to TRICARE;
    (6) Submit claims for services provided to TRICARE beneficiaries at 
least every 30 days (except to the extent a delay is necessitated by 
efforts to first collect from other health insurance). If claims are not 
submitted at least every 30 days, OTPs agree not to bill the beneficiary 
or the beneficiary's family for any amounts disallowed by TRICARE;
    (7) Free-standing opioid treatment programs shall certify that:
    (i) It is and will remain in compliance with the provisions of 
paragraph (b)(4)(xii) of this section establishing standards for opioid 
treatment programs;
    (ii) It will maintain compliance with the TRICARE standards for 
OTPs, as issued by the Director, except for any such standards regarding 
which the facility notifies the Director, or a designee, that it is not 
in compliance.
    (8) Designate an individual who will act as liaison for TRICARE 
inquiries. OTPs shall inform TRICARE, or a designee, in writing of the 
designated individual;
    (9) Furnish TRICARE, or a designee, with cost data, as requested by 
TRICARE, certified by an independent accounting firm or other agency as 
authorized by the Director;
    (10) Comply with all requirements of this section applicable to 
institutional providers generally concerning accreditation requirements, 
claims processing, beneficiary liability, double coverage, utilization 
and quality review, and other matters;
    (11) Grant the Director, or designee, the right to conduct quality 
assurance audits or accounting audits with full access to patients and 
records (including records relating to patients who are not TRICARE 
beneficiaries) to determine the quality and cost effectiveness of care 
rendered. The audits may be conducted on a scheduled or unscheduled 
(unannounced) basis. This right to audit/review includes, but is not 
limited to:
    (i) Examination of fiscal and all other records of OTPs which would 
confirm compliance with the participation agreement and designation as 
an authorized TRICARE provider;
    (ii) Conducting such audits of OTPs' records including clinical, 
financial,

[[Page 192]]

and census records, as may be necessary to determine the nature of the 
services being provided, and the basis for charges and claims against 
the United States for services provided TRICARE beneficiaries;
    (iii) Examining reports of evaluations and inspections conducted by 
federal, state and local government, and private agencies and 
organizations.
    (C) Other requirements applicable to OTPs. (1) Even though OTPs may 
qualify as a TRICARE authorized provider and may have entered into a 
participation agreement with CHAMPUS, payment by CHAMPUS for particular 
services provided is contingent upon OTPs also meeting all conditions 
set forth in Sec. 199.4.
    (2) OTPs may not discriminate against CHAMPUS beneficiaries in any 
manner, including admission practices or provisions of special or 
limited treatment.
    (3) OTPs shall assure that all certifications and information 
provided to the Director incident to the process of obtaining and 
retaining authorized provider status is accurate and that is has no 
material errors or omissions. In the case of any misrepresentations, 
whether by inaccurate information being provided or material facts 
withheld, authorized provider status will be denied or terminated, and 
OTPs will be ineligible for consideration for authorized provider status 
for a two year period.
    (xx) Inpatient Rehabilitation Facility (IRF). IRFs must meet all the 
criteria for classification as an IRF under 42 CFR part 412, subpart B, 
and meet all applicable requirements established in this part in order 
to be considered an authorized IRF under the TRICARE program.
    (A) In order for the services of inpatient rehabilitation facilities 
to be covered, the facility must comply with the provisions outlined in 
paragraph (b)(4)(i) of this section. In addition, in order for services 
provided by these facilities to be covered by TRICARE, they must be 
primarily for the treatment of the presenting illness.
    (B) Custodial or domiciliary care is not coverable under TRICARE, 
even if rendered in an otherwise authorized inpatient rehabilitation 
facility.
    (C) The controlling factor in determining whether a beneficiary's 
stay in an inpatient rehabilitation facility is coverable by TRICARE is 
the level of professional care, supervision, and skilled nursing care 
that the beneficiary requires, in addition to the diagnosis, type of 
condition, or degree of functional limitations. The type and level of 
medical services required or rendered is controlling for purposes of 
extending TRICARE benefits; not the type of provider or condition of the 
beneficiary.
    (xxi) Freestanding End Stage Renal Disease (ESRD) facilities. 
Freestanding ESRD facilities must be Medicare certified and meet all 
Medicare conditions for coverage as provided in 42 CFR part 494, and be 
classified as freestanding ESRD facilities by Medicare, in order to be 
approved as TRICARE-authorized institutional providers and receive 
payment under the TRICARE program. State licensing are not required in 
cases of a freestanding ESRD facility located in a State that does not 
license such facilities. Freestanding ESRD facilities are not hospital-
affiliated nor hospital-based and are reimbursed based on the payment 
methodology established in Sec. 199.14(c). Freestanding ESRD facilities 
render outpatient hemodialysis or peritoneal dialysis services in the 
ESRD facility or in a patient's home for the treatment of ESRD and acute 
kidney injury (AKI).
    (c) Individual professional providers of care--(1) General--(i) 
Purpose. This individual professional provider class is established to 
accommodate individuals who are recognized by 10 U.S.C. 1079(a) as 
authorized to assess or diagnose illness, injury, or bodily malfunction 
as a prerequisite for CHAMPUS cost-share of otherwise allowable related 
preventive or treatment services or supplies, and to accommodate such 
other qualified individuals who the Director, OCHAMPUS, or designee, may 
authorize to render otherwise allowable services essential to the 
efficient implementation of a plan-of-care established and managed by a 
10 U.S.C. 1079(a) authorized professional.
    (ii) Professional corporation affiliation or association membership 
permitted. Paragraph (c) of this section applies to

[[Page 193]]

those individual health care professionals who have formed a 
professional corporation or association pursuant to applicable state 
laws. Such a professional corporation or association may file claims on 
behalf of a CHAMPUS-authorized individual professional provider and be 
the payee for any payment resulting from such claims when the CHAMPUS-
authorized individual certifies to the Director, OCHAMPUS, or designee, 
in writing that the professional corporation or association is acting on 
the authorized individual's behalf.
    (iii) Scope of practice limitation. For CHAMPUS cost-sharing to be 
authorized, otherwise allowable services provided by a CHAMPUS-
authorized individual professional provider shall be within the scope of 
the individual's license as regulated by the applicable state practice 
act of the state where the individual rendered the service to the 
CHAMPUS beneficiary or shall be within the scope of the test which was 
the basis for the individual's qualifying certification.
    (iv) Employee status exclusion. An individual employed directly, or 
indirectly by contract, by an individual or entity to render 
professional services otherwise allowable by this part is excluded from 
provider status as established by this paragraph (c) for the duration of 
each employment.
    (v) Training status exclusion. Individual health care professionals 
who are allowed to render health care services only under direct and 
ongoing supervision as training to be credited towards earning a 
clinical academic degree or other clinical credential required for the 
individual to practice independently are excluded from provider status 
as established by this paragraph (c) for the duration of such training.
    (2) Conditions of authorization--(i) Professional license 
requirement. The individual must be currently licensed to render 
professional health care services in each state in which the individual 
renders services to CHAMPUS beneficiaries. Such license is required when 
a specific state provides, but does not require, license for a specific 
category of individual professional provider. The license must be at 
full clinical practice level to meet this requirement. A temporary 
license at the full clinical practice level is acceptable. During the 
period of national emergency for the global coronavirus 2019 (COVID-19) 
pandemic, a license is not required in the United States for each state 
in which the provider practices, so long as the provider holds an 
equivalent license in another state, the state in which the provider is 
practicing permits such practice under its interstate licensing 
requirements or the state licensing requirements have been preempted by 
Federal law, and the provider is not affirmatively barred or restricted 
from practicing in any state. During the COVID-19 pandemic, providers 
overseas are not required to be licensed in each nation in which the 
provider operates, so long as the provider holds an equivalent license 
in another nation, the host nation permits such practice under its 
licensing requirements, and the provider is not on the Department of 
Health and Human Services sanction list.
    (ii) Professional certification requirement. When a state does not 
license a specific category of individual professional, certification by 
a Qualified Accreditation Organization, as defined in Sec. 199.2, is 
required. Certification must be at full clinical practice level. A 
temporary certification at the full clinical practice level is 
acceptable.
    (iii) Education, training and experience requirement. The Director, 
OCHAMPUS, or designee, may establish for each category or type of 
provider allowed by this paragraph (c) specific education, training, and 
experience requirements as necessary to promote the delivery of services 
by fully qualified individuals.
    (iv) Physician referral and supervision. When physician referral and 
supervision is a prerequisite for CHAMPUS cost-sharing of the services 
of a provider authorized under this paragraph (c), such referral and 
supervision means that the physicians must actually see the patient to 
evaluate and diagnose the condition to be treated prior to referring the 
beneficiary to another provider and that the referring physician 
provides ongoing oversight of the course of referral related treatment 
throughout the period during which

[[Page 194]]

the beneficiary is being treated in response to the referral. Written 
contemporaneous documentation of the referring physician's basis for 
referral and ongoing communication between the referring and treating 
provider regarding the oversight of the treatment rendered as a result 
of the referral must meet all requirements for medical records 
established by this part. Referring physician supervision does not 
require physical location on the premises of the treating provider or at 
the site of treatment.
    (v) Subject to section 1079(a) of title 10, U.S.C., chapter 55, a 
physician or other health care practitioner who is eligible to receive 
reimbursement for services provided under Medicare (as defined in 
section 1086(d)(3)(C) of title 10 U.S.C., chapter 55) shall be 
considered approved to provide medical care authorized under section 
1079 and section 1086 of title 10, U.S.C., chapter 55 unless the 
administering Secretaries have information indicating Medicare, TRICARE, 
or other Federal health care program integrity violations by the 
physician or other health care practitioner. Approval is limited to 
those classes of provider currently considered TRICARE authorized 
providers as outlined in 32 CFR 199.6. Services and supplies rendered by 
those providers who are not currently considered authorized providers 
shall be denied.
    (3) Types of providers. Subject to the standards of participation 
provisions of this part, the following individual professional providers 
of medical care are authorized to provide services to CHAMPUS 
beneficiaries:
    (i) Physicians. (A) Doctors of Medicine (M.D.).
    (B) Doctors of Osteopathy (D.O.).
    (ii) Dentists. Except for covered oral surgery as specified in Sec. 
199.4(e) of this part, all otherwise covered services rendered by 
dentists require preauthorization.
    (A) Doctors of Dental Medicine (D.M.D.).
    (B) Doctors of Dental Surgery (D.D.S.).
    (iii) Other allied health professionals. The services of the 
following individual professional providers of care are coverable on a 
fee-for-service basis provided such services are otherwise authorized in 
this or other sections of this part.
    (A) Clinical psychologist. For purposes of CHAMPUS, a clinical 
psychologist is an individual who is licensed or certified by the state 
for the independent practice of psychology and:
    (1) Possesses a doctoral degree in psychology from a regionally 
accredited university; and
    (2) Has had 2 years of supervised clinical experience in 
psychological health services of which at least 1 year is post-doctoral 
and 1 year (may be the post-doctoral year) is in an organized 
psychological health service training program; or
    (3) As an alternative to paragraphs (c)(3)(iii)(A)(1) and (2) of 
this section is listed in the National Register of Health Service 
Providers in Psychology.
    (B) Doctors of Optometry.
    (C) Doctors of Podiatric Medicine or Podiatrists.
    (D) Certified nurse midwives.
    (1) A certified nurse midwife may provide covered care independent 
of physician referral and supervision, provided the nurse midwife is:
    (i) Licensed, when required, by the local licensing agency for the 
jurisdiction in which the care is provided; and
    (ii) Certified by the American College of Nurse Midwives. To receive 
certification, a candidate must be a registered nurse who has completed 
successfully an educational program approved by the American College of 
Nurse Midwives, and passed the American College of Nurse Midwives 
National Certification Examination.
    (2) The services of a registered nurse who is not a certified nurse 
midwife may be authorized only when the patient has been referred for 
care by a licensed physician and a licensed physician provides 
continuing supervision of the course of care. A lay midwife who is 
neither a certified nurse midwife nor a registered nurse is not a 
CHAMPUS-authorized provider, regardless of whether the services rendered 
may otherwise be covered.
    (E) Certified nurse practitioner. Within the scope of applicable 
licensure or certification requirements, a certified nurse practitioner 
may provide covered care independent of physician referral

[[Page 195]]

and supervision, provided the nurse practitioner is:
    (1) A licensed, registered nurse; and
    (2) Specifically licensed or certified as a nurse practitioner by 
the state in which the care was provided, if the state offers such 
specific licensure or certification; or
    (3) Certified as a nurse practitioner (certified nurse) by a 
professional organization offering certification in the specialty of 
practice, if the state does not offer specific licensure or 
certification for nurse practitioners.
    (F) Certified Clinical Social Worker. A clinical social worker may 
provide covered services independent of physician referral and 
supervision, provided the clinical social worker:
    (1) Is licensed or certified as a clinical social worker by the 
jurisdiction where practicing; or, if the jurisdiction does not provide 
for licensure or certification of clinical social workers, is certified 
by a national professional organization offering certification of 
clinical social workers; and
    (2) Has at least a master's degree in social work from a graduate 
school of social work accredited by the Council on Social Work 
Education; and
    (3) Has had a minimum of 2 years or 3,000 hours of post-master's 
degree supervised clinical social work practice under the supervision of 
a master's level social worker in an appropriate clinical setting, as 
determined by the Director, OCHAMPUS, or a designee.

    Note: Patients' organic medical problems must receive appropriate 
concurrent management by a physician.

    (G) Certified psychiatric nurse specialist. A certified psychiatric 
nurse specialist may provide covered care independent of physician 
referral and supervision. For purposes of CHAMPUS, a certified 
psychiatric nurse specialist is an individual who:
    (1) Is a licensed, registered nurse; and
    (2) Has at least a master's degree in nursing from a regionally 
accredited institution with a specialization in psychiatric and mental 
health nursing; and
    (3) Has had at least 2 years of post-master's degree practice in the 
field of psychiatric and mental health nursing, including an average of 
8 hours of direct patient contact per week; or
    (4) Is listed in a CHAMPUS-recognized, professionally sanctioned 
listing of clinical specialists in psychiatric and mental health 
nursing.
    (H) Certified physician assistant. A physician assistant may provide 
care under general supervision of a physician (see Sec. 
199.14(j)(1)(ix) of this part for limitations on reimbursement). For 
purposes of CHAMPUS, a physician assistant must meet the applicable 
state requirements governing the qualifications of physician assistants 
and at least one of the following conditions:
    (1) Is currently certified by the National Commission on 
Certification of Physician Assistants to assist primary care physicians, 
or
    (2) Has satisfactorily completed a program for preparing physician 
assistants that:
    (i) Was at least 1 academic year in length;
    (ii) Consisted of supervised clinical practice and at least 4 months 
(in the aggregate) of classroom instruction directed toward preparing 
students to deliver health care; and
    (iii) Was accredited by the American Medical Association's Committee 
on Allied Health Education and Accreditation; or
    (3) Has satisfactorily completed a formal educational program for 
preparing program physician assistants that does not meet the 
requirement of paragraph (c)(3)(iii)(H)(2) of this section and had been 
assisting primary care physicians for a minimum of 12 months during the 
18-month period immediately preceding January 1, 1987.
    (I) Anesthesiologist Assistant. An anesthesiologist assistant may 
provide covered anesthesia services, if the anesthesiologist assistant:
    (1) Works under the direct supervision of an anesthesiologist who 
bills for the services and for each patient;
    (i) The anesthesiologist performs a pre-anesthetic examination and 
evaluation;
    (ii) The anesthesiologist prescribes the anesthesia plan;
    (iii) The anesthesiologist personally participates in the most 
demanding aspects of the anesthesia plan including, if applicable, 
induction and emergence;
    (iv) The anesthesiologist ensures that any procedures in the 
anesthesia plan

[[Page 196]]

that he or she does not perform are performed by a qualified 
anesthesiologist assistant;
    (v) The anesthesiologist monitors the course of anesthesia 
administration at frequent intervals;
    (vi) The anesthesiologist remains physically present and available 
for immediate personal diagnosis and treatment of emergencies;
    (vii) The anesthesiologist provides indicated post-anesthesia care; 
and
    (viii) The anesthesiologist performs no other services while he or 
she supervises no more than four anesthesiologist assistants 
concurrently or a lesser number if so limited by the state in which the 
procedure is performed.
    (2) Is in compliance with all applicable requirements of state law, 
including any licensure requirements the state imposes on nonphysician 
anesthetists; and
    (3) Is a graduate of a Master's level anesthesiologist assistant 
educational program that is established under the auspices of an 
accredited medical school and that:
    (i) Is accredited by the Committee on Allied Health Education and 
Accreditation, or its successor organization; and
    (ii) Includes approximately two years of specialized basic science 
and clinical education in anesthesia at a level that builds on a 
premedical undergraduate science background.
    (4) The Director, TMA, or a designee, shall issue TRICARE policies, 
instructions, procedures, guidelines, standards, and criteria as may be 
necessary to implement the intent of this section.
    (J) Certified Registered Nurse Anesthetist (CRNA). A certified 
registered nurse anesthetist may provide covered care independent of 
physician referral and supervision as specified by state licensure. For 
purposes of CHAMPUS, a certified registered nurse anesthetist is an 
individual who:
    (1) Is a licensed, registered nurse; and
    (2) Is certified by the Council on Certification of Nurse 
Anesthetists, or its successor organization.
    (K) Other individual paramedical providers. (1) The services of the 
following individual professional providers of care to be considered for 
benefits on a fee-for-service basis may be provided only if the 
beneficiary is referred by a physician for the treatment of a medically 
diagnosed condition and a physician must also provide continuing and 
ongoing oversight and supervision of the program or episode of treatment 
provided by these individual paramedical providers.
    (i) Licensed registered nurses.
    (ii) Audiologists.
    (2) The services of the following individual paramedical providers 
of care to be considered for benefits on a fee-for-service basis may be 
provided only if: The beneficiary is referred by a physician, certified 
physician assistant, certified nurse practitioner, or podiatrist; and a 
physician, certified physician assistant, certified nurse practitioner, 
or podiatrist must also provide continuing and ongoing oversight and 
supervision of the program or episode of treatment provided by these 
individual paramedical providers.
    (i) Licensed registered physical therapist (PT), including a 
licensed or certified physical therapist assistant (PTA) performing 
under the supervision of a TRICARE-authorized PT. PTAs shall meet the 
qualifications specified by Medicare (42 CFR 484.115, or successor 
regulation) and the Director, DHA, shall issue policy adopting, to the 
extent practicable, Medicare's requirements for PTA supervision.
    (ii) Licensed registered occupational therapist (OT), including a 
licensed or certified occupational therapy assistant (OTA) performing 
under the supervision of a TRICARE authorized OT. OTAs shall meet the 
qualifications specified by Medicare (42 CFR 484.115, or successor 
regulation) and the Director, DHA, shall issue policy adopting, to the 
extent practicable, Medicare's requirements for OTA supervision.
    (3) Licensed registered speech therapists (speech pathologists). In 
order to be considered for benefits on a fee-for-service basis, the 
services of a licensed registered speech therapist as an individual 
paramedical provider of care may be provided only if: (1) The 
beneficiary is referred by a physician, a certified physician assistant, 
or a certified nurse practitioner; and (2) a physician, a certified 
physician assistant, or a certified nurse practitioner must also

[[Page 197]]

provide continuing and ongoing oversight and supervision of the program 
or episode of treatment provided by these individual paramedical 
providers.
    (L) Nutritionist. The nutritionist must be licensed by the State in 
which the care is provided and must be under the supervision of a 
physician who is overseeing the episode of treatment or the covered 
program of services.
    (M) Registered dietician. The dietician must be licensed by the 
State in which the care is provided and must be under the supervision of 
a physician who is overseeing the episode of treatment or the covered 
program of services.
    (N) TRICARE certified mental health counselor. For the purposes of 
CHAMPUS, a TRICARE certified mental health counselor (TCMHC) must be 
licensed for independent practice in mental health counseling by the 
jurisdiction where practicing. In jurisdictions with two or more 
licenses allowing for differing scopes of independent practice, the 
licensed mental health counselor may only practice within the scope of 
the license he or she possesses. In addition, a TCMHC must meet the 
requirements of either paragraph (c)(3)(iii)(N)(1) or the requirements 
of paragraph (c)(3)(iii)(N)(2) of this section.
    (1) The requirements of this paragraph are that the TCMHC:
    (i) Must have passed the National Clinical Mental Health Counselor 
Examination (NCMHCE) or its successor as determined by the Director, 
TMA; and
    (ii) Must possess a master's or higher-level degree from a mental 
health counseling program of education and training accredited by the 
Council for Accreditation of Counseling and Related Educational Programs 
(CACREP); and
    (iii) Must have a minimum of two (2) years of post-master's degree 
supervised mental health counseling practice which includes a minimum of 
3,000 hours of supervised clinical practice and 100 hours of face-to-
face supervision. Supervision must be provided by mental health 
counselors at the highest level of state licensure, psychiatrists, 
clinical psychologists, certified clinical social workers, or certified 
psychiatric nurse specialists who are licensed for independent practice 
in the jurisdiction where practicing and who are practicing within the 
scope of their licenses. Supervised clinical practice must be received 
in a manner that is consistent with the guidelines regarding knowledge, 
skills, and practice standards for supervision of the American Mental 
Health Counselors Association; and
    (iv) Is licensed or certified for independent practice in mental 
health counseling by the jurisdiction where practicing (see paragraph 
(c)(2)(ii) of this section for more specific information).
    (2) The requirements of this paragraph are that the TCMHC, prior to 
January 1, 2017:
    (i) Possess a master's or higher-level degree from a mental health 
counseling program of education and training accredited by CACREP and 
must have passed the National Counselor Examination (NCE); or
    (ii) Possess a master's or higher-level degree from a mental health 
counseling program of education and training from either a CACREP or 
regionally accredited institution and have passed the NCMHCE; and
    (iii) Must have a minimum of two (2) years of post-master's degree 
supervised mental health counseling practice which includes a minimum of 
3,000 hours of supervised clinical practice and 100 hours of face-to-
face supervision. Supervision must be provided by mental health 
counselors at the highest level of state licensure, psychiatrists, 
clinical psychologists, certified clinical social workers, or certified 
psychiatric nurse specialists who are licensed for independent practice 
in the jurisdiction where practicing and who are practicing within the 
scope of their licenses. Supervised clinical practice must be received 
in a manner that is consistent with the guidelines regarding knowledge, 
skills, and practice standards for supervision of the American Mental 
Health Counselors Association; and
    (iv) Is licensed or certified for independent practice in mental 
health counseling by the jurisdiction where practicing (see paragraph 
(c)(2)(ii) of this section for more specific information).

[[Page 198]]

    (3) The Director, TRICARE Management Activity may amend or modify 
existing or specify additional certification requirements as needed to 
accommodate future practice and licensing standards and to ensure that 
all TCMHCs continue to meet educational, licensing, and clinical 
training requirements considered appropriate.
    (iv) Extramedical individual providers. Extramedical individual 
providers are those who do counseling or nonmedical therapy and whose 
training and therapeutic concepts are outside the medical field. The 
services of extramedical individual professionals are coverable 
following the CHAMPUS determined allowable charge methodology provided 
such services are otherwise authorized in this or other sections of the 
regulation.
    (A) Certified marriage and family therapists. For the purposes of 
CHAMPUS, a certified marriage and family therapist is an individual who 
meets the following requirements:
    (1) Recognized graduate professional education with the minimum of 
an earned master's degree from a regionally accredited educational 
institution in an appropriate behavioral science field, mental health 
discipline; and
    (2) The following experience:
    (i) Either 200 hours of approved supervision in the practice of 
marriage and family counseling, ordinarily to be completed in a 2- to 3-
year period, of which at least 100 hours must be in individual 
supervision. This supervision will occur preferably with more than one 
supervisor and should include a continuous process of supervision with 
at least three cases; and
    (ii) 1,000 hours of clinical experience in the practice of marriage 
and family counseling under approved supervision, involving at least 50 
different cases; or
    (iii) 150 hours of approved supervision in the practice of 
psychotherapy, ordinarily to be completed in a 2- to 3-year period, of 
which at least 50 hours must be individual supervision; plus at least 50 
hours of approved individual supervision in the practice of marriage and 
family counseling, ordinarily to be completed within a period of not 
less than 1 nor more than 2 years; and
    (iv) 750 hours of clinical experience in the practice of 
psychotherapy under approved supervision involving at least 30 cases; 
plus at least 250 hours of clinical practice in marriage and family 
counseling under approved supervision, involving at least 20 cases; and
    (3) Is licensed or certified to practice as a marriage and family 
therapist by the jurisdiction where practicing (see paragraph 
(c)(3)(iv)(D) of this section for more specific information regarding 
licensure); and
    (4) Agrees that a patients' organic medical problems must receive 
appropriate concurrent management by a physician.
    (5) Agrees to accept the CHAMPUS determined allowable charge as 
payment in full, except for applicable deductibles and cost-shares, and 
hold CHAMPUS beneficiaries harmless for noncovered care (i.e., may not 
bill a beneficiary for noncovered care, and may not balance bill a 
beneficiary for amounts above the allowable charge). The certified 
marriage and family therapist must enter into a participation agreement 
with the Office of CHAMPUS within which the certified marriage and 
family therapist agrees to all provisions specified above.
    (6) As of the effective date of termination, the certified marriage 
and family therapist will no longer be recognized as an authorized 
provider under CHAMPUS. Subsequent to termination, the certified 
marriage and family therapist may only be reinstated as an authorized 
CHAMPUS extramedical provider by entering into a new participation 
agreement as a certified marriage and family therapist.
    (B) Pastoral counselors. For the purposes of CHAMPUS, a pastoral 
counselor is an individual who meets the following requirements:
    (1) Recognized graduate professional education with the minimum of 
an earned master's degree from a regionally accredited educational 
institution in an appropriate behavioral science field, mental health 
discipline; and
    (2) The following experience:
    (i) Either 200 hours of approved supervision in the practice of 
pastoral counseling, ordinarily to be completed in a 2- to 3-year 
period, of which at least 100 hours must be in individual supervision. 
This supervision will occur preferably with more than one supervisor

[[Page 199]]

and should include a continuous process of supervision with at least 
three cases; and
    (ii) 1,000 hours of clinical experience in the practice of pastoral 
counseling under approved supervision, involving at least 50 different 
cases; or
    (iii) 150 hours of approved supervision in the practice of 
psychotherapy, ordinarily to be completed in a 2- to 3-year period, of 
which at least 50 hours must be individual supervision; plus at least 50 
hours of approved individual supervision in the practice of pastoral 
counseling, ordinarily to be completed within a period of not less than 
1 nor more than 2 years; and
    (iv) 750 hours of clinical experience in the practice of 
psychotherapy under approved supervision involving at least 30 cases; 
plus at least 250 hours of clinical practice in pastoral counseling 
under approved supervision, involving at least 20 cases; and
    (3) Is licensed or certified to practice as a pastoral counselor by 
the jurisdiction where practicing (see paragraph (c)(3)(iv)(D) of this 
section for more specific information regarding licensure); and
    (4) The services of a pastoral counselor meeting the above 
requirements are coverable following the CHAMPUS determined allowable 
charge methodology, under the following specified conditions:
    (i) The CHAMPUS beneficiary must be referred for therapy by a 
physician; and
    (ii) A physician is providing ongoing oversight and supervision of 
the therapy being provided; and
    (iii) The pastoral counselor must certify on each claim for 
reimbursement that a written communication has been made or will be made 
to the referring physician of the results of the treatment. Such 
communication will be made at the end of the treatment, or more 
frequently, as required by the referring physician (refer to Sec. 
199.7).
    (5) Because of the similarity of the requirements for licensure, 
certification, experience, and education, a pastoral counselor may elect 
to be authorized under CHAMPUS as a certified marriage and family 
therapist, and as such, be subject to all previously defined criteria 
for the certified marriage and family therapist category, to include 
acceptance of the CHAMPUS determined allowable charge as payment in 
full, except for applicable deductibles and cost-shares (i.e., balance 
billing of a beneficiary above the allowable charge is prohibited; may 
not bill beneficiary for noncovered care). The pastoral counselor must 
also agree to enter into the same participation agreement as a certified 
marriage and family therapist with the Office of CHAMPUS within which 
the pastoral counselor agrees to all provisions including licensure, 
national association membership and conditions upon termination, 
outlined above for certified marriage and family therapist.

    Note: No dual status will be recognized by the Office of CHAMPUS. 
Pastoral counselors must elect to become one of the categories of 
extramedical CHAMPUS provides specified above. Once authorized as either 
a pastoral counselor, or a certified marriage and family therapist, 
claims review and reimbursement will be in accordance with the criteria 
established for the elected provider category.

    (C) Supervised mental health counselor. For the purposes of TRICARE, 
a supervised mental health counselor is an individual who does not meet 
the requirements of a TRICARE certified mental health counselor in 
paragraph (c)(3)(iii)(N) of this section, but meets all of the following 
requirements and conditions of practice:
    (1) Minimum of a master's degree in mental health counseling or 
allied mental health field from a regionally accredited institution; and
    (2) Two years of post-masters experience which includes 3,000 hours 
of clinical work and 100 hours of face-to-face supervision; and
    (3) Is licensed or certified to practice as a mental health 
counselor by the jurisdiction where practicing (see paragraph 
(c)(3)(iv)(D) of this section for more specific information); and
    (4) May only be reimbursed when:
    (i) The TRICARE beneficiary is referred for therapy by a physician; 
and
    (ii) A physician is providing ongoing oversight and supervision of 
the therapy being provided; and
    (iii) The mental health counselor certifies on each claim for 
reimbursement that a written communication has been made or will be made 
to the referring

[[Page 200]]

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

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

    (d) Other providers. Certain medical supplies and services of an 
ancillary or supplemental nature are coverable by CHAMPUS, subject to 
certain controls. This category of provider includes the following:
    (1) Independent laboratory. Laboratory services of independent 
laboratories may be cost-shared if the laboratory is approved for 
participation under Medicare and certified by the Medicare Bureau, 
Health Care Financing Administration.
    (2) Suppliers of portable x-ray services. Such suppliers must meet 
the conditions of coverage of the Medicare program, set forth in the 
Medicare regulations, or the Medicaid program in that state in which the 
covered service is provided.
    (3) Pharmacies. Pharmacies must meet the applicable requirements of 
state law in the state in which the

[[Page 201]]

pharmacy is located. In addition to being subject to the policies and 
procedures for authorized providers established by this section, 
additional policies and procedures may be established for authorized 
pharmacies under Sec. 199.21 of this part implementing the Pharmacy 
Benefits Program.
    (4) Ambulance companies. Such companies must meet the requirements 
of state and local laws in the jurisdiction in which the ambulance firm 
is licensed.
    (5) Medical equipment firms, medical supply firms, and Durable 
Medical Equipment, Prosthetic, Orthotic, Supplies providers/suppliers. 
Any firm, supplier, or provider that is an authorized provider under 
Medicare or is otherwise designated an authorized provider by the 
Director, TRICARE Management Activity.
    (6) Mammography suppliers. Mammography services may be cost-shared 
only if the supplier is certified by Medicare for participation as a 
mammography supplier, or is certified by the American College of 
Radiology as having met its mammography supplier standards.
    (e) Extended Care Health Option Providers--(1) General. (i) Services 
and items cost-shared through Sec. 199.5 must be rendered by a CHAMPUS-
authorized provider.
    (ii) A Program for Persons with Disabilities (PFPWD) provider with 
TRICARE-authorized status on the effective date for the Extended Care 
Health Option (ECHO) Program shall be deemed to be a TRICARE-authorized 
provider until the expiration of all outstanding PFPWD benefit 
authorizations for services or items being rendered by the provider.
    (2) ECHO provider categories--(i) ECHO inpatient care provider. A 
provider of residential institutional care, which is otherwise an ECHO 
benefit, shall be:
    (A) A not-for-profit entity or a public facility; and
    (B) Located within a state; and
    (C) Be certified as eligible for Medicaid payment in accordance with 
a state plan for medical assistance under Title XIX of the Social 
Security Act (Medicaid) as a Medicaid Nursing Facility, or Intermediate 
Care Facility for the Mentally Retarded, or be a TRICARE-authorized 
institutional provider as defined in paragraph (b) of this section, or 
be approved by a state educational agency as a training institution.
    (ii) ECHO outpatient care provider. A provider of ECHO outpatient, 
ambulatory, or in-home services shall be:
    (A) A TRICARE-authorized provider of services as defined in this 
section; or
    (B) An individual, corporation, foundation, or public entity that 
predominantly renders services of a type uniquely allowable as an ECHO 
benefit and not otherwise allowable as a benefit of Sec. 199.4, that 
meets all applicable licensing or other regulatory requirements of the 
state, county, municipality, or other political jurisdiction in which 
the ECHO service is rendered, or in the absence of such licensing or 
regulatory requirements, as determined by the Director, TRICARE 
Management Activity or designee.
    (iii) ECHO vendor. A provider of an allowable ECHO item, such as 
supplies or equipment, shall be deemed to be a TRICARE-authorized vendor 
for the provision of the specific item, supply or equipment when the 
vendor supplies such information as the Director, TRICARE Management 
Activity or designee determines necessary to adjudicate a specific 
claim.
    (3) ECHO provider exclusion or suspension. A provider of ECHO 
services or items may be excluded or suspended for a pattern of 
discrimination on the basis of disability. Such exclusion or suspension 
shall be accomplished according to the provisions of Sec. 199.9.
    (f) Corporate services providers--(1) General. (i) This corporate 
services provider class is established to accommodate individuals who 
would meet the criteria for status as a CHAMPUS authorized individual 
professional provider as established by paragraph (c) of this section 
but for the fact that they are employed directly or contractually by a 
corporation or foundation that provides principally professional 
services which are within the scope of the CHAMPUS benefit. With 
authorization of freestanding end stage renal disease (ESRD) facilities 
as TRICARE institutional providers under paragraph (b)(4)(xxi) of this 
section, corporate

[[Page 202]]

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

[[Page 203]]

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

[51 FR 24008, July 1, 1986]

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

    Effective Date Note: At 88 FR 19855, Apr. 4, 2023, Sec. 199.6 was 
amended by revising paragraph (b)(4)(x)(B)(1), effective Oct. 1, 2023. 
For the convenience of the user, the added and revised text is set forth 
as follows:



Sec. 199.6  TRICARE-authorized providers.

                                * * * * *

    (b) * * *
    (4) * * *
    (x) * * *
    (B) * * *
    (1) Ambulatory surgical centers (ASC). ASCs must meet all criteria 
for classification as an Ambulatory Surgical Center under 42 CFR part 
416, as well as all of the requirements of this part, in order to be 
considered an authorized ASC under the TRICARE program. Care provided by 
an authorized TRICARE ASC may be cost-shared under the following 
circumstances:
    (i) A childbirth procedure provided by a CHAMPUS-approved ASC shall 
not be cost-shared by CHAMPUS unless the surgical center is also a 
CHAMPUS-approved birthing center institutional provider as established 
by the birthing center provider certification requirement of this part, 
and then reimbursement of covered maternity care and childbirth services 
shall be subject to Sec. 199.14(e).
    (ii) ASCs must demonstrate they have a valid participation agreement 
with Medicare, except as provided under paragraph (b)(4)(x)(B)(1)(i) of 
this section. In addition, in order to be considered an authorized 
TRICARE provider, ASCs must accept the requirements for a participating 
provider under paragraph (a)(13) of this section and must also enter 
into a participation agreement with TRICARE which includes a specific 
``hold harmless'' provision under which the facility will agree not to 
bill the patient for services not on the Medicare ASC procedures list 
unless, the patient is advised in writing that the non-listed procedure 
is not covered by TRICARE and the patient agrees, in advance in writing, 
to be financially liable for the non-covered procedure.
    (iii) ASCs that do not have an agreement with Medicare due to the 
nature of the patients they treat (e.g., pediatric patients) shall be 
accredited by the Joint Commission, the Accreditation Association for 
Ambulatory Health Care, Inc. (AAAHC), or such other accreditation as 
authorized by the Director, DHA and published in the implementing 
instructions. Additionally, these facilities must enter into 
participation agreements with TRICARE, including the hold harmless 
provisions under paragraph (b)(4)(x)(B)(1)(ii) of this section, and 
accept the requirements for a participating provider under paragraph 
(a)(13) of this section in order to be an authorized TRICARE provider.

                                * * * * *

[[Page 204]]



Sec. 199.7  Claims submission, review, and payment.

    (a) General. The Director, OCHAMPUS, or a designee, is responsible 
for ensuring that benefits under CHAMPUS are paid only to the extent 
described in this part. Before benefits can be paid, an appropriate 
claim must be submitted that includes sufficient information as to 
beneficiary identification, the medical services and supplies provided, 
and double coverage information, to permit proper, accurate, and timely 
adjudication of the claim by the CHAMPUS contractor or OCHAMPUS. 
Providers must be able to document that the care or service shown on the 
claim was rendered. This section sets forth minimum medical record 
requirements for verification of services. Subject to such definitions, 
conditions, limitations, exclusions, and requirements as may be set 
forth in this part, the following are the CHAMPUS claim filing 
requirements:
    (1) CHAMPUS identification card required. A patient shall present 
his or her applicable CHAMPUS identification card (that is, Uniformed 
Services identification card) to the authorized provider of care that 
identifies the patient as an eligible CHAMPUS beneficiary (refer to 
Sec. 199.3 of this part).
    (2) Claim required. No benefit may be extended under the Basic 
Program or Extended Care Health Option (ECHO) without submission of an 
appropriate, complete and properly executed claim form.
    (3) Responsibility for perfecting claim. It is the responsibility of 
the CHAMPUS beneficiary or sponsor or the authorized provider acting on 
behalf of the CHAMPUS beneficiary to perfect a claim for submission to 
the appropriate CHAMPUS fiscal intermediary. Neither a CHAMPUS fiscal 
intermediary nor OCHAMPUS is authorized to prepare a claim on behalf of 
a CHAMPUS beneficiary.
    (4) Obtaining appropriate claim form. CHAMPUS provides specific 
CHAMPUS forms appropriate for making a claim for benefits for various 
types of medical services and supplies (such as hospital, physician, or 
prescription drugs). Claim forms may be obtained from the appropriate 
CHAMPUS fiscal intermediary who processes claims for the beneficiary's 
state of residence, from the Director, OCHAMPUS, or a designee, or from 
CHAMPUS health benefits advisors (HBAs) located at all Uniformed 
Services medical facilities.
    (5) Prepayment not required. A CHAMPUS beneficiary or sponsor is not 
required to pay for the medical services or supplies before submitting a 
claim for benefits.
    (6) Deductible certificate. If the calendar year outpatient 
deductible, as defined in Sec. 199.4(f)(2) has been met by a 
beneficiary or a family through the submission of a claim or claims to a 
CHAMPUS fiscal intermediary in a geographic location different from the 
location where a current claim is being submitted, the beneficiary or 
sponsor must obtain a deductible certificate from the CHAMPUS fiscal 
intermediary where the applicable individual or family calendar year 
deductible was met. Such deductible certificate must be attached to the 
current claim being submitted for benefits. Failure to obtain a 
deductible certificate under such circumstances will result in a second 
individual or family calendar year deductible being applied. However, 
this second deductible may be reimbursed once appropriate documentation, 
as described in this paragraph is supplied to the CHAMPUS fiscal 
intermediary applying the second deductible (refer to Sec. 199.4 
(f)(2)(i)(F)).
    (7) Nonavailability Statement (DD Form 1251). In some geographic 
locations or under certain circumstances, it is necessary for a CHAMPUS 
beneficiary to determine whether the required medical care can be 
provided through a Uniformed Services facility. If the required medical 
care cannot be provided by the Uniformed Services facility, a 
Nonavailability Statement will be issued. When required (except for 
emergencies), this Nonavailability Statement must be issued before 
medical care is obtained from civilian sources. Failure to secure such a 
statement will waive the beneficiary's rights to benefits under CHAMPUS, 
subject to appeal to the appropriate hospital commander (or higher 
medical authority).
    (i) Rules applicable to issuance of Nonavailability Statement. 
Appropriate policy guidance may be issued as necessary to prescribe the 
conditions for

[[Page 205]]

issuance and use of a Nonavailability Statement.
    (ii) Beneficiary responsibility. The beneficiary shall ascertain 
whether or not he or she resides in a geographic area that requires 
obtaining a Nonavailability Statement. Information concerning current 
rules may be obtained from the CHAMPUS fiscal intermediary concerned, a 
CHAMPUS HBA or the Director, OCHAMPUS, or a designee.
    (iii) Rules in effect at time civilian care is provided apply. The 
applicable rules regarding Nonavailability Statements in effect at the 
time the civilian care is rendered apply in determining whether a 
Nonavailability Statement is required.
    (iv) Nonavailability Statement must be filed with applicable claim. 
When a claim is submitted for CHAMPUS benefits that includes services 
for which a Nonavailability Statement is required, such statement must 
be submitted along with the claim form.
    (b) Information required to adjudicate a CHAMPUS claim. Claims 
received that are not completed fully and that do not provide the 
following minimum information may be returned. If enough space is not 
available on the appropriate claim form, the required information must 
be attached separately and include the patient's name and address, be 
dated, and signed.
    (1) Patient's identification information. The following patient 
identification information must be completed on every CHAMPUS claim form 
submitted for benefits before a claim will be adjudicated and processed:
    (i) Patient's full name.
    (ii) Patient's residence address.
    (iii) Patient's date of birth.
    (iv) Patient's relationship to sponsor.

    Note: If name of patient is different from sponsor, explain (for 
example, stepchild or illegitimate child).

    (v) Patient's identification number (from DD Form 1173).
    (vi) Patient's identification card effective date and expiration 
date (from DD Form 1173).
    (vii) Sponsor's full name.
    (viii) Sponsor's service or social security number.
    (ix) Sponsor's grade.
    (x) Sponsor's organization and duty station. Home port for ships; 
home address for retiree.
    (xi) Sponsor's branch of service or deceased or retiree's former 
branch of service.
    (xii) Sponsor's current status. Active duty, retired, or deceased.
    (2) Patient treatment information. The following patient treatment 
information routinely is required relative to the medical services and 
supplies for which a claim for benefits is being made before a claim 
will be adjudicated and processed:
    (i) Diagnosis. All applicable diagnoses are required; standard 
nomenclature is acceptable. In the absence of a diagnosis, a narrative 
description of the definitive set of symptoms for which the medical care 
was rendered must be provided.
    (ii) Source of care. Full name of source of care (such as hospital 
or physician) providing the specific medical services being claimed.
    (iii) Full address of source of care. This address must be where the 
care actually was provided, not a billing address.
    (iv) Attending physician. Name of attending physician (or other 
authorized individual professional provider).
    (v) Referring physician. Name and address of ordering, prescribing, 
or referring physician.
    (vi) Status of patient. Status of patient at the time the medical 
services and supplies were rendered (that is, inpatient or outpatient).
    (vii) Dates of service. Specific and inclusive dates of service.
    (viii) Inpatient stay. Source and dates of related inpatient stay 
(if applicable).
    (ix) Physicians or other authorized individual professional 
providers. The claims must give the name of the individual actually 
rendering the care, along with the individual's professional status 
(e.g., M.D., Ph.D., R.N., etc.) and provider number, if the individual 
signing the claim is not the provider who actually rendered the service. 
The following information must also be included:
    (A) Date each service was rendered.
    (B) Procedure code or narrative description of each procedure or 
service for each date of service.

[[Page 206]]

    (C) Individual charge for each item of service or each supply for 
each date.
    (D) Detailed description of any unusual complicating circumstances 
related to the medical care provided that the physician or other 
individual professional provider may choose to submit separately.
    (x) Hospitals or other authorized institutional providers. For care 
provided by hospitals (or other authorized institutional providers), the 
following information also must be provided before a claim will be 
adjudicated and processed:
    (A) An itemized billing showing each item of service or supply 
provided for each day covered by the claim.

    Note: The Director, OCHAMPUS, or a designee, may approve, in 
writing, an alternative billing procedure for RTCs or other special 
institutions, in which case the itemized billing requirement may be 
waived. The particular facility will be aware of such approved alternate 
billing procedure.

    (B) Any absences from a hospital or other authorized institution 
during a period for which inpatient benefits are being claimed must be 
identified specifically as to date or dates and provide details on the 
purpose of the absence. Failure to provide such information will result 
in denial of benefits and, in an ongoing case, termination of benefits 
for the inpatient stay at least back to the date of the absence.
    (C) For hospitals subject to the CHAMPUS DRG-based payment system 
(see paragraph (a)(1)(ii)(D) of Sec. 199.14), the following information 
is also required:
    (1) The principal diagnosis (the diagnosis established, after study, 
to be chiefly responsible for causing the patient's admission to the 
hospital).
    (2) All secondary diagnoses.
    (3) All significant procedures performed.
    (4) The discharge status of the beneficiary.
    (5) The hospital's Medicare provider number.
    (6) The source of the admission.
    (D) Claims submitted by hospitals (or other authorized institutional 
providers) must include the name of the individual actually rendering 
the care, along with the individual's professional status (e.g., M.D., 
Ph.D., R.N., etc.).
    (xi) Prescription drugs and medicines (and insulin). For 
prescription drugs and medicines (and insulin, whether or not a 
prescription is required) receipted bills must be attached and the 
following additional information provided:
    (A) Name of drug.

    Note: When the physician or pharmacist so requests, the name of the 
drugs may be submitted to the CHAMPUS fiscal intermediary directly by 
the physician or pharmacist.

    (B) Strength of drug.
    (C) Name and address of pharmacy where drug was purchased.
    (D) Prescription number of drug being claimed.
    (xii) Other authorized providers. For items from other authorized 
providers (such as medical supplies), an explanation as to the medical 
need must be attached to the appropriate claim form. For purchases of 
durable equipment under the ECHO it is necessary also to attach a copy 
of the authorization.
    (xiii) Nonparticipating providers. When the beneficiary or sponsor 
submits the claim to the CHAMPUS fiscal intermediary (that is, the 
provider elects not to participate), an itemized bill from the provider 
to the beneficiary or sponsor must be attached to the CHAMPUS claim 
form.
    (3) Medical records/medical documentation. Medical records are of 
vital importance in the care and treatment of the patient. Medical 
records serve as a basis for planning of patient care and for the 
ongoing evaluation of the patient's treatment and progress. Accurate and 
timely completion of orders, notes, etc., enable different members of a 
health care team and subsequent health care providers to have access to 
relevant data concerning the patient. Appropriate medical records must 
be maintained in order to accommodate utilization review and to 
substantiate that billed services were actually rendered.
    (i) All care rendered and billed must be appropriately documented in 
writing. Failure to document the care billed will result in the claim or 
specific services on the claim being denied CHAMPUS cost-sharing.
    (ii) A pattern of failure to adequately document medical care will 
result in

[[Page 207]]

episodes of care being denied CHAMPUS cost-sharing.
    (iii) Cursory notes of a generalized nature that do not identify the 
specific treatment and the patient's response to the treatment are not 
acceptable.
    (iv) The documentation of medical records must be legible and 
prepared as soon as possible after the care is rendered. Entries should 
be made when the treatment described is given or the observations to be 
documented are made. The following are documentation requirements and 
specific time frames for entry into the medical records:
    (A) General requirements for acute medical/surgical services:
    (1) Admission evaluation report within 24 hours of admission.
    (2) Completed history and physical examination report within 72 
hours of admission.
    (3) Registered nursing notes at the end of each shift.
    (4) Daily physician notes.
    (B) Requirements specific to mental health services:
    (1) Psychiatric admission evaluation report within 24 hours of 
admission.
    (2) History and physical examination within 24 hours of admission; 
complete report documented within 72 hours for acute and residential 
programs and within 3 working days for partial programs.
    (3) Individual and family therapy notes within 24 hours of procedure 
for acute, detoxification and Residential Treatment Center (RTC) 
programs and within 48 hours for partial programs.
    (4) Preliminary treatment plan within 24 hours of admission.
    (5) Master treatment plan within 5 calendar days of admission for 
acute care, 10 days for RTC care, 5 days for full-day partial programs 
and within 7 days for half-day partial programs.
    (6) Family assessment report within 72 hours of admission for acute 
care and 7 days for RTC and partial programs.
    (7) Nursing assessment report within 24 hours of admission.
    (8) Nursing notes at the end of each shift for acute and 
detoxification programs; every ten visits for partial hospitalization; 
and at least once a week for RTCs.
    (9) Daily physician notes for intensive treatment, detoxification, 
and rapid stabilization programs; twice per week for acute programs; and 
once per week for RTC and partial programs.
    (10) Group therapy notes once per week.
    (11) Ancillary service notes once per week.

    Note: A pattern of failure to meet the above criteria may result in 
provider sanctions prescribed under Sec. 199.9.

    (4) Double coverage information. When the CHAMPUS beneficiary is 
eligible for medical benefits coverage through another plan, insurance, 
or program, either private or Government, the following information must 
be provided:
    (i) Name of other coverage. Full name and address of double coverage 
plan, insurance, or program (such as Blue Cross, Medicare, commercial 
insurance, and state program).
    (ii) Source of double coverage. Source of double coverage (such as 
employment, including retirement, private purchase, membership in a 
group, and law).
    (iii) Employer information. If source of double coverage is 
employment, give name and address of employer.
    (iv) Identification number. Identification number or group number of 
other coverage.
    (5) Right to additional information. (i) As a condition precedent to 
the cost-sharing of benefits under this part or pursuant to a review or 
audit, whether the review or audit is prospective, concurrent, or 
retroactive, OCHAMPUS or CHAMPUS contractors may request, and shall be 
entitled to receive, information from a physician or hospital or other 
person, institution, or organization (including a local, state, or 
Federal Government agency) providing services or supplies to the 
beneficiary for whom claims or requests for approval for benefits are 
submitted. Such information and records may relate to the attendance, 
testing, monitoring, examination, diagnosis, treatment, or services and 
supplies furnished to a beneficiary and, as such, shall be necessary for 
the accurate and efficient administration of CHAMPUS benefits. This may 
include requests for copies of all medical records or documentation

[[Page 208]]

related to the episode of care. In addition, before a determination on a 
request for preauthorization or claim of benefits is made, a 
beneficiary, or sponsor, shall provide additional information relevant 
to the requested determination, when necessary. The recipient of such 
information shall hold such records confidential except when:
    (A) Disclosure of such information is authorized specifically by the 
beneficiary;
    (B) Disclosure is necessary to permit authorized governmental 
officials to investigate and prosecute criminal actions; or
    (C) Disclosure is authorized or required specifically under the 
terms of DoD Directive 5400.7 and 5400.11, the Freedom of Information 
Act, and the Privacy Act (refer to paragraph (m) of Sec. 199.1 of this 
part).
    (ii) For the purposes of determining the applicability of and 
implementing the provisions of Sec. Sec. 199.8 and 199.9, or any 
provision of similar purpose of any other medical benefits coverage or 
entitlement, OCHAMPUS or CHAMPUS fiscal intermediaries, without consent 
or notice to any beneficiary or sponsor, may release to or obtain from 
any insurance company or other organization, governmental agency, 
provider, or person, any information with respect to any beneficiary 
when such release constitutes a routine use duly published in the 
Federal Register in accordance with the Privacy Act.
    (iii) Before a beneficiary's claim of benefits is adjudicated, the 
beneficiary or the provider(s) must furnish to CHAMPUS that information 
which is necessary to make the benefit determination. Failure to provide 
the requested information will result in denial of the claim. A 
beneficiary, by submitting a CHAMPUS claim(s) (either a participating or 
nonparticipating claim), is deemed to have given consent to the release 
of any and all medical records or documentation pertaining to the claims 
and the episode of care.
    (c) Signature on CHAMPUS Claim Form--(1) Beneficiary signature. 
CHAMPUS claim forms must be signed by the beneficiary except under the 
conditions identified in paragraph (c)(1)(v) of this section. The parent 
or guardian may sign for any beneficiary under 18 years.
    (i) Certification of identity. This signature certifies that the 
patient identification information provided is correct.
    (ii) Certification of medical care provided. This signature 
certifies that the specific medical care for which benefits are being 
claimed actually were rendered to the beneficiary on the dates 
indicated.
    (iii) Authorization to obtain or release information. Before 
requesting additional information necessary to process a claim or 
releasing medical information, the signature of the beneficiary who is 
18 years old or older must be recorded on or obtained on the CHAMPUS 
claim form or on a separate release form. The signature of the 
beneficiary, parent, or guardian will be requested when the beneficiary 
is under 18 years.

    Note: If the care was rendered to a minor and a custodial parent or 
legal guardian requests information prior to the minor turning 18 years 
of age, medical records may still be released pursuant to the signature 
of the parent or guardian, and claims information may still be released 
to the parent or guardian in response to the request, even though the 
beneficiary has turned 18 between the time of the request and the 
response. However, any follow-up request or subsequent request from the 
parent or guardian, after the beneficiary turns 18 years of age, will 
necessitate the authorization of the beneficiary (or the beneficiary's 
legal guardian as appointed by a cognizant court), before records and 
information can be released to the parent or guardian.

    (iv) Certification of accuracy and authorization to release double 
coverage information. This signature certifies to the accuracy of the 
double coverage information and authorizes the release of any 
information related to double coverage. (Refer to Sec. 199.8 of this 
part).
    (v) Exceptions to beneficiary signature requirement. (A) Except as 
required by paragraph (c)(1)(iii) of this section, the signature of a 
spouse, parent, or guardian will be accepted on a claim submitted for a 
beneficiary who is 18 years old or older.
    (B) When the institutional provider obtains the signature of the 
beneficiary (or the signature of the parent or guardian when the 
beneficiary is under

[[Page 209]]

18 years) on a CHAMPUS claim form at admission, the following 
participating claims may be submitted without the beneficiary's 
signature.
    (1) Claims for laboratory and diagnostic tests and test 
interpretations from radiologists, pathologists, neurologists, and 
cardiologists.
    (2) Claims from anesthesiologists.
    (C) Claims filed by providers using CHAMPUS-approved signature-on-
file and claims submission procedures.
    (2) Provider's signature. A participating provider (see paragraph 
(a)(8) of Sec. 199.6) is required to sign the CHAMPUS claim form.
    (i) Certification. A participating provider's signature on a CHAMPUS 
claim form:
    (A) Certifies that the specific medical care listed on the claim 
form was, in fact, rendered to the specific beneficiary for which 
benefits are being claimed, on the specific date or dates indicated, at 
the level indicated and by the provider signing the claim unless the 
claim otherwise indicates another individual provided the care. For 
example, if the claim is signed by a psychiatrist and the care billed 
was rendered by a psychologist or licensed social worker, the claim must 
indicate both the name and profession of the individual who rendered the 
care.
    (B) Certifies that the provider has agreed to participate (providing 
this agreement has been indicated on the claim form) and that the 
CHAMPUS-determined allowable charge or cost will constitute the full 
charge or cost for the medical care listed on the specific claim form; 
and further agrees to accept the amount paid by CHAMPUS or the CHAMPUS 
payment combined with the cost-shared amount paid by, or on behalf of 
the beneficiary, as full payment for the covered medical services or 
supplies.
    (1) Thus, neither CHAMPUS nor the sponsor is responsible for any 
additional charges, whether or not the CHAMPUS-determined charge or cost 
is less than the billed amount.
    (2) Any provider who signs and submits a CHAMPUS claim form and then 
violates this agreement by billing the beneficiary or sponsor for any 
difference between the CHAMPUS-determined charge or cost and the amount 
billed is acting in bad faith and is subject to penalties including 
withdrawal of CHAMPUS approval as a CHAMPUS provider by administrative 
action of the Director, OCHAMPUS, or a designee, and possible legal 
action on the part of CHAMPUS, either directly or as a part of a 
beneficiary action, to recover monies improperly obtained from CHAMPUS 
beneficiaries or sponsors (refer to Sec. 199.6 of this part.)
    (ii) Physician or other authorized individual professional provider. 
A physician or other authorized individual professional provider is 
liable for any signature submitted on his or her behalf. Further, a 
facsimile signature is not acceptable unless such facsimile signature is 
on file with, and has been authorized specifically by, the CHAMPUS 
fiscal intermediary serving the state where the physician or other 
authorized individual professional provider practices.
    (iii) Hospital or other authorized institutional provider. The 
provider signature on a claim form for institutional services must be 
that of an authorized representative of the hospital or other authorized 
institutional provider, whose signature is on file with and approved by 
the appropriate CHAMPUS fiscal intermediary.
    (d) Claims filing deadline. For all services provided on or after 
January 1, 1993, to be considered for benefits, all claims submitted for 
benefits must, except as provided in paragraph (d)(2) of this section, 
be filed with the appropriate CHAMPUS contractor no later than one year 
after the services are provided. Unless the requirement is waived, 
failure to file a claim within this deadline waives all rights to 
benefits for such services or supplies.
    (1) Claims returned for additional information. When a claim is 
submitted initially within the claim filing time limit, but is returned 
in whole or in part for additional information to be considered for 
benefits, the returned claim, along with the requested information, must 
be resubmitted and received by the appropriate CHAMPUS contractor no 
later than the later of:
    (i) One year after the services are provided; or

[[Page 210]]

    (ii) 90 days from the date the claim was returned to the provider or 
beneficiary.
    (2) Exception to claims filing deadline. The Director, OCHAMPUS, or 
a designee, may grant exceptions to the claims filing deadline 
requirements.
    (i) Types of exception. (A) Retroactive eligibility. Retroactive 
CHAMPUS eligibility determinations.
    (B) Administrative error. Administrative error (that is, 
misrepresentation, mistake, or other accountable action) of an officer 
or employee of OCHAMPUS (including OCHAMPUSEUR) or a CHAMPUS fiscal 
intermediary, performing functions under CHAMPUS and acting within the 
scope of that official's authority.
    (C) Mental incompetency. Mental incompetency of the beneficiary or 
guardian or sponsor, in the case of a minor child (which includes 
inability to communicate, even if it is the result of a physical 
disability).
    (D) Delays by other health insurance. When not attributable to the 
beneficiary, delays in adjudication by other health insurance companies 
when double coverage coordination is required before the CHAMPUS benefit 
determination.
    (E) Other waiver authority. The Director, OCHAMPUS may waive the 
claims filing deadline in other circumstances in which the Director 
determines that the waiver is necessary in order to ensure adequate 
access for CHAMPUS beneficiaries to health care services.
    (ii) Request for exception to claims filing deadline. Beneficiaries 
who wish to request an exception to the claims filing deadline may 
submit such a request to the CHAMPUS fiscal intermediary having 
jurisdiction over the location in which the service was rendered, or as 
otherwise designated by the Director, OCHAMPUS.
    (A) Such requests for an exception must include a complete 
explanation of the circumstances of the late filing, together with all 
available documentation supporting the request, and the specific claim 
denied for late filing.
    (B) Each request for an exception to the claims filing deadline is 
reviewed individually and considered on its own merits.
    (e) Other claims filing requirements. Notwithstanding the claims 
filing deadline described in paragraph (d) of this section, to lessen 
any potential adverse impact on a CHAMPUS beneficiary or sponsor that 
could result from a retroactive denial, the following additional claims 
filing procedures are recommended or required.
    (1) Continuing care. Except for claims subject to the CHAMPUS DRG-
based payment system, whenever medical services and supplies are being 
rendered on a continuing basis, an appropriate claim or claims should be 
submitted every 30 days (monthly) whether submitted directly by the 
beneficiary or sponsor or by the provider on behalf of the beneficiary. 
Such claims may be submitted more frequently if the beneficiary or 
provider so elects. The Director, OCHAMPUS, or a designee, also may 
require more frequent claims submission based on dollars. Examples of 
care that may be rendered on a continuing basis are outpatient physical 
therapy, private duty (special) nursing, or inpatient stays. For claims 
subject to the CHAMPUS DRG-based payment system, claims may be submitted 
only after the beneficiary has been discharged or transferred from the 
hospital.
    (2) [Reserved]
    (3) Claims involving the services of marriage and family counselors, 
pastoral counselors, and supervised mental health counselors. CHAMPUS 
requires that marriage and family counselors, pastoral counselors, and 
supervised mental health counselors make a written report to the 
referring physician concerning the CHAMPUS beneficiary's progress. 
Therefore, each claim for reimbursement for services of marriage and 
family counselors, pastoral counselors, and supervised mental health 
counselors must include certification to the effect that a written 
communication has been made or will be made to the referring physician 
at the end of treatment, or more frequently, as required by the 
referring physician.
    (f) Preauthorization. When specifically required in other sections 
of this part, preauthorization requires the following:

[[Page 211]]

    (1) Preauthorization must be granted before benefits can be 
extended. In those situations requiring preauthorization, the request 
for such preauthorization shall be submitted and approved before 
benefits may be extended, except as provided in Sec. 199.4(a)(11). If a 
claim for services or supplies is submitted without the required 
preauthorization, no benefits shall be paid, unless the Director, 
OCHAMPUS, or a designee, has granted an exception to the requirement for 
preauthorization.
    (i) Specifically preauthorized services. An approved 
preauthorization specifies the exact services or supplies for which 
authorization is being given. In a preauthorization situation, benefits 
cannot be extended for services or supplies provided beyond the specific 
authorization.
    (ii) Time limit on preauthorization. Approved preauthorizations are 
valid for specific periods of time, appropriate for the circumstances 
presented and specified at the time the preauthorization is approved. In 
general, preauthorizations are valid for 30 days. If the preauthorized 
service or supplies are not obtained or commenced within the specified 
time limit, a new preauthorization is required before benefits may be 
extended. For organ and stem cell transplants, the preauthorization 
shall remain in effect as long as the beneficiary continues to meet the 
specific transplant criteria set forth in the TRICARE/CHAMPUS Policy 
Manual, or until the approved transplant occurs.
    (2) Treatment plan. Each preauthorization request shall be 
accompanied by a proposed medical treatment plan (for inpatient stays 
under the Basic Program) which shall include generally a diagnosis; a 
detailed summary of complete history and physical; a detailed statement 
of the problem; the proposed treatment modality, including anticipated 
length of time the proposed modality will be required; any available 
test results; consultant's reports; and the prognosis. When the 
preauthorization request involves transfer from a hospital to another 
inpatient facility, medical records related to the inpatient stay also 
must be provided.
    (3) Claims for services and supplies that have been preauthorized. 
Whenever a claim is submitted for benefits under CHAMPUS involving 
preauthorized services and supplies, the date of the approved 
preauthorization must be indicated on the claim form and a copy of the 
written preauthorization must be attached to the appropriate CHAMPUS 
claim.
    (4) Advance payment prohibited. No CHAMPUS payment shall be made for 
otherwise authorized services or items not yet rendered or delivered to 
the beneficiary.
    (g) Claims review. It is the responsibility of the CHAMPUS fiscal 
intermediary (or OCHAMPUS, including OCHAMPUSEUR) to review each CHAMPUS 
claim submitted for benefit consideration to ensure compliance with all 
applicable definitions, conditions, limitations, or exclusions specified 
or enumerated in this part. It is also required that before any CHAMPUS 
benefits may be extended, claims for medical services and supplies will 
be subject to utilization review and quality assurance standards, norms, 
and criteria issued by the Director, OCHAMPUS, or a designee (see 
paragraph (a)(1)(v) of Sec. 199.14 for review standards for claims 
subject to the CHAMPUS DRG-based payment system).
    (h) Benefit payments. CHAMPUS benefit payments are made either 
directly to the beneficiary or sponsor or to the provider, depending on 
the manner in which the CHAMPUS claim is submitted.
    (1) Benefit payments made to beneficiary or sponsor. When the 
CHAMPUS beneficiary or sponsor signs and submits a specific claim form 
directly to the appropriate CHAMPUS fiscal intermediary (or OCHAMPUS, 
including OCHAMPUSEUR), any CHAMPUS benefit payments due as a result of 
that specific claim submission will be made in the name of, and mailed 
to, the beneficiary or sponsor. In such circumstances, the beneficiary 
or sponsor is responsible to the provider for any amounts billed.
    (2) Benefit payments made to participating provider. When the 
authorized provider elects to participate by signing a CHAMPUS claim 
form, indicating

[[Page 212]]

participation in the appropriate space on the claim form, and submitting 
a specific claim on behalf of the beneficiary to the appropriate CHAMPUS 
fiscal intermediary, any CHAMPUS benefit payments due as a result of 
that claim submission will be made in the name of and mailed to the 
participating provider. Thus, by signing the claim form, the authorized 
provider agrees to abide by the CHAMPUS-determined allowable charge or 
cost, whether or not lower than the amount billed. Therefore, the 
beneficiary or sponsor is responsible only for any required deductible 
amount and any cost-sharing portion of the CHAMPUS-determined allowable 
charge or cost as may be required under the terms and conditions set 
forth in Sec. Sec. 199.4 and 199.5 of this part.
    (3) CEOB. When a CHAMPUS claim is adjudicated, a CEOB is sent to the 
beneficiary or sponsor. A copy of the CEOB also is sent to the provider 
if the claim was submitted on a participating basis. The CEOB form 
provides, at a minimum, the following information:
    (i) Name and address of beneficiary.
    (ii) Name and address of provider.
    (iii) Services or supplies covered by claim for which CEOB applies.
    (iv) Dates services or supplies provided.
    (v) Amount billed; CHAMPUS-determined allowable charge or cost; and 
amount of CHAMPUS payment.
    (vi) To whom payment, if any, was made.
    (vii) Reasons for any denial.
    (viii) Recourse available to beneficiary for review of claim 
decision (refer to Sec. 199.10 of this part).

    Note: The Director, OCHAMPUS, or a designee, may authorize a CHAMPUS 
fiscal intermediary to waive a CEOB to protect the privacy of a CHAMPUS 
beneficiary.

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

[51 FR 24008, July 1, 1986]

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



Sec. 199.8  Double coverage.

    (a) Introduction. (1) In enacting TRICARE legislation, Congress 
clearly has intended that TRICARE be the secondary payer to all health 
benefit, insurance and third-party payer plans. 10 U.S.C. 1079(j)(1) 
specifically provides that a benefit may not be paid under a plan 
(CHAMPUS) covered by this section in the case of a person enrolled in, 
or covered by, any other insurance,

[[Page 213]]

medical service, or health plan, including any plan offered by a third-
party payer (as defined in 10 U.S.C. 1095(h)(1)) to the extent that the 
benefit is also a benefit under the other plan, except in the case of a 
plan administered under title XIX of the Social Security Act (42 U.S.C. 
1396 et seq.).
    (2) The provision in paragraph (a)(1) of this section is made 
applicable specifically to retired members, dependents, and survivors by 
10 U.S.C. 1086(g). The underlying intent, in addition to preventing 
waste of Federal resources, is to ensure that TRICARE beneficiaries 
receive maximum benefits while ensuring that the combined payments of 
TRICARE and other health and insurance plans do not exceed the total 
charges.
    (b) Double coverage plan. A double coverage plan is one of the 
following:
    (1) Insurance plan. An insurance plan is any plan or program that is 
designed to provide compensation or coverage for expenses incurred by a 
beneficiary for medical services and supplies. It includes plans or 
programs for which the beneficiary pays a premium to an issuing agent as 
well as those plans or programs to which the beneficiary is entitled as 
a result of employment or membership in, or association with, an 
organization or group.
    (2) Medical service or health plan. A medical service or health plan 
is any plan or program of an organized health care group, corporation, 
or other entity for the provision of health care to an individual from 
plan providers, both professional and institutional. It includes plans 
or programs for which the beneficiary pays a premium to an issuing agent 
as well as those plans or programs to which the beneficiary is entitled 
as a result of employment or membership in, or association with, an 
organization or group.
    (3) Third-party payer. A third-party payer means an entity that 
provides an insurance, medical service, or health plan by contract or 
agreement, including an automobile liability insurance or no-fault 
insurance carrier and a workers' compensation program or plan, and any 
other plan or program (e.g., homeowners insurance, etc.) that is 
designed to provide compensation or coverage for expenses incurred by a 
beneficiary for medical services or supplies. For purposes of the 
definition of ``third-party payer,'' an insurance, medical service or 
health plan includes a preferred provider organization, an insurance 
plan described as Medicare supplemental insurance, and a personal injury 
protection plan or medical payments benefit plan for personal injuries 
resulting from the operation of a motor vehicle.
    (4) Exceptions. Double coverage plans do not include:
    (i) Plans administered under title XIX of the Social Security Act 
(Medicaid);
    (ii) Coverage specifically designed to supplement CHAMPUS benefits 
(a health insurance policy or other health benefit plan that meets the 
definition and criteria under supplemental insurance plan as set forth 
in Sec. 199.2(b));
    (iii) Entitlement to receive care from Uniformed Services medical 
care facilities;
    (iv) Certain Federal Government programs, as prescribed by the 
Director, OCHAMPUS, that are designed to provide benefits to a distinct 
beneficiary population and for which entitlement does not derive from 
either premium payment of monetary contribution (for example, the Indian 
Health Service); or
    (v) State Victims of Crime Compensation Programs.
    (c) Application of double coverage provisions. CHAMPUS claims 
submitted for otherwise covered services or supplies and which involve 
double coverage shall be adjudicated as follows:
    (1) TRICARE last pay. For any claim that involves a double coverage 
plan as defined in paragraph (b) of this section, TRICARE shall be last 
pay except as may be authorized by the Director, TRICARE Management 
Activity, or a designee, pursuant to paragraph (c)(2) of this section. 
That is, TRICARE benefits may not be extended until all other double 
coverage plans have adjudicated the claim.
    (2) TRICARE advance payment. The Director, TRICARE Management 
Activity, or a designee, may authorize payment of a claim in advance of 
adjudication of the claim by a double coverage plan and recover, under 
Sec. 199.12,

[[Page 214]]

the TRICARE costs of health care incurred on behalf of the covered 
beneficiary under the following conditions:
    (i) The claim is submitted for health care services furnished to a 
covered beneficiary; and,
    (ii) The claim is identified as involving services for which a 
third-party payer, other than a primary medical insurer, may be liable.
    (3) Primary medical insurer. For purposes of paragraph (c)(2) of 
this section, a ``primary medical insurer'' is an insurance plan, 
medical service or health plan, or a third-party payer under this 
section, the primary or sole purpose of which is to provide or pay for 
health care services, supplies, or equipment. The term ``primary medical 
insurer'' does not include automobile liability insurance, no-fault 
insurance, workers' compensation program or plan, homeowners insurance, 
or any other similar third-party payer as may be designated by the 
Director, TRICARE Management Activity, or a designee, in any policy 
guidance or instructions issued in implementation of this Part.
    (4) Waiver of benefits. A CHAMPUS beneficiary may not elect to waive 
benefits under a double coverage plan and use CHAMPUS. Whenever double 
coverage exists, the provisions of this Section shall be applied.
    (5) Lack of payment by double coverage plan. Amounts that have been 
denied by a double coverage plan simply because a claim was not filed 
timely or because the beneficiary failed to meet some other requirement 
of coverage cannot be paid. If a statement from the double coverage plan 
as to how much that plan would have paid had the claim met the plan's 
requirements is provided to the CHAMPUS contractor, the claim can be 
processed as if the double coverage plan actually paid the amount shown 
on the statement. If no such statement is received, no payment from 
CHAMPUS is authorized.
    (d) Special considerations--(1) CHAMPUS and Medicare--(i) General 
rule. In any case in which a beneficiary is eligible for both Medicare 
and CHAMPUS received medical or dental care for which payment may be 
made under Medicare and CHAMPUS, Medicare is always the primary payer 
except in the case of retroactive determinations of disability as 
provided in paragraph (d)(1)(v) of this section. For dependents of 
active duty members, payment will be determined in accordance to 
paragraph (c) of this section. For all other beneficiaries eligible for 
Medicare, the amount payable under CHAMPUS shall be the amount of actual 
out-of-pocket costs incurred by the beneficiary for that care over the 
sum of the amount paid for that care under Medicare and the total of all 
amounts paid or payable by third party payers other than Medicare.
    (ii) Payment limit. The total CHAMPUS amount payable for care under 
paragraph (d)(1)(i) of this section may not exceed the total amount that 
would be paid under CHAMPUS if payment for that care was made solely 
under CHAMPUS.
    (iii) Application of general rule. In applying the general rule 
under paragraph (d)(1)(i) of this section, the first determination will 
be whether payment may be made under Medicare. For this purpose, 
Medicare exclusions, conditions, and limitations will be based for the 
determination.
    (A) For items or services or portions or segments of items or 
services for which payment may be made under Medicare, the CHAMPUS 
payment will be the amount of the beneficiary's actual out of pocket 
liability, minus the amount payable by Medicare, also minus amount 
payable by other third party payers, subject to the limit under 
paragraph (d)(1)(ii) of this section.
    (B) For items or services or segments of items or services for which 
no payment may be made under Medicare, the CHAMPUS payment will be the 
same as it would be for a CHAMPUS eligible retiree, dependent, or 
survivor beneficiary who is not Medicare eligible.
    (C) For Medicare beneficiaries who enroll in Medicare Part D, the 
Part D plan is primary and TRICARE is secondary payer. TRICARE will pay 
the beneficiary's out-of-pocket costs for Medicare and TRICARE covered 
medications, including the initial deductible and Medicare Part D cost-
sharing amounts up to the initial coverage limit of the Medicare Part D 
plan. The Medicare Part D plan, although the primary plan, pays nothing 
during any

[[Page 215]]

coverage gap period. When the beneficiary becomes responsible for 100 
percent of the drug costs under a Part D coverage gap period, the 
beneficiary may use the TRICARE pharmacy benefit as the secondary payer. 
TRICARE will cost share during the coverage gap to the same extent as it 
does under Section 199.21 for beneficiaries not enrolled in Medicare 
Part D plan. The beneficiary is responsible for the applicable TRICARE 
pharmacy cost-sharing amounts (and deductible if using a retail non-
network pharmacy). Part D plan sponsors may offer a defined standard 
benefit, or an actuarially equivalent standard benefit. Part D plan 
sponsors may also offer alternative prescription drug coverage, which 
may consist of basic alternative coverage or enhanced alternative 
coverage. Therefore depending on the Part D plan that a beneficiary 
chooses, monthly premiums, coinsurances, co-pays, deductibles and 
benefit design may vary from plan to plan. TRICARE payment of the 
beneficiary's initial deductible, if any, along with payment of any 
beneficiary cost share count towards total spending on drugs, and may 
have the effect of moving the beneficiary more quickly through the 
initial phase of coverage to the coverage gap. Irrespective of the phase 
of the benefit in which a beneficiary may be, if a beneficiary is 
accessing a pharmacy under contract with his or her Part D plan, the 
provider will bill the Part D plan first, then TRICARE. If the 
beneficiary chooses to use his or her TRICARE pharmacy benefit during a 
coverage gap under Part D, the beneficiary may do so, but the 
beneficiary is responsible for the TRICARE cost-shares.
    (iv) Examples of applications of general rule. The following 
examples are illustrative. They are not all-inclusive.
    (A) In the case of a Medicare-eligible beneficiary receiving typical 
physician office visit services, Medicare payment generally will be 
made. CHAMPUS payment will be determined consistent with paragraph 
(d)(1)(iii)(A) of this section.
    (B) In the case of a Medicare-eligible beneficiary residing and 
receiving medical care overseas, Medicare payment generally may not be 
made. CHAMPUS payment will be determined consistent with paragraph 
(d)(1)(iii)(B) of this section.
    (C) In the case of a Medicare-eligible beneficiary receiving skilled 
nursing facility services a portion of which is payable by Medicare 
(such as during the first 100 days) and a portion of which is not 
payable by Medicare (such as after 100 days), CHAMPUS payment for the 
first portion will be determined consistent with paragraph 
(d)(1)(iii)(A) of this section and for the second portion consistent 
with paragraph (d)(1)(iii)(B) of this section.
    (v) Application of catastrophic cap. Only in cases in which CHAMPUS 
payment is determined consistent with paragraph (d)(1)(iii)(B) of this 
section, actual beneficiary out of pocket liability remaining after 
CHAMPUS payments will be counted for purposes of the annual catastrophic 
loss protection, set forth under Sec. 199.4(f)(10). When a family has 
met the cap, CHAMPUS will pay allowable amounts for remaining covered 
services through the end of that calendar year.
    (vi) Retroactive determinations of disability. In circumstances 
involving determinations of retroactive Medicare Part A entitlement for 
persons under 65 years of age, Medicare becomes the primary payer 
effective as of the date of issuance of the retroactive determination by 
the Social Security Administration. For care and services rendered prior 
to issuance of the retroactive determination, the CHAMPUS payment will 
be determined consistent with paragraph (d)(1)(iii)(B) of this section 
notwithstanding the beneficiary's retroactive entitlement for Medicare 
Part A during that period.
    (vii) Effect on enrollment in Medicare Advantage Prescription Drug 
(MA-PD) plan. In the case of a beneficiary enrolled in a MA-PD plan who 
receives items or services for which payment may be made under both the 
MA-PD plan and CHAMPUS/TRICARE, a claim for the beneficiary's normal 
out-of-pocket costs under the MA-PD plan may be submitted for CHAMPUS/
TRICARE payment. However, consistent with paragraph (c)(4) of this

[[Page 216]]

section, out-of-pocket costs do not include costs associated with 
unauthorized out-of-system care or care otherwise obtained under 
circumstances that result in a denial or limitation of coverage for care 
that would have been covered or fully covered had the beneficiary met 
applicable requirements and procedures. In such cases, the CHAMPUS/
TRICARE amount payable is limited to the amount that would have been 
paid if the beneficiary had received care covered by the Medicare 
Advantage plan. If the TRICARE-Medicare beneficiary enrolls in a MA-PD 
drug plan, it generally will be governed by Medicare Part C, although 
plans that offer a prescription drug benefit must comply with Medicare 
Part D rules. The beneficiary has to pay the plan's monthly premiums and 
obtain all medical care and prescription drugs through the Medicare 
Advantage plan before seeking CHAMPUS/TRICARE payment. CHAMPUS/TRICARE 
payment for such beneficiaries may not exceed that which would be 
payable for a beneficiary under paragraph (d)(1)(iii)(C) of this 
section.
    (viii) Effect of other double coverage plans, including medigap 
plans. CHAMPUS is second payer to other third-party payers of health 
insurance, including Medicare supplemental plans.
    (ix) Effect of employer-provided insurance. In the case of 
individuals with health insurance due to their current employment 
status, the employer insurance plan shall be first payer, Medicare shall 
be the second payer, and CHAMPUS shall be the tertiary payer.
    (2) CHAMPUS and Medicaid. Medicaid is not a double coverage plan. In 
any double coverage situation involving Medicaid, CHAMPUS is always the 
primary payer.
    (3) TRICARE and Workers' Compensation. TRICARE benefits are not 
payable for a work-related illness or injury that is covered under a 
workers' compensation program. Pursuant to paragraph (c)(2) of this 
section, however, the Director, TRICARE Management Activity, or a 
designee, may authorize payment of a claim involving a work-related 
illness or injury covered under a workers' compensation program in 
advance of adjudication and payment of the workers' compensation claim 
and then recover, under Sec. 199.12, the TRICARE costs of health care 
incurred on behalf of the covered beneficiary.
    (4) Extended Care Health Option (ECHO). For those services or 
supplies that require use of public facilities, an ECHO eligible 
beneficiary (or sponsor or guardian acting on behalf of the beneficiary) 
does not have the option of waiving the full use of public facilities 
which are determined by the Director, TRICARE Management Activity or 
designee to be available and adequate to meet a disability related need 
for which an ECHO benefit was requested. Benefits eligible for payment 
under a state plan for medical assistance under Title XIX of the Social 
Security Act (Medicaid) are never considered to be available in the 
adjudication of ECHO benefits.
    (5) Primary payer. The requirements of paragraph (d)(4) of this 
section notwithstanding, TRICARE is primary payer for services and items 
that are provided in accordance with the Individualized Family Service 
Plan as required by Part C of the Individuals with Disabilities 
Education Act and that are medically or psychologically necessary and 
otherwise allowable under the TRICARE Basic Program or the Extended Care 
Health Option.
    (6) Prohibition against financial and other incentives not to enroll 
in a group health plan--(i) General rule. Under 10 U.S.C. 1097c, an 
employer or other entity is prohibited from offering TRICARE 
beneficiaries financial or other benefits as incentives not to enroll 
in, or to terminate enrollment in, a group health plan that is or would 
be primary to TRICARE. This prohibition applies in the same manner as 
section 1862(b)(3)(C) of the Social Security Act applies to incentives 
for a Medicare-eligible employee not to enroll in a group health plan 
that is or would be primary to Medicare.
    (ii) Application of general rule. The prohibition in paragraph 
(d)(6)(i) of this section precludes offering to TRICARE beneficiaries an 
alternative to the employer primary plan unless:
    (A) The beneficiary has primary coverage other than TRICARE; or

[[Page 217]]

    (B) The benefit is offered under a cafeteria plan under section 125 
of the Internal Revenue Code and is offered to all similarly situated 
employees, including non-TRICARE eligible employees; or
    (C) The benefit is offered under a cafeteria plan under section 125 
of the Internal Revenue Code and, although offered only to TRICARE-
eligible employees, the employer does not provide any payment for the 
benefit nor receive any direct or indirect consideration or compensation 
for offering the benefit; the employer's only involvement is providing 
the administrative support for the benefits under the cafeteria plan, 
and the employee's participation in the plan is completely voluntary.
    (iii) Documentation. In the case of a benefit excluded by paragraph 
(d)(6)(ii)(C) of this section from the prohibition in paragraph 
(d)(6)(i) of this section, the exclusion is dependent on the employer 
maintaining in the employer's files a certification signed by the 
employer that the conditions described in paragraph (d)(6)(ii)(C) of 
this section are met, and, upon request of the Department of Defense, 
providing a copy of that certification to the Department of Defense.
    (iv) Remedies and penalties. (A) Remedies for violation of this 
paragraph (d)(6) include but are not limited to remedies under the 
Federal Claims Collection Act, 31 U.S.C. 3701 et seq.
    (B) Penalties for violation of this paragraph (d)(6) include a civil 
monetary penalty of up to $5,000 for each violation. The provisions of 
section 1128A of the Social Security Act, 42 U.S.C. 1320a-7a, (other 
than subsections (a) and (b)) apply to the civil monetary penalty in the 
same manner as the provisions apply to a penalty or proceeding under 
section 1128A.
    (v) Definitions. For the purposes of this paragraph (d)(6):
    (A) The term ``employer'' includes any State or unit of local 
government and any employer that employs at least 20 employees.
    (B) The term ``group health plan'' means a group health plan as that 
term is defined in section 5000(b)(1) of the Internal Revenue Code of 
1986 without regard to section 5000(d) of the Internal Revenue Code of 
1986.
    (C) The term ``similarly situated'' means sharing common attributes, 
such as part-time employees, or other bona fide employment-based 
classifications consistent with the employer's usual business practice. 
(Internal Revenue Service regulations at 26 CFR 54.9802-1(d) may be used 
as a reference for this purpose). However, in no event shall eligibility 
for or entitlement to TRICARE (or ineligibility or non-entitlement to 
TRICARE) be considered a bona fide employment-based classification.
    (D) The term ``TRICARE-eligible employee'' means a covered 
beneficiary under section 1086 of title 10, United States Code, Chapter 
55, entitled to health care benefits under the TRICARE program.
    (vi) Procedures. The Departments of Defense and Health and Human 
Services are authorized to enter into agreements to further carry out 
this section.
    (e) Implementing instructions. The Director, OCHAMPUS, or a 
designee, shall issue such instructions, procedures, or guidelines, as 
necessary, to implement the intent of this section.

[51 FR 24008, July 1, 1986, as amended at 62 FR 35097, June 30, 1997; 62 
FR 54384, Oct. 20, 1997; 63 FR 59232, Nov. 3, 1998; 64 FR 46141, Aug. 
24, 1999; 66 FR 40607, Aug. 3, 2001; 67 FR 18827, Apr. 17, 2002; 68 FR 
6618, Feb. 10, 2003; 68 FR 23032, Apr. 30, 2003; 68 FR 32361, May 30, 
2003; 69 FR 51569, Aug. 20, 2004; 74 FR 55775, Oct. 29, 2009; 75 FR 
18054, Apr. 9, 2010; 77 FR 38176, June 27, 2012; 82 FR 45447, Sept. 29, 
2017; 85 FR 26355, May 4, 2020]



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

    (a) General. (1) This section sets forth provisions for invoking 
administrative remedies under CHAMPUS in situations involving fraud, 
abuse, or conflict of interest. The remedies impact institutional 
providers, professional providers, and beneficiaries (including parents, 
guardians, or other representatives of beneficiaries), and cover 
situations involving criminal fraud, civil fraud, administrative 
determinations of conflicts of interest or dual compensation, and 
administrative determinations of fraud or abuse. The administrative 
actions, remedies, and

[[Page 218]]

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

    Note: In a case of a legitimate bad debt write-off of patient cost-
share or deductible, the provider's record should include documentation 
as to what efforts were made to collect the debt, when the debt was 
written off, why the debt was written off, and the amount of the debt 
written off.

    (2) Improper billing practices. Examples include, charging CHAMPUS 
beneficiaries rates for services and supplies that are in excess of 
those charges routinely charged by the provider to the general public, 
commercial health insurance carriers, or other federal health benefit 
entitlement programs

[[Page 219]]

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

[[Page 220]]

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

[[Page 221]]

potential for personal gain or the appearance of impropriety. Although 
individuals under contract to the Uniformed Services are not considered 
``employees,'' such individuals are subject to conflict of interest 
provisions by express terms of their contracts and, for purposes of this 
part, may be considered to be involved in conflict of interest 
situations as a result of their contract positions. In any situation 
involving potential conflict of interest of a Uniformed Service 
employee, the Director, OCHAMPUS, or a designee, may refer the case to 
the Uniformed Service concerned for appropriate review and action. If 
such a referral is made, a report of the results of findings and action 
taken shall be made to the Director, OCHAMPUS, by the Uniformed Service 
having jurisdiction within 90 days of receiving the referral.
    (2) CHAMPUS cost-sharing shall be denied on any claim where a 
conflict of interest situation is found to exist. This denial of cost-
sharing applies whether the claim is submitted by the individual who 
provided the care, the institutional provider in which the care was 
furnished, or the beneficiary.
    (e) Dual Compensation. (1) Federal law (5 U.S.C. 5536) prohibits 
active duty members of the Uniformed Services or employees (including 
part-time or intermittent) appointed in the civil service of the United 
States Government from receiving additional compensation from the 
Government above their normal pay and allowances. This prohibition 
applies to CHAMPUS payments for care furnished to CHAMPUS beneficiaries 
by active duty members of the Uniformed Services or civilian employees 
of the Government.
    (2) CHAMPUS cost-sharing of a claim shall be denied where the 
services or supplies were provided by an active duty member of the 
Uniformed Services or a civilian employee of the Government. This denial 
of CHAMPUS payment applies whether the claim for reimbursement is filed 
by the individual who provided the care, the institutional provider in 
which the care was furnished, or by the beneficiary.

    Note: Physicians of the National Health Service Corps (NHSC) may be 
assigned to areas where there is a shortage of medical providers. 
Although these physicians would be prohibited from accepting CHAMPUS 
payments as individuals if they are employees of the United States 
Government, the private organizations to which they may be assigned may 
be eligible for payment, as determined by the Director, OCHAMPUS, or a 
designee.

    (3) The prohibition against dual compensation does not apply to 
individuals under contract to the Uniformed Services or the Government.
    (f) Administrative Remedies. Administrative remedies available under 
CHAMPUS in this section are set forth below.
    (1) Provider exclusion or suspension. The Director, OCHAMPUS, or a 
designee, shall have the authority to exclude or suspend an otherwise 
authorized CHAMPUS provider from the program based on any criminal 
conviction or civil judgment involving fraud by the provider; fraud or 
abuse under CHAMPUS by the provider; exclusion or suspension of the 
provider by another agency of the Federal Government, a state, or local 
licensing authority; participation in a conflict of interest situation 
by the provider; or, when it is in the best interests of the program or 
CHAMPUS beneficiaries to exclude or suspend a provider under CHAMPUS. In 
all cases, the exclusion or suspension of a provider shall be effective 
15 calendar days from the date on the written initial determination 
issued under paragraph (h)(2) of this section.
    (i) Criminal conviction or civil judgment involving fraud by a 
provider--(A) Criminal conviction involving CHAMPUS fraud. A provider 
convicted by a Federal, state, foreign, or other court of competent 
jurisdiction of a crime involving CHAMPUS fraud, whether the crime is a 
felony or misdemeanor, shall be excluded or suspended from CHAMPUS for a 
period of time as determined by the Director, OCHAMPUS, or a designee. 
The CHAMPUS exclusion or suspension applies whether or not the provider, 
as a result of the conviction, receives probation or the sentence is 
suspended or deferred, and whether or not the conviction or sentence is 
under appeal.

    Note: Under the above paragraph (f)(1)(i)(A) of this section, an 
entity may be excluded or suspended from CHAMPUS

[[Page 222]]

whenever the entity is found to have a person, convicted of a crime 
involving CHAMPUS fraud, who has a direct or indirect ownership or 
control interest (see Sec. 199.2) of 5 percent or more in the entity, 
or is an officer, director, agent or managing employee of the entity. 
The entity will have an opportunity to provide evidence to show that the 
ownership or control relationship has ceased. While an entity will not 
be excluded or suspended from CHAMPUS for employing a provider who has 
been sanctioned under this Section, the entity will be denied CHAMPUS 
payment for any services furnished by the sanctioned employee. As an 
authorized CHAMPUS provider, the entity is responsible for ensuring that 
all CHAMPUS claims involve services furnished to CHAMPUS beneficiaries 
by employees who meet all requirements under CHAMPUS for provider 
status.

    (B) Criminal conviction involving fraud of other Federal programs. 
Any provider convicted by a Federal, state, or other court of competent 
jurisdiction of a crime involving another Federal health care or benefit 
program (such as plans administered under titles XVIII and XIX of the 
Social Security Act, Federal Workmen's Compensation, and the Federal 
Employees Program (FEP) for employee health insurance), whether the 
crime is a felony or misdemeanor, shall be excluded from CHAMPUS for a 
period of time as determined by the Director, OCHAMPUS, or a designee. 
The CHAMPUS exclusion or suspension applies whether or not the provider, 
as a result of the conviction, receives probation or the sentence is 
suspended or deferred, and whether or not the conviction or sentence is 
under appeal.
    (C) Criminal conviction involving fraud of non-Federal programs. Any 
provider convicted by a Federal, state, foreign, or other court of 
competent jurisdiction of a crime involving any non-Federal health 
benefit program or private insurance involving health benefits may be 
excluded or suspended from CHAMPUS for a period of time as determined by 
the Director, OCHAMPUS, or a designee.
    (D) Civil fraud involving CHAMPUS. If a judgment involving civil 
fraud has been entered (whether or not it is appealed) against a 
provider in a civil action involving CHAMPUS benefits (whether or not 
other Federal programs are involved), the provider shall be excluded or 
suspended from CHAMPUS for a period determined by the Director, 
OCHAMPUS, or a designee.
    (E) Civil fraud involving other programs. If a judgment involving 
civil fraud has been entered against a provider (whether or not it has 
been appealed) in a civil action involving other public or private 
health care programs or health insurance, the provider may be excluded 
or suspended for a period of time determined by the Director, OCHAMPUS, 
or a designee.
    (ii) Administrative determination of fraud or abuse under CHAMPUS. 
If the Director of the Defense Health Agency determines a provider 
committed fraud or abuse as defined in this part, the provider shall be 
excluded or suspended from CHAMPUS/TRICARE for a period of time 
determined by the Director. A final determination of an imposition of a 
civil money penalty (CMP) under 32 CFR part 200 shall constitute an 
administrative determination of fraud and abuse.
    (iii) Administrative determination that the provider has been 
excluded or suspended by another agency of the Federal Government, a 
state, or local licensing authority. Any provider who is excluded or 
suspended by any other Federal health care program (for example, 
Medicare), shall be excluded or suspended under CHAMPUS. A provider who 
has his/her credentials revoked through a Veterans Administration or 
Military Department credentials review process and who is excluded, 
suspended, terminated, retired, or separated, shall also be excluded or 
suspended under CHAMPUS. The period of time of exclusion or suspension 
shall be determined by the Director, OCHAMPUS, or a designee, pursuant 
to paragraph (g) of this section.
    (iv) Administrative determination that the provider has participated 
in a conflict of interest situation. The Director, OCHAMPUS, or a 
designee, may exclude or suspend any provider who has knowingly been 
involved in a conflict of interest situation under CHAMPUS. The period 
of time of exclusion or suspension shall be determined by the Director, 
OCHAMPUS, or a designee, pursuant to paragraph (g) of this section. For 
purposes of this administrative determination, it will be presumed that 
a

[[Page 223]]

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

[[Page 224]]

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

[[Page 225]]

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

[[Page 226]]

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

[[Page 227]]

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

[[Page 228]]

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

[[Page 229]]

    (1) Based on any of the actions set forth in paragraph (h)(1)(ii)(B) 
of this section,
    (2) In which the beneficiary's or provider's submission does not 
raise a genuine dispute over material facts, or
    (3) In which additional proceedings to determine disputed material 
facts have been denied on the basis of advice of a responsible 
Government official that the substantial interests of the Government in 
pending or contemplated legal or administrative proceedings would be 
prejudiced.
    (B) In a case in which additional proceedings are necessary as to 
disputed material facts, the suspending official's decision shall advise 
the beneficiary or provider that the case has been referred for handling 
as a hearing under Sec. 199.10 of this part.
    (v) A suspension of claims processing may be modified or terminated 
for reasons such as:
    (A) Newly discovered evidence;
    (B) Elimination of any of the causes for which the suspension was 
invoked; or
    (C) Other reasons the Director, OCHAMPUS, or a designee, deems 
appropriate.
    (vi) A suspension of claims processing shall be for a temporary 
period pending the completion of investigation and any ensuing legal or 
administrative proceedings, unless sooner terminated by the Director, 
OCHAMPUS, or a designee, or as provided in this subparagraph.
    (A) If legal or administrative proceedings are not initiated within 
12 months after the date of the suspension notice, the suspension shall 
be terminated unless the Government official responsible for initiation 
of the legal or administrative action requests its extension, in which 
case it may be extended for an additional 6 months. In no event may a 
suspension extend beyond 18 months, unless legal or administrative 
proceedings have been initiated during that period.
    (B) The Director, OCHAMPUS, or a designee, shall notify the 
Government official responsible for initiation of the legal or 
administrative action of the proposed termination of the suspension, at 
least 30 days before the 12-month period expires, to give the official 
an opportunity to request an extension.
    (2) Notice of proposed administrative sanction. (i) A provider shall 
be notified in writing of the proposed action to exclude, suspend, or 
terminate the provider's status as an authorized CHAMPUS provider.
    (A) The notice shall state which sanction will be taken and the 
effective date of that sanction as determined in accordance with the 
provisions of this part.
    (B) The notice shall inform the provider of the situation(s), 
circumstance(s), or action(s) which form the basis for the proposed 
sanction and reference the paragraph of this part under which the 
administrative action is being taken.
    (C) The notice will be sent to the provider's last known business or 
office address (or home address if there is no known business address.)
    (D) The notice shall offer the provider an opportunity to respond 
within 30 days (or, upon written request received by OCHAMPUS during the 
30 days and for good cause shown, within 60 days) from the date on the 
notice with either:
    (1) Documentary evidence and written argument contesting the 
proposed action; or,
    (2) A written request to present in person evidence or argument to 
the Director, OCHAMPUS, or a designee. All such presentations shall be 
made at the Office of the Civilian Health and Medical Program of the 
Uniformed Services (OCHAMPUS) in Aurora, Colorado, at the provider's own 
expense.
    (3) Initial determination. (i) If, after the provider has exhausted, 
or failed to comply with, the procedures specified in paragraph (h)(2) 
of this section, the Director, OCHAMPUS, or a designee, decides to 
invoke an administrative remedy of exclusion, suspension, or termination 
of a provider under CHAMPUS, written notice of the decision will be sent 
to the provider by certified mail. Except in those cases where the 
sanction has a retroactive effective date, the written notice shall be 
dated no later than 15 days before the decision becomes effective. For 
terminations under paragraph (f)(2)(ii)(B)

[[Page 230]]

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

[[Page 231]]

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

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

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

[[Page 232]]

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

[[Page 233]]

in, for example, the joint regulations issued by the Department of 
Justice and the Government Accounting Office regarding debt collection.
    (k) Notice to Other Agencies. (1) When CHAMPUS excludes, suspends, 
or terminates a provider, the Director, OCHAMPUS, or a designee, will 
notify other appropriate agencies (for example, the Department of Health 
and Human Services and the state licensing agency that issued the 
provider's license to practice) that the individual has been excluded, 
suspended, or terminated as an authorized provider under CHAMPUS. An 
exclusion, suspension, or termination action is considered a public 
record. Such notice can include the notices and determinations sent to 
the suspended provider and other public documents such as testimony 
given at a hearing or exhibits or depositions given in a lawsuit or 
hearing. Notice may also be given to Uniformed Services Military 
Treatment Facilities, Health Benefit Advisors, beneficiaries and 
sponsors, the news media, and institutional providers if inpatient care 
was involved.
    (2) If CHAMPUS has temporarily suspended claims processing, notice 
of such action normally will be given to the affected provider and 
Uniformed Services Medical Treatment Facilities, Health Benefits 
Advisors, beneficiaries, and sponsors. Notice may also be given to any 
information or news media and any other individual, professional 
provider, or institutional provider, as deemed appropriate. However, 
since a ``temporary suspension of claims processing'' is by definition 
not a final or formal agency action, the basis for the action generally 
will not be disclosed. It is noted that the basis for the action can be 
a result of questions arising from routine audits to investigation of 
possible criminal violations.
    (l) Compromise, Settlement, and Resolution Authority. (1) In lieu of 
invoking any remedy provided by this Section, the Director, OCHAMPUS, or 
a designee, may elect to enter into an agreement with the provider 
intended to correct the situation within an established time period and 
subject to any remedies deemed appropriate by the Director, OCHAMPUS, or 
a designee.
    (2) When it is in the best interest of CHAMPUS, the Director, 
OCHAMPUS, has the discretionary authority to waive an action or enter 
into compromise or settlement of administrative actions taken under this 
Sec. 199.9.
    (m) Government-wide effect of exclusion or suspension from CHAMPUS. 
As provided by section 2455 of the Federal Acquisition Streamlining Act 
of 1994, Pub. L. 103-355, October 13 1994, and Executive Order 12549, 
``Debarment and Suspension from Federal Financial and Nonfinancial 
Assistance Programs,'' February 18, 1986, any health care provider 
excluded or suspended from CHAMPUS under this section shall, as a 
general rule, also be debarred, suspended, or otherwise excluded from 
all other programs and activities involving Federal financial 
assistance. Among the other programs for which this debarment, 
suspension, or exclusion shall operate are the Medicare and Medicaid 
programs. This debarment, suspension, or termination requirement is 
subject to limited exceptions in the regulations governing the 
respective Federal programs affected. (Note: Other regulations related 
to this government-wide exclusion or suspension authority are 32 CFR 
Part 25 and 45 CFR Part 76.)
    (n) Third-party billing agents as defined in Sec. 199.2(b) of this 
part, while not considered providers, are subject to the provisions of 
this section to the same extent as such provisions apply to providers.

[54 FR 25246, June 14, 1989, as amended at 63 FR 48445, Sept. 10, 1998; 
78 FR 12954, Feb. 26, 2013; 85 FR 60705, Sept. 28, 2020]



Sec. 199.10  Appeal and hearing procedures.

    (a) General. This Section sets forth the policies and procedures for 
appealing decisions made by OCHAMPUS, OCHAMPUSEUR, and CHAMPUS 
contractors adversely affecting the rights and liabilities of CHAMPUS 
beneficiaries, CHAMPUS participating providers, and providers denied the 
status of authorized provider under CHAMPUS. An appeal under CHAMPUS is 
an administrative review of program determinations made under the 
provisions of law and regulation.

[[Page 234]]

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

[[Page 235]]

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

[[Page 236]]

CHAMPUS advisor, subject to the exceptions in 18 U.S.C. 205, is not 
eligible to serve as a representative. An exception usually is made for 
an employee or member of a Uniformed Service who represents an immediate 
family member. In addition, the Director, OCHAMPUS, or designee, may 
appoint an officer or employee of the United States as the CHAMPUS 
representative at a hearing.
    (3) Burden of proof. The burden of proof is on the appealing party 
to establish affirmatively by substantial evidence the appealing party's 
entitlement under law and this part to the authorization of CHAMPUS 
benefits, approval of authorized CHAMPUS provider status, or removal of 
sanctions imposed under Sec. 199.9 of this part. If a presumption 
exists under the provisions of this part or information constitutes 
prima facie evidence under the provisions of this part, the appealing 
party must produce evidence reasonably sufficient to rebut the 
presumption or prima facie evidence as part of the appealing party's 
burden of proof. CHAMPUS shall not pay any part of the cost or fee, 
including attorney fees, associated with producing or submitting 
evidence in support of an appeal.
    (4) Evidence in appeal and hearing cases. Any relevant evidence may 
be used in the administrative appeal and hearing process if it is the 
type of evidence on which reasonable persons are accustomed to rely in 
the conduct of serious affairs, regardless of the existence of any 
common law or statutory rule that might make improper the admission of 
such evidence over objection in civil or criminal courts.
    (5) Late filing. If a request for reconsideration, formal review, or 
hearings is filed after the time permitted in this section, written 
notice shall be issued denying the request. Late filing may be permitted 
only if the appealing party reasonably can demonstrate to the 
satisfaction of the Director, OCHAMPUS, or a designee, that the timely 
filing of the request was not feasible due to extraordinary 
circumstances over which the appealing party had no practical control. 
Each request for an exception to the filing requirement will be 
considered on its own merits. The decision of the Director, OCHAMPUS, or 
a designee, on the request for an exception to the filing requirement 
shall be final.
    (6) Appealable issue. An appealable issue is required in order for 
an adverse determination to be appealed under the provisions of this 
section. Examples of issues that are not appealable under this section 
include:
    (i) A dispute regarding a requirement of the law or regulation.
    (ii) The amount of the CHAMPUS-determined allowable cost or charge, 
since the methodology for determining allowable costs or charges is 
established by this part.
    (iii) The establishment of diagnosis-related groups (DRGs), or the 
methodology for the classification of inpatient discharges within the 
DRGs, or the weighting factors that reflect the relative hospital 
resources used with respect to discharges within each DRG, since each of 
these is established by this part.
    (iv) Certain other issues on the basis that the authority for the 
initial determination is not vested in CHAMPUS. Such issues include but 
are not limited to the following examples:
    (A) Determination of a person's eligibility as a CHAMPUS beneficiary 
is the responsibility of the appropriate Uniformed Service. Although 
OCHAMPUS, OCHAMPUSEUR, and CHAMPUS contractors must make determinations 
concerning a beneficiary's eligibility in order to ensure proper 
disbursement of appropriated funds on each CHAMPUS claim processed, 
ultimate responsibility for resolving a beneficiary's eligibility rests 
with the Uniformed Services. Accordingly, disputed question of fact 
concerning a beneficiary's eligibility will not be considered an 
appealable issue under the provisions of this section, but shall be 
resolved in accordance with Sec. 199.3 of this part.
    (B) Similarly, decisions relating to the issuance of a 
Nonavailability Statement (DD Form 1251) in each case are made by the 
Uniformed Services. Disputes over the need for a Nonavailability 
Statement or a refusal to issue a Nonavailability Statement are not 
appealable under this section. The one exception is when a dispute 
arises over whether the facts of the case demonstrate a medical 
emergency for which a Nonavailability Statement is

[[Page 237]]

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

    Note: A request for administrative review under this appeal process 
which involves a dispute regarding a requirement of law or regulation 
(paragraph (a)(6)(i) of this section) or does not involve a sufficient 
amount in dispute (paragraph (a)(7) of this section) may not be rejected 
at the reconsideration level of appeal. However, an appeal shall involve 
an appealable issue and sufficient amount in dispute under these 
paragraphs to be granted a formal review or hearing.

    (8) Levels of appeal. The sequence and procedures of a CHAMPUS 
appeal vary, depending on whether the initial determination was made by 
OCHAMPUS, OCHAMPUSEUR, a CHAMPUS contractor, or a CHAMPUS peer review 
organization.
    (i) Appeal levels for initial determination made by OCHAMPUSEUR, 
CHAMPUS contractor, or CHAMPUS peer review organization. (A) 
Reconsideration by OCHAMPUSEUR, CHAMPUS contractor, or CHAMPUS peer 
review organization.
    (B) Formal review by OCHAMPUS (except for CHAMPUS peer review 
organization reconsiderations).
    (C) Hearing.

[[Page 238]]

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

[[Page 239]]

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

[[Page 240]]

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

[[Page 241]]

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

[[Page 242]]

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

[[Page 243]]

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

[[Page 244]]

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

[[Page 245]]

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

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



Sec. 199.11  Overpayments recovery.

    (a) General. Actions to recover overpayments arise when the 
government has a right to recover money, funds, or property from any 
person, partnership, association, corporation, governmental body or 
other legal entity, foreign or domestic, except another Federal agency, 
because of an erroneous payment of benefits under both CHAMPUS and the 
TRICARE program under this part. The

[[Page 246]]

term ``Civilian Health and Medical Program of the Uniformed Services'' 
(CHAMPUS) is defined in 10 U.S.C. 1072(2), referred to as the CHAMPUS 
basic program. Prior to January 1, 2018, the term ``TRICARE program'' 
referred to the triple-option of health benefits known as TRICARE Prime, 
TRICARE Extra, and TRICARE Standard. Specifically, TRICARE Standard was 
the TRICARE program under which the basic program of health care 
benefits generally referred to as CHAMPUS was made available to eligible 
beneficiaries under this Part 199. Effective January 1, 2018, the term 
``TRICARE program'' is defined in 10 U.S.C. 1072(2) and includes TRICARE 
Prime, TRICARE Select and TRICARE for Life. It is the purpose of this 
section to prescribe procedures for investigation, determination, 
assertion, collection, compromise, waiver and termination of claims in 
favor of the United States for erroneous benefit payments arising out of 
the administration CHAMPUS and the TRICARE program. For the purpose of 
this section, references herein to TRICARE beneficiaries, claims, 
benefits, payments, or appeals shall include CHAMPUS beneficiaries, 
claims, benefits, payments, or appeals. A claim against several joint 
debtors arising from a single incident or transaction is considered one 
claim. The Director, or a designee, may pursue collection against all 
joint debtors and is not required to allocate the burden of payment 
between debtors.
    (b) Authority--(1) Federal statutory authority. The Federal Claims 
Collection Act, 31 U.S.C. 3701, et seq., as amended by the Debt 
Collection Act of 1982 and the Debt Collection Improvement Act of 1996 
(DCIA), provides the basic authority under which claims may be asserted 
pursuant to this section. The DCIA is implemented by the Federal Claims 
Collection Standards, joint regulations issued by the Department of the 
Treasury (Treasury) and the Department of Justice (DOJ) (31 CFR Parts 
900-904), that prescribe government-wide standards for administrative 
collection, offset, compromise, suspension, or termination of agency 
collection action, disclosure of debt information to credit reporting 
agencies, referral of debts to private collection contractors for 
resolution, and referral to the Department of Justice for litigation to 
collect debts owed the Federal government. The regulations under this 
part are also issued under Treasury regulations implementing the DCIA 
(31 CFR part 285) and related statutes and regulations governing the 
offset of Federal salaries (5 U.S.C. 5514; 5 CFR part 550, subpart K), 
administrative offset (31 U.S.C. 3716; 31 CFR part 285, subpart A); 
administrative offset of tax refunds (31 U.S.C. 3720A) and offset of 
military pay (37 U.S.C. 1007(c); Volume 7A, Chapter 50 and Volume 7B, 
Chapter 28 of the Department of Defense Financial Management Regulation, 
DOD 7000.14-R \1\ (DoDFMR)).
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    \1\ Copies may be obtained at http://www.dtic.mil/ whs/directives/.
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    (2) Other authority. Federal claims may arise under authorities 
other than the federal statutes, referenced above. These include, but 
are not limited to:
    (i) State worker's compensation laws.
    (ii) State hospital lien laws.
    (iii) State no-fault automobile statutes.
    (iv) Contract rights under terms of insurance policies.
    (c) Policy. The Director, TMA, or a designee, shall aggressively 
collect all debts arising out of its activities. Claims arising out of 
any incident, which has or probably will generate a claim in favor of 
the government, will not be compromised, except as otherwise provided in 
this section, nor will any person not authorized to take final action on 
the government's claim, compromise or terminate collection action. Title 
28 U.S.C. 2415-2416 establishes a statute of limitation applicable to 
the government where previously neither limitations nor latches were 
available as a defense. Claims falling within the provisions of this 
statute will be referred to the Department of Justice without attempting 
administrative collection action, if such action cannot be accomplished 
in sufficient time to preclude the running of the statute of 
limitations.
    (d) Appealability. This section describes the procedures to be 
followed in the recovery and collection of federal claims in favor of 
the United States arising from the operation of

[[Page 247]]

TRICARE. Actions taken under this section are not initial determinations 
for the purpose of the appeal procedures of Sec. 199.10 of this part. 
However, the proper exercise of the right to appeal benefit or provider 
status determinations under the procedures set forth in Sec. 199.10 of 
this part may affect the processing of federal claims arising under this 
section. Those appeal procedures afford a TRICARE beneficiary or 
participating provider an opportunity for administrative appellate 
review in cases in which benefits have been denied and in which there is 
an appealable issue. For example, a TRICARE contractor may erroneously 
make payment for services, which are excluded as TRICARE benefits 
because they are determined to be not medically necessary. In that 
event, the contractor will initiate recoupment action, and at the same 
time, the contractor will offer an administrative appeal as provided in 
Sec. 199.10 of this part on the medical necessity issue raised by the 
adverse benefit determination. The recoupment action and the 
administrative appeal are separate actions. However, in an appropriate 
case, the pendency of the appeal may provide a basis for the suspension 
of collection in the recoupment case. If an appeal were resolved 
entirely in favor of the appealing party, it would provide a basis for 
the termination of collection action in the recoupment case.
    (e) Delegation. Subject to the limitations imposed by law or 
contained in this section, the authority to assert, settle, and 
compromise or to suspend or terminate collection action arising on 
claims under the Federal Claims Collection Act has been delegated to the 
Director, TMA, or a designee.
    (f) Recoupment of erroneous payments. (1) Erroneous payments are 
expenditures of government funds, which are not authorized by law or 
this part. Examples which are sometimes encountered in the 
administration of TRICARE include mathematical errors, payment for care 
provided to an ineligible person, payment for care which is not an 
authorized benefit, payment for duplicate claims, incorrect application 
of the deductible or co-payment or payment for services which were not 
medically necessary. Claims in favor of the government arising as the 
result of the filing of false TRICARE claims or other fraud fall under 
the cognizance of the Department of Justice. Consequently, procedures in 
this section apply to such claims only when specifically authorized or 
directed by the Department of Justice. (See 31 CFR 900.3.) Due to the 
nature of contractual agreements between network providers and TRICARE 
prime contractors, recoupment procedures may be modified or adapted to 
conform to network agreements. The provisions of Sec. 199.11 shall 
apply if recoupment under the network agreements is not successful.
    (2) Scope--(i) General. Paragraph (f) of this section and the 
paragraphs following contain requirements and procedures for the 
assertion, collection or compromise of, and the suspension or 
termination of collection action on claims for erroneous payments 
against a sponsor, patient, beneficiary, provider, physician or other 
supplier of products or services under TRICARE.
    (ii) Debtor defined. As used herein, ``debtor'' means a sponsor, 
beneficiary, provider, physician, other supplier of services or 
supplies, or any other person who for any reason has been erroneously 
paid under TRICARE. It includes an individual, partnership, corporation, 
professional corporation or association, estate, trust or any other 
legal entity.
    (iii) Delinquency defined. A debt is ``delinquent'' if it has not 
been paid by the date specified in the initial written demand for 
payment (that is, the initial written notification) or other applicable 
contractual agreement, unless other satisfactory payment arrangements 
have been made by the date specified in the initial written demand for 
payment. A debt is considered delinquent if at any time after entering 
into a repayment agreement, the debtor fails to satisfy any obligations 
under that agreement.
    (3) Claims arising from erroneous TRICARE payments in situations 
where the beneficiary has entitlement to an insurance, medical service, 
health and medical plan, including any plan offered by a third party 
payer as defined in 10 U.S.C. 1095(h)(1) or other government program, 
except in the

[[Page 248]]

case of a plan administered under Title XIX of the Social Security Act 
(42 U.S.C. 1396, et seq.) through employment, by law, through membership 
in an organization, or as a student, or through the purchase of a 
private insurance or health plan, shall be recouped following the 
procedures in paragraph (f) of this section. If the other plan has not 
made payment to the beneficiary or provider, the contractor shall first 
attempt to recover the overpayment from the other plan through the 
contractor's coordination of benefits procedures. If the overpayment 
cannot be recovered from the other plan, or if the other plan has made 
payment, the overpayment will be recovered from the party that received 
the erroneous payment from TRICARE. Nothing in this section shall be 
construed to require recoupment from any sponsor, beneficiary, provider, 
supplier and/or the Medicare Program under Title XVIII of the Social 
Security Act in the event of a retroactive determination of entitlement 
to SSDI and Medicare Part A coverage made by the Social Security 
Administration as discussed in Sec. 199.8(d) of this part.
    (4) Claim denials due to clarification or change. In those instances 
where claim review results in the denial of benefits previously 
provided, but now denied due to a change, clarification or 
interpretation of the public law or this part, no recoupment action need 
be taken to recover funds expended prior to the effective date of such 
change, clarification or interpretation.
    (5) Good faith payment. (i) The Department of Defense, through the 
Defense Enrollment Eligibility Reporting System (DEERS), is responsible 
for establishing and maintaining a file listing of persons eligible to 
receive benefits under TRICARE. However, it is the responsibility of the 
Uniformed Services to provide eligible TRICARE beneficiaries with 
accurate and appropriate means of identification. When sources of 
civilian medical care exercise reasonable care and precaution 
identifying persons claiming to be eligible TRICARE beneficiaries, and 
furnish otherwise covered services and supplies to such persons in good 
faith, TRICARE benefits may be paid subject to prior approval by the 
Director, TMA, or a designee, notwithstanding the fact that the person 
receiving the services and supplies is subsequently determined to be 
ineligible for benefits. Good faith payments will not be authorized for 
services and supplies provided by a civilian source of medical care 
because of its own careless identification procedures.
    (ii) When it is determined that a person was not a TRICARE 
beneficiary, the TRICARE contractor and the civilian source of medical 
care are expected to make all reasonable efforts to obtain payment or to 
recoup the amount of the good faith payment from the person who 
erroneously claimed to be the TRICARE beneficiary. Recoupment of good 
faith payments initiated by the TRICARE contractor will be processed 
pursuant to the provisions of paragraph (f) of this section.
    (6) Recoupment procedures. (i) Initial action. When an erroneous 
payment is discovered, the TRICARE contractor normally will be required 
to take the initial action to effect recoupment. Such actions will be in 
accordance with the provisions of this part and the TRICARE contracts 
and will include a demand (or demands) for refund or an offset against 
any other TRICARE payment(s) becoming due the debtor. When the efforts 
of the TRICARE contractor to effect recoupment are not successful within 
a reasonable time, recoupment cases will be referred to the Office of 
General Counsel, TMA, for further action in accordance with the 
provisions of paragraph (f) of this section. All requests to debtors for 
refund or notices of intent to offset shall be in writing.
    (ii) Demand for payment. Written demand(s) for payment shall inform 
the debtor of the following:
    (A) The basis for and amount of the debt and the consequences of 
failing to cooperate to resolve the debt;
    (B) The right to inspect and copy TRICARE records pertaining to the 
debt;
    (C) The opportunity to request an administrative review by the 
TRICARE contractor; and that such a request must be received by the 
TRICARE contractor within 90 days from the date of the initial demand 
letter;

[[Page 249]]

    (D) That payment of the debt is due within 30 days from the date of 
the initial demand notification;
    (E) That interest will be assessed on the debt at the Treasury 
Current Value of Funds rate, pursuant to 31 U.S.C. 3717, and will begin 
to accrue on the date of the initial demand letter; and that interest 
will be waived on the debt, or any portion thereof, which is paid within 
30 days from the date of the initial demand notification letter;
    (F) That administrative costs and penalties will be charged pursuant 
to 31 CFR 901.9;
    (G) That collection by offset against current or subsequent claims 
or other amounts payable from the government may be taken;
    (H) The opportunity to enter into a written agreement to repay the 
debt;
    (I) The name, address, and phone number of a contact person or 
office that the debtor may contact regarding the debt.
    (iii) A minimum of one demand letter is required. However, the 
specific content, timing and number of demand letters may be tailored to 
the type and amount of the debt, and the debtor's response, if any. 
Contractors' demand letters must be mailed or hand-delivered on the same 
date they are dated.
    (iv) The initial or subsequent demand letters may also inform the 
debtor of the requirement to report delinquent debts to credit reporting 
agencies and to collection agencies, the requirement to refer debts to 
the Treasury Offset Program for offset from Federal income tax refunds 
and other amounts payable by the Government, offset from state payments, 
the requirement to refer debts to Treasury for collection and TRICARE 
policies concerning the referral of delinquent debts to the Department 
of Justice for enforced collection action. The initial or subsequent 
demand letter may also inform the debtor of TRICARE policies concerning 
waiver. When necessary to protect the Government's interest (for example 
to prevent the running of a statute of limitations), written demand may 
be preceded by other appropriate actions under this regulation, 
including referral to the Department of Justice for litigation. There 
should be no undue delay in responding to any communication received 
from the debtor. Responses to communications from debtors should be made 
within 30 days of receipt whenever feasible. If prior to the initiation 
of the demand process or at any time during or after completion of the 
demand process, the Director, TMA, or a designee, determines to pursue 
or is required to pursue offset, the procedures applicable to 
administrative offset, found at paragraph (f)(6)(v) of this section, 
must be followed. If it appears that initial collection efforts are not 
productive or if immediate legal action on the claim appears necessary, 
the claim shall be referred promptly by the contractor to the Office of 
General Counsel, TMA.
    (v) Collection by administrative offset. Collections by offset will 
be undertaken administratively in every instance when feasible. 
Collections may be taken by administrative offset under 31 U.S.C. 3716, 
the common law or other applicable statutory authority. No collection by 
offset may be undertaken unless the debtor has been sent a written 
demand for payment, including the procedural safeguards described in 
paragraph (f)(6)(ii) of this section, unless the failure to take the 
offset would substantially prejudice the Government's ability to collect 
the debt, and the time before payment is to be made does not reasonably 
permit the time for sending written notice. Such prior offset must be 
promptly followed by sending a written notice and affording the debtor 
the opportunity for a review by the TRICARE contractor. Examples of 
erroneous payments include, but are not limited to, claims submitted by 
individuals ineligible for TRICARE benefits, claims submitted for non-
covered services or supplies, claims for which payments by another 
insurance or health plan reduce TRICARE liability, and from claims made 
from participating providers in which payment was initially erroneously 
made to the beneficiary. The resolution of recoupment claims rarely 
involves issues of credibility or veracity and a review of the written 
record is ordinarily an adequate means to correct prior mistakes. For 
this reason, the pre-offset oral hearing requirements of the Federal 
Claims Collection Standards, 31 CFR 901.3(e) do not apply

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to the recoupment of erroneous TRICARE payments. However, in instances 
where an oral hearing is not required, the debtor will be afforded an 
administrative review if the TRICARE contractor receives a written 
request for an administrative review within 90 days from the date of the 
initial demand letter. The appeals procedures described in Sec. 199.10 
of this part, afford a TRICARE beneficiary or participating provider an 
opportunity for an administrative appellate review, including under 
certain circumstances, the right to an oral hearing before a hearing 
officer when an appealable issue exists. TRICARE contractors may take 
administrative action to offset erroneous payments against other current 
TRICARE payments owing a debtor. Payments on the claims of a debtor 
pending at or filed subsequent to the time collection action is 
initiated should be suspended pending the outcome of the collection 
action so that these funds will be available for offset. All or part of 
a debt may be offset depending on the amount available for offset. Any 
requests for offset received from other agencies and garnishment orders 
issued by courts of competent jurisdiction will be forwarded to the 
Office of General Counsel, TMA. Unless otherwise provided by law, 
administrative offset of payments under the authority of 31 U.S.C. 3716 
may not be conducted more than 10 years after the Government's right to 
collect the debt first accrued, unless facts material to the 
Government's right to collect the debt were not known and could not 
reasonably have been known by the TRICARE official or officials charged 
with the responsibility to discover and collect such debts. This 
limitation does not apply to debts reduced to judgment. This section 
does not apply to debts arising under the Social Security Act, except as 
provided in 42 U.S.C. 404, payments made under the Social Security Act, 
except as provided for in 31 U.S.C. 3716(c), debts arising under, or 
payments made under, the Internal Revenue Code, except for offset of tax 
refunds or tariff laws of the United States; offsets against Federal 
salaries to the extent these standards are inconsistent with regulations 
published to implement such offsets under 5 U.S.C. 5514 and 31 U.S.C. 
3716; offsets under 31 U.S.C. 3728 against a judgment obtained by a 
debtor against the United States; offset or recoupment under common law, 
state law, or federal statutes specifically prohibiting offset or 
recoupment of particular types of debts or offsets in the course of 
judicial proceedings, including bankruptcy.
    (A) Referral for centralized administrative offset. When cost-
effective, legally enforceable non-tax debts delinquent over 180 days 
that are eligible for collection through administrative offset shall be 
referred to Treasury for administrative offset, unless otherwise 
exempted from referral. Referrals shall include certification that the 
debt is past due and legally enforceable and that TMA has complied with 
all due process requirements of the statute-authorizing offset. 
Administrative offset, including administrative offset against tax 
refunds due debtors under 26 U.S.C. 6402, in accordance with 31 U.S.C. 
3720A, shall be effected through referral for centralized administrative 
offset, after debtors have been afforded at least sixty (60) days notice 
required in paragraph (f)(6) of this section. Salary offsets shall be 
effected through referral for centralized administrative offset, after 
debtors have been afforded due process required by 5 U.S.C. 5514, in 
accordance with 31 CFR 285.7. Referrals for salary offset shall include 
certification that the debts are past due, legally enforceable debts and 
that TMA has complied with all due process requirements under 5 U.S.C. 
5514 and applicable agency regulations. The Treasury, Financial 
Management Service (FMS) may waive the salary offset certification 
requirement set forth in 31 CFR 285.7, as a prerequisite to submitting 
the debt to FMS for offset from other payment types. If FMS waives the 
certification requirement, before an offset occurs, TMA will provide the 
employee with the notice and opportunity for a hearing as required by 5 
U.S.C. 5514 and applicable regulations, and will certify to FMS that the 
requirements of 5 U.S.C. 5514 and applicable agency regulations have 
been met.

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TMA is not required to duplicate notice and administrative review or 
salary offset hearing opportunities before referring debts for 
centralized administrative offset when the debtor has been previously 
given them.
    (B) Referral for non-centralized administrative offset. Unless 
otherwise prohibited by law, when centralized administrative offset is 
not available or appropriate, past due legally enforceable non-tax-
delinquent debts that are eligible for referral may be collected through 
non-centralized administrative offset through a request directly to the 
payment-authorizing agency. Referrals shall include certification that 
the debts are past due and that the agency has complied with due process 
requirements under 31 U.S.C. 3716(a) or other applicable authority and 
applicable agency regulations concerning administrative offset. 
Generally, non-centralized administrative offsets will be made on an ad 
hoc case-by-case basis, in cooperation with the agency certifying or 
authorizing payments to the debtor.
    (vi) Collection by transfer of debts to Treasury or a Treasury-
designated debt collection center for collection through cross 
servicing. (A) The Director, TMA or a designee, is required to transfer 
legally enforceable non-tax debts that are delinquent 180 days or more 
to Treasury for collection through cross-servicing (31 U.S.C. 3711(g); 
31 CFR 285.12.) Debts referred or transferred to Treasury or Treasury-
designated debt collection centers shall be serviced, collected, or 
compromised, or the collection action will be suspended or terminated, 
in accordance with the statutory requirements and authorities applicable 
to the collection of such debts. Agencies operating Treasury-designated 
debt collection centers are authorized to charge a fee for services 
rendered regarding referred or transferred debts. This fee may be paid 
out of amounts collected and may be added to the debt as an 
administrative cost. Referrals will include certification that the debts 
transferred are valid, legally enforceable debts, that there are no 
legal bars to collection and that the agency has complied with all 
prerequisites to a particular collection action under the applicable 
laws, regulations or policies, unless the agency and Treasury agree that 
Treasury will do so on behalf of the agency.
    (B) The requirement of paragraph (f)(1) of this section does not 
apply to any debt that:
    (1) Is in litigation or foreclosure.
    (2) Will be disposed of under an approved asset sale program.
    (3) Has been referred to a private collection contractor for a 
period of time acceptable to Treasury.
    (4) Will be collected under internal offset procedures within 3 
years after the debt first became delinquent.
    (5) Is exempt from this requirement based on a determination by the 
Secretary of the Treasury that exemption for a certain class of debt is 
in the best interest of the United States.
    (vii) Collection by salary offset. When a debtor is a member of the 
military service or a retired member and collection by offset against 
other TRICARE payments due the debtor cannot be accomplished, and there 
have been no positive responses to a demand for payment, the Director, 
TMA, or a designee, may refer the debt for offset from the debtor's pay 
account pursuant to 37 U.S.C. 1007(c), as implemented by Volume 7A, 
Chapter 50 and Volume 7B, Chapter 28 of the DoDFMR. Collection from a 
Federal employee may be effected through salary offset under 5 U.S.C. 
5514.
    (A) For collections by salary offset the Director, TMA, or designee, 
will issue written notification, as required by 5 CFR 550.1104(d) at 
least 30 days before any offsets are taken. In addition, the 
notification will advise the employee that if he or she retires, resigns 
or his or her employment ends before collection of the debt is 
completed, collection may be made from subsequent payments of any nature 
due from the United States (e.g., final salary payment, lump-sum leave 
under 31 U.S.C. 3716 due the employee as of date of separation.) A 
debtor's involuntary payment of all or part of a debt being collected 
will not be construed as a waiver of any rights the debtor may have 
under 5 U.S.C. 5514 or any other provision of contract or law, unless 
there are statutory or contractual provisions

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to the contrary or the employee's paying agency is directed by an 
administrative or judicial order to refund amounts deducted from his or 
her current pay. No interest will be paid on amounts waived or 
determined not to be owed unless there are statutory or contractual 
provisions to the contrary.
    (B) Petition for hearing. The notice of the proposed offset will 
advise the debtor of his or her right to petition for a hearing. The 
petition for hearing must be signed by the debtor or his or her 
representative and must state whether he or she is contesting debt 
validity, debt amount and/or the terms of the proposed offset schedule. 
It must explain with reasonable specificity all the facts, evidence and 
witnesses, if any (in the case of an oral hearing and a summary of their 
anticipated testimony), which the debtor believes support his or her 
position, and include any supporting documentation. If contesting the 
terms of the proposed offset schedule, the debtor must provide financial 
information including a completed Department of Justice Financial 
Statement of Debtor form (OBD-500 or other form prescribed by DOJ), 
including specific details concerning income and expenses of the 
employee, his or her spouse and dependents for 1-year period preceding 
the debt notification and projected income and expenses for the proposed 
offset period and a statement of the reason why the debtor believes the 
salary offset schedule will impose extreme financial hardship. Upon 
receipt of the petition for hearing, the Director, TMA, or a designee, 
will complete reconsideration. If the Director, TMA, or a designee 
determines that the debt amount is not owed, that a less amount is owed, 
or that the terms of the employee's proposed offset schedule are 
acceptable, it will advise the debtor and request that the employee 
accept the results of the reconsideration in lieu of a hearing. If the 
employee declines to accept the results of reconsideration in lieu of a 
hearing, the debtor will be afforded a hearing. Ordinarily, a petition 
for hearing and required submissions that are not timely filed, shall be 
accepted after expiration of the deadline provided in the notice of the 
proposed offset, only when the debtor can demonstrate to the Director, 
TMA, or a designee, that the timely filing of the request was not 
feasible due to extraordinary circumstances over which the appealing 
party had no practical control or because of failure to receive notice 
of the time limit (unless he or she was otherwise aware of it). Each 
request for an exception to the timely filing requirement will be 
considered on its own merits. The decision of the Director, TMA, or a 
designee, on a request for an exception to the timely filing requirement 
shall be final.
    (C) Extreme financial hardship. The maximum authorized amount that 
may be collected through involuntary salary offset is the lesser of 15 
percent of the employee's disposable pay or the full amount of the debt. 
An employee who has petitioned for a hearing may assert that the maximum 
allowable rate of involuntary offset produces extreme financial 
hardship. An offset produces an extreme financial hardship if the offset 
prevents the employee from meeting the costs necessarily incurred for 
the essential expenses of the employee, employee's spouse and 
dependents. These essential expenses include costs incurred for food, 
housing, necessary public utilities, clothing, transportation and 
medical care. In determining whether the offset would prevent the 
employee from meeting the essential expenses identified above, the 
following shall be considered:
    (1) Income from all sources of the employee, the employee's spouse, 
and dependents;
    (2) The extent to which assets of the employee, employee's spouse 
and dependents are available to meet the offset and essential 
subsistence expenses;
    (3) Whether these essential subsistence expenses have been minimized 
to the greatest extent possible;
    (4) The extent to which the employee or the employee's spouse can 
borrow money to meet the offset and other essential expenses; and
    (5) The extent to which the employee and the employee's spouse and 
dependents have other exceptional expenses that should be taken into 
account and whether these expenses have been minimized.
    (D) Form and content of hearings. The resolution of recoupment 
claims rarely

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involves issues of credibility or veracity and a review of the written 
record is ordinarily an adequate means to determine the validity or 
amount of the debt and/or the terms of a proposed offset schedule. The 
Director, TMA, or a designee, will determine whether an oral hearing is 
required. A debtor who has petitioned for a hearing, but who is not 
entitled to an oral hearing will be given an administrative hearing, 
based on the written documentation submitted by the debtor and the 
Director, TMA, or a designee. If the Director, TMA, or a designee, 
determines that the debtor should be afforded the opportunity for an 
oral hearing, the debtor may elect to have a hearing based on the 
written record in lieu of an oral hearing. The Director, TMA, or a 
designee, will provide the debtor (or his representative) notification 
of the time, date and location of the oral hearing to be held if the 
debtor has been afforded an oral hearing. Copies of records documenting 
the debt will be provided to the debtor or his representative (if they 
have not been previously provided), at least 3 calendar days prior to 
the date of the oral hearing. At oral hearings, the only evidence 
permitted, except oral testimony, will be that which was previously 
submitted as pre-hearing submissions. At oral hearings, the debtor may 
not raise any issues not previously raised with TMA. In the absence of 
good cause shown, a debtor who fails to appear at an oral hearing will 
be deemed to have waived the right to a hearing and salary offset may be 
initiated.
    (E) Costs for attendance at oral hearings. Debtors and their 
witnesses will bear their own costs for attendance at oral hearings.
    (F) Hearing official's decision. The Hearing Official's decision 
will be in writing and will identify the documentation reviewed. It will 
indicate the amount of debt that he or she determined is valid and shall 
state the amount of the offset and the estimated duration of the offset. 
The determination of a hearing official designated under this section is 
considered an official certification regarding the existence and amount 
of the debt and/or the terms of the proposed offset schedule for the 
purposes of executing salary offset under 5 U.S.C. 5514. The Hearing 
Official's decision must be issued at the earliest practical date, but 
not later than 60 days from the date the petition for hearing is 
received by the Office of General Counsel, TMA, unless the debtor 
requests, and the Hearing Official grants a delay in the proceedings. If 
a hearing official determines that the debt may not be collected by 
salary offset, but the Director, TMA, or a designee, finds the debt is 
still valid, the Director, TMA or a designee, may seek collection 
through other means, including but not limited to, offset from other 
payments due from the United States.
    (viii) [Reserved]
    (ix) Collection of installments. Debts, including interest, penalty 
and administrative costs shall be collected in one lump sum whenever 
possible. However, when the debtor is financially unable to pay the debt 
in one lump sum, the TRICARE contractor or the Director, TMA, or 
designee, may accept payment in installments. Debtors claiming that lump 
sum payment will create financial hardship may be required to complete a 
Department of Justice Financial Statement of Debtor form or provide 
other financial information that will permit TMA to verify such 
representations. TMA may also obtain credit reports to assess 
installment requests. Normally, debtors will make installment payments 
on a monthly basis. Installment payment shall bear a reasonable 
relationship to the size of the debt and the debtor's ability to pay. 
Except when a debtor can demonstrate financial hardship or another 
reasonable cause exists, installment payments should be sufficient in 
size and frequency to liquidate the debt in 3 years or less. (31 CFR 
901.8(b)). Normally, installment payments of $75 or less will not be 
accepted unless the debtor demonstrates financial hardship. Any 
installment agreement with a debtor in which the total amount of 
deferred installments will exceed $750, should normally include an 
executed promissory agreement. Copies of installment agreements will be 
retained in the contractor's or TMA, Office of General Counsel's files.
    (x) Interest, penalties, and administrative costs. Title 31 U.S.C. 
3717 and the

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Federal Claims Collection Standards, 31 CFR 901.9, require the 
assessment of interest, penalty and administrative costs on delinquent 
debts. Interest shall accrue from the date the initial debt notification 
is mailed to the debtor. The rate of interest assessed shall be the rate 
of the current value of funds to the United States Treasury (the 
Treasury tax and loan account rate). The collection of interest on the 
debt or any portion of the debt, which is paid within 30 days after the 
date on which interest begins to accrue, shall be waived. The Director, 
TMA, or designee, may extend this 30-day period on a case-by-case basis, 
if it reasonably determines that such action is appropriate. The rate of 
interest as initially assessed shall remain fixed for the duration of 
the indebtedness; except that where the debtor has defaulted on a 
repayment agreement and seeks to enter into a new agreement, a new 
interest rate may be set which reflects the current value of funds to 
the Treasury at the time the new agreement is executed. Interest shall 
not be compounded; that is, interest shall not be charged on interest, 
penalties, or administrative costs required by this section. However, if 
a debtor defaults on a previous repayment agreement, charges that 
accrued but were not collected under the defaulted agreement, shall be 
added to the principal under the new repayment agreement. The collection 
of interest, penalties and administrative costs may be waived in whole 
or in part as a part of the compromise of a debt as provided in 
paragraph (g) of this section. In addition, the Director, TMA, or 
designee may waive in whole or in part, the collection of interest, 
penalties, or administrative costs assessed herein if he or she 
determines that collection would be against equity and good conscience 
and not in the best interest of the United States. Some situations in 
which a waiver may be appropriate include:
    (A) Waiver of interest consistent with 31 CFR 903.2(c)(2) in 
connection with a suspension of collection when a TRICARE appeal is 
pending under Sec. 199.10 of this part where there is a substantial 
issue of fact in dispute.
    (B) Waiver of interest where the original debt arose through no 
fault or lack of good faith on the part of the debtor and the collection 
of interest would impose a financial hardship or burden on the debtor. 
Some examples in which such a waiver would be appropriate include: A 
debt arising when a TRICARE beneficiary in good faith files and is paid 
for a claim for medical services or supplies, which are later determined 
not to be covered benefits, or a debt arising when a TRICARE beneficiary 
is overpaid as the result of a calculation error on the part of the 
TRICARE contractor or TMA.
    (C) Waiver of interest where there has been an agreement to repay a 
debt in installments, there is no indication of fault or lack of good 
faith on the part of the debtor, and the amount of interest is so large 
in relation to the size of the installments that the debtor can 
reasonably afford to pay, that it is likely the debt will never be 
repaid in full. When a debt is paid in installments, the installment 
payments first will be applied to the payment of outstanding penalty and 
administrative cost charges, second, to accrued interest and then to 
principal. Administrative costs incurred as the result of a debt 
becoming delinquent (as defined in paragraph (f)(2)(iii) of this 
section) shall be assessed against a debtor. These administrative costs 
represent the additional costs incurred in processing and handling the 
debt because it became delinquent. The calculation of administrative 
costs should be based upon cost analysis establishing an average of 
actual additional costs incurred in processing and handling claims 
against other debtors in similar stages of delinquency. A penalty 
charge, not exceeding six percent a year, shall be assessed on the 
amount due on a debt that is delinquent for more than 90 days. This 
charge, which need not be calculated until the 91st day of delinquency, 
shall accrue from the date that the debt became delinquent.
    (xi) Referral to private collection agencies. TMA shall use 
government-wide debt collection contracts to obtain debt collection 
services provided by private contractors in accordance with 31 CFR 
901.5(b).

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    (xii) Reporting delinquent debts to credit reporting agencies. 
Delinquent consumer debts shall be reported to credit reporting 
agencies. Delinquent debts are debts which are not paid or for which 
satisfactory payment arrangements are not made by the due date specified 
in the initial debt notification letter, or those for which the debtor 
has entered into a written payment agreement and installment payments 
are past due 30 days or longer. Such referrals shall comply with the 
Bankruptcy Code and the Privacy Act of 1974, 5 U.S.C. 552a, as amended. 
The provisions of the Privacy Act do not apply to credit bureaus (31 CFR 
901.4(1)). There is no requirement to duplicate the notice and review 
opportunities before referring debts to credit bureaus. Debtors will be 
advised of the specific information to be transmitted (i.e., name, 
address, and taxpayer identification number, information about the 
debt). Procedures developed for such referrals must ensure that an 
accounting of the disclosures shall be kept which is available to the 
debtor; that the credit reporting agencies are provided with corrections 
and annotations of disagreements of the debtor; and that reasonable 
efforts are made to ensure that the information to be reported is 
accurate, complete, timely and relevant. When requested by a credit-
reporting agency, verification of the information disclosed will be 
provided promptly. Once a claim has been reviewed and determined to be 
valid, a complete explanation of the claim will be given the debtor. 
When the claim is overdue, the individual will be notified in writing 
that payment is overdue; that within not less than 60 days, disclosure 
of the claim shall be made to a consumer reporting agency unless 
satisfactory payment arrangements are made, or unless the debtor 
requests an administrative review and demonstrates some basis on which 
the debt is legitimately disputed; and of the specific information to be 
disclosed to the consumer reporting agency. The information to be 
disclosed to the credit reporting agency will be limited to information 
necessary to establish the identity of the debtor, including name, 
address and taxpayer identification number; the amount, status and 
history of the claim; and the agency or program under which the claim 
arose. Reasonable action will be taken to locate an individual for whom 
a current address is not available. The requirements of this section do 
not apply to commercial debts, although commercial debts shall be 
reported to commercial credit bureaus. Treasury will report debts 
transferred to it for collection to credit reporting agencies on behalf 
of the Director, TMA, or a designee.
    (xiii) Use and disclosure of mailing addresses. In attempting to 
locate a debtor in order to collect or compromise a debt under this 
section, the Director, TMA, or a designee, may send a written request to 
the Secretary of the Treasury, or a designee, for current address 
information from records of the Internal Revenue Service. TMA may 
disclose mailing addresses obtained under this authority to other 
agencies and to collection agencies for collection purposes.
    (g) Compromise, suspension or termination of collection actions 
arising under the Federal Claims Collection Act--(1) Basic 
considerations. Federal claims against the debtor and in favor of the 
United States arising out of the administration of TRICARE may be 
compromised or collection action taken thereon may be suspended or 
terminated in compliance with the Federal Claims Collection Act, 31 
U.S.C. 3711, as implemented by the Federal Claims Collection Standards, 
31 CFR parts 900-904. The provisions concerning compromise, suspension 
or termination of collection activity pursuant to 31 U.S.C. 3711 apply 
to debts, which do not exceed $100,000 or any higher amount authorized 
by the Attorney General, exclusive of interest, penalties, and 
administrative costs, after deducting the amount of partial payments or 
collections, if any. If, after deducting the amount of any partial 
payments or collections, the principal amount of a debt exceeds 
$100,000, or any higher amount authorized by the Attorney General, 
exclusive of interest, penalties and administrative costs, the authority 
to suspend or terminate rests solely with the DOJ.
    (2) Authority. TRICARE contractors are not authorized to compromise 
or to suspend or terminate collection action

[[Page 256]]

on TRICARE claims. Only the Director, TMA, or designee or Uniformed 
Services claims officers acting under the provisions of their own 
regulations are so authorized.
    (3) Basis for compromise. A compromise should be for an amount that 
bears a reasonable relation to the amount that can be recovered by 
enforced collection procedures, with regard to the exemptions available 
to the debtor and the time collection will take. A claim may be 
compromised hereunder if the government cannot collect the full amount 
if:
    (i) The debtor or the estate of a debtor does not have the present 
or prospective ability to pay the full amount within a reasonable time;
    (ii) The cost of collecting the claim does not justify enforced 
collection of the full amount; or
    (iii) The government is unable to enforce collection of the full 
amount within a reasonable time by enforced collection proceedings; or
    (iv) There is significant doubt concerning the Government's ability 
to prove its case in court for the full amount claimed; or
    (v) The cost of collecting the claim does not justify enforced 
collection of the full amount.
    (4) Basis for suspension. Collection action may be suspended for the 
following reasons if future collection action may be sufficiently 
productive to justify periodic review and action on the claim, 
considering its size and the amount, which may be realized thereon:
    (i) The debtor cannot be located; or
    (ii) The debtor's financial condition is expected to improve; or
    (iii) The debtor is unable to make payments on the government's 
claim or effect a compromise at the time, but the debtor's future 
prospects justify retention of the claim for periodic review and action 
and;
    (A) The applicable statute of limitations has been tolled or started 
running anew; or
    (B) Future collections can be effected by administrative offset, 
notwithstanding the expiration of the applicable statute of limitations 
for litigation of claims with due regard to the 10-year limitation for 
administrative offset under 31 U.S.C. 3716(e)(1); or
    (C) The debtor agrees to pay interest on the amount of the debt on 
which collection action will be temporarily suspended and such temporary 
suspension is likely to enhance the debtor's ability fully to pay the 
principal amount of the debt with interest at a later date.
    (iv) Consideration may be given by the Director, TMA, or designee to 
suspend collection action pending action on a request for a review of 
the government's claim against the debtor or pending an administrative 
review under Sec. 199.10 of this part of any TRICARE claim or claims 
directly involved in the government's claim against the debtor. 
Suspension under this paragraph will be made on a case-by-case basis as 
to whether:
    (A) There is a reasonable possibility that the debt (in whole or in 
part) will be found not owing from the debtor;
    (B) The government's interest would be protected if suspension were 
granted by reasonable assurance that the debt would be recovered if the 
debtor does not prevail; and
    (C) Collection of the debt will cause undue hardship.
    (5) Collection action may be terminated for one or more of the 
following reasons:
    (i) TMA cannot collect or enforce collection of any substantial 
amount through its own efforts or the efforts of others, including 
consideration of the judicial remedies available to the government, the 
debtor's future financial prospects, and the exemptions available to the 
debtor under state and federal law;
    (ii) The debtor cannot be located, and either;
    (iii) The costs of collection are anticipated to exceed the amount 
recoverable; or
    (iv) It is determined that the debt is legally without merit or 
enforcement of the debt is barred by any applicable statute of 
limitations; or
    (v) The debt cannot be substantiated; or
    (vi) The debt against the debtor has been discharged in bankruptcy. 
Collection activity may be continued subject to the provisions of the 
Bankruptcy

[[Page 257]]

Code, such as collection of any payments provided under a plan of 
reorganization or in cases when TMA did not receive notice of the 
bankruptcy proceedings.
    (6) In determining whether the debt should be compromised, suspended 
or terminated, the responsible TMA collection authority will consider 
the following factors:
    (i) Age and health of the debtor; present and potential income; 
inheritance prospects; the possibility that assets have been concealed 
or improperly transferred by the debtor; and the availability of assets 
or income which may be realized by enforced collection proceedings;
    (ii) Applicability of exemptions available to a debtor under state 
or federal law;
    (iii) Uncertainty as to the price which collateral or other property 
may bring at a forced sale;
    (iv) The probability of proving the claim in court because of legal 
issues involved or because of a bona fide dispute of the facts; the 
probability of full or partial recovery; the availability of necessary 
evidence and related pragmatic considerations. Debtors may be required 
to provide a completed Department of Justice Financial Statement of 
Debtor form (OBD-500 or such other form that DOJ shall prescribe) or 
other financial information that will permit TMA to verify debtors' 
representations. TMA may obtain credit reports or other financial 
information to enable it independently to verify debtors' 
representations.
    (7) Payment of compromised claims. (i) Time and manner. Compromised 
claims are to be paid in one lump sum whenever possible. However, if 
installment payments of a compromised claim are necessary, a legally 
enforceable compromise agreement must be obtained. Payment of the amount 
that TMA has agreed to accept as a compromise in full settlement of a 
TRICARE claim must be made within the time and in the manner prescribed 
in the compromise agreement. Any such compromised amount is not settled 
until full payment of the compromised amount has been made within the 
time and manner prescribed. Compromise agreements must provide for the 
reinstatement of the prior indebtedness, less sums paid thereon, and 
acceleration of the balance due upon default in the payment of any 
installment.
    (ii) Failure to pay the compromised amount. Failure of any debtor to 
make payment as provided in the compromise agreement will have the 
effect of reinstating the full amount of the original claim, less any 
amounts paid prior to default.
    (iii) Effect of compromise, waiver, suspension or termination of 
collection action. Pursuant to the Internal Revenue Code, 26 U.S.C. 
6050P, compromises and terminations of undisputed debts totaling $600 or 
more for the year will be reported to the Internal Revenue Service in 
the manner prescribed. Amounts, other than those discharged in 
bankruptcy, will be included in the debtor's gross income for that year. 
Any action taken under paragraph (g) of this section regarding the 
compromise of a federal claim, or waiver or suspension or termination of 
collection action on a federal claim is not an initial determination for 
the purposes of the appeal procedures in Sec. 199.10.
    (h) Referrals for collection--(1) Prompt referral. Federal claims of 
$2,500, exclusive of interest, penalties and administrative costs, or 
such other amount as the Attorney General shall from time to time 
prescribe on which collection action has been taken under the provisions 
of this section which cannot be collected or compromised or on which 
collection action cannot be suspended or terminated as provided herein, 
will be promptly referred to the Department of Justice for litigation in 
accordance with 31 CFR part 904. Such referrals shall be made as early 
as possible consistent with aggressive collection action made by TRICARE 
contractors and TMA. Referral will be made with sufficient time to bring 
timely suit against the debtor. Referral shall be made by submission of 
a completed Claims Collection Litigation Report (CCLR), accompanied by a 
signed Certificate of Indebtedness. Claims of less than the minimum 
amount shall not be referred unless litigation to collect

[[Page 258]]

such smaller claims is important to ensure compliance with TRICARE's 
policies or programs; the claim is being referred solely for the purpose 
of securing a judgment against the debtor, which will be filed as a lien 
against the debtor's property pursuant to 28 U.S.C. 3201 and returned to 
the referring office for enforcement; or the debtor has the clear 
ability to pay the claim and the Government effectively can enforce 
payment, with due regard for the exemptions available to the debtor 
under state and Federal law and judicial remedies available to the 
Government.
    (2) Preservation of evidence. The Director, TMA, or a designee will 
take such action as is necessary to ensure that all files, records and 
exhibits on claims referred, hereunder, are properly preserved.
    (i) Claims involving indication of fraud, filing of false claims or 
misrepresentation. Any case in which there is an indication of fraud, 
the filing of a false claim or misrepresentation on the part of the 
debtor or any party having an interest in the claim, shall be promptly 
referred to the Director, TMA, or designee. The Director, TMA, or a 
designee, will investigate and evaluate the case and either refer the 
case to an appropriate investigative law enforcement agency or return 
the claim for other appropriate administrative action, including 
collection action under this section. Payment on all TRICARE beneficiary 
or provider claims in which fraud, filing false claims or 
misrepresentation is suspected will be suspended until the Director, 
TMA, or designee, authorizes payment or denial of the claims. Collection 
action on all claims in which a suspicion of fraud, misrepresentation or 
filing false claims arises, will be suspended pending referral to the 
appropriate law enforcement agencies by the Director, TMA, or a 
designee. Only the Department of Justice has authority to compromise, 
suspend or terminate collection of such debts.
    (ii) [Reserved]

[73 FR 71547, Nov. 25, 2008, as amended at 77 FR 38176, June 27, 2012; 
82 FR 45447, Sept. 29, 2017]



Sec. 199.12  Third party recoveries.

    (a) General. This section deals with the right of the United States 
to recover from third-parties the costs of medical care furnished to or 
paid on behalf of TRICARE beneficiaries. These third-parties may be 
individuals or entities that are liable for tort damages to the injured 
TRICARE beneficiary or a liability insurance carrier covering the 
individual or entity. These third-parties may also include other 
entities who are primarily responsible to pay for the medical care 
provided to the injured beneficiary by reason of an insurance policy, 
workers' compensation program or other source of primary payment.
    Authority--(1) Third-party payers. This part implements the 
provisions of 10 U.S.C. 1095b which, in general, allow the Secretary of 
Defense to authorize certain TRICARE claims to be paid, even though a 
third-party payer may be primary payer, with authority to collect from 
the third-party payer the TRICARE costs incurred on behalf of the 
beneficiary. (See Sec. 199.2 for definition of ``third-party payer.'') 
Therefore, 10 U.S.C. 1095b establishes the statutory obligation of 
third-party payers to reimburse the United States the costs incurred on 
behalf of TRICARE beneficiaries who are also covered by the third-party 
payer's plan.
    (2) Federal Medical Care Recovery Act--(i) In general. In many cases 
covered by this section, the United States has a right to collect under 
both 10 U.S.C. 1095b and the Federal Medical Care Recovery Act (FMCRA), 
Public Law 87-693 (42 U.S.C. 2651 et. seq.). In such cases, the 
authority is concurrent and the United States may pursue collection 
under both statutory authorities.
    (ii) Cases involving tort liability. In cases in which the right of 
the United States to collect from an automobile liability insurance 
carrier is premised on establishing some tort liability on some third 
person, matters regarding the determination of such tort liability shall 
be governed by the same substantive standards as would be applied under 
the FMCRA including reliance on state law for determinations regarding 
tort liability. In addition, the provisions of 28 CFR part 43 
(Department of Justice regulations pertaining to the FMCRA) shall apply 
to claims made under the concurrent authority of the

[[Page 259]]

FMCRA and 10 U.S.C. 1095b. All other matters and procedures concerning 
the right of the United States to collect shall, if a claim is made 
under the concurrent authority of the FMCRA and this section, be 
governed by 10 U.S.C. 1095b and this part.
    (c) Appealability. This section describes the procedures to be 
followed in the assertion and collection of third-party recovery claims 
in favor of the United States arising from the operation of TRICARE. 
Actions taken under this section are not initial determinations for the 
purpose of the appeal procedures of Sec. 199.10 of this part. However, 
the proper exercise of the right to appeal benefit or provider status 
determinations under the procedures set forth in Sec. 199.10 may affect 
the processing of federal claims arising under this section. Those 
appeal procedures afford a TRICARE beneficiary or participating provider 
an opportunity for administrative appellate review in cases in which 
benefits have been denied and in which there is a significant factual 
dispute. For example, a TRICARE contractor may deny payment for services 
that are determined to be excluded as TRICARE benefits because they are 
found to be not medically necessary. In that event the TRICARE 
contractor will offer an administrative appeal as provided in Sec. 
199.10 of this part on the medical necessity issue raised by the adverse 
benefit determination. If the care in question results from an 
accidental injury and if the appeal results in a reversal of the initial 
determination to deny the benefit, a third-party recovery claim may 
arise as a result of the appeal decision to pay the benefit. However, in 
no case is the decision to initiate such a claim itself appealable under 
Sec. 199.10.
    (d) Statutory obligation of third-party payer to pay--(1) Basic 
Rule. Pursuant to 10 U.S.C. 1095b, when the Secretary of Defense 
authorizes certain TRICARE claims to be paid, even though a third-party 
payer may be primary payer (as specified under Sec. 199.8(c)(2)), the 
right to collect from a third-party payer the TRICARE costs incurred on 
behalf of the beneficiary is the same as exists for the United States to 
collect from third-party payers the cost of care provided by a facility 
of the uniformed services under 10 U.S.C. 1095 and part 220 of this 
title. Therefore the obligation of a third-party payer to pay is to the 
same extent that the beneficiary would be eligible to receive 
reimbursement or indemnification from the third-party payer if the 
beneficiary were to incur the costs on the beneficiary's own behalf.
    (2) Application of cost shares. If the third-party payer's plan 
includes a requirement for a deductible or copayment by the beneficiary 
of the plan, then the amount the United States may collect from the 
third-party payer is the cost of care incurred on behalf of the 
beneficiary less the appropriate deductible or copayment amount.
    (3) Claim from the United States exclusive. The only way for a 
third-party payer to satisfy its obligation under 10 U.S.C. 1095b is to 
pay the United States or authorized representative of the United States. 
Payment by a third-party payer to the beneficiary does not satisfy 10 
U.S.C. 1095b.
    (4) Assignment of benefits not necessary. The obligation of the 
third-party to pay is not dependent upon the beneficiary executing an 
assignment of benefits to the United States.
    (e) Exclusions impermissible--(1) Statutory requirement. With the 
same right to collect from third-party payers as exists under 10 U.S.C. 
1095(b), no provision of any third-party payer's plan having the effect 
of excluding from coverage or limiting payment for certain care if that 
care is provided or paid by the United States shall operate to prevent 
collection by the United States.
    (2) Regulatory application. No provision of any third-party payer's 
plan or program purporting to have the effect of excluding or limiting 
payment for certain care that would not be given such effect under the 
standards established in part 220 of this title to implement 10 U.S.C. 
1095 shall operate to exclude or limit payment under 10 U.S.C. 1095b or 
this section.
    (f) Records available. When requested, TRICARE contractors or other 
representatives of the United States shall make available to 
representatives of any third-party payer from which the United States 
seeks payment under 10

[[Page 260]]

U.S.C. 1095b, for inspection and review, appropriate health care records 
(or copies of such records) of individuals for whose care payment is 
sought. Appropriate records which will be made available are records 
which document that the TRICARE costs incurred on behalf of 
beneficiaries which are the subject of the claims for payment under 10 
U.S.C. 1095b were incurred as claimed and the health care service were 
provided in a manner consistent with permissible terms and conditions of 
the third-party payer's plan. This is the sole purpose for which patient 
care records will be made available. Records not needed for this purpose 
will not be made available.
    (g) Remedies. Pursuant to 10 U.S.C. 1095b, when the Director, 
TRICARE Management Activity, or a designee, authorizes certain TRICARE 
claims to be paid, even though a third-party payer may be primary payer, 
the right to collect from a third-party payer the TRICARE costs incurred 
on behalf of the beneficiary is the same as exists for the United States 
to collect from third-party payers the cost of care provided by a 
facility of the uniformed services under 10 U.S.C. 1095.
    (1) This includes the authority under 10 U.S.C. 1095(e)(1) for the 
United States to institute and prosecute legal proceedings against a 
third-party payer to enforce a right of the United States under 10 
U.S.C. 1095b and this section.
    (2) This also includes the authority under 10 U.S.C. 1095(e)(2) for 
an authorized representative of the United States to compromise, settle 
or waive a claim of the United States under 10 U.S.C. 1095b and this 
section.
    (3) The authorities provided by the Federal Claims Collection Act of 
1966, as amended (31 U.S.C. 3701 et. seq.) and any implementing 
regulations (including Sec. 199.11) regarding collection of 
indebtedness due the United States shall also be available to effect 
collections pursuant to 10 U.S.C. 1095b and this section.
    (h) Obligations of beneficiaries. To insure the expeditious and 
efficient processing of third-party payer claims, any person furnished 
care and treatment under TRICARE, his or her guardian, personal 
representative, counsel, estate, dependents or survivors shall be 
required:
    (1) To provide information regarding coverage by a third-party payer 
plan and/or the circumstances surrounding an injury to the patient as a 
conditional precedent of the processing of a TRICARE claim involving 
possible third-party payer coverage.
    (2) To furnish such additional information as may be requested 
concerning the circumstances giving rise to the injury or disease for 
which care and treatment are being given and concerning any action 
instituted or to be instituted by or against a third person; and,
    (3) To cooperate in the prosecution of all claims and actions by the 
United States against such third person.
    (i) Responsibility for recovery. The Director, TRICARE Management 
Activity, or a designee, is responsible for insuring that TRICARE claims 
arising under 10 U.S.C. 1095b and this section (including claims 
involving the FMCRA) are properly referred to and coordinated with 
designated claims authorities of the uniformed services who shall assert 
and recover TRICARE costs incurred on behalf of beneficiaries. 
Generally, claims arising under this section will be processed as 
follows:
    (1) Identification and referral. In most cases where civilian 
providers provide medical care and payment for such care has been by a 
TRICARE contractor, initial identification of potential third-party 
payers will be by the TRICARE contractor. In such cases, the TRICARE 
contractor is responsible for conducting a preliminary investigation and 
referring the case to designated appropriate claims authorities of the 
Uniformed Services.
    (2) Processing TRICARE claims. When the TRICARE contractor initially 
identifies a claim as involving a potential third-party payer, it shall 
request additional information concerning the circumstances of the 
injury or disease and/or the identify of any potential third-party payer 
from the beneficiary or other responsible party unless adequate 
information is submitted with the claim. The TRICARE claim will be

[[Page 261]]

suspended and no payment issued pending receipt of the requested 
information. If the requested information is not received, the claim 
will be denied. A TRICARE beneficiary may expedite the processing of his 
or her TRICARE claim by submitting appropriate information with the 
first claim for treatment of an accidental injury. Third-party payer 
information normally is required only once concerning any single 
accidental injury on episode of care. Once the third-party payer 
information pertaining to a single incident or episode of care is 
received, subsequent claims associated with the same incident or episode 
of care may be processed to payment in the usual manner. If, however, 
the requested third-party payer information is not received, subsequent 
claims involving the same incident or episode of care will be suspended 
or denied as stated above.
    (3) Ascertaining total potential liability. It is essential that the 
appropriate claims responsible for asserting the claim against the 
third-party payer receive from the TRICARE contractor a report of all 
amounts expended by the United States for care resulting from the 
incident upon which potential liability in the third party is based 
(including amounts paid by TRICARE for both inpatient and outpatient 
care). Prior to assertion and final settlement of a claim, it will be 
necessary for the responsible claims authority to secure from the 
TRICARE contractor updated information to insure that all amounts 
expended under TRICARE are included in the government's claim. It is 
equally important that information on future medical payments be 
obtained through the investigative process and included as a part of the 
government's claim. No TRICARE-related claim will be settled, 
compromised or waived without full consideration being given to the 
possible future medical payment aspects of the individual case.
    (j) Reporting requirements. Pursuant to 10 U.S.C. 1079a, all refunds 
and other amounts collected in the administration of TRICARE shall be 
credited to the appropriation available for that program for the fiscal 
year in which the refund or amount is collected. Therefore, the 
Department of Defense requires an annual report stating the number and 
dollar amount of claims asserted against, and the number and dollar 
amount of recoveries from third-party payers (including FMCRA 
recoveries) arising from the operation of the TRICARE. To facilitate the 
preparation of this report and to maintain program integrity, the 
following reporting requirements are established:
    (1) TRICARE contractors. Each TRICARE contractor shall submit on or 
before January 31 of each year an annual report to the Director, TRICARE 
Management Activity, or a designee, covering the 12 months of the 
previous calendar year. This report shall contain, as a minimum, the 
number and total dollar of cases of potential third-party payer/FMCRA 
liability referred to uniformed services claims authorities for further 
investigation and collection. These figures are to be itemized by the 
states and uniformed services to which the cases are referred.
    (2) Uniformed Services. Each uniformed service will submit to the 
Director, TRICARE Management Activity, or designee, an annual report 
covering the 12 calendar months of the previous year, setting forth, as 
a minimum, the number and total dollar amount of cases involving TRICARE 
payments received from TRICARE contractors, the number and dollar amount 
of cases involving TRICARE payments received from other sources, and the 
number and dollar amount of claims actually asserted against, and the 
dollar amount of recoveries from, third-payment payers or under the 
FMCRA. The report, itemized by state and foreign claims jurisdictions, 
shall be provided no later than February 28 of each year.
    (3) Implementation of the reporting requirements. The Director, 
TRICARE Management Activity, or a designee shall issue guidance for 
implementation of the reporting requirements prescribed by this section.

[68 FR 6619, Feb. 10, 2003]



Sec. 199.13  TRICARE Dental Program.

    (a) General provisions--(1) Purpose. This section prescribes 
guidelines and

[[Page 262]]

policies for the delivery and administration of the TRICARE Dental 
Program (TDP) of the Uniformed Services of the Army, the Navy, the Air 
Force, the Marine Corps, the Coast Guard, the Commissioned Corps of the 
U.S. Public Health Service (USPHS) and the National Oceanic and 
Atmospheric Administration (NOAA) Corps. The TDP is a premium based 
indemnity dental insurance coverage plan that is available to specified 
categories of individuals who are qualified for these benefits by virtue 
of their relationship to one of the seven (7) Uniformed Services and 
their voluntary decision to accept enrollment in the plan and cost share 
(when applicable) with the Government in the premium cost of the 
benefits. The TDP is authorized by 10 U.S.C. 1076a, TRICARE dental 
program, and this section was previously titled the ``Active Duty 
Dependents Dental Plan''. The TDP incorporates the former 10 U.S.C. 
1076b, Selected Reserve dental insurance, and the section previously 
titled the ``TRICARE Selected Reserve Dental Program'', Sec. 199.21.
    (2) Applicability--(i) Geographic scope. (A) The TDP is applicable 
geographically within the fifty (50) States of the United States, the 
District of Columbia, the Commonwealth of Puerto Rico, Guam, and the 
U.S. Virgin Islands. These areas are collectively referred to as the 
``CONUS (or Continental United States) service area''.
    (B) Extension of the TDP to areas outside the CONUS service area. In 
accordance with the authority cited in 10 U.S.C. 1076a(h), the Assistant 
Secretary of Defense (Health Affairs) (ASD(HA)) may extend the TDP to 
areas other than those areas specified in paragraph (a)(2)(i)(A) of this 
section for the eligible members and eligible dependents of members of 
the Uniformed Services. These areas are collectively referred to as the 
``OCONUS (or outside the Continental United States) service area''. In 
extending the TDP outside the CONUS service area, the ASD(HA), or 
designee, is authorized to establish program elements, methods of 
administration and payment rates and procedures to providers that are 
different from those in effect for the CONUS service area to the extent 
the ASD(HA), or designee, determines necessary for the effective and 
efficient operation of the TDP. This includes provisions for 
preauthorization of care if the needed services are not available in a 
Uniformed Service overseas dental treatment facility and payment by the 
Department of certain cost-shares (or co-payments) and other portions of 
a provider's billed charges for certain beneficiary categories. Other 
differences may occur based on limitations in the availability and 
capabilities of the Uniformed Service overseas dental treatment facility 
and a particular nation's civilian sector providers in certain areas. 
These differences include varying licensure and certification 
requirements of OCONUS providers, Uniformed Service provider selection 
criteria and local results of provider selection, referral, beneficiary 
pre-authorization and marketing procedures, and care for beneficiaries 
residing in distant areas. The Director, Office of Civilian Health and 
Medical Program of the Uniformed Services (OCHAMPUS) shall issue 
guidance, as necessary, to implement the provisions of paragraph 
(a)(2)(i)(B). Beneficiaries will be eligible for the same TDP benefits 
in the OCONUS service area although services may not be available or 
accessible in all OCONUS countries.
    (ii) Agency. The provisions of this section apply throughout the 
Department of Defense (DoD), the United States Coast Guard, the USPHS 
and NOAA.
    (iii) Exclusion of benefit services performed in military dental 
care facilities. Except for emergency treatment, dental care provided 
outside the United States, services incidental to noncovered services, 
and services provided under paragraph (a)(2)(iv), dependents of active 
duty, Selected Reserve and Individual Ready Reserve members enrolled in 
the TDP may not obtain those services that are benefits of the TDP in 
military dental care facilities, as long as those covered benefits are 
available for cost-sharing under the TDP. Enrolled dependents of active 
duty, Selected Reserve and Individual Ready Reserve members may continue 
to obtain noncovered services from military dental care facilities 
subject to the provisions for space available care.

[[Page 263]]

    (iv) Exception to the exclusion of services performed in military 
dental care facilities.
    (A) Dependents who are 12 years of age or younger and are covered by 
a dental plan established under this section may be treated by 
postgraduate dental residents in a dental treatment facility of the 
uniformed services under a graduate dental education program accredited 
by the American Dental Association if
    (1) Treatment of pediatric dental patients is necessary in order to 
satisfy an accreditation standard of the American Dental Association 
that is applicable to such program, or training in pediatric dental care 
is necessary for the residents to be professionally qualified to provide 
dental care for dependent children accompanying members of the uniformed 
services outside the United States; and
    (2) The number of pediatric patients at such facility is 
insufficient to support satisfaction of the accreditation or 
professional requirements in pediatric dental care that apply to such 
programs or students.
    (B) The total number of dependents treated in all facilities of the 
uniformed services under paragraph (a)(2)(iv) in a fiscal year may not 
exceed 2,000.
    (3) Authority and responsibility--(i) Legislative authority--(A) 
Joint regulations. 10 U.S.C. 1076a authorized the Secretary of Defense, 
in consultation with the Secretary of Health and Human Services, and the 
Secretary of Transportation, to prescribe regulations for the 
administration of the TDP.
    (B) Administration. 10 U.S.C. 1073 authorizes the Secretary of 
Defense to administer the TDP for the Army, Navy, Air Force, and Marine 
Corps under DoD jurisdiction, the Secretary of Transportation to 
administer the TDP for the Coast Guard, when the Coast Guard is not 
operating as a service in the Navy, and the Secretary of Health and 
Human Services to administer the TDP for the Commissioned Corps of the 
USPHS and the NOAA Corps.
    (ii) Organizational delegations and assignments--(A) Assistant 
Secretary of Defense (Health Affairs) (ASD(HA)). The Secretary of 
Defense, by 32 CFR part 367, delegated authority to the ASD(HA) to 
provide policy guidance, management control, and coordination as 
required for all DoD health and medical resources and functional areas 
including health benefit programs. Implementing authority is contained 
in 32 CFR part 367. For additional implementing authority see Sec. 
199.1. Any guidelines or policy necessary for implementation of this 
Sec. 199.13 shall be issued by the Director, OCHAMPUS.
    (B) Evidence of eligibility. DoD, through the Defense Enrollment 
Eligibility Reporting System (DEERS), is responsible for establishing 
and maintaining a listing of persons eligible to receive benefits under 
the TDP.
    (4) Preemption of State and local laws. (i) Pursuant to 10 U.S.C. 
1103 and section 8025 (fourth proviso) of the Department of Defense 
Appropriations Act, 1994, DoD has determined that, in the administration 
of 10 U.S.C. chapter 55, preemption of State and local laws relating to 
health insurance, prepaid health plans, or other health care delivery or 
financing methods is necessary to achieve important Federal interests, 
including, but not limited to, the assurance of uniform national health 
programs for Uniformed Service beneficiaries and the operation of such 
programs at the lowest possible cost to DoD, that have a direct and 
substantial effect on the conduct of military affairs and national 
security policy of the United States. This determination is applicable 
to the dental services contracts that implement this section.
    (ii) Based on the determination set forth in paragraph (a)(4)(i) of 
this section, any State or local law relating to health or dental 
insurance, prepaid health or dental plans, or other health or dental 
care delivery or financing methods is preempted and does not apply in 
connection with the TDP contract. Any such law, or regulation pursuant 
to such law, is without any force or effect, and State or local 
governments have no legal authority to enforce them in relation to the 
TDP contract. (However, DoD may, by contract, establish legal 
obligations on the part of the dental plan contractor to conform with 
requirements similar or identical to requirements of State or local laws 
or regulations.)

[[Page 264]]

    (iii) The preemption of State and local laws set forth in paragraph 
(a)(4)(ii) of this section includes State and local laws imposing 
premium taxes on health or dental insurance carriers or underwriters or 
other plan managers, or similar taxes on such entities. Such laws are 
laws relating to health insurance, prepaid health plans, or other health 
care delivery or financing methods, within the meaning of the statutes 
identified in paragraph (a)(4)(i) of this section. Preemption, however, 
does not apply to taxes, fees, or other payments on net income or profit 
realized by such entities in the conduct of business relating to DoD 
health services contracts, if those taxes, fees, or other payments are 
applicable to a broad range of business activity. For purposes of 
assessing the effect of Federal preemption of State and local taxes and 
fees in connection with DoD health and dental services contracts, 
interpretations shall be consistent with those applicable to the Federal 
Employees Health Benefits Program under 5 U.S.C. 8909(f).
    (5) Plan funds--(i) Funding sources. The funds used by the TDP are 
appropriated funds furnished by the Congress through the annual 
appropriation acts for DoD, the Department of Health and Human Services 
and the Department of Transportation and funds collected by the 
Uniformed Services or contractor through payroll deductions or through 
direct billing as premium shares from beneficiaries.
    (ii) Disposition of funds. TDP funds are paid by the Government (or 
in the case of direct billing, by the beneficiary) as premiums to an 
insurer, service, or prepaid dental care organization under a contract 
negotiated by the Director, OCHAMPUS, or a designee, under the 
provisions of the Federal Acquisition Regulation (FAR) (48 CFR chapter 
1).
    (iii) Plan. The Director, OCHAMPUS, or designee provides an 
insurance policy, service plan, or prepaid contract of benefits in 
accordance with those prescribed by law and regulation; as interpreted 
and adjudicated in accord with the policy, service plan, or contract and 
a dental benefits brochure; and as prescribed by requirements of the 
dental plan contractor's contract with the Government.
    (iv) Contracting out. The method of delivery of the TDP is through a 
competitively procured contract. The Director, OCHAMPUS, or a designee, 
is responsible for negotiating, under provisions of the FAR, a contract 
for dental benefits insurance or prepayment that includes responsibility 
for:
    (A) Development, publication, and enforcement of benefit policy, 
exclusions, and limitations in compliance with the law, regulation, and 
the contract provisions;
    (B) Adjudicating and processing claims; and conducting related 
supporting activities, such as enrollment, disenrollment, collection of 
premiums, eligibility verification, provider relations, and beneficiary 
communications.
    (6) Role of Health Benefits Advisor (HBA). The HBA is appointed 
(generally by the commander of an Uniformed Services medical treatment 
facility) to serve as an advisor to patients and staff in matters 
involving the TDP. The HBA may assist beneficiaries in applying for 
benefits, in the preparation of claims, and in their relations with 
OCHAMPUS and the dental plan contractor. However, the HBA is not 
responsible for the TDP's policies and procedures and has no authority 
to make benefit determinations or obligate the TDP's funds. Advice given 
to beneficiaries by HBAs as to determination of benefits or level of 
payment is not binding on OCHAMPUS or the dental plan contractor.
    (7) Right to information. As a condition precedent to the provision 
of benefits hereunder, the Director, OCHAMPUS, or designee, shall be 
entitled to receive information from an authorized provider or other 
person, institution, or organization (including a local, State, or 
United States Government agency) providing services or supplies to the 
beneficiary for which claims for benefits are submitted. While 
establishing enrollment and eligibility, benefits, and benefit 
utilization and performance reporting information standards, the 
Government has established and does maintain a system of records for 
dental information under the TDP. By contract, the Government audits the 
adequacy and accuracy of

[[Page 265]]

the dental plan contractor's system of records and requires access to 
information and records to meet plan accountabilities, to assist in 
contractor surveillance and program integrity investigations and to 
audit OCONUS financial transactions where the Department has a financial 
stake. Such information and records may relate to attendance, testing, 
monitoring, examination, or diagnosis of dental disease or conditions; 
or treatment rendered; or services and supplies furnished to a 
beneficiary; and shall be necessary for the accurate and efficient 
administration and payment of benefits under this plan. To assist in 
claims adjudication, grievance and fraud investigations, and the appeals 
process, and before an interim or final determination can be made on a 
claim of benefits, a beneficiary or active duty, Selected Reserve or 
individual Ready Reserve member must provide particular additional 
information relevant to the requested determination, when necessary. 
Failure to provide the requested information may result in denial of the 
claim and inability to effectively investigate the grievance or fraud or 
process the appeal. The recipient of such information shall in every 
case hold such records confidential except when:
    (i) Disclosure of such information is necessary to the determination 
by a provider or the dental plan contractor of beneficiary enrollment or 
eligibility for coverage of specific services;
    (ii) Disclosure of such information is authorized specifically by 
the beneficiary;
    (iii) Disclosure is necessary to permit authorized Government 
officials to investigate and prosecute criminal actions;
    (iv) Disclosure constitutes a routine use of a routine use of a 
record which is compatible with the purpose for which it was collected. 
This includes a standard and acceptable business practice commonly used 
among dental insurers which is consistent with the principle of 
preserving confidentiality of personal information and detailed clinical 
data. For example, the release of utilization information for the 
purpose of determining eligibility for certain services, such as the 
number of dental prophylaxis procedures performed for a beneficiary, is 
authorized;
    (v) Disclosure is pursuant to an order from a court of competent 
jurisdiction; or
    (vi) Disclosure by the Director, OCHAMPUS, or designee, is for the 
purpose of determining the applicability of, and implementing the 
provisions of, other dental benefits coverage or entitlement.
    (8) Utilization review and quality assurance. Claims submitted for 
benefits under the TDP are subject to review by the Director, OCHAMPUS, 
or designee, for quality of care and appropriate utilization. The 
Director, OCHAMPUS, or designee, is responsible for appropriate 
utilization review and quality assurance standards, norms, and criteria 
consistent with the level of benefits.
    (b) Definitions. For most definitions applicable to the provisions 
of this section, refer to Sec. 199.2. The following definitions apply 
only to this section:
    (1) Assignment of benefits. Acceptance by a nonparticipating 
provider of payment directly from the insurer while reserving the right 
to charge the beneficiary or active duty, Selected Reserve or Individual 
Ready Reserve member for any remaining amount of the fees for services 
which exceeds the prevailing fee allowance of the insurer.
    (2) Authorized provider. A dentist, dental hygienist, or certified 
and licensed anesthetist specifically authorized to provide benefits 
under the TDP in paragraph (f) of this section.
    (3) Beneficiary. A dependent of an active duty, Selected Reserve or 
Individual Ready Reserve member, or a member of the Selected Reserve or 
Individual Ready Reserve, who has been enrolled in the TDP, and has been 
determined to be eligible for benefits, as set forth in paragraph (c) of 
this section.
    (4) Beneficiary liability. The legal obligation of the beneficiary, 
his or her estate, or responsible family member to pay for the costs of 
dental care or treatment received. Specifically, for the purposes of 
services and supplies covered by the TDP, beneficiary liability 
including cost-sharing amounts or any amount above the network maximum 
allowable charge where the provider selected by the beneficiary is not

[[Page 266]]

a participating provider or a provider within an approved alternative 
delivery system. In cases where a nonparticipating provider does not 
accept assignment of benefits.
    (5) By report. Dental procedures which are authorized as benefits 
only in unusual circumstances requiring justification of exceptional 
conditions related to otherwise authorized procedures. These services 
are further defined in paragraph (e) of this section.
    (6) Contingency operation. Defined in 10 U.S.C. 101(a)(13) as a 
military operation designated as a contingency operation by the 
Secretary of Defense or a military operation that results in the 
exercise of authorities for ordering Reserve Component members to active 
duty without their consent and is therefore automatically a contingency 
operation.
    (7) Cost-share. The amount of money for which the beneficiary (or 
active duty, Selected Reserve or Individual Ready Reserve member) is 
responsible in connection with otherwise covered dental services (other 
than disallowed amounts) as set forth in paragraph (e) of this section. 
A cost-share may also be referred to as a ``co-payment.''
    (8) Defense Enrollment Eligibility Reporting System (DEERS). The 
automated system that is composed of two (2) phases:
    (i) Enrolling all active duty, Reserve and retired service members, 
their dependents, and the dependents of deceased service members; and
    (ii) Verifying their eligibility for health care benefits in the 
direct care facilities and through the TDP.
    (9) Dental hygienist. Practitioner in rendering complete oral 
prophylaxis services, applying medication, performing dental 
radiography, and providing dental education services with a certificate, 
associate degree, or bachelor's degree in the field, and licensed by an 
appropriate authority.
    (10) Dentist. Doctor of Dental Medicine (D.M.D.) or Doctor of Dental 
Surgery (D.D.S.) who is licensed to practice dentistry by an appropriate 
authority.
    (11) Diagnostic services. Category of dental services including:
    (i) Clinical oral examinations;
    (ii) Radiographic examinations; and
    (iii) Diagnostic laboratory tests and examinations provided in 
connection with other dental procedures authorized as benefits of the 
TDP and further defined in paragraph (e) of the section.
    (12) Endodontics. The etiology, prevention, diagnosis, and treatment 
of diseases and injuries affecting the dental pulp, tooth root, and 
periapical tissue as further defined in paragraph (e) of this section.
    (13) Initial determination. A formal written decision on a TDP 
claim, a request for TDP benefit pre-determination, a request by a 
provider for approval as an authorized provider, or a decision 
suspending, excluding or terminating a provider as an authorized 
provider under the TDP. Rejection of a claim or pre-determination, or of 
a request for benefit or provider authorization for failure to comply 
with administrative requirements, including failure to submit reasonably 
requested information, is not an initial determination. Responses to 
general or specific inquiries regarding TDP benefits are not initial 
determinations.
    (14) Nonparticipating provider. A dentist or dental hygienist that 
furnished dental services to a TDP beneficiary, but who has not agreed 
to participate in the contractor's network and accept reimbursement in 
accordance with the contractor's network agreement. A nonparticipating 
provider looks to the beneficiary or active duty, Selected Reserve or 
Individual Ready Reserve member for final responsibility for payment of 
his or her charge, but may accept payment (assignment of benefits) 
directly from the insurer or assist the beneficiary in filing the claim 
for reimbursement by the dental plan contractor. Where the 
nonparticipating provider does not accept payment directly from the 
insurer, the insurer pays the beneficiary or active duty, Selected 
Reserve or Individual Ready Reserve member, not the provider.
    (15) Oral and maxillofacial surgery. Surgical procedures performed 
in the oral cavity as further defined in paragraph (e) of this section.
    (16) Orthodontics. The supervision, guidance, and correction of the 
growing or mature dentofacial structures, including those conditions 
that require movement of teeth or correction of

[[Page 267]]

malrelationships and malformations of their related structures and 
adjustment of relationships between and among teeth and facial bones by 
the application of forces and/or the stimulation and redirection of 
functional forces within the craniofacial complex as further defined in 
paragraph (e) of this section.
    (17) Participating provider. A dentist or dental hygienist who has 
agreed to participate in the contractor's network and accept 
reimbursement in accordance with the contractor's network agreement as 
the total charge (even though less than the actual billed amount), 
including provision for payment to the provider by the beneficiary (or 
active duty, Selected Reserve or Individual Ready Reserve member) or any 
cost-share for covered services.
    (18) Party to the initial determination. Includes the TDP, a 
beneficiary of the TDP and a participating provider of services whose 
interests have been adjudicated by the initial determination. In 
addition, provider who has been denied approval as an authorized TDP 
provider is a party to the initial determination, as is a provider who 
is suspended, excluded or terminated as an authorized provider, unless 
the provider is excluded or suspended by another agency of the Federal 
Government, a state, or a local licensing authority.
    (19) Periodontics. The examination, diagnosis, and treatment of 
diseases affecting the supporting structures of the teeth as further 
defined in paragraph (e) of this section.
    (20) Preventive services. Traditional prophylaxis including scaling 
deposits from teeth, polishing teeth, and topical application of 
fluoride to teeth, as well as other dental services authorized in 
paragraph (e) of this section.
    (21) Prosthodontics. The diagnosis, planning, making, insertion, 
adjustment, refinement, and repair of artificial devices intended for 
the replacement of missing teeth and associated tissues as further 
defined in paragraph (e) of this section.
    (22) Provider. A dentist, dental hygienist, or certified and 
licensed anesthetist as specified in paragraph (f) of this section. This 
term, when used in relation to OCONUS service area providers, may 
include other recognized professions authorized to furnish care under 
laws of that particular country.
    (23) Restorative services. Restoration of teeth including those 
procedures commonly described as amalgam restorations, resin 
restorations, pin retention, and stainless steel crowns for primary 
teeth as further defined in paragraph (e) of this section.
    (c) Eligibility and enrollment--(1) General. 10 U.S.C. 1076a, 
1072(2)(A), (D), or (I), 1072(6), 10143 and 10144 set forth those 
persons who are eligible for voluntary enrollment in the TDP. A 
determination that a person is eligible for voluntary enrollment does 
not automatically entitle that person to benefit payments. The person 
must be enrolled in accordance with the provisions set forth in this 
section and meet any additional eligibility requirements in this part in 
order for dental benefits to be extended.
    (2) Eligibility--(i) Persons eligible. Eligibility for the TDP is 
continuous in situations where the sponsor or member changes status 
between any of these eligible categories and there is no break in 
service or transfer to a non-eligible status.
    (A) A person who bears one of the following relationships to an 
active duty member (under a call or order that does not specify a period 
of thirty (30) days or less) or a member of the Selected Reserve (as 
specified in 10 U.S.C. 10143) or Individual Ready Reserve (as specified 
in 10 U.S.C. 10144):
    (1) Spouse. A lawful husband or wife, regardless of whether or not 
dependent upon the active duty, Selected Reserve or Individual Ready 
Reserve member.
    (2) Child. To be eligible, the child must be unmarried and meet one 
of the requirements set forth in section 199.3(b)(2)(ii)(A)-(F) or 
199.3(b)(2)(ii)(H).
    (B) A member of the Selected Reserve of the Ready Reserve (as 
specified in 10 U.S.C. 10143).
    (C) A member of the Individual Ready Reserve of the Ready Reserve 
(as specified in 10 U.S.C. 10144(b)) who is subject to being ordered to 
active duty involuntarily in accordance with 10 U.S.C. 12304.
    (D) All other members of the Individual Ready Reserve of the Ready 
Reserve (as specified in 10 U.S.C. 10144(a)).

[[Page 268]]

    (ii) Determination of eligibility status and evidence of 
eligibility--(A) Eligibility determination responsibility of the 
Uniformed Services. Determination of a person's eligibility for the TDP 
is the responsibility of the member's Uniformed Service. For the purpose 
of program integrity, the appropriate Uniformed Service shall, upon 
request of the Director, OCHAMPUS, or designee, review the eligibility 
of a specified person when there is reason to question the eligibility 
status. In such cases, a report on the result of the review and any 
action taken will be submitted to the Director, OCHAMPUS, or designee.
    (B) Procedures for determination of eligibility. Uniformed Service 
identification cards do not distinguish eligibility for the TDP. 
Procedures for the determination of eligibility are identified in Sec. 
199.3(f)(2), except that Uniformed Service identification cards do not 
provide evidence of eligibility for the TDP. Although OCHAMPUS and the 
dental plan contractor must make determinations concerning a member or 
dependent's eligibility in order to ensure proper enrollment and proper 
disbursement of appropriated funds, ultimate responsibility for 
resolving a member or dependent's eligibility rests with the Uniformed 
Services.
    (C) Evidence of eligibility required. Eligibility and enrollment in 
the TDP will be verified through the DEERS. Eligibility and enrollment 
information established and maintained in the DEERS file is the only 
acceptable evidence of TDP eligibility and enrollment. It is the 
responsibility of the active duty, Selected Reserve or Individual Ready 
Reserve member or TDP beneficiary, parent, or legal representative, when 
appropriate, to provide adequate evidence for entry into the DEERS file 
to establish eligibility for the TDP, and to ensure that all changes in 
status that may affect eligibility are reported immediately to the 
appropriate Uniformed Service for action. Ineligibility for benefits is 
presumed in the absence of prescribed eligibility evidence in the DEERS 
file.
    (3) Enrollment--(i) Previous plans--(A) Basic Active Duty Dependents 
Dental Benefit Plan. The Basic Active Duty Dependents Dental Plan was 
effective from August 1, 1987, up to the date of implementation of the 
Expanded Active Duty Dependents Dental Benefit Plan. The Basic Active 
Duty Dependents Dental Benefit Plan terminated upon implementation of 
the expanded plan.
    (B) Expanded Active Duty Dependents Dental Benefit Plan. The 
Expanded Active Duty Dependents Dental Benefit Plan (also known as the 
TRICARE Family Member Dental Plan) was effective from August 1, 1993, up 
to the date of implementation of the TDP. The Expanded Active Duty 
Dependents Dental Benefit Plan terminates upon implementation of the 
TDP.
    (ii) TRICARE Dental Program (TDP)--(A) Election of coverage. (1) 
Except as provided in paragraph (c)(3)(ii)(A)(2) of this section, active 
duty, Selected Reserve and Individual Ready Reserve service members may 
voluntarily elect to enroll their eligible dependents and members of the 
Selected Reserve and Individual Ready Reserve may voluntarily elect to 
enroll themselves following implementation of the TDP. In order to 
obtain TDP coverage, written or telephonic election by the active duty, 
Selected Reserve or Individual Ready Reserve member must be made and 
will be accomplished by submission or telephonic completion of an 
application to the dental plan contractor. This election can also be 
accomplished via electronic means.
    (2) Eligible dependents of active duty members enrolled in the 
Expanded Active Duty Dependents Dental Benefit Plan at the time of 
implementation of the TDP will automatically be enrolled in the TDP. 
Eligible members of the Selected Reserve enrolled in the TRICARE 
Selected Reserve Dental Program at the time of implementation of the TDP 
will automatically be enrolled in the TDP. No election to enroll in the 
TDP will be required by the active duty or Selected Reserve member.
    (B) Premiums--(1) Enrollment will be by either single or family 
premium as defined as follows:
    (i) Single premium. One (1) covered eligible dependent or one (1) 
covered eligible Selected Reserve or Individual Ready Reserve member.
    (ii) Family premium. Two (2) or more covered eligible dependents. 
Under the

[[Page 269]]

family premium, all eligible dependents of the active duty, Selected 
Reserve or Individual Ready Reserve member are enrolled.
    (2) Exceptions. (i) An active duty, Selected Reserve or Individual 
Ready Reserve member may elect to enroll only those eligible dependents 
residing in one (1) location when the active duty, Selected Reserve or 
Individual Ready Reserve member has eligible dependents residing in two 
or more geographically separate locations (e.g., children living with a 
divorced spouse; a child attending college).
    (ii) Instances where a dependent of an active duty member requires a 
hospital or special treatment environment (due to a medical, physical 
handicap, or mental condition) for dental care otherwise covered by the 
TDP, the dependent may be excluded from TDP enrollment and may continue 
to receive care from a military treatment facility.
    (iii) A member of the Selected Reserve or Individual Ready Reserve 
may enroll separately from his or her eligible dependents. A member of 
the Selected Reserve or Individual Ready Reserve does not have to be 
enrolled in order for his or her eligible dependents to enroll under the 
TDP.
    (C) Enrollment period--(1) General. Enrollment of eligible 
dependents or members is for a period of one (1) year followed by month-
to-month enrollment as long as the active duty, Selected Reserve or 
Individual Ready Reserve member chooses to continue enrollment. Active 
duty members may enroll their eligible dependents and eligible members 
of the Selected Reserve or Individual Ready Reserve may enroll 
themselves or their eligible dependents in the TDP provided there is an 
intent to remain on active duty or as a member of the Selected Reserve 
or Individual Ready Reserve (or any combination thereof without a break 
in service or transfer to a non-eligible status) for a period of not 
less than one (1) year by the service member and their parent Uniformed 
Service. Beneficiaries enrolled in the TDP must remain enrolled for a 
minimum period of one (1) year unless one of the conditions for 
disenrollment specified in paragraph (c)(3)(ii)(E) of this section is 
met.
    (2) Special enrollment period for Reserve component members ordered 
to active duty in support of contingency operations. The mandatory 
twelve (12) month enrollment period does not apply to Reserve component 
members ordered to active duty (other than for training) in support of a 
contingency operation as designated by the Secretary of Defense. 
Affected Reserve component members may enroll in the TDP only if their 
orders specify that they are ordered to active duty in support of a 
contingency operation, as defined by 10 U.S.C., for a period of thirty-
one (31) days or more. An affected Reserve component member must elect 
to enroll in the TDP and complete the enrollment application within 
thirty (30) days following entry on active duty or within sixty (60) 
days following implementation of the TDP. Following enrollment, 
beneficiaries must remain enrolled, with the member paying premiums, 
until the end of the member's active duty period in support of the 
contingency operation or twelve (12) months, whichever occurs first 
unless one of the conditions for disenrollment specified in paragraph 
(c)(3)(ii)(E) of this section is met.
    (3) Continuation of enrollment from Expanded Active Duty Dependents 
Dental Benefit Plan. Beneficiaries enrolled in the Expanded Active Duty 
Dependents Dental Benefit Plan at the time when TDP coverage begins must 
complete their two (2) year enrollment period established under this 
former plan except if one of the conditions for disenrollment specified 
in paragraph (c)(3)(ii)(E) of this section is met. Once this original 
two (2) year enrollment period is met, the active duty member may 
continue TDP enrollment on a month-to-month basis. A new one (1) year 
enrollment period will only be incurred if the active duty member 
disenrolls and attempts to reenroll in the TDP at a later date.
    (4) Continuation of enrollment from TRICARE Selected Reserve Dental 
Program. Beneficiaries enrolled in the TRICARE Selected Reserve Dental 
Program at the time when TDP coverage begins must complete their one (1) 
year enrollment period established under this former program except if 
one of the conditions for disenrollment specified in paragraph 
(c)(3)(ii)(E) of

[[Page 270]]

this section is met. Once this original one (1) year enrollment period 
is met, the Selected Reserve member may continue TDP enrollment on a 
month-to-month basis. A new one (1) year enrollment period will only be 
incurred if the Selected Reserve member disenrolls and attempts to 
reenroll in the TDP at a later date.
    (D) Beginning dates of eligibility. The beginning date of 
eligibility for TDP benefits is the first day of the month following the 
month in which the election of enrollment is completed, signed, and the 
enrollment and premium is received by the dental plan contractor, 
subject to a predetermined and publicized dental plan contractor monthly 
cut-off date, except that the date of eligibility shall not be earlier 
than the first day of the month in which the TDP is implemented. This 
includes any changes between single and family member premium coverage 
and coverage of newly eligible or enrolled dependents or members.
    (E) Changes in and termination of enrollment--(1) Changes in status 
of active duty, Selected Reserve or Individual Ready Reserve member. 
When the active duty, Selected Reserve or Individual Ready Reserve 
member is separated, discharged, retired, transferred to the Standby or 
Retired Reserve, his or her enrolled dependents and/or the enrolled 
Selected Reserve or Individual Ready Reserve member loses eligibility 
and enrollment as of 11:59 p.m. on the last day of the month in which 
the change in status takes place. When the Selected Reserve or 
Individual Ready Reserve member is ordered to active duty for a period 
of more than 30 days without a break in service, the member loses 
eligibility and is disenrolled, if previously enrolled; however, their 
enrolled dependents maintain their eligibility and previous enrollment 
subject to eligibility, enrollment and disenrollment provisions 
described in this section and in the TDP contract.
    (i) Reserve component members separated from active duty in support 
of a contingency operation. When a member of a reserve component who is 
separated from active duty to which called or ordered in support of a 
contingency operation if the active duty is for more than 30 days, the 
member becomes eligible for Transitional Health Care pursuant to 10 
U.S.C. 1145(a) and the member is entitled to dental care to which a 
member of the uniformed services on active duty for more than 30 days is 
entitled. Thus the member has no requirement for the TDP and is not 
eligible to purchase the TDP. Upon the termination of Transitional 
Health Care eligibility, the member regains TDP eligibility and is 
reenrolled, if previously enrolled.
    (ii) Dependents of members separated from active duty in support of 
a contingency operation. Dependents of a member of a reserve component 
who is separated from active duty to which called or ordered in support 
of a contingency operation if the active duty is active for more than 30 
days maintain their eligibility and previous enrollment, subject to 
eligibility, enrollment and disenrollment provisions described in this 
section and in the TDP contract. During the member's Transitional Health 
Care eligibility, the dependents are considered family members of 
Reserve Component members.
    (iii) Members separated from active duty and not covered by 10 
U.S.C. 1145(a)(2)(B). When the previously enrolled active duty member is 
transferred back to the Selected Reserve or Individual Ready Reserve, 
and is not covered by 10 U.S.C. 1145(a)(2)(B), without a break in 
service, the member regains TDP eligibility and is reenrolled; however, 
enrolled dependents maintain their eligibility and previous enrollment 
subject to eligibility, enrollment and disenrollment provisions 
described in this section and in the TDP contract.
    (iv) Eligible dependents of an active duty, Selected Reserve or 
Individual Ready Reserve member serving a sentence of confinement in 
conjunction with a sentence of punitive discharge are still eligible for 
the TDP until such time as the active duty, Selected Reserve or 
Individual Ready Reserve member's discharge is executed.
    (2) Survivor eligibility. Eligible dependents of active duty members 
who die while on active duty for a period of more than 30 days and 
eligible dependents of members of the Ready Reserve (i.e., Selected 
Reserve or Individual Ready Reserve, as specified in 10 U.S.C.

[[Page 271]]

10143 and 10144(b) respectively) who die, shall be eligible for survivor 
enrollment in the TDP. During the period of survivor enrollment, the 
government will pay both the government and the eligible dependent's 
portion of the premium share. This survivor enrollment shall be up to 
(3) three years from the date of the member's death, except that, in the 
case of a dependent of the deceased who is described in 10 U.S.C. 
1072(2)(D) or (I), the period of survivor enrollment shall be the longer 
of the following periods beginning on the date of the member's death:
    (i) Three years.
    (ii) The period ending on the date on which such dependent attains 
21 years of age.
    (iii) In the case of such dependent who, at 21 years of age, is 
enrolled in a full-time course of study in a secondary school or in a 
full-time course of study in an institution of higher education approved 
by the administering Secretary and was, at the time of the member's 
death, in fact dependent on the member for over one-half of such 
dependent's support, the period ending on the earlier of the following 
dates: The date on which such dependent ceases to pursue such a course 
of study, as determined by the administering Secretary; or the date on 
which such dependent attains 23 years of age.
    (3) Changes in status of dependent--(i) Divorce. A spouse separated 
from an active duty, Selected Reserve or Individual Ready Reserve member 
by a final divorce decree loses all eligibility based on his or her 
former marital relationship as of 11:59 p.m. of the last day of the 
month in which the divorce becomes final. The eligibility of the active 
duty, Selected Reserve or Individual Ready Reserve member's own children 
(including adopted and eligible illegitimate children) is unaffected by 
the divorce. An unadopted stepchild, however, loses eligibility with the 
termination of the marriage, also as of 11:59 p.m. of the last day of 
the month in which the divorce becomes final.
    (ii) Annulment. A spouse whose marriage to an active duty, Selected 
Reserve or Individual Ready Reserve member is dissolved by annulment 
loses eligibility as of 11:59 p.m. of the last day of the month in which 
the court grants the annulment order. The fact that the annulment 
legally declares the entire marriage void from its inception does not 
affect the termination date of eligibility. When there are children, the 
eligibility of the active duty, Selected Reserve or Individual Ready 
Reserve member's own children (including adopted and eligible 
illegitimate children) is unaffected by the annulment. An unadopted 
stepchild, however, loses eligibility with the annulment of the 
marriage, also as of 11:59 p.m. of the last day of the month in which 
the court grants the annulment order.
    (iii) Adoption. A child of an active duty, Selected Reserve or 
Individual Ready Reserve member who is adopted by a person, other than a 
person whose dependents are eligible for TDP benefits while the active 
duty, Selected Reserve or Individual Ready Reserve member is living, 
thereby severing the legal relationship between the child and the active 
duty, Selected Reserve or Individual Ready Reserve member, loses 
eligibility as of 11:59 p.m. of the last day of the month in which the 
adoption becomes final.
    (iv) Marriage of child. A child of an active duty, Selected Reserve 
or Individual Ready Reserve member who marries a person whose dependents 
are not eligible for the TDP, loses eligibility as of 11:59 p.m. on the 
last day of the month in which the marriage takes place. However, should 
the marriage be terminated by death, divorce, or annulment before the 
child is twenty-one (21) years old, the child again become eligible for 
enrollment as a dependent as of 12:00 a.m. of the first day of the month 
following the month in which the occurrence takes place that terminates 
the marriage and continues up to age twenty-one (21) if the child does 
not remarry before that time. If the marriage terminates after the 
child's 21st birthday, there is no reinstatement of eligibility.
    (v) Disabling illness or injury of child age 21 or 22 who has 
eligibility based on his or her student status. A child twenty-one (21) 
or twenty-two (22) years old who is pursuing a full-time course of

[[Page 272]]

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

[[Page 273]]

(1) year enrollment period, the active duty, Selected Reserve or 
Individual Ready Reserve member disenrolls their dependents, or in the 
case of members of the Selected Reserve or Individual Ready Reserve 
disenrolls themselves, for reasons other than those listed in this 
paragraph (c)(3)(ii)(E) or fails to make premium payments, dependents 
enrolled under the active duty, Selected Reserve or Individual Ready 
Reserve member, or enrolled members of the Selected Reserve and 
Individual Ready Reserve, will be subject to a lock-out period of twelve 
(12) months. Following this period of time, active duty, Selected 
Reserve or Individual Ready Reserve members will be able to reenroll 
their eligible dependents, or members of the Selected Reserve or 
Individual Ready Reserve will be able to reenroll themselves, if they so 
choose. The twelve (12) month lock-out period applies to enrolled 
dependents of a Reserve component member who disenrolls for reasons 
other than those listed in this paragraph (c)(3)(ii)(E) or fails to make 
premium payments after the member has enrolled pursuant to paragraph 
(c)(3)(ii)(C) of this section.
    (5) TRICARE Dental Program coverage shall terminate for members who 
no longer qualify for the TRICARE Dental Program as specified in 
paragraph (c)(2) of this section, with one exception. If a member is 
involuntarily separated from the Selected Reserve under other than 
adverse conditions, as characterized by the Secretary concerned, and 
TRICARE Dental Program coverage is in effect for the member and/or the 
family on the last day of his or her membership in the Selected Reserve; 
then the TRICARE Dental Program coverage that was actually in effect may 
terminate no earlier than 180 days after the date on which the member is 
separated from the Selected Reserve. This exception expires December 31, 
2018.
    (d) Premium sharing--(1) General. Active duty, Selected Reserve or 
Individual Ready Reserve members enrolling their eligible dependents, or 
members of the Selected Reserve or Individual Ready Reserve enrolling 
themselves, in the TDP shall be required to pay all or a portion of the 
premium cost depending on their status.
    (i) Members required to pay a portion of the premium cost. This 
premium category includes active duty members (under a call or order to 
active duty that does not specify a period of thirty (30) days or less) 
on behalf of their enrolled dependents. It also includes members of the 
Selected Reserve (as specified in 10 U.S.C. 10143) and the Individual 
Ready Reserve (as specified in 10 U.S.C. 10144(b)) enrolled on their own 
behalf.
    (ii) Members required to pay the full premium cost. This premium 
category includes members of the Selected Reserve (as specified in 10 
U.S.C. 10143), and the Individual Ready Reserve (as specified in 10 
U.S.C. 10144), on behalf of their enrolled dependents. It also includes 
members of the Individual Ready Reserve (as specified in 10 U.S.C. 
10144(a)) enrolled on their own behalf.
    (2) Proportion of premium share. The proportion of premium share to 
be paid by the active duty, Selected Reserve and Individual Reserve 
member pursuant to paragraph (d)(1)(i) of this section is established by 
the ASD(HA), or designee, at not more than forty (40) percent of the 
total premium. The proportion of premium share to be paid by the 
Selected Reserve and Individual Reserve member pursuant to paragraph 
(d)(1)(ii) of this section is established by the ASD(HA), or designee, 
at one hundred (100) percent of the total premium.
    (3) Provision for increases in active duty, Selected Reserve and 
Individual Ready Reserve member's premium share. (i) Although previously 
capped at $20 per month, the law has been amended to authorize the cap 
on active duty, Selected Reserve and Individual Ready Reserve member's 
premiums pursuant to paragraph (d)(1)(i) of this section to rise, 
effective as of January 1 of each year, by the percent equal to the 
lesser of:
    (A) The percent by which the rates of basic pay of members of the 
Uniformed Services are increased on such date; or
    (B) The sum of one-half percent and the percent computed under 5 
U.S.C. 5303(a) for the increase in rates of basic pay for statutory pay 
systems for pay periods beginning on or after such date.
    (ii) Under the legislation authorizing an increase in the monthly 
premium

[[Page 274]]

cap, the methodology for determining the active duty, Selected Reserve 
and Individual Ready Reserve member's TDP premium pursuant to paragraph 
(d)(1)(i) of this section will be applied as if the methodology had been 
in continuous use since December 31, 1993.
    (4) Reduction of premium share for enlisted members. For enlisted 
members in pay grades E-1 through E-4, the ASD(HA) or designee, may 
reduce the monthly premium these active duty, Selected Reserve and 
Individual Ready Reserve members pay pursuant to paragraph (d)(1)(i) of 
this section.
    (5) Reduction of cost-shares for enlisted members. For enlisted 
members in pay grades E-1 through E-4, the ASD(HA) or designee, may 
reduce the cost-shares that active duty, Selected Reserve and Individual 
Ready Reserve members pay on behalf of their enrolled dependents and 
that members of the Selected Reserve and Individual Ready Reserve pay on 
their own behalf for selected benefits as specified in paragraph 
(e)(3)(i) of this section.
    (6) Premium payment method. The active duty, Selected Reserve and 
Individual Ready Reserve member's premium share may be deducted from the 
active duty, Selected Reserve or Individual Ready Reserve member's basic 
pay or compensation paid under 37 U.S.C. 206, if sufficient pay is 
available. For members who are otherwise eligible for TDP benefits and 
who do not receive such pay and dependents who are otherwise eligible 
for TDP benefits and whose sponsors do not receive such pay, or if 
insufficient pay is available, the premium payment may be collected 
pursuant to procedures established by the Director, OCHAMPUS, or 
designee.
    (7) Annual notification of premium rates. TDP premium rates will be 
determined as part of the competitive contracting process. Information 
on the premium rates will be widely distributed by the dental plan 
contractor and the Government.
    (e) Plan benefits--(1) General--(i) Scope of benefits. The TDP 
provides coverage for diagnostic and preventive services, sealants, 
restorative services, endodontics, periodontics, prosthodontics, 
orthodontics and oral and maxillofacial surgery.
    (ii) Authority to act for the plan. The authority to make benefit 
determinations and authorize plan payments under the TDP rests primarily 
with the insurance, service plan, or prepayment dental plan contractor, 
subject to compliance with Federal law and regulation and Government 
contract provisions. The Director, OCHAMPUS, or designee, provides 
required benefit policy decisions resulting from changes in Federal law 
and regulation and appeal decisions. No other persons or agents (such as 
dentists or Uniformed Services HBAs) have such authority.
    (iii) Dental benefits brochure--(A) Content. The Director, OCHAMPUS, 
or designee, shall establish a comprehensive dental benefits brochure 
explaining the benefits of the plan in common lay terminology. The 
brochure shall include the limitations and exclusions and other benefit 
determination rules for administering the benefits in accordance with 
the law and this part. The brochure shall include the rules for 
adjudication and payment of claims, appealable issues, and appeal 
procedures in sufficient detail to serve as a common basis for 
interpretation and understanding of the rules by providers, 
beneficiaries, claims examiners, correspondence specialists, employees 
and representatives of other Government bodies, HBAs, and other 
interested parties. Any conflict, which may occur between the dental 
benefits brochure and law or regulation, shall be resolved in favor of 
law and regulation.
    (B) Distribution. The dental benefits brochure will be available 
through the dental plan contractor and will be distributed with the 
assistance of the Uniformed Services HBAs and major personnel centers at 
Uniformed Service installations and headquarters to all members 
enrolling themselves or their eligible dependents.
    (iv) Alternative course of treatment policy. The Director, OCHAMPUS, 
or designee, may establish, in accordance with generally accepted dental 
benefit practices, an alternative course of treatment policy which 
provides reimbursement in instances where the dentist and beneficiary 
select a more expensive service, procedure, or course of

[[Page 275]]

treatment than is customarily provided. The alternative course of 
treatment policy must meet following conditions:
    (A) The service, procedure, or course of treatment must be 
consistent with sound professional standards of dental practice for the 
dental condition concerned.
    (B) The service, procedure, or course of treatment must be a 
generally accepted alternative for a service or procedure covered by the 
TDP for the dental condition.
    (C) Payment for the alternative service or procedure may not exceed 
the lower of the prevailing limits for the alternative procedure, the 
prevailing limits or dental plan contractor's scheduled allowance for 
the otherwise authorized benefit procedure for which the alternative is 
substituted, or the actual charge for the alternative procedure.
    (2) Benefits. The following benefits are defined (subject to the 
TDP's exclusions, limitations, and benefit determination rules approved 
by OCHAMPUS) using the American Dental Association's Council on Dental 
Care Program's Code on Dental Procedures and Nomenclature. The Director, 
OCHAMPUS, or designee, may modify these services, to the extent 
determined appropriate based on developments in common dental care 
practices and standard dental insurance programs.
    (i) Diagnostic and preventive services. Benefits may be extended for 
those dental services described as oral examination, diagnostic, and 
preventive services when performed directly by dentists and dental 
hygienists as authorized under paragraph (f) of this section. These 
include the following categories of service:
    (A) Diagnostic services. (1) Clinical oral examinations.
    (2) Radiographs and diagnostic imaging.
    (3) Tests and laboratory examinations.
    (B) Preventive services. (1) Dental prophylaxis.
    (2) Topical fluoride treatment (office procedure).
    (3) Other preventive services.
    (4) Space maintenance (passive appliances).
    (5) Sealants.
    (ii) General services and services ``by report''. The following 
categories of services are authorized when performed directly by 
dentists or dental hygienists, as authorized under paragraph (f) of this 
section, only in unusual circumstances requiring justification of 
exceptional conditions directly related to otherwise authorized 
procedures. Use of the procedures may not result in the fragmentation of 
services normally included in a single procedure. The dental plan 
contractor may recognize a ``by report'' condition by providing 
additional allowance to the primary covered procedure instead of 
recognizing or permitting a distinct billing for the ``by report'' 
service. These include the following categories of general services:
    (A) Unclassified treatment.
    (B) Anesthesia.
    (C) Professional consultation.
    (D) Professional visits.
    (E) Drugs.
    (F) Miscellaneous services.
    (iii) Restorative services. Benefits may be extended for restorative 
services when performed directly by dentists or dental hygienists, or 
under orders and supervision by dentists, as authorized under paragraph 
(f) of this section. These include the following categories of 
restorative services:
    (A) Amalgam restorations.
    (B) Resin restorations.
    (C) Inlay and onlay restorations.
    (D) Crowns.
    (E) Other restorative services.
    (iv) Endodontic services. Benefits may be extended for those dental 
services involved in treatment of diseases and injuries affecting the 
dental pulp, tooth root, and periapical tissue when performed directly 
by dentists as authorized under paragraph (f) of this section. These 
include the following categories of endodontic services:
    (A) Pulp capping.
    (B) Pulpotomy and pulpectomy.
    (C) Endodontic therapy.
    (D) Apexification and recalcification procedures.
    (E) Apicoectomy and periradicular services.
    (F) Other endodontic procedures.

[[Page 276]]

    (v) Periodontic services. Benefits may be extended for those dental 
services involved in prevention and treatment of diseases affecting the 
supporting structures of the teeth to include periodontal prophylaxis, 
gingivectomy or gingivoplasty, gingival curettage, etc., when performed 
directly by dentists as authorized under paragraph (f) of this section. 
These include the following categories of periodontic services:
    (A) Surgical services.
    (B) Periodontal services.
    (C) Other periodontal services.
    (vi) Prosthodontic services. Benefits may be extended for those 
dental services involved in fabrication, insertion adjustment, 
relinement, and repair of artificial teeth and associated tissues to 
include removable complete and partial dentures, fixed crowns and 
bridges when performed directly by dentists as authorized under 
paragraph (f)(4) of this section. These include the following categories 
of prosthodontic services:
    (A) Prosthodontics (removable).
    (1) Complete and partial dentures.
    (2) Adjustments to dentures.
    (3) Repairs to complete and partial dentures.
    (4) Denture rebase procedures.
    (5) Denture reline procedures.
    (6) Other removable prosthetic services.
    (B) Prosthodontics (fixed).
    (1) Fixed partial denture pontics.
    (2) Fixed partial denture retainers.
    (3) Other partial denture services.
    (vii) Orthodontic services. Benefits may be extended for the 
supervision, guidance, and correction of growing or mature dentofacial 
structures, including those conditions that require movement of teeth or 
correction of malrelationships and malformations through the use of 
orthodontic procedures and devices when performed directly by dentists 
as authorized under paragraph (f) of this section to include in-process 
orthodontics. These include the following categories of orthodontic 
services:
    (A) Limited orthodontic treatment.
    (B) Minor treatment to control harmful habits.
    (C) Interceptive orthodontic treatment.
    (D) Comprehensive orthodontic treatment.
    (E) Other orthodontic services.
    (viii) Oral and maxillofacial surgery services. Benefits may be 
extended for basic surgical procedure of the extraction, reimplantation, 
stabilization and repositioning of teeth, alveoloplasties, incision and 
drainage of abscesses, suturing of wounds, biopsies, etc., when 
performed directly by dentists as authorized under paragraph (f) of this 
section. These include the following categories of oral and 
maxillofacial surgery services:
    (A) Extractions.
    (B) Surgical extractions.
    (C) Other surgical procedures.
    (D) Alveoloplasty--surgical preparation of ridge for denture.
    (E) Surgical incision.
    (F) Repair of traumatic wounds.
    (G) Complicated suturing.
    (H) Other repair procedures.
    (ix) Exclusion of adjunctive dental care. Adjunctive dental care 
benefits are excluded under the TDP. For further information on 
adjunctive dental care benefits under TRICARE/CHAMPUS, see Sec. 
199.4(e)(10).
    (x) Benefit limitations and exclusions. The Director, OCHAMPUS, or 
designee, may establish such exclusions and limitations as are 
consistent with those established by dental insurance and prepayment 
plans to control utilization and quality of care for the services and 
items covered by the TDP.
    (xi) Limitation on reduction of benefits. If a reduction in benefits 
is planned, the Secretary of Defense, or designee, may not reduce TDP 
benefits without notifying the appropriate Congressional committees. If 
a reduction is approved, the Secretary of Defense, or designee, must 
wait one (1) year from the date of notice before a benefit reduction can 
be implemented.
    (3) Cost-shares, liability and maximum coverage--(i) Cost-shares. 
The following table lists maximum active duty, Selected Reserve and 
Individual Ready Reserve member and dependent cost-shares for covered 
services for participating and nonparticipating providers of care (see 
paragraph (f)(6) of this section for additional active duty, Selected 
Reserve and Individual Ready Reserve costs). These are percentages

[[Page 277]]

of the dental plan contractor's determined allowable amount that the 
active duty, Selected Reserve and Individual Ready Reserve member or 
beneficiary must pay to these providers. For care received in the OCONUS 
service area, the ASD(HA), or designee, may pay certain cost-shares and 
other portions of a provider's billed charge for enrolled dependents of 
active duty members (under a call or order that does not specify a 
period of thirty (30) days or less), and for members of the Selected 
Reserve (as specified in 10 U.S.C. 10143) and Individual Ready Reserve 
(as specified in 10 U.S.C. 10144(b)) enrolled on their own behalf.

                              [In percent]
------------------------------------------------------------------------
                                                 Cost-share
                                                  for pay     Cost-share
               Covered services                 grades E-1,    for all
                                                  E-2, E-3    other pay
                                                  and E-4       grades
------------------------------------------------------------------------
Diagnostic....................................            0            0
Preventive, except Sealants...................            0            0
Emergency Services............................            0            0
Professional Consultations....................           20           20
Professional Visits...........................           20           20
Post Surgical Services........................           20           20
Basic Restorative (example: amalgams, resins,            20           20
 stainless steel crowns)......................
Endodontic....................................           30           40
Periodontic...................................           30           40
Oral and Maxillofacial Surgery................           30           40
General Anesthesia............................           40           40
Intravenous Sedation..........................           50           50
Other Restorative (example: crowns, onlays,              50           50
 casts).......................................
Prosthodontics................................           50           50
Medications...................................           50           50
Orthodontic...................................           50           50
Miscellaneous.................................           50           50
------------------------------------------------------------------------

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

[[Page 278]]

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

[[Page 279]]

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

[[Page 280]]

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

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

[66 FR 12860, Mar. 1, 2001; 66 FR 16400, Mar. 26, 2001, as amended at 68 
FR 65174, Nov. 19, 2003; 69 FR 55359, Sept. 14, 2004; 70 FR 55252, Sept. 
21, 2005; 71 FR 1696, Jan. 11, 2006; 71 FR 66872, Nov. 17, 2006; 72 FR 
53685, Sept. 20, 2007; 76 FR 57643, Sept. 16, 2011; 76 FR 81367, Dec. 
28, 2011; 80 FR 55254, Sept. 15, 2015; 81 FR 11667, Mar. 7, 2016]



Sec. 199.14  Provider reimbursement methods.

    (a) Hospitals. The CHAMPUS-determined allowable cost for 
reimbursement of a hospital shall be determined on the basis of one of 
the following methodologies.
    (1) CHAMPUS Diagnosis Related Group (DRG)-based payment system. 
Under the CHAMPUS DRG-based payment system, payment for the operating 
costs of inpatient hospital services furnished by hospitals subject to 
the system is made on the basis of prospectively-determined rates and 
applied on a per discharge basis using DRGs. Payments under this system 
will include a differentiation for urban (using large urban and other 
urban areas) and rural hospitals and an adjustment for area wage 
differences and indirect medical education costs. Additional payments 
will be made for capital costs, direct medical education costs, and 
outlier cases.
    (i) General--(A) DRGs used. The CHAMPUS DRG-based payment system 
will use the same DRGs used in the most recently available grouper for 
the Medicare Prospective Payment System, except as necessary to 
recognize distinct characteristics of CHAMPUS

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beneficiaries and as described in instructions issued by the Director, 
OCHAMPUS.
    (B) Assignment of discharges to DRGs. (1) The classification of a 
particular discharge shall be based on the patient's age, sex, principal 
diagnosis (that is, the diagnosis established, after study, to be 
chiefly responsible for causing the patient's admission to the 
hospital), secondary diagnoses, procedures performed and discharge 
status. In addition, for neonatal cases (other than normal newborns) the 
classification shall also account for birthweight, surgery and the 
presence of multiple, major and other neonatal problems, and shall 
incorporate annual updates to these classification features.
    (2) Each discharge shall be assigned to only one DRG regardless of 
the number of conditions treated or services furnished during the 
patient's stay.
    (C) Basis of payment--(1) Hospital billing. Under the CHAMPUS DRG-
based payment system, hospitals are required to submit claims (including 
itemized charges) in accordance with Sec. 199.7(b). The CHAMPUS fiscal 
intermediary will assign the appropriate DRG to the claim based on the 
information contained in the claim. Any request from a hospital for 
reclassification of a claim to a higher weighted DRG must be submitted, 
within 60 days from the date of the initial payment, in a manner 
prescribed by the Director, OCHAMPUS.
    (2) Payment on a per discharge basis. Under the CHAMPUS DRG-based 
payment system, hospitals are paid a predetermined amount per discharge 
for inpatient hospital services furnished to CHAMPUS beneficiaries.
    (3) Pricing of claims. All final claims with discharge dates of 
September 30, 2014, or earlier that are reimbursed under the CHAMPUS 
DRG-based payment system are to be priced as of the date of admission, 
regardless of when the claim is submitted. All final claims with 
discharge dates of October 1, 2014, or later that are reimbursed under 
the CHAMPUS DRG-based payment system are to be priced as of the date of 
discharge.
    (4) Payment in full. The DRG-based amount paid for inpatient 
hospital services is the total CHAMPUS payment for the inpatient 
operating costs (as described in paragraph (a)(1)(i)(C)(5) of this 
section) incurred in furnishing services covered by the CHAMPUS. The 
full prospective payment amount is payable for each stay during which 
there is at least one covered day of care, except as provided in 
paragraph (a)(1)(iii)(E)(1)(i)(A) of this section.
    (5) Inpatient operating costs. The CHAMPUS DRG-based payment system 
provides a payment amount for inpatient operating costs, including:
    (i) Operating costs for routine services, such as the costs of room, 
board, and routine nursing services;
    (ii) Operating costs for ancillary services, such as hospital 
radiology and laboratory services (other than physicians' services) 
furnished to hospital inpatients;
    (iii) Special care unit operating costs; and
    (iv) Malpractice insurance costs related to services furnished to 
inpatients.
    (6) Discharges and transfers--(i) Discharges. A hospital inpatient 
is discharged when:
    (A) The patient is formally released from the hospital (release of 
the patient to another hospital as described in paragraph 
(a)(1)(i)(C)(6)(ii) of this section, or a leave of absence from the 
hospital, will not be recognized as a discharge for the purpose of 
determining payment under the CHAMPUS DRG-based payment system);
    (B) The patient dies in the hospital; or
    (C) The patient is transferred from the care of a hospital included 
under the CHAMPUS DRG-based payment system to a hospital or unit that is 
excluded from the prospective payment system.
    (ii) Transfers. Except as provided under paragraph 
(a)(1)(i)(C)(6)(i) of this section, a discharge of a hospital inpatient 
is not counted for purposes of the CHAMPUS DRG-based payment system when 
the patient is transferred:
    (A) From one inpatient area or unit of the hospital to another area 
or unit of the same hospital;
    (B) From the care of a hospital included under the CHAMPUS DRG-based 
payment system to the care of

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another hospital paid under this system;
    (C) From the care of a hospital included under the CHAMPUS DRG-based 
payment system to the care of another hospital that is excluded from the 
CHAMPUS DRG-based payment system because of participation in a statewide 
cost control program which is exempt from the CHAMPUS DRG-based payment 
system under paragraph (a)(1)(ii)(A) of this section; or
    (D) From the care of a hospital included under the CHAMPUS DRG-based 
payment system to the care of a uniformed services treatment facility.
    (iii) Payment in full to the discharging hospital. The hospital 
discharging an inpatient shall be paid in full under the CHAMPUS DRG-
based payment system.
    (iv) Payment to a hospital transferring an inpatient to another 
hospital. If a hospital subject to the CHAMPUS DRG-based payment system 
transfers an inpatient to another such hospital, the transferring 
hospital shall be paid a per diem rate (except that in neonatal cases, 
other than normal newborns, the hospital will be paid at 125 percent of 
that per diem rate), as determined under instructions issued by TSO, for 
each day of the patient's stay in that hospital, not to exceed the DRG-
based payment that would have been paid if the patient had been 
discharged to another setting. For admissions occurring on or after 
October 1, 1995, the transferring hospital shall be paid twice the per 
diem rate for the first day of any transfer stay, and the per diem 
amount for each subsequent day, up to the limit described in this 
paragraph.
    (v) Additional payments to transferring hospitals. A transferring 
hospital may qualify for an additional payment for extraordinary cases 
that meet the criteria for long-stay or cost outliers.
    (D) DRG system updates. The CHAMPUS DRG-based payment system is 
modeled on the Medicare Prospective Payment System (PPS) and uses 
annually updated items and numbers from the Medicare PPS as provided for 
in this part and in instructions issued by the Director, DHA. The 
effective date of these items and numbers shall not correspond to that 
under Medicare PPS but shall be delayed until January 1, to align with 
TRICARE's program year reporting. This allows for an administrative 
simplicity that optimizes healthcare delivery by reducing existing 
administrative burden and costs.
    (ii) Applicability of the DRG system--(A) Areas affected. The 
CHAMPUS DRG-based payment system shall apply to hospitals' services in 
the fifty states, the District of Columbia, and Puerto Rico, except that 
any state which has implemented a separate DRG-based payment system or 
similar payment system in order to control costs and is exempt from the 
Medicare Prospective Payment System may be exempt from the CHAMPUS DRG-
based payment system if it requests exemption in writing, and provided 
payment under such system does not exceed payment which would otherwise 
be made under the CHAMPUS DRG-based payment system.
    (B) Services subject to the DRG-based payment system. All normally 
covered inpatient hospital services furnished to CHAMPUS beneficiaries 
by hospitals are subject to the CHAMPUS DRG-based payment system.
    (C) Services exempt from the DRG-based payment system. The following 
hospital services, even when provided in a hospital subject to the 
CHAMPUS DRG-based payment system, are exempt from the CHAMPUS DRG-based 
payment system. The services in paragraphs (a)(1)(ii)(C)(1) through 
(a)(1)(ii)(C)(4) and (a)(1)(ii)(C)(7) through (a)(1)(ii)(C)(9) of this 
section shall be reimbursed under the procedures in paragraph (a)(4) of 
this section, and the services in paragraphs (a)(1)(ii)(C)(5) and 
(a)(1)(ii)(C)(6) of this section shall be reimbursed under the 
procedures in paragraph (j) of this section.
    (1) Services provided by hospitals exempt from the DRG-based payment 
system.
    (2) All services related to solid organ acquisition for CHAMPUS 
covered transplants by CHAMPUS-authorized transplantation centers.
    (3) All services related to heart and liver transplantation for 
admissions prior to October 1, 1998, which would otherwise be paid under 
the respective DRG.

[[Page 284]]

    (4) All services related to CHAMPUS covered solid organ 
transplantations for which there is no DRG assignment.
    (5) All professional services provided by hospital-based physicians.
    (6) All services provided by nurse anesthetists.
    (7) All services related to discharges involving pediatric bone 
marrow transplants (patient under 18 at admission).
    (8) All services related to discharges involving children who have 
been determined to be HIV seropositive (patient under 18 at admission).
    (9) All services related to discharges involving pediatric cystic 
fibrosis (patient under 18 at admission).
    (10) For admissions occurring on or after October 1, 1990, and 
before October 1, 1994, and for discharges occurring on or after October 
1, 1997, the costs of blood clotting factor for hemophilia inpatients. 
An additional payment shall be made to a hospital for each unit of blood 
clotting factor furnished to a CHAMPUS inpatient who is hemophiliac in 
accordance with the amounts established under the Medicare Prospective 
Payment System (42 CFR 412.115).
    (D) Hospitals subject to the CHAMPUS DRG-based payment system. All 
hospitals within the fifty states, the District of Columbia, and Puerto 
Rico which are certified to provide services to CHAMPUS beneficiaries 
are subject to the DRG-based payment system except for the following 
hospitals or hospital units which are exempt.
    (1) Psychiatric hospitals. A psychiatric hospital which is exempt 
from the Medicare Prospective Payment System is also exempt from the 
CHAMPUS DRG-based payment system. In order for a psychiatric hospital 
which does not participate in Medicare to be exempt from the CHAMPUS 
DRG-based payment system, it must meet the same criteria (as determined 
by the Director, OCHAMPUS, or a designee) as required for exemption from 
the Medicare Prospective Payment System as contained in 42 CFR 412.23.
    (2) Inpatient Rehabilitation Facilities (IRF). Prior to 
implementation of the IRF PPS methodology described in paragraph (a)(10) 
of this section, an inpatient rehabilitation facility which is exempt 
from the Medicare prospective payment system is also exempt from the 
TRICARE DRG-based payment system.
    (3) Psychiatric and rehabilitation units (distinct parts). Prior to 
implementation of the IRF PPS methodology described in paragraph (a)(10) 
of this section, a rehabilitation unit which is exempt from the Medicare 
prospective payment system is also exempt from the TRICARE DRG-based 
payment system. A psychiatric unit which is exempt from the Medicare 
prospective payment system is also exempt from the TRICARE DRG-based 
payment system.
    (4) Long Term Care Hospitals. Prior to implementation of the LTCH 
PPS methodology described in paragraph (a)(9) of this section, a long-
term care hospital which is exempt from the Medicare prospective payment 
system is also exempt from the CHAMPUS DRG-based payment system.
    (5) Hospitals within hospitals. A hospital within a hospital which 
is exempt from the Medicare prospective payment system is also exempt 
from the CHAMPUS DRG-based payment system. In order for a hospital 
within a hospital which does not participate in Medicare to be exempt 
from the CHAMPUS DRG-based payment system, it must meet the same 
criteria (as determined by the Director, TSO, or a designee) as required 
for exemption from the Medicare Prospective Payment System as contained 
in 42 CFR 412.22 and the criteria for one or more of the excluded 
hospital classifications described in Sec. 412.23 of Title 42 CFR.
    (6) Sole community hospitals (SCHs). Prior to implementation of the 
SCH reimbursement method described in paragraph (a)(7) of this section, 
any hospital that has qualified for special treatment under the Medicare 
prospective payment system as an SCH (see subpart G of 42 CFR part 412) 
and has not given up that classification is exempt from the CHAMPUS DRG-
based payment system.
    (7) Christian Science sanitoriums. All Christian Science sanitoriums 
(as defined in paragraph (b)(4)(viii) of Sec. 199.6) are exempt from 
the CHAMPUS DRG-based payment system.
    (8) Cancer hospitals. Any hospital which qualifies as a cancer 
hospital

[[Page 285]]

under the Medicare standards and has elected to be exempt from the 
Medicare prospective payment system is exempt from the CHAMPUS DRG-based 
payment system. (See 42 CFR 412.94.)
    (9) Hospitals outside the 50 states, the District of Columbia, and 
Puerto Rico. A hospital is excluded from the CHAMPUS DRG-based payment 
system if it is not located in one of the fifty States, the District of 
Colubmia, or Puerto Rico.
    (10) CAHs. Effective December 1, 2009, any facility which has been 
designated and certified as a CAH as contained in 42 CFR Part 485.606 is 
exempt from the CHAMPUS DRG-based payment system.
    (E) Hospitals which do not participate in Medicare. Any hospital 
which is subject to the CHAMPUS DRG-based payment system and which 
otherwise meets CHAMPUS requirements but which is not a Medicare-
participating provider (having completed a form HCA-1514, Hospital 
Request for Certification in the Medicare/Medicaid Program and a form 
HCFA-1561, Health Insurance Benefit Agreement) must complete a 
participation agreement with TRICARE. By completing the participation 
agreement, the hospital agrees to participate on all CHAMPUS inpatient 
claims and to accept the CHAMPUS-determined allowable amount as payment 
in full for these claims. Any hospital which does not participate in 
Medicare and does not complete a participation agreement with TRICARE 
will not be authorized to provide services to TRICARE beneficiaries.
    (F) Substance Use Disorder Rehabilitation facilities. With 
admissions on or after July 1, 1995, substance use disorder 
rehabilitation facilities, authorized under Sec. 199.6(b)(4)(xiv), are 
subject to the DRG-based payment system.
    (iii) Determination of payment amounts. The actual payment for an 
individual claim under the CHAMPUS DRG-based payment system is 
calculated by multiplying the appropriate adjusted standardized amount 
(adjusted to account for area wage differences using the wage indexes 
used in the Medicare program) by a weighting factor specific to each 
DRG.
    (A) Calculation of DRG weights--(1) Grouping of charges. All 
discharge records in the database shall be grouped by DRG.
    (2) Remove DRGs. Those DRGs that represent discharges with invalid 
data or diagnoses insufficient for DRG assignment purposes are removed 
from the database.
    (3) Indirect medical education standardization. To standardize the 
charges for the cost effects of indirect medical education factors, each 
teaching hospital's charges will be divided by 1.0 plus the following 
ratio on a hospital-specific basis:
[GRAPHIC] [TIFF OMITTED] TC15NO91.042

    (4) Wage level standardization. To standardize the charge records 
for area wage differences, each charge record will be divided into 
labor-related and nonlabor-related portions, and the labor-related 
portion shall be divided by the most recently available Medicare wage 
index for the area. The labor-related and nonlabor-related portions will 
then be added together.
    (5) Elimination of statistical outliers. All unusually high or low 
charges shall be removed from the database.
    (6) Calculation of DRG average charge. After the standardization for 
indirect medical education, and area wage differences, an average charge 
for each DRG shall be computed by summing charges in a DRG and dividing 
that sum by the number of records in the DRG.
    (7) Calculation of national average charge per discharge. A national 
average charge per discharge shall be calculated by summing all charges 
and dividing that sum by the total number of records from all DRG 
categories.

[[Page 286]]

    (8) DRG relative weights. DRG relative weights shall be calculated 
for each DRG category by dividing each DRG average charge by the 
national average charge.
    (B) Empty and low-volume DRGs. For any DRG with less than ten (10) 
occurrences in the CHAMPUS database, the Director, TSO, or designee, has 
the authority to consider alternative methods for estimating CHAMPUS 
weights in these low-volume DRG categories.
    (C) Updating DRG weights. The CHAMPUS DRG weights shall be updated 
or adjusted as follows:
    (1) DRG weights shall be recalculated annually using CHAMPUS charge 
data and the methodology described in paragraph (a)(1)(iii)(A) of this 
section.
    (2) When a new DRG is created, CHAMPUS will, if practical, calculate 
a weight for it using an appropriate charge sample (if available) and 
the methodology described in paragraph (a)(1)(iii)(A) of this section.
    (3) In the case of any other change under Medicare to an existing 
DRG weight (such as in connection with technology changes), CHAMPUS 
shall adjust its weight for that DRG in a manner comparable to the 
change made by Medicare.
    (D) Calculation of the adjusted standardized amounts. The following 
procedures shall be followed in calculating the CHAMPUS adjusted 
standardized amounts. (1) Differentiate large urban and other area 
charges. All charges in the database shall be sorted into large urban 
and other area groups (using the same definitions for these categories 
used in the Medicare program. The following procedures will be applied 
to each group.
    (2) Indirect medical education standardization. To standardize the 
charges for the cost effects of indirect medical education factors, each 
teaching hospital's charges will be divided by 1.0 plus the following 
ratio on a hospital-specific basis:
[GRAPHIC] [TIFF OMITTED] TC15NO91.043

    (3) Wage level standardization. To standardize the charge records 
for area wage differences, each charge record will be divided into 
labor-related and nonlabor-related portions, and the labor-related 
portion shall be divided by the most recently available Medicare wage 
index for the area. The labor-related and nonlabor-related portions will 
then be added together.
    (4) Apply the cost to charge ratio. Each charge is to be reduced to 
a representative cost by using the Medicare cost to charge ratio. This 
amount shall be increased by 1 percentage point in order to reimburse 
hospitals for bad debt expenses attributable to CHAMPUS beneficiaries.
    (5) Preliminary base year standardized amount. A preliminary base 
year standardized amount shall be calculated by summing all costs in the 
database applicable to the large urban or other area group and dividing 
by the total number of discharges in the respective group.
    (6) Update for inflation. The preliminary base year standardized 
amounts shall be updated using an annual update factor equal to 1.07 to 
produce fiscal year 1988 preliminary standardized amounts. Therefore, 
any development of a new standardized amount will use an inflation 
factor equal to the hospital market basket index used by the Health Care 
Financing Administration in their Prospective Payment System.
    (7) The preliminary standardized amounts, updated for inflation, 
shall be divided by a system standardization factor so that total DRG 
outlays, given the database distribution across hospitals and diagnosis, 
are equal to the total charges reduced to costs.
    (8) Labor and nonlabor portions of the adjusted standardized 
amounts. The adjusted standardized amounts shall be

[[Page 287]]

divided into labor and nonlabor portions in accordance with the Medicare 
division of labor and nonlabor portions.
    (E) Adjustments to the DRG-based payments amounts. The following 
adjustments to the DRG-based amounts (the weight multiplied by the 
adjusted standardized amount) will be made. Additional adjustments to 
DRG amounts are included in paragraph (a)(1)(iv) of this section.
    (1) Outliers. The DRG-based payment to a hospital shall be adjusted 
for atypical cases. These outliers are those cases that have either an 
unusually short length-of-stay or extremely long length-of-stay or that 
involve extraordinarily high costs when compared to most discharges 
classified in the same DRG. Cases which qualify as both a length-of-stay 
outlier and a cost outlier shall be paid at the rate which results in 
the greater payment.
    (i) Length-of-stay outliers. Length-of-stay outliers shall be 
identified and paid by the fiscal intermediary when the claims are 
processed.
    (A) Short-stay outliers. Any discharge with a length-of-stay (LOS) 
less than 1.94 standard deviations from the DRG's arithmetic LOS shall 
be classified as a short-stay outlier. Short-stay outliers shall be 
reimbursed at 200 percent of the per diem rate for the DRG for each 
covered day of the hospital stay, not to exceed the DRG amount. The per 
diem rate shall equal the DRG amount divided by the arithmetic mean 
length-of-stay for the DRG.
    (B) Long-stay outliers. Any discharge (except for neonatal services 
and services in children's hospitals) which has a length-of-stay (LOS) 
exceeding a threshold established in accordance with the criteria used 
for the Medicare Prospective Payment System as contained in 42 CFR 
412.82 shall be classified as a long-stay outlier. Any discharge for 
neonatal services or for services in a children's hospital which has a 
LOS exceeding the lesser of 1.94 standard deviations or 17 days from the 
DRG's arithmetic mean LOS also shall be classified as a long-stay 
outlier. Long-stay outliers shall be reimbursed the DRG-based amount 
plus a percentage (as established for the Medicare Prospective Payment 
System) of the per diem rate for the DRG for each covered day of care 
beyond the long-stay outlier threshold. The per diem rate shall equal 
the DRG amount divided by the arithmetic mean LOS for the DRG. For 
admissions on or after October 1, 1997, the long stay outlier has been 
eliminated for all cases except children's hospitals and neonates. For 
admissions on or after October 1, 1998, the long stay outlier has been 
eliminated for children's hospitals and neonates.
    (ii) Cost outliers. Additional payment for cost outliers shall be 
made only upon request by the hospital.
    (A) Cost outliers except those in children's hospitals or for 
neonatal services. Any discharge which has standardized costs that 
exceed a threshold established in accordance with the criteria used for 
the Medicare Prospective Payment System as contained in 42 CFR 412.84 
shall qualify as a cost outlier. The standardized costs shall be 
calculated by multiplying the total charges by the factor described in 
paragraph (a)(1)(iii)(D)(4) of this section and adjusting this amount 
for indirect medical education costs. Cost outliers shall be reimbursed 
the DRG-based amount plus a percentage (as established for the Medicare 
Prospective Payment System) of all costs exceeding the threshold. 
Effective with admissions occurring on or after October 1, 1997, the 
standardized costs are no longer adjusted for indirect medical education 
costs.
    (B) Cost outliers in children's hospitals for neonatal services. Any 
discharge for services in a children's hospital or for neonatal services 
which has standardized costs that exceed a threshold of the greater of 
two times the DRG-based amount or $13,500 shall qualify as a cost 
outlier. The standardized costs shall be calculated by multiplying the 
total charges by the factor described in paragraph (a)(1) (iii) (D) (4) 
of this section (adjusted to include average capital and direct medical 
education costs) and adjusting this amount for indirect medical 
education costs. Cost outliers for services in children's hospitals and 
for neonatal services shall be reimbursed the DRG-based amount plus a 
percentage (as established for the Medicare Prospective

[[Page 288]]

Payment System) of all costs exceeding the threshold. Effective with 
admissions occurring on or after October 1, 1998, standardized costs are 
no longer adjusted for indirect medical education costs. In addition, 
CHAMPUS will calculate the outlier payments that would have occurred at 
each of the 59 Children's hospitals under the FY99 outlier policy for 
all cases that would have been outliers under the FY94 policies using 
the most accurate data available in September 1998. A ratio will be 
calculated which equals the level of outlier payments that would have 
been made under the FY94 outlier policies and the outlier payments that 
would be made if the FY99 outlier policies had applied to each of these 
potential outlier cases for these hospitals. The ratio will be 
calculated across all outlier claims for the 59 hospitals and will not 
be hospital specific. The ratio will be used to increase cost outlier 
payments in FY 1999 and FY 2000, unless the hospital has a negotiated 
agreement with a managed care support contractor which would affect this 
payment. For hospitals with managed care support agreements which affect 
these payments, CHAMPUS will apply these payments if the increased 
payments would be consistent with the agreements. In FY 2000 the ratio 
of outlier payments (long stay and cost) that would have occurred under 
the FY 94 policy and actual cost outlier payments made under the FY 99 
policy will be recalculated. If the ratio has changed significantly, the 
ratio will be revised for use in FY 2001 and thereafter. In FY 2002, the 
actual cost outlier cases in FY 2000 and 2001 will be reexamined. The 
ratio of outlier payments that would have occurred under the FY94 policy 
and the actual cost outlier payments made under the FY 2000 and FY 2001 
policies. If the ratio has changed significantly, the ratio will be 
revised for use in FY 2003.
    (C) Cost outliers for burn cases. All cost outliers for DRGs related 
to burn cases shall be reimbursed the DRG-based amount plus a percentage 
(as established for the Medicare Prospective Payment System) of all 
costs exceeding the threshold. The standardized costs and thresholds for 
these cases shall be calculated in accordance with Sec. 
199.14(a)(1)(iii)(E)(1)(ii)(A) and Sec. 199.14(a)(1)(iii)(E)(1)(ii)(B).
    (2) Wage adjustment. CHAMPUS will adjust the labor portion of the 
standardized amounts according to the hospital's area wage index. The 
wage adjusted DRG payment will also be multiplied by 1.2 for an 
individual diagnosed with COVID-19 and/or Coronavirus discharged during 
the Secretary of Health and Human Services' declared public health 
emergency (PHE).
    (3) Indirect medical education adjustment. The wage adjusted DRG 
payment will also be multiplied by 1.0 plus the hospital's indirect 
medical education ratio.
    (4) Children's hospital differential. With respect to claims from 
children's hospitals, the appropriate adjusted standardized amount shall 
also be adjusted by a children's hospital differential.
    (i) Qualifying children's hospitals. Hospitals qualifying for the 
children's hospital differential are hospitals that are exempt from the 
Medicare Prospective Payment System, or, in the case of hospitals that 
do not participate in Medicare, that meet the same criteria (as 
determined by the Director, OCHAMPUS, or a designee) as required for 
exemption from the Medicare Prospective Payment System as contained in 
42 CFR 412.23.
    (ii) Calculation of differential. The differential shall be equal to 
the difference between a specially calculated children's hospital 
adjusted standardized amount and the adjusted standardized amount for 
fiscal year 1988. The specially calculated children's hospital adjusted 
standardized amount shall be calculated in the same manner as set forth 
in Sec. 199.14(a)(1)(iii)(D), except that:
    (A) The base period shall be fiscal year 1988 and shall represent 
total estimated charges for discharges that occurred during fiscal year 
1988.
    (B) No cost to charge ratio shall be applied.
    (C) Capital costs and direct medical education costs will be 
included in the calculation.
    (D) The factor used to update the database for inflation to produce 
the fiscal year 1988 base period amount

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shall be the applicable Medicare inpatient hospital market basket rate.
    (iii) Transition rule. Until March 1, 1992, separate differentials 
shall be used for each higher volume children's hospital (individually) 
and for all other children's hospitals (in the aggregate). For this 
purpose, a higher volume hospital is a hospital that had 50 or more 
CHAMPUS discharges in fiscal year 1988.
    (iv) Hold harmless provision. At such time as the weights initially 
assigned to neonatal DRGs are recalibrated based on sufficient volume of 
CHAMPUS claims records, children's hospital differentials shall be 
recalculated and appropriate retrospective and prospective adjustments 
shall be made. To the extent practicable, the recalculation shall also 
include reestimated values of other factors (including but not limited 
to direct education and capital costs and indirect education factors) 
for which more accurate data became available.
    (v) No update for inflation. The children's hospital differential, 
calculated (and later recalculated under the hold harmless provision) 
for the base period of fiscal year 1988, shall not be updated for 
subsequent fiscal years.
    (vi) Administrative corrections. In connection with determinations 
pursuant to paragraph (a)(1)(iii) (E)(4)(iii) of this section, any 
children's hospital that believes OCHAMPUS erroneously failed to 
classify the hospital as a high volume hospital or incorrectly 
calculated (in the case of a high volume hospital) the hospital's 
differential may obtain administrative corrections by submitting 
appropriate documentation to the Director, OCHAMPUS (or a designee).
    (F) Updating the adjusted standardized amounts. Beginning in FY 
1989, the adjusted standardized amounts will be updated by the Medicare 
annual update factor, unless the adjusted standardized amounts are 
recalculated.
    (G) Annual cost pass-throughs--(1) Capital costs. When requested in 
writing by a hospital, CHAMPUS shall reimburse the hospital its share of 
actual capital costs as reported annually to the CHAMPUS fiscal 
intermediary. Payment for capital costs shall be made annually based on 
the ratio of CHAMPUS inpatient days for those beneficiaries subject to 
the CHAMPUS DRG-based payment system to total inpatient days applied to 
the hospital's total allowable capital costs. Reductions in payments for 
capital costs which are required under Medicare shall also be applied to 
payments for capital costs under CHAMPUS.
    (i) Costs included as capital costs. Allowable capital costs are 
those specified in Medicare Regulation Sec. 413.130, as modified by 
Sec. 412.72.
    (ii) Services, facilities, or supplies provided by supplying 
organizations. If services, facilities, or supplies are provided to the 
hospital by a supplying organization related to the hospital within the 
meaning of Medicare Regulation Sec. 413.17, then the hospital must 
include in its capital-related costs, the capital-related costs of the 
supplying organization. However, if the supplying organization is not 
related to the provider within the meaning of Sec. 413.17, no part of 
the change to the provider may be considered a capital-related cost 
unless the services, facilities, or supplies are capital-related in 
nature and:
    (A) The capital-related equipment is leased or rented by the 
provider;
    (B) The capital-related equipment is located on the provider's 
premises; and
    (C) The capital-related portion of the charge is separately 
specified in the charge to the provider.
    (2) Direct medical education costs. When requested in writing by a 
hospital, CHAMPUS shall reimburse the hospital its actual direct medical 
education costs as reported annually to the CHAMPUS fiscal intermediary. 
Such teaching costs must be for a teaching program approved under 
Medicare Regulation Sec. 413.85. Payment for direct medical education 
costs shall be made annually based on the ratio of CHAMPUS inpatient 
days for those beneficiaries subject to the CHAMPUS DRG-based payment 
system to total inpatient days applied to the hospital's total allowable 
direct medical education costs. Allowable direct medical education costs 
are those specified in Medicare Regulation Sec. 413.85.
    (3) Information necessary for payment of capital and direct medical 
education costs. All hospitals subject to the CHAMPUS DRG-based payment 
system, except for children's hospitals,

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may be reimbursed for allowed capital and direct medical education costs 
by submitting a request to the CHAMPUS contractor. Beginning October 1, 
1998, such request shall be filed with CHAMPUS on or before the last day 
of the twelfth month following the close of the hospitals' cost 
reporting period, and shall cover the one-year period corresponding to 
the hospital's Medicare cost-reporting period. The first such request 
may cover a period of less than a full year--from the effective date of 
the CHAMPUS DRG-based payment system to the end of the hospital's 
Medicare cost-reporting period. All costs reported to the CHAMPUS 
contractor must correspond to the costs reported on the hospital's 
Medicare cost report. An extension of the due date for filing the 
request may only be granted if an extension has been granted by HCFA due 
to a provider's operations being significantly adversely affected due to 
extraordinary circumstances over which the provider has no control, such 
as flood or fire. (If these costs change as a result of a subsequent 
audit by Medicare, the revised costs are to be reported to the 
hospital's CHAMPUS contractor within 30 days of the date the hospital is 
notified of the change). The request must be signed by the hospital 
official responsible for verifying the amounts and shall contain the 
following information.
    (i) The hospital's name.
    (ii) The hospital's address.
    (iii) The hospital's CHAMPUS provider number.
    (iv) The hospital's Medicare provider number.
    (v) The period covered--this must correspond to the hospital's 
Medicare cost-reporting period.
    (vi) Total inpatient days provided to all patients in units subject 
to DRG-based payment.
    (vii) Total allowed CHAMPUS inpatient days provided in units subject 
to DRG-based payment.
    (viii) Total allowable capital costs.
    (ix) Total allowable direct medical education costs.
    (x) Total full-time equivalents for:
    (A) Residents.
    (B) Interns.
    (xi) Total inpatient beds as of the end of the cost-reporting 
period. If this has changed during the reporting period, an explanation 
of the change must be provided.
    (xii) Title of official signing the report.
    (xiii) Reporting date.
    (xiv) The report shall contain a certification statement that any 
changes to the items in paragraphs (a)(1)(iii)(G)(3)(vi), (vii), (viii), 
(ix), or (x), which are a result of an audit of the hospital's Medicare 
cost-report, shall be reported to CHAMPUS within thirty (30) days of the 
date the hospital is notified of the change.
    (iv) Special Programs and Incentive Payments. (A) Additional payment 
for new medical services and technologies. TRICARE will make New 
Technology Add On Payments (NTAPs) adjustments to DRGs as provided in 
paragraphs (a)(1)(iv)(A)(1) through (a)(1)(iv)(A)(11) of this section. 
The Director, Defense Health Agency (DHA), shall provide notice of the 
issuance of policies and guidelines adopting such adjustments together 
with any variations deemed necessary to address unique issues involving 
the beneficiary population or program administration.
    (1) Adoption of Medicare NTAPs. For TRICARE covered services and 
supplies, TRICARE will adopt Medicare NTAPs as implemented under 42 CFR 
412.87 under the same conditions as published by the Centers for 
Medicare & Medicaid Services, except for pediatric cases.
    (2) Pediatric cases. For pediatric NTAP DRGs, the TRICARE NTAP 
adjustment shall be modified to be set at 100 percent of the costs in 
excess of the Medicare Severity-Diagnosis Related Group (MS-DRG) 
payment. As used in this paragraph, pediatric is defined as services and 
supplies provided to individuals under the age of 18, or who are being 
treated in a children's hospital or in a pediatric ward.
    (3) TRICARE designated NTAP adjustments. For categories of TRICARE 
covered services and supplies for which Medicare has not established an 
NTAP adjustment for DRGs, the Director, DHA may designate a TRICARE NTAP 
adjustment through a process using criteria to identify and select such 
new

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technology services/supplies similar to that utilized by Medicare under 
42 CFR 412.87. The Director, DHA may then designate a TRICARE NTAP 
reimbursement adjustment through a process using a methodology similar 
to the Medicare methodology outlined in 42 CFR 412.88. This 
discretionary authority to designate TRICARE NTAP adjustments shall 
apply to services and supplies typically provided to TRICARE 
beneficiaries age 64 or younger when Medicare has not established an 
NTAP adjustment for such services/supplies. As with other discretionary 
authority under this part, a decision to designate a TRICARE category of 
services/supplies for an NTAP adjustment to DRGs and the amount of such 
an adjustment are not subject to the appeal and hearing procedures of 
Sec. 199.10. The Director, DHA, shall select which new technologies may 
be designated as TRICARE NTAPs and will publish this list based on the 
eligibility criteria and reimbursement methodology provided in 
paragraphs (a)(1)(iv)(A)(4) through (a)(1)(iv)(A)(11) of this section.
    (4) Eligibility requirements and reimbursement methodology for 
TRICARE designated NTAP adjustments. A new medical service or technology 
represents an advance that substantially improves, relative to 
technologies previously available, the diagnosis or treatment of TRICARE 
beneficiaries. The totality of the circumstances is considered when 
making a determination that a new medical service or technology 
represents an advance that substantially improves, relative to services 
or technologies previously available, the diagnosis or treatment of 
TRICARE beneficiaries.
    (5) Criteria for improvement. A determination that a new medical 
service or technology represents an advance that substantially improves, 
relative to services or technologies previously available, the diagnosis 
or treatment of TRICARE beneficiaries means one or more of the 
following:
    (i) The new medical service or technology offers a treatment option 
for a patient population unresponsive to, or ineligible for, currently 
available treatments.
    (ii) The new medical service or technology offers the ability to 
diagnose a medical condition in a patient population where that medical 
condition is currently undetectable, or offers the ability to diagnose a 
medical condition earlier in a patient population than allowed by 
currently available methods and there must also be evidence that use of 
the new medical service or technology to make a diagnosis affects the 
management of the patient.
    (iii) The use of the new medical service or technology significantly 
improves clinical outcomes relative to services or technologies 
previously available as demonstrated by one or more of the following 
seven outcomes: A reduction in at least one clinically significant 
adverse event, including a reduction in mortality or a clinically 
significant complication; A decreased rate of at least one subsequent 
diagnostic or therapeutic intervention; A decreased number of future 
hospitalizations or physician visits; A more rapid beneficial resolution 
of the disease process treatment including, but not limited to, a 
reduced length of stay or recovery time; An improvement in one or more 
activities of daily living; An improved quality of life; or A 
demonstrated greater medication adherence or compliance.
    (iv) The totality of the information otherwise demonstrates that the 
new medical service or technology substantially improves, relative to 
technologies previously available, the diagnosis or treatment of TRICARE 
beneficiaries.
    (6) Evidence. Evidence from scientific literature may be sufficient 
to establish that a new medical service or technology represents an 
advance that substantially improves, relative to services or 
technologies previously available, the diagnosis or treatment of TRICARE 
beneficiaries.
    (7) Prevalence. The medical condition diagnosed or treated by the 
new medical service or technology may have a low prevalence among 
TRICARE beneficiaries.
    (8) Subpopulation. The new medical service or technology may 
represent an advance that substantially improves, relative to services 
or technologies previously available, the diagnosis or

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treatment of a subpopulation of patients with the medical condition 
diagnosed or treated by the new medical service or technology.
    (9) Newness criteria. A medical service or technology may be 
considered new within 2 or 3 years after the point at which data begin 
to become available reflecting the inpatient hospital code assigned to 
the new service or technology (depending on when a new code is assigned 
and data on the new service or technology becomes available for DRG 
recalibration). After TRICARE has recalibrated the DRGs, based on 
available data, to reflect the costs of an otherwise new medical service 
or technology, the medical service or technology will no longer be 
considered ``new'' under the criterion of this section.
    (10) Payment methodology. For discharges involving new medical 
services or technologies that meet the criteria specified in paragraphs 
(a)(1)(iv)(A)(4) through (a)(1)(iv)(A)(9) and that are approved as 
TRICARE NTAPs per paragraph (a)(1)(iv)(A)(11) of this section, TRICARE 
payment will be the lesser of:
    (i) The CMS designated percentage of the estimated costs of the new 
technology or medical service, as published in 42 CFR 412.88; or
    (ii) The CMS designated percentage of the difference between the 
full DRG payment and the hospital's estimated cost for the case, as 
published in 42 CFR 412.88.
    (11) Publication and timing. TRICARE may consider whether a new 
medical service or technology meets the eligibility criteria specified 
in paragraphs (a)(1)(iv)(A)(4) through (a)(1)(iv)(A)(9) of this section 
and announce the results on the NTAP website. In doing so, TRICARE only 
considers, for add-on payments for a particular fiscal year, an 
application for which the new medical device or product has received FDA 
marketing authorization by July 1 prior to the particular fiscal year; 
or the application is submitted under an alternative pathway to the FDA 
for which conditional NTAP approval for FDA marketing authorization is 
granted before July 1 of the fiscal year for which the applicant applied 
for new technology add-on payments.
    (B) Hospital Value Based Purchasing. TRICARE will adopt the Medicare 
Hospital Value Based Purchasing (HVBP) Program adjustments to DRGs to 
incentivize hospitals as implemented under 42 CFR 412.160, when 
determined by the ASD(HA), as practicable. The Director, DHA, shall 
provide notice of the issuance of policies and guidelines adopting such 
adjustments together with any variations deemed necessary to address 
unique issues involving the beneficiary population or program 
administration.
    (C) Additional payment for new COVID-19 Treatments. TRICARE will 
adopt the Medicare New COVID-19 Treatments Add-On Payments (NCTAP) 
adjustment to DRGs. New COVID-19 treatments shall be reimbursed the 
lesser of (1) 65 percent of the operating outlier threshold for the 
claim or (2) 65 percent of the amount by which the costs of the case 
exceed the standard DRG payment for an individual treated using new 
COVID-19 treatments discharged during the Secretary of Health and Human 
Services' declared public health emergency (PHE) through the end of the 
FY in which the PHE terminates.
    (2) CHAMPUS mental health per diem payment system. The CHAMPUS 
mental health per diem payment system shall be used to reimburse for 
inpatient mental health hospital care in specialty psychiatric hospitals 
and units. Payment is made on the basis of prospectively determined 
rates and paid on a per diem basis. The system uses two sets of per 
diems. One set of per diems applies to hospitals and units that have a 
relatively higher number of CHAMPUS discharges. For these hospitals and 
units, the system uses hospital-specific per diem rates. The other set 
of per diems applies to hospitals and units with a relatively lower 
number of CHAMPUS discharges. For these hospitals and units, the system 
uses regional per diems, and further provides for adjustments for area 
wage differences and indirect medical education costs and additional 
pass-through payments for direct medical education costs.
    (i) Applicability of the mental health per diem payment system--(A) 
Hospitals

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and units covered. The CHAMPUS mental health per diem payment system 
applies to services covered (see paragraph (a)(2)(i)(B) of this section) 
that are provided in Medicare prospective payment system (PPS) exempt 
psychiatric specialty hospitals and all Medicare PPS exempt psychiatric 
specialty units of other hospitals. In addition, any psychiatric 
hospital that does not participate in Medicare, or any other hospital 
that has a psychiatric specialty unit that has not been so designated 
for exemption from the Medicare prospective payment system because the 
hospital does not participate in Medicare, may be designated as a 
psychiatric hospital or psychiatric specialty unit for purposes of the 
CHAMPUS mental health per diem payment system upon demonstrating that it 
meets the same criteria (as determined by the Director, OCHAMPUS) as 
required for the Medicare exemption. The CHAMPUS mental health per diem 
payment system does not apply to mental health services provided in 
other hospitals.
    (B) Services covered. Unless specifically exempted, all covered 
hospitals' and units' inpatient claims which are classified into a 
mental health DRG (DRG categories 425-432, but not DRG 424) or an 
alcohol/drug abuse DRG (DRG categories 433-437) shall be subject to the 
mental health per diem payment system.
    (ii) Hospital-specific per diems for higher volume hospitals and 
units. This paragraph describes the per diem payment amounts for 
hospitals and units with a higher volume of CHAMPUS discharges.
    (A)(1) Per diem amount. A hospital-specific per diem amount shall be 
calculated for each hospital and unit with a higher volume of CHAMPUS 
discharges. The base period per diem amount shall be equal to the 
hospital's average daily charge in the base period. The base period 
amount, however, may not exceed the cap described in paragraph 
(a)(2)(ii)(B) of this section. The base period amount shall be updated 
in accordance with paragraph (a)(2)(iv) of this section.
    (2) In states that have implemented a payment system in connection 
with which hospitals in that state have been exempted from the CHAMPUS 
DRG-based payment system pursuant to paragraph (a)(1)(ii)(A) of this 
section, psychiatric hospitals and units may have per diem amounts 
established based on the payment system applicable to such hospitals and 
units in the state. The per diem amount, however, may not exceed the cap 
amount applicable to other higher volume hospitals.
    (B) Cap--(1) As it affects payment for care provided to patients 
prior to April 6, 1995, the base period per diem amount may not exceed 
the 80th percentile of the average daily charge weighted for all 
discharges throughout the United States from all higher volume 
hospitals.
    (2) Applicable to payments for care provided to patients on or after 
April 6, 1996, the base period per diem amount may not exceed the 70th 
percentile of the average daily charge weighted for all discharges 
throughout the United States from all higher volume hospitals. For this 
purpose, base year charges shall be deemed to be charges during the 
period of July 1, 1991 to June 30, 1992, adjusted to correspond to base 
year (FY 1988) charges by the percentage change in average daily charges 
for all higher volume hospitals and units between the period of July 1, 
1991 to June 30, 1992 and the base year.
    (C) Review of per diem. Any hospital or unit which believes OCHAMPUS 
calculated a hospital-specific per diem which differs by more than $5.00 
from that calculated by the hospital or unit may apply to the Director, 
OCHAMPUS, or a designee, for a recalculation. The burden of proof shall 
be on the hospital.
    (iii) Regional per diems for lower volume hospitals and units. This 
paragraph describes the per diem amounts for hospitals and units with a 
lower volume of CHAMPUS discharges.
    (A) Per diem amounts. Hospitals and units with a lower volume of 
CHAMPUS patients shall be paid on the basis of a regional per diem 
amount, adjusted for area wages and indirect medical education. Base 
period regional per diems shall be calculated based upon all CHAMPUS 
lower volume hospitals' claims paid during the base period. Each 
regional per diem

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amount shall be the quotient of all covered charges divided by all 
covered days of care, reported on all CHAMPUS claims from lower volume 
hospitals in the region paid during the base period, after having 
standardized for indirect medical education costs and area wage indexes 
and subtracted direct medical education costs. Regional per diem amounts 
are adjusted in accordance with paragraph (a)(2)(iii)(C) of this 
section. Additional pass-through payments to lower volume hospitals are 
made in accordance with paragraph (a)(2)(iii)(D) of this section. The 
regions shall be the same as the Federal census regions.
    (B) Review of per diem amount. Any hospital that believes the 
regional per diem amount applicable to that hospital has been 
erroneously calculated by OCHAMPUS by more than $5.00 may submit to the 
Director, OCHAMPUS, or a designee, evidence supporting a different 
regional per diem. The burden of proof shall be on the hospital.
    (C) Adjustments to regional per diems. Two adjustments shall be made 
to the regional per diem rates.
    (1) Area wage index. The same area wage indexes used for the CHAMPUS 
DRG-based payment system (see paragraph (a)(1)(iii)(E)(2) of this 
section) shall be applied to the wage portion of the applicable regional 
per diem rate for each day of the admission. The wage portion shall be 
the same as that used for the CHAMPUS DRG-based payment system.
    (2) Indirect medical education. The indirect medical education 
adjustment factors shall be calculated for teaching hospitals in the 
same manner as is used in the CHAMPUS DRG-based payment system (see 
paragraph (a)(1)(iii)(E)(3) of this section) and applied to the 
applicable regional per diem rate for each day of the admission.
    (D) Annual cost pass-through for direct medical education. In 
addition to payments made to lower volume hospitals under paragraph 
(a)(2)(iii) of this section, CHAMPUS shall annually reimburse hospitals 
for actual direct medical education costs associated with services to 
CHAMPUS beneficiaries. This reimbursement shall be done pursuant to the 
same procedures as are applicable to the CHAMPUS DRG-based payment 
system (see paragraph (a)(1)(iii)(G) of this section).
    (iv) Base period and update factors--(A) Base period. The base 
period for calculating the hospital-specific and regional per diems, as 
described in paragraphs (a)(2)(ii) and (a)(2)(iii) of this section, is 
Federal fiscal year 1988. Base period calculations shall be based on 
actual claims paid during the period July 1, 1987 through May 31, 1988, 
trended forward to represent the 12-month period ending September 30, 
1988 on the basis of the Medicare inpatient hospital market basket rate.
    (B) Alternative hospital-specific data base. Upon application of a 
higher volume hospital or unit to the Director, OCHAMPUS, or a designee, 
the hospital or unit may have its hospital-specific base period 
calculations based on claims with a date of discharge (rather than date 
of payment) between July 1, 1987 through May 31, 1988 if it has 
generally experienced unusual delays in claims payments and if the use 
of such an alternative data base would result in a difference in the per 
diem amount of at least $5.00. For this purpose, the unusual delays 
means that the hospital's or unit's average time period between date of 
discharge and date of payment is more than two standard deviations 
longer than the national average.
    (C) Update factors--(1) The hospital-specific per diems and the 
regional per diems calculated for the base period pursuant to paragraphs 
(a)(2)(ii) of this section shall remain in effect for federal fiscal 
year 1989; there will be no additional update for fiscal year 1989.
    (2) Except as provided in paragraph (a)(2)(iv)(C)(3) of this 
section, for subsequent federal fiscal years, each per diem shall be 
updated by the Medicare Inpatient Prospective Payment System update 
factor.
    (3) As an exception to the update required by paragraph 
(a)(2)(iv)(C)(2) of this section, all per diems in effect at the end of 
fiscal year 1995 shall remain in effect, with no additional update, 
throughout fiscal years 1996 and 1997. For fiscal year 1998 and 
thereafter, the per diems in effect at the end of fiscal year 1997 will 
be updated in accordance with paragraph (a)(2)(iv)(C)(2).

[[Page 295]]

    (4) Hospitals and units with hospital-specific rates will be 
notified of their respective rates prior to the beginning of each 
Federal fiscal year. New hospitals shall be notified at such time as the 
hospital rate is determined. The actual amount of each regional per diem 
that will apply in any Federal fiscal year shall be posted to the 
Agency's official Web site at the start of that fiscal year.
    (v) Higher volume hospitals. This paragraph describes the 
classification of and other provisions pertinent to hospitals with a 
higher volume of CHAMPUS patients.
    (A) In general. Any hospital or unit that had an annual rate of 25 
or more CHAMPUS discharges of CHAMPUS patients during the period July 1, 
1987 through May 31, 1988 shall be considered a higher volume hospital 
has 25 or more CHAMPUS discharges, that hospital shall be considered to 
be a higher volume hospital during Federal fiscal year 1989 and all 
subsequent fiscal years. All other hospitals and units covered by the 
CHAMPUS mental health per diem payment system shall be considered lower 
volume hospitals.
    (B) Hospitals that subsequently become higher volume hospitals. In 
any Federal fiscal year in which a hospital, including a new hospital 
(see paragraph (a)(2)(v)(C) of this section), not previously classified 
as a higher volume hospital has 25 or more CHAMPUS discharges, that 
hospital shall be considered to be a higher volume hospital during the 
next Federal fiscal year and all subsequent fiscal years. The hospital 
specific per diem amount shall be calculated in accordance with the 
provisions of paragraph (a)(2)(ii) of this section, except that the base 
period average daily charge shall be deemed to be the hospital's average 
daily charge in the year in which the hospital had 25 or more 
discharges, adjusted by the percentage change in average daily charges 
for all higher volume hospitals and units between the year in which the 
hospital had 25 or more CHAMPUS discharges and the base period. The base 
period amount, however, may not exceed the cap described in paragraph 
(a)(2)(ii)(B) of this section.
    (C) Special retrospective payment provision for new hospitals. For 
purposes of this paragraph, a new hospital is a hospital that qualifies 
for the Medicare exemption from the rate of increase ceiling applicable 
to new hospitals which are PPS-exempt psychiatric hospitals. Any new 
hospital that becomes a higher volume hospital, in addition to 
qualifying prospectively as a higher volume hospital for purposes of 
paragraph (a)(2)(v)(B) of this section, may additionally, upon 
application to the Director, OCHAMPUS, receive a retrospective 
adjustment. The retrospective adjustment shall be calculated so that the 
hospital receives the same government share payments it would have 
received had it been designated a higher volume hospital for the federal 
fiscal year in which it first had 25 or more CHAMPUS discharges and the 
preceding fiscal year (if it had any CHAMPUS patients during the 
preceding fiscal year). Such new hospitals must agree not to bill 
CHAMPUS beneficiaries for any additional costs beyond that determined 
initially.
    (D) Review of classification. Any hospital or unit which OCHAMPUS 
erroneously fails to classify as a higher volume hospital may apply to 
the Director, OCHAMPUS, or a designee, for such a classification. The 
hospital shall have the burden of proof.
    (vi) Payment for hospital based professional services. Lower volume 
hospitals and units may not bill separately for hospital based 
professional mental health services; payment for those services is 
included in the per diems. Higher volume hospitals and units, whether 
they billed CHAMPUS separately for hospital based professional mental 
health services or included those services in the hospital's billing to 
CHAMPUS, shall continue the practice in effect during the period July 1, 
1987 to May 31, 1988 (or other data base period used for calculating the 
hospital's or unit's per diem), except that any such hospital or unit 
may change its prior practice (and obtain an appropriate revision in its 
per diem) by providing to OCHAMPUS notice in accordance with procedures 
established by the Director, OCHAMPUS, or a designee.

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    (vii) Leave days. CHAMPUS shall not pay for days where the patient 
is absent on leave from the specialty psychiatric hospital or unit. The 
hospital must identify these days when claiming reimbursement. CHAMPUS 
shall not count a patients's leave of absence as a discharge in 
determining whether a facility should be classified as a higher volume 
hospital pursuant to paragraph (a)(2)(v) of this section.
    (viii) Exemptions from the CHAMPUS mental health per diem payment 
system. The following providers and procedures are exempt from the 
CHAMPUS mental health per diem payment system.
    (A) Non-specialty providers. Providers of inpatient care which are 
not either psychiatric hospitals or psychiatric specialty units as 
described in paragraph (a)(2)(i)(A) of this section are exempt from the 
CHAMPUS mental health per diem payment system. Such providers should 
refer to paragraph (a)(1) of this section for provisions pertinent to 
the CHAMPUS DRG-based payment system.
    (B) DRG 424. Admissions for operating room procedures involving a 
principal diagnosis of mental illness (services which group into DRG 
424) are exempt from the per diem payment system. They will be 
reimbursed pursuant to the provisions of paragraph (a)(3) of this 
section.
    (C) Non-mental health services. Admissions for non-mental health 
procedures in specialty psychiatric hospitals and units are exempt from 
the per diem payment system. They will be reimbursed pursuant to the 
provisions of paragraph (a)(3) of this section.
    (D) Sole community hospitals (SCHs). Prior to implementation of the 
SCH reimbursement method described in paragraph (a)(7) of this section, 
any hospital that has qualified for special treatment under the Medicare 
prospective payment system as an SCH and has not given up that 
classification is exempt.
    (E) Hospitals outside the U.S. A hospital is exempt if it is not 
located in one of the 50 states, the District of Columbia or Puerto 
Rico.
    (ix) Payment for psychiatric and substance use disorder 
rehabilitation partial hospitalization services, intensive outpatient 
psychiatric and substance use disorder services and opioid treatment 
services--(A) Per diem payments. Psychiatric and substance use disorder 
partial hospitalization services, intensive outpatient psychiatric and 
substance use disorder services and opioid treatment services authorized 
by Sec. 199.4(b)(9), (b)(10), and (b)(11), respectively, and provided 
by institutional providers authorized under Sec. 199.6(b)(4)(xii), 
(b)(4)(xviii) and (b)(4)(xix), respectively, are reimbursed on the basis 
of prospectively determined, all-inclusive per diem rates pursuant to 
the provisions of paragraphs (a)(2)(ix)(A)(1) through (3) of this 
section, with the exception of hospital-based psychiatric and substance 
use disorder and opioid services which are reimbursed in accordance with 
provisions of paragraph (a)(6)(ii) of this section and freestanding 
opioid treatment programs when reimbursed on a fee-for-service basis as 
specified in paragraph (a)(2)(ix)(A)(3)(ii) of this section. The per 
diem payment amount must be accepted as payment in full, subject to the 
outpatient cost-sharing provisions under Sec. 199.4(f), for 
institutional services provided, including board, routine nursing 
services, group therapy, ancillary services (e.g., music, dance, and 
occupational and other such therapies), psychological testing and 
assessment, overhead and any other services for which the customary 
practice among similar providers is included in the institutional 
charges, except for those services which may be billed separately under 
paragraph (a)(2)(ix)(B) of this section. Per diem payment will not be 
allowed for leave days during which treatment is not provided.
    (1) Partial hospitalization programs. For any full-day partial 
hospitalization program (minimum of 6 hours), the maximum per diem 
payment amount is 40 percent of the average inpatient per diem amount 
per case established under the TRICARE mental health per diem 
reimbursement system during the fiscal year for both high and low volume 
psychiatric hospitals and units [as defined in paragraph (a)(2) of this 
section]. Intensive outpatient services provided in a PHP setting 
lasting less than 6 hours, with a minimum of 2 hours, will be paid as 
provided in paragraph (a)(2)(ix)(A)(2) of this section.

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PHP per diem rates will be updated annually by the Medicare update 
factor used for their Inpatient Prospective Payment System.
    (2) Intensive outpatient programs. For intensive outpatient programs 
(IOPs) (minimum of 2 hours), the maximum per diem amount is 75 percent 
of the rate for a full-day partial hospitalization program as 
established in paragraph (a)(2)(ix)(A)(1) of this section. IOP per diem 
rates will be updated annually by the Medicare update factor used for 
their Inpatient Prospective Payment System.
    (3) Opioid treatment programs. Opioid treatment programs (OTPs) 
authorized by Sec. 199.4(b)(11) and provided by providers authorized 
under Sec. 199.6(b)(4)(xix) will be reimbursed based on the variability 
in the dosage and frequency of the drug being administered and in 
related supportive services.
    (i) Weekly all-inclusive per diem rate. Methadone OTPs will be 
reimbursed the lower of the billed charge or the weekly all-inclusive 
per diem rate (the weekly national all-inclusive rate adjusted for 
locality), including the cost of the drug and related services (i.e., 
the costs related to the initial intake/assessment, drug dispensing and 
screening and integrated psychosocial and medical treatment and support 
services). The bundled weekly per diem payments will be accepted as 
payment in full, subject to the outpatient cost-sharing provisions under 
Sec. 199.4(f). The methadone per diem rate for OTPs will be updated 
annually by the Medicare update factor used for their Inpatient 
Prospective Payment System.
    (ii) Exceptions to per diem reimbursement. When providing other 
medications which are more likely to be prescribed and administered in 
an office-based opioid treatment setting, but which are still available 
for treatment of substance use disorders in an outpatient treatment 
program setting, OTPs will be reimbursed on a fee-for-service basis 
(i.e., separate payments will be allowed for both the medication and 
accompanying support services), subject to the outpatient cost-sharing 
provisions under Sec. 199.4(f). OTPs' rates will be updated annually by 
the Medicare update factor used for their Inpatient Prospective Payment 
System.
    (iii) Discretionary authority. The Director, TRICARE, will have 
discretionary authority in establishing the reimbursement methodologies 
for new drugs and biologicals that may become available for the 
treatment of substance use disorders in OTPs. The type of reimbursement 
(e.g., fee-for-service versus bundled per diem payments) will be 
dependent on the variability of the dosage and frequency of the 
medication being administered, as well as the support services.
    (B) Services which may be billed separately. Psychotherapy sessions 
and non-mental health related medical services not normally included in 
the evaluation and assessment of PHP, IOP or OTPs, provided by 
authorized independent professional providers who are not employed by, 
or under contract with, PHP, IOP or OTPs for the purposes of providing 
clinical patient care are not included in the per diem rate and may be 
billed separately. This includes ambulance services when medically 
necessary for emergency transport.
    (3) Reimbursement for inpatient services provided by a CAH. (i) For 
admissions on or after December 1, 2009, inpatient services provided by 
a CAH, other than services provided in psychiatric and rehabilitation 
distinct part units, shall be reimbursed at allowable cost (i.e., 101 
percent of reasonable cost) under procedures, guidelines, and 
instructions issued by the Director, DHA, or designee. This does not 
include any costs of physicians' services or other professional services 
provided to CAH inpatients. Inpatient services provided in psychiatric 
distinct part units would be subject to the TRICARE mental health 
payment system. Inpatient services provided in rehabilitation distinct 
part units would be subject to billed charges. Upon implementation of 
TRICARE's IRF PPS, inpatient services provided in rehabilitation 
distinct part units would be subject to the TRICARE IRF PPS methodology 
in paragraph (a)(10) of this section.
    (ii) The percentage amount stated in paragraph (a)(3)(i) of this 
section is subject to possible upward adjustment based on a inpatient 
GTMCPA for TRICARE network hospitals deemed essential for military 
readiness and

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support during contingency operations under paragraph (a)(8) of this 
section.
    (4) The allowable cost for authorized care in all hospitals not 
subject to the TRICARE DRG-based payment system, the TRICARE mental 
health per-diem system, the TRICARE reasonable cost method for CAHs, the 
TRICARE reimbursement rules for SCHs, the TRICARE LTCH-PPS, or the 
TRICARE IRF PPS shall be determined on the basis of billed charges or 
set rates.
    (i) The actual charge for such service made to the general public; 
or
    (ii) The allowed charge applicable to the policyholders or 
subscribers of the CHAMPUS fiscal intermediary for comparable services 
under comparable circumstances, when extended to CHAMPUS beneficiaries 
by consent or agreement; or
    (iii) The allowed charge applicable to the citizens of the community 
or state as established by local or state regulatory authority, 
excluding title XIX of the Social Security Act or other welfare program, 
when extended to CHAMPUS beneficiaries by consent or agreement.
    (5) CHAMPUS discount rates. The CHAMPUS-determined allowable cost 
for authorized care in any hospital may be based on discount rates 
established under paragraph (l) of this section.
    (6) Hospital outpatient services. This paragraph (a)(6) identifies 
and clarifies payment methods for certain outpatient services, including 
emergency services, provided by hospitals.
    (i) Outpatient Services Not Subject to Hospital Outpatient 
Prospective Payment System (OPPS). The following are payment methods for 
outpatient services that are either provided in an OPPS exempt hospital 
or paid outside the OPPS payment methodology under existing fee 
schedules or other prospectively determined rates in a hospital subject 
to OPPS reimbursement.
    (A) Laboratory services. TRICARE payments for hospital outpatient 
laboratory services including clinical laboratory services are based on 
the allowable charge method under paragraph (j)(1) of the section. In 
the case of laboratory services for which the CMAC rates are established 
under that paragraph, a payment rate for the technical component of the 
laboratory services is provided. Hospital charges for an outpatient 
laboratory service are reimbursed using the CMAC technical component 
rate.
    (B) Rehabilitation therapy services. Rehabilitation therapy services 
provided on an outpatient basis by hospitals are paid on the same basis 
as rehabilitation therapy services covered by the allowable charge 
method under paragraph (j)(1) of this section.
    (C) Venipuncture. Routine venipuncture services provided on an 
outpatient basis by hospitals are paid on the same basis as such 
services covered by the allowable charge method under paragraph (j)(1) 
of this section. Routine venipuncture services provided on an outpatient 
basis by institutional providers other than hospitals are also paid on 
this basis.
    (D) Radiology services. TRICARE payments for hospital outpatient 
radiology services are based on the allowable charge method under 
paragraph (j)(1) of the section. In the case of radiology services for 
which the CMAC rates are established under that paragraph, a payment 
rate for the technical component of the radiology services is provided. 
Hospital charges for an outpatient radiology service are reimbursed 
using the CMAC technical component rate.
    (E) Diagnostic services. TRICARE payments for hospital outpatient 
diagnostic services are based on the allowable charge method under 
paragraph (j)(1) of the section. In the case of diagnostic services for 
which the CMAC rates are established under that paragraph, a payment 
rate for the technical component of the diagnostic services is provided. 
Hospital charges for an outpatient diagnostic service are reimbursed 
using the CMAC technical component rate.
    (F) Ambulance services. Ambulance services provided on an outpatient 
basis by hospitals are paid on the same basis as ambulance services 
covered by the allowable charge method under paragraph (j)(1) of this 
section.
    (G) Durable medical equipment (DME) and supplies. Durable medical 
equipment and supplies provided on an outpatient basis by hospitals are 
paid on the same basis as durable medical equipment and supplies covered 
by the

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allowable charge method under paragraph (j)(1) of this section.
    (H) Oxygen and related supplies. Oxygen and related supplies 
provided on an outpatient basis by hospitals are paid on the same basis 
as oxygen and related supplies covered by the allowable charge method 
under paragraph (j)(1) of this section.
    (I) Drugs administered other than by oral method. Drugs administered 
other than by oral method provided on an outpatient basis by hospitals 
are paid on the same basis as drugs administered other than by oral 
method covered by the allowable charge method under paragraph (j)(1) of 
this section.
    (J) Professional provider services. TRICARE payments for hospital 
outpatient professional provider services rendered in an emergency room, 
clinic, or hospital outpatient department, etc., are based on the 
allowable charge method under paragraph (j)(1) of the section. In the 
case of professional services for which the CMAC rates are established 
under that paragraph, a payment rate for the professional component of 
the services is provided. Hospital charges for an outpatient 
professional service are reimbursed using the CMAC professional 
component rate. If the professional outpatient hospital services are 
billed by a professional provider group, not by the hospital, no payment 
shall be made to the hospital for these services.
    (K) Facility charges. TRICARE payments for hospital outpatient 
facility charges that would include the overhead costs of providing the 
outpatient service would be paid as billed. For the definition of 
facility charge, see Sec. 199.2(b).
    (L) Ambulatory surgery services. Hospital outpatient ambulatory 
surgery services shall be paid in accordance with Sec. 199.14(d).
    (ii) Outpatient services subject to OPPS--(A) General. Outpatient 
services provided in hospitals subject to Medicare OPPS as specified in 
42 CFR 413.65 and 42 CFR 419.20 will be paid in accordance with the 
provisions outlined in sections 1833t of the Social Security Act and its 
implementing Medicare regulation (42 CFR part 419) subject to exceptions 
as authorized by this paragraph (a)(6)(ii).
    (B) Under the above governing provisions, TRICARE will recognize to 
the extent practicable, in accordance with 10 U.S.C. 1089(j)(2), 
Medicare's OPPS reimbursement methodology to include specific coding 
requirements, ambulatory payment classifications (APCs), nationally 
established APC amounts and associated adjustments (e.g., discounting 
across geographical regions and outlier calculations).
    (C) While TRICARE intends to remain as true as possible to 
Medicare's basic OPPS methodology, there will be some deviations 
required to accommodate TRICARE's unique benefit structure and 
beneficiary population as authorized under the provisions of 10 U.S.C. 
1079(j)(2).
    (D) TRICARE is also authorized to deviate from Medicare's basic OPPS 
methodology to establish special reimbursement methods, amounts, and 
procedures to encourage use of high-value products and discourage use of 
low-value products with respect to pharmaceutical agents provided as 
part of medical services from authorized providers. Therefore, drugs 
administered other than oral method provided on an outpatient basis by 
hospitals are paid on the same basis as drugs administered other than 
oral method covered by the allowable charge method under paragraph 
(j)(1) of this section.
    (E) Temporary transitional payment adjustments (TTPAs). Temporary 
transitional payment adjustments will be in place for all hospitals, 
both network and non-network, in order to buffer the initial decline in 
payments upon implementation of TRICARE's OPPS.
    (1) For network hospitals. The temporary transitional payment 
adjustments will cover a four-year period. The four-year transition will 
set higher payment percentages for the ten Ambulatory Payment 
Classification (APC) codes 604-609 and 613-616, with reductions in each 
of the transition years. For non-network hospitals, the adjustments will 
cover a three year period, with reductions in each of the transition 
years. For network hospitals, under the TTPAs, the APC payment level for 
the five clinic visit APCs would be set at 175 percent of the Medicare 
APC level, while the five ER visit APCs would be increased by 200 
percent

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in the first year of OPPS implementation. In the second year, the APC 
payment levels would be set at 150 percent of the Medicare APC level for 
clinic visits and 175 percent for ER APCs. In the third year, the APC 
visit amounts would be set at 130 percent of the Medicare APC level for 
clinic visits and 150 percent for ER APCs. In the fourth year, the APC 
visit amounts would be set at 115 percent of the Medicare APC level for 
clinic visits and 130 percent for ER APCs. In the fifth year, the 
TRICARE and Medicare payment levels for the 10 APC visit codes would be 
identical.
    (2) For non-network hospitals. Under the TTPAs, the APC payment 
level for the five clinic and ER visit APCs would be set at 140 percent 
of the Medicare APC level in the first year of OPPS implementation. In 
the second year, the APC payment levels would be set at 125 percent of 
the Medicare APC level for clinic and ER visits. In the third year, the 
APC visit amounts would be set at 110 percent of the Medicare APC level 
for clinic and ER visits. In the fourth year, the TRICARE and Medicare 
payment levels for the 10 APC visit codes would be identical.
    (3) An additional temporary military contingency payment adjustment 
(TMCPA) will also be available at the discretion of the Director, 
Defense Health Agency (DHA), or a designee, at any time after 
implementation to adopt, modify and/or extend temporary adjustments to 
OPPS payments for TRICARE network hospitals deemed essential for 
military readiness and deployment in time of contingency operations. Any 
TMCPAs to OPPS payments shall be made only on the basis of a 
determination that it is impracticable to support military readiness or 
contingency operations by making OPPS payments in accordance with the 
same reimbursement rules implemented by Medicare. The criteria for 
adopting, modifying, and/or extending deviations and/or adjustments to 
OPPS payments shall be issued through TRICARE policies, instructions, 
procedures and guidelines as deemed appropriate by the Director, DHA, or 
a designee. TMCPAs may also be extended to non-network hospitals on a 
case-by-case basis for specific procedures where it is determined that 
the procedures cannot be obtained timely enough from a network hospital. 
For such case-by-case extensions, ``Temporary'' might be less than three 
years at the discretion of the DHA Director, or designee.
    (iii) Outpatient Services Subject to CAH Reasonable Cost Method. For 
services on or after December 1, 2009, outpatient services provided by a 
CAH, shall be reimbursed at 101 percent of reasonable cost. This does 
not include any costs of physician services or other professional 
services provided to CAH outpatients.
    (iv) CAH Ambulance Services. Effective for services provided on or 
after December 1, 2009, payment for ambulance services furnished by a 
CAH or an entity that is owned and operated by a CAH is the reasonable 
costs of the CAH or the entity in furnishing those services, but only if 
the CAH or the entity is the only provider or supplier of ambulance 
services located within a 35-mile drive of the CAH or the entity as 
specified under 42 CFR part 413.70(b)(5)(ii).
    (7) Reimbursement for inpatient services provided by an SCH. (i) In 
accordance with 10 U.S.C. 1079(j)(2), TRICARE payment methods for 
institutional care shall be determined, to the extent practicable, in 
accordance with the same reimbursement rules as those that apply to 
payments to providers of services of the same type under Medicare. 
TRICARE's SCH reimbursements approximate Medicare's for SCHs. Inpatient 
services provided by an SCH, other than services provided in psychiatric 
and rehabilitation distinct part units, shall be reimbursed through a 
two-step process.
    (ii) The first step referred to in paragraph (a)(7)(i) of this 
section will be to calculate the TRICARE allowable cost by multiplying 
the applicable TRICARE percentage by the billed charge amount on each 
institutional inpatient claim. The applicable TRICARE percentage is the 
greater of: the SCH's most recently available cost-to-charge ratio (CCR) 
from the Centers for Medicare and Medicaid Services' (CMS') inpatient 
Provider Specific File (after the ratio has been converted to a 
percentage), or the TRICARE allowed-to-billed ratio, defined as the 
ratio of

[[Page 301]]

the TRICARE allowed amounts (including discounts) to the amount of 
billed charges for TRICARE inpatient admissions at the SCH in FY 2012 
(after it has been converted to a percentage). The TRICARE allowed-to-
billed ratio in FY 2012 shall be reduced as follows (after the ratio has 
been converted to a percentage):
    (A) In the first year of implementation, 10 percentage points for 
network SCHs and 15 percentage points for non-network SCHs.
    (B) In the second year of implementation, 20 percentage points for 
network SCHs and 30 percentage points for non-network SCHs.
    (C) In the third year of implementation, 30 percentage points for 
network SCHs and 45 percentage points for non-network SCHs.
    (D) In the fourth year of implementation, 40 percentage points for 
network SCHs and 60 percentage points for non-network SCHs.
    (E) In the fifth year of implementation, 50 percentage points for 
network SCHs and 75 percentage points for non-network SCHs.
    (F) In the sixth year of implementation, 60 percentage points for 
network SCHs and 90 percentage points for non-network SCHs.
    (G) In the seventh year of implementation, 70 percentage points for 
network SCHs and 100 percentage points for non-network SCHs.
    (H) In the eighth year of implementation, 80 percentage points for 
network SCHs and 100 percentage points for non-network SCHs.
    (I) In the ninth year of implementation, 90 percentage points for 
network SCHs and 100 percentage points for non-network SCHs.
    (J) In the tenth year of implementation, 100 percentage points for 
network SCHs and 100 percentage points for non-network SCHs.
    (iii) The second step referred to in paragraph (a)(7)(i) of this 
section is a year-end adjustment. The year-end adjustment will compare 
the aggregate allowable costs over a 12-month period under paragraph 
(a)(7)(ii) of this section to the aggregate amount that would have been 
allowed for the same care using the TRICARE DRG-method (under paragraph 
(a)(1) of this section). In the event that the DRG method amount is the 
greater, the year-end adjustment will be the amount by which it exceeds 
the aggregate allowable costs. In addition, the year-end adjustment also 
may incorporate a possible upward adjustment for inpatient services 
based on a GTMCPA for TRICARE network hospitals under paragraph (a)(8) 
of this section.
    (iv) At the end of an SCH's transition period, when the SCH reaches 
its Medicare CCR, a special allowable cost shall be applicable for 
discharges that group to inpatient nursery and labor/delivery DRGs. For 
these discharges, instead of using the percentage of the SCH's Medicare 
cost-to-charge ratio (as described in paragraph (a)(7)(ii) of this 
section), the percentage will be 130 percent of the Medicare CCR.
    (v) The SCH reimbursement provisions of paragraphs (a)(7)(i) through 
(iv) of this section do not apply to any costs of physician services or 
other professional services provided to SCH inpatients (which are 
subject to individual provider payment provisions of this section), 
inpatient services provided in psychiatric distinct part units (which 
are subject to the CHAMPUS mental health per-diem payment system), or 
inpatient services provided in rehabilitation distinct part units (which 
are reimbursed on the basis of billed charges or set rates).
    (vi) The SCH payment system under this paragraph (a)(7) applies to 
hospitals classified by CMS as Essential Access Community Hospitals 
(EACHs).
    (vii) The SCH payment system under this paragraph (a)(7) does not 
apply to hospitals in States that are paid by Medicare and TRICARE under 
a cost containment waiver.
    (8) General temporary military contingency payment adjustment for 
SCHs and CAHs. (i) Payments under paragraph (a) of this section for 
inpatient services provided by SCHs and CAHs may be supplemented by a 
GTMCPA. This is a year-end discretionary, temporary adjustment that the 
TMA Director may approve based on all the following criteria:
    (A) The hospital serves a disproportionate share of ADSMs and ADDs;
    (B) The hospital is a TRICARE network hospital;

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    (C) The hospital's actual costs for inpatient services exceed 
TRICARE payments or other extraordinary economic circumstance exists; 
and,
    (D) Without the GTMCPA, DoD's ability to meet military contingency 
mission requirements will be significantly compromised.
    (ii) Policy and procedural instructions implementing the GTMCPA will 
be issued as deemed appropriate by the Director, TMA, or a designee. As 
with other discretionary authority under this Part, a decision to allow 
or deny a GTMCPA to a hospital is not subject to the appeal and hearing 
procedures of Sec. 199.10.
    (9) Reimbursement for inpatient services provided by a Long Term 
Care Hospital (LTCH). (i) In accordance with 10 U.S.C. 1079(i)(2), 
TRICARE payment methods for institutional care shall be determined, to 
the extent practicable, in accordance with the same reimbursement rules 
as those that apply to payments to providers of services of the same 
type under Medicare. The TRICARE-LTC-DRG reimbursement methodology shall 
be in accordance with Medicare's Medicare Severity Long Term Care 
Diagnosis Related Groups (MS-LTC-DRGs) as found in regulation at 42 CFR 
part 412, subpart O. Inpatient services provided in hospitals subject to 
the Medicare LTCH Prospective Payment System (PPS) and classified as 
LTCHs and also as specified in 42 CFR parts 412 and 413 will be paid in 
accordance with the provisions outlined in sections 1886(d)(1)(B)(IV) 
and 1886(m)(6) of the Social Security Act and its implementing Medicare 
regulation (42 CFR parts 412, 413, and 170) to the extent practicable. 
Under the above governing provisions, TRICARE will recognize, to the 
extent practicable, in accordance with 10 U.S.C. 1079(i)(2), Medicare's 
LTCH PPS methodology to include the relative weights, inpatient 
operating and capital costs of furnishing covered services (including 
routine and ancillary services), interrupted stay policy, short-stay and 
high cost outlier payments, site-neutral payments, wage adjustments for 
variations in labor-related costs across geographical regions, cost-of-
living adjustments, payment adjustments associated with the quality 
reporting program, method of payment for preadmission services, and 
updates to the system. TRICARE will not be adopting Medicare's 25 
percent threshold payment adjustment.
    Note to paragraph (a)(9)(i): LTCH admissions that are in response to 
the COVID-19 declared PHE and occur during the COVID-19 PHE period will 
be reimbursed the LTCH PPS standard Federal rate.
    (ii) Implementation of the TRICARE LTCH PPS will include a gradual 
transition to full implementation of the Medicare LTCH PPS rates as 
follows:
    (A) For the first 12 months following implementation, the TRICARE 
LTCH PPS allowable cost will be 135 percent of Medicare LTCH PPS 
amounts.
    (B) For the second 12 months of implementation, TRICARE LTCH PPS 
allowable cost will be 115 percent of the Medicare LTCH PPS amounts.
    (C) For the third 12 months of implementation, and subsequent years, 
TRICARE LTCH PPS allowable cost will be 100 percent of the Medicare LTCH 
PPS amounts.
    (iii) Exemption. The TRICARE LTCH PPS methodology under this 
paragraph does not apply to hospitals in States that are reimbursed by 
Medicare and TRICARE under a waiver that exempts them from Medicare's 
inpatient prospective payment system or the TRICARE DRG-based payment 
system, to Children's Hospitals, or to Neoplastic Disease Care 
Hospitals, respectively.
    (10) Reimbursement for inpatient services provided by Inpatient 
Rehabilitation Facilities (IRF). (i) In accordance with 10 U.S.C. 
1079(i)(2), TRICARE payment methods for institutional care shall be 
determined to the extent practicable, in accordance with the same 
reimbursement rules as those that apply to payments to providers of 
services of the same type under Medicare. The TRICARE IRF PPS 
reimbursement methodology shall be in accordance with Medicare's IRF PPS 
as found in 42 CFR part 412. Inpatient services provided in IRFs subject 
to the Medicare IRF prospective payment system (PPS) and classified as 
IRFs and also as specified in 42 CFR 412.604 will be paid in accordance 
with the provisions outlined in section 1886(j) of the Social Security 
Act and its implementing Medicare regulation found at 42 CFR part 412, 
subpart P to the extent practicable.

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Under the above governing provisions, TRICARE will recognize, to the 
extent practicable, in accordance with 10 U.S.C. 1079(i)(2), Medicare's 
IRF PPS methodology to include the relative weights, payment rates 
covering all operating and capitals costs of furnishing rehabilitative 
services adjusted for wage variations in labor-related costs across 
geographical regions, adjustments for the 60 percent compliance 
threshold, teaching adjustment, rural adjustment, high-cost outlier 
payments, low income payment adjustment, payment adjustments associated 
with the quality reporting program, and updates to the system.
    (ii) Implementation of the TRICARE IRF PPS will include a gradual 
transition to full implementation of the Medicare IRF PPS rates as 
follows:
    (A) For the first 12 months of implementation, the TRICARE IRF PPS 
allowable cost will be 135 percent of Medicare IRF PPS amounts.
    (B) For the second 12 months of implementation, the TRICARE IRF PPS 
allowable cost will be 115 percent of the Medicare IRF PPS amounts.
    (C) For the third 12 months of implementation, and subsequent years, 
the TRICARE IRF PPS allowable cost will be 100 percent of the Medicare 
IRF PPS amounts.
    (iii) The IRF PPS allowable cost in paragraph (a)(10)(ii) of this 
section may be supplemented by an inpatient general temporary military 
contingency payment adjustment (GTMCPA) for TRICARE authorized IRFs.
    (A) This is a year-end discretionary, temporary adjustment that the 
Director, DHA (or designee) may approve based on the following criteria:
    (1) The IRF serves a disproportionate share of ADSMs and ADDs;
    (2) The IRF is a TRICARE network hospital;
    (3) The IRF's actual costs for inpatient services exceed TRICARE 
payments or other extraordinary economic circumstance exists; and
    (4) Without the GTMCPA, DoD's ability to meet military contingency 
mission requirements will be significantly compromised.
    (B) Policy and procedural instructions implementing the GTMCPA will 
be issued as deemed appropriate by the Director, DHA (or designee). As 
with other discretionary authority under this part, a decision to allow 
or deny a GTMCPA to an IRF is not subject to the appeal and hearing 
procedures of Sec. 199.10.
    (iv) Exemption. The TRICARE IRF PPS methodology under this paragraph 
does not apply to hospitals in States that are reimbursed by Medicare 
and TRICARE under a waiver that exempts them from Medicare's inpatient 
prospective payment system or the TRICARE DRG-based payment system, to 
Children's hospitals, or to VA hospitals, respectively.
    (b) Skilled nursing facilities (SNFs)--(1) Use of Medicare 
prospective payment system and rates. TRICARE payments to SNFs are 
determined using the same methods and rates used under the Medicare 
prospective payment system for SNFs under 42 CFR part 413, subpart J, 
except for children under age ten. SNFs receive a per diem payment of a 
predetermined Federal payment rate appropriate for the case based on 
patient classification (using the RUG classification system), urban or 
rural location of the facility, and area wage index.
    (2) Payment in full. The SNF payment rates represent payment in full 
(subject to any applicable beneficiary cost shares) for all costs 
(routine, ancillary, and capital-related) associated with furnishing 
inpatient SNF services to TRICARE beneficiaries other than costs 
associated with operating approved educational activities.
    (3) Education costs. Costs for approved educational activities shall 
be subject to separate payment under procedures established by the 
Director, TRICARE Management Activity. Such procedures shall be similar 
to procedures for payments for direct medical education costs of 
hospitals under paragraph (a)(1)(iii)(G)(2) of this section.
    (4) Resident assessment data. SNFs are required to submit the same 
resident assessment data as is required under the Medicare program. (The 
residential assessment is addressed in the Medicare regulations at 42 
CFR 483.20.) SNFs must submit assessments according to an assessment 
schedule. This schedule must include performance of patient assessments 
on the 5th, 14th,

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and 30th days of SNF care and at each successive 30 day interval of SNF 
admissions that are longer than 30 days. It must also include such other 
assessments that are necessary to account for changes in patient care 
needs. TRICARE pays a default rate for the days of a patient's care for 
which the SNF has failed to comply with the assessment schedule.
    (c) Reimbursement of Freestanding End Stage Renal Disease (ESRD) 
facilities. (1) This paragraph (c)(1) establishes payment methods for 
dialysis provided by TRICARE authorized freestanding ESRD facilities. 
TRICARE shall reimburse a single, flat, per-session fee to TRICARE 
authorized freestanding ESRD facilities rendering hemodialysis or 
peritoneal dialysis for treatment of ESRD or AKI. The flat, per-session 
fee will apply to renal dialysis services furnished in the ESRD facility 
or in a patient's home. All renal dialysis items and services furnished 
in the ESRD facility or in a patient's home are included in the flat 
per-session rate, except for those items and services listed in 
paragraph (c)(1)(ii) of this section.
    (i) Services included in the flat per-session rate must be furnished 
by an authorized TRICARE ESRD institutional provider:
    (A) Institutional charges (e.g., charges for facility use, use or 
treatment rooms, and general nursing services);
    (B) Routine laboratory services related to the dialysis session;
    (C) Pharmaceuticals and supplies related to the dialysis;
    (D) Home dialysis support services identified at 42 CFR 494.100;
    (E) Purchase and delivery of all necessary home dialysis supplies; 
and
    (F) Dialysis training for days 1-120.
    (ii) Services which may be billed separately:
    (A) Evaluation and management services provided by authorized 
individual professional providers. These services will continue to be 
reimbursed using existing reimbursement systems (e.g., CMAC).
    (B) Drugs, supplies, and devices listed by Medicare as eligible for 
Transitional Drug Add-on Payment Adjustment and Transitional Add-on 
Payment Adjustment for New and Innovative Equipment and Supplies under 
the Medicare ESRD PPS. These services will continue to be reimbursed 
using existing reimbursement systems (e.g., CMAC).
    (C) Professional services, supplies, and pharmaceuticals unrelated 
to dialysis care (e.g., if a flu shot is administered at the same time 
as dialysis treatment). These services will continue to be reimbursed 
using existing reimbursement systems (e.g., CMAC).
    (iii) Establishment of the flat rate:
    (A) Per session rate for treatment days 1-120. The flat, per-session 
rate shall be equal to the current Medicare base rate, multiplied by the 
current Medicare adjustment factor applied to individuals aged 44-69 (7% 
for CY 22), and further multiplied by the current Medicare adjustment 
factor for the date of onset (32.7% for CY 2022). The Medicare factors 
utilized in subsequent years will be based on modifications made under 
42 CFR part 413, subpart H, Medicare ESRD PPS.
    (B) Per session rate for treatment day 121 and beyond. The flat, 
per-session rate shall be equal to the Medicare base rate, multiplied by 
the Medicare adjustment factor applied to individuals aged 44-69. The 
Medicare factors utilized in subsequent years will be based on 
modifications made under 42 CFR part 413, subpart H, Medicare ESRD PPS.
    (C) Wage adjustment. The per-session rates in paragraphs 
(c)(1)(iii)(A) and (B) of this section shall be wage adjusted using the 
wage adjustment factors and labor-related shares published in the most 
recent Medicare ESRD Final Rule at the time the annual per-session rates 
are posted.
    (D) Annual updates. The per session rates will be updated within 90 
days of publication of new Medicare base rates, and published to the 
TRICARE website at www.health.mil.
    (E) Dialysis training. To account for training services and 
supplies, dialysis training sessions will receive a home dialysis 
training add-on payment for day treatment days 121 and after. The 
training add-on payment will not apply to treatment days 1-120, as the 
onset adjustment factor of 32.7% is applied to the per-session rate for 
treatment days 1-120.

[[Page 305]]

    (2) The reimbursement methods established in paragraph (c)(1) of 
this section applies to freestanding ESRD facilities meeting the 
requirements established for TRICARE authorized freestanding ESRD 
facilities in Sec. 199.6. For purposes of cost-sharing and copayments, 
treatment provided by freestanding ESRD facilities are considered 
outpatient specialty visits. The applicable copayments and cost-shares 
described in Sec. Sec. 199.4 and 199.17(k)(2)(iii) shall apply. 
Hospital-based ESRD facilities are not subject to the provisions of this 
paragraph, and will continue to be reimbursed utilizing other applicable 
reimbursement systems (e.g., the Outpatient Prospective Payment System).
    (d) Payment of institutional facility costs for ambulatory surgery--
(1) In general. CHAMPUS pays institutional facility costs for ambulatory 
surgery on the basis of prospectively determined amounts, as provided in 
this paragraph, with the exception of ambulatory surgery procedures 
performed in hospital outpatient departments or in CAHs, which are to be 
reimbursed in accordance with the provisions of paragraph (a)(6)(ii) or 
(a)(6)(iii) respectively, of this section. This payment method is 
similar to that used by the Medicare program for ambulatory surgery. 
This paragraph applies to payment for freestanding ambulatory surgical 
centers. It does not apply to professional services. A list of 
ambulatory surgery procedures subject to the payment method set forth in 
the paragraph shall be published periodically by the Director, TRICARE 
Management Activity (TMA). Payment to freestanding ambulatory surgery 
centers is limited to these procedures.
    (2) Payment in full. The payment provided for under this paragraph 
is the payment in full for services covered by this paragraph. 
Facilities may not charge beneficiaries for amounts, if any, in excess 
of the payment amounts determined pursuant to this paragraph.
    (3) Calculation of standard payment rates. Standard payment rates 
are calculated for groups of procedures under the following steps:
    (i) Step 1: Calculate a median standardized cost for each procedure. 
For each ambulatory surgery procedure, a median standardized cost will 
be calculated on the basis of all ambulatory surgery charges nationally 
under CHAMPUS during a recent one-year base period. The steps in this 
calculation include standardizing for local labor costs by reference to 
the same wage index and labor/non-labor-related cost ratio as applies to 
the facility under Medicare, applying a cost-to-charge ratio, 
calculating a median cost for each procedure, and updating to the year 
for which the payment rates will be in effect by the Consumer Price 
Index-Urban. In applying a cost-to-charge ratio, the Medicare cost-to-
charge ratio for freestanding ambulatory surgery centers (FASCs) will be 
used for all charges from FASCs, and the Medicare cost-to-charge ratio 
for hospital outpatient settings will be used for all charges from 
hospitals.
    (ii) Step 2: Grouping procedures. Procedures will then be placed 
into one of ten groups by their median per procedure cost, starting with 
$0 to $299 for group 1 and ending with $1000 to $1299 for group 9 and 
$1300 and above for group 10, with groups 2 through 8 set on the basis 
of $100 fixed intervals.
    (iii) Step 3: Adjustments to groups. The Director, OCHAMPUS may make 
adjustments to the groupings resulting from step 2 to account for any 
ambulatory surgery procedures for which there were insufficient data to 
allow a grouping or to correct for any anomalies resulting from data or 
statistical factors or other special factors that fairness requires be 
specially recognized. In making any such adjustments, the Director may 
take into consideration the placing of particular procedures in the 
ambulatory surgery groups under Medicare.
    (iv) Step 4: standard payment amount per group. The standard payment 
amount per group will be the volume weighted median per procedure cost 
for the procedures in that group. For cases in which the standard 
payment amount per group exceeds the CHAMPUS-determined inpatient 
allowable amount, the Director, TSO or his designee, may make 
adjustments.
    (v) Step 5: Actual payments. Actual payment for a procedure will be 
the standard payment amount for the

[[Page 306]]

group which covers that procedure, adjusted for local labor costs by 
reference to the same labor/non-labor- related cost ratio and hospital 
wage index as used for ambulatory surgery centers by Medicare.
    (4) Multiple procedures. In cases in which authorized multiple 
procedures are performed during the same operative session, payment 
shall be based on 100 percent of the payment amount for the procedure 
with the highest ambulatory surgery payment amount, plus, for each other 
procedure performed during the session, 50 percent of its payment 
amount.
    (5) Annual updates. The standard payment amounts will be updated 
annually by the same update factor as is used in the Medicare annual 
updates for ambulatory surgery center payments.
    (6) Recalculation of rates. The Director, OCHAMPUS may periodically 
recalculate standard payment rates for ambulatory surgery using the 
steps set forth in paragraph (d)(3) of this section.
    (e) Reimbursement of Birthing Centers. (1) Reimbursement for 
maternity care and childbirth services furnished by an authorized 
birthing center shall be limited to the lower of the CHAMPUS established 
all-inclusive rate or the center's most-favored all-inclusive rate.
    (2) The all-inclusive rate shall include the following to the extent 
that they are usually associated with a normal pregnancy and childbirth: 
Laboratory studies, prenatal management, labor management, delivery, 
post-partum management, newborn care, birth assistant, certified nurse-
midwife professional services, physician professional services, and the 
use of the facility.
    (3) The CHAMPUS established all-inclusive rate is equal to the sum 
of the CHAMPUS area prevailing professional charge for total obstetrical 
care for a normal pregnancy and delivery and the sum of the average 
CHAMPUS allowable institutional charges for supplies, laboratory, and 
delivery room for a hospital inpatient normal delivery. The CHAMPUS 
established all-inclusive rate areas will coincide with those 
established for prevailing professional charges and will be updated 
concurrently with the CHAMPUS area prevailing professional charge 
database.
    (4) Extraordinary maternity care services, when otherwise 
authorized, may be reimbursed at the lesser of the billed charge or the 
CHAMPUS allowable charge.
    (5) Reimbursement for an incomplete course of care will be limited 
to claims for professional services and tests where the beneficiary has 
been screened but rejected for admission into the birthing center 
program, or where the woman has been admitted but is discharged from the 
birthing center program prior to delivery, adjudicated as individual 
professional services and items.
    (6) The beneficiary's share of the total reimbursement to a birthing 
center is limited to the cost-share amount plus the amount billed for 
non-covered services and supplies.
    (f) Reimbursement of Residential Treatment Centers. The CHAMPUS rate 
is the per diem rate that CHAMPUS will authorize for all mental health 
services rendered to a patient and the patient's family as part of the 
total treatment plan submitted by a CHAMPUS-approved RTC, and approved 
by the Director, OCHAMPUS, or designee.
    (1) The all-inclusive per diem rate for RTCs operating or 
participating in CHAMPUS during the base period of July 1, 1987, through 
June 30, 1988, will be the lowest of the following conditions:
    (i) The CHAMPUS rate paid to the RTC for all-inclusive services as 
of June 30, 1988, adjusted by the Consumer Price Index--Urban (CPI-U) 
for medical care as determined applicable by the Director, OCHAMPUS, or 
designee; or
    (ii) The per diem rate accepted by the RTC from any other agency or 
organization (public or private) that is high enough to cover one-third 
of the total patient days during the 12-month period ending June 30, 
1988, adjusted by the CPI-U; or

    Note: The per diem rate accepted by the RTC from any other agency or 
organization includes the rates accepted from entities such as 
Government contractors in CHAMPUS demonstration projects.

    (iii) An OCHAMPUS determined capped per diem amount not to exceed 
the 80th percentile of all established

[[Page 307]]

CHAMPUS RTC rates nationally, weighted by total CHAMPUS days provided at 
each rate during the base period discussed in paragraph (f)(1) of this 
section.
    (2) The all-inclusive per diem rates for RTCs which began operation 
after June 30, 1988, or began operation before July 1, 1988, but had 
less than 6 months of operation by June 30, 1988, will be calculated 
based on the lower of the per diem rate accepted by the RTC that is high 
enough to cover one-third of the total patient days during its first 6 
to 12 consecutive months of operation, or the CHAMPUS determined capped 
amount. Rates for RTCs beginning operation prior to July 1, 1988, will 
be adjusted by an appropriate CPI-U inflation factor for the period 
ending June 30, 1988. A period of less than 12 months will be used only 
when the RTC has been in operation for less than 12 months. Once a full 
12 months is available, the rate will be recalculated.
    (3) For care on or after April 6, 1995, the per diem amount may not 
exceed a cap of the 70th percentile of all established Federal fiscal 
year 1994 RTC rates nationally, weighted by total CHAMPUS days provided 
at each rate during the first half of Federal fiscal year 1994, and 
updated to FY95. For Federal fiscal years 1996 and 1997, the cap shall 
remain unchanged. For Federal fiscal years after fiscal year 1997, the 
cap shall be adjusted by the Medicare update factor for hospitals and 
units exempt from the Medicare prospective payment system.
    (4) All educational costs, whether they include routine education or 
special education costs, are excluded from reimbursement except when 
appropriate education is not available from, or not payable by, a 
cognizant public entity.
    (i) The RTC shall exclude educational costs from its daily costs.
    (ii) The RTC's accounting system must be adequate to assure CHAMPUS 
is not billed for educational costs.
    (iii) The RTC may request payment of educational costs on an 
individual case basis from the Director, OCHAMPUS, or designee, when 
appropriate education is not available from, or not payable by, a 
cognizant public entity. To qualify for reimbursement of educational 
costs in individual cases, the RTC shall comply with the application 
procedures established by the Director, OCHAMPUS, or designee, 
including, but not limited to, the following:
    (A) As part of its admission procedures, the RTC must counsel and 
assist the beneficiary and the beneficiary's family in the necessary 
procedures for assuring their rights to a free and appropriate public 
education.
    (B) The RTC must document any reasons why an individual beneficiary 
cannot attend public educational facilities and, in such a case, why 
alternative educational arrangements have not been provided by the 
cognizant public entity.
    (C) If reimbursement of educational costs is approved for an 
individual beneficiary by the Director, OCHAMPUS, or designee, such 
educational costs shall be shown separately from the RTC's daily costs 
on the CHAMPUS claim. The amount paid shall not exceed the RTC's most-
favorable rate to any other patient, agency, or organization for special 
or general educational services whichever is appropriate.
    (D) If the RTC fails to request CHAMPUS approval of the educational 
costs on an individual case, the RTC agrees not to bill the beneficiary 
or the beneficiary's family for any amounts disallowed by CHAMPUS. 
Requests for payment of educational costs must be referred to the 
Director, OCHAMPUS, or designee for review and a determination of the 
applicability of CHAMPUS benefits.
    (5) Subject to the applicable RTC cap, adjustments to the RTC rates 
may be made annually.
    (i) For Federal fiscal years through 1995, the adjustment shall be 
based on the Consumer Price Index-Urban (CPI-U) for medical care as 
determined applicable by the Director, OCHAMPUS.
    (ii) For purposes of rates for Federal fiscal years 1996 and 1997:
    (A) For any RTC whose 1995 rate was at or above the thirtieth 
percentile of all established Federal fiscal year 1995 RTC rates 
normally, weighted by total CHAMPUS days provided at each rate during 
the first half of Federal fiscal year 1994, that rate shall remain in 
effect, with no additional update,

[[Page 308]]

throughout fiscal years 1996 and 1997; and
    (B) For any RTC whose 1995 rate was below the 30th percentile level 
determined under paragraph (f)(5)(ii)(A) of this section, the rate shall 
be adjusted by the lesser of: the CPI-U for medical care, or the amount 
that brings the rate up to that 30th percentile level.
    (iii) For subsequent Federal fiscal years after fiscal year 1997, 
RTC rates shall be updated by the Medicare update factor for hospitals 
and units exempt from the Medicare prospective payment system.
    (6) For care provided on or after July 1, 1995, CHAMPUS will not pay 
for days in which the patient is absent on leave from the RTC. The RTC 
must identify these days when claiming reimbursement.
    (g) Reimbursement of hospice programs. Hospice care will be 
reimbursed at one of four predetermined national CHAMPUS rates based on 
the type and intensity of services furnished to the beneficiary. A 
single rate is applicable for each day of care except for continuous 
home care where payment is based on the number of hours of care 
furnished during a 24-hour period. These rates will be adjusted for 
regional differences in wages using wage indices for hospice care.
    (1) National hospice rates. CHAMPUS will use the national hospice 
rates for reimbursement of each of the following levels of care provided 
by or under arrangement with a CHAMPUS approved hospice program:
    (i) Routine home care. The hospice will be paid the routine home 
care rate for each day the patient is at home, under the care of the 
hospice, and not receiving continuous home care. This rate is paid 
without regard to the volume or intensity of routine home care services 
provided on any given day.
    (ii) Continuous home care. The hospice will be paid the continuous 
home care rate when continuous home care is provided. The continuous 
home care rate is divided by 24 hours in order to arrive at an hourly 
rate.
    (A) A minimum of 8 hours of care must be provided within a 24-hour 
day starting and ending at midnight.
    (B) More than half of the total actual hours being billed for each 
24-hour period must be provided by either a registered or licensed 
practical nurse.
    (C) Homemaker and home health aide services may be provided to 
supplement the nursing care to enable the beneficiary to remain at home.
    (D) For every hour or part of an hour of continuous care furnished, 
the hourly rate will be reimbursed to the hospice up to 24 hours a day.
    (iii) Inpatient respite care. The hospice will be paid at the 
inpatient respite care rate for each day on which the beneficiary is in 
an approved inpatient facility and is receiving respite care.
    (A) Payment for respite care may be made for a maximum of 5 days at 
a time, including the date of admission but not counting the date of 
discharge. The necessity and frequency of respite care will be 
determined by the hospice interdisciplinary group with input from the 
patient's attending physician and the hospice's medical director.
    (B) Payment for the sixth and any subsequent days is to be made at 
the routine home care rate.
    (iv) General inpatient care. Payment at the inpatient rate will be 
made when general inpatient care is provided for pain control or acute 
or chronic symptom management which cannot be managed in other settings. 
None of the other fixed payment rates (i.e., routine home care) will be 
applicable for a day on which the patient receives general inpatient 
care except on the date of discharge.
    (v) Date of discharge. For the day of discharge from an inpatient 
unit, the appropriate home care rate is to be paid unless the patient 
dies as an inpatient. When the patient is discharged deceased, the 
inpatient rate (general or respite) is to be paid for the discharge 
date.
    (2) Use of Medicare rates. CHAMPUS will use the most current 
Medicare rates to reimburse hospice programs for services provided to 
CHAMPUS beneficiaries. It is CHAMPUS' intent to adopt changes in the 
Medicare reimbursement methodology as they occur; e.g., Medicare's 
adoption of an updated, more accurate wage index.
    (3) Physician reimbursement. Payment is dependent on the physician's 
relationship with both the beneficiary and the hospice program.

[[Page 309]]

    (i) Physicians employed by, or contracted with, the hospice. (A) 
Administrative and supervisory activities (i.e., establishment, review 
and updating of plans of care, supervising care and services, and 
establishing governing policies) are included in the adjusted national 
payment rate.
    (B) Direct patient care services are paid in addition to the 
adjusted national payment rate.
    (1) Physician services will be reimbursed an amount equivalent to 
100 percent of the CHAMPUS' allowable charge; i.e., there will be no 
cost-sharing and/or deductibles for hospice physician services.
    (2) Physician payments will be counted toward the hospice cap 
limitation.
    (ii) Independent attending physician. Patient care services rendered 
by an independent attending physician (a physician who is not considered 
employed by or under contract with the hospice) are not part of the 
hospice benefit.
    (A) Attending physician may bill in his/her own right.
    (B) Services will be subject to the appropriate allowable charge 
methodology.
    (C) Reimbursement is not counted toward the hospice cap limitation.
    (D) Services provided by an independent attending physician must be 
coordinated with any direct care services provided by hospice 
physicians.
    (E) The hospice must notify the CHAMPUS contractor of the name of 
the physician whenever the attending physician is not a hospice 
employee.
    (iii) Voluntary physician services. No payment will be allowed for 
physician services furnished voluntarily (both physicians employed by, 
and under contract with, the hospice and independent attending 
physicians). Physicians may not discriminate against CHAMPUS 
beneficiaries; e.g., designate all services rendered to non-CHAMPUS 
patients as volunteer and at the same time bill for CHAMPUS patients.
    (4) Unrelated medical treatment. Any covered CHAMPUS services not 
related to the treatment of the terminal condition for which hospice 
care was elected will be paid in accordance with standard reimbursement 
methodologies; i.e., payment for these services will be subject to 
standard deductible and cost-sharing provisions under the CHAMPUS. A 
determination must be made whether or not services provided are related 
to the individual's terminal illness. Many illnesses may occur when an 
individual is terminally ill which are brought on by the underlying 
condition of the ill patient. For example, it is not unusual for a 
terminally ill patient to develop pneumonia or some other illness as a 
result of his or her weakened condition. Similarly, the setting of bones 
after fractures occur in a bone cancer patient would be treatment of a 
related condition. Thus, if the treatment or control of an upper 
respiratory tract infection is due to the weakened state of the terminal 
patient, it will be considered a related condition, and as such, will be 
included in the hospice daily rates.
    (5) Cap amount. Each CHAMPUS-approved hospice program will be 
subject to a cap on aggregate CHAMPUS payments from November 1 through 
October 31 of each year, hereafter known as ``the cap period.''
    (i) The cap amount will be adjusted annually by the percent of 
increase or decrease in the medical expenditure category of the Consumer 
Price Index for all urban consumers (CPI-U).
    (ii) The aggregate cap amount (i.e., the statutory cap amount times 
the number of CHAMPUS beneficiaries electing hospice care during the cap 
period) will be compared with total actual CHAMPUS payments made during 
the same cap period.
    (iii) Payments in excess of the cap amount must be refunded by the 
hospice program. The adjusted cap amount will be obtained from the 
Health Care Financing Administration (HCFA) prior to the end of each cap 
period.
    (iv) Calculation of the cap amount for a hospice which has not 
participated in the program for an entire cap year (November 1 through 
October 31) will be based on a period of at least 12 months but no more 
than 23 months. For example, the first cap period for a hospice entering 
the program on October 1, 1994, would run from October 1, 1994 through 
October 31, 1995. Similarly, the first cap period for hospice providers 
entering the program after

[[Page 310]]

November 1, 1993 but before November 1, 1994 would end October 31, 1995.
    (6) Inpatient limitation. During the 12-month period beginning 
November 1 of each year and ending October 31, the aggregate number of 
inpatient days, both for general inpatient care and respite care, may 
not exceed 20 percent of the aggregate total number of days of hospice 
care provided to all CHAMPUS beneficiaries during the same period.
    (i) If the number of days of inpatient care furnished to CHAMPUS 
beneficiaries exceeds 20 percent of the total days of hospice care to 
CHAMPUS beneficiaries, the total payment for inpatient care is 
determined follows:
    (A) Calculate the ratio of the maximum number of allowable inpatient 
days of the actual number of inpatient care days furnished by the 
hospice to Medicare patients.
    (B) Multiply this ratio by the total reimbursement for inpatient 
care made by the CHAMPUS contractor.
    (C) Multiply the number of actual inpatient days in excess of the 
limitation by the routine home care rate.
    (D) Add the amounts calculated in paragraphs (g)(6)(i) (B) and (C) 
of this section.
    (ii) Compare the total payment for inpatient care calculated in 
paragraph (g)(6)(i)(D) of this section to actual payments made to the 
hospice for inpatient care during the cap period.
    (iii) Payments in excess of the inpatient limitation must be 
refunded by the hospice program.
    (7) Hospice reporting responsibilities. The hospice is responsible 
for reporting the following data within 30 days after the end of the cap 
period:
    (i) Total reimbursement received and receivable for services 
furnished CHAMPUS beneficiaries during the cap period, including 
physician's services not of an administrative or general supervisory 
nature.
    (ii) Total reimbursement received and receivable for general 
inpatient care and inpatient respite care furnished to CHAMPUS 
beneficiaries during the cap period.
    (iii) Total number of inpatient days furnished to CHAMPUS hospice 
patients (both general inpatient and inpatient respite days) during the 
cap period.
    (iv) Total number of CHAMPUS hospice days (both inpatient and home 
care) during the cap period.
    (v) Total number of beneficiaries electing hospice care. The 
following rules must be adhered to by the hospice in determining the 
number of CHAMPUS beneficiaries who have elected hospice care during the 
period:
    (A) The beneficiary must not have been counted previously in either 
another hospice's cap or another reporting year.
    (B) The beneficiary must file an initial election statement during 
the period beginning September 28 of the previous cap year through 
September 27 of the current cap year in order to be counted as an 
electing CHAMPUS beneficiary during the current cap year.
    (C) Once a beneficiary has been included in the calculation of a 
hospice cap amount, he or she may not be included in the cap for that 
hospice again, even if the number of covered days in a subsequent 
reporting period exceeds that of the period where the beneficiary was 
included.
    (D) There will be proportional application of the cap amount when a 
beneficiary elects to receive hospice benefits from two or more 
different CHAMPUS-certified hospices. A calculation must be made to 
determine the percentage of the patient's length of stay in each hospice 
relative to the total length of hospice stay.
    (8) Reconsideration of cap amount and inpatient limit. A hospice 
dissatisfied with the contractor's calculation and application of its 
cap amount and/or inpatient limitation may request and obtain a 
contractor review if the amount of program reimbursement in 
controversy--with respect to matters which the hospice has a right to 
review--is at least $1000. The administrative review by the contractor 
of the calculation and application of the cap amount and inpatient 
limitation is the only administrative review available. These 
calculations are not subject to the appeal procedures set forth in Sec. 
199.10. The methods and standards for calculation of the hospice payment 
rates established by CHAMPUS, as well as questions as to the validity of 
the applicable law, regulations or CHAMPUS decisions, are not subject to

[[Page 311]]

administrative review, including the appeal procedures of Sec. 199.10.
    (9) Beneficiary cost-sharing. There are no deductibles under the 
CHAMPUS hospice benefit. CHAMPUS pays the full cost of all covered 
services for the terminal illness, except for small cost-share amounts 
which may be collected by the individual hospice for outpatient drugs 
and biologicals and inpatient respite care.
    (i) The patient is responsible for 5 percent of the cost of 
outpatient drugs or $5 toward each prescription, whichever is less. 
Additionally, the cost of prescription drugs (drugs or biologicals) may 
not exceed that which a prudent buyer would pay in similar 
circumstances; that is, a buyer who refuses to pay more than the going 
price for an item or service and also seeks to economize by minimizing 
costs.
    (ii) For inpatient respite care, the cost-share for each respite 
care day is equal to 5 percent of the amount CHAMPUS has estimated to be 
the cost of respite care, after adjusting the national rate for local 
wage differences.
    (iii) The amount of the individual cost-share liability for respite 
care during a hospice cost-share period may not exceed the Medicare 
inpatient hospital deductible applicable for the year in which the 
hospice cost-share period began. The individual hospice cost-share 
period begins on the first day an election is in effect for the 
beneficiary and ends with the close of the first period of 14 
consecutive days on each of which an election is not in effect for the 
beneficiary.
    (h) Reimbursement of Home Health Agencies (HHAs). HHAs will be 
reimbursed using the same methods and rates as used under the Medicare 
HHA prospective payment system under Section 1895 of the Social Security 
Act (42 U.S.C. 1395fff) and 42 CFR Part 484, Subpart E except as 
otherwise necessary to recognize distinct characteristics of TRICARE 
beneficiaries and as described in instructions issued by the Director, 
TMA. Under this methodology, an HHA will receive a fixed case-mix and 
wage-adjusted national 60-day episode payment amount as payment in full 
for all costs associated with furnishing home health services to 
TRICARE-eligible beneficiaries with the exception of osteoporosis drugs 
and DME. The full case-mix and wage-adjusted 60-day episode amount will 
be payment in full subject to the following adjustments and additional 
payments:
    (1) Split percentage payments. The initial percentage payment for 
initial episodes is paid to an HHA at 60 percent of the case-mix and 
wage adjusted 60-day episode rate. The residual final payment for 
initial episodes is paid at 40 percent of the case-mix and wage adjusted 
60-day episode rate subject to appropriate adjustments. The initial 
percentage payment for subsequent episodes is paid at 50 percent of the 
case-mix and wage-adjusted 60-day episode rate. The residual final 
payment for subsequent episodes is paid at 50 percent of the case-mix 
and wage-adjusted 60-day episode rate subject to appropriate 
adjustments.
    (2) Low-utilization payment. A low utilization payment is applied 
when a HHA furnishes four or fewer visits to a beneficiary during the 
60-day episode. The visits are paid at the national per-visit amount by 
discipline updated annually by the applicable market basket for each 
visit type.
    (3) Partial episode payment (PEP). A PEP adjustment is used for 
payment of an episode of less than 60 days resulting from a 
beneficiary's elected transfer to another HHA prior to the end of the 
60-day episode or discharge and readmission of a beneficiary to the same 
HHA before the end of the 60-day episode. The PEP payment is calculated 
by multiplying the proportion of the 60-day episode during which the 
beneficiary remained under the care of the original HHA by the 
beneficiary's assigned 60-day episode payment.
    (4) Significant change in condition (SCIC). The full-episode payment 
amount is adjusted if a beneficiary experiences a significant change in 
condition during the 60-day episode that was not envisioned in the 
initial treatment plan. The total significant change in condition 
payment adjustment is a proportional payment adjustment reflecting the 
time both prior to and after the patient experienced a significant 
change in condition during the 60-day episode. The initial percentage 
payment provided at the start of the 60-

[[Page 312]]

day episode will be adjusted at the end of the episode to reflect the 
first and second parts of the total SCIC adjustment determined at the 
end of the 60-day episode. The SCIC payment adjustment is calculated in 
two parts:
    (i) The first part of the SCIC payment adjustment reflects the 
adjustment to the level of payment prior to the significant change in 
the patient's condition during the 60-day episode.
    (ii) The second part of the SCIC payment adjustment reflects the 
adjustment to the level of payment after the significant change in the 
patient's condition occurs during the 60-day episode.
    (5) Outlier payment. Outlier payments are allowed in addition to 
regular 60-day episode payments for beneficiaries generating excessively 
high treatment costs. The following methodology is used for calculation 
of the outlier payment:
    (i) TRICARE makes an outlier payment for an episode whose estimated 
cost exceeds a threshold amount for each case-mix group.
    (ii) The outlier threshold for each case-mix group is the episode 
payment amount for that group, the PEP adjustment amount for the episode 
or the total significant change in condition adjustment amount for the 
episode plus a fixed dollar loss amount that is the same for all case-
mix groups.
    (iii) The outlier payment is a proportion of the amount of estimated 
cost beyond the threshold.
    (iv) TRICARE imputes the cost for each episode by multiplying the 
national per-visit amount of each discipline by the number of visits in 
the discipline and computing the total imputed cost for all disciplines.
    (v) The fixed dollar loss amount and the loss sharing proportion are 
chosen so that the estimated total outlier payment is no more than the 
predetermined percentage of total payment under the home health PPS as 
set by the Centers for Medicare & Medicaid Services (CMS).
    (6) Services paid outside the HHA prospective payment system. The 
following are services that receive a separate payment amount in 
addition to the prospective payment amount for home health services:
    (i) Durable medical equipment (DME). Reimbursement of DME is based 
on the same amounts established under the Medicare Durable Medical 
Equipment, Prosthetics, Orthotics and Supplies (DMEPOS) fee schedule 
under 42 CFR part 414, subpart D.
    (ii) Osteoporosis drugs. Although osteoporosis drugs are subject to 
home health consolidated billing, they continue to be paid on a cost 
basis, in addition to episode payments.
    (7) Accelerated payments. Upon request, an accelerated payment may 
be made to an HHA that is receiving payment under the home health 
prospective payment system if the HHA is experiencing financial 
difficulties because there is a delay by the contractor in making 
payment to the HHA. The following are criteria for making accelerated 
payments:
    (i) Approval of payment. An HHA's request for an accelerated payment 
must be approved by the contractor and TRICARE Management Activity 
(TMA).
    (ii) Amount of payment. The amount of the accelerated payment is 
computed as a percentage of the net payment for unbilled or unpaid 
covered services.
    (iii) Recovery of payment. Recovery of the accelerated payment is 
made by recoupment as HHA bills are processed or by direct payment by 
the HHA.
    (8) Assessment data. Beneficiary assessment data, incorporating the 
use of the current version of the OASIS items, must be submitted to the 
contractor for payment under the HHA prospective payment system.
    (9) Administrative review. An HHA is not entitled to judicial or 
administrative review with regard to:
    (i) Establishment of the payment unit, including the national 60-day 
prospective episode payment rate, adjustments and outlier payment.
    (ii) Establishment of transition period, definition and application 
of the unit of payment.
    (iii) Computation of the initial standard prospective payment 
amounts.
    (iv) Establishment of case-mix and area wage adjustment factors.
    (i) Changes in Federal Law affecting Medicare. With regard to 
paragraph (b) and (h) of this section, the Department

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of Defense must, within the time frame specified in law and to the 
extent it is practicable, bring the TRICARE program into compliance with 
any changes in Federal Law affecting the Medicare program that occur 
after the effective date of the DoD rule to implement the prospective 
payment systems for skilled nursing facilities and home health agencies.
    (j) Reimbursement of individual health care professionals and other 
non-institutional, non-professional providers. The CHAMPUS-determined 
reasonable charge (the amount allowed by CHAMPUS) for the service of an 
individual health care professional or other non-institutional, non-
professional provider (even if employed by or under contract to an 
institutional provider) shall be determined by one of the following 
methodologies, that is, whichever is in effect in the specific 
geographic location at the time covered services and supplies are 
provided to a CHAMPUS beneficiary.
    (1) Allowable charge method--(i) Introduction--(A) In general. The 
allowable charge method is the preferred and primary method for 
reimbursement of individual health care professionals and other non-
institutional health care providers (covered by 10 U.S.C. 1079(h)(1)). 
The allowable charge for authorized care shall be the lower of the 
billed charge or the local CHAMPUS Maximum Allowable Charge (CMAC).
    (B) CHAMPUS Maximum Allowable Charge. Beginning in calendar year 
1992, prevailing charge levels and appropriate charge levels will be 
calculated on a national level. There will then be calculated a national 
CHAMPUS Maximum Allowable Charge (CMAC) level for each procedure, which 
shall be the lesser of the national prevailing charge level or the 
national appropriate charge level. The national CMAC will then be 
adjusted for localities in accordance with paragraph (j)(1)(iv) of this 
section.
    (C) Limits on balance billing by nonparticipating providers. 
Nonparticipating providers may not balance bill a beneficiary an amount 
which exceeds the applicable balance billing limit. The balance billing 
limit shall be the same percentage as the Medicare limiting charge 
percentage for nonparticipating physicians. The balance billing limit 
may be waived by the Director, OCHAMPUS on a case-by-case basis if 
requested by the CHAMPUS beneficiary (or sponsor) involved. A decision 
by the Director to waive or not waive the limit in any particular case 
is not subject to the appeal and hearing procedures of Sec. 199.10.
    (D) Special rule for TRICARE Prime Enrollees. In the case of a 
TRICARE Prime enrollee (see section 199.17) who receives authorized care 
from a non-participating provider, the CHAMPUS determined reasonable 
charge will be the CMAC level as established in paragraph (j)(1)(i)(B) 
of this section plus any balance billing amount up to the balance 
billing limit as referred to in paragraph (j)(1)(i)(C) of this section. 
The authorization for such care shall be pursuant to the procedures 
established by the Director, OCHAMPUS (also referred to as the TRICARE 
Support Office).
    (E) Special rule for certain TRICARE Standard Beneficiaries. In the 
case of dependent spouse or child, as defined in paragraphs 
(b)(2)(ii)(A) through (F) and (b)(2)(ii)(H)(1), (2), and (4) of Sec. 
199.3, of a Reserve Component member serving on active duty pursuant to 
a call or order to active duty for a period of more than 30 days in 
support of a contingency operation under a provision of law referred to 
in section 101(a)(13)(B) of title 10, United States Code, the Director, 
TRICARE Management Activity, may authorize non-participating providers 
the allowable charge to be the CMAC level as established in paragraph 
(j)(l)(i)(B) of this section plus any balance billing amount up to the 
balance billing limit as referred to in paragraph (j)(l)(i)(C) of this 
section.
    (ii) Prevailing charge level. (A) Beginning in calendar year 1992, 
the prevailing charge level shall be calculated on a national basis.
    (B) The national prevailing charge level referred to in paragraph 
(j)(1)(ii)(A) of this section is the level that does not exceed the 
amount equivalent to the 80th percentile of billed charges made for 
similar services during the base period. The 80th percentile of charges 
shall be determined on the

[[Page 314]]

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

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

    In any case in which the national CMAC calculated in accordance with 
paragraphs (j)(1)(i) through (iii) of this section is less than the 
Medicare rate, the Director, TSO, may determine that the use of the 
Medicare Economic Index under paragraph (j)(1)(iii)(B) of this section 
will result in a CMAC rate below the level necessary to assure that 
beneficiaries will retain adequate access to health care services. Upon 
making such a determination, the Director, TSO, may increase the 
national CMAC to a level not greater than the Medicare rate.
    (iv) Calculating CHAMPUS Maximum Allowable Charge levels for 
localities--(A) In general. The national CHAMPUS Maximum Allowable 
Charge level for each procedure will be adjusted for localities using 
the same (or similar) geographical areas and the same geographic 
adjustment factors as are used for determining allowable charges under 
Medicare.
    (B) Special locality-based phase-in provision--(1) In general. 
Beginning with the recalculation of CMACS for calendar year 1993, the 
CMAC in a locality

[[Page 315]]

will not be less than 72.25 percent of the maximum charge level in 
effect for that locality on December 31, 1991. For recalculations of 
CMACs for calendar years after 1993, the CMAC in a locality will not be 
less than 85 percent of the CMAC in effect for that locality at the end 
of the prior calendar year.
    (2) Exception. The special locality-based phase-in provision 
established by paragraph (j)(1)(iv)(B)(1) of this section shall not be 
applicable in the case of any procedure code for which there were not 
CHAMPUS claims in the locality accounting for at least 50 services.
    (C) Special locality-based waivers of reductions to assure adequate 
access to care. Beginning with the recalculation of CMACs for calendar 
year 1993, in the case of any procedure classified as an overpriced 
procedure pursuant to paragraph (j)(1)(iii)(A)(1) of this section, a 
reduction in the CMAC in a locality below the level in effect at the end 
of the previous calendar year that would otherwise occur pursuant to 
paragraphs (j)(1)(iii) and (j)(1)(iv) of this section may be waived 
pursuant to paragraph (j)(1)(iii)(C) of this section.
    (1) Waiver based on balanced billing rates. Except as provided in 
paragraph (j)(1)(iv)(C)(2) of this section such a reduction will be 
waived if there has been excessive balance billing in the locality for 
the procedure involved. For this purpose, the extent of balance billing 
will be determined based on a review of all services under the procedure 
code involved in the prior year (or most recent period for which data 
are available). If the number of services for which balance billing was 
not required was less than 60 percent of all services provided, the 
Director will determine that there was excessive balance billing with 
respect to that procedure in that locality and will waive the reduction 
in the CMAC that would otherwise occur. A decision by the Director to 
waive or not waive the reduction is not subject to the appeal and 
hearing procedures of Sec. 199.10.
    (2) Exception. As an exception to the paragraph (j)(1)(iv)(C)(1) of 
this section, the waiver required by that paragraph shall not be 
applicable in the case of any procedure code for which there were not 
CHAMPUS claims in the locality accounting for at least 50 services. A 
waiver may, however, be granted in such cases pursuant to paragraph 
(j)(1)(iv)(C)(3) of this section.
    (3) Waiver based on other evidence that adequate access to care 
would be impaired. The Director, OCHAMPUS may waive a reduction that 
would otherwise occur (or restore a reduction that was already taken) if 
the Director determines that available evidence shows that the reduction 
would impair adequate access. For this purpose, such evidence may 
include consideration of the number of providers in the locality who 
provide the affected services, the number of such providers who are 
CHAMPUS Participating Providers, the number of CHAMPUS beneficiaries in 
the area, and other relevant factors. Providers or beneficiaries in a 
locality may submit to the Director, OCHAMPUS a petition, together with 
appropriate documentation regarding relevant factors, for a 
determination that adequate access would be impaired. The Director, 
OCHAMPUS will consider and respond to all such petitions. Petitions may 
be filed at any time. Any petition received by the date which is 120 
days prior to the implementation of a recalculation of CMACs will be 
assured of consideration prior to that implementation. The Director, 
OCHAMPUS may establish procedures for handling petitions. A decision by 
the Director to waive or not waive a reduction is not subject to the 
appeal and hearing procedures of Sec. 199.10.
    (D) Special locality-based exception to applicable CMACs to assure 
adequate beneficiary access to care. In addition to the authority to 
waive reductions under paragraph (j)(1)(iv)(C) of this section, the 
Director may authorize establishment of higher payment rates for 
specific services than would otherwise be allowable, under paragraph 
(j)(1) of this section, if the Director determines that available 
evidence shows that access to health care services is severely impaired. 
For this purpose, such evidence may include consideration of the number 
of providers in the locality who provide the affected services, the 
number of providers who are CHAMPUS participating providers, the number 
of

[[Page 316]]

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

[[Page 317]]

number of qualified health care providers in a network in a specific 
locality, the higher rate may not exceed the lesser of the following:
    (1) The amount equal to the local fee for service charge for the 
service in the service area in which the service is provided as 
determined by the Director, based on one or more of the following 
payment rates:
    (i) Usual, customary, and reasonable;
    (ii) The Health Care Financing Administration's Resource Based 
Relative Value Scale;
    (iii) Negotiated fee schedules;
    (iv) Global fees; or
    (v) Sliding scale individual fee allowances.
    (2) The amount equal to 115 percent of the otherwise allowable 
charge under paragraph (j)(1) of the section for the service.
    (v) Special rules for 1991. (A) Appropriate charge levels for care 
provided on or after January 1, 1991, and before the 1992 appropriate 
levels take effect shall be the same as those in effect on December 31, 
1990, except that appropriate charge levels for care provided on or 
after October 7, 1991, shall be those established pursuant to this 
paragraph (j)(1)(v) of this section.
    (B) Appropriate charge levels will be established for each locality 
for which an appropriate charge level was in effect immediately prior to 
October 7, 1991. For each procedure, the appropriate charge level shall 
be the prevailing charge level in effect immediately prior to October 7, 
1991, adjusted as provided in (j)(1)(v)(B) (1) through (3) of this 
section.
    (1) For each overpriced procedure, the level shall be reduced by 
fifteen percent. For this purpose, overpriced procedures are the 
procedures determined by the Physician Payment Review Commission to be 
overvalued pursuant to the process established under the Medicare 
program, other procedures considered overvalued in the Medicare program 
(for which Congress directed reductions in Medicare allowable levels for 
1991), radiology procedures and pathology procedures.
    (2) For each other procedure, the level shall remain unchanged. For 
this purpose, other procedures are procedures which are not overpriced 
procedures or primary care procedures.
    (3) For each primary care procedure, the level shall be adjusted by 
the MEI, as the MEI is applied to Medicare prevailing charge levels. For 
this purpose, primary care procedures include maternity care and 
delivery services and well baby care services.
    (C) For purposes of this paragraph (j)(i)(v), ``appropriate charge 
levels'' in effect at any time prior to October 7, 1991 shall mean the 
lesser of:
    (1) The prevailing charge levels then in effect, or
    (2) The fiscal year 1988 prevailing charge levels adjusted by the 
Medicare Economic Index (MEI), as the MEI was applied beginning in the 
fiscal year 1989.
    (vi) Special transition rule for 1992. (A) For purposes of 
calculating the national appropriate charge levels for 1992, the prior 
year's appropriate charge level for each service will be considered to 
be the level that does not exceed the amount equivalent to the 80th 
percentile of billed charges made for similar services during the base 
period of July 1, 1986 to June 30, 1987 (determined as under paragraph 
(j)(1)(ii)(B) of this section), adjusted to calendar year 1991 based on 
the adjustments made for maximum CHAMPUS allowable charge levels through 
1990 and the application of paragraph (j)(1)(v) of this section for 
1991.
    (B) The adjustment to calendar year 1991 of the product of paragraph 
(j)(1)(vi)(A) of this section shall be as follows:
    (1) For procedures other than those described in paragraph 
(j)(1)(vi)(B)(2) of this section, the adjustment to 1991 shall be on the 
same basis as that provided under paragraph (j)(1)(v) of this section.
    (2) For any procedure that was considered an overpriced procedure 
for purposes of the 1991 appropriate charge levels under paragraph 
(j)(1)(v) of this section for which the resulting 1991 appropriate 
charge level was less than 150 percent of the Medicare converted 
relative value unit, the adjustment to 1991 for purposes of the special 
transition rule for 1992 shall be as if the procedure had been treated 
under paragraph

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(j)(1)(v)(B)(2) of this section for purposes of the 1991 appropriate 
charge level.
    (vii) Adjustments and procedural rules. (A) The Director, OCHAMPUS 
may make adjustments to the appropriate charge levels calculated 
pursuant to paragraphs (j)(1)(iii) and (j)(1)(v) of this section to 
correct any anomalies resulting from data or statistical factors, 
significant differences between Medicare-relevant information and 
CHAMPUS-relevant considerations or other special factors that fairness 
requires be specially recognized. However, no such adjustment may result 
in reducing an appropriate charge level.
    (B) The Director, OCHAMPUS will issue procedural instructions for 
administration of the allowable charge method.
    (viii) Clinical laboratory services. The allowable charge for 
clinical diagnostic laboratory test services shall be calculated in the 
same manner as allowable charges for other individual health care 
providers are calculated pursuant to paragraphs (j)(1)(i) through 
(j)(1)(iv) of this section, with the following exceptions and 
clarifications.
    (A) The calculation of national prevailing charge levels, national 
appropriate charge levels and national CMACs for laboratory service 
shall begin in calendar year 1993. For purposes of the 1993 calculation, 
the prior year's national appropriate charge level or national 
prevailing charge level shall be the level that does not exceed the 
amount equivalent to the 80th percentile of billed charges made for 
similar services during the period July 1, 1991, through June 30, 1992 
(referred to in this paragraph (j)(1)(viii) of this section as the 
``base period'').
    (B) For purposes of comparison to Medicare allowable payment amounts 
pursuant to paragraph (j)(1)(iii) of this section, the Medicare national 
laboratory payment limitation amounts shall be used.
    (C) For purposes of establishing laboratory service local CMACs 
pursuant to paragraph (j)(1)(iv) of this section, the adjustment factor 
shall equal the ratio of the local average charge (standardized for the 
distribution of clinical laboratory services) to the national average 
charge for all clinical laboratory services during the base period.
    (D) For purposes of a special locality-based phase-in provision 
similar to that established by paragraph (j)(1)(iv)(B) of this section, 
the CMAC in a locality will not be less than 85 percent of the maximum 
charge level in effect for that locality during the base period.
    (ix) The allowable charge for physician assistant services other 
than assistant-at-surgery shall be at the same percentage, used by 
Medicare, of the allowable charge for a comparable service rendered by a 
physician performing the service in a similar location. For cases in 
which the physician assistant and the physician perform component 
services of a procedure other than assistant-at-surgery (e.g., home, 
office, or hospital visit), the combined allowable charge for the 
procedure may not exceed the allowable charge for the procedure rendered 
by a physician alone. The allowable charge for physician assistant 
services performed as an assistant-at-surgery shall be at the same 
percentage, used by Medicare, of the allowable charge for a physician 
serving as an assistant surgeon when authorized as CHAMPUS benefits in 
accordance with the provisions of Sec. 199.4(c)(3)(iii). Physician 
assistant services must be billed through the employing physician who 
must be an authorized CHAMPUS provider.
    (x) A charge that exceeds the CHAMPUS Maximum Allowable Charge can 
be determined to be allowable only when unusual circumstances or medical 
complications justify the higher charge. The allowable charge may not 
exceed the billed charge under any circumstances.
    (xi) Pharmaceutical agents utilized as part of medically necessary 
medical services. In general, the TRICARE-determined allowed amount 
shall be equal to an amount determined to be appropriate, to the extent 
practicable, in accordance with the same reimbursement rules as apply to 
payments for similar services under Medicare. Under the authority of 10 
U.S.C. 1079(q), in the case of any pharmaceutical agent utilized as part 
of medically necessary medical services, the Director may adopt special 
reimbursement methods, amounts,

[[Page 319]]

and procedures to encourage the use of high-value products and 
discourage the use of low-value products, as determined by the Director. 
For this purpose, the Director may obtain recommendations from the 
Pharmaceutical and Therapeutics Committee under Sec. 199.21 or other 
entities as the Director, DHA deems appropriate with respect to the 
relative value of products in a class of products subject to this 
paragraph (j)(1)(xi). Among the special reimbursement methods the 
Director may choose to adopt under this paragraph (j)(1)(xi) is to 
reimburse the average sales price of a product plus six percent of the 
median of the average sales prices of products in the product class or 
category. The Director shall issue guidance regarding the special 
reimbursement methods adopted and the appropriate reimbursement rates.
    (2) Bonus payments in medically underserved areas. A bonus payment, 
in addition to the amount normally paid under the allowable charge 
methodology, may be made to physicians in medically underserved areas. 
For purposes of this paragraph, medically underserved areas are the same 
as those determined by the Secretary of Health and Human Services for 
the Medicare program. Such bonus payments shall be equal to the bonus 
payments authorized by Medicare, except as necessary to recognize any 
unique or distinct characteristics or requirements of the TRICARE 
program, and as described in instructions issued by the Executive 
Director, TRICARE Management Activity. If the Department of Health and 
Human Services acts to amend or remove the provision for bonus payments 
under Medicare, TRICARE likewise may follow Medicare in amending or 
removing provision for such payments.
    (3) All-inclusive rate. Claims from individual health-care 
professional providers for services rendered to CHAMPUS beneficiaries 
residing in an RTC that is either being reimbursed on an all-inclusive 
per diem rate, or is billing an all-inclusive per diem rate, shall be 
denied; with the exception of independent health-care professionals 
providing geographically distant family therapy to a family member 
residing a minimum of 250 miles from the RTC or covered medical services 
related to a nonmental health condition rendered outside the RTC. 
Reimbursement for individual professional services is included in the 
rate paid the institutional provider.
    (4) Alternative method. The Director, OCHAMPUS, or a designee, may, 
subject to the approval of the ASD(HA), establish an alternative method 
of reimbursement designed to produce reasonable control over health care 
costs and to ensure a high level of acceptance of the CHAMPUS-determined 
charge by the individual health-care professionals or other 
noninstitutional health-care providers furnishing services and supplies 
to CHAMPUS beneficiaries. Alternative methods may not result in 
reimbursement greater than the allowable charge method above.
    (k) Reimbursement of Durable Medical Equipment, Prosthetics, 
orthotics and Supplies 9DMEPOS). Reimbursement of DMEPOS may be based on 
the same amounts established under the Centers for Medicare and Medicaid 
Services (CMS) DMEPOS fee schedule under 42 CFR part 414, subpart D.
    (l) Reimbursement Under the Military-Civilian Health Services 
Partnership Program. The Military-Civilian Health Services Partnership 
Program, as authorized by section 1096, chapter 55, title 10, provides 
for the sharing of staff, equipment, and resources between the civilian 
and military health care system in order to achieve more effective, 
efficient, or economical health care for authorized beneficiaries. 
Military treatment facility commanders, based upon the authority 
provided by their respective Surgeons General of the military 
departments, are responsible for entering into individual partnership 
agreements only when they have determined specifically that use of the 
Partnership Program is more economical overall to the Government than 
referring the need for health care services to the civilian community 
under the normal operation of the CHAMPUS Program. (See paragraph (p) of 
Sec. 199.1 for general requirements of the Partnership Program.)
    (1) Reimbursement of institutional health care providers. 
Reimbursement of institutional health care providers

[[Page 320]]

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

[55 FR 13266, Apr. 10, 1990]

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

    Effective Date Note: At 88 FR 19855, Apr. 4, 2023, Sec. 199.14 was 
amended by revising paragraphs (a)(6)(ii)(A), (a)(6)(ii)(E) introductory 
text, and (a)(6)(ii)(E)(3), adding paragraph (a)(6)(ii)(E)(4), and 
revising paragraph (d), effective Oct. 1, 2023. For the convenience of 
the user, the added and revised text is set forth as follows:



Sec. 199.14  Provider reimbursement methods.

    (a) * * *
    (6) * * *
    (ii) * * *
    (A) General. Outpatient services provided in hospitals subject to 
Medicare OPPS as specified in 42 CFR 413.65 and 42 CFR 419.20, to 
include cancer and children's hospitals, will be paid in accordance with 
the provisions outlined in sections 1833t of the Social Security Act and 
its implementing Medicare regulation (42 CFR part 419) subject to 
exceptions as authorized by this paragraph (a)(6)(ii).

                                * * * * *

    (E) Temporary transitional payment adjustments (TTPAs). Temporary 
transitional payment adjustments will be in place for all hospitals, 
both network and non-network, except for cancer and children's 
hospitals, in order to buffer the initial decline in payments upon 
implementation of TRICARE's OPPS.

                                * * * * *

    (3) An additional general temporary military contingency payment 
adjustment

[[Page 321]]

(GTMCPA) will also be available at the discretion of the Director, or a 
designee, at any time after implementation to adopt, modify and/or 
extend temporary adjustments to OPPS payments for TRICARE network 
hospitals deemed essential for military readiness and deployment in time 
of contingency operations. Any GTMCPAs to OPPS payments shall be made 
only on the basis of a determination that it is impracticable to support 
military readiness or contingency operations by making OPPS payments in 
accordance with the same reimbursement rules implemented by Medicare. 
For cancer and children's hospitals to qualify for the GTMCPA, they must 
meet the criteria in paragraphs (a)(6)(ii)(E)(3)(i) through (iii) of 
this section. Cancer and children's hospitals that meet these criteria 
will be eligible to receive up to 115 percent of the hospital's costs 
for OPPS services. The criteria for adopting, modifying, and/or 
extending deviations and/or adjustments to OPPS payments shall be issued 
through CHAMPUS policies, instructions, procedures and guidelines as 
deemed appropriate by the Director, or a designee. GTMCPAs may also be 
extended to non-network hospitals on a case-by-case basis for specific 
procedures where it is determined that the procedures cannot be obtained 
timely enough from a network hospital. For such case-by-case extensions, 
``Temporary'' might be less than three years at the discretion of the 
Director, or designee. The GTMCPA qualification criteria for cancer and 
children's hospitals follow:
    (i) Have 10 percent or more of its revenue come from TRICARE for 
care of ADSMs and ADDs;
    (ii) Have 10,000 or more of its TRICARE visits paid under the OPPS 
for ADSMs and ADDs annually; and
    (iii) Be deemed as essential for TRICARE operations.
    (4) For cancer and children's hospitals. There are no temporary 
transitional payment adjustments in place. Reimbursement will be on the 
basis of OPPS, however, payments shall be adjusted so that these 
providers receive 100 percent of their costs. Adjustments shall be made 
on an annual basis, and within 180 days of the end of the OPPS year 
(OPPS Year is defined as April 1 through March 30) DHA will calculate 
the hospital's costs, utilizing the hospital-specific outpatient cost-
to-charge ratio (CCR). The costs shall be calculated by multiplying the 
hospital's billed charges for OPPS services by the CCR. If the 
hospital's costs, as calculated by DHA, exceeded the payment that had 
been made under OPPS, the hospital shall receive an annual payment 
adjustment so that the hospital receives 100% of their costs.

                                * * * * *

    (d) Payment of institutional facility costs for ambulatory surgery. 
In general, TRICARE pays for institutional facility costs for ambulatory 
surgery on the basis of prospectively determined amounts, as provided in 
this paragraph, with the exception of ambulatory surgery procedures 
performed in hospital outpatient departments or CAHs, which are to be 
reimbursed in accordance with the provisions of paragraph (a)(6)(ii) or 
(iii) of this section. Surgical services provided in Ambulatory Surgery 
Centers (ASCs) as defined in Sec. 199.2(b) will be paid in accordance 
with the provisions outlined in section 1833(t) of the Social Security 
Act and its implementing Medicare regulation (42 CFR part 416). TRICARE 
will recognize, to the extent practicable, in accordance with 10 U.S.C. 
1079(i)(2), Medicare's ASC reimbursement methodology to include specific 
coding requirements, prospectively determined rates, discounts for 
multiple surgical procedures, the scope of ASC services, covered 
surgical procedures, and the basis of payment as described in 42 CFR 
part 416 with the exception that TRICARE will implement no transitional 
payments. Payments to ASCs for covered procedures and services will be 
based on the lesser of the billed charge or the ASC payment rate. 
Payment for ambulatory surgery procedures is limited to those procedures 
that are reimbursed by Medicare in ASCs, with the exception of dental 
procedures that are covered by the TRICARE program, as described in 
Sec. 199.4. In the absence of a Medicare ASC fee schedule rate, the 
payment for a covered dental procedure in ASCs will be based on the same 
rate under TRICARE's OPPS.

                                * * * * *



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

    (a) General--(1) Purpose. The purpose of this section is to 
establish rules and procedures for the CHAMPUS Quality and Utilization 
Review Peer Review Organization program.
    (2) Applicability of program. All claims submitted for health 
services under CHAMPUS are subject to review for quality of care and 
appropriate utilization. The Director, OCHAMPUS shall establish 
generally accepted standards, norms and criteria as are necessary for 
this program of utilization and quality review. These standards, norms 
and criteria shall include, but not be limited to, need for inpatient 
admission or inpatient or outpatient service, length of inpatient stay, 
intensity of care, appropriateness of treatment, and level of

[[Page 322]]

institutional care required. The Director, OCHAMPUS may issue 
implementing instructions, procedures and guidelines for retrospective, 
concurrent and prospective review.
    (3) Contractor implementation. The CHAMPUS Quality and Utilization 
Review Peer Review Organization program may be implemented through 
contracts administered by the Director, OCHAMPUS. These contractors may 
include contractors that have exclusive functions in the area of 
utilization and quality review, fiscal intermediary contractors (which 
perform these functions along with a broad range of administrative 
services), and managed care contractors (which perform a range of 
functions concerning management of the delivery and financing of health 
care services under CHAMPUS). Regardless of the contractors involved, 
utilization and quality review activities follow the same standards, 
rules and procedures set forth in this section, unless otherwise 
specifically provided in this section or elsewhere in this part.
    (4) Medical issues affected. The CHAMPUS Quality and Utilization 
Review Peer Review Organization program is distinguishable in purpose 
and impact from other activities relating to the administration and 
management of CHAMPUS in that the Peer Review Organization program is 
concerned primarily with medical judgments regarding the quality and 
appropriateness of health care services. Issues regarding such matters 
as benefit limitations are similar, but, if not determined on the basis 
of medical judgments, are governed by CHAMPUS rules and procedures other 
than those provided in this section. (See, for example, Sec. 199.7 
regarding claims submission, review and payment.) Based on this purpose, 
a major attribute of the Peer Review Organization program is that 
medical judgments are made by (directly or pursuant to guidelines and 
subject to direct review) reviewers who are peers of the health care 
providers providing the services under review.
    (5) Provider responsibilities. Because of the dominance of medical 
judgments in the quality and utilization review program, principal 
responsibility for complying with program rules and procedures rests 
with health care providers. For this reason, there are limitations, set 
forth in this section and in Sec. 199.4(h), on the extent to which 
beneficiaries may be held financially liable for health care services 
not provided in conformity with rules and procedures of the quality and 
utilization review program concerning medical necessity of care.
    (6) Medicare rules used as model. The CHAMPUS Quality and 
Utilization Review Peer Review Organization program, based on specific 
statutory authority, follows many of the quality and utilization review 
requirements and procedures in effect for the Medicare Peer Review 
Organization program, subject to adaptations appropriate for the CHAMPUS 
program. In recognition of the similarity of purpose and design between 
the Medicare and CHAMPUS PRO programs, and to avoid unnecessary 
duplication of effort, the CHAMPUS Quality and Utilization Review Peer 
Review Organization program will have special procedures applicable to 
supplies and services furnished to Medicare-eligible CHAMPUS 
beneficiaries. These procedures will enable CHAMPUS normally to rely 
upon Medicare determinations of medical necessity and appropriateness in 
the processing of CHAMPUS claims as a second payer to Medicare. As a 
general rule, only in cases involving Medicare-eligible CHAMPUS 
beneficiaries where Medicare payment for services and supplies is denied 
for reasons other than medical necessity and appropriateness will the 
CHAMPUS claim be subject to review for quality of care and appropriate 
utilization under the CHAMPUS PRO program. TRICARE will continue to 
perform a medical necessity and appropriateness review for quality of 
care and appropriate utilization under the CHAMPUS PRO program where 
required by statute.
    (b) Objectives and general requirements of review system--(1) In 
general. Broadly, the program of quality and utilization review has as 
its objective to review the quality, completeness and adequacy of care 
provided, as well as its necessity, appropriateness and reasonableness.
    (2) Payment exclusion for services provided contrary to utilization 
and quality

[[Page 323]]

standards. (i) In any case in which health care services are provided in 
a manner determined to be contrary to quality or necessity standards 
established under the quality and utilization review program, payment 
may be wholly or partially excluded.
    (ii) In any case in which payment is excluded pursuant to paragraph 
(b)(2)(i) of this section, the patient (or the patient's family) may not 
be billed for the excluded services.
    (iii) Limited exceptions and other special provisions pertaining to 
the requirements established in paragraphs (b)(2) (i) and (ii) of this 
section, are set forth in Sec. 199.4(h).
    (3) Review of services covered by DRG-based payment system. 
Application of these objectives in the context of hospital services 
covered by the DRG-based payment system also includes a validation of 
diagnosis and procedural information that determines CHAMPUS 
reimbursement, and a review of the necessity and appropriateness of care 
for which payment is sought on an outlier basis.
    (4) Preauthorization and other utilization review procedures--(i) In 
general. all health care services for which payment is sought under 
TRICARE are subject to review for appropriateness of utilization as 
determined by the Director, TRICARE Management Activity, or a designee.
    (A) The procedures for this review may be prospective (before the 
care is provided), concurrent (while the care is in process), or 
retrospective (after the care has been provided). Regardless of the 
procedures of this utilization review, the same generally accepted 
standards, norms and criteria for evaluating the medical necessity, 
appropriateness and reasonableness of the care involved shall apply. The 
Director, TRICARE Management Activity, or a designee, shall establish 
procedures for conducting reviews, including types of health care 
services for which preauthorization or concurrent review shall be 
required. Preauthorization or concurrent review may be required for 
categories of health care services. Except where required by law, the 
categories of health care services for which preauthorization or 
concurrent review is required may vary in different geographical 
locations or for different types of providers.
    (B) For healthcare services provided under TRICARE contracts entered 
into by the Department of Defense after October 30, 2000, medical 
necessity preauthorization will not be required for referrals for 
specialty consultation appointment services requested by primary care 
providers or specialty providers when referring TRICARE Prime 
beneficiaries for specialty consultation appointment services within the 
TRICARE contractor's network. However, the lack of medical necessity 
preauthorization requirements for consultative appointment services does 
not mean that non-emergent admissions or invasive diagnostic or 
therapeutic procedures which in and of themselves constitute categories 
of health care services related to, but beyond the level of the 
consultation appointment service, are not subject to medical necessity 
prior authorization. In fact many such health care services may continue 
to require medical necessity prior authorization as determined by the 
Director, TRICARE Management Activity, or a designee. TRICARE Prime 
beneficiaries are also required to obtain preauthorization before 
seeking health care services from a non-network provider.
    (ii) Preauthorization procedures. With respect to categories of 
health care (inpatient or outpatient) for which preauthorization is 
required, the following procedures shall apply:
    (A) The requirement for preauthorization shall be widely publicized 
to beneficiaries and providers.
    (B) All requests for preauthorization shall be responded to in 
writing. Notification of approval or denial shall be sent to the 
beneficiary. Approvals shall specify the health care services and 
supplies approved and identify any special limits or further 
requirements applicable to the particular case.
    (C) An approved preauthorization shall state the number of days, 
appropriate for the type of care involved, for which it is valid. In 
general, preauthorizations will be valid for 30 days. If the services or 
supplies are not obtained within the number of days specified, a new 
preauthorization request is required. For organ and stem

[[Page 324]]

cell transplants, the preauthorization shall remain in effect as long as 
the beneficiary continues to meet the specific transplant criteria set 
forth in the TRICARE/CHAMPUS Policy Manual, or until the approved 
transplant occurs.
    (D) For healthcare services provided under TRICARE contracts entered 
into by the Department of Defense after October 30, 2000, medical 
necessity preauthorization for specialty consultation appointment 
services within the TRICARE contractor's network will not be required. 
However, the Director, TRICARE Management Activity, or designee, may 
continue to require or waive medical necessity prior (or pre) 
authorization for other categories of other health care services based 
on best business practice.
    (iii) Payment reduction for noncompliance with required utilization 
review procedures. (A) Paragraph (b)(4)(iii) of this section applies to 
any case in which:
    (1) A provider was required to obtain preauthorization or continued 
stay (in connection with required concurrent review procedures) 
approval.
    (2) The provider failed to obtain the necessary approval; and
    (3) The health care services have not been disallowed on the basis 
of necessity, appropriateness or reasonableness.

In such a case, reimbursement will be reduced, unless such reduction is 
waived based on special circumstances.
    (B) In a case described in paragraph (b)(4)(iii)(A) of this section, 
reimbursement will be reduced, unless such reduction is waived based on 
special circumstances. The amount of this reduction shall be at least 
ten percent of the amount otherwise allowable for services for which 
preauthorization (including preauthorization for continued stays in 
connection with concurrent review requirements) approval should have 
been obtained, but was not obtained.
    (C) The payment reduction set forth in paragraph (b)(4)(iii)(B) of 
this section may be waived by the Director, OCHAMPUS when the provider 
could not reasonably have been expected to know of the preauthorization 
requirement or some other special circumstance justifies the waiver.
    (D) Services for which payment is disallowed under paragraph 
(b)(4)(iii) of this section may not be billed to the patient (or the 
patient's family).
    (c) Hospital cooperation. All hospitals which participate in CHAMPUS 
and submit CHAMPUS claims are required to provide all information 
necessary for CHAMPUS to properly process the claims. In order for 
CHAMPUS to be assured that services for which claims are submitted meet 
quality of care standards, hospitals are required to provide the Peer 
Review Organization (PRO) responsible for quality review with all the 
information, within timeframes to be established by OCHAMPUS, necessary 
to perform the review functions required by this paragraph. 
Additionally, all participating hospitals shall provide CHAMPUS 
beneficiaries, upon admission, with information about the admission and 
quality review system including their appeal rights. A hospital which 
does not cooperate in this activity shall be subject to termination as a 
CHAMPUS-authorized provider.
    (1) Documentation that the beneficiary has received the required 
information about the CHAMPUS PRO program must be maintained in the same 
manner as is the notice required for the Medicare program by 42 CFR 
466.78(b).
    (2) The physician acknowledgment required for Medicare under 42 CFR 
412.46 is also required for CHAMPUS as a condition for payment and may 
be satisfied by the same statement as required for Medicare, with 
substitution or addition of ``CHAMPUS'' when the word ``Medicare'' is 
used.
    (3) Participating hospitals must execute a memorandum of 
understanding with the PRO providing appropriate procedures for 
implementation of the PRO program.
    (4) Participating hospitals may not charge a CHAMPUS beneficiary for 
inpatient hospital services excluded on the basis of Sec. 199.4(g)(1) 
(not medically necessary), Sec. 199.4(g)(3) (inappropriate level), or 
Sec. 199.4(g)(7) (custodial care) unless all of the conditions 
established by 42 CFR 412.42(c) with respect to Medicare beneficiaries 
have been met

[[Page 325]]

with respect to the CHAMPUS beneficiary. In such cases in which the 
patient requests a PRO review while the patient is still an inpatient in 
the hospital, the hospital shall provide to the PRO the records required 
for the review by the close of business of the day the patient requests 
review, if such request was made before noon. If the hospital fails to 
provide the records by the close of business, that day and any 
subsequent working day during which the hospital continues to fail to 
provide the records shall not be counted for purposes of the two-day 
period of 42 CFR 412.42(c)(3)(ii).
    (d) Areas of review--(1) Admissions. The following areas shall be 
subject to review to determine whether inpatient care was medically 
appropriate and necessary, was delivered in the most appropriate setting 
and met acceptable standards of quality. This review may include 
preadmission or prepayment review when appropriate.
    (i) Transfers of CHAMPUS beneficiaries from a hospital or hospital 
unit subject to the CHAMPUS DRG-based payment system to another hospital 
or hospital unit.
    (ii) CHAMPUS admissions to a hospital or hospital unit subject to 
the CHAMPUS DRG-based payment system which occur within a certain period 
(specified by OCHAMPUS) of discharge from a hospital or hospital unit 
subject to the CHAMPUS DRG-based payment system.
    (iii) A random sample of other CHAMPUS admissions for each hospital 
subject to the CHAMPUS DRG-based payment system.
    (iv) CHAMPUS admissions in any DRGs which have been specifically 
identified by OCHAMPUS for review or which are under review for any 
other reason.
    (2) DRG validation. The review organization responsible for quality 
of care reviews shall be responsible for ensuring that the diagnostic 
and procedural information reported by hospitals on CHAMPUS claims which 
is used by the fiscal intermediary to assign claims to DRGs is correct 
and matches the information contained in the medical records. In order 
to accomplish this, the following review activities shall be done.
    (i) Perform DRG validation reviews of each case under review.
    (ii) Review of claim adjustments submitted by hospitals which result 
in the assignment of a higher weighted DRG.
    (iii) Review for physician's acknowledgement of annual receipt of 
the penalty statement as contained in the Medicare regulation at 42 CFR 
412.46.
    (iv) Review of a sample of claims for each hospital reimbursed under 
the CHAMPUS DRG-based payment system. Sample size shall be determined 
based upon the volume of claims submitted.
    (3) Outlier review. Claims which qualify for additional payment as a 
long-stay outlier or as a cost-outlier shall be subject to review to 
ensure that the additional days or costs were medically necessary and 
appropriate and met all other requirements for CHAMPUS coverage. In 
addition, claims which qualify as short-stay outliers shall be reviewed 
to ensure that the admission was medically necessary and appropriate and 
that the discharge was not premature.
    (4) Procedure review. Claims for procedures identified by OCHAMPUS 
as subject to a pattern of abuse shall be the subject of intensified 
quality assurance review.
    (5) Other review. Any other cases or types of cases identified by 
OCHAMPUS shall be subject to focused review.
    (e) Actions as a result of review--(1) Findings related to 
individual claims. If it is determined, based upon information obtained 
during reviews, that a hospital has misrepresented admission, discharge, 
or billing information, or is found to have quality of care defects, or 
has taken an action that results in the unnecessary admissions of an 
individual entitled to benefits, unnecessary multiple admission of an 
individual, or other inappropriate medical or other practices with 
respect to beneficiaries or billing for services furnished to 
beneficiaries, the PRO, in conjunction with the fiscal intermediary, 
shall, as appropriate:
    (i) Deny payment for or recoup (in whole or in part) any amount 
claimed or paid for the inpatient hospital and professional services 
related to such determination.

[[Page 326]]

    (ii) Require the hospital to take other corrective action necessary 
to prevent or correct the inappropriate practice.
    (iii) Advise the provider and beneficiary of appeal rights, as 
required by Sec. 199.10 of this part.
    (iv) Notify OCHAMPUS of all such actions.
    (2) Findings related to a pattern of inappropriate practices. In all 
cases where a pattern of inappropriate admissions and billing practices 
that have the effect of circumventing the CHAMPUS DRG-based payment 
system is identified, OCHAMPUS shall be notified of the hospital and 
practice involved.
    (3) Revision of coding relating to DRG validation. The following 
provisions apply in connection with the DRG validation process set forth 
in paragraph (d)(2) of this section.
    (i) If the diagnostic and procedural information in the patient's 
medical record is found to be inconsistent with the hospital's coding or 
DRG assignment, the hospital's coding on the CHAMPUS claim will be 
appropriately changed and payments recalculated on the basis of the 
appropriate DRG assignment.
    (ii) If the information stipulated under paragraph (d)(2) of this 
section is found not to be correct, the PRO will change the coding and 
assign the appropriate DRG on the basis of the changed coding.
    (f) Special procedures in connection with certain types of health 
care services or certain types of review activities--(1) In general. 
Many provisions of this section are directed to the context of services 
covered by the CHAMPUS DRG-based payment system. This section, however, 
is also applicable to other services. In addition, many provisions of 
this section relate to the context of peer review activities performed 
by Peer Review Organizations whose sole functions for CHAMPUS relate to 
the Quality and Utilization Review Peer Review Organization program. 
However, it also applies to review activities conducted by contractors 
who have responsibilities broader than those related to the quality and 
utilization review program. Paragraph (f) of this section authorizes 
certain special procedures that will apply in connection with such 
services and such review activities.
    (2) Services not covered by the DRG-based payment system. In 
implementing the quality and utilization review program in the context 
of services not covered by the DRG-based payment system, the Director, 
OCHAMPUS may establish procedures, appropriate to the types of services 
being reviewed, substantively comparable to services covered by the DRG-
based payment system regarding obligations of providers to cooperate in 
the quality and utilization review program, authority to require 
appropriate corrective actions and other procedures. The Director, 
OCHAMPUS may also establish such special, substantively comparable 
procedures in connection with review of health care services which, 
although covered by the DRG-based payment method, are also affected by 
some other special circumstances concerning payment method, nature of 
care, or other potential utilization or quality issue.
    (3) Peer review activities by contractors also performing other 
administration or management functions--(i) Sole-function PRO versus 
multi-function PRO. In all cases, peer review activities under the 
Quality and Utilization Review Peer Review Organization program are 
carried out by physicians and other qualified health care professionals, 
usually under contract with OCHAMPUS. In some cases, the Peer Review 
Organization contractor's only functions are pursuant to the quality and 
utilization review program. In paragraph (f)(3) of this section, this 
type of contractor is referred to as a ``sole function PRO.'' In other 
cases, the Peer Review Organization contractor is also performing other 
functions in connection with the administration and management of 
CHAMPUS. In paragraph (f)(3) of this section, this type of contractor is 
referred to as a ``multi-function PRO.'' As an example of the latter 
type, managed care contractors may perform a wide range of functions 
regarding management of the delivery and financing of health care 
services under CHAMPUS, including but not limited to functions under the 
Quality and Utilization Review Peer Review Organization program.

[[Page 327]]

    (ii) Special rules and procedures. With respect to multi-function 
PROs, the Director, OCHAMPUS may establish special procedures to assure 
the independence of the Quality and Utilization Review Peer Review 
Organization program and otherwise advance the objectives of the 
program. These special rules and procedures include, but are not limited 
to, the following:
    (A) A reconsidered determination that would be final in cases 
involving sole-function PROs under paragraph (i)(2) of this section will 
not be final in connection with multi-function PROs. Rather, in such 
cases (other than any case which is appealable under paragraph (i)(3) of 
this section), an opportunity for a second reconsideration shall be 
provided. The second reconsideration will be provided by OCHAMPUS or 
another contractor independent of the multi-function PRO that performed 
the review. The second reconsideration may not be further appealed by 
the provider.
    (B) Procedures established by paragraphs (g) through (m) of this 
section shall not apply to any action of a multi-function PRO (or 
employee or other person or entity affiliated with the PRO) carried out 
in performance of functions other than functions under this section.
    (g) Procedures regarding initial determinations. The CHAMPUS PROs 
shall establish and follow procedures for initial determinations that 
are substantively the same or comparable to the procedures applicable to 
Medicare under 42 CFR 466.83 to 466.104. In addition, these procedures 
shall provide that a PRO's determination that an admission is medically 
necessary is not a guarantee of payment by CHAMPUS; normal CHAMPUS 
benefit and procedural coverage requirements must also be applied.
    (h) Procedures regarding reconsiderations. The CHAMPUS PROs shall 
establish and follow procedures for reconsiderations that are 
substantively the same or comparable to the procedures applicable to 
reconsiderations under Medicare pursuant to 42 CFR 473.15 to 473.34, 
except that the time limit for requesting reconsideration (see 42 CFR 
473.20(a)(1)) shall be 90 days. A PRO reconsidered determination is 
final and binding upon all parties to the reconsideration except to the 
extent of any further appeal pursuant to paragraph (i) of this section.
    (i) Appeals and hearings. (1) Beneficiaries may appeal a PRO 
reconsideration determination of OCHAMPUS and obtain a hearing on such 
appeal to the extent allowed and under the procedures set forth in Sec. 
199.10(d).
    (2) Except as provided in paragraph (i)(3), a PRO reconsidered 
determination may not be further appealed by a provider.
    (3) A provider may appeal a PRO reconsideration determination to 
OCHAMPUS and obtain a hearing on such appeal to the extent allowed under 
the procedures set forth in Sec. 199.10(d) if it is a determination 
pursuant to Sec. 199.4(h) that the provider knew or could reasonably 
have been expected to know that the services were excludable.
    (4) For purposes of the hearing process, a PRO reconsidered 
determination shall be considered as the procedural equivalent of a 
formal review determination under Sec. 199.10, unless revised at the 
initiative of the Director, OCHAMPUS prior to a hearing on the appeal, 
in which case the revised determination shall be considered as the 
procedural equivalent of a formal review determination under Sec. 
199.10.
    (5) The provisions of Sec. 199.10(e) concerning final action shall 
apply to hearings cases.
    (j) Acquisition, protection and disclosure of peer review 
information. The provisions of 42 CFR part 476, except Sec. 476.108, 
shall be applicable to the CHAMPUS PRO program as they are to the 
Medicare PRO program.
    (k) Limited immunity from liability for participants in PRO program. 
The provisions of section 1157 of the Social Security Act (42 U.S.C. 
1320c-6) are applicable to the CHAMPUS PRO program in the same manner as 
they apply to the Medicare PRO program. Section 1102(g) of title 10, 
United States Code also applies to the CHAMPUS PRO program.
    (l) Additional provision regarding confidentiality of records--(1) 
General rule. The provisions of 10 U.S.C. 1102 regarding the 
confidentiality of medical quality assurance records shall apply to the

[[Page 328]]

activities of the CHAMPUS PRO program as they do to the activities of 
the external civilian PRO program that reviews medical care provided in 
military hospitals.
    (2) Specific applications. (i) Records concerning PRO deliberations 
are generally nondisclosable quality assurance records under 10 U.S.C. 
1102.
    (ii) Initial denial determinations by PROs pursuant to paragraph (g) 
of this section (concerning medical necessity determinations, DRG 
validation actions, etc.) and subsequent decisions regarding those 
determinations are not nondisclosable quality assurance records under 10 
U.S.C. 1102.
    (iii) Information the subject of mandatory PRO disclosure under 42 
CFR part 476 is not a nondisclosable quality assurance record under 10 
U.S.C. 1102.
    (m) Obligations, sanctions and procedures. (1) The provisions of 42 
CFR 1004.1-1004.80 shall apply to the CHAMPUS PRO program as they do the 
Medicare PRO program, except that the functions specified in those 
sections for the Office of Inspector General of the Department of Health 
and Human Services shall be the responsibility of OCHAMPUS.
    (2) The provisions of 42 U.S.C. section 1395ww(f)(2) concerning 
circumvention by any hospital of the applicable payment methods for 
inpatient services shall apply to CHAMPUS payment methods as they do to 
Medicare payment methods.
    (3) The Director, or a designee, of CHAMPUS shall determine whether 
to impose a sanction pursuant to paragraphs (m)(1) and (m)(2) of this 
section. Providers may appeal adverse sanctions decisions under the 
procedures set forth in Sec. 199.10(d).
    (n) Authority to integrate CHAMPUS PRO and military medical 
treatment facility utilization review activities. (1) In the case of a 
military medical treatment facility (MTF) that has established 
utilization review requirements similar to those under the CHAMPUS PRO 
program, the contractor carrying out this function may, at the request 
of the MTF, utilize procedures comparable to the CHAMPUS PRO program 
procedures to render determinations or recommendations with respect to 
utilization review requirements.
    (2) In any case in which such a contractor has comparable 
responsibility and authority regarding utilization review in both an MTF 
(or MTFs) and CHAMPUS, determinations as to medical necessity in 
connection with services from an MTF or CHAMPUS-authorized provider may 
be consolidated.
    (3) In any case in which an MTF reserves authority to separate an 
MTF determination on medical necessity from a CHAMPUS PRO program 
determination on medical necessity, the MTF determination is not binding 
on CHAMPUS.

[55 FR 625, Jan. 8, 1990, as amended at 58 FR 58961, Nov. 5, 1993; 60 FR 
52095, Oct. 5, 1995; 63 FR 48447, Sept. 10, 1998; 66 FR 40608, Aug. 3, 
2001; 67 FR 42721, June 25, 2002; 68 FR 23033, Apr. 30, 2003; 68 FR 
32363, May 30, 2003; 68 FR 44881, July 31, 2003; 70 FR 19266, Apr. 13, 
2005; 81 FR 61098, Sept. 2, 2016]



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

    (a) Purpose and applicability. (1) The purpose of this section is to 
implement, with respect to health care services provided under the 
supplemental health care program for active duty members of the 
uniformed services, the provision of 10 U.S.C. 1074(c). This section of 
law authorizes DoD to establish for the supplemental care program the 
same payment rules, subject to appropriate modifications, as apply under 
CHAMPUS.
    (2) This section applies to the program, known as the supplemental 
care program, which provides for the payment by the uniformed services 
to private sector health care providers for health care services 
provided to active duty members of the uniformed services. Although not 
part of CHAMPUS, the supplemental care program is similar to CHAMPUS in 
that it is a program for the uniformed services to purchase civilian 
health care services for active duty members. For this reason, the 
Director, OCHAMPUS assists the uniformed services in the administration 
of the supplemental care program.
    (3) This section applies to all health care services covered by the 
CHAMPUS. For purposes of this section, health care services ordered by a 
military treatment facility (MTF) provider for an MTF patient (who is 
not

[[Page 329]]

an active duty member) for whom the MTF provider maintains 
responsibility are also covered by the supplemental care program and 
subject to the requirements of this section.
    (b) Obligation of providers concerning payment for supplemental 
health care for active duty members--(1) Hospitals covered by DRG-based 
payment system. For a hospital covered by the CHAMPUS DRG-based payment 
system to maintain its status as an authorized provider for CHAMPUS 
pursuant to Sec. 199.6, that hospital must also be a participating 
provider for purposes of the supplemental care program. As a 
participating provider, each hospital must accept the DRG-based payment 
system amount determined pursuant to Sec. 199.14 as payment in full for 
the hospital services covered by the system. The failure of any hospital 
to comply with this obligation subjects that hospital to exclusion as a 
CHAMPUS-authorized provider.
    (2) Other participating providers. For any institutional or 
individual provider, other than those described in paragraph (b)(1) of 
this section that is a participating provider, the provider must also be 
a participating provider for purposes of the supplemental care program. 
The provider must accept the CHAMPUS allowable amount determined 
pursuant to Sec. 199.14 as payment in full for the hospital services 
covered by the system. The failure of any provider to comply with this 
obligation subjects the provider to exclusion as a participating 
provider.
    (c) General rule for payment and administration. Subject to the 
special rules and procedures in paragraph (d) of this section and the 
waiver authority in paragraph (e) of this section, as a general rule the 
provisions of Sec. 199.14 shall govern payment and administration of 
claims under the supplemental care program as they do claims under 
CHAMPUS. To the extent necessary to interpret or implement the 
provisions of Sec. 199.14, related provisions of this part shall also 
be applicable.
    (d) Special rules and procedure. As exceptions to the general rule 
in paragraph (c) of this section, the special rules and procedures in 
this section shall govern payment and administration of claims under the 
supplemental care program. These special rules and procedures are 
subject to the TRICARE Prime Remote program for active duty service 
members set forth in paragraph (e) of this section and the waiver 
authority of paragraph (f) of this section.
    (1) There is no patient cost sharing under the supplemental care 
program. All amounts due to be paid to the provider shall be paid by the 
program.
    (2) Preauthorization by the Uniformed Services of each service is 
required for the supplemental care program except for services in cases 
of medical emergency (for which the definition in Sec. 199.2 shall 
apply) or in cases governed by the TRICARE Prime Remote program for 
active duty service members set forth in paragraph (e) of this section. 
It is the responsibility of the active duty members to obtain 
preauthorization for each service. With respect to each emergency 
inpatient admission, after such time as the emergency condition is 
addressed, authorization for any proposed continued stay must be 
obtained within two working days of admission.
    (3) With respect to the filing of claims and similar administrative 
matters for which this part refers to activities of the CHAMPUS fiscal 
intermediaries, for purposes of the supplemental care program, 
responsibilities for claims processing, payment and some other 
administrative matters may be assigned by the Director, OCHAMPUS to the 
same fiscal intermediaries, other contractor, or to the nearest military 
medical treatment facility or medical claims office.
    (4) The annual cost pass-throughs for capital and direct medical 
education costs that are available under the CHAMPUS DRG-based payment 
system are also available, upon request, under the supplemental care 
program. To obtain payment include the number of active duty bed days as 
a separate line item on the annual request to the CHAMPUS fiscal 
intermediaries.
    (5) For providers other than participating providers, the Director, 
OCHAMPUS may authorize payment in excess of CHAMPUS allowable amounts. 
No provider may bill an active duty member any amount in excess of the 
CHAMPUS allowable amount.

[[Page 330]]

    (e) TRICARE Prime Remote for Active Duty Members--(1) General. The 
TRICARE Prime Remote (TPR) program is available for certain active duty 
members of the Uniformed Services assigned to remote locations in the 
United States and the District of Columbia who are entitled to coverage 
of medical care, and the standards for timely access to such care, 
outside a military treatment facility that are comparable to coverage 
for medical care and standards for timely access to such care as exist 
under TRICARE Prime under Sec. 199.17. Those active duty members who 
are eligible under the provisions of 10 U.S.C. 1074(c)(3) and who enroll 
in the TRICARE Prime Remote program, may not be required to receive 
routine primary medical care at a military medical treatment facility.
    (2) Eligibility. To receive health care services under the TRICARE 
Prime Remote program, an individual must be an active duty member of the 
Uniformed Services on orders for more than thirty consecutive days who 
meet the following requirements:
    (i) Has a permanent duty assignment that is greater than fifty miles 
or approximately one hour drive from a military treatment facility or 
military clinic designated as adequate to provide the needed primary 
care services to the active duty service member; and
    (ii) Pursuant to the assignment of such duty, resides at a location 
that is greater than fifty miles or approximately one hour from a 
military medical treatment facility or military clinic designated as 
adequate to provide the needed primary care services to the active duty 
service member.
    (3) Enrollment. An active duty service member eligible for the 
TRICARE Prime Remote program must enroll in the program. If an eligible 
active duty member does not enroll in the TRICARE Prime Remote program, 
the member shall receive health care services provide under the 
supplemental health program subject to all requirements of this section 
without application of the provisions of paragraph (e) of this section.
    (4) Preauthorization. If a TRICARE Prime network under Sec. 199.17 
exists in the remote location, the TRICARE Prime Remote enrolled active 
duty member will select or be assigned a primary care manager. In the 
absence of a TRICARE primary care manager in the remote location and if 
the active duty member is not assigned to a military primary care 
manager based on fitness for duty requirements, the TRICARE Prime Remote 
enrolled active duty member may use a local TRICARE authorized provider 
for primary health care services without preauthorization. Any referral 
for specialty care will require the TRICARE Prime Remote enrolled active 
duty member to obtain preauthorization for such services.
    (f) Waiver authority. With the exception of statutory requirements, 
any restrictions or limitations pursuant to the general rule in 
paragraph (c) of this section, and special rules and procedures in 
paragraph (d) of this section, may be waived by the Director, OCHAMPUS, 
at the request of an authorized official of the uniformed service 
concerned, based on a determination that such waiver is necessary to 
assure adequate availability of health care services to active duty 
members.
    (g) Authorities. (1) The Uniformed Services may establish additional 
procedures, consistent with this part, for the effective administration 
of the supplemental care program in their respective services.
    (2) The Assistant Secretary of Defense for Health Affairs is 
responsible for the overall policy direction of the supplemental care 
program and the administration of this part.
    (3) The Director, OCHAMPUS shall issue procedural requirements for 
the implementation of this section, including requirement for claims 
submission similar to those established by Sec. 199.7.

[56 FR 23801, May 24, 1991, as amended at 58 FR 58963, Nov. 5, 1993; 67 
FR 5479, Feb. 6, 2002; 71 FR 50348, Aug. 25, 2006]



Sec. 199.17  TRICARE program.

    (a) Establishment. The TRICARE program is established for the 
purpose of implementing a comprehensive managed health care program for 
the delivery and financing of health care services in the Military 
Health System.
    (1) Purpose. The TRICARE program implements a number of improvements

[[Page 331]]

primarily through modernized managed care support contracts that include 
special arrangements with civilian sector health care providers and 
better coordination between military medical treatment facilities (MTFs) 
and these civilian providers to deliver an integrated, health care 
delivery system that provides beneficiaries with access to high quality 
healthcare. Implementation of these improvements, to include enhanced 
access, improved health outcomes, increased efficiencies and elimination 
of waste, in addition to improving and maintaining operational medical 
force readiness, includes adoption of special rules and procedures not 
ordinarily followed under CHAMPUS or MTF requirements. This section 
establishes those special rules and procedures.
    (2) Statutory authority. Many of the provisions of this section are 
authorized by statutory authorities other than those which authorize the 
usual operation of the CHAMPUS program, especially 10 U.S.C. 1079 and 
1086. The TRICARE program also relies upon other available statutory 
authorities, including 10 U.S.C. 1075 (TRICARE Select), 10 U.S.C. 1075a 
(TRICARE Prime cost sharing), 10 U.S.C. 1095f (referrals and pre-
authorizations under TRICARE Prime), 10 U.S.C. 1099 (health care 
enrollment system), 10 U.S.C. 1097 (contracts for medical care for 
retirees, dependents and survivors: Alternative delivery of health 
care), and 10 U.S.C. 1096 (resource sharing agreements).
    (3) Scope of the program. The TRICARE program is applicable to all 
the uniformed services. TRICARE Select and TRICARE-for-Life shall be 
available in all areas, including overseas as authorized in paragraph 
(u) of this section. The geographic availability of TRICARE Prime is 
generally limited as provided in this section. The Assistant Secretary 
of Defense (Health Affairs) may also authorize modifications to TRICARE 
program rules and procedures as may be appropriate to the area involved.
    (4) Rules and procedures affected. Much of this section relates to 
rules and procedures applicable to the delivery and financing of health 
care services provided by civilian providers outside military treatment 
facilities. This section provides that certain rules, procedures, rights 
and obligations set forth elsewhere in this part (and usually applicable 
to CHAMPUS) are different under the TRICARE program. To the extent that 
TRICARE program rules, procedures, rights and obligations set forth in 
this section are not different from or otherwise in conflict with those 
set forth elsewhere in this part as applicable to CHAMPUS, the CHAMPUS 
provisions are incorporated into the TRICARE program. In addition, some 
rules, procedures, rights and obligations relating to health care 
services in military treatment facilities are also different under the 
TRICARE program. In such cases, provisions of this section take 
precedence and are binding.
    (5) Implementation based on local action. The TRICARE program is not 
automatically implemented in all respects in all areas where it is 
potentially applicable. Therefore, not all provisions of this section 
are automatically implemented. Rather, implementation of the TRICARE 
program and this section requires an official action by the Director, 
Defense Health Agency. Public notice of the initiation of portions of 
the TRICARE program will be achieved through appropriate communication 
and media methods and by way of an official announcement by the Director 
identifying the military medical treatment facility catchment area or 
other geographical area covered.
    (6) Major features of the TRICARE program. The major features of the 
TRICARE program, described in this section, include the following:
    (i) Beneficiary categories. Under the TRICARE program, health care 
beneficiaries are generally classified into one of several categories:
    (A) Active duty members, who are covered by 10 U.S.C. 1074(a).
    (B) Active duty family members, who are beneficiaries covered by 10 
U.S.C. 1079 (also referred to in this section as ``active duty family 
category'').
    (C) Retirees and their family members (also referred to in this 
section as ``retired category''), who are beneficiaries covered by 10 
U.S.C. 1086(c) other than those beneficiaries eligible for Medicare Part 
A.

[[Page 332]]

    (D) Medicare eligible retirees and Medicare eligible retiree family 
members who are beneficiaries covered by 10 U.S.C. 1086(d) as each 
become individually eligible for Medicare Part A and enroll in Medicare 
Part B.
    (E) Military treatment facility (MTF) only beneficiaries are 
beneficiaries eligible for health care services in military treatment 
facilities, but not eligible for a TRICARE plan covering non-MTF care.
    (ii) Health plans available. The major TRICARE health plans are as 
follows:
    (A) TRICARE Prime. ``TRICARE Prime'' is a health maintenance 
organization (HMO)-like program. It generally features use of military 
treatment facilities and substantially reduced out-of-pocket costs for 
care provided outside MTFs. Beneficiaries generally agree to use 
military treatment facilities and designated civilian provider networks 
and to follow certain managed care rules and procedures. The primary 
purpose of TRICARE Prime is to support the effective operation of an 
MTF, which exists to support the medical readiness of the armed forces 
and the readiness of medical personnel. TRICARE Prime will be offered in 
areas where the Director determines that it is appropriate to support 
the effective operation of one or more MTFs.
    (B) TRICARE Select. ``TRICARE Select'' is a self-managed, preferred 
provider organization (PPO) program. It allows beneficiaries to use the 
TRICARE provider civilian network, with reduced out-of-pocket costs 
compared to care from non-network providers, as well as military 
treatment facilities (where they exist and when space is available). 
TRICARE Select enrollees will not have restrictions on their freedom of 
choice with respect to authorized health care providers. However, when a 
TRICARE Select beneficiary receives services covered under the basic 
program from an authorized health care provider who is not part of the 
TRICARE provider network that care is covered by TRICARE but is subject 
to higher cost sharing amounts for ``out-of-network'' care. Those 
amounts are the same as under the basic program under Sec. 199.4.
    (C) TRICARE for Life. ``TRICARE for Life'' is the Medicare 
wraparound coverage plan under 10 U.S.C. 1086(d). Rules applicable to 
this plan are unaffected by this section; they are generally set forth 
in Sec. Sec. 199.3 (Eligibility), 199.4 (Basic Program Benefits), and 
199.8 (Double Coverage).
    (D) TRICARE Standard. ``TRICARE Standard'' generally referred to the 
basic CHAMPUS program of benefits under Sec. 199.4. While the law 
required termination of TRICARE Standard as a distinct TRICARE plan 
December 31, 2017, the CHAMPUS basic program benefits under Sec. 199.4 
continues as the baseline of benefits common to the TRICARE Prime and 
TRICARE Select plans.
    (iii) Comprehensive enrollment system. The TRICARE program includes 
a comprehensive enrollment system for all categories of beneficiaries 
except TRICARE-for-Life beneficiaries. When eligibility for enrollment 
for TRICARE Prime and/or TRICARE Select exists, a beneficiary must 
enroll in one of the plans. Refer to paragraph (o) of this section for 
TRICARE program enrollment procedures.
    (7) Preemption of State laws. (i) Pursuant to 10 U.S.C. 1103 the 
Department of Defense has determined that in the administration of 10 
U.S.C. chapter 55, preemption of State and local laws relating to health 
insurance, prepaid health plans, or other health care delivery or 
financing methods is necessary to achieve important Federal interests, 
including but not limited to the assurance of uniform national health 
programs for military families and the operation of such programs at the 
lowest possible cost to the Department of Defense, that have a direct 
and substantial effect on the conduct of military affairs and national 
security policy of the United States.
    (ii) Based on the determination set forth in paragraph (a)(7)(i) of 
this section, any State or local law relating to health insurance, 
prepaid health plans, or other health care delivery or financing methods 
is preempted and does not apply in connection with TRICARE regional 
contracts. Any such law, or regulation pursuant to such law, is without 
any force or effect, and State or

[[Page 333]]

local governments have no legal authority to enforce them in relation to 
the TRICARE regional contracts. (However, the Department of Defense may 
by contract establish legal obligations of the part of TRICARE 
contractors to conform with requirements similar or identical to 
requirements of State or local laws or regulations).
    (iii) The preemption of State and local laws set forth in paragraph 
(a)(7)(ii) of this section includes State and local laws imposing 
premium taxes on health or dental insurance carriers or underwriters or 
other plan managers, or similar taxes on such entities. Such laws are 
laws relating to health insurance, prepaid health plans, or other health 
care delivery or financing methods, within the meaning of the statutes 
identified in paragraph (a)(7)(i) of this section. Preemption, however, 
does not apply to taxes, fees, or other payments on net income or profit 
realized by such entities in the conduct of business relating to DoD 
health services contracts, if those taxes, fees or other payments are 
applicable to a broad range of business activity. For purposes of 
assessing the effect of Federal preemption of State and local taxes and 
fees in connection with DoD health and dental services contracts, 
interpretations shall be consistent with those applicable to the Federal 
Employees Health Benefits Program under 5 U.S.C. 8909(f).
    (b) TRICARE Prime and TRICARE Select health plans in general. The 
two primary plans for beneficiaries in the active duty family category 
and the retired category (which does not include most Medicare-eligible 
retirees/dependents) are TRICARE Prime and TRICARE Select. This 
paragraph (b) further describes the TRICARE Prime and TRICARE Select 
health plans.
    (1) TRICARE Prime. TRICARE Prime is a managed care option that 
provides enhanced medical services to beneficiaries at reduced cost-
sharing amounts for beneficiaries whose care is managed by a designated 
primary care manager and provided by an MTF or network provider. TRICARE 
Prime is offered in a location in which an MTF is located (other than a 
facility limited to members of the armed forces) that has been 
designated by the Director as a Prime Service Area. In addition, where 
TRICARE Prime is offered it may be limited to active duty family members 
if the Director determines it is not practicable to offer TRICARE Prime 
to retired category beneficiaries. TRICARE Prime is not offered in areas 
where the Director determines it is impracticable. If TRICARE Prime is 
not offered in a geographical area, certain active duty family members 
residing in the area may be eligible to enroll in TRICARE Prime Remote 
program under paragraph (g) of this section.
    (2) TRICARE Select. TRICARE Select is the self-managed option under 
which beneficiaries may receive authorized basic program benefits from 
any TRICARE authorized provider. The TRICARE Select health care plan 
also provides enhanced program benefits to beneficiaries with access to 
a preferred-provider network with broad geographic availability within 
the United States at reduced out-of-pocket expenses. However, when a 
beneficiary receives services from an authorized health care provider 
who is not part of the TRICARE provider network, only basic program 
benefits (not enhanced Select care) are covered by TRICARE and the 
beneficiary is subject to higher cost sharing amounts for ``out-of-
network'' care. Those amounts are the same as under the basic program 
under Sec. 199.4.
    (c) Eligibility for enrollment in TRICARE Prime and TRICARE Select. 
Beneficiaries in the active duty family category and the retired 
category are eligible to enroll in TRICARE Prime and/or TRICARE Select 
as outlined in this paragraph (c). A retiree or retiree family member 
who becomes eligible for Medicare Part A is not eligible to enroll in 
TRICARE Select; however, as provided in this paragraph (c), some 
Medicare eligible retirees/family members may be allowed to enroll in 
TRICARE Prime where available. In general, when a retiree or retiree 
family member becomes individually eligible for Medicare Part A and 
enrolls in Medicare Part B, he/she is automatically eligible for 
TRICARE-for-Life and is required to enroll in the Defense Enrollment 
Eligibility Reporting System (DEERS) to verify eligibility. Further,

[[Page 334]]

some rules and procedures are different for dependents of active duty 
members and retirees, dependents, and survivors.
    (1) Active duty members. Active duty members are required to enroll 
in Prime where it is offered. Active duty members shall have first 
priority for enrollment in Prime.
    (2) Dependents of active duty members. Beneficiaries in the active 
duty family member category are eligible to enroll in Prime (where 
offered) or Select.
    (3) Survivors of deceased members. (i) The surviving spouse of a 
member who dies while on active duty for a period of more than 30 days 
is eligible to enroll in Prime (where offered) or Select for a 3 year 
period beginning on the date of the member's death under the same rules 
and provisions as dependents of active duty members.
    (ii) A dependent child or unmarried person (as described in Sec. 
199.3(b)(2)(ii) or (iv)) of a member who dies while on active duty for a 
period of more than 30 days whose death occurred on or after October 7, 
2001, is eligible to enroll in Prime (where offered) or Select and is 
subject to the same rules and provisions of dependents of active duty 
members for a period of three years from the date the active duty 
sponsor dies or until the surviving eligible dependent:
    (A) Attains 21 years of age; or
    (B) Attains 23 years of age or ceases to pursue a full-time course 
of study prior to attaining 23 years of age, if, at 21 years of age, the 
eligible surviving dependent is enrolled in a full-time course of study 
in a secondary school or in a full-time course of study in an 
institution of higher education approved by the Secretary of Defense and 
was, at the time of the sponsor's death, in fact dependent on the member 
for over one-half of such dependent's support.
    (4) Retirees, dependents of retirees, and survivors (other than 
survivors of deceased members covered under paragraph (c)(3) of this 
section). All retirees, dependents of retirees, and survivors who are 
not eligible for Medicare Part A are eligible to enroll in Select. 
Additionally, retirees, dependents of retirees, and survivors who are 
not eligible for Medicare Part A based on age are also eligible to 
enroll in TRICARE Prime in locations where it is offered and where an 
MTF has, in the judgment of the Director, a significant number of health 
care providers, including specialty care providers, and sufficient 
capability to support the efficient operation of TRICARE Prime for 
projected retired beneficiary enrollees in that location.
    (d) Health benefits under TRICARE Prime--(1) Military treatment 
facility (MTF) care--(i) In general. All participants in Prime are 
eligible to receive care in military treatment facilities. Participants 
in Prime will be given priority for such care over other beneficiaries. 
Among the following beneficiary groups, access priority for care in 
military treatment facilities where TRICARE is implemented as follows:
    (A) Active duty service members;
    (B) Active duty service members' dependents and survivors of service 
members who died on active duty, who are enrolled in TRICARE Prime;
    (C) Retirees, their dependents and survivors, who are enrolled in 
TRICARE Prime;
    (D) Active duty service members' dependents and survivors of 
deceased members, who are not enrolled in TRICARE Prime; and
    (E) Retirees, their dependents and survivors who are not enrolled in 
TRICARE Prime. For purposes of this paragraph (d)(1), survivors of 
members who died while on active duty are considered as among dependents 
of active duty service members.
    (ii) Special provisions. Enrollment in Prime does not affect access 
priority for care in military treatment facilities for several 
miscellaneous beneficiary groups and special circumstances. Those 
include Secretarial designees, NATO and other foreign military personnel 
and dependents authorized care through international agreements, 
civilian employees under workers' compensation programs or under safety 
programs, members on the Temporary Disability Retired List (for 
statutorily required periodic medical examinations), members of the 
reserve components not on active duty (for covered medical services), 
military prisoners, active duty dependents unable to enroll in Prime and 
temporarily

[[Page 335]]

away from place of residence, and others as designated by the Assistant 
Secretary of Defense (Health Affairs). Additional exceptions to the 
normal Prime enrollment access priority rules may be granted for other 
categories of individuals, eligible for treatment in the MTF, whose 
access to care is necessary to provide an adequate clinical case mix to 
support graduate medical education programs or readiness-related medical 
skills sustainment activities, to the extent approved by the ASD(HA).
    (2) Non-MTF care for active duty members. Under Prime, non-MTF care 
needed by active duty members continues to be arranged under the 
supplemental care program and subject to the rules and procedures of 
that program, including those set forth in Sec. 199.16.
    (3) Civilian sector Prime benefits. Health benefits for Prime 
enrollees for care received from civilian providers are those under 
Sec. 199.4 and the additional benefits identified in paragraph (f) of 
this section.
    (e) Health benefits under the TRICARE Select plan--(1) Civilian 
sector care. The health benefits under TRICARE Select for enrolled 
beneficiaries received from civilian providers are those under Sec. 
199.4, and, in addition, those in paragraph (f) of this section when 
received from a civilian network provider.
    (2) Military treatment facility (MTF) care. All TRICARE Select 
enrolled beneficiaries continue to be eligible to receive care in 
military treatment facilities on a space available basis.
    (f) Benefits under TRICARE Prime and TRICARE Select--(1) In general. 
Except as specifically provided or authorized by this section, all 
benefits provided, and benefit limitations established, pursuant to this 
part, shall apply to TRICARE Prime and TRICARE Select.
    (2) Preventive care services. Certain preventive care services not 
normally provided as part of basic program benefits under Sec. 199.4 
are covered benefits when provided to Prime or Select enrollees by 
providers in the civilian provider network. Such additional services are 
authorized under 10 U.S.C. 1097, including preventive care services not 
part of the entitlement under 10 U.S.C. 1074d and services that would 
otherwise be excluded under 10 U.S.C. 1079(a)(10). Other authority for 
such additional services includes section 706 of the National Defense 
Authorization Act for Fiscal Year 2017. The specific set of such 
services shall be established by the Director and announced annually 
before the open season enrollment period. Standards for preventive care 
services shall be developed based on guidelines from the U.S. Department 
of Health and Human Services. Such standards shall establish a specific 
schedule, including frequency or age specifications for services that 
may include, but are not limited to:
    (i) Laboratory and imaging tests, including blood lead, rubella, 
cholesterol, fecal occult blood testing, and mammography;
    (ii) Cancer screenings (including cervical, breast, lung, prostate, 
and colon cancer screenings);
    (iii) Immunizations;
    (iv) Periodic health promotion and disease prevention exams;
    (v) Blood pressure screening;
    (vi) Hearing exams;
    (vii) Sigmoidoscopy or colonoscopy;
    (viii) Serologic screening; and
    (ix) Appropriate education and counseling services. The exact 
services offered shall be established under uniform standards 
established by the Director.
    (3) Treatment of obesity. Under the authority of 10 U.S.C. 1097 and 
sections 706 and 729 of the National Defense Authorization Act for 
Fiscal Year 2017, notwithstanding 10 U.S.C. 1079(a)(10), treatment of 
obesity is covered under TRICARE Prime and TRICARE Select even if it is 
the sole or major condition treated. Such services must be provided by a 
TRICARE network provider and be medically necessary and appropriate in 
the context of the particular patient's treatment.
    (4) High value services. Under the authority of 10 U.S.C. 1097 and 
other authority, including sections 706 and 729 of the NDAA-17, for 
purposes of improving population-based health outcomes and incentivizing 
medical intervention programs to address chronic diseases and other 
conditions and healthy lifestyle interventions, the Director may waive 
or reduce cost sharing requirements for TRICARE Prime and TRICARE Select 
enrollees for care

[[Page 336]]

received from network providers for certain health care services 
designated for this purpose. The specific services designated for this 
purpose will be those the Director determines provide especially high 
value in terms of better health outcomes. The specific services affected 
for any plan year will be announced by the Director prior to the open 
season enrollment period for that plan year. Services affected by 
actions of the Director under this paragraph (f)(4) may be associated 
with actions taken for high value medications under Sec. 199.21(j)(3) 
for select pharmaceutical agents to be cost-shared at a reduced or zero 
dollar rate.
    (5) Other services. In addition to services provided pursuant to 
paragraphs (f)(2) through (4) of this section, other benefit 
enhancements may be added and other benefit restrictions may be waived 
or relaxed in connection with health care services provided to TRICARE 
Prime and TRICARE Select enrollees. Any such other enhancements or 
changes must be approved by the Director based on uniform standards.
    (g) TRICARE Prime Remote for Active Duty Family Members--(1) In 
general. In geographic areas in which TRICARE Prime is not offered and 
in which eligible family members reside, there is offered under 10 
U.S.C. 1079(p) TRICARE Prime Remote for Active Duty Family Members as an 
enrollment option. TRICARE Prime Remote for Active Duty Family Members 
(TPRADFM) will generally follow the rules and procedures of TRICARE 
Prime, except as provided in this paragraph (g) and otherwise except to 
the extent the Director determines them to be infeasible because of the 
remote area.
    (2) Active duty family member. For purposes of this paragraph (g), 
the term ``active duty family member'' means one of the following 
dependents of an active duty member of the Uniformed Services:
    (i) Spouse, child, or unmarried person, as defined in Sec. 
199.3(b)(2)(i), (ii), or (iv);
    (ii) For a 3-year period, the surviving spouse of a member who dies 
while on active duty for a period of more than 30 days whose death 
occurred on or after October 7, 2001; and
    (iii) The surviving dependent child or unmarried person, as defined 
in Sec. 199.3(b)(2)(ii) or (iv), of a member who dies while on active 
duty for a period of more than 30 days whose death occurred on or after 
October 7, 2001. Active duty family member status is for a period of 3 
years from the date the active duty sponsor dies or until the surviving 
eligible dependent:
    (A) Attains 21 years of age; or
    (B) Attains 23 years of age or ceases to pursue a full-time course 
of study prior to attaining 23 years of age, if, at 21 years of age, the 
eligible surviving dependent is enrolled in a full-time course of study 
in a secondary school or in a full-time course of study in an 
institution of higher education approved by the Secretary of Defense and 
was, at the time of the sponsor's death, in fact dependent on the member 
for over one-half of such dependent's support.
    (3) Eligibility. (i) An active duty family member is eligible for 
TRICARE Prime Remote for Active Duty Family Members if he or she is 
eligible for CHAMPUS and, on or after December 2, 2003, meets the 
criteria of paragraphs (g)(3)(i)(A) and (B) or paragraph (g)(3)(i)(C) of 
this section or on or after October 7, 2001, meets the criteria of 
paragraph (g)(3)(i)(D) or (E) of this section:
    (A) The family member's active duty sponsor has been assigned 
permanent duty as a recruiter; as an instructor at an educational 
institution, an administrator of a program, or to provide administrative 
services in support of a program of instruction for the Reserve 
Officers' Training Corps; as a full-time adviser to a unit of a reserve 
component; or any other permanent duty designated by the Director that 
the Director determines is more than 50 miles, or approximately one hour 
driving time, from the nearest military treatment facility that is 
adequate to provide care.
    (B) The family members and active duty sponsor, pursuant to the 
assignment of duty described in paragraph (g)(3)(i)(A) of this section, 
reside at a location designated by the Director, that the Director 
determines is more than 50 miles, or approximately one hour driving 
time, from the nearest

[[Page 337]]

military medical treatment facility adequate to provide care.
    (C) The family member, having resided together with the active duty 
sponsor while the sponsor served in an assignment described in paragraph 
(g)(3)(i)(A) of this section, continues to reside at the same location 
after the sponsor relocates without the family member pursuant to orders 
for a permanent change of duty station, and the orders do not authorize 
dependents to accompany the sponsor to the new duty station at the 
expense of the United States.
    (D) For a 3 year period, the surviving spouse of a member who dies 
while on active duty for a period of more than 30 days whose death 
occurred on or after October 7, 2001.
    (E) The surviving dependent child or unmarried person as defined in 
Sec. 199.3(b)(2)(ii) or (iv), of a member who dies while on active duty 
for a period of more than 30 days whose death occurred on or after 
October 7, 2001, for three years from the date the active duty sponsor 
dies or until the surviving eligible dependent:
    (1) Attains 21 years of age; or
    (2) Attains 23 years of age or ceases to pursue a full-time course 
of study prior to attaining 23 years of age, if, at 21 years of age, the 
eligible surviving dependent is enrolled in a full-time course of study 
in a secondary school or in a full-time course of study in an 
institution of higher education approved by the Secretary of Defense and 
was, at the time of the sponsor's death, in fact dependent on the member 
for over one-half of such dependent's support.
    (ii) A family member who is a dependent of a reserve component 
member is eligible for TRICARE Prime Remote for Active Duty Family 
Members if he or she is eligible for CHAMPUS and meets all of the 
following additional criteria:
    (A) The reserve component member has been ordered to active duty for 
a period of more than 30 days.
    (B) The family member resides with the member.
    (C) The Director, determines the residence of the reserve component 
member is more than 50 miles, or approximately one hour driving time, 
from the nearest military medical treatment facility that is adequate to 
provide care.
    (D) ``Resides with'' is defined as the TRICARE Prime Remote 
residence address at which the family resides with the activated 
reservist upon activation.
    (4) Enrollment. TRICARE Prime Remote for Active Duty Family Members 
requires enrollment under procedures set forth in paragraph (o) of this 
section or as otherwise established by the Director.
    (5) Health care management requirements under TRICARE Prime Remote 
for Active Duty Family Members. The additional health care management 
requirements applicable to Prime enrollees under paragraph (n) of this 
section are applicable under TRICARE Prime Remote for Active Duty Family 
Members unless the Director determines they are infeasible because of 
the particular remote location. Enrollees will be given notice of the 
applicable management requirements in their remote location.
    (6) Cost sharing. Beneficiary cost sharing requirements under 
TRICARE Prime Remote for Active Duty Family Members are the same as 
those under TRICARE Prime under paragraph (m) of this section, except 
that the higher point-of-service option cost sharing and deductible 
shall not apply to routine primary health care services in cases in 
which, because of the remote location, the beneficiary is not assigned a 
primary care manager or the Director determines that care from a TRICARE 
network provider is not available within the TRICARE access standards 
under paragraph (p)(5) of this section. The higher point-of-service 
option cost sharing and deductible shall apply to specialty health care 
services received by any TRICARE Prime Remote for Active Duty Family 
Members enrollee unless an appropriate referral/preauthorization is 
obtained as required by paragraph (n) of this section under TRICARE 
Prime. In the case of pharmacy services under Sec. 199.21, where the 
Director determines that no TRICARE network retail pharmacy has been 
established within a reasonable distance of the residence of the TRICARE 
Prime Remote for Active Duty Family Members enrollee, cost

[[Page 338]]

sharing applicable to TRICARE network retail pharmacies will be 
applicable to all CHAMPUS eligible pharmacies in the remote area.
    (h) Resource sharing agreements. Under the TRICARE program, any 
military medical treatment facility (MTF) commander may establish 
resource sharing agreements with the applicable managed care support 
contractor for the purpose of providing for the sharing of resources 
between the two parties. Internal resource sharing and external resource 
sharing agreements are authorized. The provisions of this paragraph (h) 
shall apply to resource sharing agreements under the TRICARE program.
    (1) In connection with internal resource sharing agreements, 
beneficiary cost sharing requirements shall be the same as those 
applicable to health care services provided in facilities of the 
uniformed services.
    (2) Under internal resource sharing agreements, the double coverage 
requirements of Sec. 199.8 shall be replaced by the Third Party 
Collection procedures of 32 CFR part 220, to the extent permissible 
under such part. In such a case, payments made to a resource sharing 
agreement provider through the TRICARE managed care support contractor 
shall be deemed to be payments by the MTF concerned.
    (3) Under internal or external resource sharing agreements, the 
commander of the MTF concerned may authorize the provision of services, 
pursuant to the agreement, to Medicare-eligible beneficiaries, if such 
services are not reimbursable by Medicare, and if the commander 
determines that this will promote the most cost-effective provision of 
services under the TRICARE program.
    (4) Under external resource sharing agreements, there is no cost 
sharing applicable to services provided by military facility personnel. 
Cost sharing for non-MTF institutional and related ancillary charges 
shall be as applicable to services provided under TRICARE Prime or 
TRICARE Select, as appropriate.
    (i) General quality assurance, utilization review, and 
preauthorization requirements under the TRICARE program. All quality 
assurance, utilization review, and preauthorization requirements for the 
basic CHAMPUS program, as set forth in this part (see especially 
applicable provisions in Sec. Sec. 199.4 and 199.15), are applicable to 
Prime and Select except as provided in this chapter. Pursuant to an 
agreement between a military medical treatment facility and TRICARE 
managed care support contractor, quality assurance, utilization review, 
and preauthorization requirements and procedures applicable to health 
care services outside the military medical treatment facility may be 
made applicable, in whole or in part, to health care services inside the 
military medical treatment facility.
    (j) Pharmacy services. Pharmacy services under Prime and Select are 
as provided in the Pharmacy Benefits Program (see Sec. 199.21).
    (k) Design of cost sharing structures under TRICARE Prime and 
TRICARE Select--(1) In general. The design of the cost sharing 
structures under TRICARE Prime and TRICARE Select includes several major 
factors: beneficiary category (e.g., active duty family member category 
or retired category, and there are some special rules for survivors of 
active duty deceased sponsors and medically retired members and their 
dependents); date of initial military affiliation (i.e., before or on or 
after January 1, 2018), category of health care service received, and 
network or non-network status of the provider.
    (2) Categories of health care services. This paragraph (k)(2) 
describes the categories of health care services relevant to determining 
copayment amounts.
    (i) Preventive care visits. These are outpatient visits and related 
services described in paragraph (f)(2) of this section. There are no 
cost sharing requirements for preventive care listed under Sec. Sec. 
199.4(e)(28)(i) through (iv) and 199.17(f)(2). Beneficiaries shall not 
be required to pay any portion of the cost of these preventive services 
even if the beneficiary has not satisfied any applicable deductible for 
that year.
    (ii) Primary care outpatient visits. These are outpatient visits, 
not occurring in an ER or urgent care center, with the following 
provider specialties:
    (A) General Practice.
    (B) Family Practice.

[[Page 339]]

    (C) Internal Medicine.
    (D) OB/GYN.
    (E) Pediatrics.
    (F) Physician's Assistant.
    (G) Nurse Practitioner.
    (H) Nurse Midwife.
    (iii) Specialty care outpatient visits. This category applies to 
outpatient care provided by provider specialties other than those listed 
under primary care outpatient visits under paragraph (k)(2)(ii) of this 
section and not specifically included in one of the other categories of 
care (e.g., emergency room visits etc.) under paragraph (k)(2) of this 
section. This category also includes partial hospitalization services, 
intensive outpatient treatment, and opioid treatment program services. 
The per visit fee shall be applied on a per day basis on days services 
are received, with the exception of opioid treatment program services 
reimbursed in accordance with Sec. 199.14(a)(2)(ix)(A)(3)(i) which per 
visit fee will apply on a weekly basis.
    (iv) Emergency room visits.
    (v) Urgent care center visits.
    (vi) Ambulance services. This is for ground ambulance services.
    (vii) Ambulatory surgery. This is for facility-based outpatient 
ambulatory surgery services.
    (viii) Inpatient hospital admissions.
    (ix) Skilled nursing facility or rehabilitation facility admissions. 
This category includes a residential treatment center, or substance use 
disorder rehabilitation facility residential treatment program.
    (x) Durable medical equipment, prosthetic devices, and other 
authorized supplies.
    (xi) Outpatient prescription pharmaceuticals. These are addressed in 
Sec. 199.21.
    (3) Beneficiary categories further subdivided. For purposes of both 
TRICARE Prime and TRICARE Select, enrollment fees and cost sharing by 
beneficiary category (e.g., active duty family member category or 
retired category) are further differentiated between two groups:
    (i) Group A consists of Prime or Select enrollees whose sponsor 
originally enlisted or was appointed in a uniformed service before 
January 1, 2018.
    (ii) Group B consists of Prime or Select enrollees whose sponsor 
originally enlisted or was appointed in a uniformed service on or after 
January 1, 2018.
    (l) Enrollment fees and cost sharing (including deductibles and 
catastrophic cap) amounts. This paragraph (l) provides enrollment fees 
and cost sharing requirements applicable to TRICARE Prime and TRICARE 
Select enrollees.
    (1) Enrollment fee and cost sharing under TRICARE Prime. (i) For 
Group A enrollees:
    (A) There is no enrollment fee for the active duty family member 
category.
    (B) The retired category enrollment fee in calendar year 2018 is 
equal to the Prime enrollment fee for fiscal year 2017, indexed to 
calendar year 2018 and thereafter in accordance with 10 U.S.C. 1097. The 
Assistant Secretary of Defense (Health Affairs) may exempt survivors of 
active duty deceased sponsors and medically retired Uniformed Services 
members and their dependents from future increases in enrollment fees. 
The Assistant Secretary of Defense (Health Affairs) may also waive the 
enrollment fee requirements for Medicare-eligible beneficiaries.
    (C) The cost sharing amounts are established annually in connection 
with the open season enrollment period. An amount is established for 
each category of care identified in paragraph (k)(2) of this section, 
taking into account all applicable statutory provisions, including 10 
U.S.C. chapter 55. The amount for each category of care may not exceed 
the amount for Group B as set forth in 10 U.S.C. 1075a.
    (D) The catastrophic cap is $1,000 for active duty families and 
$3,000 for retired category families.
    (ii) For Group B TRICARE Prime enrollees, the enrollment fee, 
catastrophic cap, and cost sharing amounts are as set forth in 10 U.S.C. 
1075a. The cost sharing requirements applicable to services not 
specifically addressed in the table set forth in 10 U.S.C. 1075a(b)(1) 
shall be determined by the Director, DHA.
    (iii) For both Group A and Group B, for health care services 
obtained by a Prime enrollee but not obtained in accordance with the 
rules and procedures

[[Page 340]]

of Prime (e.g. failure to obtain a primary care manager referral when 
such a referral is required or seeing a non-network provider when Prime 
rules require use of a network provider and one is available) will not 
be paid under Prime rules but may be covered by the point-of-service 
option. For services obtained under the point-of-service option, the 
deductible is $300 per person and $600 per family. The beneficiary cost 
share is 50 percent of the allowable charges for inpatient and 
outpatient care, after the deductible. Point-of-service charges do not 
count against the annual catastrophic cap.
    (2) Enrollment fee and cost sharing under TRICARE Select. (i) For 
Group A enrollees:
    (A) The enrollment fee in calendar years 2018 through 2020 is zero 
and the catastrophic cap is as provided in 10 U.S.C. 1079 or 1086. The 
enrollment fee and catastrophic cap in 2021 and thereafter for certain 
beneficiaries in the retired category is as provided in 10 U.S.C. 
1075(e), except the enrollment fee and catastrophic cap adjustment shall 
not apply to survivors of active duty deceased sponsors and medically 
retired Uniformed Services members and their dependents. Payment of 
TRICARE premiums and enrollment fees will be withheld from the retired, 
retainer or equivalent pay of these beneficiaries in the retired 
category to the maximum extent practicable upon complete implementation 
of this rule and thereafter. Appropriate processes to require and manage 
these allotments, to include frequency and method, as well as 
alternatives when allotments are not practicable, shall be determined by 
the Director, DHA. An exception may be made for certain survivors of 
active duty deceased sponsors and medically retired Uniformed Services 
members and their dependents, for which the enrollment fee and 
catastrophic cap adjustments shall not apply.
    (B) The cost sharing amounts for network care for Group A enrollees 
are calculated for each category of care described in paragraph (k)(2) 
of this section by taking into account all applicable statutory 
provisions, including 10 U.S.C. chapter 55, as if TRICARE Extra and 
Standard programs were still being implemented. When determined 
practicable, including efficiency and effectiveness in administration, 
the amounts established are converted to fixed dollar amounts for each 
category of care for which a fixed dollar amount is established by 10 
U.S.C. 1075. When determined not to be practicable, as in the categories 
of care including ambulatory surgery, inpatient admissions, and 
inpatient skilled nursing/rehabilitation admissions, the calculated 
cost-sharing amounts are not converted to fixed dollar amounts. The 
fixed dollar amount for each category is set prospectively for each 
calendar year as the amount (rounded down to the nearest dollar amount) 
equal to 15% for enrollees in the active duty family beneficiary 
category or 20% for enrollees in the retired beneficiary category of the 
projected average allowable payment amount for each category of care 
during the year, as estimated by the Director. The projected average 
allowable payment amount for primary care (including urgent care) and 
specialty care outpatient appointments include payments for ancillary 
services (e.g., laboratory and radiology services) that are provided in 
connection with the respective outpatient visit. As such, there is no 
separate cost sharing for these ancillary services.
    (C) The cost share for care received from non-network providers is 
as provided in Sec. 199.4.
    (D) The annual deductible amount is as provided in 10 U.S.C. 1079 or 
1086.
    (ii) For Group B TRICARE Select enrollees, the enrollment fee, 
annual deductible for services received while in an outpatient status, 
catastrophic cap., and cost sharing amounts are as provided in 10 U.S.C. 
1075 and as consistent with this section. The cost sharing requirements 
applicable to services not specifically addressed in 10 U.S.C. 1075 
shall be determined by the Director, DHA.
    (3) Special cost-sharing rules. (i) There is no separate cost-
sharing applicable to ancillary health care services obtained in 
conjunction with an outpatient primary or specialty care visit under 
TRICARE Prime or from network providers under TRICARE Select.

[[Page 341]]

    (ii) Cost-sharing for maternity care services shall be determined in 
accordance with Sec. 199.4(e)(16).
    (iii) Cost-sharing and copayments (including deductibles) shall be 
waived for in-network telehealth services during the national emergency 
for the global coronavirus 2019 (COVID-19) pandemic. This temporary 
waiver provision terminates July 1, 2022 or the date of termination of 
the President's declared national emergency for COVID-19, whichever is 
earlier.
    (4) Special transition rule for the last quarter of calendar year 
2017. In order to transition enrollment fees, deductibles, and 
catastrophic caps from a fiscal year basis to a calendar year basis, the 
following special rules apply for the last quarter of calendar year 
2017:
    (A) A Prime enrollee's enrollment fee for the quarter is one-fourth 
of the enrollment fee for fiscal year 2017.
    (B) The deductible amount and the catastrophic cap amount for fiscal 
year 2017 will be applicable to the 15-month period of October 1, 2016 
through December 31, 2017.
    (m) Limit on out-of-pocket costs under TRICARE Prime and TRICARE 
Select. For the purpose of this paragraph (m), out-of-pocket costs means 
all payments required of beneficiaries under paragraph (l) of this 
section, including enrollment fees, deductibles, and cost-sharing 
amounts, with the exception of point-of-service charges. In any case in 
which a family reaches their applicable catastrophic cap, all remaining 
payments that would have been required of the beneficiary under 
paragraph (l) of this section for authorized care, with the exception of 
applicable point-of-service charges pursuant to paragraph (l)(1)(iii) of 
this section, will be paid by the program for the remainder of that 
calendar year.
    (n) Additional health care management requirements under TRICARE 
Prime. Prime has additional, special health care management requirements 
not applicable under TRICARE Select.
    (1) Primary care manager. (i) All active duty members and Prime 
enrollees will be assigned a primary care manager pursuant to a system 
established by the Director, and consistent with the access standards in 
paragraph (p)(5)(i) of this section. The primary care manager may be an 
individual, physician, a group practice, a clinic, a treatment site, or 
other designation. The primary care manager may be part of the MTF or 
the Prime civilian provider network. The enrollee will be given the 
opportunity to register a preference for primary care manager from a 
list of choices provided by the Director. This preference will be 
entered on a TRICARE Prime enrollment form or similar document. 
Preference requests will be considered, but primary care manager 
assignments will be subject to availability under the MTF beneficiary 
category priority system under paragraph (d) of this section and subject 
to other operational requirements. (ii) Prime enrollees who are 
dependents of active duty members in pay grades E-1 through E-4 shall 
have priority over other active duty dependents for enrollment with MTF 
PCMs, subject to MTF capacity.
    (2) Referral and preauthorization requirements. (i) Under TRICARE 
Prime there are certain procedures for referral and preauthorization.
    (A) For the purpose of this paragraph (n)(2), referral addresses the 
issue of who will provide authorized health care services. In many 
cases, Prime beneficiaries will be referred by a primary care manager to 
a medical department of an MTF if the type of care needed is available 
at the MTF. In such a case, failure to adhere to that referral will 
result in the care being subject to point-of-service charges. In other 
cases, a referral may be to the civilian provider network, and again, 
point-of-service charges would apply to a failure to follow the 
referral.
    (B) In contrast to referral, preauthorization addresses the issue of 
whether particular services may be covered by TRICARE, including whether 
they appear necessary and appropriate in the context of the patient's 
diagnosis and circumstances. A major purpose of preauthorization is to 
prevent surprises about coverage determinations, which are sometimes 
dependent on particular details regarding the patient's condition and 
circumstances. While TRICARE Prime has referral requirements that do not 
exist for TRICARE Select, TRICARE

[[Page 342]]

Select has some preauthorization requirements that do not exist for 
TRICARE Prime.
    (ii) Except as otherwise provided in this paragraph (n)(2), a 
beneficiary enrolled in TRICARE Prime is required to obtain a referral 
for care through a designated primary care manager (or other authorized 
care coordinator) prior to obtaining care under the TRICARE program.
    (iii) There is no referral requirement under paragraph (n)(2)(i) of 
this section in the following circumstances:
    (A) In emergencies;
    (B) For urgent care services for a certain number of visits per year 
(zero to unlimited), with the number specified by the Director and 
notice provided in connection with the open season enrollment period 
preceding the plan year; and
    (C) In any other special circumstances identified by the Director, 
generally with notice provided in connection with the open season 
enrollment period for the plan year.
    (iv) A primary care manager who believes a referral to a specialty 
care provider is medically necessary and appropriate need not obtain 
pre-authorization from the managed care support contractor before 
referring a patient to a network specialty care provider. Such 
preauthorization is only required with respect to a primary care 
manager's referral for:
    (A) Inpatient hospitalization;
    (B) Inpatient care at a skilled nursing facility;
    (C) Inpatient care at a rehabilitation facility; and
    (D) Inpatient care at a residential treatment facility.
    (v) The restrictions in paragraph (n)(2)(iv) of this section on 
preauthorization requirements do not apply to any preauthorization 
requirements that are generally applicable under TRICARE, independent of 
TRICARE Prime referrals, such as:
    (A) Under the Pharmacy Benefits Program under 10 U.S.C. 1074g and 
Sec. 199.21.
    (B) For laboratory and other ancillary services.
    (C) Durable medical equipment.
    (vi) The cost-sharing requirement for a beneficiary enrolled in 
TRICARE Prime who does not obtain a referral for care when it is 
required, including care from a non-network provider, is as provided in 
paragraph (l)(1)(iii) of this section concerning point of service care.
    (vii) In the case of care for which preauthorization is not required 
under paragraph (n)(2)(iv) of this section, the Director may authorize a 
managed care support contractor to offer a voluntary pre-authorization 
program to enable beneficiaries and providers to confirm covered benefit 
status and/or medical necessity or to understand the criteria that will 
be used by the managed care support contractor to adjudicate the claim 
associated with the proposed care. A network provider may not be 
required to use such a program with respect to a referral.
    (3) Restrictions on the use of providers. The requirements of this 
paragraph (n)(3) shall be applicable to health care utilization under 
TRICARE Prime, except in cases of emergency care and under point-of-
service option (see paragraph (n)(4) of this section).
    (i) Prime enrollees must obtain all primary health care from the 
primary care manager or from another provider to which the enrollee is 
referred by the primary care manager or otherwise authorized.
    (ii) For any necessary specialty care and non-emergent inpatient 
care, the primary care manager or other authorized individual will 
assist in making an appropriate referral.
    (iii) Though referrals for specialty care are generally the 
responsibility of the primary care managers, subject to discretion 
exercised by the TRICARE Regional Directors, and established in regional 
policy or memoranda of understanding, specialist providers may be 
permitted to refer patients for additional specialty consultation 
appointment services within the TRICARE contractor's network without 
prior authorization by primary care managers.
    (iv) The following procedures will apply to health care referrals 
under TRICARE Prime:
    (A) The first priority for referral for specialty care or inpatient 
care will be to the local MTF (or to any other MTF in which catchment 
area the enrollee resides).

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    (B) If the local MTF(s) are unavailable for the services needed, but 
there is another MTF at which the needed services can be provided, the 
enrollee may be required to obtain the services at that MTF. However, 
this requirement will only apply to the extent that the enrollee was 
informed at the time of (or prior to) enrollment that mandatory 
referrals might be made to the MTF involved for the service involved.
    (C) If the needed services are available within civilian preferred 
provider network serving the area, the enrollee may be required to 
obtain the services from a provider within the network. Subject to 
availability, the enrollee will have the freedom to choose a provider 
from among those in the network.
    (D) If the needed services are not available within the civilian 
preferred provider network serving the area, the enrollee may be 
required to obtain the services from a designated civilian provider 
outside the area. However, this requirement will only apply to the 
extent that the enrollee was informed at the time of (or prior to) 
enrollment that mandatory referrals might be made to the provider 
involved for the service involved (with the provider and service either 
identified specifically or in connection with some appropriate 
classification).
    (E) In cases in which the needed health care services cannot be 
provided pursuant to the procedures identified in paragraphs 
(n)(3)(iv)(A) through (D) of this section, the enrollee will receive 
authorization to obtain services from a TRICARE-authorized civilian 
provider(s) of the enrollee's choice not affiliated with the civilian 
preferred provider network.
    (iv) When Prime is operating in non-catchment areas, the 
requirements in paragraphs (n)(3)(iv)(B) through (E) of this section 
shall apply.
    (4) Point-of-service option. TRICARE Prime enrollees retain the 
freedom to obtain services from civilian providers on a point-of service 
basis. Any health care services obtained by a Prime enrollee, but not 
obtained in accordance with the rules and procedures of Prime, will be 
covered by the point-of-service option. In such cases, all requirements 
applicable to health benefits under Sec. 199.4 shall apply, except that 
there shall be higher deductible and cost sharing requirements (as set 
forth in paragraph (l)(1)(iii)) of this section). However, Prime rules 
may cover such services if the enrollee did not know and could not 
reasonably have been expected to know that the services were not 
obtained in accordance with the utilization management rules and 
procedures of Prime.
    (5) Prime travel benefit. In accordance with guidelines issues by 
the Assistant Secretary of Defense (Health Affairs), certain travel 
expenses may be reimbursed when a TRICARE Prime enrollee is referred by 
the primary care manager for medically necessary specialty care more 
than 100 miles away from the primary care manager's office. Such 
guidelines shall be consistent with appropriate provisions of generally 
applicable Department of Defense rules and procedures governing travel 
expenses.
    (o) TRICARE program enrollment procedures. There are certain 
requirements pertaining to procedures for enrollment in TRICARE Prime, 
TRICARE Select, and TRICARE Prime Remote for Active Duty Family Members. 
(These procedures do not apply to active duty members, whose enrollment 
is mandatory and automatic.)
    (1) Annual open season enrollment. (i) As a general rule, enrollment 
(or a modification to a previous enrollment) must occur during the open 
season period prior to the plan year, which is on a calendar year basis. 
The open season enrollment period will be of at least 30 calendar days 
duration. An enrollment choice will be applicable for the plan year.
    (ii) Open season enrollment procedures may include automatic re-
enrollment in the same plan for the next plan year for enrollees or 
sponsors that will occur in the event the enrollee does not take other 
action during the open season period.
    (2) Exceptions to the calendar year enrollment process. The Director 
will identify certain qualifying events that may be the basis for a 
change in enrollment status during a plan year, such as a change in 
eligibility status, marriage, divorce, birth of a new family member,

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relocation, loss of other health insurance, or other events. In the case 
of such an event, a beneficiary eligible to enroll in a plan may newly 
enroll, dis-enroll, or modify a previous enrollment during the plan 
year. Initial payment of the applicable enrollment fee shall be 
collected for new enrollments in accordance with established procedures. 
Any applicable enrollment fee will be pro-rated. A beneficiary who dis-
enrolls without enrolling at the same time in another plan is not 
eligible to enroll in a plan later in the same plan year unless there is 
another qualifying event. A beneficiary who is dis-enrolled for failure 
to pay a required enrollment fee installment is not eligible to re-
enroll in a plan later in the same plan year unless there is another 
qualifying event. Generally, the effective date of coverage will 
coincide with the date of the qualifying event.
    (3) Installment payments of enrollment fee. The Director will 
establish procedures for installment payments of enrollment fees.(4) 
Effect of failure to enroll. Beneficiaries eligible to enroll in Prime 
or Select and who do not enroll will no longer have coverage under the 
TRICARE program until the next annual open season enrollment or they 
have a qualifying event, except that they do not lose any statutory 
eligibility for space-available care in military medical treatment 
facilities. There is a limited grace period exception to this enrollment 
requirement for calendar year 2018, as provided in section 701(d)(3) of 
the National Defense Authorization Act for Fiscal Year 2017.
    (5) Automatic enrollment for certain dependents. Under 10 U.S.C. 
1097a, in the case of dependents of active duty members in the grade of 
E-1 to E-4, such dependents who reside in a catchment area of a military 
treatment facility shall be enrolled in TRICARE Prime. The Director may 
provide for the automatic enrollment in TRICARE Prime for such 
dependents of active duty members in the grade of E-5 and higher. In any 
case of automatic enrollment under this paragraph (o)(5), the member 
will be provided written notice and the automatic enrollment may be 
cancelled at the election of the member.
    (6) Grace periods. The Director may make provisions for grace 
periods for enrollment-related actions to facilitate effective operation 
of the enrollment program.
    (p) Civilian preferred provider networks. A major feature of the 
TRICARE program is the civilian preferred provider network.
    (1) Status of network providers. Providers in the preferred provider 
network are not employees or agents of the Department of Defense or the 
United States Government. Although network providers must follow 
numerous rules and procedures of the TRICARE program, on matters of 
professional judgment and professional practice, the network provider is 
independent and not operating under the direction and control of the 
Department of Defense.
    (2) Utilization management policies. Preferred providers are 
required to follow the utilization management policies and procedures of 
the TRICARE program. These policies and procedures are part of 
discretionary judgments by the Department of Defense regarding the 
methods of delivering and financing health care services that will best 
achieve health and economic policy objectives.
    (3) Quality assurance requirements. A number of quality assurance 
requirements and procedures are applicable to preferred network 
providers. These are for the purpose of assuring that the health care 
services paid for with government funds meet the standards called for in 
the contract and provider agreement.
    (4) Provider qualifications. All preferred providers must meet the 
following qualifications:
    (i) They must be TRICARE-authorized providers and TRICARE- 
participating providers. In addition, a network provider may not require 
payment from the beneficiary for any excluded or excludable services 
that the beneficiary received from the network provider (i.e., the 
beneficiary will be held harmless) except as follows:
    (A) If the beneficiary did not inform the provider that he or she 
was a TRICARE beneficiary, the provider may bill the beneficiary for 
services provided.

[[Page 345]]

    (B) If the beneficiary was informed in writing that the specific 
services were excluded or excludable from TRICARE coverage and the 
beneficiary agreed in writing, in advance of the services being 
provided, to pay for the services, the provider may bill the 
beneficiary.
    (ii) All physicians in the preferred provider network must have 
staff privileges in a hospital accredited by The Joint Commission (TJC) 
or other accrediting body determined by the Director. This requirement 
may be waived in any case in which a physician's practice does not 
include the need for admitting privileges in such a hospital, or in 
locations where no accredited facility exists. However, in any case in 
which the requirement is waived, the physician must comply with 
alternative qualification standards as are established by the Director.
    (iii) All preferred providers must agree to follow all quality 
assurance, utilization management, and patient referral procedures 
established pursuant to this section, to make available to designated 
DoD utilization management or quality monitoring contractors medical 
records and other pertinent records, and to authorize the release of 
information to MTF Commanders regarding such quality assurance and 
utilization management activities.
    (iv) All preferred network providers must be Medicare participating 
providers, unless this requirement is waived based on extraordinary 
circumstances. This requirement that a provider be a Medicare 
participating provider does not apply to providers who not eligible to 
be participating providers under Medicare.
    (v) The network provider must be available to all TRICARE 
beneficiaries.
    (vi) The provider must agree to accept the same payment rates 
negotiated for Prime enrollees for any person whose care is reimbursable 
by the Department of Defense, including, for example, Select 
participants, supplemental care cases, and beneficiaries from outside 
the area.
    (vii) All preferred providers must meet all other qualification 
requirements, and agree to comply with all other rules and procedures 
established for the preferred provider network.
    (viii) In locations where TRICARE Prime is not available, a TRICARE 
provider network will, to the extent practicable, be available for 
TRICARE Select enrollees. In these locations, the minimal requirements 
for network participation are those set forth in paragraph (p)(4)(i) of 
this section. Other requirements of this paragraph (p) will apply unless 
waived by the Director.
    (5) Access standards. Preferred provider networks will have 
attributes of size, composition, mix of providers and geographical 
distribution so that the networks, coupled with the MTF capabilities 
(when applicable), can adequately address the health care needs of the 
enrollees. In the event that a Prime enrollee seeks to obtain from the 
managed care support contractor an appointment for care but is not 
offered an appointment within the access time standards from a network 
provider, the enrollee will be authorized to receive care from a non-
network provider without incurring the additional fees associated with 
point-of-service care. The following are the access standards:
    (i) Under normal circumstances, enrollee travel time may not exceed 
30 minutes from home to primary care delivery site unless a longer time 
is necessary because of the absence of providers (including providers 
not part of the network) in the area.
    (ii) The wait time for an appointment for a well-patient visit or a 
specialty care referral shall not exceed four weeks; for a routine 
visit, the wait time for an appointment shall not exceed one week; and 
for an urgent care visit the wait time for an appointment shall 
generally not exceed 24 hours.
    (iii) Emergency services shall be available and accessible to handle 
emergencies (and urgent care visits if not available from other primary 
care providers pursuant to paragraph (p)(5)(ii) of this section), within 
the service area 24 hours a day, seven days a week.
    (iv) The network shall include a sufficient number and mix of board 
certified specialists to meet reasonably the anticipated needs of 
enrollees. Travel time for specialty care shall not exceed one hour 
under normal circumstances, unless a longer time is

[[Page 346]]

necessary because of the absence of providers (including providers not 
part of the network) in the area. This requirement does not apply under 
the Specialized Treatment Services Program.
    (v) Office waiting times in nonemergency circumstances shall not 
exceed 30 minutes, except when emergency care is being provided to 
patients, and the normal schedule is disrupted.
    (6) Special reimbursement methods for network providers. The 
Director, may establish, for preferred provider networks, reimbursement 
rates and methods different from those established pursuant to Sec. 
199.14. Such provisions may be expressed in terms of percentage 
discounts off CHAMPUS allowable amounts, or in other terms. In 
circumstances in which payments are based on hospital-specific rates (or 
other rates specific to particular institutional providers), special 
reimbursement methods may permit payments based on discounts off 
national or regional prevailing payment levels, even if higher than 
particular institution-specific payment rates.
    (q) Preferred provider network establishment. (1) The any qualified 
provider method may be used to establish a civilian preferred provider 
network. Under this method, any TRICARE-authorized provider that meets 
the qualification standards established by the Director, or designee, 
may become a part of the preferred provider network. Such standards must 
be publicly announced and uniformly applied. Also under this method, any 
provider who meets all applicable qualification standards may not be 
excluded from the preferred provider network. Qualifications include:
    (i) The provider must meet all applicable requirements in paragraph 
(p)(4) of this section.
    (ii) The provider must agree to follow all quality assurance and 
utilization management procedures established pursuant to this section.
    (iii) The provider must be a participating provider under TRICARE 
for all claims.
    (iv) The provider must meet all other qualification requirements, 
and agree to all other rules and procedures, that are established, 
publicly announced, and uniformly applies by the Director (or other 
authorized official).
    (v) The provider must sign a preferred provider network agreement 
covering all applicable requirements. Such agreements will be for a 
duration of one year, are renewable, and may be canceled by the provider 
or the Director (or other authorized official) upon appropriate notice 
to the other party. The Director shall establish an agreement model or 
other guidelines to promote uniformity in the agreements.
    (2) In addition to the above requirements, the Director, or 
designee, may establish additional categories of preferred providers of 
high quality/high value that require additional qualifications.
    (r) General fraud, abuse, and conflict of interest requirements 
under TRICARE program. All fraud, abuse, and conflict of interest 
requirements for the basic CHAMPUS program, as set forth in this part 
(see especially applicable provisions of Sec. 199.9) are applicable to 
the TRICARE program.
    (s) [Reserved]
    (t) Inclusion of Department of Veterans Affairs Medical Centers in 
TRICARE networks. TRICARE preferred provider networks may include 
Department of Veterans Affairs health facilities pursuant to 
arrangements, made with the approval of the Assistant Secretary of 
Defense (Health Affairs), between those centers and the Director, or 
designated TRICARE contractor.
    (u) Care provided outside the United States. The TRICARE program is 
not automatically implemented in all respects outside the United States. 
This paragraph (u) sets forth the provisions of this section applicable 
to care received outside the United States under the following TRICARE 
health plans.
    (1) TRICARE Prime. The Director may, in conjunction with 
implementation of the TRICARE program, authorize a special Prime program 
for command sponsored dependents of active duty members who accompany 
the members in their assignments in foreign countries. Under this 
special program, a preferred provider network may be established through 
contracts or agreements with selected health care providers. Under the 
network,

[[Page 347]]

Prime covered services will be provided to the enrolled covered 
dependents subject to applicable Prime deductibles, copayments, and 
point-of-service charges. To the extent practicable, rules and 
procedures applicable to TRICARE Prime under this section shall apply 
unless specific exemptions are granted in writing by the Director. The 
use of this authority by the Director for any particular geographical 
area will be published on the primary publicly available Internet Web 
site of the Department and on the publicly available Internet Web site 
of the managed care support contractor that has established the provider 
network under the TRICARE program. Published information will include a 
description of the preferred provider network program and other 
pertinent information. The Director shall also issue policies, 
instructions, and guidelines necessary to implement this special 
program.
    (2) TRICARE Select. The TRICARE Select option shall be available 
outside the United States except that a preferred provider network of 
providers shall only be established in areas where the Director 
determines that it is economically in the best interest of the 
Department of Defense. In such a case, the Director shall establish a 
preferred provider network through contracts or agreements with selected 
health care providers for eligible beneficiaries to receive covered 
benefits subject to the enrollment and cost-sharing amounts applicable 
to the specific category of beneficiary. When an eligible beneficiary, 
other than a TRICARE for Life beneficiary, receives covered services 
from an authorized TRICARE non-network provider, including in areas 
where a preferred provider network has not been established by the 
Director, the beneficiary shall be subject to cost-sharing amounts 
applicable to out-of-network care. To the extent practicable, rules and 
procedures applicable to TRICARE Select under this section shall apply 
unless specific exemptions are granted in writing by the Director. The 
use of this authority by the Director to establish a TRICARE preferred 
provider network for any particular geographical area will be published 
on the primary publicly available Internet Web site of the Department 
and on the publicly available Internet Web site of the managed care 
support contractor that has established the provider network under the 
TRICARE program. Published information will include a description of the 
preferred provider network program and other pertinent information. The 
Director shall also issue policies, instructions, and guidelines 
necessary to implement this special program.
    (3) TRICARE for Life. The TRICARE for Life (TFL) option shall be 
available outside the United States. Eligible TFL beneficiaries may 
receive covered services and supplies authorized under Sec. 199.4, 
subject to the applicable catastrophic cap, deductibles and cost-shares 
under Sec. 199.4, whether received from a network provider or any 
authorized TRICARE provider not in a preferred provider network. 
However, if a TFL beneficiary receives covered services from a PPN 
provider, the beneficiary's out-of-pocket costs will generally be lower.
    (v) Administration of the TRICARE program in the state of Alaska. In 
view of the unique geographical and environmental characteristics 
impacting the delivery of health care in the state of Alaska, 
administration of the TRICARE program in the state of Alaska will not 
include financial underwriting of the delivery of health care by a 
TRICARE contractor. All other provisions of this section shall apply to 
administration of the TRICARE program in the state of Alaska as they 
apply to the other 49 states and the District of Columbia.
    (w) Administrative procedures. The Assistant Secretary of Defense 
(Health Affairs), the Director, and MTF Commanders (or other authorized 
officials) are authorized to establish administrative requirements and 
procedures, consistent with this section, this part, and other 
applicable DoD Directives or Instructions, for the implementation and 
operation of the TRICARE program.

[82 FR 45448, Sept. 29, 2017, as amended at 84 FR 4333, Feb. 15, 2019; 
85 FR 27927, May 12, 2020; 87 FR 33014, June 1, 2022; 87 FR 46886, Aug. 
1, 2022]

[[Page 348]]



Sec. 199.18  [Reserved]



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

    (a) Purpose. The CHCBP is a premium-based temporary health care 
coverage program, authorized by 10 U.S.C. 1078a, and available to 
individuals who meet the eligibility and enrollment criteria as set 
forth in paragraph (d)(1) of this section. The CHCBP is not part of the 
TRICARE program. However, as set forth in this section, it functions 
under similar rules and procedures to the TRICARE Select program. 
Because the purpose of the CHCBP is to provide a continuation health 
care benefit for Department of Defense and the other uniformed services 
beneficiaries losing eligibility, it will be administered so that it 
appears, to the maximum extent practicable, to be part of the TRICARE 
Select program. Medical coverage under this program will be the same as 
the benefits payable under the TRICARE Select program. There is a cost 
for enrollment to the CHCBP and these premium costs must be paid by 
CHCBP enrollees before any care may be cost shared.
    (b) General provisions. Except for any provisions the Director of 
the TRICARE Management Activity may exclude, the general provisions of 
Sec. 199.1 shall apply to the CHCBP as they do to TRICARE.
    (c) Definitions. Except as may be specifically provided in this 
section, to the extent terms defined in Sec. 199.2 are relevant to the 
administration of the CHCBP, the definitions contained in that section 
shall apply to the CHCBP as they do to the TRICARE Select program.
    (d) Eligibility and enrollment. (1) Eligibility, Enrollment in the 
CHCBP is open to any individual, except as noted in this section, who:
    (i) Ceases to meet the requirements for eligibility under 10 U.S.C. 
chapter 55 or 10 U.S.C. 1145, and
    (ii) Who on the day before they cease to meet the eligibility 
requirements for such care they were covered under a health benefit plan 
under 10 U.S.C. chapter 55 or transitional healthcare under 10 U.S.C. 
1145, and
    (iii) Who would otherwise not be eligible for any benefits under 10 
U.S.C. chapter 55 or 10 U.S.C. 1145 except for CHCBP.
    (2) Exceptions. The following individuals are not eligible to enroll 
in CHCBP:
    (i) Members of uniformed services, who are discharged or released 
from active duty either voluntarily or involuntarily under conditions 
that are adverse.
    (ii) Individuals who lost their eligibility or entitlement to care 
under 10 U.S.C. chapter 55 or 10 U.S.C. 1145 before October 1, 1994.
    (iii) Individuals who are locked out of other TRICARE programs per 
that program's requirements.
    (3) Effective date. Eligibility in the CHCBP is limited to 
individuals who lost their entitlement to benefits under the MHS on or 
after October 1, 1994. The effective date of their coverage under CHCBP 
shall begin on the day after they cease to be eligible for care under 10 
U.S.C. chapter 55 or 10 U.S.C. 1145.
    (4) Notification of eligibility.
    (i) The Department of Defense and the other uniformed services 
(National Oceanic and Atmospheric Administration (NOAA), Public Health 
Service (PHS), and Coast Guard) will notify persons in the uniformed 
services eligible to receive health benefits under the CHCBP. In the 
case of a member who becomes (or will become) eligible for continued 
coverage, the Department of Defense shall notify the member of their 
rights for coverage as part of pre-separation counseling conducted under 
10 U.S.C. 1142.
    (ii) In the case of a dependent of a member or former member who 
become eligible for continued coverage under paragraph (d)(1)(ii) of 
this section:
    (A) The member or former member may submit to the CHCBP contractor a 
notice with supporting documentation of the dependent's change in status 
(including the dependent's name, address, and such other information 
needed); and
    (B) The CHCBP contractor, within fourteen (14) days after receiving 
such information, will inform the dependent of the dependent's rights 
under 10 U.S.C. 1142.

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    (iii) In the case of a former spouse of a member or former member 
who becomes eligible for continued coverage, the member, former member 
or former spouse may submit to the CHCBP contractor a notice of the 
former spouse's change in status. The CHCBP contractor within fourteen 
(14) days after receiving such information will notify the individual of 
their potential eligibility for CHCBP.
    (5) Election of coverage. In order to obtain coverage under the 
CHCBP, a written election by the eligible beneficiary must be made 
within a prescribed time period.
    (i) In the case of a member discharged or released from active duty 
or full-time National Guard duty (whether voluntarily or involuntarily), 
or a RC member formerly eligible for care under 10 U.S.C. chapter 55, 
the written election shall be submitted to the CHCBP contractor before 
the end of the 60-day period beginning on the later of:
    (A) The date of the discharge or release of the member; or
    (B) The date that the period of transitional health care applicable 
to the member under 10 U.S.C. 1145(a) ends; or
    (C) The date the member receives the notification required in 
paragraph (d)(3) of this section.
    (ii) In the case of a child who ceases to meet the requirements for 
being an unremarried dependent child of a member or former member under 
10 U.S.C. 1072(2)(D) or an unmarried dependent of a member or former 
member of the uniformed services under 10 U.S.C. 1072(2)(I), the written 
election shall be submitted to the CHCBP contractor before the end of 
the 60-day period beginning on the later of:
    (A) The date that the dependent ceases to meet the definition of a 
dependent under 10 U.S.C. 1072(2)(D) or 10 U.S.C. 1072(2)(I); or
    (B) The date that the dependent receives the notification required 
in paragraph (d)(3) of this section,
    (iii) In the case of former spouse of a member or former member, the 
written election shall be submitted to the CHCBP contractor before the 
end of the 60-day period beginning on the date as of which the former 
spouse first ceases to meet the requirements for being considered a 
dependent under 10 U.S.C. 1072(2).
    (iv) In the case of an unmarried surviving spouse of a member or 
former member of the uniformed services who on the day before the death 
of the member or former member was covered under 10 U.S.C. chapter 55 or 
10 U.S.C. 1145(a), the written election shall be submitted to the CHCBP 
contractor within 60 days of the date of the member or former member's 
death.
    (v) A member of the uniformed services who is eligible for 
enrollment under paragraph (d)(1) of this section may elect self-only or 
family coverage. Family members who may be included in such family 
coverage are the spouse and children of the member.
    (vi) All other categories eligible for enrollment under paragraph 
(d)(1) of this section must elect self-only coverage.
    (6) Enrollment. To enroll in the CHCBP, an eligible individual must 
submit the completed enrollment form designated by the Director, TRICARE 
as well as any documentation as requested on the enrollment form to 
verify the applicant's eligibility for enrolling in CHCBP, and payment 
to cover the quarter's premium. The CHCBP contractor may request 
additional information and documentation to confirm the applicant's 
eligibility for CHCBP.
    (7) Period of coverage. Except as noted below CHCBP coverage may not 
extend beyond 18 months from the date the individual becomes eligible 
for CHCBP. Although beneficiaries have sixty (60) days to elect coverage 
under the CHCBP, upon enrolling, the period of coverage must begin the 
day after entitlement or eligibility to a military health care plan ends 
as though no break in coverage had occurred notwithstanding the date the 
enrollment form with any applicable premium is submitted.
    (i) Exceptions:
    (A) In the case of a child of a member or former member, the date 
which is 36 months after the date on which the person first ceases to 
meet the requirements for being considered an unmarried dependent child 
under 10 U.S.C. 1072(2)(D) or 10 U.S.C. 1072(2)(I).

[[Page 350]]

    (B) In the case of an unremarried former spouse (as this term is 
defined in 10 U.S.C. 1072(2)(G) or (H)) of a member or former member, 
the date which is 36 months after the later of:
    (1) The date on which the final decree of divorce, dissolution, or 
annulment occurs; or
    (2) If applicable, the date the one-year extension of dependency 
under 10 U.S.C. 1072(2)(H) expires.
    (C) In the case of an unremarried surviving spouse (widow or 
widower) (under 10 U.S.C. 1072(2)(B) or (C)) of a member or former 
member of the uniformed services who is not otherwise eligible for care 
under 10 U.S.C. chapter 55, the date which is 36 months after the date 
the surviving spouse becomes ineligible under 10 U.S.C chapter 55 or 10 
U.S.C. 1145(a).
    (D) In the case of a former spouse of a member or former member 
(other than the former spouse whose marriage was dissolved after the 
separation of the member from the service unless such separation was by 
retirement), the period of coverage under the CHCBP is unlimited, if 
former spouse:
    (1) Has not remarried before age of 55 after the marriage to the 
member or former member was dissolved; and
    (2) Was eligible for TRICARE as a dependent or enrolled in CHCBP at 
any time during the 18 month period before the date of the divorce, 
dissolution, or annulment; and
    (3) Is receiving a portion of the retired or retainer pay of a 
member or former member or an annuity based on the retainer pay of the 
member; or
    (4) Has a court order for payment of any portion of the retired or 
retainer pay or has a written agreement (whether voluntary or pursuant 
to a court order) which provides for an election by the member or former 
member to provide an annuity to the former spouse.
    (E) For the beneficiary who becomes eligible for the CHCBP by 
ceasing to meet the requirements for being considered an unmarried 
dependent child of a member or former member, health care coverage may 
not extend beyond the date which is 36 months after the date the member 
becomes ineligible for medical and dental care under 10 U.S.C. 1074(a) 
and any transitional health care under 10 U.S.C. 1145(a).
    (e) CHCBP benefits--(1) In general. Except as provided in paragraph 
(e)(2) of this section, the provisions of Sec. 199.4 shall apply to the 
CHCBP as they do to TRICARE Select under Sec. 199.17.
    (2) Exceptions. The following provisions of Sec. 199.4 are not 
applicable to the CHCBP:
    (i) Section 199.4(a)(2) concerning eligibility.
    (ii) All provisions regarding requirements to use facilities of the 
uniformed services because CHCBP enrollees are not eligible to use those 
facilities.
    (3) Beneficiary liability. For purposes of CHCBP coverage, the 
beneficiary deductible, catastrophic cap and cost share provisions of 
the TRICARE Select plan applicable to Group B beneficiaries under Sec. 
199.17(l)(2)(ii) shall apply based on the category of beneficiary (e.g., 
Active Duty Family Member or Retiree Family) to which the CHCBP enrollee 
last belonged, except that for separating active duty members, amounts 
applicable to TRICARE Select Active Duty Family Members shall apply. The 
premium under paragraph (q) of this section applies instead of any 
TRICARE Select plan enrollment fee under Sec. 199.17.
    (f) Authorized providers. The provisions of Sec. 199.6 shall apply 
to the CHCBP as they do to TRICARE Select program.
    (g) Claims submission, review, and payment. The provisions of Sec. 
199.7 shall apply to the CHCBP as they do to TRICARE Select program 
except no provisions regarding nonavailability statements shall apply.
    (h) Double coverage. The provisions of Sec. 199.8 shall apply to 
the CHCBP as they do to TRICARE Select program.
    (i) Administrative remedies for fraud, abuse, and conflict of 
interest. The provisions of Sec. 199.9 shall apply to the CHCBP as they 
do to TRICARE Select program.
    (j) Appeal and hearing procedures. The provisions of Sec. 199.10 
shall apply to the CHCBP as they do to TRICARE Select program.
    (k) Overpayments recovery. The provisions of Sec. 199.11 shall 
apply to the CHCBP as they do to TRICARE Select program.

[[Page 351]]

    (l) Third party recoveries. The provisions of Sec. 199.12 shall 
apply to the CHCBP as they do to TRICARE Select program.
    (m) Provider reimbursement methods. The provisions of Sec. 199.14 
shall apply to the CHCBP as they do to TRICARE Select program.
    (n) Quality and Utilization Review Peer Review Organization Program. 
The provisions of Sec. 199.15 shall apply to the CHCBP as they do to 
TRICARE Select program.
    (o) [Reserved]
    (p) Special programs not applicable--(1) In general. Special 
programs established under this part that are not part of the TRICARE 
Select program are not, unless specifically provided in this section, 
available to participants in the CHCBP.
    (2) Examples. The special programs referred to in paragraph (p)(1) 
of this section include but are not limited to:
    (i) The Extended Care Health Option under Sec. 199.5;
    (ii) The TRICARE Dental Program or Retiree Dental Program under 
Sec. 199.13 and 199.22 respectively;
    (iii) The Supplemental Health Care Program under Sec. 199.16; and
    (iv) The TRICARE Prime Program under Sec. 199.17.
    (q) Premiums--(1) Rates. Premium rates will be established by the 
Assistant Secretary of Defense (Health Affairs) for two rate groups--
individual and family. Eligible beneficiaries will select the level of 
coverage they require at the time of initial enrollment (either 
individual or family) and pay the appropriate premium payment. The rates 
are based on Federal Employees Health Benefits Program employee and 
agency contributions required for a comparable health benefits plan, 
plus an administrative fee. The administrative fee, not to exceed ten 
percent of the basic premium amount, shall be determined based on actual 
expected administrative costs for administration of the program. 
Premiums may be revised annually and shall be published when the premium 
amount is changed. Premiums will be paid by enrollees quarterly.
    (2) Effects of failure to make premium payments. Failure by 
enrollees to submit timely and proper premium payments will result in 
denial of continued enrollment and denial of payment of medical claims. 
Premium payments that are late thirty (30) days or more past the start 
of the quarter for which payment is due will result in the termination 
of beneficiary enrollment. Beneficiaries denied continued enrollment due 
to lack of premium payments will not be allowed to reenroll. In such a 
case, benefit coverage will cease at the end of the ninety (90) day 
period for which a premium payment was received. Enrollees will be held 
liable for medical costs incurred after losing eligibility.
    (r) Procedures. The Director, TRICARE Management Activity, may 
establish other rules and procedures for the administration of the 
CHCBP.

[76 FR 57639, Sept. 16, 2011, as amended at 82 FR 45457, Sept. 29, 2017]



Sec. 199.21  TRICARE Pharmacy Benefits Program.

    (a) General--(1) Statutory authority. Title 10, U.S. Code, Section 
1074g requires that the Department of Defense establish an effective, 
efficient, integrated pharmacy benefits program for the Military Health 
System. This law is independent of a number of sections of Title 10 and 
other laws that affect the benefits, rules, and procedures of TRICARE, 
resulting in changes to the rules otherwise applicable to TRICARE Prime, 
Standard, and Extra.
    (2) Pharmacy benefits program. (i) Applicability. The pharmacy 
benefits program, which includes the uniform formulary and its 
associated tiered co-payment structure, is applicable to all of the 
uniformed services. Geographically, except as specifically provided in 
paragraph (a)(2)(ii) of this section, this program is applicable to all 
50 states and the District of Columbia, Guam, Puerto Rico, and the 
Virgin Islands. In addition, if authorized by the Assistant Secretary of 
Defense (Health Affairs) (ASD(HA)), the TRICARE pharmacy benefits 
program may be implemented in areas outside the 50 states and the 
District of Columbia, Guam, Puerto Rico, and the Virgin Islands. In such 
case, the ASD (HA) may also authorize modifications to the pharmacy 
benefits program rules and procedures as may be appropriate to the area 
involved.

[[Page 352]]

    (ii) Applicability exception. The pharmaceutical benefit under the 
TRICARE smoking cessation program under Sec. 199.4(e)(30) is available 
to TRICARE beneficiaries who are not entitled to Medicare benefits 
authorized under Title XVIII of the Social Security Act. Except as noted 
in Sec. 199.4(e)(30), the smoking cessation program, including the 
pharmaceutical benefit, is not applicable or available to beneficiaries 
who reside overseas, including the U. S. territories of Guam, Puerto 
Rico, and the Virgin Islands, except that under the authority of Sec. 
199.17 active duty service members and active duty dependents enrolled 
in TRICARE Prime residing overseas, including the U. S. territories of 
Guam, Puerto Rico, and the Virgin Islands, shall have access to smoking 
cessation pharmaceuticals through either an MTF or the TMOP program 
where available.
    (3) Uniform formulary. The pharmacy benefits program features a 
uniform formulary of pharmaceutical agents as defined in Sec. 199.2.
    (i) The uniform formulary will assure the availability of 
pharmaceutical agents in the complete range of therapeutic classes 
authorized as basic program benefits.
    (ii) As required by 10 U.S.C. 1074g(a)(2) and implemented under the 
procedures established by paragraphs (e) and (f) of this section, 
pharmaceutical agents in each therapeutic class are selected for 
inclusion on the uniform formulary based upon the relative clinical 
effectiveness and cost effectiveness of the agents in such class. If a 
pharmaceutical agent in a therapeutic class is determined by the 
Department of Defense Pharmacy and Therapeutics Committee not to have a 
significant, clinically meaningful therapeutic advantage in terms of 
safety, effectiveness, or clinical outcome over other pharmaceutical 
agents included on the uniform formulary, the Committee may recommend it 
be classified as a non-formulary agent. In addition, if the evaluation 
by the Pharmacy and Therapeutics Committee concludes that a 
pharmaceutical agent in a therapeutic class is not cost effective 
relative to other pharmaceutical agents in that therapeutic class, 
considering costs, safety, effectiveness, and clinical outcomes, the 
Committee may recommend it be classified as a non-formulary agent.
    (iii) Pharmaceutical agents which are used exclusively in medical 
treatments or procedures that are expressly excluded from the TRICARE 
benefit by statute or regulation will not be considered for inclusion on 
the uniform formulary. Excluded pharmaceutical agents shall not be 
available as non-formulary agents, nor will they be cost-shared under 
the TRICARE pharmacy benefits program.
    (b) Definitions. For most definitions applicable to the provisions 
of this section, refer to Sec. 199.2. The following definitions apply 
only to this section:
    (1) Clinically necessary. Also referred to as clinical necessity. 
Sufficient evidence submitted by a beneficiary or provider on behalf of 
the beneficiary that establishes that one or more of the following 
conditions exist: The use of formulary pharmaceutical agents is 
contraindicated; the patient experiences significant adverse effects 
from formulary pharmaceutical agents in the therapeutic class, or is 
likely to experience significant adverse effects from formulary 
pharmaceutical agents in the therapeutic class; formulary pharmaceutical 
agents result in therapeutic failure, or the formulary pharmaceutical 
agent is likely to result in therapeutic failure; the patient previously 
responded to a non-formulary pharmaceutical agent and changing to a 
formulary pharmaceutical agent would incur an unacceptable clinical 
risk; or there is no alternative pharmaceutical agent on the formulary.
    (2) Therapeutic class. A group of pharmaceutical agents that are 
similar in chemical structure, pharmacological effect, and/or clinical 
use.
    (3) Over-the-counter drug. A drug that is not subject to section 
503(b)(1) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 
353(b)(1)).
    (c) Department of Defense Pharmacy and Therapeutics Committee--(1) 
Purpose. The Department of Defense Pharmacy and Therapeutics Committee 
is established by 10 U.S.C. 1074g to assure that the selection of 
pharmaceutical agents for the uniform formulary is based on broadly 
representative professional expertise concerning relative clinical and

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cost effectiveness of pharmaceutical agents and accomplishes an 
effective, efficient, integrated pharmacy benefits program.
    (2) Composition. As required by 10 U.S.C. 1074g(b), the committee 
includes representatives of pharmacies of the uniformed services 
facilities and representatives of providers in facilities of the 
uniformed services. Committee members will have expertise in treating 
the medical needs of the populations served through such entities and in 
the range of pharmaceutical and biological medicines available for 
treating such populations.
    (3) Executive Council. The Pharmacy and Therapeutics Committee may 
have an Executive Council, composed of those voting and non-voting 
members of the Committee who are military or civilian employees of the 
Department of Defense. The function of the Executive Council is to 
review and analyze issues relating to the operation of the uniform 
formulary, including issues of an inherently governmental nature, 
procurement sensitive information, and matters affecting military 
readiness. The Executive Council presents information to the Pharmacy 
and Therapeutics Committee, but is not authorized to act for the 
Committee.
    (d) Uniform Formulary Beneficiary Advisory Panel. As required by 10 
U.S.C. 1074g(c), a Uniform Formulary Beneficiary Advisory Panel reviews 
and comments on the development of the uniform formulary. The Panel 
includes members that represent non-governmental organizations and 
associations that represent the views and interests of a large number of 
eligible covered beneficiaries, contractors responsible for the TRICARE 
retail pharmacy program, contractors responsible for the TRICARE mail-
order pharmacy program, and TRICARE network providers. The panel will 
meet after each Pharmacy and Therapeutics Committee quarterly meeting. 
The Panel's comments will be submitted to the Director, TRICARE 
Management Activity. The Director will consider the comments before 
implementing the uniform formulary or any recommendations for change 
made by the Pharmacy and Therapeutics Committee. The Panel will function 
in accordance with the Federated Advisory Committee Act (5 U.S.C. App. 
2).
    (e) Determinations regarding relative clinical and cost 
effectiveness for the selection of pharmaceutical agents for the uniform 
formulary--(1) Clinical effectiveness. (i) It is presumed that 
pharmaceutical agents in a therapeutic class are clinically effective 
and should be included on the uniform formulary unless the Pharmacy and 
Therapeutics Committee finds by a majority vote that a pharmaceutical 
agent does not have a significant, clinically meaningful therapeutic 
advantage in terms of safety, effectiveness, or clinical outcome over 
the other pharmaceutical agents included on the uniform formulary in 
that therapeutic class. This determination is based on the collective 
professional judgment of the DoD Pharmacy and Therapeutics Committee and 
consideration of pertinent information from a variety of sources 
determined by the Committee to be relevant and reliable. The DoD 
Pharmacy and Therapeutics Committee has discretion based on its 
collective professional judgment in determining what sources should be 
reviewed or relied upon in evaluating the clinical effectiveness of a 
pharmaceutical agent in a therapeutic class.
    (ii) Sources of information may include but are not limited to:
    (A) Medical and pharmaceutical textbooks and reference books;
    (B) Clinical literature;
    (C) U.S. Food and Drug Administration determinations and 
information;
    (D) Information from pharmaceutical companies;
    (E) Clinical practice guidelines, and
    (F) Expert opinion.
    (iii) The DoD Pharmacy and Therapeutics Committee will evaluate the 
relative clinical effectiveness of pharmaceutical agents within a 
therapeutic class by considering information about their safety, 
effectiveness, and clinical outcome.
    (iv) Information considered by the Committee may include but is not 
limited to:
    (A) U.S. Food and Drug Administration approved and other studied 
indications;
    (B) Pharmacology;
    (C) Pharmacokinetics;

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    (D) Contraindications;
    (E) Warnings/precautions;
    (F) Incidence and severity of adverse effects;
    (G) Drug to drug, drug to food, and drug to disease interactions;
    (H) Availability, dosing, and method of administration;
    (I) Epidemiology and relevant risk factors for diseases/conditions 
in which the pharmaceutical agents are used;
    (J) Concomitant therapies;
    (K) Results of safety and efficacy studies;
    (L) Results of effectiveness/clinical outcomes studies, and
    (M) Results of meta-analyses.
    (2) Cost effectiveness. (i) In considering the relative cost 
effectiveness of pharmaceutical agents in a therapeutic class, the DoD 
Pharmacy and Therapeutics Committee shall evaluate the costs of the 
agents in relation to the safety, effectiveness, and clinical outcomes 
of the other agents in the class.
    (ii) Information considered by the Committee concerning the relative 
cost effectiveness of pharmaceutical agents may include but is not 
limited to:
    (A) Cost of the pharmaceutical agent to the Government;
    (B) Impact on overall medical resource utilization and costs;
    (C) Cost-efficacy studies;
    (D) Cost-effectiveness studies;
    (E) Cross-sectional or retrospective economic evaluations;
    (F) Pharmacoeconomic models;
    (G) Patent expiration dates;
    (H) Clinical practice guideline recommendations, and
    (I) Existence of existing or proposed blanket purchase agreements, 
incentive price agreements, or contracts.
    (3) Special rules for best clinical effectiveness. (i) Under the 
authority of 10 U.S.C. 1074g(a)(10), the Pharmacy and Therapeutics 
Committee may recommend and the Director may, after considering the 
comments and recommendations of the Beneficiary Advisory Panel, approve 
special uniform formulary actions to encourage use of pharmaceutical 
agents that provide the best clinical effectiveness to covered 
beneficiaries and DoD, including consideration of better care, healthier 
people, and smarter spending. Such special actions may operate as 
exceptions to the normal rules and procedures under 10 U.S.C. 
1074g(a)(2), (5) and (6) and the related provisions of this section.
    (ii) Actions under paragraph (e)(3)(i) of this section may include a 
complete or partial exclusion from the pharmacy benefits program of any 
pharmaceutical agent the Director determines provides very little or no 
clinical effectiveness relative to similar agents to covered 
beneficiaries and DoD. A partial exclusion under this paragraph may take 
the form (as one example) of a limitation on the clinical conditions, 
diagnoses, or indications for which the pharmaceutical agent may be 
prescribed. A partial exclusion may be implemented through any means 
recommended by the Pharmacy and Therapeutics Committee, including but 
not limited to preauthorization under paragraph (k) of this section. In 
the case of a partial exclusion, a pharmaceutical agent may be available 
on the non-formulary tier of the uniform formulary for limited purposes 
and for other purposes be excluded.
    (iii) Actions under paragraph (e)(3)(i) of this section may also 
include giving preferential status to any non-generic pharmaceutical 
agent of the uniform formulary by treating it for purposes of cost-
sharing as a generic product.
    (f) Evaluation of pharmaceutical agents for determinations regarding 
inclusion on the uniform formulary. The DoD Pharmacy and Therapeutics 
Committee will periodically evaluate or re-evaluate individual 
pharmaceutical agents and therapeutic classes of pharmaceutical agents 
for determinations regarding inclusion or continuation on the uniform 
formulary. Such evaluation or re-evaluation may be prompted by a variety 
of circumstances including, but not limited to:
    (1) Approval of a new pharmaceutical agent by the U.S. Food and Drug 
Administration;
    (2) Approval of a new indication for an existing pharmaceutical 
agent;
    (3) Changes in the clinical use of existing pharmaceutical agents;
    (4) New information concerning the safety, effectiveness or clinical 
outcomes of existing pharmaceutical agents;
    (5) Price changes;

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    (6) Shifts in market share;
    (7) Scheduled review of a therapeutic class; and
    (8) Requests from Pharmacy and Therapeutics Committee members, 
military treatment facilities, or other Military Health System 
officials.
    (g) Administrative procedures for establishing and maintaining the 
uniform formulary--(1) Pharmacy and Therapeutics Committee 
determinations. Determinations of the Pharmacy and Therapeutics 
Committee are by majority vote and recorded in minutes of Committee 
meetings. The minutes set forth the determinations of the committee 
regarding the pharmaceutical agents selected for inclusion in the 
uniform formulary and summarize the reasons for those determinations. 
For any pharmaceutical agent (including maintenance medications) for 
which a recommendation is made that the status of the agent be changed 
from the formulary tier to the non-formulary tier of the uniform 
formulary, or that the agent requires a pre-authorization, the Committee 
shall also make a recommendation as to effective date of such change 
that will not be longer than 180 days from the final decision date but 
may be less. The minutes will include a record of the number of members 
voting for and against the Committee's action.
    (2) Beneficiary Advisory Panel. Comments and recommendations of the 
Beneficiary Advisory Panel are recorded in minutes of Panel meetings. 
The minutes set forth the comments and recommendations of the Panel and 
summarize the reasons for those comments and recommendations. The 
minutes will include a record of the number of members voting for or 
against the Panel's comments and recommendations.
    (3) Uniform formulary final decisions. The Director of the TRICARE 
Management Activity makes the final DoD decisions regarding the uniform 
formulary. Those decisions are based on the Director's review of the 
final determinations of the Pharmacy and Therapeutics Committee and the 
comments and recommendations of the Beneficiary Advisory Panel. No 
pharmaceutical agent may be designated as non-formulary on the uniform 
formulary unless it is preceded by such recommendation by the Pharmacy 
and Therapeutics Committee. The decisions of the Director of the TRICARE 
Management Activity are in writing and establish the effective date(s) 
of the uniform formulary actions.
    (4) Transition to the Uniform Formulary. Beginning in Fiscal Year 
2005, under an updated charter for the DoD P&T Committee, the committee 
shall meet at least quarterly to review therapeutic classes of 
pharmaceutical agents and make recommendations concerning which 
pharmaceutical agents should be on the Uniform Formulary, the Basic Care 
Formulary (BCF), and Extended Core Formulary (ECF). The P&T Committee 
will review the classes in a methodical, but expeditious manner. During 
the transition period from the previous methodology of formulary 
management involving only the MTFs and the TMOP Program, previous 
decisions by the predecessor DoD P&T Committee concerning MTF and Mail 
Order Pharmacy Program formularies shall continue in effect. As 
therapeutic classes are reviewed under the new formulary management 
process, the processes established by this section shall apply.
    (5) Administrative procedure for newly approved drugs. In the case 
of a newly approved innovator drug, other than a generic drug, the 
innovator drug will, not later than 120 days after the date of approval 
by the Food and Drug Administration, be added to the uniform formulary 
unless prior to that date the P&T Committee has recommended that the 
agent be listed as a non-formulary drug. If the Director, DHA 
subsequently approves that recommendation, the drug will be so listed. 
If the Director, DHA disapproves the recommendation to list the drug as 
non-formulary Third Tier, the drug will be then classified per the 
Director's decision. If, prior to the expiration of 120 days, the P&T 
Committee recommends that the agent be added to the uniform formulary 
and the recommendation is approved by the Director, DHA, that will be 
done as soon as feasible. Pending action under this paragraph (g)(5), 
the newly approved pharmaceutical agent will be considered to be in a 
classification pending status and will be

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available to beneficiaries under Third Tier terms applicable to all 
other non-formulary agents.
    (h) Obtaining pharmacy services under the retail network pharmacy 
benefits program. --(1) Points of service. There are four outpatient 
pharmacy points of service:
    (i) Military Treatment Facilities (MTFs);
    (ii) Retail network pharmacies: Those are non-MTF pharmacies that 
are a part of the network established for TRICARE retail pharmacy 
services;
    (iii) Retail non-network pharmacies: Those are non-MTF pharmacies 
that are not part of the network established for TRICARE retail pharmacy 
services, and
    (iv) the TRICARE Mail Order Pharmacy (TMOP).
    (2) Availability of formulary pharmaceutical agents--(i) General. 
Subject to paragraphs (h)(2)(ii) and (h)(2)(iii) of this section, 
formulary pharmaceutical agents are available under the Pharmacy 
Benefits Program from all points of service identified in paragraph 
(h)(1) of this section.
    (ii) Availability of formulary pharmaceutical agents at military 
treatment facilities (MTF). Pharmaceutical agents included on the 
uniform formulary are available through facilities of uniformed 
services, consistent with the scope of health care services offered in 
such facilities and additional determinations by the P&T Committee of 
the relative clinical effectiveness and cost effectiveness, based on 
costs to the Program associated with providing the agents to 
beneficiaries. The BCF is a subset of the uniform formulary and is a 
mandatory component of formularies at all full-service MTF pharmacies. 
The BCF contains the minimum set of pharmaceutical agents that each 
full-service MTF pharmacy must have on its formulary to support the 
primary care scope of practice for Primary Care Manager enrollment 
sites. Limited-service MTF pharmacies (e.g., specialty pharmacies within 
an MTF or pharmacies servicing only active duty military members) are 
not required to include the entire BCF on their formularies, but may 
limit their formularies to those BCF agents appropriate to the needs of 
the patients they serve. An ECF may list preferred agents in drug 
classes other than those covered by the BCF. Among BCF and ECF agents, 
individual MTF formularies are determined by local P&T Committees based 
on the scope of health care services provided at the respective MTFs. 
All pharmaceutical agents on the local formulary of full-service MTF 
pharmacies must be available to all categories of beneficiaries.
    (iii) Pharmaceutical agents prescribed for smoking cessation are not 
available for coverage when obtained through a retail pharmacy. This 
includes network and non-network retail pharmacies.
    (3) Availability of non-formulary pharmaceutical agents--(i) 
General. Non-formulary pharmaceutical agents are generally not available 
in military treatment facilities or in the retail point of service. They 
are available in the mail order program.
    (ii) Availability of non-formulary pharmaceutical agents at military 
treatment facilities. Even when particular non-formulary agents are not 
generally available at military treatment facilities, they will be made 
available to eligible covered beneficiaries through the non-formulary 
special approval process as noted in this paragraph (h)(3)(ii) when 
there is a valid medical necessity for use of the non-formulary 
pharmaceutical agent.
    (iii) Availability of clinically appropriate non-formulary 
pharmaceutical agents to members of the Uniformed Services. The pharmacy 
benefits program is required to assure the availability of clinically 
appropriate pharmaceutical agents to members of the uniformed services, 
including, where appropriate, agents not included on the uniform 
formulary. Clinically appropriate pharmaceutical agents will be made 
available to members of the Uniformed Services, including, where medical 
necessity has been validated, agents not included on the uniform 
formulary. MTFs shall establish procedures to evaluate the clinical 
necessity of prescriptions written for members of the uniformed services 
for pharmaceutical agents not included on the uniform formulary. If it 
is determined that the prescription is clinically necessary, the MTF 
will provide

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the pharmaceutical agent to the member.
    (iv) Availability of clinically appropriate pharmaceutical agents to 
other eligible beneficiaries at retail pharmacies or the TMOP. Eligible 
beneficiaries will receive non-formulary pharmaceutical agents at the 
formulary cost-share when medical necessity has been established by the 
beneficiary and/or his/her provider. The peer review provisions of Sec. 
199.15 shall apply to the clinical necessity pre-authorization 
determinations. TRICARE may require that the time for review be 
expedited under the pharmacy benefits program.
    (4) Availability of vaccines/immunizations. This paragraph (h)(4) 
applies to the following three immunizations: H1N1 vaccine, seasonal 
influenza vaccine, and pneumococcal vaccine. A retail network pharmacy 
may be an authorized provider under the Pharmacy Benefits Program when 
functioning within the scope of its state laws to provide authorized 
vaccines/immunizations to an eligible beneficiary. The Pharmacy Benefits 
Program will cover the vaccine and its administration by the retail 
network pharmacy, including administration by pharmacists who meet the 
applicable requirements of state law to administer the vaccine. A 
TRICARE authorized vaccine/immunization includes vaccines/immunizations 
authorized as preventive care under the basic program benefits of Sec. 
199.4 of this Part, as well as such care authorized for Prime enrollees 
under the uniform HMO benefit of section 199.18. For Prime enrollees 
under the uniform HMO benefit, a referral is not required under 
paragraph (n)(2) of Sec. 199.18 for preventive care vaccines/
immunizations received from a retail network pharmacy that is a TRICARE 
authorized provider. Any additional policies, instructions, procedures, 
and guidelines appropriate for implementation of this benefit may be 
issued by the TMA Director, or designee.
    (5) Availability of selected over-the-counter (OTC) drugs under the 
pharmacy benefits program. Although the pharmacy benefits program 
generally covers only prescription drugs, in some cases over-the-counter 
drugs may be covered and may be placed on the uniform formulary.
    (i) An OTC drug may be included on the uniform formulary upon the 
recommendation of the Pharmacy and Therapeutics Committee and approval 
of the Director, DHA, based on a finding that it is cost-effective and 
clinically effective, as compared with other drugs in the same 
therapeutic class of pharmaceutical agents. Clinical need is judged by 
the criteria found in paragraph (e)(1)(i) and (ii) of this section. Cost 
effectiveness is determined based on criteria found in paragraph (e)(2) 
of this section.
    (ii) OTC drugs placed on the uniform formulary, in general, will be 
treated the same as generic drugs on the uniform formulary for purposes 
of availability in MTF pharmacies, retail pharmacies, and the mail order 
pharmacy program and other requirements. However, upon the 
recommendation of the Pharmacy and Therapeutics Committee and approval 
of the Director, DHA, the requirement for a prescription may be waived 
for a particular OTC drug for certain emergency care treatment 
situations. In addition, a special copayment may be established under 
paragraph (i)(2)(xii) of this section for OTC drugs specifically used in 
certain emergency care treatment situations.
    (i) Cost-sharing requirements under the pharmacy benefits program--
(1) General. Under 10 U.S.C. 1074g(a)(6), cost-sharing requirements are 
established in this section for the pharmacy benefits program 
independent of those established under other provisions of this Part. 
Cost-shares under this section partially defray government costs of 
administering the pharmacy benefits program when collected by the 
government for prescriptions dispensed through the retail network 
pharmacies or the TRICARE Mail Order Pharmacy. The higher cost-share 
paid for prescriptions dispensed by a non-network retail pharmacy is 
established to encourage the use of the most economical venue to the 
government. Cost-sharing requirements are based on the classification of 
a pharmaceutical agent as generic, formulary, or non-formulary, in 
conjunction with the point of service from which the agent is acquired.
    (2) Cost-sharing amounts. Active duty members of the uniformed 
services do

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not pay cost-shares or annual deductibles. For other categories of 
beneficiaries, after applicable annual deductibles are met, cost-sharing 
amounts prior to October 1, 2016, are set forth in this paragraph 
(i)(2).
    (i) For pharmaceutical agents obtained from a military treatment 
facility, there is no cost-sharing or annual deductible.
    (ii) For pharmaceutical agents obtained from a retail network 
pharmacy, the cost share will be as provided in 10 U.S.C. 1074g(a)(6), 
except that there is a $0 cost-share for vaccines/immunizations 
authorized as preventive care for eligible beneficiaries.
    (iii) For formulary and generic pharmaceutical agents obtained from 
a retail non-network pharmacy, except as provided in paragraph 
(i)(2)(vi) of this section, there is a 20 percent or $20.00 cost-share 
(whichever is greater) per prescription for up to a 30-day supply of the 
pharmaceutical agent.
    (iv) For pharmaceutical agents obtained under the TRICARE mail order 
program, the cost share will be as provided in 10 U.S.C. 1074g(a)(6), 
except that there is a $0 cost-share for smoking cessation 
pharmaceutical agents covered under the smoking cessation program.
    (v) [Reserved]
    (vi) For TRICARE Prime beneficiaries there is no annual deductible 
applicable for pharmaceutical agents obtained from retail network 
pharmacies or the TRICARE mail-order program. However, for TRICARE Prime 
beneficiaries who obtain formulary or generic pharmaceutical agents from 
retail non-network pharmacies, an enrollment year deductible of $300 per 
person and $600 per family must be met after which there is a 
beneficiary cost-share of 50 percent per prescription for up to a 30-day 
supply of the pharmaceutical agent.
    (vii) For TRICARE Select beneficiaries the annual deductible which 
must be met before the cost-sharing amounts for pharmaceutical agents in 
paragraph (i)(2) of this section are applicable is as provided for each 
category of TRICARE Select enrollee in Sec. 199.17(l)(2).
    (viii) For TRICARE beneficiaries not otherwise qualified to enroll 
in TRICARE Prime or Select, the annual deductible which must be met 
before the cost-sharing amounts for pharmaceutical agents in paragraph 
(i)(2) of this section are applicable is as provided in Sec. 199.4(f).
    (ix) The TRICARE catastrophic cap limits apply to pharmacy benefits 
program cost-sharing.
    (x) For any year after 2027, the cost-sharing amounts under this 
paragraph shall be equal to the cost-sharing amounts for the previous 
year adjusted by an amount, if any, determined by the Director to 
reflect changes in the costs of pharmaceutical agents and prescription 
dispensing, rounded to the nearest dollar. These cost changes, if any, 
will consider costs under the TRICARE pharmacy benefits program 
calculated separately for each of the following categories based on 
prescriptions filled in the most recent period for which TRICARE cost 
data are available, updated to the current year, if necessary, by 
appropriate industry data:
    (A) Generic drugs in the retail point of service;
    (B) Formulary drugs in the retail point of service;
    (C) Generic drugs in the mail order point of service;
    (D) Formulary drugs in the mail order point of service;
    (E) Non-formulary drugs.
    (xi) For a Medicare-eligible beneficiary, the cost-sharing 
requirements may not be in excess of the cost-sharing requirements 
applicable to all other beneficiaries covered by 10 U.S.C. 1086.
    (xii) Special copayment rule for OTC drugs in the retail pharmacy 
network. As a general rule, OTC drugs placed on the uniform formulary 
under paragraph (h)(5) of this section will have copayments equal to 
those for generic drugs on the uniform formulary. However, upon the 
recommendation of the Pharmacy and Therapeutics Committee and approval 
of the Director, DHA, the copayment may be established at $0.00 for any 
particular OTC drug in the retail pharmacy network.
    (3) Special cost-sharing rule when there is a clinical necessity for 
use of a non-formulary pharmaceutical agent. (i) When there is a 
clinical necessity for the use

[[Page 359]]

of a non-formulary pharmaceutical agent that is not otherwise excluded 
as a covered benefit, the pharmaceutical agent will be provided at the 
same co-payment as a formulary pharmaceutical agent can be obtained.
    (ii) A clinical necessity for use of a non-formulary pharmaceutical 
agent is established when the beneficiary or their provider submits 
sufficient information to show that one or more of the following 
conditions exist:
    (A) The use of formualry pharmaceutical agents is contraindicated;
    (B) The patient experiences significant adverse effects from 
formulary pharmaceutical agents, or the provider shows that the patient 
is likely to experience significant adverse effects from formulary 
pharmaceutical agents;
    (C) Formulary pharmaceutical agents result in therapeutic failure, 
or the provider shows that the formulary pharmaceutical agent is likely 
to result in therapeutic failure;
    (D) The patient previously responded to a non-formulary 
pharmaceutical agent and changing to a formulary pharmaceutical agent 
would incur unacceptable clinical risk; or
    (E) There is no alternative pharmaceutical agent on the formulary.
    (iii) Information to establish clinical necessity for use of a non-
formulary pharmaceutical agent should be provided to TRICARE for 
prescriptions submitted to a retail network pharmacy.
    (iv) Information to establish clinical necessity for use of a non-
formulary pharmaceutical agent should be provided as part of the claims 
processes for non-formulary pharmaceutical agents obtained through non-
network points of service, claims as a result of other health insurance, 
or any other situations requiring the submission of a manual claim.
    (v) Information to establish clinical necessity for use of a non-
formulary pharmaceutical agent may be provided with the prescription 
submitted to the TMOP contractor.
    (vi) Information to establish clinical necessity for use of a non-
formulary pharmaceutical agent may also be provided at a later date, but 
no later than sixty days from the dispensing date, as an appeal to 
reduce the non-formulary co-payment to the same co-payment as a 
formulary drug.
    (vii) The process of establishing clinical necessity will not 
unnecessarily delay the dispensing of a prescription. In situations 
where clinical necessity cannot be determined in a timely manner, the 
non-formulary pharmaceutical agent will be dispensed at the non-
formulary co-payment and a refund provided to the beneficiary should 
clinical necessity be established.
    (viii) Peer review and appeal and hearing procedures. All levels of 
peer review, appeals, and grievances established by the Contractor for 
internal review shall be exhausted prior to forwarding to TRICARE 
Management Activity for a formal review. Procedures comparable to those 
established under Sec. Sec. 199.15 and 199.10 of this part shall apply. 
If it is determined that the prescription is clinically necessary, the 
pharmaceutical agent will be provided to the beneficiary at the 
formulary cost-share. TRICARE may require that the time periods for peer 
review or for appeal and hearing be expedited under the pharmacy 
benefits program. For purposes of meeting the amount in dispute 
requirement of Sec. 199.10(a)(7), the relevant amount is the difference 
between the cost shares of a formulary versus non-formulary drug. The 
amount for each of multiple prescriptions involving the same drug to 
treat the same medical condition and filled within a 12-month period may 
be combined to meet the required amount in dispute.
    (j) Use of generic drugs under the pharmacy benefits program. (1) 
The designation of a drug as a generic, for the purpose of applying 
cost-shares at the generic rate, will be determined through the use of 
standard pharmaceutical references as part of commercial best business 
practices. Pharmaceutical agents will be designated as generics when 
listed with an ``A'' rating in the current Approved Drug Products with 
Therapeutic Equivalence Evaluations (Orange Book) published by the Food 
and Drug Administration, or any successor to such reference. Generics 
are multisource products that must contain the same active ingredients, 
are of

[[Page 360]]

the same dosage form, route of administration and are identical in 
strength or concentration.
    (2) The pharmacy benefits program generally requires mandatory 
substitution of generic drugs listed with an ``A'' rating in the current 
Approved Drug Products with Therapeutic Equivalence Evaluations (Orange 
Book) published by the FDA and generic equivalents of grandfather or 
Drug Efficacy Study Implementation (DESI) category drugs for brand name 
drugs. In cases in which there is a clinical justification for a brand 
name drug in lieu of a generic equivalent, under the standards and 
procedures of paragraph (h)(3) of this section, the generic substitution 
policy is waived.
    (3) When a blanket purchase agreement, incentive price agreement, 
Government contract, or other circumstances results in a brand 
pharmaceutical agent being the most cost effective agent for purchase by 
the Government, the Pharmacy and Therapeutics Committee may also 
designate that the drug be cost-shared at the generic rate.
    (4) Upon the recommendation of the Pharmacy and Therapeutics 
Committee, a generic drug may be classified as non-formulary if it is 
less cost effective than non-generic formulary drugs in the same drug 
class.
    (5) The beneficiary copayment amount for any generic drug 
prescription may not exceed the total charge for that prescription.
    (k) Preauthorization of certain pharmaceutical agents. (1) Selected 
pharmaceutical agents may be subject to prior authorization or 
utilization review requirements to assure medical necessity, clinical 
appropriateness and/or cost effectiveness.
    (2) The Pharmacy and Therapeutics Committee will assess the need to 
prior authorize a given agent by considering the relative clinical and 
cost effectiveness of pharmaceutical agents within a therapeutic class. 
Pharmaceutical agents that require prior authorization will be 
identified by a majority vote of the Pharmacy and Therapeutics 
Committee. The Pharmacy and Therapeutics Committee will establish the 
prior authorization criteria for the pharamaceutical agent.
    (3) Prescriptions for pharmaceutical agents for which prior 
authorization criteria are not met will not be cost-shared under the 
TRICARE pharmacy benefits program.
    (4) The Director, TRICARE Management Activity, may issue policies, 
procedures, instructions, guidelines, standards or criteria to implement 
this paragraph (k).
    (l) TRICARE Senior Pharmacy Program. Section 711 of the Floyd D. 
Spence National Defense Authorization Act for Fiscal Year 2001 (Public 
Law 106-398, 114 Stat. 1654A-175) established the TRICARE Senior 
Pharmacy Program for Medicare eligible beneficiaries effective April 1, 
2001. These beneficiaries are required to meet the eligibility criteria 
as prescribed in Sec. 199.3 of this part. The benefit under the TRICARE 
Senior Pharmacy Program applies to prescription drugs and medicines 
provided on or after April 1, 2001.
    (m) Effect of other health insurance. The double coverage rules of 
section 199.8 of this part are applicable to services provided under the 
pharmacy benefits program. For this purpose, the Medicare prescription 
drug benefit under Medicare Part D, prescription drug benefits provided 
under Medicare Part D plans are double coverage plans and such plans 
will be the primary payer, to the extent described in section 199.8 of 
this part. Beneficiaries who elect to use these pharmacy benefits shall 
provide DoD with other health insurance information.
    (n) Procedures. The Director, TRICARE Management Activity shall 
establish procedures for the effective operation of the pharmacy 
benefits program. Such procedures may include restrictions of the 
quantity of pharmaceuticals to be included under the benefit, 
encouragement of the use of generic drugs, implementation of quality 
assurance and utilization management activities, and other appropriate 
matters.
    (o) Preemption of State laws. (1) Pursuant to 10 U.S.C. 1103, the 
Department of Defense has determined that in the administration of 10 
U.S.C. chapter 55, preemption of State and local laws relating to health 
insurance, prepaid

[[Page 361]]

health plans, or other health care delivery or financing methods is 
necessary to achieve important Federal interests, including but not 
limited to the assurance of uniform national health programs for 
military families and the operation of such programs at the lowest 
possible cost to the Department of Defense, that have a direct and 
substantial effect on the conduct of military affairs and national 
security policy of the United States.
    (2) Based on the determination set forth in paragraph (o)(1) of this 
section, any State or local law relating to health insurance, prepaid 
health plans, or other health care delivery or financing methods is 
preempted and does not apply in connection with TRICARE pharmacy 
contracts. Any such law, or regulation pursuant to such law, is without 
any force or effect, and State or local governments have no legal 
authority to enforce them in relation to the TRICARE pharmacy contracts. 
However, the Department of Defense may by contract establish legal 
obligations on the part of TRICARE contractors to conform with 
requirements similar or identical to requirements of State or local laws 
or regulations.
    (3) The preemption of State and local laws set forth in paragraph 
(o)(1) of this section includes State and local laws imposing premium 
taxes on health or dental insurance carriers or underwriters or other 
plan managers, or similar taxes on such entities. Such laws are laws 
relating to health insurance, prepaid health plans, or other health care 
delivery or financing methods, within the meaning of the statutes 
identified in paragraph (o)(1) of this section. Preemption, however, 
does not apply to taxes, fees, or other payments on net income or profit 
realized by such entities in the conduct of business relating to DoD 
pharmacy services contracts, if those taxes, fees or other payments are 
applicable to a broad range of business activity. For purposes of 
assessing the effect of Federal preemption of State and local taxes and 
fees in connection with DoD pharmacy services contracts, interpretations 
shall be consistent with those applicable to the Federal Employees 
Health Benefits Program under 5 U.S.C. 8909(f).
    (p) General fraud, abuse, and conflict of interest requirements 
under TRICARE pharmacy benefits program. All fraud, abuse, and conflict 
of interest requirements for the basic CHAMPUS program, as set forth in 
this part 199 (see applicable provisions of Sec. 199.9 of this part) 
are applicable to the TRICARE pharmacy benefits program. Some methods 
and procedures for implementing and enforcing these requirements may 
differ from the methods and procedures followed under the basic CHAMPUS 
program.
    (q) Pricing standards for retail pharmacy program--(1) Statutory 
requirement. (i) As required by 10 U.S.C. 1074g(f), with respect to any 
prescription filled on or after the date of the enactment of the 
National Defense Authorization Act for Fiscal Year 2008, the TRICARE 
retail pharmacy program shall be treated as an element of the DoD for 
purposes of the procurement of drugs by Federal agencies under 38 U.S.C. 
8126 to the extent necessary to ensure pharmaceuticals paid for by the 
DoD that are provided by pharmacies under the program to eligible 
covered beneficiaries under this section are subject to the pricing 
standards in such section 8126.
    (ii) Under paragraph (q)(1)(i) of this section, all covered drug 
TRICARE retail pharmacy network prescriptions are subject to Federal 
Ceiling Prices under 38 U.S.C. 8126.
    (2) Manufacturer written agreement. (i) A written agreement by a 
manufacturer to honor the pricing standards required by 10 U.S.C. 
1074g(f) and referred to in paragraph (q)(1) of this section for 
pharmaceuticals provided through retail network pharmacies shall with 
respect to a particular covered drug be a condition for:
    (A) Inclusion of that drug on the uniform formulary under this 
section; and
    (B) Availability of that drug through retail network pharmacies 
without preauthorization under paragraph (k) of this section.
    (ii) A covered drug not under an agreement under paragraph (q)(2)(i) 
of this section requires preauthorization under paragraph (k) of this 
section to be provided through a retail network

[[Page 362]]

pharmacy under the Pharmacy Benefits Program. This preauthorization 
requirement does not apply to other points of service under the Pharmacy 
Benefits Program.
    (iii) For purposes of this paragraph (q)(2), a covered drug is a 
drug that is a covered drug under 38 U.S.C. 8126, but does not include:
    (A) A drug that is not a covered drug under 38 U.S.C. 8126;
    (B) A drug provided under a prescription that is not covered by 10 
U.S.C. 1074g(f);
    (C) A drug that is not provided through a retail network pharmacy 
under this section;
    (D) A drug provided under a prescription which the TRICARE Pharmacy 
Benefits Program is the second payer under paragraph (m) of this 
section;
    (E) A drug provided under a prescription and dispensed by a pharmacy 
under section 340B of the Public Health Service Act; or
    (F) Any other exception for a drug, consistent with law, established 
by the Director, TMA.
    (iv) The requirement of this paragraph (q)(2) may, upon the 
recommendation of the Pharmacy and Therapeutics Committee, be waived by 
the Director, TMA if necessary to ensure that at least one drug in the 
drug class is included on the Uniform Formulary. Any such waiver, 
however, does not waive the statutory requirement referred to in 
paragraph (q)(1) that all covered TRICARE retail network pharmacy 
prescriptions are subject to Federal Ceiling Prices under 38 U.S.C. 
8126; it only waives the exclusion from the Uniform Formulary of drugs 
not covered by agreements under this paragraph (q)(2).
    (3) Refund procedures. (i) Refund procedures to ensure that 
pharmaceuticals paid for by the DoD that are provided by retail network 
pharmacies under the pharmacy benefits program are subject to the 
pricing standards referred to in paragraph (q)(1) of this section shall 
be established. Such procedures may be established as part of the 
agreement referred to in paragraph (q)(2), or in a separate agreement, 
or pursuant to Sec. 199.11.
    (ii) The refund procedures referred to in paragraph (q)(3)(i) of 
this section shall, to the extent practicable, incorporate common 
industry practices for implementing pricing agreements between 
manufacturers and large pharmacy benefit plan sponsors. Such procedures 
shall provide the manufacturer at least 70 days from the date of the 
submission of the TRICARE pharmaceutical utilization data needed to 
calculate the refund before the refund payment is due. The basis of the 
refund will be the difference between the average non-federal price of 
the drug sold by the manufacturer to wholesalers, as represented by the 
most recent annual non-Federal average manufacturing prices (non-FAMP) 
(reported to the Department of Veterans Affairs (VA)) and the 
corresponding FCP or, in the discretion of the manufacturer, the 
difference between the FCP and direct commercial contract sales prices 
specifically attributable to the reported TRICARE paid pharmaceuticals, 
determined for each applicable NDC listing. The current annual FCP and 
the annual non-FAMP from which it was derived will be applicable to all 
prescriptions filled during the calendar year.
    (iii) A refund due under this paragraph (q) is subject to Sec. 
199.11 of this part and will be treated as an erroneous payment under 
that section.
    (A) A manufacturer may under section 199.11 of this part request 
waiver or compromise of a refund amount due under 10 U.S.C. 1074g(f) and 
this paragraph (q).
    (B) During the pendency of any request for waiver or compromise 
under paragraph (q)(3)(iii)(A) of this section, a manufacturer's written 
agreement under paragraph (q)(2) shall be deemed to exclude the matter 
that is the subject of the request for waiver or compromise. In such 
cases the agreement, if otherwise sufficient for the purpose of the 
condition referred to in paragraph (q)(2), will continue to be 
sufficient for that purpose. Further, during the pendency of any such 
request, the matter that is the subject of the request shall not be 
considered a failure of a manufacturer to honor a requirement or an 
agreement for purposes of paragraph (q)(4).
    (C) In addition to the criteria established in Sec. 199.11, a 
request for waiver may also be premised on the voluntary

[[Page 363]]

removal by the manufacturer in writing of a drug from coverage in the 
TRICARE Pharmacy Benefit Program.
    (iv) In the case of disputes by the manufacturer of the accuracy of 
TMA's utilization data, a refund obligation as to the amount in dispute 
will be deferred pending good faith efforts to resolve the dispute in 
accordance with procedures established by the Director, TMA. If the 
dispute is not resolved within 60 days, the Director, TMA will issue an 
initial administrative decision and provide the manufacturer with 
opportunity to request reconsideration or appeal consistent with 
procedures under section 199.10 of this part. When the dispute is 
ultimately resolved, any refund owed relating to the amount in dispute 
will be subject to an interest charge from the date payment of the 
amount was initially due, consistent with section 199.11 of this part.
    (4) Remedies. In the case of the failure of a manufacturer of a 
covered drug to honor a requirement of this paragraph (q) or to honor an 
agreement under this paragraph (q), the Director, TMA, in addition to 
other actions referred to in this paragraph (q), may take any other 
action authorized by law.
    (5) Beneficiary transition provisions. In cases in which a 
pharmaceutical is removed from the uniform formulary or designated for 
preauthorization under paragraph (q)(2) of this section, the Director, 
TMA may for transitional time periods determined appropriate by the 
Director or for particular circumstances authorize the continued 
availability of the pharmaceutical in the retail pharmacy network or in 
MTF pharmacies for some or all beneficiaries as if the pharmaceutical 
were still on the uniform formulary.
    (r) Refills of maintenance medications for eligible covered 
beneficiaries through the mail order pharmacy program--(1) In general. 
Consistent with section 702 of the National Defense Authorization Act 
for Fiscal Year 2015, this paragraph requires that for non-generic 
covered maintenance medications, beneficiaries are generally required to 
obtain their prescription through the national mail-order pharmacy 
program or through military treatment facility pharmacies. For purposes 
of this paragraph, eligible covered beneficiaries are those defined 
under sections 1072 and 1086 of title 10, United States Code.
    (2) Medications covered. The Director, DHA, will establish, 
maintain, and periodically revise and update a list of non-generic 
covered maintenance medications subject to the requirement of paragraph 
(r)(1) of this section. The current list will be accessible through the 
TRICARE Pharmacy Program Internet Web site and by telephone through the 
TRICARE Pharmacy Program Service Center. Each medication included on the 
list will meet the following requirements:
    (i) It will be a medication prescribed for a chronic, long-term 
condition that is taken on a regular, recurring basis.
    (ii) It will be clinically appropriate to dispense the medication 
from the mail order pharmacy.
    (iii) It will be cost effective to dispense the medication from the 
mail order pharmacy.
    (iv) It will be available for an initial filling of a 30-day or less 
supply through retail pharmacies.
    (v) It will be generally available at military treatment facility 
pharmacies for initial fill and refills.
    (vi) It will be available for refill through the national mail-order 
pharmacy program.
    (3) Refills covered. For purposes of the program under paragraph 
(r)(1) of this section, a refill is:
    (i) A subsequent filling of an original prescription under the same 
prescription number or other authorization as the original prescription; 
or
    (ii) A new original prescription issued at or near the end date of 
an earlier prescription for the same medication for the same patient.
    (4) Waiver of requirement. A waiver of the general requirement to 
obtain maintenance medication prescription refills from the mail order 
pharmacy or military treatment facility pharmacy will be granted in the 
following circumstances:
    (i) There is a blanket waiver for prescription medications that are 
for acute care needs.
    (ii) There is a blanket waiver for prescriptions covered by other 
health insurance.

[[Page 364]]

    (iii) There is a case-by-case waiver to permit prescription 
maintenance medication refills at a retail pharmacy when necessary due 
to personal need or hardship, emergency, or other special circumstance. 
This waiver is obtained through an administrative override request to 
the TRICARE pharmacy benefits manager under procedures established by 
the Director, DHA.
    (5) Procedures. Under the program established by paragraph (r)(1) of 
this section, the Director, DHA will establish procedures for the 
effective operation of the program. Among these procedures are the 
following:
    (i) The Department will implement the program by utilizing best 
commercial practices to the extent practicable.
    (ii) An effective communication plan that includes efforts to 
educate beneficiaries in order to optimize participation and 
satisfaction will be implemented.
    (iii) Beneficiaries with active retail prescriptions for a 
medication on the maintenance medication list will be notified that 
their medication is included under the program. Beneficiaries will be 
advised that they may receive two 30 day fill at retail while they 
transition their prescription to the mail order program.
    (iv) Requests for a third fill at retail will result in 100% patient 
cost shares and will be blocked from any TRICARE payments and the 
beneficiary advised to call the pharmacy benefits manager (PBM) for 
assistance.
    (v) The PBM will provide a toll free number to assist beneficiaries 
in transferring their prescriptions from retail to the mail order 
program. With the beneficiary's permission, the PBM will contact the 
physician or other health care provider who prescribed the medication to 
assist in transferring the prescription to the mail order program.
    (vi) In any case in which a beneficiary required under paragraph (r) 
of this section to obtain a maintenance medication prescription refill 
from national mail order pharmacy program and attempts instead to refill 
such medications at a retail pharmacy, the PBM will also maintain the 
toll free number to assist the beneficiary. This assistance may include 
information on how to request a waiver, consistent with paragraph 
(r)(4)(iii) of this section, or in taking any other appropriate action 
to meet the beneficiary's needs and to implement the program.
    (vii) The PBM will ensure that a pharmacist is available at all 
times through the toll-free telephone number to answer beneficiary 
questions or provide other appropriate assistance.
    (6) This program will remain in effect indefinitely with any 
adjustments or modifications required by law.

[69 FR 17048, Apr. 1, 2004, as amended at 74 FR 11292, Mar. 17, 2009; 74 
FR 55776, Oct. 29, 2009; 74 FR 65438, Dec. 10, 2009; 75 FR 63397, Oct. 
15, 2010; 76 FR 41065, July 13, 2011; 78 FR 13241, Feb. 27, 2013; 78 FR 
75247, Dec. 11, 2013; 80 FR 46798, Aug. 6, 2015; 80 FR 44272, July 27, 
2015; 81 FR 76310, Nov. 2, 2016; 82 FR 45458, Sept. 29, 2017; 83 FR 
63577, Dec. 11, 2018]



Sec. 199.22  TRICARE Retiree Dental Program (TRDP).

    (a) Establishment. The TRDP is a premium based indemnity dental 
insurance coverage program that will be available to certain retirees 
and their surviving spouses, their dependents, and certain other 
beneficiaries, as specified in paragraph (d) of this section. The TRDP 
is authorized by 10 U.S.C. 1076c.
    (1) The Director will, except as authorized in paragraph (a)(2) of 
this section, make available a premium based indemnity dental insurance 
plan for eligible TRDP beneficiaries specified in paragraph (d) of this 
section consistent with the provisions of this section.
    (2) The TRDP premium based indemnity dental insurance program under 
paragraph (a) of this section may be provided by allowing eligible 
beneficiaries specified in paragraph (d) of this section to enroll in an 
insurance plan under chapter 89A of title 5, United States Code that 
provides benefits similar to those benefits provided under paragraph (f) 
of this section. Such enrollment shall be authorized pursuant to an 
agreement entered into between the Department of Defense and the Office 
of Personnel Management which agreement, in the event of any 
inconsistency, shall take precedence over provisions in this section.
    (b) General provisions. (1) At a minimum, benefits are the 
diagnostic services, preventive services, basic restorative services 
(including endodontics),

[[Page 365]]

oral surgery services, and emergency services specified in paragraph 
(f)(1) of this section. Additional services comparable to those 
contained in paragraph (e)(2) of Sec. 199.13 may be covered pursuant to 
benefit policy decisions made by the Director, TRICARE Management 
Activity, or designee.
    (2) Premium costs for this coverage will be paid by the enrollee.
    (3) Geographic scope. (i) The TRDP is applicable to authorized 
providers in the 50 United States and the District of Columbia, Canada, 
Puerto Rico, Guam, American Samoa, the Commonwealth of the Northern 
Mariana Islands, and the U.S. Virgin Islands.
    (ii) The Assistant Secretary of Defense (Health Affairs) (ASD (HA)) 
may extend the TRDP to geographic areas other than those specified in 
paragraph (b)(3)(i) of this section. In extending the TRDP overseas, the 
ASD (HA) is authorized to establish program elements, methods of 
administration, and payment rates and procedures that are different from 
those in effect for the areas specified in paragraph (b)(3)(i) of this 
section to the extent the ASD (HA), or designee, determines necessary 
for the effective and efficient operation of the TRDP. These differences 
may include, but are not limited to, specific provisions for 
preauthorization of care, varying licensure and certification 
requirements for foreign providers, and other differences based on 
limitations in the availability and capabilities of the Uniformed 
Services overseas dental treatment facilities and a particular nation's 
civilian sector providers in certain areas. The Director, TRICARE 
Management Activity shall issue guidance, as necessary, to implement the 
provisions of this paragraph. TRDP enrollees residing in overseas 
locations will be eligible for the same benefits as enrollees residing 
in the continental United States, although dental services may not be 
available or accessible in all locations.
    (4) Except as otherwise provided in this section or by the Assistant 
Secretary of Defense (Health Affairs) or designee, the TRDP is 
administered in a manner similar to the TRICARE Dental Program under 
Sec. 199.13 of this part.
    (5) The TRDP shall be administered through a contract.
    (c) Except as may be specifically provided in this section, to the 
extent terms defined in Sec. 199.2 and Sec. 199.13(b) are relevant to 
the administration of the TRICARE Retiree Dental Program, the 
definitions contained in Sec. 199.2 and Sec. 199.13(b) shall apply to 
the TRDP as they do to TRICARE/CHAMPUS and the TRICARE Dental Program.
    (d) Eligibility and enrollment--(1) Eligibility. Enrollment in the 
TRICARE Retiree Dental Program is open to:
    (i) Members of the Uniformed Services who are entitled to retired 
pay, or former members of the armed forces who are Medal of Honor 
recipients and who are not otherwise entitled to dental benefits;
    (ii) Members of the Retired Reserve under the age of 60;
    (iii) Eligible dependents of a member described in paragraph 
(d)(1)(i) or paragraph (d)(1)(ii) of this section who are covered by the 
enrollment of the member;
    (iv) Eligible dependents of a member described in paragraph 
(d)(1)(i) or paragraph (d)(1)(ii) of this section when the member is not 
enrolled in the program and the member meets at least one of the 
conditions in paragraphs (d)(1)(iv)(A) through (C) of this section. 
Already enrolled members must satisfy any remaining enrollment 
commitment prior to enrollment of dependents becoming effective under 
this paragraph, at which time the dependent-only enrollment will 
continue on a voluntary basis as specified in paragraph (d)(4) of this 
section. Members must provide documentation to the TRDP contractor 
giving evidence of compliance with paragraphs (d)(1)(iv)(A), (B), or (C) 
of this section at the time of application for enrollment of their 
dependents under this paragraph.
    (A) The member is enrolled under Section 1705 of Title 38, United 
States Code, to receive ongoing, comprehensive dental care from the 
Department of Veterans Affairs pursuant to Section 1712 of Title 38, 
United States Code, and 38 CFR 17.93, 17.161, or 17.166. Authorization 
of such dental care must be confirmed in writing by the Department of 
Veterans Affairs.

[[Page 366]]

    (B) The member is enrolled in a dental plan that is available to the 
member as a result of employment of the member that is separate from the 
Uniformed Service of the member, and the dental plan is not available to 
dependents of the member as a result of such separate employment by the 
member. Enrollment in this dental plan and the exclusion of dependents 
from enrollment in the plan must be confirmed by documentation from the 
member's employer or the dental plan's administrator.
    (C) The member is prevented by a current and enduring medical or 
dental condition from being able to obtain benefits under the TRDP. The 
specific medical or dental condition and reason for the inability to use 
the program's benefits over time, if not apparent based on the 
condition, must be documented by the member's physician or dentist.
    (v) The unremarried surviving spouse and eligible child dependents 
of a deceased member who died while in status described in paragraph 
(d)(1)(i) or paragraph (d)(1)(ii) of this section; the unremarried 
surviving spouse and eligible child dependents who receive a surviving 
spouse annuity; or the unremarried surviving spouse and eligible child 
dependents of a deceased member who died while on active duty for a 
period of more than 30 days and whose eligible dependents are not 
eligible or no longer for the TRICARE Dental Program.

    Note to paragraphs (d)(1)(iii), (d)(1)(iv), and (d)(1)(v): Eligible 
dependents of Medal of Honor recipients are described in Sec. 
199.3(b)(2)(i) (except for former spouses) and Sec. 199.3(b)(2)(ii) 
(except for a child placed in legal custody of a Medal of Honor 
recipient under Sec. 199.3(b)(2)(ii)(H)(4)).

    (2) Notification of eligibility. The contractor will notify persons 
eligible to receive dental benefits under the TRICARE Retiree Dental 
Program.
    (3) Election of coverage. In order to initiate dental coverage, 
election to enroll must be made by the member or eligible dependent. 
Enrollment in the TRICARE Retiree Dental Program is voluntary and will 
be accomplished by submission of an application to the TRDP contractor.
    (4) Enrollment periods--(i) Enrollment period for basic benefits. 
The initial enrollment for the basic dental benefits described in 
paragraph (f)(1) of this section shall be for a period of 24 months 
followed by month-to-month enrollment as long as the enrollee remains 
eligible and chooses to continue enrollment. An enrollee's disenrollment 
from the TRDP at any time for any reason, including termination for 
failure to pay premiums, is subject to a lockout period of 12 months. 
After any lockout period, eligible individuals may elect to reenroll and 
are subject to a new initial enrollment period. The enrollment periods 
and conditions stipulated in this paragraph apply only to the basic 
benefit coverage described in paragraph (f)(1) of this section. 
Effective with the implementation of an enhanced benefit program, new 
enrollments for basic coverage will cease. Enrollees in the basic 
program at that time may continue their enrollment for basic coverage, 
subject to the applicable provisions of this section, as long as the 
contract administering that coverage is in effect.
    (ii) Enrollment period for enhanced benefits. The initial enrollment 
period for enhanced benefit coverage described in paragraph (f)(2) of 
this section shall be established by the Director, TMA, or designee, to 
be a period of not less than 12 months and not more than 24 months. The 
initial enrollment period shall be followed by renewal enrollment 
periods of up to 12 months as long as the enrollee chooses to continue 
enrollment and remains eligible. An enrollee who chooses not to continue 
enrollment upon completion of an enrollment period may re-enroll at any 
time. However, an enrollee who is disenrolled from the TRDP before 
completion of an initial or subsequent enrollment period for reasons 
other than those in paragraphs in (d)(5)(ii)(A) and (B) of this section 
shall incur a lockout period of 12 months before re-enrollment can 
occur. Former enrollees who re-enroll following a lockout period or 
following a period of disenrollment after completion of an enrollment 
period must comply with all provisions that apply to new enrollees, 
including a new enrollment commitment.

[[Page 367]]

    (5) Termination of coverage--(i) Involuntary termination. TRDP 
coverage is terminated when the member's entitlement to retired pay is 
terminated, the member's status as a member of the Retired Reserve is 
terminated, a dependent child loses eligible child dependent status, or 
a surviving spouse remarries.
    (ii) Voluntary termination. All enrollee requests for termination of 
TRDP coverage before the completion of an enrollment period shall be 
submitted to the TRDP contractor for determination of whether the 
enrollee qualifies to be disenrolled under paragraphs (d)(5)(ii)(A) or 
(B) of this section.
    (A) Enrollment grace period. Regardless of the reason, TRDP coverage 
shall be cancelled, or otherwise terminated, upon request from an 
enrollee if the request is received by the TRDP contractor within 30 
calendar days following the enrollment effective date and there has been 
no use of TRDP benefits under the enrollment during that period. If such 
is the case, the enrollment is voided and all premium payments are 
refunded. However, use of benefits during this 30-day enrollment grace 
period constitutes acceptance by the enrollee of the enrollment and the 
enrollment period commitment. In this case, a request for termination of 
enrollment under paragraph (d)(5)(ii)(A) of this section will not be 
honored, and premiums will not be refunded.
    (B) Extenuating circumstances. Under limited circumstances, TRDP 
enrollees shall be disenrolled by the contractor before the completion 
of an enrollment period commitment upon request by an enrollee if the 
enrollee submits written, factual documentation that independently 
verifies that one of the following extenuating circumstances occurred 
during the enrollment period. In general, the circumstances must be 
unforeseen and long-term and must have originated after the effective 
date of TRDP coverage.
    (1) The enrollee is prevented by a serious medical condition from 
being able to utilize TRDP benefits,
    (2) The enrollee would suffer severe financial hardship by 
continuing TRDP enrollment; or
    (3) Any other circumstances which the Secretary considers 
appropriate.
    (C) Effective date of voluntary termination. For cases determined to 
qualify for disenrollment under the grace period provisions in paragraph 
(d)(5)(ii)(A) of this section, enrollment is completely nullified 
effective from the beginning date of coverage. For cases determined to 
qualify for disenrollment under the extenuating circumstances provisions 
in paragraph (d)(5)(ii)(B) of this section, the effective date of 
disenrollment is the first of the month following the contractor's 
initial determination on the disenrollment request or the first of the 
month following the last use of TRDP benefits under the enrollment, 
whichever is later.
    (D) Appeal process for denied voluntary enrollment termination. An 
enrollee has the right to appeal the contractor's determination that a 
disenrollment request does not qualify under paragraphs (d)(5)(ii)(A) or 
(B) of this section. The enrollee may appeal that determination by 
submitting a written appeal to the TMA, Office of Appeals and Hearings, 
with a copy of the contractor's determination notice and relevant 
documentation supporting the disenrollment request. This appeal must be 
received by TMA within 60 days of the date on the contractor's 
determination notice. The burden of proof is on the enrollee to 
establish affirmatively by substantial evidence that the enrollee 
qualifies to be disenrolled under paragraphs (d)(5)(ii)(A) or (B) of 
this section. TMA will issue written notification to the enrollee and 
the contractor of its appeal determination within 60 days from the date 
of receipt of the appeal request. That determination is final.
    (6) Continuation of dependents' enrollment upon death of enrollee. 
Coverage of a dependent in the TRDP under an enrollment of a member or 
surviving spouse who dies during the period of enrollment shall continue 
until the end of that period and may be renewed by (or for) the 
dependent, so long as the premium paid is sufficient to cover 
continuation of the dependent's enrollment. Coverage may be terminated 
when the premiums paid are no longer sufficient to cover continuation of 
the enrollment.

[[Page 368]]

    (e) Premium payments. Persons enrolled in the dental plan will be 
responsible for paying the full cost of the premiums in order to obtain 
the dental insurance.
    (1) Premium payment method. The premium payment may be collected 
pursuant to procedures established by the Assistant Secretary of Defense 
(Health Affairs) or designee.
    (2) Effects of failure to make premium payments. Failure to make 
premium payments will result in the enrollee's disenrollment from the 
TRDP and a lockout period of 12 months. Following this period of time, 
eligible individuals will be able to re-enroll.
    (3) Member's payment of premiums. The cost of the TRDP monthly 
premium will be paid by the enrollee. Interested beneficiaries may 
contact the dental contractor-insurer to obtain the enrollee premium 
cost.
    (f) Plan benefits. The Director, TRICARE Management Activity, or 
designee, may modify the services covered by the TRDP to the extent 
determined appropriate based on developments in common dental care 
practices and standard dental programs. In addition, the Director, 
TRICARE Management Activity, or designee, may establish such exclusions 
and limitations as are consistent with those established by dental 
insurance and prepayment plans to control utilization and quality of 
care for the services and items covered by the TRDP.
    (1) The minimum TRDP benefit is basic dental care to include 
diagnostic services, preventive services, restorative services, 
endodontic services, periodontic services, oral surgery services, and 
other general services. The following is the minimum TRDP covered dental 
benefit:
    (i) Diagnostic services.
    (A) Clinical oral examinations.
    (B) Radiographs and diagnostic imaging.
    (C) Tests and laboratory examinations.
    (ii) Preventive services.
    (A) Dental prophylaxis.
    (B) Topical fluoride treatment (office procedure).
    (C) Sealants.
    (D) Other preventive services.
    (E) Space maintenance.
    (iii) Restorative services.
    (A) Amalgam restorations.
    (B) Resin-based composite restorations.
    (C) Other restorative services.
    (iv) Endodontic services.
    (A) Pulp capping.
    (B) Pulpotomy and pulpectomy.
    (C) Root canal therapy.
    (D) Apexification and recalcification procedures.
    (E) Apicoectomy and periradicular services.
    (F) Other endodontic procedures.
    (v) Periodontic Services.
    (A) Surgical services.
    (B) Periodontal services.
    (vi) Oral surgery.
    (A) Extractions.
    (B) Surgical extractions.
    (C) Alveoloplasty.
    (D) Biopsy.
    (E) Other surgical procedures.
    (vii) Other general services.
    (A) Palliative (emergenery) treatment of dental pain.
    (B) Therapeutic drug injection.
    (C) Other drugs and/or medicaments.
    (D) Treatment of postsurgical complications.
    (2) Enhanced benefits. In addition to the minimum TRDP services in 
paragraph (f)(1) of this section, other services that are comparable to 
those contained in paragraph (e)(2) of Sec. 199.13 may be covered 
pursuant to TRDP benefit policy decisions made by the Director, 
OCHAMPUS, or designee. In general, these include additional diagnostic 
and preventive services, major restorative services, prosthodontics 
(removable and fixed), additional oral surgery services, orthodontics, 
and additional adjunctive general services (including general anesthesia 
and intravenous sedation). Enrollees in the basis plan will be given an 
enrollment option at the time the enhanced plan is implemented.
    (3) Alternative course of treatment policy. The Director, TRICARE 
Management Activity, or designee, may establish, in accordance with 
generally accepted dental benefit practices, an alternative course of 
treatment policy which provides reimbursement in instances where the 
dentist and TRDP enrollee select a more expensive service, procedure, or 
course of treatement

[[Page 369]]

than in customarily provided. The alternative course of treatment policy 
must meet the following conditions:
    (i) The service, procedure, or course of treatment must be 
consistent with sound professional standards of generally accepted 
dental practice for the dental condition concerned.
    (ii) The service, procedure, or course of treatment must be a 
generally accepted alternative for a service or procedure covered by the 
TRDP for the dental condition.
    (iii) Payment for the alternative service or procedure may not 
exceed the lower of the prevailing limits for the alternative procedure, 
the prevailing limits or dental plan contractor's scheduled allowance 
for the otherwise authorized benefit procedure for which the alternative 
is substituted, or the actual charge for the alternative procedure.
    (g) Maximum coverage amounts. Each enrollee is subject to an annual 
maximum coverage amount for non-orthodontic dental benefits and, if an 
orthodontic benefit is offered, a lifetime maximum coverage amount for 
orthodontics as established by the Director, TRICARE Management 
Activity, or designee.
    (h) Annual notification of rates. TRDP premiums will be determined 
as part of the competitive contracting process. Information on the 
premium rates will be widely distributed.
    (i) Authorized providers. The TRDP enrollee may seek covered 
services from any provider who is fully licensed and approved to provide 
dental care in the state where the provider is located.
    (j) Benefit payment. Enrollees are not required to utilize the 
special network of dental providers established by the TRDP contractor. 
For enrollees who do use these network providers, however, providers 
shall not balance bill any amount in excess of the maximum payment 
allowable by the TRDP. Enrollees using non-network providers may balance 
billed amounts in excess of allowable charges. The maximum payment 
allowable by the TRDP (minus the appropriate cost-share) will be the 
lesser of:
    (1) Billed charges; or
    (2) Usual, Customary and Reasonable rates, in which the customary 
rate is calculated at the 50th percentile of billed charges in that 
geographic area, as measured in an undiscounted charge profile in 1995 
or later for that geographic area (as defined by three-digit zip code).
    (k) Appeal procedures. All levels of appeal established by the 
contractor shall be exhausted prior to an appeal being filed with the 
TMA. Procedures comparable to those established for appeal of benefit 
determinations under Sec. 199.10 of this part shall apply together with 
the procedures for appeal of voluntary disenrollment determinations 
described in paragraph (d)(5)(ii)(D) of this section.
    (l) Preemption of State laws. (1) Pursuant to 10 U.S.C. 1103, the 
Department of Defense has determined that in the administration of 
chapter 55 of title 10, U.S. Code, preemption of State and local laws 
relating to health insurance, prepaid health plans, or other health care 
delivery or financing methods is necessary to achieve important Federal 
interests, including but not limited to the assurance of uniform 
national health programs for military families and the operation of such 
programs at the lowest possible cost to the Department of Defense, that 
have a direct and substantial effect on the conduct of military affairs 
and national security policy of the United States. This determination is 
applicable to the dental services contracts that implement this section.
    (2) Based on the determination set forth in paragraph (l)(1) of this 
section, any State or local law or regulation pertaining to health or 
dental insurance, prepaid health or dental plans, or other health or 
dental care delivery, administration, and financing methods is preempted 
and does not apply in connection with the TRICARE Retiree Dental Program 
contract. Any such law, or regulation pursuant to such law, is without 
any force or effect, and State or local governments have no legal 
authority to enforce them in relation to the TRICARE Retiree Dental 
Program contract. (However, the Department of Defense may, by contract, 
establish legal obligations on the part of the TRICARE Retiree Dental 
Program contractor to conform with requirements similar to or identical 
to

[[Page 370]]

requirements of State or local laws or regulations).
    (3) The preemption of State and local laws set forth in paragraph 
(l)(2) of this section includes State and local laws imposing premium 
taxes on health or dental insurance carriers or underwriters or other 
plan managers, or similar taxes on such entities. Such laws are laws 
relating to health insurance, prepaid health plans, or other health care 
delivery or financing methods, within the meaning of section 1103. 
Preemption, however, does not apply to taxes, fees, or other payments on 
net income or profit realized by such entities in the conduct of 
business relating to DoD health services contracts, if those taxes, fees 
or other payments are applicable to a broad range of business activity. 
For the purposes of assessing the effect of Federal preemption of State 
and local taxes and fees in connection with DoD health and dental 
services contracts, interpretations shall be consistent with those 
applicable to the Federal Employees Health Benefits Program under 5 
U.S.C. 8909(f).
    (m) Administration. The Assistant Secretary of Defense (Health 
Affairs) or designee may establish other rules and procedures for the 
administration of the TRICARE Retiree Dental Program.

[62 FR 66993, Dec. 23, 1997, as amended at 65 FR 48913, Aug. 10, 2000; 
65 FR 49492, Aug. 14, 2000; 66 FR 9658, Feb. 9, 2001; 67 FR 4354, Jan. 
30, 2002; 67 FR 15725, Apr. 3, 2002; 72 FR 54213, Sept. 24, 2007; 72 FR 
64537, Nov. 16, 2007; 73 FR 59504, Oct. 9, 2008; 82 FR 45458, Sept. 29, 
2017]



Sec. 199.23  Special Supplemental Food Program.

    (a) General provisions. This section prescribes guidelines and 
policies for the delivery and administration of the Special Supplemental 
Food Program for Women, Infants, and Children Overseas (WIC Overseas 
Program). The purpose of the WIC Overseas Program is to provide 
supplemental foods and nutrition education, at no cost, to eligible 
persons and to serve as an adjunct to good health care during critical 
times of growth and development, in order to prevent the occurrence of 
health problems, including drug and other substance abuse, and to 
improve the health status of program participants. The benefit is 
similar to the benefit provided under the U.S. Department of Agriculture 
(USDA) administered Women, Infants, and Children (WIC) Program.
    (b) Definitions. For most definitions applicable to the provisions 
of this section, refer to sec. 199.2. The following definitions apply 
only to this section:
    (1) Applicant. Pregnant women, breastfeeding women, postpartum 
women, infants, and children who are applying to receive WIC Overseas 
benefits, and the breastfed infants of applicant breastfeeding women. 
This term also includes individuals who are currently participating in 
the Program but are re-applying because their certification is about to 
expire.
    (2) Breastfeeding women. Women up to 1-year postpartum who are 
breastfeeding their infants. Their eligibility will end on the last day 
of the month of their infant's first birthday.
    (3) Certification. The implementation of criteria and procedures to 
assess and document each applicant's eligibility for the Program.
    (4) Children. Persons who have had their first birthday but have not 
yet attained their fifth birthday. Their eligibility will end on the 
last day of the month of their fifth birthday.
    (5) Competent Professional Authority (CPA). An individual on the 
staff of the WIC Overseas office authorized to determine nutritional 
risk, prescribe supplemental foods, and design nutrition education 
programs. The following are authorized to serve as a competent 
professional authority: physicians, nutritionists, registered nurses, 
and dieticians may serve as a competent professional authority. 
Additionally, a CPA may be other persons designated by the regional 
program manager who meet the definition of CPA prescribed by the USDA as 
being professionally competent to evaluate nutritional risk. The 
definition also applies to an individual who is not on the staff of the 
WIC Overseas office but who is qualified to provide data upon which 
nutritional risk determinations are made by a competent professional 
authority on the staff of the local WIC Overseas office.

[[Page 371]]

    (6) Contract brand. The brand of a particular food item that has 
been competitively selected by the DoD to be the exclusive supplier of 
that type of food item to the program.
    (7) Date-to-use. The date by which the drafts must be used to 
purchase food items.
    (8) Department. The Department of Defense (DoD), unless otherwise 
noted.
    (9) Dependent. (i) A spouse, or (ii) An unmarried child who is:
    (A) Under 21 years of age; or
    (B) Incapable of self-support because of mental or physical 
incapacity and is in fact dependent on the member for more than \1/2\ of 
the child's support; or
    (C) Is under 23 years of age, is enrolled in a full-time course of 
study in an institution of higher education and is in fact dependent on 
the member for more than one-half of the child's support.
    (10) Drafts. Paper food instruments, similar to vouchers, issued in 
the WIC Overseas offices to program participants. Participants may 
redeem their drafts at participating commissaries and NEXMARTs for the 
types and quantities of foods specified on the face of the draft.
    (11) Economic unit. All individuals contributing to or subsidizing 
the income of a household, whether they physically reside in that 
household or not.
    (12) Eligible civilian. An eligible civilian is a person who is not 
a member of the armed forces and who is:
    (i) A dependent of a member of the armed forces residing with the 
member outside the United States, whether or not that dependent is 
command sponsored, or
    (ii) An employee of a military department who is a national of the 
United States and is residing outside the United States in connection 
with such individual's employment or a dependent of such individual 
residing with the employee outside the United States; or
    (iii) An employee of a Department of Defense contractor who is a 
national of the United States and is residing outside the United States 
in connection with such individual's employment or a dependent of such 
individual residing with the employee outside the United States.
    (13) Family. A group of related or non-related individuals who are 
one economic unit.
    (14) Hematological test. A test of an applicant's or participant's 
blood as described in 7 CFR part 246.7(e).
    (15) Income guidelines. Income poverty guidelines published by the 
U.S. DHHS. These guidelines are adjusted annually by the Department of 
Health and Human Services (DHHS), with each annual adjustment effective 
July 1 of each year. For purposes of WIC Overseas Program income 
eligibility determinations, income guidelines shall mean the income 
guidelines published by the DHHS pertaining to the State of Alaska.
    (16) Infants. Persons under 1 year of age.
    (17) National of the U.S. A person who:
    (i) Is a citizen of the U.S.; or
    (ii) Is not a citizen of the United States, but who owes permanent 
allegiance to the United States, as determined in accordance with the 
Immigration and Nationality Act.
    (18) NEXMART. Navy Exchange Market.
    (19) Nutrition education. Individual or group sessions and the 
provision of materials designed to improve health status, achieve 
positive change in dietary habits, and emphasize relationships between 
nutrition and health, all in keeping with the individual's personal, 
cultural, and socioeconomic preferences.
    (20) Nutritional risk. (i) The presence of detrimental or abnormal 
nutritional conditions detectable by biochemical, physical, 
developmental or anthropometric data, or
    (ii) Other documented nutritionally related medical conditions, or
    (iii) Documented evidence of dietary deficiencies that impair or 
endanger health, or
    (iv) Conditions that directly affect the nutritional health of a 
person, such as alcoholism or drug abuse, or
    (v) Conditions that predispose persons to inadequate nutritional 
patterns, habits of poor nutritional choices or nutritionally related 
medical conditions.
    (21) Participants. Pregnant women, breastfeeding women, postpartum 
women, infants, and children who are receiving supplemental foods or 
food

[[Page 372]]

instruments under the WIC Overseas Program, and the breastfed infants of 
participant breastfeeding women.
    (22) Postpartum Women. Women up to 6 months after the end of their 
pregnancy. Their eligibility will end on the last day of the sixth month 
after their delivery.
    (23) Pregnant Women. Women determined to have one or more embryos or 
fetuses in utero. Pregnant women are eligible to receive WIC benefits 
through 6 weeks postpartum, at which time they reapply for the program 
as postpartum or breastfeeding women.
    (24) Rebate. The amount of money refunded under cost containment 
procedures to the Department from the manufacturer of a contract brand 
food item.
    (25) Regional Lead Agent. The designated major military medical 
center that acts as the regional lead agent, having tri-service 
responsibility for the development and execution of a single, integrated 
health care network.
    (26) Supplemental foods. Foods containing nutrients determined by 
nutritional research to be lacking in the diets of certain pregnant, 
breastfeeding, and postpartum women, infants, and children. WIC Overseas 
may substitute different foods providing the nutritional equivalent of 
foods prescribed by Domestic WIC programs, as required by 10 U.S.C. 
1060a(c)(1)(B).
    (27) Verification. Verification of drafts is a review before payment 
out of Defense Health Program funds to determine whether the commissary 
or NEXMART complied with applicable date-to-use, food specification, and 
other redemption criteria.
    (c) Certification of eligibility. (1) to the extent practicable, 
participants shall be certified as eligible to receive Program benefits 
according to income and nutritional risk certification guidelines 
contained in regulations published by the USDA pertaining to the Women, 
Infants, and Children program required under 7 CFR 246.7(d)(2)(iv)(B). 
Applicants must meet the following eligibility criteria:
    (i) Meet one of the participant type requirements: be a member of 
the armed forces on duty overseas; a family member/dependent of a member 
of the armed forces on duty overseas; a U.S. national employee of a 
military department serving overseas; a family member of a U.S. national 
employee of a DoD contractor serving overseas; a family member of a U.S. 
national employee of a DoD contractor serving overseas;
    (ii) Reside in the geographic area served by the WIC Overseas 
office;
    (iii) Meet the income criteria specified in this section; and
    (iv) Meet the nutrition risk criteria specified in this section.
    (2) In terms of income eligibility, the following apply:
    (i) The Department of Defense shall use the Alaska income poverty 
guidelines published by the DHHS for making determinations regarding 
income eligibility for the Program.
    (ii) Program income eligibility guidelines shall be adjusted 
annually to conform to annual adjustments made by the DHHS.
    (iii) For income eligibility, the Program may consider the income of 
the family during the past 12 months and the family's current rate of 
income to determine which indicator accurately reflects the family's 
status.
    (iv) A pregnant woman who is ineligible for participation in the 
Program because she does not meet income criteria shall be deemed 
eligible if the criteria would be met by increasing the number of 
individuals in her family (economic unit) by the number of children in 
utero.
    (v) The Program shall define income according to USDA regulations 
with regard to the USDA-administered WIC Program. In particular--
    (A) A basic allowance for housing is excluded from income as 
required by section 674 of the National Defense Authorization Act for 
Fiscal Year 2000.
    (B) The value of in-kind housing benefits is excluded from income as 
required under USDA regulations.
    (C) Cost of living allowances for duty outside the continental U.S. 
(OCONUS) is excluded from income as required under 7 CFR 
246.7(d)(2)(iv)(A)(2).
    (D) Public assistance and welfare payments are included in income.
    (3) Participants must be found to be at nutritional risk to be 
eligible for program benefits.

[[Page 373]]

    (i) A Competent Professional Authority (CPA) shall determine if an 
applicant is at nutritional risk.
    (ii) At the request of the program, applicants shall provide, 
according to schedules set by the USDA in 7 CFR 246.7(e) (unless deemed 
impracticable), nutritional risk data as a condition of certification in 
the Program. Such data includes:
    (A) Anthropometric measurements,
    (B) The results of hematological tests,
    (C) Physical examination,
    (D) Dietary information, or
    (E) Developmental testing
    (iii) A pregnant woman who meets all other eligibility criteria and 
for whom a nutritional risk assessment cannot immediately be completed 
will be considered presumptively eligible to participate in the Program 
for a period up to 60 days.
    (iv) Infants under 6 months of age may be deemed to be at 
nutritional risk if the infant's mother was a Program participant during 
pregnancy or if medical records document that the mother was at 
nutritional risk during pregnancy.
    (v) Unless otherwise specified herein or in 7 CFR 246.7(e), required 
nutritional risk data shall be provided to, or obtained by, the WIC 
Overseas Program office within 90 days of enrollment.
    (4) In the event that it is impracticable for the WIC Overseas 
Program to adhere to the income and nutritional risk eligibility 
guidelines contained in USDA regulations, the Director, TRICARE 
Management Activity (TMA) may waive the Department's use of USDA WIC 
Program eligibility criteria by determining that it is impracticable to 
use these standards to certify participants in the WIC Overseas Program.
    (i) Such determination shall consider relevant practical, 
administrative, national security, financial factors and existing 
Department policies and their application to the population served by 
the WIC Overseas Program.
    (ii) Absent a written finding of impracticability described in 
section 199.23(c)(4), the eligibility criteria for the WIC program, 
contained in USDA regulations shall apply.
    (5) An applicant for the WIC Overseas Program who presents a valid 
WIC Program Verification of Certification card, which is issued to 
participants in the domestic WIC Program when they intend to move, shall 
be considered eligible for participation in the WIC Overseas Program for 
the duration of the individual's current domestic WIC certification 
period, as long as he/she is an eligible service/family member or 
eligible civilian/family member.
    (d) Program benefits. (1) Drafts. WIC participants shall be issued 
drafts that may be redeemed for supplemental food prescribed under the 
program.
    (i) Drafts shall at a minimum list the food items to be redeemed and 
the date-to-use.
    (ii) Food items listed on the draft must be approved for use under 
the Program.
    (iii) Drafts generally shall allow for a three-month supply of food 
items for each participant, unless the participant's nutritional status 
necessitates more frequent contacts with the WIC Overseas office.
    (iv) Participating commissaries and NEXMARTS shall accept the drafts 
in exchange for approved food items.
    (v) Commissary and NEXMART personnel shall be trained on 
verification and processing of drafts.
    (vi) Program guidelines shall provide for training of new 
participants in how to redeem drafts.
    (2) Supplemental Food. Participants shall redeem drafts for 
appropriate food packages at intervals determined in accordance with the 
USDA regulations.
    (i) The Director, TMA shall identify to the Defense Commissary 
Agency (DeCA) and NEXCOM a list of food items approved for the WIC 
Overseas Program. This list shall be developed in consultation with the 
USDA and shall include information regarding the appropriate package 
and/or container sizes and quantities available for participants, as 
well as the frequency with which food items can be acquired. Additions 
and/or deletions of food items from this list shall be communicated to 
the commissaries and NEXMARTS on an ongoing basis.

[[Page 374]]

    (ii) A CPA shall prescribe appropriate foods from among the approved 
list to be included in food packages.
    (iii) A CPA shall coordinate documentation of medical need when such 
documentation is a prerequisite for prescribing certain food items.
    (iv) The Director, TMA may authorize changes regarding the 
supplemental foods to be made available in the WIC Overseas Program when 
local conditions preclude strict compliance or when such compliance is 
impracticable.
    (3) Nutrition Education. Nutrition education shall be provided to 
all participants at intervals prescribed in USDA regulations at 7 CFR 
Part 246.11.
    (i) The WIC Overseas nutrition education program shall be locally 
overseen by a CPA based on guidance and materials provided by TMA.
    (ii) Nutrition education and its means of delivery be tailored to 
the greatest extent practicable to the specific nutritional, cultural, 
practical, and other needs of the participant. Participant profiles 
created during certification may be used in designing appropriate 
nutrition education. A CPA may develop individual care plans, as 
necessary, consistent with USDA regulations.
    (iii) Nutrition education shall consist of sessions wherein 
individual participants or groups of participants meet with a CPA in an 
interactive setting such that participants can ask, and the CPA can 
answer, questions related to nutrition practices. In addition, nutrition 
education shall utilize prepared educational materials and/or Internet 
sites. Both the sessions and the information materials shall be designed 
to improve health status, achieve positive change in dietary habits, and 
emphasize relationships between nutrition and health. Individual and 
group sessions can be accomplished through, among other things, face-to-
face meetings, remote tele-videoconferencing, real-time computer-based 
distance learning, or other means.
    (iv) Nutrition education services shall generally be provided to 
participants twice during each 6-month certification period, unless a 
different schedule is specified in USDA regulations.
    (v) The nutrition education program shall promote breastfeeding as 
the optimal method of infant nutrition, encourage pregnant participants 
to breastfeed unless contraindicated for health reasons, and educate all 
participating women about the harmful effects of substance abuse.
    (vi) Individual participants shall not be denied supplemental food 
due to the failure to attend scheduled nutrition education sessions.
    (e) Financial management. The Department shall establish procedures 
to provide for the verification of drafts prior to payment.
    (i) Verification may utilize sampling techniques.
    (ii) Payment of drafts shall be made out of Defense Health Program 
funds.
    (f) Rebate agreements. (1) DoD is authorized to enter into an 
agreement with a manufacturer of a particular brand of a food item that 
provides for the exclusive supply to the program of the same or similar 
types of food items by that manufacturer.
    (i) The agreement shall identify a contract brand of food item.
    (ii) Under the agreement, the manufacturer shall rebate to the 
Department an agreed portion of the amounts paid by DoD for the 
procurement of the contract brand.
    (2) The DoD shall use competitive procedures under title 10, chapter 
137 to select the contract brand.
    (3) Amounts rebated shall be credited to the appropriation available 
for carrying out the program and shall be applied against expenditures 
for the program in the same period as the other sums in the 
appropriation.
    (g) Administrative appeals and civil rights. (1) Applicants who are 
denied certification or participants that are denied recertification 
shall be provided with a notice of ineligibility. The notice shall 
include information on the applicant's right to appeal the determination 
and instructions on doing so.
    (2) Benefits shall not be provided while an appeal is pending when 
an applicant is denied benefits, a participant's certification has 
expired or a participant becomes categorically ineligible.
    (3) A request for appeal shall be submitted in writing within five 
working

[[Page 375]]

days. If the decision is an adverse one it shall include notice to the 
applicant of his further appeal rights as reflected in (iii) below, and 
that he/she has five working days to effect any such appeal.
    (4) Appeal reviews shall be conducted in the first instance by the 
CPA or team leader in charge of the local WIC Overseas office.
    (i) Written notice of a decision shall be provided to the applicant 
within five working days.
    (ii) If the appeal is upheld, retroactive benefits shall not be 
provided.
    (iii) At an applicant's request a denied appeal may be forwarded to 
the regional program manager for review, who will provide a decision on 
the appeal within 5 working days.
    (iv) If the regional program manager denies the appeal, there shall 
be no further right of appeal.
    (5) Complaints about discriminatory treatment shall be handled in 
accordance with procedures established at each local WIC Overseas site.
    (h) Operations and Administration. (1) Information collected about 
WIC Overseas applicants and participants shall be collected, maintained, 
and disclosed in accordance with applicable laws and regulations.
    (2) Information and personnel security requirements shall be 
consistent with applicable laws and regulations.

[69 FR 15678, Mar. 26, 2004]



Sec. 199.24  TRICARE Reserve Select.

    (a) Establishment. TRICARE Reserve Select offers the TRICARE Select 
self-managed, preferred-provider network option under Sec. 199.17 to 
qualified members of the Selected Reserve, their immediate family 
members, and qualified survivors under this section.
    (1) Purpose. TRICARE Reserve Select is a premium-based health plan 
that is available for purchase by members of the Selected Reserve and 
certain survivors of Selected Reserve members as specified in paragraph 
(c) of this section.
    (2) Statutory Authority. TRICARE Reserve Select is authorized by 10 
U.S.C. 1076d.
    (3) Scope of the Program. TRICARE Reserve Select is applicable in 
the 50 United States, the District of Columbia, Puerto Rico, and, to the 
extent practicable, other areas where members of the Selected Reserve 
serve. In locations other than the 50 states of the United States and 
the District of Columbia, the Assistant Secretary of Defense (Health 
Affairs) may authorize modifications to the program rules and procedures 
as may be appropriate to the area involved.
    (4) Major Features of TRICARE Reserve Select. The major features of 
the program include the following:
    (i) TRICARE Select rules applicable. (A) Unless specified in this 
section or otherwise prescribed by the Director, provisions of TRICARE 
Select under Sec. 199.17 apply to TRICARE Reserve Select.
    (B) Certain special programs established in 32 CFR part 199 are not 
available to members covered under TRICARE Reserve Select. These include 
the Extended Care Health Option (Sec. 199.5), the Special Supplemental 
Food Program (see Sec. 199.23), and the Supplemental Health Care 
Program (Sec. 199.16), except when referred by a Military Treatment 
Facility (MTF) provider for incidental consults and the MTF provider 
maintains clinical control over the episode of care. The TRICARE Dental 
Program (Sec. 199.13) is independent of this program and is otherwise 
available to all members of the Selected Reserve and their eligible 
family members whether or not they purchase TRICARE Reserve Select 
coverage. The Continued Health Care Benefits Program (Sec. 199.20) is 
also independent of this program and is otherwise available to all 
members who qualify.
    (ii) Premiums. TRICARE Reserve Select coverage is available for 
purchase by any Selected Reserve member if the member fulfills all of 
the statutory qualifications. A member of the Selected Reserve covered 
under TRICARE Reserve Select shall pay 28 percent of the total amount 
that the ASD(HA) determines on an appropriate actuarial basis as being 
appropriate for that coverage. There is one premium rate for member-only 
coverage and one premium rate for member and family coverage.
    (iii) Procedures. Under TRICARE Reserve Select, Reserve Component 
members who fulfilled all of the statutory qualifications may purchase 
either the

[[Page 376]]

member-only type of coverage or the member-and-family type of coverage 
by submitting a completed request in the appropriate format along with 
an initial payment of the applicable premium. Rules and procedures for 
purchasing coverage and paying applicable premiums are prescribed in 
this section.
    (iv) Benefits. When their coverage becomes effective, TRICARE 
Reserve Select beneficiaries receive the TRICARE Select benefit 
including access to military treatment facility services and pharmacies, 
as described in Sec. Sec. 199.17 and 199.21. TRICARE Reserve Select 
coverage features the deductible, catastrophic cap and cost share 
provisions of the TRICARE Select plan applicable to Group B active duty 
family members under Sec. 199.17(l)(2)(ii) for both the member and the 
member's covered family members; however, the TRICARE Reserve Select 
premium under paragraph (c) of this section applies instead of any 
TRICARE Select plan enrollment fee under Sec. 199.17. Both the member 
and the member's covered family members are provided access priority for 
care in military treatment facilities on the same basis as active duty 
service members' dependents who are not enrolled in TRICARE Prime as 
described in Sec. 199.17(d)(1)(i)(D).
    (b) Qualifications for TRICARE Reserve Select coverage--(1) Ready 
Reserve member. A Ready Reserve member qualifies to purchase TRICARE 
Reserve Select coverage prior to January 1, 2030, if the Service member 
meets the criteria listed in both paragraphs (b)(1)(i) and (ii) of this 
section. Beginning January 1, 2030, only the criteria in paragraph 
(b)(1)(i) of this section is necessary for qualification.
    (i) Is a member of the Selected Reserve of the Ready Reserve of the 
Armed Forces, or a member of the Individual Ready Reserve of the Armed 
Forces who has volunteered to be ordered to active duty pursuant to the 
provisions of 10 U.S.C. 12304 in accordance with section 10 U.S.C. 
10144(b); and
    (ii) Is not enrolled in, or eligible to enroll in, a health benefits 
plan under 5 U.S.C. chapter 89. That statute has been implemented under 
5 CFR part 890 as the Federal Employees Health Benefits (FEHB) program. 
For purposes of the FEHB program, the terms ``enrolled,'' ``enroll'' and 
``enrollee'' are defined in 5 CFR 890.101. Further, the member (or 
certain former member involuntarily separated) no longer qualifies for 
TRICARE Reserve Select when the member (or former member) has been 
eligible for coverage to be effective in a health benefits plan under 
the FEHB program for more than 60 days.
    (2) TRICARE Reserve Select survivor. If a qualified Service member 
dies while in a period of TRICARE Reserve Select coverage, the immediate 
family member(s) of such member is qualified to purchase new or continue 
existing TRICARE Reserve Select coverage for up to six months beyond the 
date of the member's death as long as they meet the definition of 
immediate family members as specified in paragraph (g)(2) of this 
section. This applies regardless of type of coverage in effect on the 
day of the TRICARE Reserve Select member's death.
    (c) TRICARE Reserve Select premiums. Members are charge premiums for 
coverage under TRICARE Reserve Select that represent 28 percent of the 
total annual premium amount that the Director determines on an 
appropriate actuarial basis as being appropriate for coverage under the 
TRICARE Select benefit for the TRICARE Reserve Select eligible 
population. Premiums are to be paid monthly, except as otherwise 
provided through administrative implementation, pursuant to procedures 
established by the Director. The monthly rate for each month of a 
calendar year is one-twelfth of the annual rate for that calendar year.
    (1) Annual establishment of rates. TRICARE Reserve Select monthly 
premium rates shall be established and updated annually on a calendar 
year basis for each of the two types of coverage, member-only and 
member- and-family as described in paragraph (d)(1) of this section. 
Starting with calendar year 2009, the appropriate actuarial basis for 
purposes of this paragraph (c) shall be determined for each calendar 
year by utilizing the actual reported cost of providing benefits under 
this section to members and their dependents during the calendar years 
preceding such calendar year. Reported actual TRS cost

[[Page 377]]

data from calendar years 2006 and 2007 was used to determine premium 
rates for calendar year 2009. This established pattern will be followed 
to determine premium rates for all calendar years subsequent to 2009.
    (2) Premium adjustments. In addition to the determinations described 
in paragraph (c)(1) of this section, premium adjustments may be made 
prospectively for any calendar year to reflect any significant program 
changes or any actual experience in the costs of administering TRICARE 
Reserve Select.
    (3) Survivor premiums. A surviving family member of a Reserve 
Component service member who qualified for TRICARE Reserve Select 
coverage as described in paragraph (b)(2) of this section will pay 
premium rates as follows. The premium amount shall be at the member-only 
rate if there is only one surviving family member to be covered by 
TRICARE Reserve Select and at the member and family rate if there are 
two or more survivors to be covered.
    (d) Procedures. The Director may establish procedures for the 
following.
    (1) Purchasing coverage. Procedures may be established for a 
qualified member to purchase one of two types of coverage: Member-only 
coverage or member and family coverage. Immediate family members of a 
qualified member as specified in paragraph (g)(2) of this section may be 
included in such family coverage. To purchase either type of TRICARE 
Reserve Select coverage for effective dates of coverage described below, 
members and survivors qualified under either paragraph (b)(1) or (2) of 
this section must submit a request in the appropriate format, along with 
an initial payment of the applicable premium required by paragraph (c) 
of this section in accordance with established procedures.
    (i) Continuation coverage. Procedures may be established for a 
qualified member or qualified survivor to purchase TRICARE Reserve 
Select coverage with an effective date immediately following the date of 
termination of coverage under another TRICARE program.
    (ii) Qualifying event. Procedures for qualifying events in TRICARE 
Select plans under Sec. 199.17(o) shall apply to TRICARE Reserve Select 
coverage. Additionally, the Director may identify other events unique to 
needs of the Reserve Components as qualifying events.
    (iii) Enrollment. Procedures for enrollment in TRICARE Select plans 
under Sec. 199.17(o) shall apply to TRICARE Reserve Select enrollment. 
Generally, the effective date of coverage will coincide with the first 
day of a month unless enrollment is due to a qualifying event and a 
different date on or after the qualifying event is required to prevent a 
lapse in health care coverage.
    (iv) Survivor coverage under TRICARE Reserve Select. Procedures may 
be established for a surviving family member of a Reserve Component 
service member who qualified for TRICARE Reserve Select coverage as 
described in paragraph (b)(2) of this section to purchase new TRICARE 
Reserve Select coverage or continue existing TRICARE Reserve Select 
coverage for up to six months beyond the date of the member's death. The 
effective date of coverage will be the day following the date of the 
member's death.
    (2) Termination. Termination of coverage for the TRS member/survivor 
will result in termination of coverage for the member's/survivor's 
family members in TRICARE Reserve Select. Procedures may be established 
for coverage to be terminated as follows.
    (i) Coverage shall terminate when members or survivors no longer 
qualify for TRICARE Reserve Select as specified in paragraph (b) of this 
section, with one exception. If a member is involuntarily separated from 
the Selected Reserve under other than adverse conditions, as 
characterized by the Secretary concerned, and is covered by TRICARE 
Reserve Select on the last day of his or her membership in the Selected 
Reserve, then TRICARE Reserve Select coverage may terminate up to 180 
days after the date on which the member was separated from the Selected 
Reserve. This applies regardless of type of coverage. This exception 
expires December 31, 2018.
    (ii) Coverage may terminate for members, former members, and 
survivors who gain coverage under another TRICARE program.

[[Page 378]]

    (iii) In accordance with the provisions of Sec. 199.17(o)(2) 
coverage terminates for members/survivors who fail to make premium 
payments in accordance with established procedures.
    (iv) Coverage may be terminated for members/survivors upon request 
at any time by submitting a completed request in the appropriate format 
in accordance with established procedures.
    (3) Re-enrollment following termination. Absent a new qualifying 
event, members/survivors (subject to paragraph (d)(1)(iv) of this 
section) are not eligible to re-enroll in TRICARE Reserve Select until 
the next annual open season.
    (4) Processing. Upon receipt of a completed request in the 
appropriate format, enrollment actions will be processed into DEERS in 
accordance with established procedures.
    (5) Periodic revision. Periodically, certain features, rules or 
procedures of TRICARE Reserve Select may be revised. If such revisions 
will have a significant effect on members' or survivors' costs or access 
to care, members or survivors may be given the opportunity to change 
their type of coverage or terminate coverage coincident with the 
revisions.
    (e) Preemption of State laws. (1) Pursuant to 10 U.S.C. 1103, the 
Department of Defense has determined that in the administration of 
chapter 55 of title 10, U.S. Code, preemption of State and local laws 
relating to health insurance, prepaid health plans, or other health care 
delivery or financing methods is necessary to achieve important Federal 
interests, including but not limited to the assurance of uniform 
national health programs for military families and the operation of such 
programs, at the lowest possible cost to the Department of Defense, that 
have a direct and substantial effect on the conduct of military affairs 
and national security policy of the United States. This determination is 
applicable to contracts that implement this section.
    (2) Based on the determination set forth in paragraph (f)(1) of this 
section, any State or local law or regulation pertaining to health 
insurance, prepaid health plans, or other health care delivery, 
administration, and financing methods is preempted and does not apply in 
connection with TRICARE Reserve Select. Any such law, or regulation 
pursuant to such law, is without any force or effect, and State or local 
governments have no legal authority to enforce them in relation to 
TRICARE Reserve Select. (However, the Department of Defense may, by 
contract, establish legal obligations on the part of DoD contractors to 
conform with requirements similar to or identical to requirements of 
State or local laws or regulations with respect to TRICARE Reserve 
Select).
    (3) The preemption of State and local laws set forth in paragraph 
(f)(2) of this section includes State and local laws imposing premium 
taxes on health insurance carriers or underwriters or other plan 
managers, or similar taxes on such entities. Such laws are laws relating 
to health insurance, prepaid health plans, or other health care delivery 
or financing methods, within the meaning of 10 U.S.C. 1103. Preemption, 
however, does not apply to taxes, fees, or other payments on net income 
or profit realized by such entities in the conduct of business relating 
to DoD health services contracts, if those taxes, fees or other payments 
are applicable to a broad range of business activity. For the purposes 
of assessing the effect of Federal preemption of State and local taxes 
and fees in connection with DoD health services contracts, 
interpretations shall be consistent with those applicable to the Federal 
Employees Health Benefits Program under 5 U.S.C. 8909(f).
    (f) Administration. The Director may establish other rules and 
procedures for the effective administration of TRICARE Reserve Select, 
and may authorize exceptions to requirements of this section, if 
permitted by law.
    (g) Terminology. The following terms are applicable to the TRICARE 
Reserve Select program.
    (1) Coverage. This term means the medical benefits covered under the 
TRICARE Select program as further outlined in Sec. 199.17 whether 
delivered in military treatment facilities or purchased from civilian 
sources.
    (2) Immediate family member. This term means spouse (except former

[[Page 379]]

spouses) as defined in Sec. 199.3(b)(2)(i), or child as defined in 
Sec. 199.3(b)(2)(ii).
    (3) Qualified member. This term means a member who has satisfied all 
the criteria that must be met before the member is authorized for TRS 
coverage.
    (4) Qualified survivor. This term means an immediate family member 
who has satisfied all the criteria that must be met before the survivor 
is authorized for TRS coverage.

[72 FR 46383, Aug. 20, 2007, as amended at 76 FR 57641, Sept. 16, 2011; 
80 FR 55254, Sept. 15, 2015; 82 FR 45458, Sept. 29, 2017; 86 FR 67862, 
Nov. 30, 2021]



Sec. 199.25  TRICARE Retired Reserve.

    (a) Establishment. TRICARE Retired Reserve offers the TRICARE Select 
self-managed, preferred-provider network option under Sec. 199.17 to 
qualified members of the Retired Reserve, their immediate family 
members, and qualified survivors under this section.
    (1) Purpose. As specified in paragraph (c) of this section, TRICARE 
Retired Reserve is a premium-based health plan that is available for 
purchase by any Retired Reserve member who is qualified for non-regular 
retirement, but is not yet 60 years of age, unless that member is either 
enrolled in, or eligible to enroll in, a health benefit plan under 
Chapter 89 of Title 5, United States Code, as well as certain survivors 
of Retired Reserve members.
    (2) Statutory Authority. TRICARE Retired Reserve is authorized by 10 
U.S.C. 1076e.
    (3) Scope of the Program. TRICARE Retired Reserve is geographically 
applicable to the same extent as specified in 32 CFR 199.1(b)(1).
    (4) Major Features of TRICARE Retired Reserve. The major features of 
the program include the following:
    (i) TRICARE Select rules applicable. (A) Unless specified in this 
section or otherwise prescribed by the ASD (HA), provisions of TRICARE 
Select under Sec. 199.17 apply to TRICARE Retired Reserve.
    (B) Certain special programs established in 32 CFR part 199 are not 
available to members covered under TRICARE Retired Reserve. The Extended 
Health Care Option (ECHO) program (sec. 199.5) is not included. The 
Supplemental Health Care Program (sec. 199.16) is not included, except 
when a TRICARE Retired Reserve covered beneficiary is referred by a 
Military Treatment Facility (MTF) provider for incidental consults and 
the MTF provider maintains clinical control over the episode of care. 
The TRICARE Retiree Dental Program (sec. 199.13) is independent of this 
program and is otherwise available to all members who qualify for the 
TRICARE Retiree Dental Program whether or not they purchase TRICARE 
Retired Reserve coverage. The Continued Health Care Benefits Program 
(sec. 199.13) is also independent of this program and is otherwise 
available to all members who qualify for the Continued Health Care 
Benefits Program.
    (ii) Premiums. TRICARE Retired Reserve coverage is available for 
purchase by any Retired Reserve member if the member fulfills all of the 
statutory qualifications as well as certain survivors. A member of the 
Retired Reserve or qualified survivor covered under TRICARE Retired 
Reserve shall pay the amount equal to the total amount that the ASD(HA) 
determines on an appropriate actuarial basis as being appropriate for 
that coverage. There is one premium rate for member-only coverage and 
one premium rate for member and family coverage.
    (iii) Procedures. Under TRICARE Retired Reserve, Retired Reserve 
members (or their survivors) who fulfilled all of the statutory 
qualifications may purchase either the member-only type of coverage or 
the member and family type of coverage by submitting a completed request 
in the appropriate format along with an initial payment of the 
applicable premium. Procedures for purchasing coverage and paying 
applicable premiums are prescribed in this section.
    (iv) Benefits. When their coverage becomes effective, TRICARE 
Retired Reserve beneficiaries receive the TRICARE Select benefit 
including access to military treatment facilities on a space available 
basis and pharmacies, as described in Sec. 199.17. TRICARE Retired 
Reserve coverage features the deductible, cost sharing, and catastrophic 
cap provisions of the TRICARE Select plan applicable to Group B retired

[[Page 380]]

members and dependents of retired members under Sec. 199.17(l)(2)(ii); 
however, the TRICARE Reserve Select premium under paragraph (c) of this 
section applies instead of any TRICARE Select plan enrollment fee under 
Sec. 199.17. Both the member and the member's covered family members 
are provided access priority for care in military treatment facilities 
on the same basis as retired members and their dependents who are not 
enrolled in TRICARE Prime as described in Sec. 199.17(d)(1)(i)(E).
    (b) Qualifications for TRICARE Retired Reserve coverage--(1) Retired 
Reserve Member. A Retired Reserve member qualifies to purchase TRICARE 
Retired Reserve coverage if the member meets both the following 
criteria:
    (i) Is a member of a Reserve component of the armed forces who is 
qualified for a non-regular retirement at age 60 under chapter 1223 of 
title 10, U.S.C., but who is not yet age 60 and
    (ii) Is not enrolled in, or eligible to enroll in, a health benefits 
plan under chapter 89 of title 5, U.S.C. That statute has been 
implemented under part 890 of title 5, CFR as the Federal Employee 
Health Benefits (FEHB) program. For purposes of the FEHB program, the 
terms ``enrolled,'' ``enroll'' and ``enrollee'' are defined in Sec. 
890.101 of title 5, CFR.
    (2) Retired Reserve Survivor. If a qualified member of the Retired 
Reserves dies while in a period of TRICARE Retired Reserve coverage, the 
immediate family member(s) of such member shall remain qualified to 
purchase new or continue existing TRICARE Retired Reserve coverage until 
the date on which the deceased member of the Retired Reserve would have 
attained age 60 as long as they meet the definition of immediate family 
members specified in paragraph (g)(2) of this section. This applies 
regardless whether either member-only coverage or member and family 
coverage was in effect on the day of the TRICARE Retired Reserve 
member's death.
    (c) TRICARE Retired Reserve premiums. Members are charged for 
coverage under TRICARE Retired Reserve that represent the full cost of 
the program as determined by the Director utilizing an appropriate 
actuarial basis for the provision of the benefits provided under the 
TRICARE Select program for the TRICARE Retired Reserve eligible 
beneficiary population. Premiums are to be paid monthly, except as 
otherwise provided through administrative implementation, pursuant to 
procedures established by the Director. The monthly rate for each month 
of a calendar year is one-twelfth of the annual rate for that calendar 
year.
    (1) Annual establishment of rates.--(i) TRICARE Retired Reserve 
monthly premium rates shall be established and updated annually on a 
calendar year basis by the ASD(HA) for each of the two types of 
coverage, member-only coverage and member-and-family coverage as 
described in paragraph (d)(1) of this section.
    (ii) The appropriate actuarial basis used for calculating premium 
rates shall be one that most closely approximates the actual cost of 
providing care to the same demographic population as those enrolled in 
TRICARE Retired Reserve as determined by the ASD(HA). TRICARE Retired 
Reserve premiums shall be based on the actual costs of providing 
benefits to TRICARE Retired Reserve members and their dependents during 
the preceding years if the population of Retired Reserve members 
enrolled in TRICARE Retired Reserve is large enough during those 
preceding years to be considered actuarially appropriate. Until such 
time that actual costs from those preceding years becomes available, 
TRICARE Retired Reserve premiums shall be based on the actual costs 
during the preceding calendar years for providing benefits to the 
population of retired members and their dependents in the same age 
categories as the retired reserve population in order to make the 
underlying group actuarially appropriate. An adjustment may be applied 
to cover overhead costs for administration of the program by the 
government.
    (2) Premium adjustments. In addition to the determinations described 
in paragraph (c)(1) of this section, premium adjustments may be made 
prospectively for any calendar year to reflect any significant program 
changes or any actual experience in the costs of administering the 
TRICARE Retired Reserve Program.

[[Page 381]]

    (3) Survivor Premiums. A surviving family member of a Retired 
Reserve member who qualified for TRICARE Retired Reserve coverage as 
described herein will pay premium rates at the member-only rate if there 
is only one surviving family member to be covered by TRICARE Retired 
Reserve and at the member-and-family rate if there are two or more 
survivors to be covered.
    (d) Procedures. The Director may establish procedures for the 
following.
    (1) Purchasing Coverage. Procedures may be established for a 
qualified member to purchase one of two types of coverage: Member-only 
coverage or member and family coverage. Immediate family members of the 
Retired Reserve member as specified in paragraph (g)(2) of this section 
may be included in such family coverage. To purchase either type of 
TRICARE Retired Reserve coverage for effective dates of coverage 
described below, Retired Reserve members and survivors qualified under 
either paragraph (b)(1) or (b)(2) of this section must submit a request 
in the appropriate format, along with an initial payment of the 
applicable premium required by paragraph (c) of this section in 
accordance with established procedures.
    (i) Continuation Coverage. Procedures may be established for a 
qualified member or qualified survivor to purchase TRICARE Retired 
Reserve coverage with an effective date immediately following the date 
of termination of coverage under another TRICARE program.
    (ii) Qualifying event. Procedures for qualifying events in TRICARE 
Select plans under Sec. 199.17(o) shall apply to TRICARE Retired 
Reserve coverage.
    (iii) Enrollment. Procedures for enrollment in TRICARE Select plans 
under Sec. 199.17(o) shall apply to TRICARE Retired Reserve enrollment. 
Generally, the effective date of coverage will coincide with the first 
day of a month unless enrollment is due to a qualifying event and a 
different date on or after the qualifying event is required to prevent a 
lapse in health care coverage.
    (iv) Survivor coverage under TRICARE Retired Reserve. Procedures may 
be established for a surviving family member of a qualified Retired 
Reserve member who qualified for TRICARE Retired Reserve coverage as 
described in paragraph (b)(2) of this section to purchase new TRICARE 
Retired Reserve coverage or continue existing TRICARE Retired Reserve 
coverage. Procedures similar to those for qualifying life events may be 
established for a qualified surviving family member to purchase new or 
continuing coverage with an effective date coinciding with the day of 
the member's death. Procedures similar to those for open enrollment may 
be established for a qualified surviving family member to purchase new 
coverage at any time with an effective date coinciding with the first 
day of a month.
    (2) Termination. Termination of coverage for the TRR member/survivor 
will result in termination of coverage for the member's/survivor's 
family members in TRICARE Retired Reserve. Procedures may be established 
for coverage to be terminated as follows.
    (i) Coverage shall terminate when members or survivors no longer 
qualify for TRICARE Retired Reserve as specified in paragraph (c) of 
this section. For purposes of this section, the member or their survivor 
no longer qualifies for TRICARE Retired Reserve when the member has been 
eligible for coverage in a health benefits plan under Chapter 89 of 
Title 5, U.S.C. for more than 60 days. Further, coverage shall terminate 
when the Retired Reserve member attains the age of 60 or, if survivor 
coverage is in effect, when the deceased Retired Reserve member would 
have attained the age of 60.
    (ii) Coverage may terminate for members, former members, and 
survivors who gain coverage under another TRICARE program.
    (iii) In accordance with the provisions of Sec. 199.17(o)(2) 
coverage terminates for members/survivors who fail to make premium 
payments in accordance with established procedures.
    (iv) Coverage may be terminated for members/survivors upon request 
at any time by submitting a completed request in the appropriate format 
in accordance with established procedures.

[[Page 382]]

    (3) Re-enrollment following termination. Absent a new qualifying 
event, members/survivors are not eligible to re-enroll in TRICARE 
Retired Reserve until the next annual open season.
    (4) Processing. Upon receipt of a completed request in the 
appropriate format, enrollment actions will be processed into DEERS in 
accordance with established procedures.
    (5) Periodic revision. Periodically, certain features, rules or 
procedures of TRICARE Retired Reserve may be revised. If such revisions 
will have a significant effect on members' or survivors' costs or access 
to care, members or survivors may be given the opportunity to change 
their type of coverage or terminate coverage coincident with the 
revisions.
    (e) Preemption of State laws.-- (1) Pursuant to 10 U.S.C. 1103, the 
Department of Defense has determined that in the administration of 
chapter 55 of title 10, U.S. Code, preemption of State and local laws 
relating to health insurance, prepaid health plans, or other health care 
delivery or financing methods is necessary to achieve important Federal 
interests, including but not limited to the assurance of uniform 
national health programs for military families and the operation of such 
programs, at the lowest possible cost to the Department of Defense, that 
have a direct and substantial effect on the conduct of military affairs 
and national security policy of the United States. This determination is 
applicable to contracts that implement this section.
    (2) Based on the determination set forth in paragraph (f)(1) of this 
section, any State or local law or regulation pertaining to health 
insurance, prepaid health plans, or other health care delivery, 
administration, and financing methods is preempted and does not apply in 
connection with TRICARE Retired Reserve. Any such law, or regulation 
pursuant to such law, is without any force or effect, and State or local 
governments have no legal authority to enforce them in relation to 
TRICARE Retired Reserve. (However, the Department of Defense may, by 
contract, establish legal obligations on the part of DoD contractors to 
conform with requirements similar to or identical to requirements of 
State or local laws or regulations with respect to TRICARE Retired 
Reserve).
    (3) The preemption of State and local laws set forth in paragraph 
(f)(2) of this section includes State and local laws imposing premium 
taxes on health insurance carriers or underwriters or other plan 
managers, or similar taxes on such entities. Such laws are laws relating 
to health insurance, prepaid health plans, or other health care delivery 
or financing methods, within the meaning of 10 U.S.C. 1103. Preemption, 
however, does not apply to taxes, fees, or other payments on net income 
or profit realized by such entities in the conduct of business relating 
to DoD health services contracts, if those taxes, fees or other payments 
are applicable to a broad range of business activity. For the purposes 
of assessing the effect of Federal preemption of State and local taxes 
and fees in connection with DoD health services contracts, 
interpretations shall be consistent with those of the Federal Employees 
Health Benefits Program under 5 U.S.C. 8909(f).
    (f) Administration. The Director may establish other rules and 
procedures for the effective administration of TRICARE Retired Reserve, 
and may authorize exceptions to requirements of this section, if 
permitted by law.
    (g) Terminology. The following terms are applicable to the TRICARE 
Retired Reserve program.
    (1) Coverage. This term means the medical benefits covered under the 
TRICARE Select program as further outlined in Sec. 199.17 whether 
delivered in military treatment facilities or purchased from civilian 
sources.
    (2) Immediate family member. This term means spouse (except former 
spouses) as defined in paragraph 199.3(b)(2)(i) of this part, or child 
as defined in paragraph 199.3 (b)(2)(ii).
    (3) Qualified member. This term means a member who has satisfied all 
the criteria that must be met before the member is authorized for TRR 
coverage.
    (4) Qualified survivor. This term means an immediate family member 
who has satisfied all the criteria that

[[Page 383]]

must be met before the survivor is authorized for TRR coverage.

[75 FR 47455, Aug. 6, 2010, as amended at 79 FR 78702, Dec. 31, 2014; 82 
FR 45459, Sept. 29, 2017]



Sec. 199.26  TRICARE Young Adult.

    (a) Establishment. The TRICARE Young Adult (TYA) program offers 
options of medical benefits provided under the TRICARE program to 
qualified unmarried adult children of TRICARE-eligible uniformed service 
sponsors who do not otherwise have eligibility for medical coverage 
under a TRICARE program at age 21 (23 if enrolled in a full-time course 
of study at an approved institution of higher learning, and the sponsor 
provides over 50 percent of the student's financial support), and are 
under age 26.
    (1) Purpose. As specified in paragraph (c) of this section, TYA is a 
premium-based health option that is available for purchase by any 
qualified adult child as that term is defined in paragraph (b) of this 
section. The TYA program allows a qualified adult child to purchase 
TRICARE coverage.
    (2) Statutory authority. TYA is authorized by 10 U.S.C. 1110b.
    (3) Scope of the program. TYA is geographically applicable to the 
same extent as specified in Sec. 199.1(b)(1).
    (4) Major features of TYA. (i) TRICARE rules applicable.
    (A) Unless specified in this section or otherwise prescribed by the 
Assistant Secretary of Defense (Health Affairs) (ASD (HA)), provisions 
of this part apply to TYA.
    (B) The TRICARE Dental Program (Sec. 199.13) and the TRICARE 
Retiree Dental Program (Sec. 199.22) are not covered under TYA.
    (C) TRICARE Select is available to all TYA-eligible young adult 
dependents.
    (D) TRICARE Prime is available to TYA-eligible young adult 
dependents, provided that TRICARE Prime (including the Uniformed 
Services Family Health Plan) is available in the geographic location 
where the TYA enrollee resides. TYA-eligible young adults are:
    (1) Dependents of sponsors on active duty orders written, or 
otherwise continuously, for more than 30 days or covered by TAMP (under 
Sec. 199.3(e));
    (2) Dependents of sponsors who are retired members other than 
retired members of the Retired Reserve; and
    (3) Survivors of members who died while on active duty for more than 
30 days or while receiving retired or retainer pay.
    (ii) Premiums. TYA coverage is a premium based program that an 
eligible young adult dependent may purchase. There is only individual 
coverage, and a premium shall be charged for each dependent even if 
there is more than one qualified dependent in the uniformed service 
sponsor's family that qualifies for TYA coverage. Dependents qualifying 
for TYA status can purchase individual TRICARE Select or TRICARE Prime 
coverage (as applicable) according to the rules governing the TRICARE 
option for which they are qualified on the basis of their uniformed 
service sponsor's TRICARE-eligible status (active duty, retired, 
Selected Reserve, or Retired Reserve) and the availability of a desired 
option in their geographic location. Premiums shall be determined in 
accordance with paragraph (c) of this section.
    (iii) Procedures. Under TYA, qualified dependents under paragraph 
(b) of this section may purchase individual TYA coverage by submitting a 
completed request in the appropriate format along with an initial 
payment of the applicable premium. Procedures for purchasing coverage 
and paying applicable premiums are prescribed in paragraph (d) of this 
section.
    (iv) Benefits. When their TYA coverage becomes effective, qualified 
beneficiaries receive the benefit of the TRICARE option that they 
selected, including, if applicable, access to military treatment 
facilities and pharmacies. TYA coverage features the cost share, 
deductible and catastrophic cap provisions applicable to Group B 
beneficiaries based on the program selected, i.e., the TRICARE Select 
program under Sec. 199.17(l)(2)(ii) or the TRICARE Prime program under 
Sec. 199.17(l)(ii), as well as the status of their military sponsor. 
Access to military treatment facilities under the system of access 
priorities in Sec. 199.17(d)(1) is also based on the program selected 
as well as the

[[Page 384]]

status of the military sponsor. Premiums are not credited to deductibles 
or catastrophic caps; however, TYA premiums shall apply instead of any 
applicable TRICARE Prime or Select enrollment fee.
    (b) Eligibility for TRICARE Young Adult coverage--(1) Young Adult 
Dependent. A young adult dependent qualifies to purchase TYA coverage if 
the dependent meets the following criteria:
    (i) Would be a dependent child under 10 U.S.C. 1072, but for 
exceeding the age limit under that section (abused dependents and NATO 
dependents are not eligible for TYA coverage); and
    (ii) Is a dependent under the age of 26; and
    (iii) Is not enrolled, or eligible to enroll, for medical coverage 
in an eligible employer-sponsored health plan as defined in section 
5000A(f)(2) of the Internal Revenue Code of 1986; and
    (iv) Is not otherwise eligible under Sec. 199.3; and
    (v) Is not a member of the uniformed services.
    (2) The dependents' sponsor is responsible for keeping the Defense 
Enrollment Eligibility Reporting System (DEERS) current with eligibility 
data through the sponsor's Service personnel office. Using information 
from the DEERS, the TRICARE regional contractors have the responsibility 
to validate a dependent's qualifications to purchase TYA coverage.
    (c) TRICARE Young Adult premiums. Qualified young adult dependents 
are charged premiums for coverage under TYA that represent the full cost 
of the program, including reasonable administrative costs, as determined 
by the Director utilizing an appropriate actuarial basis for the 
provision of TRICARE benefits for the TYA-eligible beneficiary 
population. Separate premiums shall be established for TRICARE Select 
and Prime plans. There may also be separate premiums based on the 
uniformed services sponsor's status. Premiums are to be paid monthly, 
except as otherwise provided through administrative implementation, 
pursuant to procedures established by the Director. The monthly rate for 
each month of a calendar year is one-twelfth of the annual rate for that 
calendar year.
    (1) Annual establishment of rates. (i) Monthly premium rates shall 
be established and updated annually on a calendar year basis by the 
ASD(HA) for TYA individual coverage.
    (ii) The appropriate actuarial basis used for calculating premium 
rates shall be one that most closely approximates the actual cost of 
providing care to a similar demographic population (based on age and 
health plans) as those enrolled in TYA, as determined by the ASD(HA). 
TYA premiums shall be based on the actual costs of providing benefits to 
TYA dependents during the preceding years if the population of TYA 
enrollees is large enough during those preceding years to be considered 
actuarially appropriate. Until such time that actual costs from those 
preceding years become available, TYA premiums shall be based on the 
actual costs during the preceding calendar years for providing benefits 
to the population of similarly aged dependents to make the underlying 
group actuarially appropriate. An adjustment may be applied to cover 
overhead costs for administration of the program.
    (2) Premium adjustments. In addition to the determinations described 
in paragraph (c)(1) of this section, premium adjustments may be made 
prospectively for any calendar year to reflect any significant program 
changes mandated by legislative enactment, including but not limited to 
significant new programs or benefits.
    (d) Procedures. The Director may establish procedures for the 
following.
    (1) Purchasing coverage. Procedures may be established for a 
qualified dependent to purchase individual coverage. To purchase TYA 
coverage for effective dates of coverage described below, qualified 
dependents must submit a request in the appropriate format, along with 
an initial payment of the applicable premium required by paragraph (c) 
of this section in accordance with established procedures.
    (i) Continuation coverage. Procedures may be established for a 
qualified dependent to purchase TYA coverage with an effective date 
immediately following the date of termination of coverage under another 
TRICARE program. Application for continuation coverage must be made 
within 30 days

[[Page 385]]

of the date of termination of coverage under another TRICARE program.
    (ii) Enrollment. Procedures for enrollment in TRICARE plans under 
Sec. 199.17(o) shall apply to a qualified dependent purchasing TYA 
coverage. Generally, the effective date of coverage will coincide with 
the first day of a month unless enrollment is due to a qualifying event 
and a different date on or after the qualifying event is required to 
prevent a lapse in health care coverage.
    (2) Termination. Procedures may be established for TYA coverage to 
be terminated as follows.
    (i) Loss of eligibility or entitlement for coverage by the sponsor 
will result in termination of the dependent's TYA coverage unless 
otherwise specified. The effective date of the sponsor's loss of 
eligibility for care will also be the effective date of termination of 
benefits under the TYA program unless specified otherwise.
    (A) Active duty military sponsor. TYA coverage ends effective the 
date of military sponsor's separation from military service, unless the 
dependent would be eligible under section 199.3(e) of this Part but for 
the dependent's age, for the duration of the Transitional Assistance 
Management Program (TAMP) eligibility or until reaching age 26, 
whichever comes first. Upon the death of an active duty sponsor, 
dependents eligible for Transitional Survivor coverage may purchase TYA 
coverage if otherwise qualified.
    (B) Selected Reserve (Sel Res) Sponsor. Sel Res sponsors must be 
currently enrolled in TRICARE Reserve Select (TRS) before a young adult 
dependent is eligible to purchase TYA. If TRS coverage is terminated by 
the sponsor, TYA coverage ends effective the same termination date as 
the sponsor. If the Sel Res sponsor dies while enrolled in TRS, the 
young adult dependent is eligible to purchase TYA coverage for six 
months after the date of death of the Sel Res sponsor, if otherwise 
qualified.
    (C) Retired Reserve Sponsor. Retired Reserve members not yet 
eligible for retired or retainer pay must be enrolled in TRICARE Retired 
Reserve (TRR) to establish TYA eligibility for their young adult 
dependents. If TRR coverage is terminated by the sponsor, the TYA 
coverage for the young adult dependent ends effective the same date as 
the sponsor's termination of coverage under TRR. If the retired reserve 
sponsor dies while enrolled in TRR, the young adult dependent may 
continue to purchase TYA coverage until the date on which the deceased 
member would have attained age 60, if otherwise qualified. If the 
Retired Reserve member dies and is not enrolled in TRR, there is no 
eligibility for TYA coverage until the sponsor would have reached age 
60. On the date the Retired Reserve member would have reached 60, a 
young adult dependent who otherwise qualifies for TYA qualifies as a 
dependent of a deceased retired sponsor and can purchase TYA coverage.
    (ii) Failure of a young adult dependent to maintain the eligibility 
qualifications in paragraph (b) of this section shall result in the 
termination of coverage under the TYA program. The effective date of 
termination shall be the date upon which the adult young dependent 
failed to meet any of the prerequisite qualifications. If a subsequent 
change in circumstances re-establishes eligibility (such as losing 
eligibility for an eligible employer-sponsored plan), the young adult 
dependent may re-enroll for coverage under the TYA program.
    (iii) Coverage may also be terminated due to a change in the 
sponsor's status, and the young adult dependent must re-qualify and 
reapply for TYA coverage within 30 days of termination to preclude a gap 
in coverage.
    (iv) Termination of coverage results in denial of claims for 
services with a date of service after the effective date of termination.
    (v) Coverage may be terminated for young adult dependents upon 
request at any time by submitting a completed request in the appropriate 
format in accordance with established procedures.
    (vi) In accordance with the provisions of Sec. 199.17(o)(2), 
coverage terminates for young adult dependents who fail to make premium 
payments in accordance with established procedures.
    (vii) Absent a new qualifying event, young adults are not eligible 
to re-enroll in TYA until the next annual open season.

[[Page 386]]

    (3) Eligibility for the Continued Health Care Benefit Program. Upon 
termination of eligibility to purchase TYA coverage, dependents may 
purchase coverage for up to 36 months through the Continued Health Care 
Benefit Program under Sec. 199.20 unless locked out of TYA.
    (4) Changing coverage. Upon application and payment of appropriate 
premiums, qualified dependents already enrolled in and who are current 
in their premium payments may elect to change to another TRICARE program 
for which the qualified dependent is eligible based on the sponsor's 
eligibility and the geographic location of the qualified young adult 
dependent. Upon change in sponsor status (for example, active duty to 
retired status), TYA coverage may be automatically transferred to the 
appropriate TRICARE option consistent with the sponsor's new status. 
Recurring TYA premiums may be adjusted accordingly. Administrative 
processes may be established for changes in program enrollment; however, 
no change shall be effective until the applicable premium has been paid.
    (e) Preemption of State laws.--The preemption provisions of Sec. 
199.17(a)(7) are applicable to the TYA program.
    (f) Administration. The Director may establish other processes, 
policies and procedures for the effective administration of the TYA 
Program and may authorize exceptions to requirements of this section, if 
permitted.

[78 FR 32119, May 29, 2013, as amended at 82 FR 45460, Sept. 29, 2017]



                  Sec. Appendix A to Part 199--Acronyms

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

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

[[Page 387]]



PART 200_CIVIL MONEY PENALTY AUTHORITIES FOR THE TRICARE PROGRAM--
Table of Contents



                      Subpart A_General Provisions

Sec.
200.100 Basis and purpose.
200.110 Definitions.
200.120 Liability for penalties and assessments.
200.130 Assessments.
200.140 Determinations regarding the amount of penalties and 
          assessments.
200.150 Delegation of authority.

  Subpart B_Civil Money Penalties (CMPs) and Assessments for False or 
             Fraudulent Claims and Other Similar Misconduct

200.200 Basis for civil money penalties and assessments.
200.210 Amount of penalties and assessments.
200.220 Determinations regarding the amount of penalties and 
          assessments.

       Subpart C_CMPs and Assessments for Anti-Kickback Violations

200.300 Basis for civil money penalties and assessments.
200.310 Amount of penalties and assessments.
200.320 Determinations regarding the amount of penalties and 
          assessments.

Subparts D-N [Reserved]

     Subpart O_Procedures for the Imposition of CMPs and Assessments

200.1500 Notice of proposed determination.
200.1510 Failure to request a hearing.
200.1520 Collateral estoppel.
200.1530 Settlement.
200.1540 Judicial review.
200.1550 Collection of penalties and assessments.
200.1560 Notice to other agencies.
200.1570 Limitations.
200.1580 Statistical sampling.
200.1590-200.1990 [Reserved]

                Subpart P_Appeals of CMPs and Assessments

200.2001 Definitions.
200.2002 Hearing before an ALJ.
200.2003 Rights of parties.
200.2004 Authority of the ALJ.
200.2005 Ex parte contacts.
200.2006 Prehearing conferences.
200.2007 Discovery.
200.2008 Exchange of witness lists, witness statements, and exhibits.
200.2009 Subpoenas for attendance at hearing.
200.2010 Fees.
200.2011 Form, filing, and service of papers.
200.2012 Computation of time.
200.2013 Motions.
200.2014 Sanctions.
200.2015 The hearing and burden of proof.
200.2016 Witnesses.
200.2017 Evidence.
200.2018 The record.
200.2019 Post-hearing briefs.
200.2020 Initial decision.
200.2021 Appeal to DAB.
200.2022 Stay of initial decision.
200.2023 Harmless error.

    Authority: 5 U.S.C. 301; 10 U.S.C. chapter 55; 42 U.S.C. 1320a-7a.

    Source: 85 FR 60705, Sept. 28, 2020, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 200.100  Basis and purpose.

    (a) Basis. This part implements section 1128A of the Social Security 
Act (42 U.S.C. 1320a-7a) (the Act).
    (b) Purpose. This part--
    (1) Provides for the imposition of civil money penalties and, as 
applicable, assessments against persons who have committed an act or 
omission that violates one or more provisions of this part; and
    (2) Sets forth the appeal rights of persons subject to a penalty and 
assessment.



Sec. 200.110  Definitions.

    For purposes of this part, with respect to terms not defined in this 
section but defined in 32 CFR 199.2, the definition in such Sec. 199.2 
shall apply. For purposes of this part, the following definitions apply:
    Assessment means the amounts described in this part and includes the 
plural of that term.
    Claim means an application for payment for an item or service under 
TRICARE/CHAMPUS.
    Defense Health Agency or DHA means the Director of the Defense 
Health Agency or designee.
    Items and services or items or services includes without limitation, 
any item, device, drug, biological, supply, or service (including 
management or administrative services), including, but not limited to, 
those that are listed in

[[Page 388]]

an itemized claim for program payment or a request for payment; for 
which payment is included in any TRICARE/CHAMPUS reimbursement method, 
such as a prospective payment system or managed care system; or that 
are, in the case of a claim based on costs, required to be entered in a 
cost report, books of account, or other documents supporting the claim 
(whether or not actually entered).
    Knowingly means that a person, with respect to an act, has actual 
knowledge of the act, acts in deliberate ignorance of the act, or acts 
in reckless disregard of the act, and no proof of specific intent to 
defraud is required.
    Material means having a natural tendency to influence, or be capable 
of influencing, the payment or receipt of money or property.
    Non-separately-billable item or service means an item or service 
that is a component of, or otherwise contributes to the provision of, an 
item or a service, but is not itself a separately billable item or 
service.
    Office of Inspector General or OIG means the Office of Inspector 
General of the Department of Defense; the Defense Criminal Investigative 
Service (DCIS); or the Office of Inspector General for the Defense 
Health Agency.
    Overpayment means any funds that a person receives or retains under 
TRICARE/CHAMPUS to which the person, after applicable reconciliation, is 
not entitled under such program.
    Penalty means the amount described in this part and includes the 
plural of that term.
    Person means an individual, trust or estate, partnership, 
corporation, professional association or corporation, or other entity, 
public or private.
    Preventive care, for purposes of the definition of the term 
``remuneration'' as set forth in this section and the preventive care 
exception to section 231(h) of the Health Insurance Portability and 
Accountability Act of 1996 (HIPAA), means any service that--
    (1) Is a prenatal service or a post-natal well-baby visit or is a 
specific clinical service covered by TRICARE; and
    (2) Is reimbursable in whole or in part by TRICARE as a preventive 
care service.
    Reasonable request, with respect to Sec. 200.200(b)(6), means a 
written request, signed by a designated representative of the OIG and 
made by a properly identified agent of the OIG during reasonable 
business hours. The request will include: A statement of the authority 
for the request, the person's rights in responding to the request, the 
definition of ``reasonable request'' and ``failure to grant timely 
access'' under this part, the deadline by which the OIG requests access, 
and the amount of the civil money penalty or assessment that could be 
imposed for failure to comply with the request, and the earliest date 
that a request for reinstatement would be considered.
    Remuneration, for the purposes of this part, is consistent with the 
definition in section 1128A(i)(6) of the Social Security Act and 
includes the waiver of copayment, coinsurance and deductible amounts (or 
any part thereof) and transfers of items or services for free or for 
other than fair market value. The term ``remuneration'' does not 
include:
    (1) The waiver of coinsurance and deductible amounts by a person, if 
the waiver is not offered as part of any advertisement or solicitation; 
the person does not routinely waive coinsurance or deductible amounts; 
and the person waives coinsurance and deductible amounts after 
determining in good faith that the individual is in financial need or 
failure by the person to collect coinsurance or deductible amounts after 
making reasonable collection efforts.
    (2) Any permissible practice as specified in section 1128B(b)(3) of 
the Act or in regulations issued by the Secretary.
    (3) Differentials in coinsurance and deductible amounts as part of a 
benefit plan design (as long as the differentials have been disclosed in 
writing to all beneficiaries, third party payers and providers), to whom 
claims are presented.
    (4) Incentives given to individuals to promote the delivery of 
preventive care services where the delivery of such services is not tied 
(directly or indirectly) to the provision of other services reimbursed 
in whole or in part by TRICARE, Medicare or an applicable

[[Page 389]]

State health care program. Such incentives may include the provision of 
preventive care, but may not include--
    (i) Cash or instruments convertible to cash; or
    (ii) An incentive the value of which is disproportionally large in 
relationship to the value of the preventive care service (i.e., either 
the value of the service itself or the future health care costs 
reasonably expected to be avoided as a result of the preventive care).
    (5) Items or services that improve a beneficiary's ability to obtain 
items and services payable by TRICARE, and pose a low risk of harm to 
TRICARE beneficiaries and the TRICARE program by--
    (i) Being unlikely to interfere with, or skew, clinical decision 
making;
    (ii) Being unlikely to increase costs to Federal health care 
programs or beneficiaries through overutilization or inappropriate 
utilization; and
    (iii) Not raising patient safety or quality-of-care concerns.
    (6) The offer or transfer of items or services for free or less than 
fair market value by a person if--
    (i) The items or services consist of coupons, rebates, or other 
rewards from a retailer;
    (ii) The items or services are offered or transferred on equal terms 
available to the general public, regardless of health insurance status; 
and
    (iii) The offer or transfer of the items or services is not tied to 
the provision of other items or services reimbursed in whole or in part 
by the program under chapter 55 of title 10, U.S. Code.
    (7) The offer or transfer of items or services for free or less than 
fair market value by a person, if--
    (i) The items or services are not offered as part of any 
advertisement or solicitation;
    (ii) The offer or transfer of the items or services is not tied to 
the provision of other items or services reimbursed in whole or in part 
by the program under chapter 55 of title 10, U.S. Code;
    (iii) There is a reasonable connection between the items or services 
and the medical care of the individual; and
    (iv) The person provides the items or services after determining in 
good faith that the individual is in financial need.
    Request for payment means an application submitted by a person to 
any person for payment for an item or service.
    Respondent means the person upon whom the Department has imposed, or 
proposes to impose, a penalty and/or assessment.
    Separately billable item or service means an item or service for 
which an identifiable payment may be made under a Federal health care 
program, e.g., an itemized claim or a payment under a prospective 
payment system or other reimbursement methodology.
    Should know, or should have known, means that a person, with respect 
to information, either acts in deliberate ignorance of the truth or 
falsity of the information or acts in reckless disregard of the truth or 
falsity of the information. For purposes of this definition, no proof of 
specific intent to defraud is required.
    TRICARE or TRICARE/CHAMPUS or CHAMPUS means any program operated 
under the authority of 32 CFR part 199.



Sec. 200.120  Liability for penalties and assessments.

    (a) In any case in which it is determined that more than one person 
was responsible for a violation described in this part, each such person 
may be held separately liable for the entire penalty prescribed by this 
part.
    (b) In any case in which it is determined that more than one person 
was responsible for a violation described in this part, an assessment 
may be imposed, when authorized, against any one such person or jointly 
and severally against two or more such persons, but the aggregate amount 
of the assessments collected may not exceed the amount that could be 
assessed if only one person was responsible.
    (c) Under this part, a principal is liable for penalties and 
assessments for the actions of his or her agent acting within the scope 
of his or her agency. The provision in this paragraph (c) does not limit 
the underlying liability of the agent.



Sec. 200.130  Assessments.

    The assessment in this part is in lieu of damages sustained by the 
Department because of the violation.

[[Page 390]]



Sec. 200.140  Determinations regarding the amount of penalties and assessments.

    (a) Except as otherwise provided in this part, in determining the 
amount of any penalty or assessment in accordance with this part, the 
DHA will consider the following factors--
    (1) The nature and circumstances of the violation;
    (2) The degree of culpability of the person against whom a civil 
money penalty and assessment is proposed. It should be considered an 
aggravating circumstance if the respondent had actual knowledge where a 
lower level of knowledge was required to establish liability (e.g., for 
a provision that establishes liability if the respondent ``knew or 
should have known'' a claim was false or fraudulent, it will be an 
aggravating circumstance if the respondent knew the claim was false or 
fraudulent). It should be a mitigating circumstance if the person took 
appropriate and timely corrective action in response to the violation. 
For purposes of this part, corrective action must include disclosing the 
violation to the DHA by initiating a self-disclosure and fully 
cooperating with the DHA's review and resolution of such disclosure;
    (3) The history of prior offenses. Aggravating circumstances 
include, if at any time prior to the violation, the individual--or in 
the case of an entity, the entity itself; any individual who had a 
direct or indirect ownership or control interest (as defined in section 
1124(a)(3) of the Act) in a sanctioned entity at the time the violation 
occurred and who knew, or should have known, of the violation; or any 
individual who was an officer or a managing employee (as defined in 
section 1126(b) of the Act) of such an entity at the time the violation 
occurred--was held liable for criminal, civil, or administrative 
sanctions in connection with a program covered by this part or in 
connection with the delivery of a health care item or service;
    (4) Other wrongful conduct. Aggravating circumstances include proof 
that the individual--or in the case of an entity, the entity itself; any 
individual who had a direct or indirect ownership or control interest 
(as defined in section 1124(a)(3) of the Act) in a sanctioned entity at 
the time the violation occurred and who knew, or should have known, of 
the violation; or any individual who was an officer or a managing 
employee (as defined in section 1126(b) of the Act) of such an entity at 
the time the violation occurred--engaged in wrongful conduct, other than 
the specific conduct upon which liability is based, relating to a 
government program or in connection with the delivery of a health care 
item or service. The statute of limitations governing civil money 
penalty proceedings does not apply to proof of other wrongful conduct as 
an aggravating circumstance; and
    (5) Such other matters as justice may require. Other circumstances 
of an aggravating or mitigating nature should be considered if, in the 
interests of justice, they require either a reduction or an increase in 
the penalty or assessment to achieve the purposes of this part.
    (b)(1) After determining the amount of any penalty and assessment in 
accordance with this part, the DHA considers the ability of the person 
to pay the proposed civil money penalty or assessment. The person shall 
provide, in a time and manner requested by the DHA, sufficient financial 
documentation, including, but not limited to, audited financial 
statements, tax returns, and financial disclosure statements, deemed 
necessary by the DHA to determine the person's ability to pay the 
penalty or assessment.
    (2) If the person requests a hearing in accordance with Sec. 
200.2002, the only financial documentation subject to review is that 
which the person provided to the DHA during the administrative process, 
unless the Administrative Law Judge (ALJ) finds that extraordinary 
circumstances prevented the person from providing the financial 
documentation to the DHA in the time and manner requested by the DHA 
prior to the hearing request.
    (c) In determining the amount of any penalty and assessment to be 
imposed under this part the following circumstances are also to be 
considered--

[[Page 391]]

    (1) If there are substantial or several mitigating circumstances, 
the aggregate amount of the penalty and assessment should be set at an 
amount sufficiently below the maximum permitted by this part to reflect 
that fact.
    (2) If there are substantial or several aggravating circumstances, 
the aggregate amount of the penalty and assessment should be set at an 
amount sufficiently close to or at the maximum permitted by this part to 
reflect that fact.
    (3) Unless there are extraordinary mitigating circumstances, the 
aggregate amount of the penalty and assessment should not be less than 
double the approximate amount of damages and costs (as defined by 
paragraph (e)(2) of this section) sustained by the United States, or any 
State, as a result of the violation.
    (4) The presence of any single aggravating circumstance may justify 
imposing a penalty and assessment at or close to the maximum even when 
one or more mitigating factors is present.
    (d)(1) The standards set forth in this section are binding, except 
to the extent that their application would result in imposition of an 
amount that would exceed limits imposed by the United States 
Constitution.
    (2) The amount imposed will not be less than the approximate amount 
required to fully compensate the United States, for its damages and 
costs, tangible and intangible, including, but not limited to, the costs 
attributable to the investigation, prosecution, and administrative 
review of the case.
    (3) Nothing in this part limits the authority of the Department or 
the DHA to settle any issue or case as provided by Sec. 200.1530 or to 
compromise any penalty and assessment as provided by Sec. 200.1550.
    (4) Penalties and assessments imposed under this part are in 
addition to any other penalties, assessments, or other sanctions 
prescribed by law.



Sec. 200.150  Delegation of authority.

    The DHA is delegated authority from the Secretary to impose civil 
money penalties and, as applicable, assessments against any person who 
has violated one or more provisions of this part. The delegation of 
authority includes all powers to impose and compromise civil money 
penalties, assessments under section 1128A of the Act.



  Subpart B_Civil Money Penalties (CMPs) and Assessments for False or 
             Fraudulent Claims and Other Similar Misconduct



Sec. 200.200  Basis for civil money penalties and assessments.

    (a) The DHA may impose a penalty, assessment against any person who 
it determines has knowingly presented, or caused to be presented, a 
claim that was for--
    (1) An item or service that the person knew, or should have known, 
was not provided as claimed, including a claim that was part of a 
pattern or practice of claims based on codes that the person knew, or 
should have known, would result in greater payment to the person than 
the code applicable to the item or service actually provided;
    (2) An item or service for which the person knew, or should have 
known, that the claim was false or fraudulent;
    (3) An item or service furnished during a period in which the person 
was excluded from participation under 32 CFR 199.9(f) or by another 
Federal health care program (as defined in section 1128B(f) of the Act) 
to which the claim was presented;
    (4) A physician's services (or an item or service) for which the 
person knew, or should have known, that the individual who furnished (or 
supervised the furnishing of) the service--
    (i) Was not licensed as a physician;
    (ii) Was licensed as a physician, but such license had been obtained 
through a misrepresentation of material fact (including cheating on an 
examination required for licensing); or
    (iii) Represented to the patient at the time the service was 
furnished that the physician was certified by a medical specialty board 
when he or she was not so certified; or
    (5) An item or service that a person knew, or should have known was 
not medically necessary, and which is part of a pattern of such claims.
    (b) The DHA may impose a penalty and, where authorized, an 
assessment against any person who it determines--

[[Page 392]]

    (1) Arranges or contracts (by employment or otherwise) with an 
individual or entity that the person knows, or should know, is excluded 
from participation in Federal health care programs for the provision of 
items or services for which payment may be made under such a program;
    (2) Orders or prescribes a medical or other item or service during a 
period in which the person was excluded from a Federal health care 
program, in the case when the person knows, or should know, that a claim 
for such medical or other item or service will be made under such a 
program;
    (3) Knowingly makes, or causes to be made, any false statement, 
omission, or misrepresentation of a material fact in any application, 
bid, or contract to participate or enroll as a provider of services or a 
supplier under a Federal health care program;
    (4) Knows of an overpayment and does not report and return the 
overpayment in accordance with section 1128J(d) of the Act;
    (5) Knowingly makes, uses, or causes to be made or used, a false 
record or statement material to a false or fraudulent claim for payment 
for items and services furnished under a Federal health care program; or
    (6) Fails to grant timely access to records, documents, and other 
material or data in any medium (including electronically stored 
information and any tangible thing), upon reasonable request, to the 
OIG, for the purpose of audits, investigations, evaluations, or other 
OIG statutory functions. Such failure to grant timely access means:
    (i) Except when the OIG reasonably believes that the requested 
material is about to be altered or destroyed, the failure to produce or 
make available for inspection and copying the requested material upon 
reasonable request or to provide a compelling reason why they cannot be 
produced, by the deadline specified in the OIG's written request; and
    (ii) When the OIG has reason to believe that the requested material 
is about to be altered or destroyed, the failure to provide access to 
the requested material at the time the request is made.



Sec. 200.210  Amount of penalties and assessments.

    (a) Penalties.\1\ (1) Except as provided in this section, the DHA 
may impose a penalty of not more than $20,504 for each individual 
violation that is subject to a determination under this subpart.

    \1\ The penalty amounts in this section are updated annually, as 
adjusted in accordance with the Federal Civil Monetary Penalty Inflation 
Adjustment Act of 1990 (Pub. L. 101-140), as amended by the Federal 
Civil Penalties Inflation Adjustment Act Improvements Act of 2015 
(section 701 of Pub. L. 114-74). Annually adjusted amounts are published 
at 32 CFR part 269. The maximum penalty amount is based on the most 
recent statutory adjustment included in the Bipartisan Budget Act of 
2018 and includes the cost of living multiplier for 2019, based on the 
Consumer Price Index for all Urban Consumers (CPI-U) for the month of 
October 2018, not seasonally adjusted, is 1.02522, as indicated in 
Office of Management and Budget (OMB) Memorandum M-19-04.

    (2) For each individual violation of Sec. 200.200(b)(1), the DHA 
may impose a penalty of not more than $20,504 for each separately 
billable or non-separately-billable item or service provided, furnished, 
ordered, or prescribed by an excluded individual or entity.
    (3) The DHA may impose a penalty of not more than $100,522 for each 
false statement, omission, or misrepresentation of a material fact in 
violation of Sec. 200.200(b)(3).
    (4) The DHA may impose a penalty of not more than $100,522 for each 
false record or statement in violation of Sec. 200.200(b)(5).
    (5) The DHA may impose a penalty of not more than $20,504 for each 
item or service related to an overpayment that is not reported and 
returned in accordance with section 1128J(d) of the Act in violation of 
Sec. 200.200(b)(4).
    (6) The DHA may impose a penalty of not more than $30,757 for each 
day of failure to grant timely access in violation of Sec. 
200.200(b)(6).
    (b) Assessments. (1) Except for violations of Sec. 200.200(b)(1) 
and (3), the DHA may impose an assessment for each individual violation 
of Sec. 200.200, of not more than 3 times the amount claimed for each 
item or service.

[[Page 393]]

    (2) For violations of Sec. 200.200(b)(1), the DHA may impose an 
assessment of not more than 3 times--
    (i) The amount claimed for each separately billable item or service 
provided, furnished, ordered, or prescribed by an excluded individual or 
entity; or
    (ii) The total costs (including salary, benefits, taxes, and other 
money or items of value) related to the excluded individual or entity 
incurred by the person that employs, contracts with, or otherwise 
arranges for an excluded individual or entity to provide, furnish, 
order, or prescribe a non-separately-billable item or service.
    (3) For violations of Sec. 200.200(b)(3), the DHA may impose an 
assessment of not more than 3 times the total amount claimed for each 
item or service for which payment was made based upon the application 
containing the false statement, omission, or misrepresentation of 
material fact.



Sec. 200.220  Determinations regarding the amount of penalties and assessments.

    In considering the factors listed in Sec. 200.140--
    (a) It should be considered a mitigating circumstance if all the 
items or services or violations included in the action brought under 
this part were of the same type and occurred within a short period of 
time, there were few such items or services or violations, and the total 
amount claimed or requested for such items or services was less than 
$5,000.
    (b) Aggravating circumstances include--
    (1) The violations were of several types or occurred over a lengthy 
period of time;
    (2) There were many such items or services or violations (or the 
nature and circumstances indicate a pattern of claims or requests for 
payment for such items or services or a pattern of violations);
    (3) The amount claimed or requested for such items or services, or 
the amount of the overpayment was $50,000 or more;
    (4) The violation resulted, or could have resulted, in patient harm, 
premature discharge, or a need for additional services or subsequent 
hospital admission; or
    (5) The amount or type of financial, ownership, or control interest 
or the degree of responsibility a person has in an entity was 
substantial with respect to an action brought under Sec. 200.200(b)(3).



       Subpart C_CMPs and Assessments for Anti-Kickback Violations



Sec. 200.300  Basis for civil money penalties and assessments.

    The DHA may impose a penalty and an assessment against any person 
who it determines in accordance with this part has violated section 
1128B(b) of the Act by unlawfully offering, paying, soliciting, or 
receiving remuneration to induce or in return for the referral of 
business paid for, in whole or in part, by TRICARE/CHAMPUS.



Sec. 200.310  Amount of penalties and assessments.

    (a) Penalties.\2\ The DHA may impose a penalty of not more than 
$100,522 for each offer, payment, solicitation, or receipt of 
remuneration that is subject to a determination under Sec. 200.300.

    \2\ The penalty amounts in this section are updated annually, as 
adjusted in accordance with the Federal Civil Monetary Penalty Inflation 
Adjustment Act of 1990 (Pub. L. 101-140), as amended by the Federal 
Civil Penalties Inflation Adjustment Act Improvements Act of 2015 
(section 701 of Pub. L. 114-74). Annually adjusted amounts are published 
at 32 CFR part 269. The maximum penalty amount is based on the most 
recent statutory adjustment included in the Bipartisan Budget Act of 
2018 and includes the cost of living multiplier for 2019, based on the 
CPI-U for the month of October 2018, not seasonally adjusted, is 
1.02522, as indicated in OMB Memorandum M-19-04.

    (b) Assessments. The DHA may impose an assessment of not more than 3 
times the total remuneration offered, paid, solicited, or received that 
is subject to a determination under Sec. 200.300. Calculation of the 
total remuneration for purposes of an assessment shall be without regard 
to whether a portion of such remuneration was offered, paid, solicited, 
or received for a lawful purpose.

[[Page 394]]



Sec. 200.320  Determinations regarding the amount of penalties and assessments.

    In considering the factors listed in Sec. 200.140:
    (a) It should be considered a mitigating circumstance if all the 
items, services, or violations included in the action brought under this 
part were of the same type and occurred within a short period of time; 
there were few such items, services, or violations; and the total amount 
claimed or requested for such items or services was less than $5,000.
    (b) Aggravating circumstances include--
    (1) The violations were of several types or occurred over a lengthy 
period of time;
    (2) There were many such items, services, or violations (or the 
nature and circumstances indicate a pattern of claims or requests for 
payment for such items or services or a pattern of violations);
    (3) The amount claimed or requested for such items or services or 
the amount of the remuneration was $50,000 or more; or
    (4) The violation resulted, or could have resulted, in harm to the 
patient, a premature discharge, or a need for additional services or 
subsequent hospital admission.

Subparts D-N [Reserved]



     Subpart O_Procedures for the Imposition of CMPs and Assessments



Sec. 200.1500  Notice of proposed determination.

    (a) If the DHA proposes a penalty and, when applicable, an 
assessment, as applicable, in accordance with this part, the DHA must 
serve on the respondent, in any manner authorized by Rule 4 of the 
Federal Rules of Civil Procedure, written notice of the DHA's intent to 
impose a penalty and if applicable an assessment. The notice will 
include--
    (1) Reference to the statutory basis for the penalty and the 
assessment;
    (2) A description of the violation for which the penalty, and 
assessment are proposed (except in cases in which the DHA is relying 
upon statistical sampling in accordance with Sec. 200.1580, in which 
case the notice shall describe those claims and requests for payment 
constituting the sample upon which the DHA is relying and will briefly 
describe the statistical sampling technique used by the DHA);
    (3) The reason why such violation subjects the respondent to a 
penalty, and an assessment;
    (4) The amount of the proposed penalty and assessment (where 
applicable);
    (5) Any factors and circumstances described in this part that were 
considered when determining the amount of the proposed penalty and 
assessment; and
    (6) Instructions for responding to the notice, including--
    (i) A specific statement of the respondent's right to a hearing; and
    (ii) A statement that failure to request a hearing within 60 days 
permits the imposition of the proposed penalty, assessment, without 
right of appeal.
    (b) Any person upon whom the DHA has proposed the imposition of a 
penalty, and/or an assessment, may appeal such proposed penalty, and/or 
assessment to the Departmental Appeals Board in accordance with Sec. 
200.2002. The provisions of subpart P of this part govern such appeals.
    (c) If the respondent fails, within the time period permitted, to 
exercise his or her right to a hearing under this section, any penalty, 
and/or assessment becomes final.



Sec. 200.1510  Failure to request a hearing.

    If the respondent does not request a hearing within 60 days after 
the notice prescribed by Sec. 200.1500(a) is received, as determined by 
Sec. 200.2002(c), by the respondent, the DHA may impose the proposed 
penalty and assessment, or any less severe penalty and assessment. The 
DHA shall notify the respondent in any manner authorized by Rule 4 of 
the Federal Rules of Civil Procedure of any penalty and assessment that 
have been imposed and of the means by which the respondent may satisfy 
the judgment. The respondent has no right to appeal a penalty, an 
assessment with respect to

[[Page 395]]

which he or she has not made a timely request for a hearing under Sec. 
200.2002.



Sec. 200.1520  Collateral estoppel.

    (a) Where a final determination pertaining to the respondent's 
liability for acts that violate this part has been rendered in any 
proceeding in which the respondent was a party and had an opportunity to 
be heard, the respondent shall be bound by such determination in any 
proceeding under this part.
    (b) In a proceeding under this part, a person is estopped from 
denying the essential elements of the criminal offense if the 
proceeding--
    (1) Is against a person who has been convicted (whether upon a 
verdict after trial or upon a plea of guilty or nolo contendere) of a 
Federal crime charging fraud or false statements; and
    (2) Involves the same transactions as in the criminal action.



Sec. 200.1530  Settlement.

    The DHA has exclusive authority to settle any issues or case without 
consent of the ALJ.



Sec. 200.1540  Judicial review.

    (a) Section 1128A(e) of the Social Security Act authorizes judicial 
review of a penalty and an assessment that has become final. The only 
matters subject to judicial review are those that the respondent raised 
pursuant to Sec. 200.2021, unless the court finds that extraordinary 
circumstances existed that prevented the respondent from raising the 
issue in the underlying administrative appeal.
    (b) A respondent must exhaust all administrative appeal procedures 
established by the Secretary or required by law before a respondent may 
bring an action in Federal court, as provided in section 1128A(e) of the 
Social Security Act, concerning any penalty and assessment imposed 
pursuant to this part.
    (c) Administrative remedies are exhausted when a decision becomes 
final in accordance with Sec. 200.2021(j).



Sec. 200.1550  Collection of penalties and assessments.

    (a) Once a determination by the Secretary has become final, 
collection of any penalty and assessment will be the responsibility of 
the Defense Health Agency.
    (b) A penalty or an assessment imposed under this part may be 
compromised by the DHA and may be recovered in a civil action brought in 
the United States district court for the district where the claim was 
presented or where the respondent resides.
    (c) The amount of penalty or assessment, when finally determined, or 
the amount agreed upon in compromise, may be deducted from any sum then 
or later owing by the United States Government or a State agency to the 
person against whom the penalty or assessment has been assessed.
    (d) Matters that were raised, or that could have been raised, in a 
hearing before an ALJ or in an appeal under section 1128A(e) of the 
Social Security Act may not be raised as a defense in a civil action by 
the United States to collect a penalty or assessment under this part.



Sec. 200.1560  Notice to other agencies.

    Whenever a penalty and/or an assessment becomes final, the following 
organizations and entities will be notified about such action and the 
reasons for it: Department of Health and Human Service (HHS) Office of 
Inspector General, the appropriate State or local medical or 
professional association; the appropriate quality improvement 
organization; as appropriate, the State agency that administers each 
State health care program; the appropriate TRICARE Contractor; the 
appropriate State or local licensing agency or organization (including 
the Medicare and Medicaid State survey agencies); and the long-term-care 
ombudsman.



Sec. 200.1570  Limitations.

    No action under this part will be entertained unless commenced, in 
accordance with Sec. 200.1500(a), within 6 years from the date on which 
the violation occurred.



Sec. 200.1580  Statistical sampling.

    (a) In meeting the burden of proof in Sec. 200.2015, the DHA may 
introduce the results of a statistical sampling study as evidence of the 
number and amount of claims and/or requests for payment,

[[Page 396]]

as described in this part, that were presented, or caused to be 
presented, by the respondent. Such a statistical sampling study, if 
based upon an appropriate sampling and computed by valid statistical 
methods, shall constitute prima facie evidence of the number and amount 
of claims or requests for payment, as described in this part.
    (b) Once the DHA has made a prima facie case, as described in 
paragraph (a) of this section, the burden of production shall shift to 
the respondent to produce evidence reasonably calculated to rebut the 
findings of the statistical sampling study. The DHA will then be given 
the opportunity to rebut this evidence.
    (c) Where the DHA establishes a number and amount of claims subject 
to penalties using a statistical sampling study, the DHA may use the 
results of the study to extrapolate a total amount of overpaid funds to 
be collected pursuant to 32 CFR 199.11.



Sec. Sec. 200.1590-200.1990  [Reserved]



                Subpart P_Appeals of CMPs and Assessments



Sec. 200.2001  Definitions.

    For purposes of this subpart, the following definitions apply:
    Civil money penalty cases refer to all proceedings arising under any 
of the statutory bases for which the DHA has been delegated authority to 
impose civil money penalties under TRICARE.
    DAB refers to the Department of Health and Human Services, 
Departmental Appeals Board or its delegate, or other administrative 
appeals decision maker designated by the Director, DHA.



Sec. 200.2002  Hearing before an ALJ.

    (a) A party sanctioned under any criteria specified in this part may 
request a hearing before an ALJ.
    (b) In civil money penalty cases, the parties to the proceeding will 
consist of the respondent and the DHA.
    (c) The request for a hearing will be made in writing to the DAB; 
signed by the petitioner or respondent, or by his or her attorney; and 
sent by certified mail. The request must be filed within 60 days after 
the notice, provided in accordance with Sec. 200.1500, is received by 
the petitioner or respondent. For purposes of this section, the date of 
receipt of the notice letter will be presumed to be 5 days after the 
date of such notice unless there is a reasonable showing to the 
contrary.
    (d) The request for a hearing will contain a statement as to the 
specific issues or findings of fact and conclusions of law in the notice 
letter with which the petitioner or respondent disagrees, and the basis 
for his or her contention that the specific issues or findings and 
conclusions were incorrect.
    (e) The ALJ will dismiss a hearing request where--
    (1) The petitioner's or the respondent's hearing request is not 
filed in a timely manner;
    (2) The petitioner or respondent withdraws his or her request for a 
hearing;
    (3) The petitioner or respondent abandons his or her request for a 
hearing; or
    (4) The petitioner's or respondent's hearing request fails to raise 
any issue which may properly be addressed in a hearing.



Sec. 200.2003  Rights of parties.

    (a) Except as otherwise limited by this part, all parties may--
    (1) Be accompanied, represented, and advised by an attorney;
    (2) Participate in any conference held by the ALJ;
    (3) Conduct discovery of documents as permitted by this part;
    (4) Agree to stipulations of fact or law which will be made part of 
the record;
    (5) Present evidence relevant to the issues at the hearing;
    (6) Present and cross-examine witnesses;
    (7) Present oral arguments at the hearing as permitted by the ALJ; 
and
    (8) Submit written briefs and proposed findings of fact and 
conclusions of law after the hearing.
    (b) Fees for any services performed on behalf of a party by an 
attorney are not subject to the provisions of section 206 of title II of 
the Act, which authorizes the Secretary to specify or limit these fees.

[[Page 397]]



Sec. 200.2004  Authority of the ALJ.

    (a) The ALJ will conduct a fair and impartial hearing, avoid delay, 
maintain order, and assure that a record of the proceeding is made.
    (b) The ALJ has the authority to--
    (1) Set and change the date, time, and place of the hearing upon 
reasonable notice to the parties;
    (2) Continue or recess the hearing in whole or in part for a 
reasonable period of time;
    (3) Hold conferences to identify or simplify the issues, or to 
consider other matters that may aid in the expeditious disposition of 
the proceeding;
    (4) Administer oaths and affirmations;
    (5) Issue subpoenas requiring the attendance of witnesses at 
hearings and the production of documents at or in relation to hearings;
    (6) Rule on motions and other procedural matters;
    (7) Regulate the scope and timing of documentary discovery as 
permitted by this part;
    (8) Regulate the course of the hearing and the conduct of 
representatives, parties, and witnesses;
    (9) Examine witnesses;
    (10) Receive, rule on, exclude, or limit evidence;
    (11) Upon motion of a party, take official notice of facts;
    (12) Upon motion of a party, decide cases, in whole or in part, by 
summary judgment where there is no disputed issue of material fact; and
    (13) Conduct any conference, argument or hearing in person or, upon 
agreement of the parties, by telephone.
    (c) The ALJ does not have the authority to--
    (1) Find invalid or refuse to follow Federal statutes or regulations 
or secretarial delegations of authority;
    (2) Enter an order in the nature of a directed verdict;
    (3) Compel settlement negotiations;
    (4) Enjoin any act of the Secretary; or
    (5) Review the exercise of discretion by the DHA to impose a CMP or 
assessment under this part.



Sec. 200.2005  Ex parte contacts.

    No party or person (except employees of the ALJ's office) will 
communicate in any way with the ALJ on any matter at issue in a case, 
unless on notice and opportunity for all parties to participate. This 
section does not prohibit a person or party from inquiring about the 
status of a case or asking routine questions concerning administrative 
functions or procedures.



Sec. 200.2006  Prehearing conferences.

    (a) The ALJ will schedule at least one prehearing conference, and 
may schedule additional prehearing conferences as appropriate, upon 
reasonable notice to the parties.
    (b) The ALJ may use prehearing conferences to discuss the 
following--
    (1) Simplification of the issues;
    (2) The necessity or desirability of amendments to the pleadings, 
including the need for a more definite statement;
    (3) Stipulations and admissions of fact or as to the contents and 
authenticity of documents;
    (4) Whether the parties can agree to submission of the case on a 
stipulated record;
    (5) Whether a party chooses to waive appearance at an oral hearing 
and to submit only documentary evidence (subject to the objection of 
other parties) and written argument;
    (6) Limitation of the number of witnesses;
    (7) Scheduling dates for the exchange of witness lists and of 
proposed exhibits;
    (8) Discovery of documents as permitted by this part;
    (9) The time and place for the hearing;
    (10) Such other matters as may tend to encourage the fair, just and 
expeditious disposition of the proceedings; and
    (11) Potential settlement of the case.
    (c) The ALJ will issue an order containing the matters agreed upon 
by the parties or ordered by the ALJ at a prehearing conference.



Sec. 200.2007  Discovery.

    (a) A party may make a request to another party for production of 
documents for inspection and copying which are relevant and material to 
the issues before the ALJ.

[[Page 398]]

    (b) For the purpose of this section, the term documents includes 
information, reports, answers, records, accounts, papers, and other data 
and documentary evidence. Nothing contained in this section will be 
interpreted to require the creation of a document, except that requested 
data stored in an electronic data storage system will be produced in a 
form accessible to the requesting party.
    (c) Requests for documents, requests for admissions, written 
interrogatories, depositions, and any forms of discovery, other than 
those permitted under paragraph (a) of this section, are not authorized.
    (d) This section will not be construed to require the disclosure of 
interview reports or statements obtained by any party, or on behalf of 
any party, of persons who will not be called as witnesses by that party, 
or analyses and summaries prepared in conjunction with the investigation 
or litigation of the case, or any otherwise privileged documents.
    (e)(1) When a request for production of documents has been received, 
within 30 days, the party receiving that request will either fully 
respond to the request, or state that the request is being objected to 
and the reasons for that objection. If objection is made to part of an 
item or category, the part will be specified. Upon receiving any 
objections, the party seeking production may then, within 30 days or any 
other time frame set by the ALJ, file a motion for an order compelling 
discovery. (The party receiving a request for production may also file a 
motion for protective order any time prior to the date the production is 
due.)
    (2) The ALJ may grant a motion for protective order or deny a motion 
for an order compelling discovery if the ALJ finds that the discovery 
sought--
    (i) Is irrelevant;
    (ii) Is unduly costly or burdensome;
    (iii) Will unduly delay the proceeding; or
    (iv) Seeks privileged information.
    (3) The ALJ may extend any of the time frames set forth in paragraph 
(e)(1) of this section.
    (4) The burden of showing that discovery should be allowed is on the 
party seeking discovery.



Sec. 200.2008  Exchange of witness lists, witness statements, and exhibits.

    (a) At least 15 days before the hearing, the ALJ will order the 
parties to exchange witness lists, copies of prior written statements of 
proposed witnesses, and copies of proposed hearing exhibits, including 
copies of any written statements that the party intends to offer in lieu 
of live testimony in accordance with Sec. 200.2016.
    (b)(1) If at any time a party objects to the proposed admission of 
evidence not exchanged in accordance with paragraph (a) of this section, 
the ALJ will determine whether the failure to comply with paragraph (a) 
of this section should result in the exclusion of such evidence.
    (2) Unless the ALJ finds that extraordinary circumstances justified 
the failure to timely exchange the information listed under paragraph 
(a) of this section, the ALJ must exclude from the party's case-in-
chief:
    (i) The testimony of any witness whose name does not appear on the 
witness list; and
    (ii) Any exhibit not provided to the opposing party as specified in 
paragraph (a) of this section.
    (3) If the ALJ finds that extraordinary circumstances existed, the 
ALJ must then determine whether the admission of such evidence would 
cause substantial prejudice to the objecting party. If the ALJ finds 
that there is no substantial prejudice, the evidence may be admitted. If 
the ALJ finds that there is substantial prejudice, the ALJ may exclude 
the evidence, or at his or her discretion, may postpone the hearing for 
such time as is necessary for the objecting party to prepare and respond 
to the evidence.
    (c) Unless another party objects within a reasonable period of time 
prior to the hearing, documents exchanged in accordance with paragraph 
(a) of this section will be deemed to be authentic for the purpose of 
admissibility at the hearing.

[[Page 399]]



Sec. 200.2009  Subpoenas for attendance at hearing.

    (a) A party wishing to procure the appearance and testimony of any 
individual at the hearing may make a motion requesting the ALJ to issue 
a subpoena if the appearance and testimony are reasonably necessary for 
the presentation of a party's case.
    (b) A subpoena requiring the attendance of an individual in 
accordance with paragraph (a) of this section may also require the 
individual (whether or not the individual is a party) to produce 
evidence authorized under Sec. 200.2007 at or prior to the hearing.
    (c) When a subpoena is served by a respondent or petitioner on a 
particular individual or particular office of the DHA, the DHA may 
comply by designating any of its representatives to appear and testify.
    (d) A party seeking a subpoena will file a written motion not less 
than 30 days before the date fixed for the hearing, unless otherwise 
allowed by the ALJ for good cause shown. Such request will:
    (1) Specify any evidence to be produced;
    (2) Designate the witnesses; and
    (3) Describe the address and location with sufficient particularity 
to permit such witnesses to be found.
    (e) The subpoena will specify the time and place at which the 
witness is to appear and any evidence the witness is to produce.
    (f) Within 15 days after the written motion requesting issuance of a 
subpoena is served, any party may file an opposition or other response.
    (g) If the motion requesting issuance of a subpoena is granted, the 
party seeking the subpoena will serve it by delivery to the individual 
named, or by certified mail addressed to such individual at his or her 
last dwelling place or principal place of business.
    (h) The individual to whom the subpoena is directed may file with 
the ALJ a motion to quash the subpoena within 10 days after service.
    (i) The exclusive remedy for contumacy by, or refusal to obey a 
subpoena duly served upon, any person is specified in section 205(e) of 
the Social Security Act (42 U.S.C. 405(e)).



Sec. 200.2010  Fees.

    The party requesting a subpoena will pay the cost of the fees and 
mileage of any witness subpoenaed in the amounts that would be payable 
to a witness in a proceeding in United States District Court. A check 
for witness fees and mileage will accompany the subpoena when served, 
except that when a subpoena is issued on behalf of the DHA, a check for 
witness fees and mileage need not accompany the subpoena.



Sec. 200.2011  Form, filing, and service of papers.

    (a) Forms. (1) Unless the ALJ directs the parties to do otherwise, 
documents filed with the ALJ will include an original and two copies.
    (2) Every pleading and paper filed in the proceeding will contain a 
caption setting forth the title of the action, the case number, and a 
designation of the paper, such as motion to quash subpoena.
    (3) Every pleading and paper will be signed by, and will contain the 
address and telephone number of the party or the person on whose behalf 
the paper was filed, or his or her representative.
    (4) Papers are considered filed when they are mailed.
    (b) Service. A party filing a document with the ALJ or the Secretary 
will, at the time of filing, serve a copy of such document on every 
other party. Service upon any party of any document will be made by 
delivering a copy, or placing a copy of the document in the United 
States mail, postage prepaid and addressed, or with a private delivery 
service, to the party's last known address. When a party is represented 
by an attorney, service will be made upon such attorney in lieu of the 
party.
    (c) Proof of service. A certificate of the individual serving the 
document by personal delivery or by mail, setting forth the manner of 
service, will be proof of service.



Sec. 200.2012  Computation of time.

    (a) In computing any period of time under this part or in an order 
issued under this part, the time begins with the day following the act, 
event or default, and includes the last day of the period unless it is a 
Saturday, Sunday

[[Page 400]]

or legal holiday observed by the Federal Government, in which event it 
includes the next business day.
    (b) When the period of time allowed is less than 7 days, 
intermediate Saturdays, Sundays and legal holidays observed by the 
Federal Government will be excluded from the computation.
    (c) Where a document has been served or issued by placing it in the 
mail, an additional 5 days will be added to the time permitted for any 
response. This paragraph (c) does not apply to requests for hearing 
under Sec. 200.2002.



Sec. 200.2013  Motions.

    (a) An application to the ALJ for an order or ruling will be by 
motion. Motions will state the relief sought, the authority relied upon 
and the facts alleged, and will be filed with the ALJ and served on all 
other parties.
    (b) Except for motions made during a prehearing conference or at the 
hearing, all motions will be in writing. The ALJ may require that oral 
motions be reduced to writing.
    (c) Within 10 days after a written motion is served, or such other 
time as may be fixed by the ALJ, any party may file a response to such 
motion.
    (d) The ALJ may not grant a written motion before the time for 
filing responses has expired, except upon consent of the parties or 
following a hearing on the motion, but may overrule or deny such motion 
without awaiting a response.
    (e) The ALJ will make a reasonable effort to dispose of all 
outstanding motions prior to the beginning of the hearing.



Sec. 200.2014  Sanctions.

    (a) The ALJ may sanction a person, including any party or attorney, 
for failing to comply with an order or procedure, for failing to defend 
an action or for other misconduct that interferes with the speedy, 
orderly, or fair conduct of the hearing. Such sanctions will reasonably 
relate to the severity and nature of the failure or misconduct. Such 
sanction may include--
    (1) In the case of refusal to provide or permit discovery under the 
terms of this part, drawing negative factual inferences or treating such 
refusal as an admission by deeming the matter, or certain facts, to be 
established;
    (2) Prohibiting a party from introducing certain evidence or 
otherwise supporting a particular claim or defense;
    (3) Striking pleadings, in whole or in part;
    (4) Staying the proceedings;
    (5) Dismissal of the action;
    (6) Entering a decision by default; and
    (7) Refusing to consider any motion or other action that is not 
filed in a timely manner.
    (b) In civil money penalty cases commenced under section 1128A of 
the Social Security Act or under any provision in this part which 
incorporates section 1128A(c)(4) of the Social Security Act, the ALJ may 
also order the party or attorney who has engaged in any of the acts 
described in paragraph (a) of this section to pay attorney's fees and 
other costs caused by the failure or misconduct.



Sec. 200.2015  The hearing and burden of proof.

    (a) The ALJ will conduct a hearing on the record in order to 
determine whether the petitioner or respondent should be found liable 
under this part.
    (b) With regard to the burden of proof in civil money penalty cases 
under this part--
    (1) The respondent or petitioner, as applicable, bears the burden of 
going forward and the burden of persuasion with respect to affirmative 
defenses and any mitigating circumstances; and
    (2) The DHA bears the burden of going forward and the burden of 
persuasion with respect to all other issues.
    (c) The burden of persuasion will be judged by a preponderance of 
the evidence.
    (d) The hearing will be open to the public unless otherwise ordered 
by the ALJ for good cause shown.
    (e)(1) A hearing under this part is not limited to specific items 
and information set forth in the notice letter to the petitioner or 
respondent. Subject to the 15-day requirement under Sec. 200.2008, 
additional items and information, including aggravating or mitigating 
circumstances that arose or became known subsequent to the

[[Page 401]]

issuance of the notice letter, may be introduced by either party during 
its case-in-chief unless such information or items are--
    (i) Privileged; or
    (ii) Deemed otherwise inadmissible under Sec. 200.2017.
    (2) After both parties have presented their cases, evidence may be 
admitted on rebuttal even if not previously exchanged in accordance with 
Sec. 200.2008.



Sec. 200.2016  Witnesses.

    (a) Except as provided in paragraph (b) of this section, testimony 
at the hearing will be given orally by witnesses under oath or 
affirmation.
    (b) At the discretion of the ALJ, testimony (other than expert 
testimony) may be admitted in the form of a written statement. The ALJ 
may, at his or her discretion, admit prior sworn testimony of experts 
which has been subject to adverse examination, such as a deposition or 
trial testimony. Any such written statement must be provided to all 
other parties along with the last known address of such witnesses, in a 
manner that allows sufficient time for other parties to subpoena such 
witness for cross-examination at the hearing. Prior written statements 
of witnesses proposed to testify at the hearing will be exchanged as 
provided in Sec. 200.2008.
    (c) The ALJ will exercise reasonable control over the mode and order 
of interrogating witnesses and presenting evidence so as to:
    (1) Make the interrogation and presentation effective for the 
ascertainment of the truth;
    (2) Avoid repetition or needless consumption of time; and
    (3) Protect witnesses from harassment or undue embarrassment.
    (d) The ALJ will permit the parties to conduct such cross-
examination of witnesses as may be required for a full and true 
disclosure of the facts.
    (e) The ALJ may order witnesses excluded so that they cannot hear 
the testimony of other witnesses. This does not authorize exclusion of--
    (1) A party who is an individual;
    (2) In the case of a party that is not an individual, an officer or 
employee of the party appearing for the entity pro se or designated as 
the party's representative; or
    (3) An individual whose presence is shown by a party to be essential 
to the presentation of its case, including an individual engaged in 
assisting the attorney for the Inspector General (IG).



Sec. 200.2017  Evidence.

    (a) The ALJ will determine the admissibility of evidence.
    (b) Except as provided in this part, the ALJ will not be bound by 
the Federal Rules of Evidence. However, the ALJ may apply the Federal 
Rules of Evidence where appropriate, for example, to exclude unreliable 
evidence.
    (c) The ALJ must exclude irrelevant or immaterial evidence.
    (d) Although relevant, evidence may be excluded if its probative 
value is substantially outweighed by the danger of unfair prejudice, 
confusion of the issues, or by considerations of undue delay or needless 
presentation of cumulative evidence.
    (e) Although relevant, evidence must be excluded if it is privileged 
under Federal law.
    (f) Evidence concerning offers of compromise or settlement made in 
this action will be inadmissible to the extent provided in Rule 408 of 
the Federal Rules of Evidence.
    (g) Evidence of crimes, wrongs, or acts other than those at issue in 
the instant case is admissible in order to show motive, opportunity, 
intent, knowledge, preparation, identity, lack of mistake, or existence 
of a scheme. Such evidence is admissible regardless of whether the 
crimes, wrongs, or acts occurred during the statute of limitations 
period applicable to the acts which constitute the basis for liability 
in the case, and regardless of whether they were referenced in the DHA's 
notice sent in accordance with Sec. 200.1500.
    (h) The ALJ will permit the parties to introduce rebuttal witnesses 
and evidence.
    (i) All documents and other evidence offered or taken for the record 
will be open to examination by all parties, unless otherwise ordered by 
the ALJ for good cause shown.
    (j) The ALJ may not consider evidence regarding the issue of 
willingness and ability to enter into and successfully complete a 
corrective action plan when such evidence pertains to matters

[[Page 402]]

occurring after the submittal of the case to the Secretary. The 
determination regarding the appropriateness of any corrective action 
plan is not reviewable.



Sec. 200.2018  The record.

    (a) The hearing will be recorded and transcribed. Transcripts may be 
obtained following the hearing from the ALJ.
    (b) The transcript of testimony, exhibits and other evidence 
admitted at the hearing, and all papers and requests filed in the 
proceeding constitute the record for the decision by the ALJ and the 
Secretary.
    (c) The record may be inspected and copied (upon payment of a 
reasonable fee) by any person, unless otherwise ordered by the ALJ for 
good cause shown.
    (d) For good cause, the ALJ may order appropriate redactions made to 
the record.



Sec. 200.2019  Post-hearing briefs.

    The ALJ may require the parties to file post-hearing briefs. In any 
event, any party may file a post-hearing brief. The ALJ will fix the 
time for filing such briefs which are not to exceed 60 days from the 
date the parties receive the transcript of the hearing or, if 
applicable, the stipulated record. Such briefs may be accompanied by 
proposed findings of fact and conclusions of law. The ALJ may permit the 
parties to file reply briefs.



Sec. 200.2020  Initial decision.

    (a) The ALJ will issue an initial decision, based only on the 
record, which will contain findings of fact and conclusions of law.
    (b) The ALJ may affirm, increase or reduce the penalties, assessment 
proposed or imposed by the DHA.
    (c) The ALJ will issue the initial decision to all parties within 
120 days after the time for submission of post-hearing briefs and reply 
briefs, if permitted, has expired. The decision will be accompanied by a 
statement describing the right of any party to file a notice of appeal 
with the DAB and instructions for how to file such appeal. If the ALJ 
fails to meet the deadline contained in this paragraph (c), he or she 
will notify the parties of the reason for the delay and will set a new 
deadline.
    (d) Except as provided in paragraph (e) of this section, unless the 
initial decision is appealed to the DAB, it will be final and binding on 
the parties 30 days after the ALJ serves the parties with a copy of the 
decision. If service is by mail, the date of service will be deemed to 
be 5 days from the date of mailing.
    (e) If an extension of time within which to appeal the initial 
decision is granted under Sec. 200.2021(a), except as provided in Sec. 
200.2022(a), the initial decision will become final and binding on the 
day following the end of the extension period.



Sec. 200.2021  Appeal to DAB.

    (a) Any party may appeal the initial decision of the ALJ to the DAB 
by filing a notice of appeal with the DAB within 30 days of the date of 
service of the initial decision. The DAB may extend the initial 30 day 
period for a period of time not to exceed 30 days if a party files with 
the DAB a request for an extension within the initial 30 day period and 
shows good cause.
    (b) If a party files a timely notice of appeal with the DAB, the ALJ 
will forward the record of the proceeding to the DAB.
    (c) A notice of appeal will be accompanied by a written brief 
specifying exceptions to the initial decision and reasons supporting the 
exceptions. Any party may file a brief in opposition to exceptions, 
which may raise any relevant issue not addressed in the exceptions, 
within 30 days of receiving the notice of appeal and accompanying brief. 
The DAB may permit the parties to file reply briefs.
    (d) There is no right to appear personally before the DAB or to 
appeal to the DAB any interlocutory ruling by the ALJ, except on the 
timeliness of a filing of the hearing request.
    (e) The DAB will not consider any issue not raised in the parties' 
briefs, nor any issue in the briefs that could have been raised before 
the ALJ but was not.
    (f) If any party demonstrates to the satisfaction of the DAB that 
additional evidence not presented at such hearing is relevant and 
material and that there were reasonable grounds for the failure

[[Page 403]]

to adduce such evidence at such hearing, the DAB may remand the matter 
to the ALJ for consideration of such additional evidence.
    (g) The DAB may decline to review the case, or may affirm, increase, 
reduce, reverse, or remand any penalty or assessment determined by the 
ALJ.
    (h) The standard of review on a disputed issue of fact is whether 
the initial decision is supported by substantial evidence on the whole 
record. The standard of review on a disputed issue of law is whether the 
initial decision is erroneous.
    (i) Within 120 days after the time for submission of briefs and 
reply briefs, if permitted, has expired, the DAB will issue to each 
party to the appeal a copy of the DAB's decision and a statement 
describing the right of any petitioner or respondent who is found liable 
to seek judicial review.
    (j) Except with respect to any penalty or assessment remanded by the 
ALJ, the DAB's decision, including a decision to decline review of the 
initial decision, becomes final and binding 60 days after the date on 
which the DAB serves the parties with a copy of the decision. If service 
is by mail, the date of service will be deemed to be 5 days from the 
date of mailing.
    (k)(1) Any petition for judicial review must be filed within 60 days 
after the DAB serves the parties with a copy of the decision. If service 
is by mail, the date of service will be deemed to be 5 days from the 
date of mailing.
    (2) In compliance with 28 U.S.C. 2112(a), a copy of any petition for 
judicial review filed in any U.S. Court of Appeals challenging a final 
action of the DAB will be sent by certified mail, return receipt 
requested, to the General Counsel of the DHA. The petition copy will be 
time-stamped by the clerk of the court when the original is filed with 
the court.
    (3) If the General Counsel of the DHA receives two or more petitions 
within 10 days after the DAB issues its decision, the General Counsel of 
the DHA will notify the U.S. Judicial Panel on Multidistrict Litigation 
of any petitions that were received within the 10-day period.



Sec. 200.2022  Stay of initial decision.

    (a) In a CMP case under section 1128A of the Act, the filing of a 
respondent's request for review by the DAB will automatically stay the 
effective date of the ALJ's decision.
    (b)(1) After the DAB renders a decision in a CMP case, pending 
judicial review, the respondent may file a request for stay of the 
effective date of any penalty or assessment with the ALJ. The request 
must be accompanied by a copy of the notice of appeal filed with the 
Federal court. The filing of such a request will automatically act to 
stay the effective date of the penalty or assessment until such time as 
the ALJ rules upon the request.
    (2) The ALJ may not grant a respondent's request for stay of any 
penalty or assessment unless the respondent posts a bond or provides 
other adequate security.
    (3) The ALJ will rule upon a respondent's request for stay within 10 
days of receipt.



Sec. 200.2023  Harmless error.

    No error in either the admission or the exclusion of evidence, and 
no error or defect in any ruling or order or in any act done or omitted 
by the ALJ or by any of the parties, including Federal representatives 
or TRICARE contractors is ground for vacating, modifying, or otherwise 
disturbing an otherwise appropriate ruling or order or act, unless 
refusal to take such action appears to the ALJ or the DAB inconsistent 
with substantial justice. The ALJ and the DAB at every stage of the 
proceeding will disregard any error or defect in the proceeding that 
does not affect the substantial rights of the parties.



PART 202_RESTORATION ADVISORY BOARDS--Table of Contents



                     Subpart A_General Requirements

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

[[Page 404]]

                    Subpart B_Operating Requirements

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

  Subpart C_Administrative Support, Funding, and Reporting Requirements

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

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

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



                     Subpart A_General Requirements



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

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

[[Page 405]]

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

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



Sec. 202.2  Criteria for establishment.

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

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



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

    Prior to establishing a RAB, an installation shall notify potential 
stakeholders of its intent to form a RAB. In

[[Page 406]]

announcing the formation of a RAB, the installation should describe the 
purpose of a RAB and discuss opportunities for membership.



Sec. 202.4  Composition of a RAB.

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

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



                    Subpart B_Operating Requirements



Sec. 202.5  Creating a mission statement.

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



Sec. 202.6  Selecting co-chairs.

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

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



Sec. 202.7  Developing operating procedures.

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

[[Page 407]]

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



Sec. 202.8  Training RAB members.

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



Sec. 202.9  Conducting RAB meetings.

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

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

[[Page 408]]



Sec. 202.10  RAB adjournment and dissolution.

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

[[Page 409]]

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



Sec. 202.11  Documenting RAB activities.

    (a) The installation shall document information on the activities of 
a RAB in the Information Repository. These activities shall include, but 
are not limited to:
    (1) Installation's efforts to survey community interest in forming a 
RAB,
    (2) Steps taken to establish a RAB where there is sufficient and 
sustained community interest,
    (3) How the RAB relates to the overall community involvement 
program, and
    (4) Steps taken to adjourn, dissolve, or reestablish the RAB.

[[Page 410]]

    (b) When RAB input has been used in decision-making, it should be 
documented as part of the Administrative Record.

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



  Subpart C_Administrative Support, Funding, and Reporting Requirements



Sec. 202.12  Administrative support and eligible expenses.

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



Sec. 202.13  Technical assistance for public participation.

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



Sec. 202.14  Documenting and reporting activities and expenses.

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



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



Sec.
203.1 Authority.
203.2 Purpose and availability of referenced material.
203.3 Definitions.
203.4 Major components of the TAPP process.
203.5 TAPP process.
203.6 Cost principles.
203.7 Eligible applicants.
203.8 Evaluation criteria.
203.9 Submission of application.
203.10 Eligible activities.
203.11 Ineligible activities.
203.12 Technical assistance for public participation provider 
          qualifications.
203.13 Procurement.
203.14 RAB/TRC reporting requirements.
203.15 Method of payment.
203.16 Record retention and audits.
203.17 Technical assistance provider reporting requirements.
203.18 Conflict of interest and disclosure requirements.
203.19 Appeals process.

[[Page 411]]


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

    Authority: 10 U.S.C. 2705.

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



Sec. 203.1  Authority.

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



Sec. 203.2  Purpose and availability of referenced material.

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



Sec. 203.3  Definitions.

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

[[Page 412]]

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

[[Page 413]]

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



Sec. 203.4  Major components of the TAPP process.

    (a) The Department of Defense will issue purchase orders to 
technical assistance, facilitation, training, and other public 
participation assistance providers subject to the purchase limit per 
order as resources continue to be available. If multiple purchase orders 
are needed to assist community members of a particular RAB or TRC, the 
combined sum of these purchase orders cannot exceed $100,000 or, during 
any one year, the lesser of $25,000 or 1 percent of the installation's 
total projected environmental restoration cost-to-complete. Note that 
these limitations refer to the maximum allowable technical assistance 
funding per RAB/TRC. Resources available within a given year may vary. 
These limitations apply unless a waiver is granted by the DoD Component 
Secretary or equivalent for the installation in question. The $100,000 
total and $25,000 annual limitations may be waived, as appropriate, to 
reflect the complexity of response action, the nature and extent of 
contamination at the installation, the level of activity at the 
installation, projected total needs as identified by the TAPP recipient, 
the size and diversity of the affected population, and the ability of 
the TAPP recipient to identify and raise funds from other sources.
    (b) Community members of the RAB/TRC will provide a description of 
the services requested (TAPP Project Description) and, if desired, the 
names of one or more proposed technical assistance providers to the DoD 
RAB Co-Chair, who will ensure the application is submitted to the 
installation commander or other designated authority and to the 
appropriate DoD contracting office. Technical assistance providers 
proposed by the community members of a RAB or TRC at each DoD 
installation that meets the minimum set of organizational qualifications 
guidelines provided by the Department of Defense in Sec. 203.12 of this 
part will be added to the governments list of bidders for the proposed 
procurement.

[[Page 414]]



Sec. 203.5  TAPP process.

    This section provides an overview of the TAPP process. Specific 
details referred to in this section can be found in subsequent sections 
of this part.
    (a) TAPP funding. Funding for this TAPP program will come from the 
Environmental Restoration Accounts established for Army, Navy, and Air 
Force for operational installations. The funding for Defense Agencies' 
operating installations will be from the Defense-Wide Environmental 
Restoration Account. Funding will be from the component's base closure 
account for transferring or closing installations. Funding for Formerly 
Used Defense Sites will come from the Environmental Restoration Account 
established for Formerly Used Defense Sites. After justification of the 
TAPP proposal, each DoD Component will make funds available from their 
individual installation's environmental restoration or BRAC accounts, 
considering a number of factors related to the restoration program at 
the installation and its impact upon the community. These factors 
include, but are not limited to:
    (1) Closure status.
    (2) Budget.
    (3) Installation restoration program status.
    (4) Presence (or absence) of alternate funding.
    (5) Relative risk posed by sites at the installation.
    (6) Type of task to be funded.
    (7) Community concern.
    (8) Available funding.
    (b) Identification of proposed TAPP project. Eligible applicants of 
RABs and TRCs, established in Sec. 203.7 of this part, should determine 
whether a TAPP project is required to assist the community members of 
the RAB or TRC to interpret information regarding the nature and extent 
of contamination or the proposed remedial actions. Eligibility 
requirements for TAPP projects are described in Sec. Sec. 203.10 and 
203.11 of this part. In keeping with the requirements of 10 U.S.C. 
2705(e), the RAB or TRC must be able to demonstrate that the technical 
expertise necessary for the proposed TAPP project is not available 
through the Federal, State, or local agencies responsible for overseeing 
environmental restoration at the installation, or that the selection of 
an independent provider will contribute to environmental restoration 
activities and the community acceptance of such activities. In addition, 
the Department of Defense encourages the RAB or TRC to seek other 
available sources of assistance prior to submitting a request for TAPP 
in order to preserve limited resources. These sources include DoD's 
installation restoration contractor, or other DoD contractors or 
personnel, EPA or state regulatory personnel, volunteer services from 
local universities or other experts, or assistance from state and local 
health and environmental organizations.
    (c) TAPP project request. The RAB or TRC should notify the 
installation of its intent to pursue TAPP upon the determination that 
other sources of assistance are unavailable or unlikely to contribute to 
the community acceptance of environmental restoration activities at the 
installation and should prepare a formal request specifying the type of 
assistance required and, if desired, one or more sources for this 
assistance. Details concerning this request are stated in Sec. 203.9 of 
this part. The RAB or TRC must certify to the Department of Defense that 
the TAPP request represents a request by a majority of the community 
members of the RAB or TRC. The RAB or TRC should ensure that the request 
meets the eligibility requirements specified in Sec. Sec. 203.10 and 
203.11 of this part. Furthermore, the RAB or TRC may outline additional 
criteria for the Department of Defense to consider in the selection of a 
provider (such as knowledge of local environmental conditions or 
specific technical issues, a prior work history within the study area 
which has relevant specific circumstances or unique challenges, or other 
relevant expertise or capabilities), keeping in mind that providers must 
meet the minimum technical qualifications outlined in Sec. 203.12 of 
this part. The formal request should be submitted to the installation 
commander or designated decision authority, either directly, or through 
the DoD RAB Co-chair. The installation commander, or other designated 
decision authority, will review

[[Page 415]]

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



Sec. 203.6  Cost principles.

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



Sec. 203.7  Eligible applicants.

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



Sec. 203.8  Evaluation criteria.

    The Department of Defense will begin the TAPP procurement process 
only after it has determined that all eligibility and responsibility 
requirements listed in Sec. Sec. 203.6, 203.7, and 203.9 of this part 
are met, and after review of the specific provider qualifications as 
submitted in the narrative section of the application. In addition, the 
proposed TAPP project must meet the eligibility criteria as specified in 
Sec. Sec. 203.10 and 203.11 of this part. Projects that fail to meet 
those requirements relating to the relevance of the proposed project to 
the restoration activities at the installation will not be approved.

[[Page 416]]



Sec. 203.9  Submission of application.

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



Sec. 203.10  Eligible activities.

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



Sec. 203.11  Ineligible activities.

    The following activities are ineligible for assistance under the 
TAPP program:
    (a) Litigation or underwriting legal actions, such as paying for 
attorney fees or paying for a technical assistance provider to assist an 
attorney in preparing legal action or preparing for and serving as an 
expert witness at any legal proceeding regarding or affecting the site.

[[Page 417]]

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



Sec. 203.12  Technical assistance for public participation provider qualifications.

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



Sec. 203.13  Procurement.

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



Sec. 203.14  RAB/TRC reporting requirements.

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



Sec. 203.15  Method of payment.

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



Sec. 203.16  Record retention and audits.

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

[[Page 418]]



Sec. 203.17  Technical assistance provider reporting requirements.

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



Sec. 203.18  Conflict of interest and disclosure requirements.

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



Sec. 203.19  Appeals process.

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

[[Page 419]]



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


[[Page 420]]


[GRAPHIC] [TIFF OMITTED] TR02FE98.007


[[Page 421]]



                           PART 207 [RESERVED]



PART 208_NATIONAL SECURITY EDUCATION PROGRAM (NSEP) 
AND NSEP SERVICE AGREEMENT--Table of Contents



Sec.
208.1 Purpose.
208.2 Applicability.
208.3 Definitions.
208.4 Policy.
208.5 Responsibilities.
208.6 Procedures.

    Authority: 50 U.S.C. 1901-1912, 50 U.S.C. 1903, 50 U.S.C. chapter 
37.

    Source: 81 FR 87450, Dec. 5, 2016, unless otherwise noted.



Sec. 208.1  208.1 Purpose.

    This part:
    (a) Implements the responsibilities of the Secretary of Defense for 
administering NSEP.
    (b) Updates DoD policy, assigns responsibilities, and prescribes 
procedures and requirements for administering and executing the NSEP 
service agreement in accordance with 50 U.S.C. chapter 37.
    (c) Modifies requirements related to the NSEP service agreement.
    (d) Assigns oversight of NSEP to the Defense Language and National 
Security Education Office.



Sec. 208.2  Applicability.

    This part applies to:
    (a) The Office of the Secretary of Defense, the Military 
Departments, the Chairman of the Joint Chiefs of Staff and the Joint 
Staff, the Combatant Commands, the Office of the Inspector General of 
the Department of Defense, the Defense Agencies, the DoD Field 
Activities, and all other organizational entities in the DoD (referred 
to collectively in this part as the ``DoD Components'').
    (b) The administrative agent, and all recipients of awards by NSEP.



Sec. 208.3  Definitions.

    These terms and their definitions are for the purpose of this part.
    Administrative agent. Organization that will administer, direct, and 
manage resources for NSEP.
    Boren Fellowship. A competitive award granted for graduate study 
under NSEP.
    Boren Scholarship. A competitive award granted for undergraduate 
study abroad under NSEP.
    Critical area. Determined by the Secretary of Defense, in 
consultation with the members of the National Security Education Board, 
in accordance with 50 U.S.C. chapter 37 and 50 U.S.C. 1903.
    Critical foreign language. Determined by the Secretary of Defense, 
in consultation with the members of the National Security Education 
Board in accordance with 50 U.S.C. chapter 37.
    Deferral of the NSEP service agreement. Official NSEP documentation 
signed by the Director, NSEP, or his or her designee, by which an NSEP 
award recipient pursuing approved, qualified further education is 
allowed to postpone meeting the service deadline.
    (1) A deferral reschedules the date by which an NSEP award recipient 
must begin to fulfill service.
    (2) Qualified further education includes, but is not limited to, no 
less than half-time enrollment in any degree-granting, accredited 
institution of higher education worldwide or participation in an 
academic fellowship program (e.g., Fulbright Fellowship, Thomas R. 
Pickering Foreign Affairs Fellowship).
    (3) A deferral is calculated by first calculating the length of 
enrollment in the degree program from start date to anticipated 
graduation date, and then adding the length of enrollment in the degree 
program to the service deadline.
    (4) Approvals of deferrals will be considered on a case-by-case 
basis.
    Extension of the NSEP service agreement. Official NSEP documentation 
signed by the ASD(R), through the DASD(FE&T), by which an NSEP award 
recipient who has completed award requirements, reached the service 
deadline, and is actively seeking to fulfill the NSEP service agreement 
in a well-documented manner is allowed to extend the service deadline. 
An extension reschedules the date by which an NSEP award recipient must 
complete the service required in the NSEP service agreement.
    Intelligence Community. The U.S. Intelligence Community is a 
coalition of

[[Page 422]]

17 agencies and organizations within the executive branch that work both 
independently and collaboratively to gather the intelligence necessary 
to conduct foreign relations and national security activities.
    Language proficiency. The U.S. Government relies on the Interagency 
Language Roundtable (ILR) scale to determine language proficiency. 
According to the ILR scale:
    (1) 0 is No Proficiency.
    (2) 0+ is Memorized Proficiency.
    (3) 1 is Elementary Proficiency.
    (4) 1+ is Elementary Proficiency, Plus.
    (5) 2 is Limited Working Proficiency.
    (6) 2+ is Limited Working Proficiency, Plus.
    (7) 3 is General Professional Proficiency.
    (8) 3+ is General Professional Proficiency, Plus.
    (9) 4 is Advanced Professional Proficiency.
    (10) 4+ is Advanced Professional Proficiency, Plus.
    (11) 5 is Functional Native Proficiency.
    NSEP Service Approval Committee. Committee of key NSEP staff members 
who review the merits of all requests for service credit, deferrals, 
extensions, or waivers of the NSEP service agreement, including 
adjudication of all cases involving award recipients who decline job 
offers, in order to provide recommendations to the Director, NSEP.
    Other federal agencies. Includes any federal government agency, 
department, bureau, office or any other federal government organization 
of any nature other than the Department of Defense or any component, 
agency, department, field activity or any other subcomponent of any kind 
within or subordinate to the Department of Defense.
    Program end date. Official end of an NSEP award recipient's program, 
as set forth within the individual's NSEP service agreement.
    Request of service credit in fulfillment of the NSEP service 
agreement. Written request made through submission of a DD Form 2753 to 
the NSEP office, documenting how employment an NSEP award recipient held 
or holds complies with fulfillment of the NSEP service agreement.
    Reserve Officer Training Corps (ROTC). College program offered at 
colleges and universities across the United States that prepares young 
adults to become officers in the U.S. Military. In exchange for a paid 
college education and a guaranteed post-college career, cadets commit to 
serve in the Military after graduation. Each Service branch has its own 
take on ROTC.
    Satisfactory academic progress. Maintenance of academic standards at 
both home and host institution(s) for every NSEP award recipient for the 
duration of the study program.
    Service deadline. Date by which NSEP award recipient must begin to 
fulfill the NSEP service agreement.
    Waiver of the NSEP service agreement. Official NSEP documentation, 
signed by the ASD(R), through the DASD(FE&T), by which an NSEP award 
recipient is relieved of responsibilities associated with the NSEP 
service agreement.
    Work in fulfillment of the NSEP service agreement. Upon completion 
of the NSEP award recipient's study program, such individual must seek 
employment in the DoD, Department of Homeland Security (DHS), Department 
of State (DOS), or the Intelligence Community, or if no suitable 
position is available, anywhere in the U.S. Government in a position 
with national security responsibilities. If such individual is 
unsuccessful in finding a federal position after making a good faith 
effort to do so, award recipient agrees to seek employment in the field 
of education in a position related to the study supported by such 
scholarship or fellowship. The award recipient further agrees to fulfill 
the service requirement, as described in this rule.



Sec. 208.4  Policy.

    It is DoD policy that:
    (a) NSEP assist in making available to DoD and other federal 
entities, as applicable, personnel possessing proficiency in languages 
and foreign regional expertise critical to national security by 
providing scholarships and fellowships pursuant to 50 U.S.C. 1902(a). 
These scholarships and fellowships will be awarded to:

[[Page 423]]

    (1) Students who are U.S. citizens, to pursue qualifying 
undergraduate and graduate study in domestic and foreign education 
systems to assist in meeting national security needs for professionals 
with in-depth knowledge of world languages and cultures, and who enter 
into an NSEP service agreement as required by 50 U.S.C. 1902(b); or
    (2) Students who are U.S. citizens who are native speakers of a 
foreign language identified as critical to the national security of the 
United States, but who are not proficient at a professional level in the 
English language with respect to reading, writing, and other skills, to 
enable such students to pursue English language studies at institutions 
of higher education. Recipients must agree to enter into an NSEP service 
agreement as required by 50 U.S.C. 1902(b).
    (b) Grants will be awarded to institutions of higher education for 
programs in critical areas pursuant to 50 U.S.C. 1902(a) and 1902(f) to 
implement a national system of programs to produce advanced language 
expertise critical to the national security of the United States.
    (c) An NSEP award recipient must enter into an NSEP service 
agreement before receipt of an award as required by 50 U.S.C. chapter 
37. The award recipient must agree to maintain satisfactory academic 
progress and work in fulfillment of the NSEP service agreement until all 
service requirements are satisfied.
    (d) All NSEP award recipients who are government employees or 
members of the uniformed services at the time of award must confirm that 
they have resigned from such employment or service before receiving 
support for their NSEP-funded overseas study. These stipulations apply 
to all individuals, including employees of a department, agency, or 
entity of the U.S. Government and members of the uniformed services, 
including members of a Reserve Component of the uniformed services. ROTC 
participants who are also members of a Reserve Component must be in an 
inactive, non-drilling status during the course of their NSEP-funded 
overseas study.
    (e) Neither DoD nor the U.S. Government is obligated to provide, or 
offer work or employment to, award recipients as a result of 
participation in the program. All federal agencies are encouraged to 
assist in placing NSEP award recipients upon successful completion of 
the program.



Sec. 208.5  Responsibilities.

    (a) Under the authority, direction, and control of the Under 
Secretary of Defense for Personnel and Readiness (USD(P&R)), the ASD(R):
    (1) Develops programs, processes, and policies to support NSEP award 
recipients in fulfilling their NSEP service agreement through 
internships or employment in federal service pursuant to 50 U.S.C. 
chapter 37.
    (2) Determines, pursuant to 50 U.S.C. 1902(a), after consultation 
with the National Security Education Board, which countries, languages, 
and disciplines are critical and in which there are deficiencies of 
knowledgeable personnel within federal entities.
    (b) Under the authority, direction, and control of the USD(P&R) 
through the ASD(R), and in coordination with the Director, Department of 
Defense Human Resources Activity (DoDHRA), the DASD(FE&T), or his or her 
designee:
    (1) Makes available competitive scholarship, fellowship, and English 
for Heritage Language Speakers (EHLS) awards to U.S. citizens who wish 
to engage in study for the purposes of national security in accordance 
with 50 U.S.C. chapter 37.
    (2) Manages, oversees, and monitors compliance of NSEP service 
agreements on behalf of the Secretary of Defense.
    (3) Advises NSEP award recipients who are seeking federal or 
national security positions on how to fulfill their NSEP service 
agreement in national security positions.
    (4) Maintains documentation of successful completion of federal 
service or initiates debt collection procedures for those NSEP 
recipients who fail to comply with the NSEP service agreement.
    (5) Works with agencies or offices in the U.S. Government to 
identify potential employment opportunities for

[[Page 424]]

NSEP award recipients and make employment opportunities and information 
readily available to all award recipients.
    (6) Approves or disapproves all DD Form 2573 written requests for 
service credit, deferrals, extensions, or waivers of the NSEP service 
agreement, including adjudication of all cases involving award 
recipients who decline job offers.
    (c) Under the authority, direction, and control of the USD(P&R), and 
in coordination with the DASD(FE&T), the Director, DoDHRA:
    (1) Provides administrative and operational support to NSEP.
    (2) Provides fiscal management and oversight to ensure all funds 
provided for NSEP are separately and visibly accounted for in the DoD 
budget.



Sec. 208.6  Procedures.

    (a) NSEP award recipients. The award recipient of any scholarship or 
fellowship award through NSEP will:
    (1) Maintain satisfactory academic progress in the course of study 
for which assistance is provided, according to the regularly prescribed 
standards and practices of the institution in which the award recipient 
is matriculating.
    (2) As a condition of receiving an award, sign an NSEP service 
agreement as required by 50 U.S.C. chapter 37, which among other 
requirements, must acknowledge an understanding and agreement by the 
award recipient that failure to maintain satisfactory academic progress 
constitutes grounds upon which the award may be terminated and trigger 
the mandatory requirement to return to the U.S. Treasury the 
scholarship, fellowship, or EHLS funds provided to the award recipient.
    (3) Notify the DASD(FE&T) within ten business days if advised of 
failure to maintain academic progress by the institution of 
matriculation.
    (4) Notify the DASD(FE&T) in a timely manner and in advance of the 
service deadline should any request for deferral, extension, or waiver 
become necessary.
    (i) Deferrals. NSEP award recipients actively seeking to fulfill the 
NSEP service agreement in a well-documented manner may request approval 
of a one-year extension of their service deadline. Approvals of 
deferrals for pursuit of education will be considered on a case-by-case 
basis. Renewal of a deferral may be granted if adequately justified.
    (ii) Extensions. A thorough outline describing all further plans to 
complete the NSEP service agreement must accompany all extension 
requests. No more than two extensions may be granted to an NSEP award 
recipient.
    (iii) Waivers. (A) In extraordinary circumstances, an NSEP award 
recipient may be relieved of responsibilities associated with the NSEP 
service agreement. As a result of receiving a waiver, the award 
recipient will no longer receive job search assistance from NSEP; is no 
longer a beneficiary of the special hiring advantages available to award 
recipients who have a service requirement; and will not be eligible to 
receive NSEP letters of certification, or endorsements or 
recommendations. Upon request, the NSEP office will continue to certify 
that the award recipient received an NSEP scholarship or fellowship.
    (B) The DASD(FE&T), will consider requests for extensions and 
waivers of the NSEP service agreement only under special circumstances 
as defined in paragraph (b) of this section. The request must set forth 
the basis, situation, and causes which support the requested action. The 
award recipient must submit requests electronically on www.nsepnet.org 
or to [email protected]. Final approval of work in fulfillment of the NSEP 
service agreement, deferrals, extensions, and waivers rest with, and are 
at the discretion of, the DASD(FE&T).
    (5) Immediately upon successful completion of the award program and 
either completion of the degree for which the award recipient is 
matriculated or withdrawal from such degree program, begin the federal 
job search. Award recipients should concurrently seek positions within 
DoD, any element of the Intelligence Community, the DHS, or DOS.
    (6) Work to satisfy all service requirements in accordance with 
applicable NSEP service agreements until all NSEP service requirements 
are satisfied. Work in fulfillment of the NSEP

[[Page 425]]

service agreement must be wholly completed within five years of the 
award recipient's first date of service unless an approved deferral or 
extension has been granted.
    (7) Work for the total period of time specified in the NSEP service 
agreement either consecutively in one organization, or through follow-on 
employment in two or more organizations.
    (8) Repay the U.S. Treasury the award funds provided to the award 
recipient if the requirements of the NSEP service agreement are not met.
    (9) Submit DD Form 2753 to NSEP no later than one month after 
termination of the period of study funded by NSEP and annual reports 
thereafter until the NSEP service requirement is satisfied. The DD Form 
2753 will include:
    (i) Any requests for deferrals, extensions, or waivers with adequate 
support for such requests.
    (ii) The award recipient's current status (e.g., not yet graduated 
from, or terminated enrollment in, the degree program pursued while 
receiving NSEP support; engaged in work in fulfillment of the 
requirement.)
    (iii) Updated contact information.
    (10) Notify the ASD(R), through the DASD(FE&T), within ten business 
days of any changes to the award recipient's mailing address.
    (b) Procedures and requirements applicable to NSEP aard recipients--
(1) NSEP service agreement. Award recipients of any scholarship, 
fellowship, or EHLS award through this program must comply with the 
terms of the NSEP service agreement they signed. NSEP awards entered 
into before the date of this part will be governed by the laws, 
regulations, and policies in effect at the time that the award was made. 
The NSEP service agreement for recipients awarded as of the date of this 
part will:
    (i) In accordance with 50 U.S.C. 1902(b) outlines requirements for 
NSEP award recipients to fulfill their federal service requirement 
through work in positions that contribute to the national security of 
the United States. An emphasis is placed on work within one of four 
organizations: DoD, any element of the Intelligence Community, DHS, or 
DOS. On a case-by-case basis, NSEP may consider employment with a 
federal contractor of one of these four priority organizations as 
meeting the service requirement should the award recipient provide 
adequate documentary evidence that the salary for the position is funded 
by the U.S. Government.
    (ii) Stipulate that absent the availability of a suitable position 
in the four priority organizations or a contractor thereof, award 
recipients may satisfy the service requirement by serving in any federal 
agency or office in a position with national security responsibilities. 
It will also stipulate that absent the availability of a suitable 
position in DoD, any element of the Intelligence Community, DHS, DOS, a 
contractor thereof, or any federal agency with national security 
responsibilities, award recipients may satisfy the service requirement 
by working in the field of education in a discipline related to the 
study supported by the program if the recipient satisfactorily 
demonstrates to the Secretary of Defense through the Director, NSEP, 
that no position is available in the departments, agencies, and offices 
covered by paragraph (b)(1)(i) of this section.
    (2) Implementation. The NSEP service agreement will be implemented 
as follows:
    (i) Prior to receiving assistance, the award recipient must sign an 
NSEP service agreement. The award recipient will submit to the NSEP 
Administrative Agent, in advance of program of study start date, any 
proposed changes to the approved award program (i.e., course and 
schedule changes, withdrawals, course or program incompletions, 
unanticipated or increased costs).
    (ii) The minimum length of service requirement for undergraduate 
scholarship, graduate fellowship, and EHLS award recipients is one year. 
The duration of the service requirement for graduate fellowship award 
recipients is equal to the duration of assistance provided by NSEP.
    (iii) In accordance with 50 U.S.C. 1902(b), undergraduate 
scholarship students must begin fulfilling the NSEP service agreement 
within three years of completion or termination of their undergraduate 
degree program.

[[Page 426]]

    (iv) In accordance with 50 U.S.C. 1902(b), graduate fellowship 
students must begin fulfilling the NSEP service agreement within two 
years of completion or termination of their graduate degree program.
    (v) In accordance with 50 U.S.C. 1902(b), EHLS award recipients must 
begin fulfilling the service requirement within three years of 
completion of their program.
    (vi) The award recipient must accept a reasonable offer of 
employment, as defined by the Director, NSEP, or his or her designee, in 
accordance with the NSEP service agreement, at a salary deemed by the 
hiring organization as commensurate with the award recipient's education 
level, and consistent with the terms and conditions of the NSEP service 
agreement.
    (vii) The award recipient will annually submit a DD Form 2753 to 
NSEP until all NSEP service agreement requirements are satisfied. The DD 
Form 2753 must be received and reviewed by the NSEP Service Approval 
Committee. The receipt of a completed DD Form 2753 will be acknowledged 
through official correspondence from NSEP. Award recipients who do not 
submit the DD Form 2753 as required will be notified by NSEP of the 
intent to pursue collection action.
    (viii) If the award recipient fails to maintain satisfactory 
academic progress for any term in which assistance is provided, 
probationary measures of the host institution will apply to the award 
recipient. Failure to meet the institution's requirements to resume 
satisfactory academic progress within the prescribed guidelines of the 
institution will result in the termination of assistance to the award 
recipient.
    (ix) Extenuating circumstances, such as illness of the award 
recipient or a close relative, death of a close relative, or an 
interruption of study caused by the host institution, may be considered 
acceptable reasons for non-satisfactory academic progress. The award 
recipient must notify the NSEP Administrative Agent of any extenuating 
circumstances within 10 business days of occurrence. The NSEP 
Administrative Agent will review these requests to determine what course 
of action is appropriate and make a recommendation to NSEP for final 
determination. The DASD(FE&T) will upon receipt of the NSEP 
Administrative Agent recommendation, determine by what conditions to 
terminate or reinstate the award to the award recipient.
    (x) NSEP award recipients may apply to the DASD(FE&T) for a deferral 
of the NSEP service agreement requirement if pursuing qualified further 
education.
    (xi) NSEP award recipients may apply to the DASD(FE&T), to receive 
an extension of the NSEP service agreement requirement if actively 
seeking to fulfill the NSEP service agreement in a well-documented 
manner.
    (xii) In extraordinary circumstances an NSEP award recipient may 
request a waiver to be relieved of responsibilities associated with the 
NSEP service agreement. Conditions for requesting a waiver to the NSEP 
service agreement may include:
    (A) Situations in which compliance is either impossible or would 
involve extreme hardship to the award recipient.
    (B) Interruptions in service due to temporary physical or medical 
disability or other causes beyond the award recipient's control.
    (C) Unreasonable delays in the hiring process not caused by the 
award recipient, including delays in obtaining a security clearance if 
required for employment.
    (D) Hiring freezes that adversely affect award recipients who are 
seeking positions with the U.S. Government.
    (E) Permanent physical or medical disability that prevent the award 
recipient from fulfilling the obligation.
    (F) Inability to complete the NSEP service agreement due to 
terminations or interruptions of work beyond the award recipient's 
control.
    (G) Death of the award recipient.
    (xiii) In cases where assistance to the award recipient is 
terminated, the amount owed to the U.S. Government is equal to the 
support received from NSEP. Repayment to the U.S. Treasury must be made 
within a period not to exceed six months from expiration of the service 
deadline. Noncompliance with repayment requirements will result in the 
initiation of standard U.S.

[[Page 427]]

Government collection procedures to obtain payment for overdue 
indebtedness, unless a waiver is specifically granted by the DASD(FE&T). 
Further job search assistance to an award recipient will be denied if 
any outstanding debt remains unpaid as a result of an award termination.
    (A) Repayment to the U.S. Treasury for the amount of assistance 
provided becomes due, either in whole or in part, if the award recipient 
fails to fulfill the NSEP service agreement. Award recipients who do not 
submit the SAR as required will be notified by NSEP of the intent to 
pursue collection action. Noncompliance with repayment requirements will 
result in the initiation of standard U.S. Government collection 
procedures to obtain payment for overdue indebtedness, unless a waiver 
is specifically granted by the DASD(FE&T).
    (B) Repayment recovery procedures will include one or a combination 
of the following:
    (1) Voluntary repayment schedule arranged between the award 
recipient and the administrative agent.
    (2) Deduction from accrued pay, compensation, amount of retirement 
credit, or any other amount due the employee from the U.S. Government.
    (3) Such other methods as are provided by law for recovery of 
amounts owed to the U.S. Government.

                           PART 209 [RESERVED]



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



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

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

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



Sec. 210.1  Purpose.

    This part establishes policies pursuant to the requirements of DoD 
Directive 6055.4, \1\ ``Department of Defense Traffic Safety Program,'' 
November 7, 1978, and to authority delegated to the Secretary of Defense 
under Enclosure 1 for the enforcement, on DoD military installations, of 
those state vehicular and pedestrian traffic laws that cannot be 
assimilated under U.S.C., Title 18, section 13.
---------------------------------------------------------------------------

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

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



Sec. 210.2  Applicability and scope.

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



Sec. 210.3  Policy.

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

[[Page 428]]

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

    \2\ See footnote 1 to Sec. 210.1.
---------------------------------------------------------------------------

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

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



Sec. 210.4  Responsibilities.

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



PART 211_MISSION COMPATIBILITY EVALUATION PROCESS--Table of Contents



                            Subpart A_General

Sec.
211.1 Purpose.
211.2 Applicability.
211.3 Definitions.

                            Subpart B_Policy

211.4 Policy.
211.5 Responsibilities.

                 Subpart C_Project Evaluation Procedures

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

                  Subpart D_Communications and Outreach

211.11 Communications with the Clearinghouse.
211.12 Public outreach.

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

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



                            Subpart A_General



Sec. 211.1  Purpose.

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



Sec. 211.2  Applicability.

    This part applies to:
    (a) The Office of the Secretary of Defense, the Military 
Departments, the Chairman of the Joint Chiefs of Staff and the Joint 
Staff, the Combatant Commands, the Office of the Inspector General of 
the Department of Defense, the Defense Agencies, the DoD Field 
Activities, and all other organizational entities in the Department of 
Defense (hereafter referred to collectively as the ``DoD Components'').
    (b) Persons filing applications with the Secretary of Transportation 
for proposed projects pursuant to 49 U.S.C. 44718, when such 
applications are received by the Department of Defense from the 
Secretary of Transportation.
    (c) A State, Indian tribal, or local official, a landowner, or a 
developer of a renewable energy development or other energy project 
seeking a review of such project by DoD.
    (d) Members of the general public from whom comments are received on 
notices of actions being taken by the Department of Defense under this 
part.

[[Page 429]]

    (e) The United States.



Sec. 211.3  Definitions.

    Adverse impact on military operations and readiness. Any adverse 
impact upon military operations and readiness, including flight 
operations research, development, testing, and evaluation and training, 
that is demonstrable and is likely to impair or degrade the ability of 
the armed forces to perform their warfighting missions.
    Applicant. An entity filing an application with the Secretary of 
Transportation pursuant to 49 U.S.C. 44718, and whose proper application 
has been provided by the Secretary of Transportation to the 
Clearinghouse.
    Armed forces. This term has the same meaning as provided in 10 
U.S.C. 101(a)(4) but does not include the Coast Guard.
    Clearinghouse. The DoD Siting Clearinghouse, established under the 
Deputy Under Secretary of Defense (Installations & Environment).
    Congressional defense committees. The--
    (1) Committee on Armed Services and the Committee on Appropriations 
of the Senate; and
    (2) Committee on Armed Services and the Committee on Appropriations 
of the House of Representatives.
    Days. All days are calendar days but do not include Federal 
holidays.
    Landowner. A person, partnership, corporation, or other legal 
entity, that owns a fee interest in real property on which a proposed 
project is planned to be located.
    Military readiness. Includes any training or operation that could be 
related to combat readiness, including testing and evaluation 
activities.
    Mitigation. Actions taken by either or both the DoD or the applicant 
to ensure that a project does not create an unacceptable risk to the 
national security of the United States.
    Proposed project. A proposed project is the project as described in 
the application submitted to the Secretary of Transportation pursuant to 
49 U.S.C. 44718 and transmitted by the Secretary of Transportation to 
the Clearinghouse.
    Requester. A developer of a renewable energy development or other 
energy project, a State, Indian tribal, or local official, or a 
landowner seeking an informal review by the DoD of a project.
    Section 358. Section 358 of the Ike Skelton National Defense 
Authorization Act for Fiscal Year 2011, Public Law 111-383.
    Unacceptable risk to the national security of the United States. The 
construction, alteration, establishment, or expansion, or the proposed 
construction, alteration, establishment, or expansion, of a structure or 
sanitary landfill that would:
    (1) Endanger safety in air commerce, related to the activities of 
the DoD.
    (2) Interfere with the efficient use and preservation of the 
navigable airspace and of airport traffic capacity at public-use 
airports, related to the activities of the DoD.
    (3) Significantly impair or degrade the capability of the DoD to 
conduct training, research, development, testing, and evaluation, and 
operations or to maintain military readiness.
    United States. The several States, the District of Columbia, the 
Commonwealths of Puerto Rico and the Northern Mariana Islands, American 
Samoa, Guam, Midway and Wake Islands, the U.S. Virgin Islands, any other 
territory or possession of the United States, and associated navigable 
waters, contiguous zones, and territorial seas and the airspace of those 
areas.



                            Subpart B_Policy



Sec. 211.4  Policy.

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

[[Page 430]]



Sec. 211.5  Responsibilities.

    (a) Pursuant to subsection (e)(4) of section 358, the Deputy 
Secretary of Defense is designated as the senior officer. Only the 
senior officer may convey to the Secretary of Transportation a 
determination that a project filed with the Secretary of Transportation 
pursuant to 49 U.S.C. 44718 would result in an unacceptable risk to the 
national security of the United States.
    (b) Pursuant to subsection (b)(1) of section 358, the Under 
Secretary of Defense for Acquisition, Technology, and Logistics is 
designated as the senior official. Only the senior official may provide 
to the senior officer a recommendation that the senior officer determine 
a project filed with the Secretary of Transportation pursuant to 49 
U.S.C. 44718 would result in an unacceptable risk to the national 
security of the United States.
    (c) Pursuant to subsection (e)(1) of section 358, the Deputy Under 
Secretary of Defense (Installations & Environment), in coordination with 
the Deputy Assistant Secretary of Defense (Readiness) and the Principal 
Deputy Director, Operational Test and Evaluation, shall review a proper 
application for a project filed pursuant to 49 U.S.C. 44718 and received 
from the Secretary of Transportation and provide a preliminary 
assessment of the level of risk of adverse impact on military operations 
and readiness that would arise from the project and the extent of 
mitigation that may be needed to address such risk.
    (d) Pursuant to subsection (b)(1) of section 358, the Office of the 
Deputy Under Secretary of Defense (Installations & Environment) is 
designated as the lead organization. Under the authority, direction, and 
control of the Under Secretary of Defense for Acquisition, Technology, 
and Logistics, there is, within the Office of the Deputy Under 
Secretary, a DoD Siting Clearinghouse. The Clearinghouse:
    (1) Shall have a governing board organized in accordance with DoD 
Instruction 5105.18, DoD Intergovernmental and Intragovernmental 
Committee Management Program.
    (2) Has an executive director who is a Federal Government employee, 
appointed by the Deputy Under Secretary of Defense (Installations & 
Environment).
    (3) Performs such duties as assigned in this part and as the Deputy 
Under Secretary directs.



                 Subpart C_Project Evaluation Procedures



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

    (a) A formal review of a proposed project begins with the receipt 
from the Secretary of Transportation by the Clearinghouse of a proper 
application filed with the Secretary of Transportation pursuant to 49 
U.S.C. 44718.
    (1) The Clearinghouse will convey the application as received to 
those DoD Components it believes may have an interest in reviewing the 
application.
    (2) The DoD Components that receive the application shall provide 
their comments and recommendations on the application to the 
Clearinghouse no later than 20 days after they receive the application.
    (3) Not later than 30 days after receiving the application from the 
Secretary of Transportation, the Clearinghouse shall evaluate all 
comments and recommendations received and take one of three actions:
    (i) Determine that the proposed project will not have an adverse 
impact on military operations and readiness, in which case it shall 
notify the Secretary of Transportation of such determination.
    (ii) Determine that the proposed project will have an adverse impact 
on military operations and readiness but that the adverse impact 
involved is sufficiently attenuated that it does not require mitigation. 
When the Clearinghouse makes such a determination, it shall notify the 
Secretary of Transportation of such determination.
    (iii) Determine that the proposed project may have an adverse impact 
on military operations and readiness. When the Clearinghouse makes such 
a determination it shall immediately--
    (A) Notify the applicant of the determination of the Clearinghouse 
and offer to discuss mitigation with the applicant to reduce the adverse 
impact;
    (B) Designate one or more DoD Components to engage in discussions 
with

[[Page 431]]

the applicant to attempt to mitigate the adverse impact;
    (C) Notify the Secretary of Transportation that the Department of 
Defense has determined that the proposed project may have an adverse 
impact on military operations and readiness, and, if the cause of the 
adverse impact is due to the proposed project exceeding an obstruction 
standard set forth in subpart C of part 77 of title 14 of the Code of 
Federal Regulations, identify the specific standard and how it would be 
exceeded; and
    (D) Notify the Secretary of Transportation and the Secretary of 
Homeland Security that the Clearinghouse has offered to engage in 
mitigation discussions with the applicant.
    (4) The applicant must provide to the Clearinghouse its agreement to 
discuss the possibility of mitigation within five days of receipt of the 
notification from the Clearinghouse.
    (b) If the applicant agrees to enter into discussions with the DoD 
to seek to mitigate an adverse impact, the designated DoD Components 
shall engage in discussions with the applicant to attempt to reach 
agreement on measures that would mitigate the adverse impact of the 
proposed project on military operations and readiness. The Clearinghouse 
shall invite the Administrator of the Federal Aviation Administration 
and the Secretary of Homeland Security to participate in such 
discussions. The Clearinghouse may also invite other Federal agencies to 
participate in such discussions.
    (1) Such discussions shall not extend more than 90 days beyond the 
initial notification to the applicant, unless both the designated DoD 
Components and the applicant agree, in writing, to an extension of a 
specific period of time.
    (i) If agreement between the applicant and the designated DoD 
Components has not been reached on mitigation measures by that time and 
no extension has been mutually agreed to, the designated DoD Components 
shall notify the Clearinghouse of the results of the discussions and the 
analysis and recommendations of the Components with regard to the 
proposed project as it is proposed after discussions.
    (ii) If agreement between the applicant and the designated DoD 
Components has been reached on mitigation measures that remove the 
adverse impact of the proposed project on military operations and 
readiness, the DoD Components shall notify the Clearinghouse of the 
agreement. If the mitigation measures entail modification to the 
proposed project, the applicant shall notify the Secretary of 
Transportation of such agreement and amend its application accordingly.
    (2) If the applicant and the designated DoD Components are unable to 
reach agreement on mitigation, the Clearinghouse shall review the 
analysis and recommendations of the DoD Components and determine if the 
proposed project as it may have been modified by the applicant after 
discussions would result in an unacceptable risk to the national 
security of the United States.
    (i) If the Clearinghouse determines that the proposed project as it 
may have been modified by the applicant after discussions would result 
in an unacceptable risk to the national security of the United States, 
it shall make a recommendation to the senior official to that effect. If 
the Clearinghouse determines, contrary to the recommendations of the DoD 
Components, that the proposed project as it may have been modified by 
the applicant after discussions would not result in an unacceptable risk 
to the national security of the United States, it shall make a 
recommendation to the senior official to that effect.
    (ii) If the senior official concurs with the recommendation of the 
Clearinghouse, the senior official shall make a recommendation to the 
senior officer that is consistent with the recommendation of the 
Clearinghouse. If the senior official does not agree with the 
recommendation of the Clearinghouse, the senior official may make a 
recommendation to the senior officer to that effect.
    (iii) The senior officer shall consider the recommendation of the 
senior official, and, after giving full consideration to mitigation 
actions available to the DoD and those agreed to by the applicant, 
determine whether the proposed project as it may have been

[[Page 432]]

modified by the applicant would result in an unacceptable risk to the 
national security of the United States. If the senior officer makes such 
a determination, the senior officer shall convey that determination to 
the Secretary of Transportation, identifying which of the three criteria 
in Sec. 211.3 creates the unacceptable risk to the national security of 
the United States.
    (iv) Any mitigation discussions engaged in by the Department of 
Defense pursuant to this part shall not be binding upon any other 
Federal agency, nor waive required compliance with any other law or 
regulation.
    (c) If the applicant does not agree to enter into discussions with 
the DoD to seek to mitigate an adverse impact, the Clearinghouse shall 
review the analysis and recommendations of the designated DoD Components 
and determine if the proposed project would result in an unacceptable 
risk to the national security of the United States.
    (1) If the Clearinghouse determines that the proposed project would 
result in an unacceptable risk to the national security of the United 
States, it shall make a recommendation to the senior official to that 
effect. If the Clearinghouse determines, contrary to the recommendations 
of the DoD Components, that the proposed project would not result in an 
unacceptable risk to the national security of the United States, it 
shall make a recommendation to the senior official to that effect.
    (2) If the senior official concurs with the recommendation of the 
Clearinghouse, the senior official shall make a recommendation to the 
senior officer that is consistent with the recommendation of the 
Clearinghouse. If the senior official does not agree with the 
recommendation of the Clearinghouse, the senior official may make a 
recommendation to the senior officer to that effect.
    (3) The senior officer shall consider the recommendation of the 
senior official, and, after giving full consideration to mitigation 
actions available to the DoD and those agreed to by the applicant, 
determine whether the proposed project would result in an unacceptable 
risk to the national security of the United States. If the senior 
officer makes such a determination, the senior officer shall convey that 
determination to the Secretary of Transportation, identifying which of 
the three criteria in Sec. 211.3 creates the unacceptable risk to the 
national security of the United States.
    (d) The Clearinghouse may, on behalf of itself, the senior official, 
or the senior officer, seek an extension of time from the Secretary of 
Transportation for consideration of the application.



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

    (a) An informal review of a project begins with the receipt from a 
requester by the Clearinghouse of a request for an informal review. In 
seeking an informal review, the requester shall provide the following 
information to the Clearinghouse:
    (1) The geographic location of the project including its latitude 
and longitude,
    (2) The height of the project,
    (3) The nature of the project.
    (4) The requester is encouraged to provide as much additional 
information as is available. The more information provided by the 
requester, the greater will be the accuracy and reliability of the 
resulting DoD review. When a request for an informal review includes 
information that is proprietary or competition sensitive, requesters are 
encouraged to mark the documents they submit accordingly.
    (b) The Clearinghouse shall, within five days of receiving the 
information provided by the requester, convey that information to those 
DoD Components it believes may have an interest in reviewing the 
request.
    (1) The DoD Components that receive the request from the 
Clearinghouse shall provide their comments and recommendations on the 
request to the Clearinghouse no later than 30 days after they receive 
the request.
    (2) Not later than 50 days after receiving the request from the 
requester, the Clearinghouse shall evaluate all comments and 
recommendations received and take one of three actions:
    (i) Determine that the project will not have an adverse impact on 
military operations and readiness, in which case

[[Page 433]]

it shall notify the requester of such determination. In doing so, the 
Clearinghouse shall also advise the requester that the informal review 
by the DoD does not constitute an action under 49 U.S.C. 44718 and that 
neither the DoD nor the Secretary of Transportation are bound by the 
determination made under the informal review.
    (ii) Determine that the project will have an adverse impact on 
military operations and readiness but that the adverse impact involved 
is sufficiently attenuated that it does not require mitigation. The 
Clearinghouse shall notify the requester of such determination. In doing 
so, the Clearinghouse shall also advise the requester that the informal 
review by the DoD does not constitute an action under 49 U.S.C. 44718 
and that neither the DoD nor the Secretary of Transportation are bound 
by the determination made under the informal review.
    (iii) Determine that the project will have an adverse impact on 
military operations and readiness.
    (A) When the requester is the project proponent, the Clearinghouse 
shall immediately--
    (1) Notify the requester of the determination and the reasons for 
the conclusion of the Clearinghouse and advise the requester that the 
DoD would like to discuss the possibility of mitigation to reduce any 
adverse impact; and
    (2) Designate one or more DoD Components to engage in discussions 
with the requester to attempt to mitigate the adverse impact.
    (B) When the requester is a State, Indian tribal, or local official 
or a landowner, notify the requester of the determination and the 
reasons for that conclusion.
    (c) If the requester is the project proponent and agrees to enter 
into discussions with the DoD to seek to mitigate an adverse impact, the 
designated DoD Components shall engage in discussions with the requester 
in an attempt to reach agreement on measures that would mitigate the 
adverse impact of the project on military operations and readiness.



Sec. 211.8  Inquiries received by DoD Components.

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



Sec. 211.9  Mitigation options.

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

[[Page 434]]

    (2) Changing the location of the proposed project.
    (3) Limiting daily operating hours or the number of days the 
equipment in the proposed structure is in use in order to avoid 
interference with military activities.
    (4) Providing a voluntary contribution of funds to offset the cost 
of measures undertaken by the Secretary of Defense to mitigate adverse 
impacts of the project on military operations and readiness.



Sec. 211.10  Reporting determinations to Congress.

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



                  Subpart D_Communications and Outreach



Sec. 211.11  Communications with the Clearinghouse.

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



Sec. 211.12  Public outreach.

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



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



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

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

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

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



Sec. 212.1  Purpose.

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



Sec. 212.2  Applicability.

    (a) This part applies to:
    (1) The Office of the Secretary of Defense, the Military 
Departments, the Office of the Chairman of the Joint Chiefs of Staff and 
the Joint Staff, the Combatant Commands, the Office of Inspector General 
of the Department of Defense, the Defense Agencies, the DoD Field 
Activities, and all other organizational entities within the Department 
of Defense (hereafter referred to collectively as the ``DoD 
Components'').
    (2) Non-Federal entities authorized to operate on DoD installations.

[[Page 435]]

    (b) This part shall not apply to:
    (1) Military relief societies.
    (2) Banks or credit unions according to 32 CFR part 230.
    (3) Support provided under Innovative Readiness Training according 
to DoD Directive 1100.20. \1\
---------------------------------------------------------------------------

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



Sec. 212.3  Definitions.

    DoD installation: As used in this instruction, a base, camp, post, 
station, yard, center, homeport facility for any ship, or other activity 
under the jurisdiction of the Department of Defense, including any 
leased facility or, in the case of an activity in a foreign country, 
under the operational control of the Department of Defense. This term 
does not include any facility used primarily for civil works, rivers and 
harbor projects, or flood control projects.
    Non-Federal entities. A self-sustaining organization, incorporated 
or unincorporated, that is not an agency or instrumentality of the 
Federal government. This part addresses only those entities that operate 
on DoD installations with the express consent of the installation 
commander or higher authority. Membership of these organizations 
consists of individuals acting exclusively outside the scope of any 
official capacity as officers, employees, or agents of the Federal 
Government. Non-Federal entities include a State, interstate, Indian 
tribal, or local government, as well as private organizations.
    United States. As used in this part, the 50 States, the District of 
Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the 
Northern Mariana Islands, the U.S. Virgin Islands, Guam, American Samoa, 
Johnston Atoll, Kingman Reef, Midway Island, Nassau Island, Palmyra 
Island, Wake Island, and any other territory or possession of the United 
States, and associated navigable waters, including the territorial seas.



Sec. 212.4  Policy.

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



Sec. 212.5  Responsibilities.

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



Sec. 212.6  Procedures.

    (a) To prevent the appearance of official sanction or support by the 
Department of Defense:
    (1) Non-Federal entities may not use the seals, logos, or insignia 
of the Department of Defense or any DoD Component, DoD organizational 
unit, or

[[Page 436]]

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

[[Page 437]]

in their personal capacity. Existing charters executed by DoD personnel 
in their official capacity shall be terminated or amended to substitute 
sponsorship by an appropriate individual, volunteer, group, or 
organization, consistent with DoD policy. \2\
---------------------------------------------------------------------------

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

    (d) A non-Federal entity covered by this part shall not offer 
programs or services on DoD installations that compete with appropriated 
or NAF activities, but may, when specifically authorized, supplement 
those activities.
    (1) Installation commanders, or higher authorities if the 
installation commander has not been delegated such authority, will 
determine if the services of a non-Federal entity conflict with or 
detract from local DoD programs. The cognizant commander has 
discretionary authority over the operations of non-Federal entities on 
DoD installations. Commanders are authorized to eliminate duplication of 
services, particularly when these services compete with the 
installation's revenue-generating activities.
    (2) Background checks are required for employees and volunteers of 
non-Federal entities who have contact with children under the age of 18 
in DoD- operated, -contracted, or community-based programs that are used 
to supplement or expand child care or youth services, according to DoD 
Instruction 1402.5.
    (e) Non-Federal entities covered by this part shall be self-
sustaining, primarily through dues, contributions, service charges, 
fees, or special assessment of members. There shall be no financial 
assistance to such an entity from a NAF Instrumentality (NAFI) in the 
form of contributions, repairs, services, dividends, or other donations 
of money or other assets. Fundraising and membership drives are governed 
by DoD 5500.7-R.
    (f) Non-Federal entities are not entitled to DoD support. However, 
support may be provided when it is consistent with and supportive of the 
military mission of the DoD Component concerned. Such support may be 
provided only when it can be offered within the capability of the 
installation commander without detriment to the commander's ability to 
fulfill the military mission, and when it is permitted under applicable 
Status of Forces Agreements. The DoD Components may provide logistical 
support to non-Federal entities with appropriated funds to the extent 
authorized by DoD 5500.7-R and applicable law. NAFI funds or assets 
shall not be directly or indirectly transferred to non-Federal entities 
according to DoD Instruction 1015.15.
    (g) Personal and professional participation in non-Federal entities 
by DoD employees is governed by DoD 5500.7-R. DoD personnel acting in an 
official capacity will not execute charters that serve as the legal 
basis for any non-Federal entity or other private organization.
    (h) Neither appropriated fund activities nor NAFIs may assert any 
claim to the assets, or incur or assume any obligation, of any non-
Federal entity covered by this part, except as may arise out of 
contractual relationships or as provided by law. Property shall not be 
abandoned on the installation by a non-Federal entity and may only be 
acquired by the DoD installation by purchase or through donation agreed 
to by the Department of Defense.
    (i) The non-Federal entity shall have adequate insurance, as defined 
by the DoD Component concerned, to protect against liability and 
property damage claims or other legal actions that may arise due to its 
activities, those of its members, or the operation of its equipment or 
devices. The DoD Components will not assume liability (through insurance 
or other means) for any activities or assets of non-Federal entities.
    (j) Non-Federal entities shall comply with applicable fire and 
safety regulations; environmental laws; local, State, and Federal tax 
codes; and any other applicable statutes or regulations.
    (k) Income from a non-Federal entity or its activities shall not 
accrue to individual members of a non-Federal entity except through 
wages and salaries as employees of the non-Federal entity or as award 
recognition for services

[[Page 438]]

rendered to the non-Federal entity or military community. This 
prohibition is not meant to preclude operation of investment clubs, in 
which the investment of members' personal funds result in a return on 
investment directly and solely to the individual members.
    (l) Employees of non-Federal entities are not employees of the 
United States or of an instrumentality of the United States. Applicable 
laws on labor standards for employment shall be observed, including 
worker's compensation insurance. Employees of non-Federal entities shall 
not participate in NAF employee benefit programs based upon their 
affiliation with the non-Federal entity.
    (m) Non-Federal entities that have statutory authorization for 
particular support are listed at Appendix A to this part.
    (n) Certain unofficial activities conducted on DoD installations do 
not need formal authorization because of the limited scope of their 
activities. Examples are office coffee funds, flower funds, and similar 
small, informal activities and funds. The DoD Components shall establish 
the basis upon which such informal activities and funds shall operate.



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

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

[[Page 439]]

 
Support for Youth Organizations........  Section 1058 of Public Law 109-
                                          163 (Note to Section 301 of
                                          title 5 U.S.C.).
                                         Section 8126 of Public Law 109-
                                          148 (Note to Section 101 of
                                          title 10 U.S.C. and Section
                                          301 of title 5 U.S.C.).
------------------------------------------------------------------------



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



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

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

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



Sec. 213.1  Purpose.

    (a) Authorizes 32 CFR part 212.
    (b) Establishes policy and assigns responsibilities under DoD 
Directive 5124.8 \1\ for standardizing support to non-Federal entities 
authorized to operate on DoD installations.
---------------------------------------------------------------------------

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

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

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

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



Sec. 213.2  Applicability and scope.

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

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



Sec. 213.3  Definition.

    Non-federal entities. A non-Federal entity is generally a self-
sustaining, non-Federal person or organization, established, operated, 
and controlled by any individual(s) acting outside the scope of any 
official capacity as officers, employees, or agents of the Federal 
Government. This Directive addresses only those entities that may 
operate on

[[Page 440]]

DoD installations with the express consent of the installation commander 
or higher authority under applicable regulations. Non-Federal entities 
may include elements of state, interstate, Indian tribal, and local 
government, as well as private organizations.



Sec. 213.4  Policy.

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

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

    (b) Under DoD Directive 5124.8 procedures shall be established as 
Instructions and agreements for the operation of non-Federal entities on 
DoD installations and for the prohibition of official sanction, 
endorsement, or support by the DoD Components and officials, except as 
authorized by DoD 5500.7-R and applicable law. Instructions and 
agreements must be compatible with the primary mission of the Department 
and provide for Congressionally authorized support to non-Federal 
entities on DoD installations.
    (c) In accordance with DoD 5500.7-R, installation commanders or 
higher authority may authorize, in writing, logistical support for 
events, including fundraising events, sponsored by non-Federal entities 
covered by this part.
    (d) Installation commanders or higher authority may coordinate with 
non-Federal entities in order to support appropriated or nonappropriated 
fund activities on DoD installations, so long as the support provided by 
the non-Federal entities does not compete with appropriated or 
nonappropriated fund activities.
    (e) Non-Federal entities are not entitled to sovereign immunity and 
the privileges given to Federal entities and instrumentalities.



Sec. 213.5  Responsibilities.

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

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

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

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

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

[[Page 441]]

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



PART 216_MILITARY RECRUITING AND RESERVE OFFICER TRAINING CORPS
PROGRAM ACCESS TO INSTITUTIONS OF HIGHER EDUCATION--Table of Contents



Sec.
216.1 Purpose.
216.2 Applicability.
216.3 Definitions.
216.4 Policy.
216.5 Responsibilities.
216.6 Information requirements.

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

    Authority: 10 U.S.C. 983.

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



Sec. 216.1  Purpose.

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



Sec. 216.2  Applicability.

    This part applies to the Office of the Secretary of Defense, the 
Military Departments (including the Coast Guard when it is operating as 
a Military Service in the Navy), the Chairman of the Joint Chiefs of 
Staff, the Combatant Commands, the Defense Agencies, and the DoD Field 
Activities (hereafter referred to collectively as ``the DoD 
Components''). This part also applies, by agreement with the Department 
of Homeland Security (DHS), to the Coast Guard at all times, including 
when it is a service in the Department of Homeland Security. The 
policies herein also affect the Departments of Transportation, Homeland 
Security, Energy (National Nuclear Security Administration), the Central 
Intelligence Agency, and any department or agency in which regular 
appropriations are made in the Departments of Labor, Health and Human 
Services, Education, and Related Agencies Appropriations Act. The term 
``Military Services,'' as used herein, refers to the Army, the Navy, the 
Marine Corps, the Air Force, and the Coast Guard, including their 
Reserve or National Guard Components. The term ``Related Agencies'' as 
used herein refers to the Armed Forces Retirement Home, the Corporation 
for National and Community Service, the Corporation for Public 
Broadcasting, the Federal Mediation and Conciliation Service, the 
Federal Mine Safety and Health Review Commission, the National 
Commission on Libraries and Information Science, the National Council on 
Disability, the National Education Goals Panel, the National Labor 
Relations Board, the National Mediation Board, the Occupational Safety 
and Health Review Commission, the

[[Page 442]]

Social Security Administration, the Railroad Retirement Board and the 
United States Institute of Peace.



Sec. 216.3  Definitions.

    (a) Anti-ROTC policy. A policy or practice whereby a covered school 
prohibits or in effect prevents the Secretary of Defense from 
maintaining, establishing, or efficiently operating a unit of the Senior 
ROTC at the covered school, or prohibits or in effect prevents a student 
at the covered school from enrolling in a Senior ROTC unit at another 
institution of higher education.
    (b) Covered funds. ``Covered funds'' is defined in 10 U.S.C. 983 as 
any funds made available for the Departments of Defense, Transportation, 
Homeland Security, or National Nuclear Security Administration of the 
Department of Energy, the Central Intelligence Agency, or any department 
or agency in which regular appropriations are made in the Departments of 
Labor, Health and Human Services, and Education, as well as in Related 
Agencies Appropriations Act (excluding any Federal funds provided to an 
institution of higher education, or to an individual, to be available 
solely for student financial assistance, related administrative costs, 
or costs associated with attendance).
    (c) Covered school. An institution of higher education, or a 
subelement of an institution of higher education, subject to the 
following clarifications:
    (1) A determination (Sec. 216.5(a)) affecting only a subelement of 
a parent institution (see Sec. 216.3(f)) effects a limitation on the 
use of funds (see Sec. 216.4 (a)) applicable to the parent institution 
as a whole, including the institution's offending subelement and all of 
its subelements, if any.
    (2) When an individual institution of higher education that is part 
of a single university system (e.g., University of (State) at (City)--a 
part of that state's university system) has a policy or practice that 
prohibits, or in effect prevents, access to campuses or access to 
students on campuses in a manner that is at least equal in quality and 
scope to the access to its campus and students as it provides to any 
other employer, or access to student-recruiting information by military 
recruiters, or has an anti-ROTC policy, as defined in this rule, it is 
only that individual institution within that university system that is 
affected by the loss of Federal funds. This limited effect applies even 
though another campus of the same university system may or may not be 
affected by a separate determination under Sec. 216.5 (a). The funding 
of a subelement of the offending individual institution of a single 
university system, if any, will also be withheld as a result of the 
policies or practices of that offending individual institution.
    (d) Enrolled. Students are ``enrolled'' when registered for at least 
one credit hour of academic credit at the covered school during the most 
recent, current, or next term. Students who are enrolled during the most 
recent term, but who are no longer attending the institution, are 
included.
    (e) Equal in quality and scope. The term means the same access to 
campus and students provided by the school to the any other nonmilitary 
recruiters or employers receiving the most favorable access. The focus 
is not on the content of a school's recruiting policy, but instead on 
the result achieved by the policy and compares the access provided 
military recruiters to that provided other recruiters. Therefore, it is 
insufficient to comply with the statute if the policy results in a 
greater level of access for other recruiters than for the military. The 
U.S. Supreme Court further explained that ``the statute does not call 
for an inquiry into why or how the `other employer' secured its access * 
* * We do not think that the military recruiter has received equal 
`access' [when a law firm is permitted on campus to recruit students and 
the military is not]--regardless of whether the disparate treatment is 
attributable to the military's failure to comply with the school's 
nondiscrimination policy.''
    (f) Institution of higher education. A domestic college, university, 
or other institution (or subelement thereof) providing postsecondary 
school courses of study, including foreign campuses of such domestic 
institutions. The term includes junior colleges, community colleges, and 
institutions providing courses leading to undergraduate and post-
graduate degrees. The term does

[[Page 443]]

not include entities that operate exclusively outside the United States, 
its territories, and possessions. A subelement of an institution of 
higher education is a discrete (although not necessarily autonomous) 
organizational entity that may establish policies or practices affecting 
military recruiting and related actions (e.g., an undergraduate school, 
a law school, a medical school, other graduate schools, or a national 
laboratory connected or affiliated with that parent institution). For 
example, the School of Law of XYZ University is a subelement of its 
parent institution (XYZ University).
    (g) Military recruiters. Personnel of DoD whose current assignment 
or detail is to a recruiting activity of the DoD.
    (h) Pacifism. Opposition to war or violence, demonstrated by refusal 
to participate in military service.
    (i) Student. An individual who is 17 years of age or older and is 
enrolled at a covered school.
    (j) Student-recruiting information. For those students currently 
enrolled, the student's name, address, telephone listing, age (or year 
of birth), place of birth, level of education (e.g., freshman, 
sophomore, or degree awarded for a recent graduate), most recent 
educational institution attended, and current major(s).



Sec. 216.4  Policy.

    It is DoD policy that:
    (a) Under 10 U.S.C. 983, no covered funds may be provided by 
contract or grant (to include payment on such contracts or grants 
previously obligated) to a covered school if the Secretary of Defense 
determines that the covered school:
    (1) Has a policy or practice (regardless of when implemented) that 
either prohibits or in effect prevents the Secretary of Defense or 
Secretary of Homeland Security from obtaining, for military recruiting 
purposes, access to campuses or access to students on campuses that is 
at least equal in quality and scope, as defined in Sec. 216.3(d), to 
the access to campuses and to students provided to any other employer, 
or access to directory information on students;
    (2) Has failed to disseminate military visit information or alerts 
at least on par with nonmilitary recruiters since schools offering such 
services to nonmilitary recruiters must also send e-mails, post notices, 
etc., on behalf of military recruiters to comply with the Solomon 
Amendment;
    (3) Has failed to schedule visits at times requested by military 
recruiters that coincide with nonmilitary recruiters' visits to campus 
if this results in a greater level of access for other recruiters than 
for the military (e.g., offering non-military recruiters a choice of a 
variety of dates for on-campus interviews while only offering the 
military recruiters the final day of interviews), as schools must ensure 
that their recruiting policies operate such that military recruiters are 
given access to students equal to that provided to any other employer;
    (4) Has failed to provide military recruiters with a mainstream 
recruiting location amidst nonmilitary employers to allow unfettered 
access to interviewees since military recruiters must be given the same 
access as recruiters who comply with a school's nondiscrimination 
policy;
    (5) Has failed to enforce time, place, and manner policies 
established by the covered school such that the military recruiters 
experience an inferior or unsafe recruiting climate, as schools must 
allow military recruiters on campus and must assist them in whatever way 
the school assists other employers;
    (6) Has through policy or practice in effect denied students 
permission to participate, or has prevented students from participating, 
in recruiting activities; or
    (7) Has an anti-ROTC policy or practice, as defined in this rule, 
regardless of when implemented.
    (b) The limitations established in paragraph (a) of this section 
shall not apply to a covered school if the Secretary of Defense 
determines that the covered school:
    (1) Has ceased the policies or practices defined in paragraph (a) of 
this section;
    (2) Has a long-standing policy of pacifism (see Sec. 216.3(j)) 
based on historical religious affiliation;

[[Page 444]]

    (3) When not providing requested access to campuses or to students 
on campus, certifies that all employers are similarly excluded from 
recruiting on the premises of the covered school, or presents evidence 
that the degree of access by military recruiters is the same access to 
campuses or to students on campuses provided to the nonmilitary 
recruiters;
    (4) When not providing any student-recruiting information, certifies 
that such information is not maintained by the covered school; or that 
such information already has been provided to the Military Service 
concerned for that current semester, trimester, quarter, or other 
academic term, or within the past 4 months (for institutions without 
academic terms); or
    (5) When not providing student-recruiting information for a specific 
student certifies that the student concerned has formally requested, in 
writing, that the covered school withhold this information from all 
third parties.
    (c) A covered school may charge military recruiters a fee for the 
costs incurred in providing access to student-recruiting information 
when that institution can certify that such charges are the actual 
costs, provided that such charges are reasonable, customary and 
identical to fees charged to other employers.
    (d) An evaluation to determine whether a covered school maintains a 
policy or practice covered by paragraphs (a)(1) through (a)(6) of this 
section shall be undertaken when:
    (1) Military recruiting personnel are prohibited, or in effect 
prevented, from the same access to campuses or access to students on 
campuses provided to nonmilitary recruiters, or are denied access to 
student-recruiting information;
    (2) Information or alerts on military visits are not distributed at 
least on par with nonmilitary recruiters since schools offering such 
services to nonmilitary recruiters must also send e-mails, post notices, 
etc., on behalf of the military recruiter to comply with the Solomon 
Amendment;
    (3) Military recruiters are prohibited from scheduling their visits 
at requested times that coincide with nonmilitary recruiters' visits to 
its campus if this results in a greater level of access for other 
recruiters than for the military as schools must ensure their recruiting 
policy operates in such a way that military recruiters are given access 
to students equal to that provided to any other employer;
    (4) Military recruiters do not receive a mainstream recruiting 
location amidst nonmilitary employers to allow unfettered access to 
interviewees since military recruiters must be given the same access as 
recruiters who comply with the school's nondiscrimination policy;
    (5) The school has failed to enforce time, place, and manner 
policies established by that school such that military recruiters 
experience an unsafe recruiting climate, as schools must allow military 
recruiters on campus and must assist them in whatever way the school 
chooses to assist other employers;
    (6) Evidence is discovered of an institution-sponsored policy or 
practice that in effect denied students permission to participate, or 
prevented students from participating in recruiting activities.
    (7) The costs being charged by the school for providing student-
recruiting information are believed by the military recruiter to be 
excessive, and the school does not provide information sufficient to 
support a conclusion that such are the actual costs, provided that they 
are reasonable and customary, and are identical to those costs charged 
to other employers; or
    (8) The covered school is unwilling to declare in writing, in 
response to an inquiry from a representative of a DoD Component or a 
representative from the Department of Homeland Security, that the 
covered school does not have a policy or practice of prohibiting, or in 
effect preventing, the Secretary of a Military Department or Secretary 
of Homeland Security from the same access to campuses or access to 
students on campuses provided to nonmilitary recruiters, or access to 
student-recruiting information by military recruiters for purposes of 
military recruiting.
    (e) An evaluation to determine whether a covered school has an anti-
ROTC policy covered by paragraph

[[Page 445]]

(a)(7) of this section shall be undertaken when:
    (1) A Secretary of a Military Department or designee cannot obtain 
permission to establish, maintain, or efficiently operate a unit of the 
Senior ROTC; or
    (2) Absent a Senior ROTC unit at the covered school, students cannot 
obtain permission from a covered school to participate, or are 
effectively prevented from participating, in a unit of the Senior ROTC 
at another institution of higher education.



Sec. 216.5  Responsibilities.

    (a) The PDUSD(P&R), under the Under Secretary of Defense for 
Personnel and Readiness, shall:
    (1) Not later than 45 days after receipt of the information 
described in paragraphs (b)(3) and (c)(1) of this section:
    (i) Inform the Office of Naval Research (ONR) and the Director, 
Defense Finance and Accounting Service that a final determination will 
be made so those offices can make appropriate preparations to carry out 
their responsibilities should a covered school be determined ineligible 
to receive federal funds.
    (ii) Make a final determination under 10 U.S.C. 983, as implemented 
by this part, and notify any affected school of that determination and 
its basis, and that the school is therefore ineligible to receive 
covered funds as a result of that determination.
    (iii) Disseminate to Federal entities affected by the decision, 
including the DoD Components and the GSA, and to the Secretary of 
Education and the head of each other department and agency the funds of 
which are subject to the determination, the names of the affected 
institutions identified under paragraph (a)(1)(ii) of this section.
    (iv) Notify the Committees on Armed Services of the Senate and the 
House of Representatives of the affected institutions identified under 
paragraph (a)(1)(ii) of this section.
    (v) Inform the affected school identified under paragraph (a)(1)(ii) 
of this section that its funding eligibility may be restored if the 
school provides sufficient new information that the basis for the 
determination under paragraph (a)(1)(ii) of this section no longer 
exists.
    (2) Not later than 45 days after receipt of a covered school's 
request to restore its eligibility:
    (i) Determine whether the funding status of the covered school 
should be changed, and notify the applicable school of that 
determination.
    (ii) Notify the parties reflected in paragraphs (a)(1)(i), 
(a)(1)(iii), and (a)(1)(iv) of this section when a determination of 
funding ineligibility (paragraph (a)(1)(ii) of this section) has been 
rescinded.
    (3) Publish in the Federal Register each determination of the 
PDUSD(P&R) that a covered school is ineligible for contracts and grants 
made under 10 U.S.C. 983, as implemented by this part.
    (4) Publish in the Federal Register at least once every 6 months a 
list of covered schools that are ineligible for contracts and grants by 
reason of a determination of the Secretary of Defense under 10 U.S.C. 
983, as implemented by this part.
    (5) Enter information into the Excluded Parties List System \1\ 
about each covered school that the PDUSD(P&R) determines to be 
ineligible for contracts and grants under 10 U.S.C. 983 and/or this 
part, generally within 5 days of making the determination.
---------------------------------------------------------------------------

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

    (6) Provide ONR with an updated list of the names of institutions 
identified under paragraph (a)(1)(ii) of this section whenever the list 
changes due to an institution being added to or dropped from the list, 
so that ONR can carry out its responsibilities for post-award 
administration of DoD Components' contracts and grants with institutions 
of higher education.
    (7) Provide the Office of the Deputy Chief Financial Officer, DoD, 
and the Director, Defense Finance and Accounting Service with an updated 
list of the names of institutions identified

[[Page 446]]

under paragraph (a)(1)(ii) of this section whenever the list changes due 
to an institution being added or dropped from the list, so those offices 
can carry out their responsibilities related to cessation of payments of 
prior contract and grant obligations to institutions of higher education 
that are on the list.
    (8) Publish in the Federal Register the list of names of affected 
institutions that have changed their policies or practices such that 
they are determined no longer to be in violation of 10 U.S.C. 983 and 
this part.
    (b) The Secretaries of the Military Departments and the Secretary of 
Homeland Security shall:
    (1) Identify covered schools that, by policy or practice, prohibit, 
or in effect prevent, the same access to campuses or access to students 
on campuses provided to nonmilitary recruiters, or access to student-
recruiting information by military recruiters for military recruiting 
purposes.
    (i) When requests by military recruiters to schedule recruiting 
visits are unsuccessful, the Military Service concerned, and the Office 
of the Secretary of Homeland Security when the Coast Guard is operating 
as a service in the Department of Homeland Security, shall seek written 
confirmation of the school's present policy from the head of the school 
through a letter of inquiry. A letter similar to that shown in Appendix 
A of this part shall be used, but it should be tailored to the situation 
presented. If written confirmation cannot be obtained, oral policy 
statements or attempts to obtain such statements from an appropriate 
official of the school shall be documented. A copy of the documentation 
shall be provided to the covered school, which shall be informed of its 
opportunity to forward clarifying comments within 30 days to accompany 
the submission to the PDUSD(P&R).
    (ii) When a request for student-recruiting information is not 
fulfilled within a reasonable period, normally 30 days, a letter similar 
to that shown in Appendix A shall be used to communicate the problem to 
the school, and the inquiry shall be managed as described in Sec. 
216.5.(b)(1)(ii). Schools may stipulate that requests for student-
recruiting information be in writing.
    (2) Identify covered schools that, by policy or practice, deny 
establishment, maintenance, or efficient operation of a unit of the 
Senior ROTC, or deny students permission to participate, or effectively 
prevent students from participating in a unit of the Senior ROTC at 
another institution of higher education. The Military Service concerned, 
and the Office of the Secretary of Homeland Security when the Coast 
Guard is operating as a service in the Department of Homeland Security, 
shall seek written confirmation of the school's policy from the head of 
the school through a letter of inquiry. A letter similar to that shown 
in Appendix B of this part shall be used, but it should be tailored to 
the situation presented. If written confirmation cannot be obtained, 
oral policy statements or attempts to obtain such statements from an 
appropriate official of the school shall be documented. A copy of the 
documentation shall be provided to the covered school, which shall be 
informed of its opportunity to forward clarifying comments within 30 
days to accompany the submission to the PDUSD(P&R).
    (3) Evaluate responses to the letter of inquiry, and other such 
evidence obtained in accordance with this part, and submit to the 
PDUSD(P&R) the names and addresses of covered schools that are believed 
to be in violation of policies established in Sec. 216.4. Full 
documentation shall be furnished to the PDUSD(P&R) for each such covered 
school, including the school's formal response to the letter of inquiry, 
documentation of any oral response, or evidence showing that attempts 
were made to obtain either written confirmation or an oral statement of 
the school's policies.
    (c) The Heads of the DoD Components and Secretary of Homeland 
Security shall:
    (1) Provide the PDUSD(P&R) with the names and addresses of covered 
schools identified as a result of evaluation(s) required under Sec. 
216.4(d) and (e).
    (2) Take immediate action to deny obligations of covered funds to 
covered schools identified under paragraph (a)(1)(ii) of this section, 
and to restore eligibility of covered schools identified under paragraph 
(a)(2) of this section.

[[Page 447]]



Sec. 216.6  Information requirements.

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

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



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

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

    \3\ Student-recruiting information refers to a student's name, 
address, telephone listing, age (or year of birth), level of education 
(e.g., freshman, sophomore, or degree awarded for a recent graduate), 
and major(s).
---------------------------------------------------------------------------

    Current Federal law (10 U.S.C. 983) denies the use of certain 
Federal funds through grants or contracts, to include payment on such 
contracts or grants previously obligated, (excluding any Federal funding 
to an institution of higher education, or to an individual, to be 
available solely for student financial assistance, related 
administrative costs, or costs associated with attendance) from 
appropriations of the Departments of Defense, Transportation, Labor, 
Health and Human Services, Education, and related agencies to 
institutions of higher education (including any subelements of such 
institutions) that have a policy or practice of denying military 
recruiting personnel access to campuses or access to students on 
campuses, in a manner that is at least equal in quality and scope (as 
explained in Sec. 216.3 of Title 32, Code of Federal Regulations, Part 
216), as it provides to nonmilitary recruiters, or access to student 
recruiting information. Implementing regulations are codified at Title 
32, Code of Federal Regulations, Part 216.
    This letter provides you an opportunity to clarify your 
institution's policy regarding military recruiting on the campus of 
[University]. In that regard, I request, within the next 30 days, a 
written policy statement of the institution with respect to access to 
campus and students by military recruiting personnel. Your response 
should highlight any difference between access for military recruiters 
and access for recruiting by other potential employers.
    Based on this information and any additional facts you can provide, 
Department of Defense officials will make a determination as to your 
institution's eligibility to receive funds by grant or contract. That 
decision may affect eligibility for funding from appropriations of the 
Departments of Defense, Transportation, Labor, Health and Human 
Services, Education, and related agencies. Should it be determined that 
[University] as an institution of higher education (or any subelement of 
the institution) is in violation of the aforementioned statutes and 
regulations, such funding would be stopped, and the institution of 
higher education (including any subelements of the institution) would 
remain ineligible to receive such funds until and unless the Department 
of Defense determines that the institution has ceased the offending 
policies and practices.
    I regret that this action may have to be taken. Successful 
recruiting requires that Department of Defense recruiters have equal 
access to students on the campuses of colleges and universities [and 
student-recruiting information], and at the same time, have effective 
relationships with the officials and student bodies of those 
institutions. I hope it will be possible to identify and correct any 
policies or practices that inhibit military recruiting at your school. 
[My representative, (name), is] [I am] available to answer any of your 
questions by telephone at [telephone number]. I look forward to your 
reply.

 Sincerely,



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

(Tailor letter to situation presented)
Dr. Jane Smith,
 President, ABC University, Anywhere, USA 12345-9876.
    Dear Dr. Smith: I understand that ABC University has [refused a 
request from a Military Department to establish a Senior ROTC unit at 
your institution] [refused to continue existing ROTC programs at your 
institution][prevented students from participation at a Senior ROTC 
program at another institution] by a policy or practice of the 
University.
    Current Federal law (10 U.S.C. 983) denies the use of certain 
Federal funds through grants or contracts, to include payment on such 
contracts or grants previously obligated, (excluding any Federal funding 
to an institution of higher education, or to an individual, to be 
available solely for student financial assistance, related 
administrative

[[Page 448]]

costs, or costs associated with attendance) from appropriations of the 
Departments of Defense, Transportation, Labor, Health and Human 
Services, Education, and related agencies to institutions of higher 
education (including any subelements of such institutions) that have a 
policy or practice of prohibiting or preventing the Secretary of Defense 
from maintaining, establishing, or efficiently operating a Senior ROTC 
unit. Implementing regulations are codified at Title 32, Code of Federal 
Regulations, Part 216.
    This letter provides you an opportunity to clarify your 
institution's policy regarding ROTC access on the campus of ABC 
University. In that regard, I request, within the next 30 days, a 
written statement of the institution with respect to [define the problem 
area(s)].
    Based on this information, Department of Defense officials will make 
a determination as to your institution's eligibility to receive the 
above-referenced funds by grant or contract. That decision may affect 
eligibility for funding from appropriations of the Departments of 
Defense, Transportation, Labor, Health and Human Services, Education, 
and related agencies. Should it be determined that [University] as an 
institution of higher education (or any subelement of the institution) 
is in violation of the aforementioned statutes and regulations, such 
funding would be stopped, and the institution of higher education 
(including any subelements of the institution) would remain ineligible 
to receive such funds until and unless the Department of Defense 
determines that the institution has ceased the offending policies and 
practices.
    I regret that this action may have to be taken. Successful officer 
procurement requires that the Department of Defense maintain a strong 
ROTC program. I hope it will be possible to [define the correction to 
the aforementioned problem area(s)]. [My representative, (name), is] [I 
am] available to answer any of your questions by telephone at [telephone 
number]. I look forward to your reply.

 Sincerely,



PART 218_GUIDANCE FOR THE DETERMINATION AND REPORTING OF NUCLEAR
RADIATION DOSE FOR DOD PARTICIPANTS IN THE ATMOSPHERIC NUCLEAR
TEST PROGRAM (1945	1962)--Table of Contents



Sec.
218.1 Policies.
218.2 General procedures.
218.3 Dose reconstruction methodology.
218.4 Dose estimate reporting standards.

    Authority: Pub. L. 98-542, 98 Stat. 2725 (38 U.S.C. 354 Note.)

    Source: 50 FR 42521, Oct. 21, 1985, unless otherwise noted.



Sec. 218.1  Policies.

    (a) Upon request by the Veterans Administration in connection with a 
claim for compensation, or by a veteran or his or her representative, 
available information shall be provided by the applicable Military 
Service which shall include all material aspects of the radiation 
environment to which the veteran was exposed and shall include inhaled, 
ingested and neutron doses. In determining the veteran's dose, initial 
neutron, initial gamma, residual gamma, and internal (inhaled and 
ingested) alpha, beta, and gamma shall be considered. However, doses 
will be reported as gamma dose, neutron dose, and internal dose. The 
minimum standards for reporting dose estimates are set forth in Sec. 
218.4.
    (b) The basic means by which to measure dose from exposure to 
ionizing radiation is the film badge. Of the estimated 220,000 
Department of Defense participants in atmospheric nuclear weapons tests, 
about 145,000 have film badge dose data available. The information 
contained in the records has been reproduced in a standard format and is 
being provided to each military service, which can use the film badge 
dose data to obtain a radiation dose for a particular individual from 
that service. This is done upon request from the individual, the 
individual's representative, the Veterans Administration, or others as 
authorized by the Privacy Act. Upon request, the participant or his or 
her authorized representative will be informed of the specific 
methodologies and assumptions employed in estimating his or her dose. 
The participant can use this information to obtain independent options 
regarding exposure.
    (c) From 1945 through 1954, the DoD and Atomic Energy Commission 
(AEC) policy was to issue badges only to a portion of the personnel in a 
homogeneous unit such as a platoon of a battalion combat team, Naval 
ship or aircraft crew. Either one person was badged in a group 
performing the same function, or only personnel expected to

[[Page 449]]

be exposed to radiation were badged. After 1954, the policy was to badge 
all personnel. But, some badges were unreadable and some records were 
lost or destroyed, as in the fire at the Federal Records Center in St. 
Louis. For these reasons the Nuclear Test Personnel Review (NTPR) 
Program has focused on determining the radiation dose for those 
personnel (about 75,000) who were not issued film badges or for whom 
film badge records are not available.
    (d) In order to determine the radiation dose to individuals for whom 
film badge data are not available, alternative approaches are used as 
circumstances warrant. All approaches require investigation of 
individual or group activities and their relationship to the 
radiological environment. First, if it is apparent that personnel were 
not present in the radiological environment and had no other potential 
for exposure, then their dose is zero. Second, if some members of a 
group had film badge readings and others did not--and if all members had 
a common relationship with the radiological enviroment--then doses for 
unbadged personnel can be calculated. Third, where sufficient badge 
readings or a common relationship to the radiological environment does 
not exist, dose reconstruction is performed. This involves correlating a 
unit's or individual's detailed activities with the quantitively 
determined radiological environment. The three approaches are described 
as follows:
    (1) Activities of an individual or his unit are researched for the 
period of participation in an atmospheric nuclear test. Unit locations 
and movements are related to areas of radiation. If personnel were far 
distant from the nuclear detonation(s), did not experience fallout or 
enter a fallout area, and did not come in contact with radioactive 
samples or contaminated objects, they were judged to have received no 
dose.
    (2) Film badge data from badged personnel may be used to estimate 
individual doses for unbadged personnel. First, a group of participants 
must be identified that have certain common characteristics and a 
similar potential for exposure to radiation. Such characteristics are: 
Individuals must be doing the same kind of work, referred to as 
activity, and all members of the group must have a common relationship 
to the radiological environment in terms of time, location or other 
factors. Identification of these groups is based upon research of 
historical records, technical reports or correspondence. A military unit 
may consist of several groups or several units may comprise a single 
group. Using proven statistical methods, the badge data for each group 
is examined to determine if it adequately reflects the entire group, is 
valid for use in statistical calculations, or if the badge data indicate 
the group should be sub-divided into smaller groups. For a group that 
meets the tests described above, the mean dose, variance and confidence 
limits are determined. An estimated dose equal to 95% probability that 
the actual exposure did not exceed the estimate is assigned to unbadged 
personnel. This procedure is statistically sound and will insure that 
unbadged personnel are assigned doses much higher than the average/mean 
for the group.
    (3) Dose reconstruction is performed if film badge data are 
unavailable for all or part of the period or radiation exposure, if film 
badge data are partially available but cannot be used statistically for 
calculations, special activities are indicated for specific individuals, 
or if other types of radiation exposures are indicated. In dose 
reconstruction, the conditions of exposure are reconstructed 
analytically to arrive at a radiation dose. Such reconstruction is not a 
new concept; it is standard scientific practice used by health 
physicists when the circumstances of a radiation exposure require 
investigation. The underlying method is in each case the same. The 
radiation environment is characterized in time and space, as are the 
activities and geometrical position of the individual. Thus, the rate at 
which radiation is accrued is determined throughout the time of 
exposure, from which the total dose is integrated. An uncertainty 
analysis of the reconstruction provides a calculated mean dose with 
confidence limits. The specific method used in a dose reconstruction 
depends on what type of data are available to

[[Page 450]]

provide the required characterizations as well as the nature of the 
radiation environment. The radiation environment is not limited to the 
gamma radiation that would have been measured by a film badge, but also 
includes neutron radiation for personnel sufficiently close to a nuclear 
detonation, as well as beta and alpha radiation (internally) for 
personnel whose activities indicate the possibility of inhalation or 
ingestion of radioactive particles.



Sec. 218.2  General procedures.

    The following procedures govern the approach taken in dose 
determination:
    (a) Use individual film badge data where available and complete, for 
determining the external gamma dose.
    (b) Identify group activities and locations for period(s) of 
possible exposure.
    (c) Qualitatively assess the radiation environment in order to 
delineate contaminated areas. If no activities occurred in these areas, 
and if no other potential for exposure exists, a no dose received 
estimate is made.
    (d) If partial film badge data are available, define group(s) of 
personnel with common activities and relationships to radiation 
environment.
    (e) Using standard statistical methods, verify from the distribution 
of film badge readings whether the badged sample adequately represents 
the intended group.
    (f) Calculate the mean external gamma dose, with variance and 
confidence limits, for each unbadged population. Assign a dose equal to 
95% probability that actual exposure did not exceed the assigned dose.
    (g) If badge data is not available for a statistical calculation, 
conduct a dose reconstruction.
    (h) For dose reconstruction, define radiation environment through 
use of all available scientific data, e.g., measurements of radiation 
intensity, decay, radioisotopic composition.
    (i) Quantitatively relate activities shielding, position, and other 
factors to radiation environment as a function of time. Integrate dose 
throughout period of exposure.
    (j) Where possible, calculate mean dose with confidence limits; 
otherwise calculate best estimate dose or, if data are too sparse, upper 
limit dose.
    (k) Compare calculations with available film badge records to verify 
the calculated doses. Whether or not film badge data is available, 
calculate initial and internal doses where identified as a meaningful 
contribution to the total dose.



Sec. 218.3  Dose reconstruction methodology.

    (a) Concept. The specific methodology consists of the 
characterization of the radiation environments to which participants 
through all relevant activities, were exposed. The environments, both 
initial and residual radiation are corrected with the activities of 
participants to determine accrued doses due to initial radiation, 
residual radiation and/or inhaled/ingested radioactive material, as 
warranted by the radiation environment and the specific personnel 
activities. Due to the range of activities, times, geometries, 
shielding, and weapon characteristics, as well as the normal spread in 
the available data pertaining to the radiation environment, an 
uncertainty analysis is performed. This analysis quantifies the 
uncertainties due to time/space variations, group size, and available 
data. Due to the large amounts of data, an automated (computer-assisted) 
procedure is often used to facilitate the data-handling and the dose 
integration, and to investigate the sensitivity to variations in the 
parameters used. The results of the gamma data calculations are then 
compared with film badge data as they apply to the specific period of 
the film badges and to the comparable activities of the exposed 
personnel, in order to validate the procedure and to identify personnel 
activities that could have led to atypical doses. Radiation dose from 
neutrons and dose commitments due to inhaled or ingested radioactive 
material are not detected by film badges. Where required, these values 
are calculated and recorded separately.
    (b) Characterization of the radiological environment. (1) This step 
describes and defines the radiological conditions as a function of time 
for all locations of concern, that is, where personnel were

[[Page 451]]

positioned or where personnel activities took place. The radiation 
environment is divided into two standard categories--initial radiation 
and residual radiation.
    (2) The initial radiation environment results from several types of 
gamma and neutron emissions. Prompt neutron and gamma radiation are 
emitted at the time of detonation, while delayed neutrons and fission-
product gamma, from the decay of radioactive products in the fireball, 
continue to be emitted as the fireball rises. In contrast to these 
essentially point sources of radiation, there is gamma radiation from 
neutron interactions with air and soil, generated within a fraction of a 
second. Because of the complexity of these radiation sources and their 
varied interaction properties with air and soil, it is necessary to 
obtain solutions of the Boltzmann radiation transport equation. The 
radiation environment thus derived includes the effects of shot-specific 
parameters such as weapon type and yield, neutron and gamma output, 
source and target geometry, and atmospheric conditions. The calculated 
neutron and gamma radiation environments are checked for consistency 
with existing measured data as available. In those few cases displaying 
significant discrepancies that cannot be resolved, an environment based 
on extrapolation of the data is used if it leads to a larger calculated 
dose.
    (3) In determining the residual radiation environment, all possible 
sources are considered including radioactive clouds, radiation that may 
have been encountered from other tests, and radioactive debris that may 
have been deposited in water during oceanic tests. The residual 
radiation environment is divided into two general components--neutron-
activated material that subsequently emits, over a period of time, beta 
and gamma radiation; and radioactive debris from the fission reaction or 
from unfissioned materials that emit alpha, beta, and gamma radiation. 
Because residual radiation decays, the characterization of the residual 
environment is defined by the radiation intensity as a function of type 
and time. Radiological survey data are used to determine specific 
intensities at times of personnel exposure. Interpolation and 
extrapolation are based on known decay characteristics of the individual 
materials that comprise the residual contamination. In those rare cases 
where insufficient radiation data exist to adequately define the 
residual environment, source data are obtained from the appropriate 
weapon design laboratory and applied in standard radiation transport 
codes to determine the initial radiation at specific distances from the 
burst. This radiation, together with material composition and 
characteristics, leads to description of the neutron-activated field for 
each location and time of interest. In all cases observed data, as 
obtained at the time of the operation, are used to calibrate the 
calculations.
    (c) Activities of participants. This step uses all official records, 
augmented by personnel interviews where gaps exist, to depict a scenario 
of activities for each individual or definable group. When a dose 
reconstruction is performed for a specific individual, information 
available from the individual is accepted unless demonstrably 
inaccurate. For military units, whose operations were closely controlled 
and further constrained by radiological safety monitors, the scenario is 
usually well defined. The same is true for observers, who were 
restricted to specific locations both during and after the nuclear 
burst. Ships' locations and activities are usually known with a high 
degree of precision from deck logs. Aircraft tracks and altitudes are 
also usually well defined. Personnel engaged in scientific experiments 
often kept logs of their activities; moreover, the locations of their 
experiments are usually a matter of record. Where the records are 
insufficiently complete for the degree of precision required to 
determine radiation exposure, participants' comments are used and 
reasonable judgements are made to further the analysis. Possible 
variations in the activities, as well as possible individual deviations 
from group activities, with respect to both time and location, are 
considered in the uncertainty analysis of the radiation dose 
calculations.
    (d) Calculation of dose. (1) The initial radiation doses to close-in 
personnel (who were normally positioned in trenches at the time of 
detonation) are

[[Page 452]]

calculated from the above-ground environment by simulating the radiation 
transport into the trenches. Various calculational approaches, standard 
in health physics, are employed to relate in-trench to above-trench 
doses for each source of radiation. Detailed modeling of the human body, 
in appropriate postures in the trench, is performed to calculate the 
gamma dose that would have been recorded on a film badge and the maximum 
neutron dose. The neutron, neutron-generated gamma, and prompt gamma 
doses are accrued during such a short time interval that the posture in 
a trench could not be altered significantly during this exposure. The 
fission-product gamma dose, however, is delivered over a period of many 
seconds. Therefore, the possibility of individual reorientation (e.g., 
standing up) in the trench is considered.
    (2) The calculation of the dose from residual radiation follows from 
the characterized radiation environment and personnel activities. 
Because radiation intensities are calculated for a field (i.e., in two 
spatial dimensions) and in time, the radiation intensity is determinable 
for each increment of personnel activity regardless of direction or at 
what time. The dose from exposure to a radiation field is obtained by 
summing the contribution (product of intensity and time) to dose at each 
step. The dose calculated from the radiation field does not reflect the 
shielding of the film badge afforded by the human body. This shielding 
has been determined for pertinent body positions by the solution of 
radiation transport equations as applied to a radiation field. 
Conversion factors are used to arrive at a calculated film badge dose, 
which not only facilitates comparison with film badge data, but serves 
as a substitute for an unavailable film badge reading.
    (3) The calculation of the dose from inhaled or ingested 
radioactivity primarily involves the determination of what radiosotopes 
entered the body in what quantity. Published conversion factors are then 
applied to these data to arrive at the radiation dose and future dose 
commitments to internal organs. Inhalation or ingestion of radioactive 
material is calculated from the radioactive environment and the 
processes of making these materials inhalable or ingestible. Activities 
and processes that cause material to become airborne (such as wind, 
decontamination or traffic) are used with empirical data on particle 
lofting to determine airborne concentrations under specific 
circumstances. Volumetric breathing rates and durations of exposure are 
used to calculate the total material intake. Data on time-dependent 
weapon debris isotopic composition and the above-mentioned conversion 
factors are used to calculate the dose commitment to the body and to 
specific body organs.
    (e) Uncertainty analysis. Because of the uncertainties associated 
with the radiological data or calculations used in the absence of data, 
as well as the uncertainties with respect to personnel activities, 
confidence limits are determined where possible for group dose 
calculations. The uncertainty analysis quantifies the errors in 
available data or in the model used in the absence of data. Confidence 
limits are based on the uncertainty of all relevant input parameters, 
and thus vary with the quality of the input data. They also consider the 
possible range of doses due to the size of the exposure group being 
examined. Typical sources of error include orientation of the weapons, 
specific weapon yields, instrument error, fallout intensity data, 
time(s) at which data were obtained, fallout decay rate, route of 
personnel movements, and arrival/stay times for specific activities.
    (f) Comparison with film badge records. (1) Calculations of gamma 
dose were compared with film badge records for two military units at 
Operation PLUMBBOB to initially validate this methodology. Where all 
parameters relating to radiation exposure were identified, direct 
comparison of gamma dose calculations with actual film badge readings 
was possible. Resultant correlations provided high confidence in the 
methodology.
    (2) Film badge data may, in some cases, be unrepresentative of the 
total exposure of a given individual or group; nevertheless, they are 
extremely useful for direct comparison of incremental

[[Page 453]]

doses for specific periods, e.g., validating the calculations for the 
remaining, unbadged period of exposure. Moreover, a wide distribution of 
film badge data often leads to more definitive personnel grouping for 
dose calculations and to further investigation of the reason(s) for such 
distribution. In all cases, personnel film badge data are not used in 
the dose calculations, but rather are used solely for comparison with 
and validation of the calculations. For dose reconstructions 
accomplished to date, comparison has been favorable and within the 
confidence limits of the calculations.



Sec. 218.4  Dose estimate reporting standards.

    The following minimum standards for reporting dose estimates shall 
be uniformly applied by the Military Services when preparing information 
in response to an inquiry by the Veterans Administration, in connection 
with a claim for compensation, or by a veteran or his or her 
representative. The information shall include all material aspects of 
the radiation environment to which the veteran was exposed and shall 
include inhaled, ingested, and neutron doses, when applicable. In 
determining the veteran's dose, initial neutron, initial gamma, residual 
gamma, and internal (inhaled and ingested) alpha, beta, and gamma shall 
be considered. However, doses will be reported as gamma dose, neutron 
dose, and internal dose. To the extent to which the information is 
available, the responses will address the following questions:
    (a) Can it be documented that the veteran was a test participant? If 
so, what tests did he attend and what were the specifics of these tests 
(date, time, yield (unless classified) type, location and other relevant 
details)?
    (b) What unit was the man in? What were the mission and activities 
of the units at the test?
    (c) To the extent to which the available records indicate, what were 
his duties at the test?
    (d) Can you corroborate the specific information relevant to the 
potential exposure provided by the claimant to the Veterans 
Administration and forwarded to the Department of Defense? What is the 
impact of these specific activities on the claimant's reconstructed 
dose?
    (e) Is there any recorded radiation exposure for the individual? 
Does this recorded exposure cover the full period of test participation? 
What are the uncertainties associated with the recorded film badge dose?
    (f) If recorded dosimetry data is unavailable or incomplete, what is 
the dose reconstruction for the most probable dose, with error limits, 
if available?
    (g) Is there evidence of a neutron or internal exposure? What is the 
reconstruction?

Upon request, the participant or his or her authorized representative 
will be informed of the specific methodologies and assumptions employed 
in estimating his or her dose.



PART 219_PROTECTION OF HUMAN SUBJECTS--Table of Contents



Sec.
219.101 To what does this policy apply?
219.102 Definitions for purposes of this policy.
219.103 Assuring compliance with this policy--research conducted or 
          supported by any Federal department or agency.
219.104 Exempt research.
219.105-219.106 [Reserved]
219.107 IRB membership.
219.108 IRB functions and operations.
219.109 IRB review of research.
219.110 Expedited review procedures for certain kinds of research 
          involving no more than minimal risk, and for minor changes in 
          approved research.
219.111 Criteria for IRB approval of research.
219.112 Review by institution.
219.113 Suspension or termination of IRB approval of research.
219.114 Cooperative research.
219.115 IRB records.
219.116 General requirements for informed consent.
219.117 Documentation of informed consent.
219.118 Applications and proposals lacking definite plans for 
          involvement of human subjects.
219.119 Research undertaken without the intention of involving human 
          subjects.
219.120 Evaluation and disposition of applications and proposals for 
          research to be conducted or supported by a Federal department 
          or agency.
219.121 [Reserved]
219.122 Use of Federal funds.

[[Page 454]]

219.123 Early termination of research support: Evaluation of 
          applications and proposals.
219.124 Conditions.

    Authority: 5 U.S.C. 301; 42 U.S.C. 300v-1(b).

    Source: 82 FR 7272, January 19, 2018, unless otherwise noted.



Sec. 219.101  To what does this policy apply?

    (a) Except as detailed in Sec. 219.104, this policy applies to all 
research involving human subjects conducted, supported, or otherwise 
subject to regulation by any Federal department or agency that takes 
appropriate administrative action to make the policy applicable to such 
research. This includes research conducted by Federal civilian employees 
or military personnel, except that each department or agency head may 
adopt such procedural modifications as may be appropriate from an 
administrative standpoint. It also includes research conducted, 
supported, or otherwise subject to regulation by the Federal Government 
outside the United States. Institutions that are engaged in research 
described in this paragraph and institutional review boards (IRBs) 
reviewing research that is subject to this policy must comply with this 
policy.
    (b) [Reserved]
    (c) Department or agency heads retain final judgment as to whether a 
particular activity is covered by this policy and this judgment shall be 
exercised consistent with the ethical principles of the Belmont 
Report.\62\
---------------------------------------------------------------------------

    \62\ The National Commission for the Protection of Human Subjects of 
Biomedical and Behavioral Research.- Belmont Report. Washington, DC: 
U.S. Department of Health and Human Services. 1979.
---------------------------------------------------------------------------

    (d) Department or agency heads may require that specific research 
activities or classes of research activities conducted, supported, or 
otherwise subject to regulation by the Federal department or agency but 
not otherwise covered by this policy comply with some or all of the 
requirements of this policy.
    (e) Compliance with this policy requires compliance with pertinent 
federal laws or regulations that provide additional protections for 
human subjects.
    (f) This policy does not affect any state or local laws or 
regulations (including tribal law passed by the official governing body 
of an American Indian or Alaska Native tribe) that may otherwise be 
applicable and that provide additional protections for human subjects.
    (g) This policy does not affect any foreign laws or regulations that 
may otherwise be applicable and that provide additional protections to 
human subjects of research.
    (h) When research covered by this policy takes place in foreign 
countries, procedures normally followed in the foreign countries to 
protect human subjects may differ from those set forth in this policy. 
In these circumstances, if a department or agency head determines that 
the procedures prescribed by the institution afford protections that are 
at least equivalent to those provided in this policy, the department or 
agency head may approve the substitution of the foreign procedures in 
lieu of the procedural requirements provided in this policy. Except when 
otherwise required by statute, Executive Order, or the department or 
agency head, notices of these actions as they occur will be published in 
the Federal Register or will be otherwise published as provided in 
department or agency procedures.
    (i) Unless otherwise required by law, department or agency heads may 
waive the applicability of some or all of the provisions of this policy 
to specific research activities or classes of research activities 
otherwise covered by this policy, provided the alternative procedures to 
be followed are consistent with the principles of the Belmont 
Report.\63\ Except when otherwise required by statute or Executive 
Order, the department or agency head shall forward advance notices of 
these actions to the Office for Human Research Protections, Department 
of Health and Human Services (HHS), or any successor office, or to the 
equivalent office within the appropriate Federal department or agency, 
and shall also publish them in the Federal Register or in such other 
manner as provided in department or agency procedures. The

[[Page 455]]

waiver notice must include a statement that identifies the conditions 
under which the waiver will be applied and a justification as to why the 
waiver is appropriate for the research, including how the decision is 
consistent with the principles of the Belmont Report.
---------------------------------------------------------------------------

    \63\ Id.
---------------------------------------------------------------------------

    (j) Federal guidance on the requirements of this policy shall be 
issued only after consultation, for the purpose of harmonization (to the 
extent appropriate), with other Federal departments and agencies that 
have adopted this policy, unless such consultation is not feasible.
    (k) [Reserved]
    (l) Compliance dates and transition provisions:
    (1) Pre-2018 Requirements. For purposes of this section, the pre-
2018 Requirements means this subpart as published in the 2016 edition of 
the Code of Federal Regulations.
    (2) 2018 Requirements. For purposes of this section, the 2018 
Requirements means the Federal Policy for the Protection of Human 
Subjects requirements contained in this part. The general compliance 
date for the 2018 Requirements is January 21, 2019. The compliance date 
for Sec. 219.114(b) (cooperative research) of the 2018 Requirements is 
January 20, 2020.
    (3) Research subject to pre-2018 requirements. The pre-2018 
Requirements shall apply to the following research, unless the research 
is transitioning to comply with the 2018 Requirements in accordance with 
paragraph (l)(4) of this section:
    (i) Research initially approved by an IRB under the pre-2018 
Requirements before January 21, 2019;
    (ii) Research for which IRB review was waived pursuant to Sec. 
219.101(i) of the pre-2018 Requirements before January 21, 2019; and
    (iii) Research for which a determination was made that the research 
was exempt under Sec. 219.101(b) of the pre-2018 Requirements before 
January 21, 2019.
    (4) Transitioning research. If, on or after July 19, 2018, an 
institution planning or engaged in research otherwise covered by 
paragraph (l)(3) of this section determines that such research instead 
will transition to comply with the 2018 Requirements, the institution or 
an IRB must document and date such determination.
    (i) If the determination to transition is documented between July 
19, 2018, and January 20, 2019, the research shall:
    (A) Beginning on the date of such documentation through January 20, 
2019, comply with the pre-2018 Requirements, except that the research 
shall comply with the following:
    (1) Section 219.102(l) of the 2018 Requirements (definition of 
research) (instead of Sec. 219.102(d) of the pre-2018 Requirements);
    (2) Section 219.103(d) of the 2018 Requirements (revised 
certification requirement that eliminates IRB review of application or 
proposal) (instead of Sec. 219.103(f) of the pre-2018 Requirements); 
and
    (3) Section 219.109(f)(1)(i) and (iii) of the 2018 Requirements 
(exceptions to mandated continuing review) (instead of Sec. 219.103(b), 
as related to the requirement for continuing review, and in addition to 
Sec. 219.109, of the pre-2018 Requirements); and
    (B) Beginning on January 21, 2019, comply with the 2018 
Requirements.
    (ii) If the determination to transition is documented on or after 
January 21, 2019, the research shall, beginning on the date of such 
documentation, comply with the 2018 Requirements.
    (5) Research subject to 2018 Requirements. The 2018 Requirements 
shall apply to the following research:
    (i) Research initially approved by an IRB on or after January 21, 
2019;
    (ii) Research for which IRB review is waived pursuant to paragraph 
(i) of this section on or after January 21, 2019; and
    (iii) Research for which a determination is made that the research 
is exempt on or after January 21, 2019.
    (m) Severability: Any provision of this part held to be invalid or 
unenforceable by its terms, or as applied to any person or circumstance, 
shall be construed so as to continue to give maximum effect to the 
provision permitted by law, unless such holding shall be one of utter 
invalidity or unenforceability, in which event the provision shall be 
severable from this part and shall not affect the remainder

[[Page 456]]

thereof or the application of the provision to other persons not 
similarly situated or to other dissimilar circumstances.

82 FR 7272, Jan. 19, 2017, as amended at 83 FR 28516, June 19, 2018.]



Sec. 219.102  Definitions for purposes of this policy.

    (a) Certification means the official notification by the institution 
to the supporting Federal department or agency component, in accordance 
with the requirements of this policy, that a research project or 
activity involving human subjects has been reviewed and approved by an 
IRB in accordance with an approved assurance.
    (b) Clinical trial means a research study in which one or more human 
subjects are prospectively assigned to one or more interventions (which 
may include placebo or other control) to evaluate the effects of the 
interventions on biomedical or behavioral health-related outcomes.
    (c) Department or agency head means the head of any Federal 
department or agency, for example, the Secretary of HHS, and any other 
officer or employee of any Federal department or agency to whom the 
authority provided by these regulations to the department or agency head 
has been delegated.
    (d) Federal department or agency refers to a federal department or 
agency (the department or agency itself rather than its bureaus, offices 
or divisions) that takes appropriate administrative action to make this 
policy applicable to the research involving human subjects it conducts, 
supports, or otherwise regulates (e.g., the U.S. Department of Health 
and Human Services, the U.S. Department of Defense, or the Central 
Intelligence Agency).
    (e)(1) Human subject means a living individual about whom an 
investigator (whether professional or student) conducting research:
    (i) Obtains information or biospecimens through intervention or 
interaction with the individual, and uses, studies, or analyzes the 
information or biospecimens; or (ii) Obtains, uses, studies, analyzes, 
or generates identifiable private information or identifiable 
biospecimens.
    (2) Intervention includes both physical procedures by which 
information or biospecimens are gathered (e.g., venipuncture) and 
manipulations of the subject or the subject's environment that are 
performed for research purposes.
    (3) Interaction includes communication or interpersonal contact 
between investigator and subject.
    (4) Private information includes information about behavior that 
occurs in a context in which an individual can reasonably expect that no 
observation or recording is taking place, and information that has been 
provided for specific purposes by an individual and that the individual 
can reasonably expect will not be made public (e.g., a medical record).
    (5) Identifiable private information is private information for 
which the identity of the subject is or may readily be ascertained by 
the investigator or associated with the information.
    (6) An identifiable biospecimen is a biospecimen for which the 
identity of the subject is or may readily be ascertained by the 
investigator or associated with the biospecimen.
    (7) Federal departments or agencies implementing this policy shall:
    (i) Upon consultation with appropriate experts (including experts in 
data matching and re-identification), reexamine the meaning of 
``identifiable private information,'' as defined in paragraph (e)(5) of 
this section, and ``identifiable biospecimen,'' as defined in paragraph 
(e)(6) of this section. This reexamination shall take place within 1 
year and regularly thereafter (at least every 4 years). This process 
will be conducted by collaboration among the Federal departments and 
agencies implementing this policy. If appropriate and permitted by law, 
such Federal departments and agencies may alter the interpretation of 
these terms, including through the use of guidance.
    (ii) Upon consultation with appropriate experts, assess whether 
there are analytic technologies or techniques that should be considered 
by investigators to generate ``identifiable private information,'' as 
defined in paragraph

[[Page 457]]

(e)(5) of this section, or an ``identifiable biospecimen,'' as defined 
in paragraph (e)(6) of this section. This assessment shall take place 
within 1 year and regularly thereafter (at least every 4 years). This 
process will be conducted by collaboration among the Federal departments 
and agencies implementing this policy. Any such technologies or 
techniques will be included on a list of technologies or techniques that 
produce identifiable private information or identifiable biospecimens. 
This list will be published in the Federal Register after notice and an 
opportunity for public comment. The Secretary, HHS, shall maintain the 
list on a publicly accessible Web site.
    (f) Institution means any public or private entity, or department or 
agency (including federal, state, and other agencies).
    (g) IRB means an institutional review board established in accord 
with and for the purposes expressed in this policy.
    (h) IRB approval means the determination of the IRB that the 
research has been reviewed and may be conducted at an institution within 
the constraints set forth by the IRB and by other institutional and 
federal requirements.
    (i) Legally authorized representative means an individual or 
judicial or other body authorized under applicable law to consent on 
behalf of a prospective subject to the subject's participation in the 
procedure(s) involved in the research. If there is no applicable law 
addressing this issue, legally authorized representative means an 
individual recognized by institutional policy as acceptable for 
providing consent in the nonresearch context on behalf of the 
prospective subject to the subject's participation in the procedure(s) 
involved in the research.
    (j) Minimal risk means that the probability and magnitude of harm or 
discomfort anticipated in the research are not greater in and of 
themselves than those ordinarily encountered in daily life or during the 
performance of routine physical or psychological examinations or tests.
    (k) Public health authority means an agency or authority of the 
United States, a state, a territory, a political subdivision of a state 
or territory, an Indian tribe, or a foreign government, or a person or 
entity acting under a grant of authority from or contract with such 
public agency, including the employees or agents of such public agency 
or its contractors or persons or entities to whom it has granted 
authority, that is responsible for public health matters as part of its 
official mandate.
    (l) Research means a systematic investigation, including research 
development, testing, and evaluation, designed to develop or contribute 
to generalizable knowledge. Activities that meet this definition 
constitute research for purposes of this policy, whether or not they are 
conducted or supported under a program that is considered research for 
other purposes. For example, some demonstration and service programs may 
include research activities. For purposes of this part, the following 
activities are deemed not to be research:
    (1) Scholarly and journalistic activities (e.g., oral history, 
journalism, biography, literary criticism, legal research, and 
historical scholarship), including the collection and use of 
information, that focus directly on the specific individuals about whom 
the information is collected.
    (2) Public health surveillance activities, including the collection 
and testing of information or biospecimens, conducted, supported, 
requested, ordered, required, or authorized by a public health 
authority. Such activities are limited to those necessary to allow a 
public health authority to identify, monitor, assess, or investigate 
potential public health signals, onsets of disease outbreaks, or 
conditions of public health importance (including trends, signals, risk 
factors, patterns in diseases, or increases in injuries from using 
consumer products). Such activities include those associated with 
providing timely situational awareness and priority setting during the 
course of an event or crisis that threatens public health (including 
natural or man-made disasters).
    (3) Collection and analysis of information, biospecimens, or records 
by or for a criminal justice agency for activities authorized by law or 
court order

[[Page 458]]

solely for criminal justice or criminal investigative purposes.
    (4) Authorized operational activities (as determined by each agency) 
in support of intelligence, homeland security, defense, or other 
national security missions.
    (m) Written, or in writing, for purposes of this part, refers to 
writing on a tangible medium (e.g., paper) or in an electronic format.



Sec. 219.103  Assuring compliance with this policy--research conducted or supported by any Federal department or agency.

    (a) Each institution engaged in research that is covered by this 
policy, with the exception of research eligible for exemption under 
Sec. 219.104, and that is conducted or supported by a Federal 
department or agency, shall provide written assurance satisfactory to 
the department or agency head that it will comply with the requirements 
of this policy. In lieu of requiring submission of an assurance, 
individual department or agency heads shall accept the existence of a 
current assurance, appropriate for the research in question, on file 
with the Office for Human Research Protections, HHS, or any successor 
office, and approved for Federal-wide use by that office. When the 
existence of an HHS-approved assurance is accepted in lieu of requiring 
submission of an assurance, reports (except certification) required by 
this policy to be made to department and agency heads shall also be made 
to the Office for Human Research Protections, HHS, or any successor 
office. Federal departments and agencies will conduct or support 
research covered by this policy only if the institution has provided an 
assurance that it will comply with the requirements of this policy, as 
provided in this section, and only if the institution has certified to 
the department or agency head that the research has been reviewed and 
approved by an IRB (if such certification is required by Sec. 
219.103(d)).
    (b) The assurance shall be executed by an individual authorized to 
act for the institution and to assume on behalf of the institution the 
obligations imposed by this policy and shall be filed in such form and 
manner as the department or agency head prescribes.
    (c) The department or agency head may limit the period during which 
any assurance shall remain effective or otherwise condition or restrict 
the assurance.
    (d) Certification is required when the research is supported by a 
Federal department or agency and not otherwise waived under Sec. 
219.101(i) or exempted under Sec. 219.104. For such research, 
institutions shall certify that each proposed research study covered by 
the assurance and this section has been reviewed and approved by the 
IRB. Such certification must be submitted as prescribed by the Federal 
department or agency component supporting the research. Under no 
condition shall research covered by this section be initiated prior to 
receipt of the certification that the research has been reviewed and 
approved by the IRB.
    (e) For nonexempt research involving human subjects covered by this 
policy (or exempt research for which limited IRB review takes place 
pursuant to Sec. 219.104(d)(2)(iii), (d)(3)(i)(C), or (d)(7) or (8)) 
that takes place at an institution in which IRB oversight is conducted 
by an IRB that is not operated by the institution, the institution and 
the organization operating the IRB shall document the institution's 
reliance on the IRB for oversight of the research and the 
responsibilities that each entity will undertake to ensure compliance 
with the requirements of this policy (e.g., in a written agreement 
between the institution and the IRB, by implementation of an 
institution-wide policy directive providing the allocation of 
responsibilities between the institution and an IRB that is not 
affiliated with the institution, or as set forth in a research 
protocol).

(Approved by the Office of Management and Budget under Control Number 
0990-0260)



Sec. 219.104  Exempt research.

    (a) Unless otherwise required by law or by department or agency 
heads, research activities in which the only involvement of human 
subjects will be in one or more of the categories in paragraph (d) of 
this section are exempt from the requirements of this policy,

[[Page 459]]

except that such activities must comply with the requirements of this 
section and as specified in each category.
    (b) Use of the exemption categories for research subject to the 
requirements of subparts B, C, and D: Application of the exemption 
categories to research subject to the requirements of 45 CFR part 46, 
subparts B, C, and D, is as follows:
    (1) Subpart B. Each of the exemptions at this section may be applied 
to research subject to subpart B if the conditions of the exemption are 
met.
    (2) Subpart C. The exemptions at this section do not apply to 
research subject to subpart C, except for research aimed at involving a 
broader subject population that only incidentally includes prisoners.
    (3) Subpart D. The exemptions at paragraphs (d)(1), (4), (5), (6), 
(7), and (8) of this section may be applied to research subject to 
subpart D if the conditions of the exemption are met. Paragraphs 
(d)(2)(i) and (ii) of this section only may apply to research subject to 
subpart D involving educational tests or the observation of public 
behavior when the investigator(s) do not participate in the activities 
being observed. Paragraph (d)(2)(iii) of this section may not be applied 
to research subject to subpart D.
    (c) [Reserved]
    (d) Except as described in paragraph (a) of this section, the 
following categories of human subjects research are exempt from this 
policy:
    (1) Research, conducted in established or commonly accepted 
educational settings, that specifically involves normal educational 
practices that are not likely to adversely impact students' opportunity 
to learn required educational content or the assessment of educators who 
provide instruction. This includes most research on regular and special 
education instructional strategies, and research on the effectiveness of 
or the comparison among instructional techniques, curricula, or 
classroom management methods.
    (2) Research that only includes interactions involving educational 
tests (cognitive, diagnostic, aptitude, achievement), survey procedures, 
interview procedures, or observation of public behavior (including 
visual or auditory recording) if at least one of the following criteria 
is met:
    (i) The information obtained is recorded by the investigator in such 
a manner that the identity of the human subjects cannot readily be 
ascertained, directly or through identifiers linked to the subjects;
    (ii) Any disclosure of the human subjects' responses outside the 
research would not reasonably place the subjects at risk of criminal or 
civil liability or be damaging to the subjects' financial standing, 
employability, educational advancement, or reputation; or
    (iii) The information obtained is recorded by the investigator in 
such a manner that the identity of the human subjects can readily be 
ascertained, directly or through identifiers linked to the subjects, and 
an IRB conducts a limited IRB review to make the determination required 
by Sec. 219.111(a)(7).
    (3)(i) Research involving benign behavioral interventions in 
conjunction with the collection of information from an adult subject 
through verbal or written responses (including data entry) or 
audiovisual recording if the subject prospectively agrees to the 
intervention and information collection and at least one of the 
following criteria is met:
    (A) The information obtained is recorded by the investigator in such 
a manner that the identity of the human subjects cannot readily be 
ascertained, directly or through identifiers linked to the subjects;
    (B) Any disclosure of the human subjects' responses outside the 
research would not reasonably place the subjects at risk of criminal or 
civil liability or be damaging to the subjects' financial standing, 
employability, educational advancement, or reputation; or
    (C) The information obtained is recorded by the investigator in such 
a manner that the identity of the human subjects can readily be 
ascertained, directly or through identifiers linked to the subjects, and 
an IRB conducts a limited IRB review to make the determination required 
by Sec. 219.111(a)(7).
    (ii) For the purpose of this provision, benign behavioral 
interventions are brief in duration, harmless, painless,

[[Page 460]]

not physically invasive, not likely to have a significant adverse 
lasting impact on the subjects, and the investigator has no reason to 
think the subjects will find the interventions offensive or 
embarrassing. Provided all such criteria are met, examples of such 
benign behavioral interventions would include having the subjects play 
an online game, having them solve puzzles under various noise 
conditions, or having them decide how to allocate a nominal amount of 
received cash between themselves and someone else.
    (iii) If the research involves deceiving the subjects regarding the 
nature or purposes of the research, this exemption is not applicable 
unless the subject authorizes the deception through a prospective 
agreement to participate in research in circumstances in which the 
subject is informed that he or she will be unaware of or misled 
regarding the nature or purposes of the research.
    (4) Secondary research for which consent is not required: Secondary 
research uses of identifiable private information or identifiable 
biospecimens, if at least one of the following criteria is met:
    (i) The identifiable private information or identifiable 
biospecimens are publicly available;
    (ii) Information, which may include information about biospecimens, 
is recorded by the investigator in such a manner that the identity of 
the human subjects cannot readily be ascertained directly or through 
identifiers linked to the subjects, the investigator does not contact 
the subjects, and the investigator will not re-identify subjects;
    (iii) The research involves only information collection and analysis 
involving the investigator's use of identifiable health information when 
that use is regulated under 45 CFR parts 160 and 164, subparts A and E, 
for the purposes of ``health care operations'' or ``research'' as those 
terms are defined at 45 CFR 164.501 or for ``public health activities 
and purposes'' as described under 45 CFR 164.512(b); or
    (iv) The research is conducted by, or on behalf of, a Federal 
department or agency using government-generated or government-collected 
information obtained for nonresearch activities, if the research 
generates identifiable private information that is or will be maintained 
on information technology that is subject to and in compliance with 
section 208(b) of the E-Government Act of 2002, 44 U.S.C. 3501 note, if 
all of the identifiable private information collected, used, or 
generated as part of the activity will be maintained in systems of 
records subject to the Privacy Act of 1974, 5 U.S.C. 552a, and, if 
applicable, the information used in the research was collected subject 
to the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.
    (5) Research and demonstration projects that are conducted or 
supported by a Federal department or agency, or otherwise subject to the 
approval of department or agency heads (or the approval of the heads of 
bureaus or other subordinate agencies that have been delegated authority 
to conduct the research and demonstration projects), and that are 
designed to study, evaluate, improve, or otherwise examine public 
benefit or service programs, including procedures for obtaining benefits 
or services under those programs, possible changes in or alternatives to 
those programs or procedures, or possible changes in methods or levels 
of payment for benefits or services under those programs. Such projects 
include, but are not limited to, internal studies by Federal employees, 
and studies under contracts or consulting arrangements, cooperative 
agreements, or grants. Exempt projects also include waivers of otherwise 
mandatory requirements using authorities such as sections 1115 and 1115A 
of the Social Security Act, as amended.
    (i) Each Federal department or agency conducting or supporting the 
research and demonstration projects must establish, on a publicly 
accessible Federal Web site or in such other manner as the department or 
agency head may determine, a list of the research and demonstration 
projects that the Federal department or agency conducts or supports 
under this provision. The research or demonstration project must be 
published on this list prior to commencing the research involving human 
subjects.
    (ii) [Reserved]

[[Page 461]]

    (6) Taste and food quality evaluation and consumer acceptance 
studies:
    (i) If wholesome foods without additives are consumed, or
    (ii) If a food is consumed that contains a food ingredient at or 
below the level and for a use found to be safe, or agricultural chemical 
or environmental contaminant at or below the level found to be safe, by 
the Food and Drug Administration or approved by the Environmental 
Protection Agency or the Food Safety and Inspection Service of the U.S. 
Department of Agriculture.
    (7) Storage or maintenance for secondary research for which broad 
consent is required: Storage or maintenance of identifiable private 
information or identifiable biospecimens for potential secondary 
research use if an IRB conducts a limited IRB review and makes the 
determinations required by Sec. 219.111(a)(8).
    (8) Secondary research for which broad consent is required: Research 
involving the use of identifiable private information or identifiable 
biospecimens for secondary research use, if the following criteria are 
met:
    (i) Broad consent for the storage, maintenance, and secondary 
research use of the identifiable private information or identifiable 
biospecimens was obtained in accordance with Sec. 219.116(a)(1) through 
(4), (a)(6), and (d);
    (ii) Documentation of informed consent or waiver of documentation of 
consent was obtained in accordance with Sec. 219.117;
    (iii) An IRB conducts a limited IRB review and makes the 
determination required by Sec. 219.111(a)(7) and makes the 
determination that the research to be conducted is within the scope of 
the broad consent referenced in paragraph (d)(8)(i) of this section; and 
(iv) The investigator does not include returning individual research 
results to subjects as part of the study plan. This provision does not 
prevent an investigator from abiding by any legal requirements to return 
individual research results.

(Approved by the Office of Management and Budget under Control Number 
0990-0260)



Sec. Sec. 219.105-219.106  [Reserved]



Sec. 219.107  IRB membership.

    (a) Each IRB shall have at least five members, with varying 
backgrounds to promote complete and adequate review of research 
activities commonly conducted by the institution. The IRB shall be 
sufficiently qualified through the experience and expertise of its 
members (professional competence), and the diversity of its members, 
including race, gender, and cultural backgrounds and sensitivity to such 
issues as community attitudes, to promote respect for its advice and 
counsel in safeguarding the rights and welfare of human subjects. The 
IRB shall be able to ascertain the acceptability of proposed research in 
terms of institutional commitments (including policies and resources) 
and regulations, applicable law, and standards of professional conduct 
and practice. The IRB shall therefore include persons knowledgeable in 
these areas. If an IRB regularly reviews research that involves a 
category of subjects that is vulnerable to coercion or undue influence, 
such as children, prisoners, individuals with impaired decision-making 
capacity, or economically or educationally disadvantaged persons, 
consideration shall be given to the inclusion of one or more individuals 
who are knowledgeable about and experienced in working with these 
categories of subjects.
    (b) Each IRB shall include at least one member whose primary 
concerns are in scientific areas and at least one member whose primary 
concerns are in nonscientific areas.
    (c) Each IRB shall include at least one member who is not otherwise 
affiliated with the institution and who is not part of the immediate 
family of a person who is affiliated with the institution.
    (d) No IRB may have a member participate in the IRB's initial or 
continuing review of any project in which the member has a conflicting 
interest, except to provide information requested by the IRB.
    (e) An IRB may, in its discretion, invite individuals with 
competence in special areas to assist in the review of issues that 
require expertise beyond or in addition to that available on the

[[Page 462]]

IRB. These individuals may not vote with the IRB.



Sec. 219.108  IRB functions and operations.

    (a) In order to fulfill the requirements of this policy each IRB 
shall:
    (1) Have access to meeting space and sufficient staff to support the 
IRB's review and recordkeeping duties;
    (2) Prepare and maintain a current list of the IRB members 
identified by name; earned degrees; representative capacity; indications 
of experience such as board certifications or licenses sufficient to 
describe each member's chief anticipated contributions to IRB 
deliberations; and any employment or other relationship between each 
member and the institution, for example, full-time employee, part-time 
employee, member of governing panel or board, stockholder, paid or 
unpaid consultant;
    (3) Establish and follow written procedures for:
    (i) Conducting its initial and continuing review of research and for 
reporting its findings and actions to the investigator and the 
institution;
    (ii) Determining which projects require review more often than 
annually and which projects need verification from sources other than 
the investigators that no material changes have occurred since previous 
IRB review; and
    (iii) Ensuring prompt reporting to the IRB of proposed changes in a 
research activity, and for ensuring that investigators will conduct the 
research activity in accordance with the terms of the IRB approval until 
any proposed changes have been reviewed and approved by the IRB, except 
when necessary to eliminate apparent immediate hazards to the subject.
    (4) Establish and follow written procedures for ensuring prompt 
reporting to the IRB; appropriate institutional officials; the 
department or agency head; and the Office for Human Research 
Protections, HHS, or any successor office, or the equivalent office 
within the appropriate Federal department or agency of
    (i) Any unanticipated problems involving risks to subjects or others 
or any serious or continuing noncompliance with this policy or the 
requirements or determinations of the IRB; and
    (ii) Any suspension or termination of IRB approval.
    (b) Except when an expedited review procedure is used (as described 
in Sec. 219.110), an IRB must review proposed research at convened 
meetings at which a majority of the members of the IRB are present, 
including at least one member whose primary concerns are in 
nonscientific areas. In order for the research to be approved, it shall 
receive the approval of a majority of those members present at the 
meeting.

(Approved by the Office of Management and Budget under Control Number 
0990-0260)



Sec. 219.109  IRB review of research.

    (a) An IRB shall review and have authority to approve, require 
modifications in (to secure approval), or disapprove all research 
activities covered by this policy, including exempt research activities 
under Sec. 219.104 for which limited IRB review is a condition of 
exemption (under Sec. 219.104(d)(2)(iii), (d)(3)(i)(C), and (d)(7), and 
(8)).
    (b) An IRB shall require that information given to subjects (or 
legally authorized representatives, when appropriate) as part of 
informed consent is in accordance with Sec. 219.116. The IRB may 
require that information, in addition to that specifically mentioned in 
Sec. 219.116, be given to the subjects when in the IRB's judgment the 
information would meaningfully add to the protection of the rights and 
welfare of subjects.
    (c) An IRB shall require documentation of informed consent or may 
waive documentation in accordance with Sec. 219.117.
    (d) An IRB shall notify investigators and the institution in writing 
of its decision to approve or disapprove the proposed research activity, 
or of modifications required to secure IRB approval of the research 
activity. If the IRB decides to disapprove a research activity, it shall 
include in its written notification a statement of the reasons for its 
decision and give the investigator an opportunity to respond in person 
or in writing.
    (e) An IRB shall conduct continuing review of research requiring 
review by

[[Page 463]]

the convened IRB at intervals appropriate to the degree of risk, not 
less than once per year, except as described in Sec. 219.109(f).
    (f)(1) Unless an IRB determines otherwise, continuing review of 
research is not required in the following circumstances:
    (i) Research eligible for expedited review in accordance with Sec. 
219.110;
    (ii) Research reviewed by the IRB in accordance with the limited IRB 
review described in Sec. 219.104(d)(2)(iii), (d)(3)(i)(C), or (d)(7) or 
(8);
    (iii) Research that has progressed to the point that it involves 
only one or both of the following, which are part of the IRB-approved 
study:
    (A) Data analysis, including analysis of identifiable private 
information or identifiable biospecimens, or
    (B) Accessing follow-up clinical data from procedures that subjects 
would undergo as part of clinical care.
    (2) [Reserved]
    (g) An IRB shall have authority to observe or have a third party 
observe the consent process and the research.

(Approved by the Office of Management and Budget under Control Number 
0990-0260)



Sec. 219.110  Expedited review procedures for certain kinds of research involving no more than minimal risk, and for minor changes in approved research.

    (a) The Secretary of HHS has established, and published as a Notice 
in the Federal Register, a list of categories of research that may be 
reviewed by the IRB through an expedited review procedure. The Secretary 
will evaluate the list at least every 8 years and amend it, as 
appropriate, after consultation with other federal departments and 
agencies and after publication in the Federal Register for public 
comment. A copy of the list is available from the Office for Human 
Research Protections, HHS, or any successor office.
    (b)(1) An IRB may use the expedited review procedure to review the 
following:
    (i) Some or all of the research appearing on the list described in 
paragraph (a) of this section, unless the reviewer determines that the 
study involves more than minimal risk;
    (ii) Minor changes in previously approved research during the period 
for which approval is authorized; or
    (iii) Research for which limited IRB review is a condition of 
exemption under Sec. 219.104(d)(2)(iii), (d)(3)(i)(C), and (d)(7) and 
(8).
    (2) Under an expedited review procedure, the review may be carried 
out by the IRB chairperson or by one or more experienced reviewers 
designated by the chairperson from among members of the IRB. In 
reviewing the research, the reviewers may exercise all of the 
authorities of the IRB except that the reviewers may not disapprove the 
research. A research activity may be disapproved only after review in 
accordance with the nonexpedited procedure set forth in Sec. 
219.108(b).
    (c) Each IRB that uses an expedited review procedure shall adopt a 
method for keeping all members advised of research proposals that have 
been approved under the procedure.
    (d) The department or agency head may restrict, suspend, terminate, 
or choose not to authorize an institution's or IRB's use of the 
expedited review procedure.



Sec. 219.111  Criteria for IRB approval of research.

    (a) In order to approve research covered by this policy the IRB 
shall determine that all of the following requirements are satisfied:
    (1) Risks to subjects are minimized:
    (i) By using procedures that are consistent with sound research 
design and that do not unnecessarily expose subjects to risk, and
    (ii) Whenever appropriate, by using procedures already being 
performed on the subjects for diagnostic or treatment purposes.
    (2) Risks to subjects are reasonable in relation to anticipated 
benefits, if any, to subjects, and the importance of the knowledge that 
may reasonably be expected to result. In evaluating risks and benefits, 
the IRB should consider only those risks and benefits that may result 
from the research (as distinguished from risks and benefits of therapies 
subjects would receive even if not participating in the research). The 
IRB should not consider possible long-range effects of applying 
knowledge

[[Page 464]]

gained in the research (e.g., the possible effects of the research on 
public policy) as among those research risks that fall within the 
purview of its responsibility.
    (3) Selection of subjects is equitable. In making this assessment 
the IRB should take into account the purposes of the research and the 
setting in which the research will be conducted. The IRB should be 
particularly cognizant of the special problems of research that involves 
a category of subjects who are vulnerable to coercion or undue 
influence, such as children, prisoners, individuals with impaired 
decision-making capacity, or economically or educationally disadvantaged 
persons.
    (4) Informed consent will be sought from each prospective subject or 
the subject's legally authorized representative, in accordance with, and 
to the extent required by, Sec. 219.116.
    (5) Informed consent will be appropriately documented or 
appropriately waived in accordance with Sec. 219.117.
    (6) When appropriate, the research plan makes adequate provision for 
monitoring the data collected to ensure the safety of subjects.
    (7) When appropriate, there are adequate provisions to protect the 
privacy of subjects and to maintain the confidentiality of data.
    (i) The Secretary of HHS will, after consultation with the Office of 
Management and Budget's privacy office and other Federal departments and 
agencies that have adopted this policy, issue guidance to assist IRBs in 
assessing what provisions are adequate to protect the privacy of 
subjects and to maintain the confidentiality of data.
    (ii) [Reserved]
    (8) For purposes of conducting the limited IRB review required by 
Sec. 219.104(d)(7)), the IRB need not make the determinations at 
paragraphs (a)(1) through (7) of this section, and shall make the 
following determinations:
    (i) Broad consent for storage, maintenance, and secondary research 
use of identifiable private information or identifiable biospecimens is 
obtained in accordance with the requirements of Sec. 219.116(a)(1)-(4), 
(a)(6), and (d);
    (ii) Broad consent is appropriately documented or waiver of 
documentation is appropriate, in accordance with Sec. 219.117; and
    (iii) If there is a change made for research purposes in the way the 
identifiable private information or identifiable biospecimens are stored 
or maintained, there are adequate provisions to protect the privacy of 
subjects and to maintain the confidentiality of data.
    (b) When some or all of the subjects are likely to be vulnerable to 
coercion or undue influence, such as children, prisoners, individuals 
with impaired decision-making capacity, or economically or educationally 
disadvantaged persons, additional safeguards have been included in the 
study to protect the rights and welfare of these subjects.



Sec. 219.112  Review by Institution

    Research covered by this policy that has been approved by an IRB may 
be subject to further appropriate review and approval or disapproval by 
officials of the institution. However, those officials may not approve 
the research if it has not been approved by an IRB.



Sec. 219.113  Suspension or Termination of IRB Approval of Research.

    An IRB shall have authority to suspend or terminate approval of 
research that is not being conducted in accordance with the IRB's 
requirements or that has been associated with unexpected serious harm to 
subjects. Any suspension or termination of approval shall include a 
statement of the reasons for the IRB's action and shall be reported 
promptly to the investigator, appropriate institutional officials, and 
the department or agency head.

(Approved by the Office of Management and Budget under Control Number 
0990-0260)



Sec. 219.114  Cooperative Research.

    (a) Cooperative research projects are those projects covered by this 
policy that involve more than one institution. In the conduct of 
cooperative research projects, each institution is responsible for 
safeguarding the rights and welfare of human subjects and for complying 
with this policy.
    (b)(1) Any institution located in the United States that is engaged 
in cooperative research must rely upon approval by a single IRB for that 
portion

[[Page 465]]

of the research that is conducted in the United States. The reviewing 
IRB will be identified by the Federal department or agency supporting or 
conducting the research or proposed by the lead institution subject to 
the acceptance of the Federal department or agency supporting the 
research.
    (2) The following research is not subject to this provision:
    (i) Cooperative research for which more than single IRB review is 
required by law (including tribal law passed by the official governing 
body of an American Indian or Alaska Native tribe); or
    (ii) Research for which any Federal department or agency supporting 
or conducting the research determines and documents that the use of a 
single IRB is not appropriate for the particular context.
    (c) For research not subject to paragraph (b) of this section, an 
institution participating in a cooperative project may enter into a 
joint review arrangement, rely on the review of another IRB, or make 
similar arrangements for avoiding duplication of effort.



Sec. 219.115  IRB Records.

    (a) An institution, or when appropriate an IRB, shall prepare and 
maintain adequate documentation of IRB activities, including the 
following:
    (1) Copies of all research proposals reviewed, scientific 
evaluations, if any, that accompany the proposals, approved sample 
consent forms, progress reports submitted by investigators, and reports 
of injuries to subjects.
    (2) Minutes of IRB meetings, which shall be in sufficient detail to 
show attendance at the meetings; actions taken by the IRB; the vote on 
these actions including the number of members voting for, against, and 
abstaining; the basis for requiring changes in or disapproving research; 
and a written summary of the discussion of controverted issues and their 
resolution.
    (3) Records of continuing review activities, including the rationale 
for conducting continuing review of research that otherwise would not 
require continuing review as described in Sec. 219.109(f)(1).
    (4) Copies of all correspondence between the IRB and the 
investigators.
    (5) A list of IRB members in the same detail as described in Sec. 
219.108(a)(2).
    (6) Written procedures for the IRB in the same detail as described 
in Sec. 219.108(a)(3) and (4).
    (7) Statements of significant new findings provided to subjects, as 
required by Sec. 219.116(c)(5).
    (8) The rationale for an expedited reviewer's determination under 
Sec. 219.110(b)(1)(i) that research appearing on the expedited review 
list described in Sec. 219.110(a) is more than minimal risk.
    (9) Documentation specifying the responsibilities that an 
institution and an organization operating an IRB each will undertake to 
ensure compliance with the requirements of this policy, as described in 
Sec. 219.103(e).
    (b) The records required by this policy shall be retained for at 
least 3 years, and records relating to research that is conducted shall 
be retained for at least 3 years after completion of the research. The 
institution or IRB may maintain the records in printed form, or 
electronically. All records shall be accessible for inspection and 
copying by authorized representatives of the Federal department or 
agency at reasonable times and in a reasonable manner.

(Approved by the Office of Management and Budget under Control Number 
0990-0260)



Sec. 219.116  General Requirements for Informed Consent.

    (a) General. General requirements for informed consent, whether 
written or oral, are set forth in this paragraph and apply to consent 
obtained in accordance with the requirements set forth in paragraphs (b) 
through (d) of this section. Broad consent may be obtained in lieu of 
informed consent obtained in accordance with paragraphs (b) and (c) of 
this section only with respect to the storage, maintenance, and 
secondary research uses of identifiable private information and 
identifiable biospecimens. Waiver or alteration of consent in research 
involving public benefit and service programs conducted by or subject to 
the approval of state or local officials is described in paragraph (e) 
of this section. General waiver or alteration of informed consent is

[[Page 466]]

described in paragraph (f) of this section. Except as provided elsewhere 
in this policy:
    (1) Before involving a human subject in research covered by this 
policy, an investigator shall obtain the legally effective informed 
consent of the subject or the subject's legally authorized 
representative.
    (2) An investigator shall seek informed consent only under 
circumstances that provide the prospective subject or the legally 
authorized representative sufficient opportunity to discuss and consider 
whether or not to participate and that minimize the possibility of 
coercion or undue influence.
    (3) The information that is given to the subject or the legally 
authorized representative shall be in language understandable to the 
subject or the legally authorized representative.
    (4) The prospective subject or the legally authorized representative 
must be provided with the information that a reasonable person would 
want to have in order to make an informed decision about whether to 
participate, and an opportunity to discuss that information.
    (5) Except for broad consent obtained in accordance with paragraph 
(d) of this section:
    (i) Informed consent must begin with a concise and focused 
presentation of the key information that is most likely to assist a 
prospective subject or legally authorized representative in 
understanding the reasons why one might or might not want to participate 
in the research. This part of the informed consent must be organized and 
presented in a way that facilitates comprehension.
    (ii) Informed consent as a whole must present information in 
sufficient detail relating to the research, and must be organized and 
presented in a way that does not merely provide lists of isolated facts, 
but rather facilitates the prospective subject's or legally authorized 
representative's understanding of the reasons why one might or might not 
want to participate.
    (6) No informed consent may include any exculpatory language through 
which the subject or the legally authorized representative is made to 
waive or appear to waive any of the subject's legal rights, or releases 
or appears to release the investigator, the sponsor, the institution, or 
its agents from liability for negligence.
    (b) Basic elements of informed consent. Except as provided in 
paragraph (d), (e), or (f) of this section, in seeking informed consent 
the following information shall be provided to each subject or the 
legally authorized representative:
    (1) A statement that the study involves research, an explanation of 
the purposes of the research and the expected duration of the subject's 
participation, a description of the procedures to be followed, and 
identification of any procedures that are experimental;
    (2) A description of any reasonably foreseeable risks or discomforts 
to the subject;
    (3) A description of any benefits to the subject or to others that 
may reasonably be expected from the research;
    (4) A disclosure of appropriate alternative procedures or courses of 
treatment, if any, that might be advantageous to the subject;
    (5) A statement describing the extent, if any, to which 
confidentiality of records identifying the subject will be maintained;
    (6) For research involving more than minimal risk, an explanation as 
to whether any compensation and an explanation as to whether any medical 
treatments are available if injury occurs and, if so, what they consist 
of, or where further information may be obtained;
    (7) An explanation of whom to contact for answers to pertinent 
questions about the research and research subjects' rights, and whom to 
contact in the event of a research-related injury to the subject;
    (8) A statement that participation is voluntary, refusal to 
participate will involve no penalty or loss of benefits to which the 
subject is otherwise entitled, and the subject may discontinue 
participation at any time without penalty or loss of benefits to which 
the subject is otherwise entitled; and
    (9) One of the following statements about any research that involves 
the collection of identifiable private information or identifiable 
biospecimens:

[[Page 467]]

    (i) A statement that identifiers might be removed from the 
identifiable private information or identifiable biospecimens and that, 
after such removal, the information or biospecimens could be used for 
future research studies or distributed to another investigator for 
future research studies without additional informed consent from the 
subject or the legally authorized representative, if this might be a 
possibility; or
    (ii) A statement that the subject's information or biospecimens 
collected as part of the research, even if identifiers are removed, will 
not be used or distributed for future research studies.
    (c) Additional elements of informed consent. Except as provided in 
paragraph (d), (e), or (f) of this section, one or more of the following 
elements of information, when appropriate, shall also be provided to 
each subject or the legally authorized representative:
    (1) A statement that the particular treatment or procedure may 
involve risks to the subject (or to the embryo or fetus, if the subject 
is or may become pregnant) that are currently unforeseeable;
    (2) Anticipated circumstances under which the subject's 
participation may be terminated by the investigator without regard to 
the subject's or the legally authorized representative's consent;
    (3) Any additional costs to the subject that may result from 
participation in the research;
    (4) The consequences of a subject's decision to withdraw from the 
research and procedures for orderly termination of participation by the 
subject;
    (5) A statement that significant new findings developed during the 
course of the research that may relate to the subject's willingness to 
continue participation will be provided to the subject;
    (6) The approximate number of subjects involved in the study;
    (7) A statement that the subject's biospecimens (even if identifiers 
are removed) may be used for commercial profit and whether the subject 
will or will not share in this commercial profit;
    (8) A statement regarding whether clinically relevant research 
results, including individual research results, will be disclosed to 
subjects, and if so, under what conditions; and
    (9) For research involving biospecimens, whether the research will 
(if known) or might include whole genome sequencing (i.e., sequencing of 
a human germline or somatic specimen with the intent to generate the 
genome or exome sequence of that specimen).
    (d) Elements of broad consent for the storage, maintenance, and 
secondary research use of identifiable private information or 
identifiable biospecimens. Broad consent for the storage, maintenance, 
and secondary research use of identifiable private information or 
identifiable biospecimens (collected for either research studies other 
than the proposed research or nonresearch purposes) is permitted as an 
alternative to the informed consent requirements in paragraphs (b) and 
(c) of this section. If the subject or the legally authorized 
representative is asked to provide broad consent, the following shall be 
provided to each subject or the subject's legally authorized 
representative:
    (1) The information required in paragraphs (b)(2), (b)(3), (b)(5), 
and (b)(8) and, when appropriate, (c)(7) and (9) of this section;
    (2) A general description of the types of research that may be 
conducted with the identifiable private information or identifiable 
biospecimens. This description must include sufficient information such 
that a reasonable person would expect that the broad consent would 
permit the types of research conducted;
    (3) A description of the identifiable private information or 
identifiable biospecimens that might be used in research, whether 
sharing of identifiable private information or identifiable biospecimens 
might occur, and the types of institutions or researchers that might 
conduct research with the identifiable private information or 
identifiable biospecimens;
    (4) A description of the period of time that the identifiable 
private information or identifiable biospecimens may be stored and 
maintained (which period of time could be indefinite), and a description 
of the period of time that the identifiable private information or 
identifiable biospecimens may be used

[[Page 468]]

for research purposes (which period of time could be indefinite);
    (5) Unless the subject or legally authorized representative will be 
provided details about specific research studies, a statement that they 
will not be informed of the details of any specific research studies 
that might be conducted using the subject's identifiable private 
information or identifiable biospecimens, including the purposes of the 
research, and that they might have chosen not to consent to some of 
those specific research studies;
    (6) Unless it is known that clinically relevant research results, 
including individual research results, will be disclosed to the subject 
in all circumstances, a statement that such results may not be disclosed 
to the subject; and
    (7) An explanation of whom to contact for answers to questions about 
the subject's rights and about storage and use of the subject's 
identifiable private information or identifiable biospecimens, and whom 
to contact in the event of a research-related harm.
    (e) Waiver or alteration of consent in research involving public 
benefit and service programs conducted by or subject to the approval of 
state or local officials--(1) Waiver. An IRB may waive the requirement 
to obtain informed consent for research under paragraphs (a) through (c) 
of this section, provided the IRB satisfies the requirements of 
paragraph (e)(3) of this section. If an individual was asked to provide 
broad consent for the storage, maintenance, and secondary research use 
of identifiable private information or identifiable biospecimens in 
accordance with the requirements at paragraph (d) of this section, and 
refused to consent, an IRB cannot waive consent for the storage, 
maintenance, or secondary research use of the identifiable private 
information or identifiable biospecimens.
    (2) Alteration. An IRB may approve a consent procedure that omits 
some, or alters some or all, of the elements of informed consent set 
forth in paragraphs (b) and (c) of this section provided the IRB 
satisfies the requirements of paragraph (e)(3) of this section. An IRB 
may not omit or alter any of the requirements described in paragraph (a) 
of this section. If a broad consent procedure is used, an IRB may not 
omit or alter any of the elements required under paragraph (d) of this 
section.
    (3) Requirements for waiver and alteration. In order for an IRB to 
waive or alter consent as described in this subsection, the IRB must 
find and document that:
    (i) The research or demonstration project is to be conducted by or 
subject to the approval of state or local government officials and is 
designed to study, evaluate, or otherwise examine:
    (A) Public benefit or service programs;
    (B) Procedures for obtaining benefits or services under those 
programs;
    (C) Possible changes in or alternatives to those programs or 
procedures; or
    (D) Possible changes in methods or levels of payment for benefits or 
services under those programs; and
    (ii) The research could not practicably be carried out without the 
waiver or alteration.
    (f) General waiver or alteration of consent--(1) Waiver. An IRB may 
waive the requirement to obtain informed consent for research under 
paragraphs (a) through (c) of this section, provided the IRB satisfies 
the requirements of paragraph (f)(3) of this section. If an individual 
was asked to provide broad consent for the storage, maintenance, and 
secondary research use of identifiable private information or 
identifiable biospecimens in accordance with the requirements at 
paragraph (d) of this section, and refused to consent, an IRB cannot 
waive consent for the storage, maintenance, or secondary research use of 
the identifiable private information or identifiable biospecimens.
    (2) Alteration. An IRB may approve a consent procedure that omits 
some, or alters some or all, of the elements of informed consent set 
forth in paragraphs (b) and (c) of this section provided the IRB 
satisfies the requirements of paragraph (f)(3) of this section. An IRB 
may not omit or alter any of the requirements described in paragraph (a) 
of this section. If a broad consent procedure is used, an IRB may not 
omit or alter any of the elements required under paragraph (d) of this 
section.

[[Page 469]]

    (3) Requirements for waiver and alteration. In order for an IRB to 
waive or alter consent as described in this subsection, the IRB must 
find and document that:
    (i) The research involves no more than minimal risk to the subjects;
    (ii) The research could not practicably be carried out without the 
requested waiver or alteration;
    (iii) If the research involves using identifiable private 
information or identifiable biospecimens, the research could not 
practicably be carried out without using such information or 
biospecimens in an identifiable format;
    (iv) The waiver or alteration will not adversely affect the rights 
and welfare of the subjects; and
    (v) Whenever appropriate, the subjects or legally authorized 
representatives will be provided with additional pertinent information 
after participation.
    (g) Screening, recruiting, or determining eligibility. An IRB may 
approve a research proposal in which an investigator will obtain 
information or biospecimens for the purpose of screening, recruiting, or 
determining the eligibility of prospective subjects without the informed 
consent of the prospective subject or the subject's legally authorized 
representative, if either of the following conditions are met:
    (1) The investigator will obtain information through oral or written 
communication with the prospective subject or legally authorized 
representative, or
    (2) The investigator will obtain identifiable private information or 
identifiable biospecimens by accessing records or stored identifiable 
biospecimens.
    (h) Posting of clinical trial consent form. (1) For each clinical 
trial conducted or supported by a Federal department or agency, one IRB-
approved informed consent form used to enroll subjects must be posted by 
the awardee or the Federal department or agency component conducting the 
trial on a publicly available Federal Web site that will be established 
as a repository for such informed consent forms.
    (2) If the Federal department or agency supporting or conducting the 
clinical trial determines that certain information should not be made 
publicly available on a Federal Web site (e.g. confidential commercial 
information), such Federal department or agency may permit or require 
redactions to the information posted.
    (3) The informed consent form must be posted on the Federal Web site 
after the clinical trial is closed to recruitment, and no later than 60 
days after the last study visit by any subject, as required by the 
protocol.
    (i) Preemption. The informed consent requirements in this policy are 
not intended to preempt any applicable Federal, state, or local laws 
(including tribal laws passed by the official governing body of an 
American Indian or Alaska Native tribe) that require additional 
information to be disclosed in order for informed consent to be legally 
effective.
    (j) Emergency medical care. Nothing in this policy is intended to 
limit the authority of a physician to provide emergency medical care, to 
the extent the physician is permitted to do so under applicable Federal, 
state, or local law (including tribal law passed by the official 
governing body of an American Indian or Alaska Native tribe).

(Approved by the Office of Management and Budget under Control Number 
0990-0260)



Sec. 219.117  Documentation of informed consent.

    (a) Except as provided in paragraph (c) of this section, informed 
consent shall be documented by the use of a written informed consent 
form approved by the IRB and signed (including in an electronic format) 
by the subject or the subject's legally authorized representative. A 
written copy shall be given to the person signing the informed consent 
form.
    (b) Except as provided in paragraph (c) of this section, the 
informed consent form may be either of the following:
    (1) A written informed consent form that meets the requirements of 
Sec. 219.116. The investigator shall give either the subject or the 
subject's legally authorized representative adequate opportunity to read 
the informed consent form before it is signed; alternatively, this form 
may be read to the subject or the subject's legally authorized 
representative.

[[Page 470]]

    (2) A short form written informed consent form stating that the 
elements of informed consent required by Sec. 219.116 have been 
presented orally to the subject or the subject's legally authorized 
representative, and that the key information required by Sec. 
219.116(a)(5)(i) was presented first to the subject, before other 
information, if any, was provided. The IRB shall approve a written 
summary of what is to be said to the subject or the legally authorized 
representative. When this method is used, there shall be a witness to 
the oral presentation. Only the short form itself is to be signed by the 
subject or the subject's legally authorized representative. However, the 
witness shall sign both the short form and a copy of the summary, and 
the person actually obtaining consent shall sign a copy of the summary. 
A copy of the summary shall be given to the subject or the subject's 
legally authorized representative, in addition to a copy of the short 
form.
    (c)(1) An IRB may waive the requirement for the investigator to 
obtain a signed informed consent form for some or all subjects if it 
finds any of the following:
    (i) That the only record linking the subject and the research would 
be the informed consent form and the principal risk would be potential 
harm resulting from a breach of confidentiality. Each subject (or 
legally authorized representative) will be asked whether the subject 
wants documentation linking the subject with the research, and the 
subject's wishes will govern;
    (ii) That the research presents no more than minimal risk of harm to 
subjects and involves no procedures for which written consent is 
normally required outside of the research context; or
    (iii) If the subjects or legally authorized representatives are 
members of a distinct cultural group or community in which signing forms 
is not the norm, that the research presents no more than minimal risk of 
harm to subjects and provided there is an appropriate alternative 
mechanism for documenting that informed consent was obtained.
    (2) In cases in which the documentation requirement is waived, the 
IRB may require the investigator to provide subjects or legally 
authorized representatives with a written statement regarding the 
research.

(Approved by the Office of Management and Budget under Control Number 
0990-0260)



Sec. 219.118  Applications and proposals lacking definite plans for involvement of human subjects.

    Certain types of applications for grants, cooperative agreements, or 
contracts are submitted to Federal departments or agencies with the 
knowledge that subjects may be involved within the period of support, 
but definite plans would not normally be set forth in the application or 
proposal. These include activities such as institutional type grants 
when selection of specific projects is the institution's responsibility; 
research training grants in which the activities involving subjects 
remain to be selected; and projects in which human subjects' involvement 
will depend upon completion of instruments, prior animal studies, or 
purification of compounds. Except for research waived under Sec. 
219.101(i) or exempted under Sec. 219.104, no human subjects may be 
involved in any project supported by these awards until the project has 
been reviewed and approved by the IRB, as provided in this policy, and 
certification submitted, by the institution, to the Federal department 
or agency component supporting the research.



Sec. 219.119  Research undertaken without the intention of involving human subjects.

    Except for research waived under Sec. 219.101(i) or exempted under 
Sec. 219.104, in the event research is undertaken without the intention 
of involving human subjects, but it is later proposed to involve human 
subjects in the research, the research shall first be reviewed and 
approved by an IRB, as provided in this policy, a certification 
submitted by the institution to the Federal department or agency 
component supporting the research, and final approval given to the 
proposed change by the Federal department or agency component.

[[Page 471]]



Sec. 219.120  Evaluation and disposition of applications and proposals for research to be conducted or supported by a Federal department or agency.

    (a) The department or agency head will evaluate all applications and 
proposals involving human subjects submitted to the Federal department 
or agency through such officers and employees of the Federal department 
or agency and such experts and consultants as the department or agency 
head determines to be appropriate. This evaluation will take into 
consideration the risks to the subjects, the adequacy of protection 
against these risks, the potential benefits of the research to the 
subjects and others, and the importance of the knowledge gained or to be 
gained.
    (b) On the basis of this evaluation, the department or agency head 
may approve or disapprove the application or proposal, or enter into 
negotiations to develop an approvable one.



Sec. 219.121  [Reserved]



Sec. 219.122  Use of Federal funds.

    Federal funds administered by a Federal department or agency may not 
be expended for research involving human subjects unless the 
requirements of this policy have been satisfied.



Sec. 219.123  Early termination of research support:
Evaluation of applications and proposals.

    (a) The department or agency head may require that Federal 
department or agency support for any project be terminated or suspended 
in the manner prescribed in applicable program requirements, when the 
department or agency head finds an institution has materially failed to 
comply with the terms of this policy.
    (b) In making decisions about supporting or approving applications 
or proposals covered by this policy the department or agency head may 
take into account, in addition to all other eligibility requirements and 
program criteria, factors such as whether the applicant has been subject 
to a termination or suspension under paragraph (a) of this section and 
whether the applicant or the person or persons who would direct or has/
have directed the scientific and technical aspects of an activity has/
have, in the judgment of the department or agency head, materially 
failed to discharge responsibility for the protection of the rights and 
welfare of human subjects (whether or not the research was subject to 
federal regulation).



Sec. 219.124  Conditions.

    With respect to any research project or any class of research 
projects the department or agency head of either the conducting or the 
supporting Federal department or agency may impose additional conditions 
prior to or at the time of approval when in the judgment of the 
department or agency head additional conditions are necessary for the 
protection of human subjects.



PART 220_COLLECTION FROM THIRD PARTY PAYERS OF REASONABLE
CHARGES FOR HEALTHCARE SERVICES--Table of Contents



Sec.
220.1 Purpose and applicability.
220.2 Statutory obligation of third party payer to pay.
220.3 Exclusions impermissible.
220.4 Reasonable terms and conditions of health plan permissible.
220.5 Records available.
220.6 Certain payers excluded.
220.7 Remedies and procedures.
220.8 Reasonable charges.
220.9 Rights and obligations of beneficiaries.
220.10 Special rules for Medicare supplemental plans.
220.11 Special rules for automobile liability insurance and no-fault 
          automobile insurance.
220.12 [Reserved]
220.13 Special rules for workers' compensation programs.
220.14 Definitions.

    Authority: 5 U.S.C. 301; 10 U.S.C. 1095(f), 1097b(b) and 1079b.

    Source: 55 FR 21748, May 29, 1990, unless otherwise noted.



Sec. 220.1  Purpose and applicability.

    (a) This part implements the provisions of 10 U.S.C. 1095, 1097b(b), 
and 1079b. In general, 10 U.S.C. 1095 establishes the statutory 
obligation of third party payers to reimburse the United

[[Page 472]]

States the reasonable charges of healthcare services provided by 
facilities of the Uniformed Services to covered beneficiaries who are 
also covered by a third party payer's plan. Section 1097b(b) elaborates 
on the methods for computation of reasonable charges. Section 1079b 
addresses charges for civilian patients who are not normally 
beneficiaries of the Military Health System. This part establishes the 
Department of Defense interpretations and requirements applicable to all 
healthcare services subject to 10 U.S.C. 1095, 1097b(b), and 1079b.
    (b) This part applies to all facilities of the Uniformed Services; 
the Department of Transportation administers this part with respect to 
facilities to the Coast Guard, not the Department of Defense.
    (c) This part applies to pathology services provided by the Armed 
Forces Institute of Pathology. However, in lieu of the rules and 
procedures otherwise applicable under this part, the Assistant Secretary 
of Defense (Health Affairs) may establish special rules and procedures 
under the authority of 10 U.S.C. 176 and 177 in relation to cooperative 
enterprises between the Armed Forces Institute of Pathology and the 
American Registry of Pathology.

[67 FR 57740, Sept. 12, 2002]



Sec. 220.2  Statutory obligation of third party payer to pay.

    (a) Basic rule. Pursuant to 10 U.S.C. 1095(a)(1), a third party 
payer has an obligation to pay the United States the reasonable charges 
for healthcare services provided in or through any facility of the 
Uniformed Services to a covered beneficiary who is also a beneficiary 
under the third party payer's plan. The obligation to pay is to the 
extent that the beneficiary would be eligible to receive reimbursement 
or indemnification from the third party payer if the beneficiary were to 
incur the costs on the beneficiary's own behalf.
    (b) Application of cost shares. If the third party payer's plan 
includes a requirement for a deductible or copayment by the beneficiary 
of the plan, then the amount the United States may collect from the 
third party payer is the reasonable charge for the care provided less 
the appropriate deductible or copayment amount.
    (c) Claim from United States exclusive. The only way for a third 
party payer to satisfy its obligation under 10 U.S.C. 1095 is to pay the 
facility of the uniformed service or other authorized representative of 
the United States. Payment by a third party payer to the beneficiary 
does not satisfy 10 U.S.C. 1095.
    (d) Assignment of benefits or other submission by beneficiary not 
necessary. The obligation of the third party payer to pay is not 
dependent upon the beneficiary executing an assignment of benefits to 
the United States. Nor is the obligation to pay dependent upon any other 
submission by the beneficiary to the third party payer, including any 
claim or appeal. In any case in which a facility of the Uniformed 
Services makes a claim, appeal, representation, or other filing under 
the authority of this part, any procedural requirement in any third 
party payer plan for the beneficiary of such plan to make the claim, 
appeal, representation, or other filing must be deemed to be satisfied. 
A copy of the completed and signed DoD insurance declaration form will 
be provided to payers upon request, in lieu of a claimant's statement or 
coordination of benefits form.
    (e) Preemption of conflicting State laws. Any provision of a law or 
regulation of a State or political subdivision thereof that purports to 
establish any requirement on a third party payer that would have the 
effect of excluding from coverage or limiting payment, for any health 
care services for which payment by the third party payer under 10 U.S.C. 
1095 or this part is required, is preempted by 10 U.S.C. 1095 and shall 
have no force or effect in connection with the third party payer's 
obligations under 10 U.S.C. 1095 or this part.

[55 FR 21748, May 29, 1990, as amended at 57 FR 41101, Sept. 9, 1992; 65 
FR 7727, Feb. 16, 2000; 67 FR 57740, Sept. 12, 2002]



Sec. 220.3  Exclusions impermissible.

    (a) Statutory requirement. Under 10 U.S.C. 1095(b), no provision of 
any third party payer's plan having the effect of excluding from 
coverage or limiting payment for certain care if that care is provided 
in a facility of the uniformed

[[Page 473]]

services shall operate to prevent collection by the United States.
    (b) General rules. Based on the statutory requirement, the following 
are general rules for the administration of 10 U.S.C. 1095 and this 
part.
    (1) Express exclusions or limitations in third party payer plans 
that are inconsistent with 10 U.S.C. 1095(b) are inoperative.
    (2) No objection, precondition or limitation may be asserted that 
defeats the statutory purpose of collecting from third party payers.
    (3) Third party payers may not treat claims arising from services 
provided in facilities of the uniformed services less favorably than 
they treat claims arising from services provided in other hospitals.
    (4) No objection, precondition or limitation may be asserted that is 
contrary to the basic nature of facilities of the uniformed services.
    (c) Specific examples of impermissible exclusion. The following are 
several specific examples of impermissible exclusions, limitations or 
preconditions. These examples are not all inclusive.
    (1) Care provided by a government entity. A provision in a third 
party payer's plan that purports to disallow or limit payment for 
services provided by a government entity or paid for by a government 
program (or similar exclusion) is not a permissible ground for refusing 
or reducing third party payment.
    (2) No obligation to pay. A provision in a third party payer's plan 
that purports to disallow or limit payment for services for which the 
patient has no obligation to pay (or similar exclusion) is not a 
permissible ground for refusing or reducing third party payment.
    (3) Exclusion of military beneficiaries. No provision of an employer 
sponsored program or plan that purports to make ineligible for coverage 
individuals who are uniformed services health care beneficiaries shall 
be permissible.
    (4) No participation agreement. The lack of a participation 
agreement or the absence of privity of contract between a third party 
payer and a facility of the uniformed services is not a permissible 
ground for refusing or reducing third party payment.
    (5) Medicare carve-out and Medicare secondary payer provisions. A 
provision in a third party payer plan, other than a Medicare 
supplemental plan under Sec. 220.10, that seeks to make Medicare the 
primary payer and the plan the secondary payer or that would operate to 
carve out of the plan's coverage an amount equivalent to the Medicare 
payment that would be made if the services were provided by a provider 
to whom payment would be made under Part A or Part B of Medicare is not 
a permissible ground for refusing or reducing payment as the primary 
payer to the facility of the Uniformed Services by the third party payer 
unless the provision:
    (i) Expressly disallows payment as the primary payer to all 
providers to whom payment would not be made under Medicare (including 
payment under Part A, Part B, a Medicare HMO, or a Medicare+Choice 
plan); and
    (ii) Is otherwise in accordance with applicable law.

[55 FR 21748, May 29, 1990, as amended at 57 FR 41101, Sept. 9, 1992; 65 
FR 7728, Feb. 16, 2000]



Sec. 220.4  Reasonable terms and conditions of health plan permissible.

    (a) Statutory requirement. The statutory obligation of the third 
party to pay is not unqualified. Under 10 U.S.C. 1095(a)(1) (as noted in 
Sec. 220.2 of this part), the obligation to pay is to the extent the 
third party payer would be obliged to pay if the beneficiary incurred 
the costs personally.
    (b) General rules. (1) Based on the statutory requirement, after any 
impermissible exclusions have been made inoperative (see Sec. 220.3 of 
this part), reasonable terms and conditions of the third party payer's 
plan that apply generally and uniformly to services provided in 
facilities other than facilities of the uniformed services may also be 
applied to services provided in facilities of the uniformed services.
    (2) Except as provided by 10 U.S.C. 1095, this part, or other 
applicable law, third party payers are not required to treat claims 
arising from services provided in or through facilities of the Uniformed 
Services more favorably than they treat claims arising from services 
provided in other facilities or by other health care providers.

[[Page 474]]

    (c) Specific examples of permissible terms and conditions. The 
following are several specific examples of permissible terms and 
conditions of third party payer plans. These examples are not all 
inclusive.
    (1) Generally applicable coverage provisions. Generally applicable 
provisions regarding particular types of medical care or medical 
conditions covered by the third party payer's plan are permissible 
grounds to refuse or limit third party payment.
    (2) Generally applicable utilization review provisions. (i) 
Reasonable and generally applicable provisions of a third party payer's 
plan requiring pre-admission screening, second surgical opinions, 
retrospective review or other similar utilization management activities 
may be permissible grounds to refuse or reduce third party payment if 
such refusal or reduction is required by the third party payer's plan.
    (ii) Such provisions are not permissible if they are applied in a 
manner that would result in claims arising from services provided by or 
through facilities of the Uniformed Services being treated less 
favorably than claims arising from services provided by other hospitals 
or providers.
    (iii) Such provisions are not permissible if they would not affect a 
third party payer's obligation under this part. For example, concurrent 
review of an inpatient hospitalization would generally not affect the 
third party payer's obligation because of the DRG-based, per-admission 
basis for calculating reasonable charges under Sec. 220.8(a) (except in 
long stay outlier cases, noted in Sec. 220.8(a)(4)).
    (3) Restrictions in HMO plans. Generally applicable exclusions in 
Health Maintenance Organization (HMO) plans of non-emergency or non-
urgent services provided outside the HMO (or similar exclusions) are 
permissible. However, HMOs may not exclude claims or refuse to certify 
emergent and urgent services provided within the HMO's service area or 
otherwise covered non-emergency services provided out of the HMO's 
service area. In addition, opt-out or point-of-service options available 
under an HMO plan may not exclude services otherwise payable under 10 
U.S.C. 1095 or this part.
    (d) Procedures for establishing reasonable terms and conditions. In 
order to establish that a term or condition of a third party payer's 
plan is permissible, the third party payer must provide appropriate 
documentation to the facility of the Uniformed Services. This includes, 
when applicable, copies of explanation of benefits (EOBs), remittance 
advice, or payment to provider forms. It also includes copies of 
policies, employee certificates, booklets, or handbooks, or other 
documentation detailing the plan's health care benefits, exclusions, 
limitations, deductibles, co-insurance, and other pertinent policy or 
plan coverage and benefit information.

[55 FR 21748, May 29, 1990, as amended at 65 FR 7728, Feb. 16, 2000; 67 
FR 57740, Sept. 12, 2002]



Sec. 220.5  Records available.

    Pursuant to 10 U.S.C. 1095(c), facilities of the uniformed services, 
when requested, shall make available to representatives of any third 
party payer from which the United States seeks payment under 10 U.S.C. 
1095 for inspection and review appropriate health care records (or 
copies of such records) of individuals for whose care payment is sought. 
Appropriate records which will be made available are records which 
document that the services which are the subject of the claims for 
payment under 10 U.S.C. 1095 were provided as claimed and were provided 
in a manner consistent with permissible terms and conditions of the 
third party payer's plan. This is the sole purpose for which patient 
care records will be made available. Records not needed for this purpose 
will not be made available.



Sec. 220.6  Certain payers excluded.

    (a) Medicare and Medicaid. Under 10 U.S.C. 1095(d), claims for 
payment from the Medicare or Medicaid programs (titles XVIII and XIX of 
the Social Security Act) are not authorized.
    (b) Supplemental plans. CHAMPUS (see 32 CFR part 199) supplemental 
plans and income supplemental plans are excluded from any obligation to 
pay under 10 U.S.C. 1095.

[[Page 475]]

    (c) Third party payer plans prior to April 7, 1986. 10 U.S.C. 1095 
is not applicable to third party payer plans which have been in 
continuous effect without amendment or renewal since prior to April 7, 
1986. Plans entered into, amended or renewed on or after April 7, 1986, 
are subject to 10 U.S.C. 1095.
    (d) Third party payer plans prior to November 5, 1990, in connection 
with outpatient care. The provisions of 10 U.S.C. 1095 and this section 
concerning outpatient services are not applicable to third party payer 
plans:
    (1) That have been in continuous effect without amendment or renewal 
since prior to November 5, 1990; and
    (2) For which the facility of the Uniformed Services or other 
authorized representative for the United States makes a determination, 
based on documentation provided by the third party payer, that the 
policy or plan clearly excludes payment for such services. Plans entered 
into, amended or renewed on or after November 5, 1990, are subject to 
this section, as are prior plans that do not clearly exclude payment for 
services covered by this section.

[55 FR 21748, May 29, 1990, as amended at 57 FR 41101, Sept. 9, 1992]



Sec. 220.7  Remedies and procedures.

    (a) Pursuant to 10 U.S.C. 1095(e)(1), the United States may 
institute and prosecute legal proceedings against a third party payer to 
enforce a right of the United States under 10 U.S.C. 1095 and this part.
    (b) Pursuant to 10 U.S.C. 1095(e)(2), an authorized representative 
of the United States may compromise, settle or waive a claim of the 
United States under 10 U.S.C. 1095 and this part.
    (c) The authorities provided by 31 U.S.C. 3701, et seq., 28 CFR part 
11, and 4 CFR parts 101-104 regarding collection of indebtedness due the 
United States shall be available to effect collections pursuant to 10 
U.S.C. 1095 and this part.
    (d) A third party payer may not, without the consent of a U.S. 
Government official authorized to take action under 10 U.S.C. 1095 and 
this part, offset or reduce any payment due under 10 U.S.C. 1095 or this 
part on the grounds that the payer considers itself due a refund from a 
facility of the Uniformed Services. A request for refund must be 
submitted and adjudicated separately from any other claims submitted to 
the third party payer under 10 U.S.C. 1095 or this part.

[55 FR 21748, May 29, 1990, as amended at 65 FR 7728, Feb. 16, 2000]



Sec. 220.8  Reasonable charges.

    (a) In general. (1) Section 1095(f) and section 1097b(b) both 
address the issue of computation of rates. Between them, the effect is 
to authorize the calculation of all third party payer collections on the 
basis of reasonable charges and the computation of reasonable charges on 
the basis of per diem rates, all-inclusive per-visit rates, diagnosis 
related groups rates, rates used by the Civilian Health and Medical 
Program of the Uniformed Services (CHAMPUS) program to reimburse 
authorized providers, or any other method the Assistant Secretary of 
Defense (Health Affairs) considers appropriate and establishes in this 
part. Such rates, representative of costs, are also endorsed by section 
1079(a).
    (2) The general rule is that reasonable charges under this part are 
based on the rates used by CHAMPUS under 32 CFR 199.14 to reimburse 
authorized providers. There are some exceptions to this general rule, as 
outlined in this section.
    (b) Inpatient institutional and professional services on or after 
October 1, 2017. Reasonable charges for inpatient institutional services 
provided on or after October 1, 2017, are based on either of two methods 
as determined by the ASD(HA). The first uses the CHAMPUS Diagnosis 
Related Group (DRG) payment system rates under 32 CFR 199.14(a)(1). 
Certain adjustments are made to reflect differences between the CHAMPUS 
payment system and MHS billing solutions. Among these are to include in 
the inpatient hospital service charges adjustments related to direct 
medical education and capital costs (which in the CHAMPUS system are 
handled as annual pass through payments). Additional adjustments are 
made for long stay outlier cases. The second method uses Itemized 
Resource Utilization (IRU) rates based on the cost to provide inpatient 
institutional

[[Page 476]]

resources. Like the CHAMPUS system, inpatient professional services are 
not included in the inpatient institutional services charges calculated 
under either methodology, but are billed separately in accordance with 
paragraph (e) of this section. In lieu of either method described in 
this paragraph (b), the method in effect prior to April 1, 2003 
(described in paragraph (c) of this section), may continue to be used 
for a period of time after April 1, 2003, if the ASD(HA) determines that 
effective implementation requires a temporary deferral.
    (c) Inpatient hospital and inpatient professional services before 
April 1, 2003--(1) In general. Prior to April 1, 2003, the computation 
of reasonable charges for inpatient institutional and professional 
services is reasonable costs based on diagnosis related groups (DRGs). 
Costs shall be based on the inpatient full reimbursement rate per 
hospital discharge, weighted to reflect the intensity of the principal 
diagnosis involved. The average charge per case shall be published 
annually as an inpatient standardized amount. A relative weight for each 
DRG shall be the same as the DRG weights published annually for hospital 
reimbursement rates under CHAMPUS pursuant to 32 CFR 199.14(a)(1). The 
method in effect prior to April 1, 2003 (as described in this paragraph 
(c)), may continue to be used for a period of time after April 1, 2003, 
if the ASD(HA) determines that effective implementation requires a 
temporary deferral of the method described in paragraph (b) of this 
section.
    (2) Standard amount. The standard amount is determined by dividing 
the total costs of all inpatient care in all military treatment 
facilities by the total number of discharges. This produces a single 
national standardized amount. The Department of Defense is authorized, 
but not required by this part, to calculate three standardized amounts, 
one for large urban, other urban/rural, and overseas area, utilizing the 
same distinctions in identifying the first two areas as is used for 
CHAMPUS under 32 CFR 199.14(a)(1). Using this applicable standardized 
amount, the Department of Defense may make adjustments for area wage 
rates and indirect medical education costs (as identified in paragraph 
(c)(4) of this section), producing for each inpatient facility of the 
Uniformed Services a facility-specific ``adjusted standardized amount'' 
(ASA).
    (3) DRG relative weights. Costs for each DRG will be determined by 
multiplying the standardized amount per discharge by the DRG relative 
weight. For this purpose, the DRG relative weights used for CHAMPUS 
pursuant to 32 CFR 199.14(a)(1) shall be used.
    (4) Adjustments for outliers, area wages, and indirect medical 
education. The Department of Defense may, but is not required by this 
part, to adjust charge determinations in particular cases for length-of-
stay outliers (long stay and short stay), cost outliers, area wage 
rates, and indirect medical education. If any such adjustments are used, 
the method shall be comparable to that used for CHAMPUS hospital 
reimbursements pursuant to 32 CFR 199.14(a)(1)(iii)(E), and the 
calculation of the standardized amount under paragraph (a)(2) of this 
section will reflect that such adjustments will be used.
    (5) Identification of professional and institutional charges. For 
purposes of billing third party payers other than automobile liability 
and no-fault insurance carriers, inpatient billings are subdivided into 
two categories:
    (i) Institutional charges (which refer to routine service charges 
associated with the facility encounter or hospital stay and ancillary 
charges).
    (ii) Professional charges (which refers to professional services 
provided by physicians and certain other providers).
    (d) Medical services and subsistence charges included. Medical 
services charges pursuant to 10 U.S.C. 1078 or subsistence charges 
pursuant to 10 U.S.C. 1075 are included in the claim filed with the 
third party payer pursuant to 10 U.S.C. 1095. For any patient of a 
facility of the Uniformed Services who indicates that he or she is a 
beneficiary of a third party payer plan, the usual medical services or 
subsistence charge will not be collected from the patient to the extent 
that payment received from the payer exceeds the medical services or 
subsistence charge. Thus, except in cases covered by Sec. 220.8(k), 
payment of the claim made

[[Page 477]]

pursuant to 10 U.S.C. 1095 which exceeds the medical services or 
subsistence charge, will satisfy all of the third party payer's 
obligation arising from the care provided by the facility of the 
Uniformed Services on that occasion.
    (e) Reasonable charges for professional services. The CHAMPUS 
Maximum Allowable Charge rate table, established under 32 CFR 199.14(h), 
is used for determining the appropriate charge for professional services 
in an itemized format, based on Healthcare Common Procedure Coding 
System (HCPCS) methodology. This applies to outpatient professional 
charges only prior to implementation of the method described in 
paragraph (b) of this section, and to all professional charges, both 
inpatient and outpatient, thereafter.
    (f) Miscellaneous Healthcare services. Some special services are 
provided by or through facilities of the Uniformed Services for which 
reasonable charges are computed based on reasonable costs. Those 
services are the following:
    (1) The charge for ambulance services is based on the full costs of 
operating the ambulance service.
    (2) With respect to inpatient institutional charges in the Burn 
Center at Brooke Army Medical Center, the ASD(HA) may establish an 
adjustment to the rate otherwise applicable under the payment 
methodologies under this section to reflect unique attributes of the 
Burn Center.
    (3) Charges for dental services (including oral diagnosis and 
prevention, periodontics, prosthodontics (fixed and removable), 
implantology, oral surgery, orthodontics, pediatric dentistry and 
endodontics) will be based on a full cost of the dental services.
    (4) With respect to service provided prior to January 1, 2003, 
reasonable charges for anesthesia services will be based on an average 
DoD cost of service in all Military Treatment Facilities. With respect 
to services provided on or after January 1, 2003, reasonable charges for 
anesthesia services will be based on an average cost per minute of 
service in all Military Treatment Facilities.
    (5) The charge for immunizations, allergen extracts, allergic 
condition tests, and the administration of certain medications when 
these services are provided by or through a facility of the Uniformed 
Services or a separate immunizations or shot clinic, are based either on 
CHAMPUS prevailing rates or on IRU rates based on the cost to provide 
these items, exclusive of any costs considered for purposes of any 
outpatient visit. A separate charge shall be made for each immunization, 
injection or medication administered.
    (6) The charges for pharmacy, durable medical equipment and supply 
resources are based either on CHAMPUS prevailing rates or on IRU rates 
based on the cost to provide these items, exclusive of any costs 
considered for purposes of any outpatient visit. A separate charge shall 
be made for each item provided.
    (7) Charges for aero-medical evacuation will be based on the full 
cost of the aero-medical evacuation services.
    (8) Ambulatory (outpatient) institutional services on or after 
October 1, 2017. Reasonable charges for institutional facility charges 
for ambulatory services provided on or after October 1, 2017, are based 
on any of three methods as determined by the ASD(HA). The first uses the 
CHAMPUS Ambulatory Payment Classification (APC) and Ambulatory Surgery 
Center (ASC) payment system rates under 32 CFR 199.14(a)(1)(ii) and 
(iii) and 32 CFR 199.14(d) respectively. The second uses a bundled MHS 
Ambulatory Procedure Visit (APV) payment system rate charge reflected by 
the average cost of providing an APV exclusive of professional services. 
The third method uses IRU rates based on the cost to provide ambulatory 
institutional resources. Like the CHAMPUS system, ambulatory 
professional services are not included in the ambulatory institutional 
facility charges calculated under any of the three methodologies, but 
are billed separately in accordance with paragraph (e) of this section.
    (g) Special rule for services ordered and paid for by a facility of 
the Uniformed Services but provided by another provider. In cases where 
a facility of the Uniformed Services purchases ancillary services or 
procedures, from a source other than a Uniformed Services facility, the 
cost of the purchased services will be added to the standard rate. 
Examples of ancillary services and other

[[Page 478]]

procedures covered by this special rule include (but are not limited 
to): laboratory, radiology, pharmacy, pulmonary function, cardiac 
catheterization, hemodialysis, hyperbaric medicine, electrocardiography, 
electroencephalography, electroneuromyography, pulmonary function, 
inhalation and respiratory therapy and physical therapy services.
    (h) Special rule for TRICARE Resource Sharing Agreements. Services 
provided in facilities of the Uniformed Services in whole or in part 
through personnel or other resources supplied under a TRICARE Resource 
Sharing Agreement under 32 CFR 199.17(h) are considered for purposes of 
this part as services provided by the facility of the Uniformed 
Services. Thus, third party payers will receive a claim for such 
services in the same manner and for the same charges as any similar 
services provided by a facility of the Uniformed Services.
    (i) Alternative determination of reasonable charges. Any third party 
payer that can satisfactorily demonstrate a prevailing rate of payment 
in the same geographic area for the same or similar aggregate groups of 
services that is less than the charges prescribed under this section 
may, with the agreement of the facility of the Uniformed Services (or 
other authorized representatives of the United States), limit payments 
under 10 U.S.C. 1095 to that prevailing rate for those services. The 
determination of the third party payer's prevailing rate shall be based 
on a review of valid contractual arrangements with other facilities or 
providers constituting a majority of the services for which payment is 
made under the third party payer's plan. This paragraph does not apply 
to cases covered by Sec. 220.11.
    (j) Exception authority for extraordinary circumstances. The 
Assistant Secretary of Defense (Health Affairs) may authorize exceptions 
to this section, not inconsistent with law, based on extraordinary 
circumstances.

[57 FR 41101, Sept. 9, 1992, as amended at 59 FR 49002, Sept. 26, 1994; 
61 FR 6542, Feb. 21, 1996; 62 FR 941, Jan. 7, 1997; 65 FR 7728, Feb. 16, 
2000; 67 FR 57740, Sept. 12, 2002; 85 FR 51351, Aug. 20, 2020]



Sec. 220.9  Rights and obligations of beneficiaries.

    (a) No additional cost share. Pursuant to 10 U.S.C. 1095(a)(2), 
uniformed services beneficiaries will not be required to pay to the 
facility of the uniformed services any amount greater than the normal 
medical services or subsistence charges (under 10 U.S.C. 1075 or 1078). 
In every case in which payment from a third party payer is received, it 
will be considered as satisfying the normal medical services or 
subsistence charges, and no further payment from the beneficiary will be 
required.
    (b) Availability of healthcare services unaffected. The availability 
of healthcare services in any facility of the Uniformed Services will 
not be affected by the participation or nonparticipation of a Uniformed 
Services beneficiary in a health care plan of a third party payer. 
Whether or not a Uniformed Services beneficiary is covered by a third 
party payer's plan will not be considered in determining the 
availability of healthcare services in a facility of the Uniformed 
Services.
    (c) Obligation to disclose information and cooperate with collection 
efforts. (1) Uniformed Services beneficiaries are required to provide 
correct information to the facility of the Uniformed Services regarding 
whether the beneficiary is covered by a third party payer's plan. Such 
beneficiaries are also required to provide correct information regarding 
whether particular health care services might be covered by a third 
party payer's plan, including services arising from an accident or 
workplace injury or illness. In the event a third party payer's plan 
might be applicable, a beneficiary has an obligation to provide such 
information as may be necessary to carry out 10 U.S.C. 1095 and this 
part, including identification of policy numbers, claim numbers, 
involved parties and their representatives, and other relevant 
information.
    (2) Uniformed Services beneficiaries are required to take other 
reasonable steps to cooperate with the efforts of the facility of the 
Uniformed Services to make collections under 10 U.S.C. 1095 and this 
part, such as submitting to the third party payer (or other entity 
involved in adjudicating a claim) any requests or documentation that

[[Page 479]]

might be required by the third party payer (or other entity), if 
consistent with this part, to facilitate payment under this part.
    (3) Intentionally providing false information or willfully failing 
to satisfy a beneficiary's obligations are grounds for disqualification 
for health care services from facilities of the Uniformed Services.
    (d) Mandatory disclosure of Social Security account numbers. 
Pursuant to 10 U.S.C. 1095(k)(2), every covered beneficiary eligible for 
care in facilities of the Uniformed Services is, as a condition of 
eligibility, required to disclose to authorized personnel his or her 
Social Security account number.

[55 FR 21748, May 29, 1990, as amended at 57 FR 41102, Sept. 9, 1992; 63 
FR 11600, Mar. 10, 1998; 65 FR 7729, Feb. 16, 2000]



Sec. 220.10  Special rules for Medicare supplemental plans.

    (a) Statutory obligation of Medicare supplemental plans to pay. The 
obligation of a Medicare supplemental plan to pay shall be determined as 
if the facility of the Uniformed Services were a medicare-eligible 
provider and the services provided as if they were Medicare-covered 
services. A Medicare supplemental plan is required to pay only to the 
extent that the plan would have incurred a payment obligation if the 
services had been furnished by a Medicare eligible provider.
    (b) Inpatient hospital care charges. (1) Notwithstanding the 
provisions of Sec. 220.8, charges to Medicare supplemental plans for 
inpatient hospital care services provided to beneficiaries of such plans 
shall not, for any admission, exceed the Medicare inpatient hospital 
deductible amount.
    (2) Only one deductible charge shall be made per hospital admission 
(or Medicare benefit period), regardless of whether the admission is to 
a facility of the Uniformed Services or a Medicare certified civilian 
hospital. To ensure that a Medicare supplemental insurer is not charged 
the inpatient hospital deductible twice when an individual who is 
entitled to benefits under both DoD retiree benefits and Medicare, the 
following payment rules apply:
    (i) If a dual beneficiary is first admitted to a Medicare-certified 
hospital and is later admitted to a facility of the Uniformed Services 
within the same benefit period initiated by the admission to the 
Medicare-certified hospital, the facility of the Uniformed Services 
shall not charge the Medicare supplemental insurance plan an inpatient 
hospital deductible.
    (ii) If a dual beneficiary is admitted first to a facility of the 
Uniformed Services and secondly to a Medicare-certified hospital within 
60 days of discharge from the facility of the Uniformed Services, the 
facility of the Uniformed Services shall refund to the Medicare 
supplemental insurer any inpatient hospital deductible that the insurer 
paid to the facility of the Uniformed Services so that it may pay the 
deductible to the Medicare-certified hospital.
    (c) Charges for Healthcare services other than inpatient deductible 
amount. (1) The Assistant Secretary of Defense (Health Affairs) may 
establish charge amounts for Medicare supplemental plans to collect 
reasonable charges for inpatient and outpatient copayments and other 
services covered by the Medicare supplemental plan. Any such schedule of 
charge amounts shall:
    (i) Be based on percentage amounts of the per diem, per visit and 
other rates established by Sec. 220.8 comparable to the percentage 
amounts of beneficiary financial responsibility under Medicare for the 
service involved;
    (ii) Include adjustments, as appropriate, to identify major 
components of the all inclusive per diem or per visit rates for which 
Medicare has special rules.
    (iii) Provide for offsets and/or refunds to ensure that Medicare 
supplemental insurers are not required to pay a limited benefit more 
than one time in cases in which beneficiaries receive similar services 
from both a facility of the uniformed services and a Medicare certified 
provider; and
    (iv) Otherwise conform with the requirements of this section and 
this part.
    (2) If collections are sought under paragraph (c) of this section, 
the effective date of such collections will be prospective from the date 
the Assistant

[[Page 480]]

Secretary of Defense (Health Affairs) provides notice of such 
collections, and will exempt policies in continuous effect without 
amendment or renewal since the date the Assistant Secretary of Defense 
(Health Affairs) provides notice of such collections.
    (d) Medicare claim not required. Notwithstanding any requirement of 
the Medicare supplemental plan policy, a Medicare supplemental plan may 
not refuse payment to a claim made pursuant to this section on the 
grounds that no claim had previously been submitted by the provider or 
beneficiary for payment under the Medicare program.
    (e) Exclusion of Medicare supplemental plans prior to November 5, 
1990. This section is not applicable to Medicare supplemental plans:
    (1) That have been in continuous effect without amendment since 
prior to November 5, 1990; and
    (2) For which the facility of the Uniformed Services (or other 
authorized representative of the United States) makes a determination, 
based on documentation provided by the Medicare supplemental plan, that 
the plan agreement clearly excludes payment for services covered by this 
section. Plans entered into, amended or renewed on or after November 5, 
1990, are subject to this section, as are prior plans that do not 
clearly exclude payment for services covered by this section.

[57 FR 41102, Sept. 9, 1992, as amended at 59 FR 49003, Sept. 26, 1994; 
67 FR 57742, Sept. 12, 2002]



Sec. 220.11  Special rules for automobile liability insurance and no-fault automobile insurance.

    (a) Active duty members covered. In addition to Uniformed Services 
beneficiaries covered by other provisions of this part, this section 
also applies to active duty members of the Uniformed Services. As used 
in this section, ``beneficiaries'' includes active duty members.
    (b) Effect of concurrent applicability of the Federal Medical Care 
Recovery Act--(1) In general. In many cases covered by this section, the 
United States has a right to collect under both 10 U.S.C. 1095 and the 
Federal Medical Care Recovery Act (FMCRA), Pub. L. 87-693 (42 U.S.C. 
2651 et seq.). In such cases, the authority is concurrent and the United 
States may pursue collection under both statutory authorities.
    (2) Cases involving tort liability. In cases in which the right of 
the United States to collect from the automobile liability insurance 
carrier is premised on establishing some tort liability on some third 
person, matters regarding the determination of such tort liability shall 
be governed by the same substantive standards as would be applied under 
the FMCRA including reliance on state law for determinations regarding 
tort liability. In addition, the provisions of 28 CFR part 43 
(Department of Justice regulations pertaining to the FMCRA) shall apply 
to claims made under the concurrent authority of the FMCRA and 10 U.S.C. 
1095. All other matters and procedures concerning the right of the 
United States to collect shall, if a claim is made under the concurrent 
authority of the FMCRA and this section, be governed by 10 U.S.C. 1095 
and this part.
    (c) Exclusion of automobile liability insurance and no-fault 
automobile insurance plans prior to November 5, 1990. This section is 
not applicable to automobile liability insurance and no-fault automobile 
insurance plans:
    (1) That have been in continuous effect without amendment since 
prior to November 5, 1990; and
    (2) For which the facility of the Uniformed Services (or other 
authorized representative of the United States) makes a determination, 
based on documentation provided by the third party payer, that the 
policy or plan clearly excludes payment for services covered by this 
section. Plans entered into, amended or renewed on or after November 5, 
1990, are subject to this section, as are prior plans that do not 
clearly exclude payment for services covered by this section.

[57 FR 41103, Sept. 9, 1992]



Sec. 220.12  [Reserved]



Sec. 220.13  Special rules for workers' compensation programs.

    (a) Basic rule. Pursuant to the general duty of third party payers 
under 10 U.S.C. 1095(a)(1) and the definitions of

[[Page 481]]

10 U.S.C. 1095(h), a workers' compensation program or plan generally has 
an obligation to pay the United States the reasonable charges for 
healthcare services provided in or through any facility of the Uniformed 
Services to a Uniformed Services beneficiary who is also a beneficiary 
under a workers' compensation program due to an employment related 
injury, illness, or disease. Except to the extent modified or 
supplemented by this section, all provisions of this part are applicable 
to any workers' compensation program or plan in the same manner as they 
are applicable to any other third party payer.
    (b) Special rules for lump-sum settlements. In cases in which a 
lump-sum workers' compensation settlement is made, the special rules 
established in this paragraph (b) shall apply for purposes of compliance 
with this section.
    (1) Lump-sum commutation of future benefits. If a lump-sum worker's 
compensation award stipulates that the amount paid is intended to 
compensate the individual for all future medical expenses required 
because of the work-related injury, illness, or disease, the Uniformed 
Service health care facility is entitled to reimbursement for injury, 
illness, or disease related, future health care services or items 
rendered or provided to the individual up to the amount of the lump-sum 
payment.
    (2) Lump-sum compromise settlement. (i) A lump sum compromise 
settlement, unless otherwise stipulated by an official authorized to 
take action under 10 U.S.C. 1095 and this part, is deemed to be a 
workers' compensation payment for the purpose of reimbursement to the 
facility of the Uniformed Services for services and items provided, even 
if the settlement agreement stipulates that there is no liability under 
the workers' compensation law, program, or plan.
    (ii) If a settlement appears to represent an attempt to shift to the 
facility of the Uniformed Services the responsibility of providing 
uncompensated services or items for the treatment of the work-related 
condition, the settlement will not be recognized and reimbursement to 
the uniformed health care facility will be required. For example, if the 
parties to a settlement attempt to maximize the amount of disability 
benefits paid under workers' compensation by releasing the employer or 
workers' compensation carrier from liability for medical expenses for a 
particular condition even though the facts show that the condition is 
work-related, the facility of the Uniformed Services must be reimbursed.
    (iii) Except as specified in paragraph (b)(2)(iv) of this section, 
if a lump-sum compromise settlement forecloses the possibility of future 
payment or workers' compensation benefits, medical expenses incurred by 
a facility of the Uniformed Services after the date of the settlement 
are not reimbursable under this section.
    (iv) As an exception to the rule of paragraph (b)(2)(iii) of this 
section, if the settlement agreement allocates certain amounts for 
specific future medical services, the facility of the Uniformed Services 
is entitled to reimbursement for those specific services and items 
provided resulting from the work-related injury, illness, or disease up 
to the amount of the lump-sum settlement allocated to future expenses.
    (3) Apportionment of a lump-sum compromise settlement of a workers' 
compensation claim. If a compromise settlement allocates a portion of 
the payment for medical expenses and also gives reasonable recognition 
to the income replacement element, that apportionment may be accepted as 
a basis for determining the payment obligation of a workers' 
compensation program or plan under this section to a facility of the 
Uniformed Services. If the settlement does not give reasonable 
recognition to both elements of a workers' compensation award or does 
not apportion the sum granted, the portion to be considered as payment 
for medical expenses is computed as follows: determine the ratio of the 
amount awarded (less the reasonable and necessary costs incurred in 
procuring the settlement) to the total amount that would have been 
payable under workers' compensation if the claim had not been 
compromised; multiply that ratio by the total medical expenses incurred 
as a result of the injury or disease up to the date of settlement. The 
product is the amount of workers' compensation settlement to

[[Page 482]]

be considered as payment or reimbursement for medical expenses.

[65 FR 7730, Feb. 16, 2000, as amended at 67 FR 57742, Sept. 12, 2002]



Sec. 220.14  Definitions.

    Ambulatory procedure visit. An ambulatory procedure visit is a type 
of outpatient visit in which immediate (day of procedure) pre-procedure 
and immediate post-procedure care require an unusual degree of intensity 
and are provided in an ambulatory procedure unit (APU) of the facility 
of the Uniformed Services. Care is required in the facility for less 
than 24 hours. An APU is specially designated and is accounted for 
separately from any outpatient clinic.
    Assistant Secretary of Defense (Health Affairs). This term includes 
any authorized designee of the Assistant Secretary of Defense (Health 
Affairs).
    Automobile liability insurance. Automobile liability insurance means 
insurance against legal liability for health and medical expenses 
resulting from personal injuries arising from operation of a motor 
vehicle. Automobile liability insurance includes:
    (1) Circumstances in which liability benefits are paid to an injured 
party only when the insured party's tortious acts are the cause of the 
injuries; and
    (2) Uninsured and underinsured coverage, in which there is a third 
party tortfeasor who caused the injuries (i.e., benefits are not paid on 
a no-fault basis), but the insured party is not the tortfeasor.
    CHAMPUS supplemental plan. A CHAMPUS supplemental plan is an 
insurance, medical service or health plan exclusively for the purpose of 
supplementing an eligible person's benefit under CHAMPUS. (For 
information concerning CHAMPUS, see 32 CFR part 199.) The term has the 
same meaning as set forth in the CHAMPUS regulation (32 CFR 199.2).
    Covered beneficiaries. Covered beneficiaries are all healthcare 
beneficiaries under chapter 55 of title 10, United States Code, except 
members of the Uniformed Services on active duty (as specified in 10 
U.S.C. 1074(a)). However, for purposes of Sec. 220.11 of this part, 
such members of the Uniformed Services are included as covered 
beneficiaries.
    Facility of the Uniformed Services. A facility of the Uniformed 
Services means any medical or dental treatment facility of the Uniformed 
Services (as that term is defined in 10 U.S.C. 101(43)). Contract 
facilities such as Navy NAVCARE clinics and Army and Air Force PRIMUS 
clinics that are funded by a facility of the Uniformed Services are 
considered to operate as an extension of the local military treatment 
facility and are included within the scope of this program. Facilities 
of the Uniformed Services also include several former Public Health 
Services facilities that are deemed to be facilities of the Uniformed 
Services pursuant to section 911 of Pub. L. 97-99 (often referred to as 
``Uniformed Services Treatment Facilities'' or ``USTFs'').
    Healthcare services. Healthcare services include inpatient, 
outpatient, and designated high-cost ancillary services.
    Inpatient hospital care. Treatment provided to an individual other 
than a transient patient, who is admitted (i.e., placed under treatment 
or observation) to a bed in a facility of the uniformed services that 
has authorized beds for inpatient medical or dental care.
    Insurance, medical service or health plan. Any plan (including any 
plan, policy, program, contract, or liability arrangement) that provides 
compensation, coverage, or indemnification for expenses incurred by a 
beneficiary for health or medical services, items, products, and 
supplies. It includes but is not limited to:
    (1) Any plan offered by an insurer, re-insurer, employer, 
corporation, organization, trust, organized health care group or other 
entity.
    (2) Any plan for which the beneficiary pays a premium to an issuing 
agent as well as any plan to which the beneficiary is entitled as a 
result of employment or membership in or association with an 
organization or group.
    (3) Any Employee Retirement Income and Security Act (ERISA) plan.
    (4) Any Multiple Employer Trust (MET).
    (5) Any Multiple Employer Welfare Arrangement (MEWA).

[[Page 483]]

    (6) Any Health Maintenance Organization (HMO) plan, including any 
such plan with a point-of-service provision or option.
    (7) Any individual practice association (IPA) plan.
    (8) Any exclusive provider organization (EPO) plan.
    (9) Any physician hospital organization (PHO) plan.
    (10) Any integrated delivery system (IDS) plan.
    (11) Any management service organization (MSO) plan.
    (12) Any group or individual medical services account.
    (13) Any preferred provider organization (PPO) plan or any PPO 
provision or option of any third party payer plan.
    (14) Any Medicare supplemental insurance plan.
    (15) Any automobile liability insurance plan.
    (16) Any no fault insurance plan, including any personal injury 
protection plan or medical payments benefit plan for personal injuries 
arising from the operation of a motor vehicle.
    Medicare eligible provider. Medicare participating (institutional) 
providers and physicians, suppliers and other individual providers 
eligible to participate in the Medicare program.
    Medicare supplemental insurance plan. A Medicare supplemental 
insurance plan is an insurance, medical service or health plan primarily 
for the purpose of supplementing an eligible person's benefit under 
Medicare. The term has the same meaning as ``Medicare supplemental 
policy'' in section 1882(g)(1) of the Social Security Act (42 U.S.C. 
1395ss) and 42 CFR part 403, subpart B.
    No-fault insurance. No-fault insurance means an insurance contract 
providing compensation for health and medical expenses relating to 
personal injury arising from the operation of a motor vehicle in which 
the compensation is not premised on who may have been responsible for 
causing such injury. No-fault insurance includes personal injury 
protection and medical payments benefits in cases involving personal 
injuries resulting from operation of a motor vehicle.
    Preferred provider organization. A preferred provider organization 
(PPO) is any arrangement in a third party payer plan under which 
coverage is limited to services provided by a select group of providers 
who are members of the PPO or incentives (for example, reduced 
copayments) are provided for beneficiaries under the plan to receive 
health care services from the members of the PPO rather than from other 
providers who, although authorized to be paid, are not included in the 
PPO. However, a PPO does not include any organization that is recognized 
as a health maintenance organization.
    Third party payer. A third party payer is any entity that provides 
an insurance, medical service, or health plan by contract or agreement. 
It includes but is not limited to:
    (1) State and local governments that provide such plans other than 
Medicaid.
    (2) Insurance underwriters or carriers.
    (3) Private employers or employer groups offering self-insured or 
partially self-insured medical service or health plans.
    (4) Automobile liability insurance underwriter or carrier.
    (5) No fault insurance underwriter or carrier.
    (6) Workers' compensation program or plan sponsor, underwriter, 
carrier, or self-insurer.
    (7) Any other plan or program that is designed to provide 
compensation or coverage for expenses incurred by a beneficiary for 
healthcare services or products.
    Third party payer plan. A third party payer plan is any plan or 
program provided by a third party payer, but not including an income or 
wage supplemental plan.
    Uniformed Services beneficiary. For purposes of this part, a 
Uniformed Services beneficiary is any person who is covered by 10 U.S.C. 
1074(b), 1076(a), or 1076(b). For purposes of Sec. 220.11 (but not for 
other sections), a Uniformed Services beneficiary also includes active 
duty members of the Uniformed Services.
    Workers' compensation program or plan. A workers' compensation 
program or plan is any program or plan that provides compensation for 
loss, to employees or their dependents, resulting from the injury, 
disablement, or

[[Page 484]]

death of an employee due to an employment related accident, casualty or 
disease. The common characteristic of such a plan or program is the 
provision of compensation regardless of fault, in accordance with a 
delineated schedule based upon loss or impairment of the worker's wage 
earning capacity, as well as indemnification or compensation for medical 
expenses relating to the employment related injury or disease. A 
workers' compensation program or plan includes any such program or plan:
    (1) Operated by or under the authority of any law of any State (or 
the District of Columbia, American Samoa, Guam, Puerto Rico, and the 
Virgin Islands).
    (2) Operated through an insurance arrangement or on a self-insured 
basis by an employer.
    (3) Operated under the authority of the Federal Employees 
Compensation Act or the Longshoremen's and Harbor Workers' Compensation 
Act.

[57 FR 41103, Sept. 9, 1992. Redesignated and amended at 65 FR 7729, 
7731, Feb. 16, 2000; 67 FR 57742, Sept. 12, 2002]



PART 221_DOD IDENTITY MANAGEMENT--Table of Contents



Sec.
221.1 Purpose.
221.2 Applicability.
221.3 Definitions.
221.4 Policy.
221.5 Responsibilities.
221.6 Procedures.

    Authority: 10 U.S.C. 1044a.

    Source: 83 FR 59304, Nov. 23, 2018, unless otherwise noted.



Sec. 221.1  Purpose.

    (a) The purpose of the overall part is to implement policy, assign 
responsibilities, and provide procedures for DoD personnel 
identification.
    (b) This part establishes implementation guidelines for DoD Self-
Service (DS) Logon Program.



Sec. 221.2  Applicability.

    This part applies to:
    (a) The Office of the Secretary of Defense, the Military Departments 
(including the Coast Guard at all times, including when it is a Service 
in the Department of Homeland Security, by agreement with that 
Department), the Office of the Chairman of the Joint Chiefs of Staff and 
the Joint Staff, the Combatant Commands, the Office of the Inspector 
General of the Department of Defense, the Defense Agencies, the DoD 
Field Activities, and all other organizational entities within the DoD 
(referred to collectively in this part as the ``DoD Components'').
    (b) The Commissioned Corps of the U.S. Public Health Service 
(USPHS), under agreement with the Department of Health and Human 
Services, and the National Oceanic and Atmospheric Administration 
(NOAA), under agreement with the Department of Commerce.



Sec. 221.3  Definitions.

    Unless otherwise noted, the following terms and their definitions 
are for the purposes of this part:
    Beneficiary. Individuals affiliated with the DoD and any of the 
uniformed Services identified in Sec. 221.2 Applicability, that may be 
eligible for benefits or entitlements.
    Certified copy. A copy of a document that is certified as a true 
original and:
    (1) Conveys the appropriate seal or markings of the issuer;
    (2) Has a means to validate the authenticity of the document by a 
reference or source number;
    (3) Is a notarized legal document or other document approved by a 
judge advocate, member of any of the armed forces, or other eligible 
person in accordance with 10 U.S.C. 1044a; or
    (4) Has the appropriate certificate of authentication by a U.S. 
Consular Officer in the foreign country of issuance which attests to the 
authenticity of the signature and seal.
    DoD beneficiary (DB). Beneficiaries who qualify for DoD benefits or 
entitlements who may be credentialed in accordance with National 
Institute of Science and Technology Special Publication 800-63-2, 
``Electronic Authentication Guideline'' (available at http://
nvlpubs.nist.gov/ nistpubs/SpecialPublications/ NIST.SP.800-63-2.pdf). 
This population may include widows, widowers, and eligible former 
spouses.
    Dependent. An individual whose relationship to the sponsor leads to 
entitlement to benefits and privileges.

[[Page 485]]

    DS Logon credential. A username and password to allow Service 
members, beneficiaries, and other individuals affiliated with the DoD 
secure access to self-service websites.
    DS Logon credential holder. A Service member, beneficiary, and other 
individual affiliated with the DoD who has applied for and received a DS 
Logon credential.
    Former member. An individual who is eligible for, or entitled to, 
retired pay for non-regular service in accordance with 31 U.S.C. chapter 
1223, but who has been discharged from the Service and who maintains no 
military affiliation.
    Former spouse. An individual who was married to a uniformed services 
member for at least 20 years, and the member had at least 20 years of 
service creditable toward retirement, and the marriage overlapped as 
follows:
    (1) Twenty years marriage, 20 years creditable service for 
retirement, and 20 years overlap between the marriage and the service 
(referred to as 20/20/20). The benefits eligibility begins on the date 
of divorce;
    (2) Twenty years marriage, 20 years creditable service for 
retirement, and 15 years overlap between the marriage and the service 
(referred to as 20/20/15). The benefits eligibility begins on the date 
of divorce; or
    (3) A spouse whose marriage was terminated from a uniformed Service 
member who has their eligibility to receive retired pay terminated as a 
result of misconduct based on Service-documented abuse of the spouse and 
has 10 years of marriage, 20 years of creditable service for retirement, 
10 years of overlap between the marriage and the service (referred to as 
10/20/10). The benefits eligibility begins on the date of divorce.
    Legal guardian (LG). The terms ``guardian'' and ``conservator'' are 
used synonymously. Some States may limit the authority of a guardian to 
specific types of health care decisions; a court may also impose 
limitations on the health care decisions.
    Surrogate. A person who has been delegated authority, either by an 
eligible individual who is at least 18 years of age and mentally 
competent to consent or by a court of competent jurisdiction in the 
United States (or possession of the United States), to act on behalf of 
the eligible individual in a specific role.
    Widow. The female spouse of a deceased member of the uniformed 
services.
    Widower. The male spouse of a deceased member of the uniformed 
services.



Sec. 221.4  Policy.

    In accordance with DoD Instruction 1000.25, ``DoD Personnel Identity 
Protection (PIP) Program'' (available at http://www.esd.whs.mil/ 
Portals/54/Documents/DD/ issuances/dodi/100025p.pdf), DoD Instruction 
1341.02, ``Defense Enrollment Eligibility Reporting System (DEERS) 
Procedures'' (available at http://www.esd.whs.mil/ Portals/54/Documents/
DD/ issuances/dodi/134102p.pdf), Office of Management and Budget M-04-
04, ``E-Authentication Guidance for Federal Agencies'' (available at 
www.whitehouse.gov/ sites/default/files/omb/ memoranda/fy04/m04-04.pdf) 
and 32 CFR part 310, it is DoD policy that DoD will provide a secure 
means of authentication to PII and personal health information (PHI) for 
all beneficiaries and other individuals with a continuing affiliation 
with DoD.



Sec. 221.5  Responsibilities.

    (a) The Under Secretary of Defense for Personnel and Readiness 
(USD(P&R)) oversees implementation of the procedures within this part.
    (b) Under the authority, direction, and control of the USD(P&R), and 
in addition to the responsibilities in paragraph (c) of this section, 
the Director, DoDHRA, through the Director, DMDC:
    (1) Approves the addition or elimination of population categories 
for DS Logon eligibility.
    (2) Develops and fields the required Defense Enrollment Eligibility 
Reporting System (DEERS) and RAPIDS infrastructure and all elements of 
field support required to support the management of the DS Logon 
credential including, but not limited to, issuance, storage, 
maintenance, and customer service.
    (3) Obtains and distributes DS Logon credentials, and provides a 
secure means for delivery.

[[Page 486]]

    (c) The DoD Component heads:
    (1) Comply with this part and distribute this guidance to applicable 
stakeholders.
    (2) Provide manpower for issuance of DS Logon credentials and 
instruction for use to all eligible individuals who are requesting a DS 
Logon credential in conjunction with the issuance of a DoD 
identification (ID) card or who are applying for a DS Logon credential 
as a surrogate, when responsible for a DoD ID card site(s).
    (d) The Secretaries of the Military Departments, in addition to the 
responsibilities in paragraph (c) of this section, and the heads of the 
non-DoD uniformed services:
    (1) Comply with this part and distribute this guidance to applicable 
stakeholders.
    (2) Provide manpower for issuance of DS Logon credentials and 
instruction for use to all eligible individuals who are requesting a DS 
Logon credential in conjunction with the issuance of a DoD ID card or 
who are applying for a DS Logon credential as a surrogate.
    (3) Ensure all Active Duty, National Guard and Reserve, and 
Commissioned Corps members of their uniformed services obtain a DS Logon 
credential when separating from active duty or from the uniformed 
service.



Sec. 221.6  Procedures.

    (a) General. A DS Logon credential will be made available to all 
beneficiaries that are eligible for DoD-related benefits or entitlements 
to facilitate secure authentication to critical websites. This includes 
members of the uniformed services, veterans with a continuing 
affiliation to the DoD, spouses, dependent children aged 18 and over, 
and other eligible individuals identified in paragraph (b) of this 
section.
    (b) Overview. Only one DS Logon credential may exist for an 
individual, regardless of the number of affiliations an individual may 
have to the DoD.
    (1) Eligibility. Beneficiaries of DoD-related benefits or 
entitlements and other individuals with a continuing affiliation with 
the DoD may be eligible for a DS Logon credential. Eligible populations 
include:
    (i) Veterans, including former members, retirees, Medal of Honor 
recipients, disabled American veterans, and other veterans with a 
continuing affiliation to the DoD.
    (ii) Eligible retired DoD civilian employees in accordance with DoD 
Instruction 1330.17, ``DoD Commissary Program'' (available at http://
www.esd.whs.mil/ Portals/54/ Documents/DD/ issuances/dodi/133017p.pdf), 
and DoD Instruction 1330.21, ``Armed Services Exchange Regulations'' 
(available at http://www.esd.whs.mil/ Portals/54/ Documents/DD/ 
issuances/dodi/133021p.pdf).
    (iii) Eligible dependents in accordance with Volume 2 of DoD Manual 
1000.13, ``DoD Identification (ID) Cards: Benefits for Members of the 
Uniformed Services, Their Dependents, and Other Eligible Individuals'' 
(available at http://www.esd.whs.mil/ Portals/54/ Documents/DD/ 
issuances/dodm/ 100013_vol2.pdf), including spouses, dependent children 
aged 18 or older, and dependent parents.
    (iv) DBs, including eligible widows, widowers, and former spouses, 
in accordance with Volume 2 of DoD Manual 1000.13.
    (v) Surrogates, as described in paragraph (d) of this section.
    (vi) Other populations as determined by the Director, DMDC.
    (2) [Reserved]
    (c) Lifecycle--(1) Application. Eligible individuals, as identified 
in paragraph (b)(1) of this section, may apply for a DS Logon 
credential:
    (i) Online. Individuals with internet access may apply for a sponsor 
or dependent DS Logon by submitting a:
    (A) My Access Center website request. This type of request supports 
the provisioning of a Basic DS Logon credential. The My Access Center 
website can be accessed at https://myaccess.dmdc .osd.mil/.
    (B) CAC request. Individuals with a CAC, a computer with internet 
access and a CAC reader may apply for either a sponsor or a dependent DS 
Logon credential via the My Access Center website or any application 
that has implemented DS Logon.
    (1) A sponsor DS Logon credential is provisioned immediately upon 
request.

[[Page 487]]

This type of request supports the provisioning of a Premium DS Logon 
credential.
    (2) A request for a DS Logon credential on behalf of a dependent 
generates an activation letter with an activation code that is mailed to 
the sponsor at his or her home address in DEERS. Once complete, this 
type of request supports the provisioning of a Premium DS Logon 
credential.
    (C) Request using a Defense Finance and Accounting Services (DFAS) 
myPay account. Eligible individuals may apply for a sponsor or dependent 
DS Logon credential using a DFAS myPay personal identification number 
via the My Access Center website. A request for a DS Logon credential 
generates an activation letter with an activation code that is mailed to 
the sponsor at his or her home address in DEERS. Once complete, this 
type of request supports the provisioning of a Premium DS Logon 
credential.
    (ii) Via remote proofing. Eligible individuals with an existing 
DEERS record may apply for a sponsor or dependent DS Logon credential 
using remote proofing via the My Access Center website. Individuals 
requesting a DS Logon credential via remote proofing must correctly 
answer a number of system-generated questions. Once remote proofing is 
completed, a Premium DS Logon credential is provisioned immediately.
    (iii) Via in-person proofing. Eligible individuals may apply for a 
sponsor or dependent DS Logon credential using in-person proofing. In-
person proofing is performed at Department of Veterans Affairs regional 
offices where the DS access station application is implemented, and at 
DoD ID card sites when a DS Logon credential is requested either in 
conjunction with DoD ID card issuance or during initial enrollment of a 
surrogate. Once in-person proofing is completed, a Premium DS Logon 
credential is provisioned immediately. Individuals requesting a DS Logon 
credential via in-person proofing must present:
    (A) Identity documents. DS Logon credential applicants must satisfy 
the identity verification criteria in paragraph 4a of Volume 1 of DoD 
Manual 1000.13, ``DoD Identification (ID) Cards: ID Card Life-Cycle'' 
(available at http://www.esd.whs.mil/ Portals/54/ Documents/DD/ 
issuances/dodm/ 100013_vol1.pdf), by presenting two forms of government-
issued ID, one of which must contain a photograph. The requirement for 
the primary ID to have a photo cannot be waived. Identity documents must 
be original or a certified copy. All documentation not in English must 
have a certified English translation.
    (B) Proof of address. DS Logon credential applicants must present 
proof of address, if address on the presented ID is different than the 
address in DEERS.
    (C) DD Form 214, ``Certificate of Release or Discharge from Active 
Duty.'' DS Logon credential applicants must present a DD Form 214 if a 
veteran who was separated before 1982. If separated from the Reserve 
Component, a DS Logon credential applicant may present a Reserve 
Component separation document in lieu of a DD Form 214.
    (2) Use. DS Logon credential holders may use their DS Logon 
credential at the My Access Center website and any other DoD self-
service website that accepts DS Logon.
    (3) Maintenance. DS Logon credential holders may use the My Access 
Center website to maintain and update their DS Logon credential and 
manage their personal settings. The DS Logon credential holder may:
    (i) Activate or deactivate an account.
    (ii) Reset password.
    (iii) Update challenge questions and answers.
    (iv) Upgrade from a Basic DS Logon to a Premium DS Logon credential.
    (v) Select or update preferred sponsor, if a dependent of two 
sponsors.
    (vi) Manage personal and advanced security settings.
    (vii) Manage contact information.
    (viii) Manage relationships and access granting.
    (ix) Manage the DS Logon credential using additional capabilities as 
implemented by the Director, DMDC.
    (4) Decommissioning. DS Logon credentials may be decommissioned by 
the DS Logon credential holder, via self-service; by an operator, at the 
request of the DS Logon credential holder; or by the system, when the 
credential holder no longer has an affiliation

[[Page 488]]

to the DoD or is identified as deceased in DEERS.
    (5) Reactivation. DS Logon credentials may be reactivated if the 
person is living and still eligible for the credential.
    (d) Associations. DS Logon supports several types of associations, 
including DEERS-identified family relationships and operator-initiated 
and -approved surrogates.
    (1) Family. Individuals are connected to one another based on their 
family relationship information in DEERS. A family relationship must 
exist in DEERS before the relationship can exist in DS Logon.
    (i) Multiple sponsors. An individual has only one DS Logon 
credential, regardless of the number of sponsors the individual has 
(e.g., a dependent child whose parents are both Service members).
    (ii) Transferring families. If an individual has a second family in 
DEERS, the individual can move their DS Logon credential to the second 
family. This changes the assignment of the DS Logon credential from the 
first family to the second family and removes any granted permissions 
from the first family.
    (2) Surrogacy. Surrogacy is a feature that allows an individual who 
may not be affiliated with the DoD and who may not be related to the DS 
Logon credential holder or eligible individual by a DoD-recognized 
family relationship to be granted access to a DS Logon credential 
holder's or an eligible individual's information. A surrogate may be 
established as the custodian of a deceased Service member's unmarried 
minor child(ren) who is under 18, who is at least 18 but under 23 and 
attending school full-time, or who is incapacitated. A surrogate may 
also be established as the agent of an incapacitated dependent (e.g., 
spouse, parent) or of a wounded, ill, or incapacitated Service member.
    (i) Eligibility. An operator must first establish an identity in 
DEERS before establishing the surrogacy association in DS Logon. To 
establish a surrogate association, the surrogate must present to an 
operator for approval:
    (A) A completed and signed DD Form 3005, ``Application for Surrogate 
Association for DoD Self-Service (DS) Logon.''
    (B) Any additional eligibility documents required by the DD Form 
3005 which describe the scope of the surrogate's authority.
    (C) Proof of identity, in accordance with the requirements for in-
person proofing in paragraph (c)(1)(iii) of this section.
    (ii) Types of surrogates--(A) Financial agent (FA). An eligible 
individual names an FA to assist with specific financial matters.
    (B) Legal agent (LA). An eligible individual names an LA to assist 
with legal matters.
    (C) Caregiver (CG). An eligible individual names a CG to assist with 
general health care requirements (example, viewing general health-care 
related information, scheduling appointments, refilling prescriptions, 
and tracking medical expenses), but does not make health care decisions.
    (D) Health care agent (HA). An eligible individual (the patient) 
names an HA in a durable power of attorney for health care documents to 
make health care decisions.
    (E) Legal guardian (LG). An LG is appointed by a court of competent 
jurisdiction in the United States (or jurisdiction of the United States) 
to make legal decisions for an eligible individual.
    (F) Special guardian (SG). An SG is appointed by a court of 
competent jurisdiction in the United States (or jurisdiction of the 
United States) for the specific purpose of making health care-related 
decisions for an eligible individual.
    (e) Permissions. A sponsor, a sponsor's spouse, and a sponsor's 
dependent over the age of 18 can manage who has access to their 
information (i.e., who has access to view and edit their information and 
who is eligible to act on their behalf). The provisions of this section 
may be superseded by order of a court of competent jurisdiction.
    (1) Sponsor access. Sponsors will automatically have access to the 
information of all dependents under the age of 18.
    (2) Spousal access--(i) Automatic. A sponsor's spouse will 
automatically have access to the information of all

[[Page 489]]

dependent children under the age of 18 whose relationship to the sponsor 
began on or after the date of marriage of the sponsor and sponsor's 
spouse.
    (ii) Sponsor-granted. The sponsor may grant the sponsor's spouse 
access to the information of dependent children under the age of 18 
whose relationship to the sponsor began before the date of marriage of 
the sponsor and the sponsor's spouse.
    (3) Granted access. A sponsor, a sponsor's spouse, and a sponsor's 
dependent over the age of 18 may grant access to their information via 
the My Access Center website in accordance with paragraph (c)(3) of this 
section. Surrogate access to the information of a sponsor, a sponsor's 
spouse, and a sponsor's dependent (regardless of age) must be granted 
via in-person proofing, including the submission of eligibility 
documents to an operator for approval in accordance with paragraph 
(d)(2) of this section.
    (i) Access granting by a sponsor. Sponsors may grant their spouse 
access to the sponsor's information and the information of any sponsor's 
dependents under the age of 18. Access to the sponsor's information and 
the information of any sponsor's dependents under the age of 18 may not 
be granted to any other sponsor's dependent, unless that dependent has 
been identified as a surrogate.
    (ii) Access granting by a spouse. Spouses may grant the sponsor 
access to the spouse's information. Access to the spouse's information 
may not be granted to any other sponsor's dependent, unless that 
sponsor's dependent has been identified as a surrogate.
    (iii) Access granting by a dependent over 18. A sponsor's dependent 
over the age of 18 may grant the sponsor and the sponsor's spouse access 
to the dependent's information. Access to the information of a sponsor's 
dependent over the age of 18 may not be granted to any other sponsor's 
dependent, unless that sponsor's dependent has been identified as a 
surrogate.



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



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

Appendix A to Part 222--Addressing MDR requests.

    Authority: 5 U.S.C. 552.

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



Sec. 222.1  Purpose.

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



Sec. 222.2  Applicability.

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



Sec. 222.3  Definitions.

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

[[Page 490]]

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



Sec. 222.4  Responsibilities.

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



Sec. 222.5  MDR processing procedures.

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

[[Page 491]]

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

[[Page 492]]

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

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



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

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

[[Page 493]]

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



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



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

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

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



Sec. 223.1  Purpose.

    This part:
    (a) Updates policies, assigns responsibilities and prescribes 
procedures for the implementation of 10 United States Code (U.S.C.) 128, 
which is the statutory basis for controlling unclassified information on 
the physical protection of DoD special nuclear material (SNM), SNM 
equipment, and SNM facilities. Such information is referred to as DoD 
UCNI, to distinguish it from a similar Department of Energy (DOE) 
program.
    (b) Identifies the authority to be used for denying disclosure of 
DoD UCNI pursuant to 5 U.S.C. 552.
    (c) Supplements security classification guidance contained in DoD 
Instruction 5210.67,\1\ DOE classification guide CG-SS-4,\2\ and DoD/DOE 
joint classification guides by establishing procedures for identifying, 
controlling, and limiting the dissemination of unclassified information 
on the physical protection of DoD SNM.
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    \1\ Copies available on the Internet at http://www.dtic.mil/ whs/
directives/corres/ pdf/521067p.pdf.
    \2\ Copies available to authorized recipients from the Director of 
Classification, Department of Energy.
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Sec. 223.2  Applicability.

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

[[Page 494]]

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



Sec. 223.3  Definitions.

    These terms and their definitions are for the purposes of this part:
    (a) Atomic Energy Defense Programs. Activities, equipment, and 
facilities of the Department of Defense that are capable of the 
following:
    (1) Development, production, testing, sampling, maintenance, repair, 
modification, assembly, utilization, transportation, or retirement of 
nuclear weapons or nuclear weapon components.
    (2) Production, utilization, or transportation of DoD SNM for 
military applications.
    (3) Safeguarding of activities, equipment, or facilities that 
support the functions in paragraphs (a)(1) and (a)(2) of this section, 
including the protection of nuclear weapons, nuclear weapon components, 
or DoD SNM for military applications at a fixed facility or in transit.
    (b) Document or material. The physical medium on or in which 
information is recorded, or a product or substance that contains or 
reveals information, regardless of its physical form or characteristics.
    (c) DoD UCNI. Unclassified information on the physical protection of 
DoD SNM, SNM equipment, and SNM facilities, including unclassified 
information on the physical protection of nuclear weapons containing SNM 
that are in DoD custody.
    (d) Information. Any fact or concept, regardless of the physical 
form or characteristics of the medium on or in which it is recorded, 
contained, or revealed.
    (e) Intelligence Community. An element or agency of the U.S. 
Government identified in or designated pursuant section 3.5(h) of 
Executive Order 12333, as amended.
    (f) Reviewing official. An individual appointed by the Assistant 
Secretary of Defense for Nuclear, Chemical, and Biological Defense 
Programs who may make a determination that a document or material 
contains, does not contain, or no longer contains DoD UCNI.
    (g) Safeguards. An integrated system of physical protection, 
document and material accounting, and control measures designed to 
deter, prevent, detect, and respond to unauthorized possession, use, or 
sabotage of DoD SNM, SNM equipment, SNM facilities, or nuclear weapons 
in DoD custody.
    (h) SNM. Defined in 42 U.S.C. 2014.
    (i) SNM equipment. Equipment, systems, or components whose failure 
or destruction would cause an impact on safeguarding DoD SNM resulting 
in an unacceptable interruption to a national security program or an 
unacceptable impact on the health and safety of the public.
    (j) SNM facility. A DoD facility that performs a function in support 
of Atomic Energy Defense Programs whose disruption could reasonably be 
expected to have a significant adverse effect on safeguarding DoD SNM, 
the health and safety of the public or the common defense and security.
    (k) Unauthorized dissemination. The intentional or negligent 
transfer, in any manner and by any person, of information contained in a 
document or material determined by a reviewing official to contain DoD 
UCNI, and so marked in accordance with the procedures in Sec. 223.6 of 
this part, to any person or entity other than an individual or entity 
authorized access to DoD UCNI in accordance with 10 U.S.C. 128 and this 
part.



Sec. 223.4  Policy.

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

[[Page 495]]

security measures, including security plans, procedures, and equipment, 
for the physical protection of DoD SNM, SNM equipment, SNM facilities, 
or nuclear weapons in DoD custody is prohibited.
    (b) Unclassified information shall be protected as DoD UCNI based on 
a determination that the unauthorized dissemination of such information 
could reasonably be expected to have a significant adverse effect on the 
health and safety of the public or the common defense and security by 
significantly increasing the likelihood of the illegal production of 
nuclear weapons or the theft, diversion, or sabotage of DoD SNM, SNM 
equipment, SNM facilities, or nuclear weapons in DoD custody.
    (c) Unclassified information regarding physical protection of DoD 
SNM and nuclear weapons in DoD custody shall be made publicly available 
to the fullest extent possible by applying the minimum restrictions, 
consistent with the requirements of 10 U.S.C. 128, necessary to protect 
the health and safety of the public or the common defense and security.
    (d) This part and title 10 of the Code of Federal Regulations (CFR) 
part 1017 shall be used as guidance for handling DOE UCNI that is under 
DoD control.
    (e) This part does not prevent a determination that information 
previously determined to be DoD UCNI is classified information in 
accordance with Volume 1 of DoD Manual 5200.01 \3\ and other applicable 
standards of classification.
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Sec. 223.5  Responsibilities.

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



Sec. 223.6  Procedures-identifying and controlling DoD UCNI.

    (a) General. (1) The decision to protect unclassified information as 
DoD UCNI shall be based on a determination that the unauthorized 
dissemination of such information could reasonably be expected to have 
an adverse effect on the health and safety of the public or the common 
defense and security by increasing significantly the likelihood of the 
illegal production of nuclear weapons or the theft, diversion, or 
sabotage of DoD SNM, SNM equipment, SNM facilities, or nuclear weapons 
in DoD custody. This is called the ``adverse effects test.''
    (2) DoD UCNI shall be identified, controlled, marked, transmitted, 
and safeguarded in the DoD Components, the Intelligence Community, and 
the North Atlantic Treaty Organization (NATO), and among DoD 
contractors, consultants, and grantees. Within NATO, DoD UCNI shall be 
marked, controlled, and safeguarded as ``NATO RESTRICTED'' information.
    (3) Contracts requiring access to or the preparation of unclassified 
information that is or could be DoD UCNI shall require compliance with 
this part and any applicable DoD Component

[[Page 496]]

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

[[Page 497]]

each individual page containing DoD UCNI.
    (2) Within an unclassified document, an individual page containing 
DoD UCNI shall be marked to show which of its portions contain DoD UCNI. 
In marking sections, parts, paragraphs, or similar portions, the 
parenthetical term ``(DCNI)'' shall be used and placed at the beginning 
of the applicable portions.
    (3) In a classified document, an individual page that has both DoD 
UCNI and classified information shall be marked at the top and bottom of 
the page with the highest security classification of information 
appearing on that page or with the overall classification of the 
document. In marking sections, parts, paragraphs, or similar portions, 
the parenthetical term ``(U//DCNI)'' shall be used and placed at the 
beginning of those portions containing DoD UCNI. In a classified 
document, an individual page that has DoD UCNI, but no classified 
information, shall be marked ``UNCLASSIFIED//DOD UNCLASSIFIED CONTROLLED 
NUCLEAR INFORMATION'' (or ``UNCLASSIFIED//DOD UCNI'') at the top and 
bottom of the page, unless the page is marked with the overall 
classification of the document. The DoD UCNI information may be included 
in the same portion with other classified or unclassified information, 
if all relevant statutory and regulatory markings and citations are 
included. Volume 2 of DoD Manual 5200.01 \4\ provides additional 
guidance on marking classified documents.
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    (4) Other material (e.g., electronic media, photographs, films, 
tapes, or slides) containing DoD UCNI shall be conspicuously marked 
``DOD UNCLASSIFIED CONTROLLED NUCLEAR INFORMATION'' (or ``DOD UCNI''), 
in accordance with paragraphs (d)(1) through (d)(3) of this section, to 
ensure that a recipient or viewer is aware of the status of the 
information.
    (e) Dissemination and Transmission. (1) DoD UCNI may be disseminated 
among the DoD Components, members of the Intelligence Community, NATO, 
and DoD contractors, consultants, and grantees on a need-to-know basis 
for the conduct of official business for the Department of Defense. 
Dissemination to NATO or other foreign or international entities 
requires prior review and approval by the appropriate dissemination 
entity.
    (2) Recipients shall be made aware of the status as DoD UCNI for all 
such information disseminated to them. Transmission of DoD UCNI shall be 
by means which preclude unauthorized disclosure or dissemination (e.g., 
secure phone, encrypted email).
    (3) Documents containing DoD UCNI shall be marked as prescribed in 
paragraph (d) of this section. Transmittal documents shall call 
attention to the presence of DoD UCNI attachments using an appropriate 
statement in the text or including at the bottom of the transmittal 
document a statement similar to: ``The attached document contains DoD 
Unclassified Controlled Nuclear Information (DoD UCNI).''
    (4) DoD UCNI transmitted outside the Department of Defense requires 
application of an expanded marking to explain the significance of the 
DoD UCNI marking. That may be accomplished by adding the transmittal 
statement ``DEPARTMENT OF DEFENSE/UNCLASSIFIED CONTROLLED NUCLEAR 
INFORMATION/EXEMPT FROM MANDATORY DISCLOSURE PURSUANT TO 5 U.S.C. 
552(b)(3), AS AUTHORIZED BY 10 U.S.C. 128'' to the document cover before 
transfer.
    (5) When not commingled with classified information, DoD UCNI may be 
sent by first-class mail in a single, opaque envelope, or wrapping.
    (6) DoD UCNI shall not be discussed or transmitted over an 
unprotected telephone or telecommunications circuit (to include 
facsimile transmissions) except in case of an emergency.
    (7) Each part of electronically transmitted messages containing DoD 
UCNI portions shall be marked appropriately. Unclassified messages, 
including email, with DoD UCNI portions shall have the abbreviation 
``DOD UCNI'' at the top of the message, before the beginning of the 
text, and the

[[Page 498]]

parenthetical marking ``(DCNI)'' preceding each portion of text 
containing DoD UCNI information. Classified messages containing DoD UCNI 
portions shall be marked with the highest classification of information 
within the message; use the parenthetical marking ``(U//DCNI)'' 
preceding each portion of text containing DoD UCNI information.
    (8) DoD UCNI processed, stored, or produced on stand-alone or 
networked computers or other information technology systems shall 
enforce protection from unauthorized disclosure or dissemination, in 
accordance with the procedures in paragraph (f) of this section.
    (9) A document marked as having DoD UCNI may be reproduced minimally 
without permission of the originator and consistent with the need to 
carry out official business.
    (f) Safeguarding DoD UCNI. (1) During normal working hours, 
documents and materials determined to contain DoD UCNI shall be 
safeguarded and controlled by measures designed to reduce the risk of 
access to DoD UCNI by unauthorized individuals. Particular attention 
should be paid to areas where DoD UCNI is used or stored if unescorted 
access by unauthorized individuals is possible.
    (2) At the close of business, DoD UCNI shall be stored to preclude 
disclosure. Storage of such information with other unclassified 
information in unlocked receptacles (e.g., desks, bookcases) is adequate 
if Government or Government-contractor internal building security is 
provided during non-duty hours. When such internal building security is 
not provided, locked rooms or buildings normally provide adequate after-
hours protection. If such protection is not considered adequate, DoD 
UCNI shall be stored in locked receptacles (e.g., locked file cabinet, 
locked desk drawer, safe).
    (3) Non-record copies of DoD UCNI shall be destroyed by shredding or 
burning or, if the sensitivity or volume of the information justifies 
it, in accordance with the procedures specified by Volume 3 of DoD 
Manual 5200.01 \5\ for classified information. Record copies of DoD UCNI 
shall be disposed of in accordance with the DoD Component's record 
management regulations. DoD UCNI on magnetic storage media shall be 
disposed of by overwriting to preclude its reconstruction. DoD UCNI in 
electronic form shall be deleted and also removed from any desktop trash 
or recycling files.
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    (4) Unauthorized dissemination and disclosure of DoD UCNI justifies 
investigative and administrative actions to determine cause, assess 
impact, and fix responsibility. The DoD Component that originated the 
DoD UCNI shall be informed of its unauthorized disclosure and the 
outcome of the investigative and administrative actions. Unauthorized 
disclosure of DoD UCNI does not constitute a compromise of classified 
information.
    (g) Retirement of Document or Material. (1) Any unclassified 
document or material that is not marked as containing DoD UCNI but that 
may contain DoD UCNI shall be marked upon retirement in accordance with 
the DoD Component's record management regulations.
    (2) A document or material marked as containing DoD UCNI is not 
required to be reviewed upon, or subsequent, to retirement. Retired 
documents or materials shall be reviewed in accordance with paragraph 
(h) of this section upon a request for their release made pursuant to 5 
U.S.C. 552.
    (h) Requests for Public Release of UCNI. (1) Pursuant to 10 U.S.C. 
128, information that qualifies as DoD UCNI is exempt from mandatory 
disclosure pursuant to 5 U.S.C. 552. Requests for the public release of 
DoD UCNI shall be denied, in accordance with procedures established in 
32 CFR part 286, pursuant to 5 U.S.C. 552(b)(3), citing 10 U.S.C. 128 as 
authority.
    (2) Requests for DOE UCNI contained within DoD documents shall also 
be denied pursuant to 5 U.S.C. 552(b)(3), but 42 U.S.C 2168 shall be 
cited, after formal FOIA consultation with the DOE, as the basis for 
invoking the exemption. Requests for DOE documents will

[[Page 499]]

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



Sec. 223.7  Procedures-determination of DoD UCNI.

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

[[Page 500]]

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



PART 225_COMMISSARY CREDIT AND DEBIT CARD USER FEE--Table of Contents



Sec.
225.1 Purpose.
225.2 Applicability.
225.3 Definitions.
225.4 Policy.
225.5 Responsibilities.
225.6 Procedures.

    Authority: 10 U.S.C. 1065

    Source: 84 FR 71822, Dec. 30, 2019, unless otherwise noted.



Sec. 225.1  Purpose.

    This part establishes policy, assigns responsibilities, and provides 
procedures for the implementation of patronage expansion pursuant to 10 
U.S.C. 1065.



Sec. 225.2  Applicability.

    This part applies to veterans who are Purple Heart recipients, 
veterans who are former prisoners of war, veterans who have a Department 
of Veterans Affairs-documented service-connected disability rating 
between 0-90 percent, and individuals approved and designated as the 
caregiver or family caregiver of an eligible veteran under a formalized 
Department of Veterans Affairs caregiver program (as of January 1, 2020, 
authorized caregivers are the

[[Page 501]]

primary family caregiver of an eligible veteran under the Program of 
Comprehensive Assistance for Family Caregivers).



Sec. 225.3  Definitions.

    Unless otherwise noted, these terms and their definitions are for 
the purpose of this part.
    Caregiver. Defined in 38 U.S.C. 1720G(d)
    Family Caregiver. Defined in 38 U.S.C. 1720G(d)
    Former POW. Defined in 38 U.S.C. 101
    Service-connected. Defined in 38 U.S.C. 101
    Veteran. Defined in 38 U.S.C. 101



Sec. 225.4  Policy.

    In accordance with 10 U.S.C. 1065, the following new patron groups 
are authorized access to DoD commissary, exchange, and morale, welfare, 
and recreation (MWR) revenue generating activities on the same basis as 
a member of the Military Services entitled to retired or retainer pay, 
effective January 1, 2020:
    (a) Veterans who were awarded the Purple Heart.
    (b) Veterans who are former prisoners of war (POWs).
    (c) Veterans classified by the Department of Veterans Affairs (VA) 
as having a service-connected disability rating below 100 percent.
    (d) Caregivers or family caregivers for veterans under the VA 
caregiver program. These caregivers are only eligible for these 
privileges during their period of active enrollment as the caregiver or 
family caregiver for a veteran.



Sec. 225.5  Responsibilities.

    DIRECTOR, DeCA. Under the authority, direction, and control of the 
Under Secretary of Defense for Personnel and Readiness through the 
Assistant Secretary of Defense for Manpower and Reserve Affairs, the 
Director, DeCA:
    (a) Establishes processes and updates systems necessary to collect 
and deposit with U.S. Treasury, user fees related to commercial debit/
credit card use in commissaries in accordance with section 225.6 of this 
part.
    (b) Implements commissary credit/debit card user fee requirements.



Sec. 225.6  Procedures.

    (a) Commissary Credit/Debit Card User Fee. (1) Only patrons of 
groups newly authorized privileges by this part must pay a user fee when 
using a credit or debit card to pay for commissary purchases to offset 
additional costs charged to the U.S. Treasury associated with credit or 
debit card use.
    (2) The user fee will be set as a transaction-based flat rate, 
calculated within a range of the average annual rates of credit and 
debit card transaction costs incurred by the Department of Treasury on 
behalf of DeCA and in compliance with applicable card network rules. One 
rate will be set for credit and signature debit card transactions, which 
are processed as credit cards. Another rate will be set for personal 
identification number debit card transactions. These rates will be 
reviewed annually and adjustments may be made as necessary to meet the 
requirements of 10 U.S.C. 1065.
    (3) Purchases made with electronic benefit transfer cards (e.g., 
Women, Infants, and Children or Supplemental Nutrition Assistance 
Program) and the MILITARY STAR card are not subject to this credit/debit 
card user fee.
    (4) No user fee reimbursement will be made on customer return of 
merchandise.
    (5) All credit/debit card user fee amounts collected in commissary 
stores will be deposited in the General Fund of the Treasury.
    (b) [Reserved]



PART 226_SHELTER FOR THE HOMELESS--Table of Contents



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

    Authority: 10 U.S.C. 2546.

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



Sec. 226.1  Purpose.

    This part implements 10 U.S.C. 2556 by establishing DoD policy, 
assigning

[[Page 502]]

responsibilities, and prescribing procedures for providing shelter for 
the homeless on military installations.

[78 FR 21257, Apr. 10, 2013]



Sec. 226.2  Applicability.

    This part applies to the Office of the Secretary of Defense (OSD), 
the Military Departments (including their National Guard and Reserve 
components), the Unified and Specified Commands, the Defense Agencies, 
and Department of Defense Field Activities (hereafter referred to 
collectively as ``Department of Defense Components'').



Sec. 226.3  [Reserved]



Sec. 226.4  Procedures.

    It is DoD policy that:
    (a) Shelters for the homeless may be established on military 
installations.
    (b) The Secretary of a Military Department, or designee, may make 
military installations under his or her jurisdiction available for the 
furnishing of shelter to persons without adequate shelter in accordance 
with 10 U.S.C. 2556 and this part if he or she, or designee, determines 
that such shelter will not interfere with military preparedness or 
ongoing military functions.
    (c) The Secretary of a Military Department, after determining that a 
shelter for the homeless may be established on a military installation, 
shall ensure that the plans for the shelter be developed in cooperation 
with appropriate State or local governmental entities and charitable 
organizations. The State or local government entity, either separately 
or in conjunction with the charitable organization, shall be responsible 
for operating and staffing any shelter established by this program. 
Shelter and incidental services provided under this part may be provided 
without reimbursement.
    (d) Services that may be provided by a Military Department incident 
to the furnishing of shelter under 10 U.S.C. 2556 are the following:
    (1) Utilities.
    (2) Bedding.
    (3) Security.
    (4) Transportation.
    (5) Renovation of facilities.
    (6) Minor repairs undertaken specifically to make suitable space 
available for shelter to be provided in accordance with 10 U.S.C. 2556.
    (7) Property liability insurance.
    (e) The Military Departments should be especially sensitive to 
establishing shelters in the following areas:
    (1) Family housing areas,
    (2) Troop billeting areas,
    (3) Service facilities such as commissaries, exchanges, dining 
facilities, hospitals, clinics, recreation centers, etc.,
    (4) Safety arcs formed by firing ranges and impact areas,
    (5) Frequently used training areas.
    (f) Shelters for the homeless shall normally be established in only 
those facilities where the homeless will have exclusive use at all 
times. Shelters for the homeless shall normally not be established in 
facilities ``shared'' with military functions.
    (g) In addition to providing shelter and incidental services, 
Department of Defense Components may provide bedding for support of 
shelters for the homeless that are located on other than Department of 
Defense real property. Bedding may be provided without reimbursement, 
but may only be provided to the extent that the provision of such 
bedding will not interfere with military requirements.
    (h) Individuals or entities interested in establishing shelters on 
military installations shall:
    (1) Submit a request to the Installation Commander where the shelter 
is desired, and
    (2) Provide, at a minimum, the following data: The name and address 
of the organization that will operate the shelter, the name and address 
of the affiliated state or local governmental entity, numbers of people 
to be served, type of program, hours of operation, special needs of the 
people to be served, incidental services required, estimated date when 
the services are requested, estimate of when services will no longer be 
necessary, and what security provisions are to be provided (physical 
security).

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

[[Page 503]]



Sec. 226.5  Responsibilities.

    (a) The Deputy Under Secretary of Defense (Installations and 
Environment) (DUSD(I&E)), under the authority, direction and control of 
the Under Secretary of Defense for Acquisition, Technology, and 
Logistics, shall administer the program and issue such supplemental 
guidance as is necessary.
    (b) The Under Secretary of Defense (Comptroller) shall provide 
guidance on the use of Department of Defense funds to finance the items 
issued in support of the Shelter for the Homeless program.
    (c) The Secretaries of the Military Departments shall:
    (1) Implement the Shelter for the Homeless program.
    (2) Appoint a senior manager to monitor the program within the 
Department and to provide any assistance that may be required to the 
Office of the Deputy Under Secretary of Defense (Installations and 
Environment) (ODUSD(I&E)). Such official, after consultation with the 
ODUSD(I&E), shall approve or disapprove all requests to establish a 
shelter in accordance with 10 U.S.C. 2556 and this part.
    (3) Ensure that upon receipt of a formal request for assistance, as 
defined in Sec. 226.3(h) of this part, the Military Department 
concerned provides an appropriate response to the requester within 30 
days.
    (4) Ensure that each Installation Commander is informed about the 
Program and the types of assistance that they may provide as authorized 
by 10 U.S.C. 2556.
    (d) Department of Defense Installation Commanders shall:
    (1) Acknowledge all requests for assistance.
    (2) Upon receipt of a request, initiate such action as is necessary 
to determine the availability of facilities at that installation for use 
as a shelter for the homeless.
    (3) Forward each request, through the chain of command, to the 
Service Senior Manager with a copy to the DUSD(I&E). The Installation 
Commander's recommendation shall accompany each request.

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



PART 228_SECURITY PROTECTIVE FORCE--Table of Contents



Sec.
228.1 Applicability.
228.2 Control of activities on protected property.
228.3 Restrictions on admission to protected property.
228.4 Control of vehicles on protected property.
228.5 Enforcement of parking regulations.
228.6 Security inspection.
228.7 Prohibition on weapons and explosives.
228.8 Prohibition on photographic or electronic recording or 
          transmitting equipment.
228.9 Prohibition on narcotics and illegal substances.
228.10 Prohibition on alcohol.
228.11 Restrictions on the taking of photographs.
228.12 Physical protection of facilities.
228.13 Disturbances on protected property.
228.14 Prohibition on gambling.
228.15 Restriction regarding animals.
228.16 Soliciting, vending, and debt collection.
228.17 Distribution of unauthorized materials.
228.18 Penalties and the effect on other laws.

    Authority: 40 U.S.C. 318-318c.

    Source: 59 FR 5948, Feb. 9, 1994, unless otherwise noted.



Sec. 228.1  Applicability.

    This part applies to all property under the charge and control of 
the Director, NSA, and to all persons entering in or on such property 
(hereinafter referred to as ``protected property''). Employees of the 
NSA and any other persons entering upon protected property shall be 
subject to these regulations.



Sec. 228.2  Control of activities on protected property.

    Persons in and on protected property shall at all times comply with 
official signs of a prohibitory, regulatory, or directory nature and 
with the direction of Security Protective Officers and any other duly 
authorized personnel.

[[Page 504]]



Sec. 228.3  Restrictions on admission to protected property.

    Access to protected property shall be restricted to ensure the 
orderly and secure conduct of Agency business. Admission to protected 
property will be restricted to employees and other persons with proper 
authorization who shall, when requested, display government or other 
identifying credentials to the Security Protective Officers or other 
duly authorized personnel when entering, leaving, or while on the 
property.



Sec. 228.4  Control of vehicles on protected property.

    Drivers of all vehicles entering or while on protected property 
shall comply with the signals and directions of Security Protective 
Officers or other duly authorized personnel and any posted traffic 
instructions. All vehicles shall be driven in a safe and careful manner 
at all times, in compliance with applicable motor vehicle laws.



Sec. 228.5  Enforcement of parking regulations.

    For reasons of security, parking regulations shall be strictly 
enforced. Except with proper authorization, parking on protected 
property is not allowed without a permit. Parking without a permit or 
other authorization, parking in unauthorized locations or in locations 
reserved for other persons, or parking contrary to the direction of 
posted signs or applicable state or federal laws and regulations is 
prohibited. Vehicles parked in violation, where warning signs are 
posted, shall be subject to removal at the owner's risk, which shall be 
in addition to any penalties assessed pursuant to Sec. 228.18. The 
Agency assumes no responsibility for the payment of any fees or costs 
related to such removal which may be charged to the owner of the vehicle 
by the towing organization. This paragraph may be supplemented from time 
to time with the approval of the NSA Director of Security or his 
designee by the issuance and posting of such specific traffic directives 
as may be required, and when so issued and posted such directives shall 
have the same force and effect as if made a part hereof. Proof that a 
vehicle was parked in violation of these regulations or directives may 
be taken as prima facie evidence that the registered owner was 
responsible for the violation.



Sec. 228.6  Security inspection.

    Any personal property, including but not limited to any packages, 
briefcases, containers or vehicles brought into, while on, or being 
removed from protected property are subject to inspection. A search of a 
person may accompany an investigative stop or an arrest.



Sec. 228.7  Prohibition on weapons and explosives.

    No persons entering or while on protected property shall carry or 
possess, either openly or concealed, firearms, any illegal or legally 
controlled weapon (e.g., throwing stars, switchblades), explosives, or 
items intended to be used to fabricate an explosive or incendiary 
device, except as authorized by the NSA Director of Security or his 
designee at each Agency facility. The use of chemical agents (Mace, tear 
gas, etc.) on protected property in circumstances that do not include an 
immediate and unlawful threat of physical harm to any person or persons 
is prohibited; however, this prohibition does not apply to use by law 
enforcement personnel in the performance of their duties.



Sec. 228.8  Prohibition on photographic or electronic recording or transmitting equipment.

    No person entering or while on protected property shall bring or 
possess any kind of photographic, recording or transmitting equipment 
(including but not limited to cameras, cellular telephones, or 
recorders), except as specially authorized by the NSA Director of 
Security or his designee at each Agency facility.



Sec. 228.9  Prohibition on narcotics and illegal substances.

    Entering or being on protected property under the influence of, or 
while using or possessing, any narcotic drug, hallucinogen, marijuana, 
barbiturate or amphetamine is prohibited. Operation of a motor vehicle 
entering or

[[Page 505]]

while on protected property by a person under the influence of narcotic 
drugs, hallucinogens, marijuana, barbiturates or amphetamines is also 
prohibited. These prohibitions shall not apply in cases where the drug 
is being used as prescribed for a patient by a licensed physician.



Sec. 228.10  Prohibition on alcohol.

    Entering or being on protected property under the influence of 
alcoholic beverages is prohibited. Operation of a motor vehicle entering 
or while on protected property by a person under the influence of 
alcoholic beverages is prohibited. The use of alcoholic beverages on 
protected property is also prohibited, except on occasions and on 
protected property for which the NSA Deputy Director for Support 
Services or his designee has granted approval for such use.



Sec. 228.11  Restrictions on the taking of photographs.

    In order to protect the security of the Agency's facilities, 
photographs may be taken on protected property only with the consent of 
the NSA Director of Security or his designee. The taking of photographs 
includes the use of television cameras, video taping equipment, and 
still or motion picture cameras.



Sec. 228.12  Physical protection of facilities.

    The willful destruction of, or damage to any protected property, or 
any buildings or personal property thereon, is prohibited. The theft of 
any personal property, the creation of any hazard on protected property 
to persons or things, and the throwing of articles of any kind at 
buildings or persons on protected property is prohibited. The improper 
disposal of trash or rubbish, or any unauthorized or hazardous materials 
on protected property is also prohibited.



Sec. 228.13  Disturbances on protected property.

    Any conduct which impedes or threatens the security of protected 
property, or any buildings or persons thereon, or which disrupts the 
performance of official duties by Agency employees, or which interferes 
with ingress to or egress from protected property is prohibited. Also 
prohibited is any disorderly conduct, any failure to obey an order to 
depart the premises, any unwarranted loitering, any behavior which 
creates loud or unusual noise or nuisance, or any conduct which 
obstructs the usual use of entrances, foyers, lobbies, corridors, 
offices, elevators, stairways or parking lots.



Sec. 228.14  Prohibition on gambling.

    Participating in games for money or other personal property, or the 
operating of gambling devices, the conduct of a lottery, or the selling 
or purchasing of numbers tickets, in or on protected property is 
prohibited. This prohibition shall not apply to the vending or exchange 
of chances by licensed blind operators of vending facilities for any 
lottery set forth in a State law and conducted by an agency of a State 
as authorized by section 2(a)(5) of the Randolph-Sheppard Act, as 
amended (20 U.S.C. 107(a)(5)).



Sec. 228.15  Restriction regarding animals.

    No animals except guide dogs for the blind or hearing impaired, or 
guard or search dogs used by authorized state or federal officials, 
shall be brought upon protected property, except as authorized by the 
NSA Director of Security or his designee at each Agency facility.



Sec. 228.16  Soliciting, vending, and debt collection.

    Commercial or political soliciting, vending of all kinds, displaying 
or distributing commercial advertising, collecting private debts or 
soliciting alms on protected property is prohibited. This does not apply 
to:
    (a) National or local drives for welfare, health, or other purposes 
as authorized by the ``Manual on Fund Raising Within the Federal 
Service,'' issued by the U.S. Office of Personnel Management under 
Executive Order 12353, 47 FR 12785, 3 CFR, 1982 Comp., p. 139, or by 
other federal laws or regulations; and
    (b) Authorized employee notices posted on Agency bulletin boards.

[[Page 506]]



Sec. 228.17  Distribution of unauthorized materials.

    Distributing, posting or affixing materials, such as pamphlets, 
handbills, or flyers, on protected property is prohibited, except as 
provided by Sec. 228.16, as authorized by the NSA Director of Security 
or his designee at each Agency facility, or when conducted as part of 
authorized Government activities.



Sec. 228.18  Penalties and the effect on other laws.

    Whoever shall be found guilty of violating any provision of these 
regulations is subject to a fine of not more than $50 or imprisonment of 
not more than 30 days, or both. In the case of traffic and parking 
violations, fines assessed shall be in accordance with the schedule(s) 
of fines adopted by the United States District Court for the District 
where the offense occurred. Nothing in these regulations shall be 
construed to abrogate or supersede any other Federal laws or any State 
or local laws or regulations applicable to any area in which the 
protected property is situated.



PART 229_PROTECTION OF ARCHAEOLOGICAL RESOURCES: UNIFORM REGULATIONS--Table of Contents



Sec.
229.1 Purpose.
229.2 Authority.
229.3 Definitions.
229.4 Prohibited acts and criminal penalties.
229.5 Permit requirements and exceptions.
229.6 Application for permits and information collection.
229.7 Notification to Indian tribes of possible harm to, or destruction 
          of, sites on public lands having religious or cultural 
          importance.
229.8 Issuance of permits.
229.9 Terms and conditions of permits.
229.10 Suspension and revocation of permits.
229.11 Appeals relating to permits.
229.12 Relationship to section 106 of the National Historic Preservation 
          Act.
229.13 Custody of archaeological resources.
229.14 Determination of archaeological or commercial value and cost of 
          restoration and repair.
229.15 Assessment of civil penalties.
229.16 Civil penalty amounts.
229.17 Other penalties and rewards.
229.18 Confidentiality of archaeological resource information.
229.19 Report.
229.20 Public awareness programs.
229.21 Surveys and schedules.

The information collection and reporting requirements in this part were 
approved by the Office of Management and Budget under control number 
1024-0037.

    Authority: Pub. L. 96-95, 93 Stat. 721, as amended, 102 Stat. 2983 
(16 U.S.C. 470aa-mm) Sec. 10(a). Related Authority: Pub. L. 59-209, 34 
Stat. 225 (16 U.S.C. 432, 433); Pub. L. 86-523, 74 Stat. 220, 221 (16 
U.S.C. 469), as amended, 88 Stat. 174 (1974); Pub. L. 89-665, 80 Stat. 
915 (16 U.S.C. 470a-t), as amended, 84 Stat. 204 (1970), 87 Stat. 139 
(1973), 90 Stat. 1320 (1976), 92 Stat. 3467 (1978), 94 Stat. 2987 
(1980); Pub. L. 95-341, 92 Stat. 469 (42 U.S.C. 1996).

    Source: 72 FR 42298, August 2, 2007, unless otherwise noted.



Sec. 229.1  Purpose.

    (a) The regulations in this part implement provisions of the 
Archaeological Resources Protection Act of 1979, as amended (16 U.S.C. 
470aa-mm) by establishing the uniform definitions, standards, and 
procedures to be followed by all Federal land managers in providing 
protection for archaeological resources, located on public lands and 
Indian lands of the United States. These regulations enable Federal land 
managers to protect archaeological resources, taking into consideration 
provisions of the American Indian Religious Freedom Act (92 Stat. 469; 
42 U.S.C. 1996), through permits authorizing excavation and/or removal 
of archaeological resources, through civil penalties for unauthorized 
excavation and/or removal, through provisions for the preservation of 
archaeological resource collections and data, and through provisions for 
ensuring confidentiality of information about archaeological resources 
when disclosure would threaten the archaeological resources.
    (b) The regulations in this part do not impose any new restrictions 
on activities permitted under other laws, authorities, and regulations 
relating to mining, mineral leasing, reclamation, and other multiple 
uses of the public lands.

[[Page 507]]



Sec. 229.2  Authority.

    (a) The regulations in this part are promulgated pursuant to section 
10(a) of the Archaeological Resources Protection Act of 1979 (16 U.S.C. 
470ii), which requires that the Secretaries of the Interior, Agriculture 
and Defense and the Chairman of the Board of the Tennessee Valley 
Authority jointly develop uniform rules and regulations for carrying out 
the purposes of the Act.
    (b) In addition to the regulations in this part, section 10(b) of 
the Act (16 U.S.C. 470ii) provides that each Federal land manager shall 
promulgate such rules and regulations, consistent with the uniform rules 
and regulations in this part, as may be necessary for carrying out the 
purposes of the Act.



Sec. 229.3  Definitions.

    As used for purposes of this part:
    (a) Archaeological resource means any material remains of human life 
or activities which are at least 100 years of age, and which are of 
archaeological interest.
    (1) Of archaeological interest means capable of providing scientific 
or humanistic understandings of past human behavior, cultural 
adaptation, and related topics through the application of scientific or 
scholarly techniques such as controlled observation, contextual 
measurement, controlled collection, analysis, interpretation and 
explanation.
    (2) Material remains means physical evidence of human habitation, 
occupation, use, or activity, including the site, location, or context 
in which such evidence is situated.
    (3) The following classes of material remains (and illustrative 
examples), if they are at least 100 years of age, are of archaeological 
interest and shall be considered archaeological resources unless 
determined otherwise pursuant to paragraph (a)(4) or (a)(5) of this 
section:
    (i) Surface or subsurface structures, shelters, facilities, or 
features (including, but not limited to, domestic structures, storage 
structures, cooking structures, ceremonial structures, artificial 
mounds, earthworks, fortifications, canals, reservoirs, horticultural/
agricultural gardens or fields, bedrock mortars or grinding surfaces, 
rock alignments, cairns, trails, borrow pits, cooking pits, refuse pits, 
burial pits or graves, hearths, kilns, post molds, wall trenches, 
middens);
    (ii) Surface or subsurface artifact concentrations or scatters;
    (iii) Whole or fragmentary tools, implements, containers, weapons 
and weapon projectiles, clothing, and ornaments (including, but not 
limited to, pottery and other ceramics, cordage, basketry and other 
weaving, bottles and other glassware, bone, ivory, shell, metal, wood, 
hide, feathers, pigments, and flaked, ground, or pecked stone);
    (iv) By-products, waste products, or debris resulting from 
manufacture or use of human-made or natural materials;
    (v) Organic waste (including, but not limited to, vegetal and animal 
remains, coprolites);
    (vi) Human remains (including, but not limited to, bone, teeth, 
mummified flesh, burials, cremations);
    (vii) Rock carvings, rock paintings, intaglios and other works of 
artistic or symbolic representation;
    (viii) Rockshelters and caves or portions thereof containing any of 
the above material remains;
    (ix) All portions of shipwrecks (including, but not limited to, 
armaments, apparel, tackle, cargo);
    (x) Any portion or piece of any of the foregoing.
    (4) The following material remains shall not be considered of 
archaeological interest, and shall not be considered to be 
archaeological resources for purposes of the Act and this part, unless 
found in a direct physical relationship with archaeological resources as 
defined in this section:
    (i) Paleontological remains;
    (ii) Coins, bullets, and unworked minerals and rocks.
    (5) The Federal land manager may determine that certain material 
remains, in specified areas under the Federal land manager's 
jurisdiction, and under specified circumstances, are not or are no 
longer of archaeological interest and are not to be considered 
archaeological resources under this part. Any determination made 
pursuant to this subparagraph shall be documented. Such determination 
shall in

[[Page 508]]

no way affect the Federal land manager's obligations under other 
applicable laws or regulations.
    (6) For the disposition following lawful removal or excavations of 
Native American human remains and ``cultural items'', as defined by the 
Native American Graves Protection and Repatriation Act (NAGPRA; Pub. L. 
101-601; 104 Stat. 3050; 25 U.S.C. 3001-13), the Federal land manager is 
referred to NAGPRA and its implementing regulations.
    (b) Arrowhead means any projectile point which appears to have been 
designed for use with an arrow.
    (c) Federal land manager means:
    (1) With respect to any public lands, the secretary of the 
department, or the head of any other agency or instrumentality of the 
United States, having primary management authority over such lands, 
including persons to whom such management authority has been officially 
delegated;
    (2) In the case of Indian lands, or any public lands with respect to 
which no department, agency or instrumentality has primary management 
authority, such term means the Secretary of the Interior;
    (3) The Secretary of the Interior, when the head of any other agency 
or instrumentality has, pursuant to section 3(2) of the Act and with the 
consent of the Secretary of the Interior, delegated to the Secretary of 
the Interior the responsibilities (in whole or in part) in this part.
    (d) Public lands means:
    (1) Lands which are owned and administered by the United States as 
part of the national park system, the national wildlife refuge system, 
or the national forest system; and
    (2) All other lands the fee title to which is held by the United 
States, except lands on the Outer Continental Shelf, lands under the 
jurisdiction of the Smithsonian Institution, and Indian lands.
    (e) Indian lands means lands of Indian tribes, or Indian 
individuals, which are either held in trust by the United States or 
subject to a restriction against alienation imposed by the United 
States, except for subsurface interests not owned or controlled by an 
Indian tribe or Indian individual.
    (f) Indian tribe as defined in the Act means any Indian tribe, band, 
nation, or other organized group or community, including any Alaska 
village or regional or village corporation as defined in, or established 
pursuant to, the Alaska Native Claims Settlement Act (85 Stat. 688). In 
order to clarify this statutory definition for purposes of this part, 
``Indian tribe'' means:
    (1) Any tribal entity which is included in the annual list of 
recognized tribes published in the Federal Register by the Secretary of 
the Interior pursuant to 25 CFR part 54;
    (2) Any other tribal entity acknowledged by the Secretary of the 
Interior pursuant to 25 CFR part 54 since the most recent publication of 
the annual list; and
    (3) Any Alaska Native village or regional or village corporation as 
defined in or established pursuant to the Alaska Native Claims 
Settlement Act (85 Stat. 688), and any Alaska Native village or tribe 
which is recognized by the Secretary of the Interior as eligible for 
services provided by the Bureau of Indian Affairs.
    (g) Person means an individual, corporation, partnership, trust, 
institution, association, or any other private entity, or any officer, 
employee, agent, department, or instrumentality of the United States, or 
of any Indian tribe, or of any State or political subdivision thereof.
    (h) State means any of the fifty states, the District of Columbia, 
Puerto Rico, Guam, and the Virgin Islands.
    (i) Act means the Archaeological Resources Protection Act of 1979 
(16 U.S.C. 470aa-mm).



Sec. 229.4  Prohibited acts and criminal penalties.

    (a) Under section 6(a) of the Act, no person may excavate, remove, 
damage, or otherwise alter or deface, or attempt to excavate, remove, 
damage, or otherwise alter or deface any archaeological resource located 
on public lands or Indian lands unless such activity is pursuant to a 
permit issued under Sec. 229.8 or exempted by Sec. 229.5(b) of this 
part.
    (b) No person may sell, purchase, exchange, transport, or receive 
any archaeological resource, if such resource

[[Page 509]]

was excavated or removed in violation of:
    (1) The prohibitions contained in paragraph (a) of this section; or
    (2) Any provision, rule, regulation, ordinance, or permit in effect 
under any other provision of Federal law.
    (c) Under section (d) of the Act, any person who knowingly violates 
or counsels, procures, solicits, or employs any other person to violate 
any prohibition contained in section 6 (a), (b), or (c) of the Act will, 
upon conviction, be fined not more than $10,000.00 or imprisoned not 
more than one year, or both: provided, however, that if the commercial 
or archaeological value of the archaeological resources involved and the 
cost of restoration and repair of such resources exceeds the sum of 
$500.00, such person will be fined not more than $20,000.00 or 
imprisoned not more than two years, or both. In the case of a second or 
subsequent such violation upon conviction such person will be fined not 
more than $100,000.00, or imprisoned not more than 5 years, or both.



Sec. 229.5  Permit requirements and exceptions.

    (a) Any person proposing to excavate and/or remove archaeological 
resources from public lands or Indian lands, and to carry out activities 
associated with such excavation and/or removal, shall apply to the 
Federal land manager for a permit for the proposed work, and shall not 
begin the proposed work until a permit has been issued. The Federal land 
manager may issue a permit to any qualified person, subject to 
appropriate terms and conditions, provided that the person applying for 
a permit meets conditions in Sec. 229.8(a) of this part.
    (b) Exceptions:
    (1) No permit shall be required under this part for any person 
conducting activities on the public lands under other permits, leases, 
licenses, or entitlements for use, when those activities are exclusively 
for purposes other than the excavation and/or removal of archaeological 
resources, even though those activities might incidentally result in the 
disturbance of archaeological resources. General earth-moving excavation 
conducted under a permit or other authorization shall not be construed 
to mean excavation and/or removal as used in this part. This exception 
does not, however, affect the Federal land manager's responsibility to 
comply with other authorities which protect archaeological resources 
prior to approving permits, leases, licenses, or entitlements for use; 
any excavation and/or removal of archaeological resources required for 
compliance with those authorities shall be conducted in accordance with 
the permit requirements of this part.
    (2) No permit shall be required under this part for any person 
collecting for private purposes any rock, coin, bullet, or mineral which 
is not an archaeological resource as defined in this part, provided that 
such collecting does not result in disturbance of any archaeological 
resource.
    (3) No permit shall be required under this part or under section 3 
of the Act of June 8, 1906 (16 U.S.C. 432), for the excavation or 
removal by any Indian tribe or member thereof of any archaeological 
resource located on Indian lands of such Indian tribe, except that in 
the absence of tribal law regulating the excavation or removal or 
archaeological resources on Indian lands, an individual tribal member 
shall be required to obtain a permit under this part;
    (4) No permit shall be required under this part for any person to 
carry out any archaeological activity authorized by a permit issued 
under section 3 of the Act of June 8, 1906 (16 U.S.C. 432), before the 
enactment of the Archaeological Resources Protection Act of 1979. Such 
permit shall remain in effect according to its terms and conditions 
until expiration.
    (5) No permit shall be required under section 3 of the Act of June 
8, 1906 (16 U.S.C. 432) for any archaeological work for which a permit 
is issued under this part.
    (c) Persons carrying out official agency duties under the Federal 
land manager's direction, associated with the management of 
archaeological resources, need not follow the permit application 
procedures of Sec. 229.6. However, the Federal land manager shall 
insure that provisions of Sec. 229.8 and Sec. 229.9 have been met by 
other documented means,

[[Page 510]]

and that any official duties which might result in harm to or 
destruction of any Indian tribal religious or cultural site, as 
determined by the Federal land manager, have been the subject of 
consideration under Sec. 229.7.
    (d) Upon the written request of the Governor of any State, on behalf 
of the State or its educational institutions, the Federal land manager 
shall issue a permit, subject to the provisions of Sec. Sec. 
229.5(b)(5), 229.7, 229.8(a)(3), (4), (5), (6), and (7), 229.9, 229.10, 
229.12, and 229.13(a) to such Governor or to such designee as the 
Governor deems qualified to carry out the intent of the Act, for 
purposes of conducting archaeological research, excavating and/or 
removing archaeological resources, and safeguarding and preserving any 
materials and data collected in a university, museum, or other 
scientific or educational institution approved by the Federal land 
manager.
    (e) Under other statutory, regulatory, or administrative authorities 
governing the use of public lands and Indian lands, authorizations may 
be required for activities which do not require a permit under this 
part. Any person wishing to conduct on public lands or Indian lands any 
activities related to but believed to fall outside the scope of this 
part should consult with the Federal land manager, for the purpose of 
determining whether any authorization is required, prior to beginning 
such activities.



Sec. 229.6  Application for permits and information collection.

    (a) Any person may apply to the appropriate Federal land manager for 
a permit to excavate and/or remove archaeological resources from public 
lands or Indian lands and to carry out activities associated with such 
excavation and/or removal.
    (b) Each application for a permit shall include:
    (1) The nature and extent of the work proposed, including how and 
why it is proposed to be conducted, proposed time of performance, 
locational maps, and proposed outlet for public written dissemination of 
the results.
    (2) The name and address of the individual(s) proposed to be 
responsible for conducting the work, institutional affiliation, if any, 
and evidence of education, training, and experience in accord with the 
minimal qualifications listed in Sec. 229.8(a).
    (3) The name and address of the individual(s), if different from the 
individual(s) named in paragraph (b)(2) of this section, proposed to be 
responsible for carrying out the terms and conditions of the permit.
    (4) Evidence of the applicant's ability to initiate, conduct, and 
complete the proposed work, including evidence of logistical support and 
laboratory facilities.
    (5) Where the application is for the excavation and/or removal of 
archaeological resources on public lands, the names of the university, 
museum, or other scientific or educational institution in which the 
applicant proposes to store all collections, and copies of records, 
data, photographs, and other documents derived from the proposed work. 
Applicants shall submit written certification, signed by an authorized 
official of the institution, of willingness to assume curatorial 
responsibility for the collections, records, data, photographs and other 
documents and to safeguard and preserve these materials as property of 
the United States.
    (6) Where the application is for the excavation and/or removal of 
archaeological resources on Indian lands, the name of the university, 
museum, or other scientific or educational institution in which the 
applicant proposes to store copies of records, data, photographs, and 
other documents derived from the proposed work, and all collections in 
the event the Indian owners do not wish to take custody or otherwise 
dispose of the archaeological resources. Applicants shall submit written 
certification, signed by an authorized official of the institution, or 
willingness to assume curatorial responsibility for the collections, if 
applicable, and/or the records, data, photographs, and other documents 
derived from the proposed work.
    (c) The Federal land manager may require additional information, 
pertinent to land management responsibilities, to be included in the 
application for permit and shall so inform the applicant.

[[Page 511]]

    (d) Paperwork Reduction Act. The information collection requirement 
contained in this section of these regulations has been approved by the 
Office of Management and Budget under 44 U.S.C. 3501 et seq. and 
assigned clearance number 1024-0037. The purpose of the information 
collection is to meet statutory and administrative requirements in the 
public interest. The information will be used to assist Federal land 
managers in determining that applicants for permits are qualified, that 
the work proposed would further archaeological knowledge, that 
archaeological resources and associated records and data will be 
properly preserved, and that the permitted activity would not conflict 
with the management of the public lands involved. Response to the 
information requirement is necessary in order for an applicant to obtain 
a benefit.



Sec. 229.7  Notification to Indian tribes of possible harm to, or destruction of, sites on public lands having religious or cultural importance.

    (a) If the issuance of a permit under this part may result in harm 
to, or destruction of, any Indian tribal religious or cultural site on 
public lands, as determined by the Federal land manager, at least 30 
days before issuing such a permit the Federal land manager shall notify 
any Indian tribe which may consider the site as having religious or 
cultural importance. Such notice shall not be deemed a disclosure to the 
public for purposes of section 9 of the Act.
    (1) Notice by the Federal land manager to any Indian tribe shall be 
sent to the chief executive officer or other designated official of the 
tribe. Indian tribes are encouraged to designate a tribal official to be 
the focal point for any notification and discussion between the tribe 
and the Federal land manager.
    (2) The Federal land manager may provide notice to any other Native 
American group that is known by the Federal land manager to consider 
sites potentially affected as being of religious or cultural importance.
    (3) Upon request during the 30-day period, the Federal land manager 
may meet with official representatives of any Indian tribe or group to 
discuss their interests, including ways to avoid or mitigate potential 
harm or destruction such as excluding sites from the permit area. Any 
mitigation measures which are adopted shall be incorporated into the 
terms and conditions of the permit under Sec. 229.9.
    (4) When the Federal land manager determines that a permit applied 
for under this part must be issued immediately because of an imminent 
threat of loss or destruction of an archaeological resource, the Federal 
land manager shall so notify the appropriate tribe.
    (b)(1) In order to identify sites of religious or cultural 
importance, the Federal land manager shall seek to identify all Indian 
tribes having aboriginal or historic ties to the lands under the Federal 
land manager's jurisdiction and seek to determine, from the chief 
executive officer or other designated official of any such tribe, the 
location and nature of specific sites of religious or cultural 
importance so that such information may be on file for land management 
purposes. Information on sites eligible for or included in the National 
Register of Historic Places may be withheld from public disclosure 
pursuant to section 304 of the Act of October 15, 1966, as amended (16 
U.S.C. 470w-3).
    (2) If the Federal land manager becomes aware of a Native American 
group that is not an Indian tribe as defined in this part but has 
aboriginal or historic ties to public lands under the Federal land 
manager's jurisdiction, the Federal land manager may seek to communicate 
with official representatives of that group to obtain information on 
sites they may consider to be of religious or cultural importance.
    (3) The Federal land manager may enter into agreement with any 
Indian tribe or other Native American group for determining locations 
for which such tribe or group wishes to receive notice under this 
section.
    (4) The Federal land manager should also seek to determine, in 
consultation with official representatives of Indian tribes or other 
Native American groups, what circumstances should be the subject of 
special notification to the tribe or group after a permit has been 
issued. Circumstances calling for

[[Page 512]]

notification might include the discovery of human remains. When 
circumstances for special notification have been determined by the 
Federal land manager, the Federal land manager will include a 
requirement in the terms and conditions of permits, under Sec. 
229.9(c), for permittees to notify the Federal land manager immediately 
upon the occurrence of such circumstances. Following the permittee's 
notification, the Federal land manager will notify and consult with the 
tribe or group as appropriate. In cases involving Native American human 
remains and other ``cultural items'', as defined by NAGPRA, the Federal 
land manager is referred to NAGPRA and its implementing



Sec. 229.8  Issuance of permits.

    (a) The Federal land manager may issue a permit, for a specified 
period of time appropriate to the work to be conducted, upon determining 
that:
    (1) The applicant is appropriately qualified, as evidenced by 
training, education, and/or experience, and possesses demonstrable 
competence in archaeological theory and methods, and in collecting, 
handling, analyzing, evaluating, and reporting archaeological data, 
relative to the type and scope of the work proposed, and also meets the 
following minimum qualifications:
    (i) A graduate degree in anthropology or archaeology, or equivalent 
training and experience;
    (ii) The demonstrated ability to plan, equip, staff, organize, and 
supervise activity of the type and scope proposed;
    (iii) The demonstrated ability to carry research to completion, as 
evidenced by timely completion of theses, research reports, or similar 
documents;
    (iv) Completion of at least 16 months of professional experience 
and/or specialized training in archaeological field, laboratory, or 
library research, administration, or management, including at least 4 
months experience and/or specialized training in the kind of activity 
the individual proposes to conduct under authority of a permit; and
    (v) Applicants proposing to engage in historical archaeology should 
have had at least one year of experience in research concerning 
archaeological resources of the historic period. Applicants proposing to 
engage in prehistoric archaeology should have had at least one year of 
experience in research concerning archaeological resources of the 
prehistoric period.
    (2) The proposed work is to be undertaken for the purpose of 
furthering archaeological knowledge in the public interest, which may 
include but need not be limited to, scientific or scholarly research, 
and preservation of archaeological data;
    (3) The proposed work, including time, scope, location, and purpose, 
is not inconsistent with any management plan or established policy, 
objectives, or requirements applicable to the management of the public 
lands concerned;
    (4) Where the proposed work consists of archaeological survey and/or 
data recovery undertaken in accordance with other approved uses of the 
public lands or Indian lands, and the proposed work has been agreed to 
in writing by the Federal land manager pursuant to section 106 of the 
National Historic Preservation Act (16 U.S.C. 470f), paragraphs (a) (2) 
and (a) (3) shall be deemed satisfied by the prior approval.
    (5) Written consent has been obtained, for work proposed on Indian 
lands, from the Indian landowner and the Indian tribe having 
jurisdiction over such lands;
    (6) Evidence is submitted to the Federal land manager that any 
university, museum, or other scientific or educational institution 
proposed in the application as the repository possesses adequate 
curatorial capability for safeguarding and preserving the archaeological 
resources and all associated records; and
    (7) The applicant has certified that, not later than 90 days after 
the date the final report is submitted to the Federal land manager, the 
following will be delivered to the appropriate official of the approved 
university, museum, or other scientific or educational institution, 
which shall be named in the permit:
    (i) All artifacts, samples, collections, and copies of records, 
data, photographs, and other documents resulting from work conducted 
under the requested permit where the permit is for

[[Page 513]]

the excavation and/or removal of archaeological resources from public 
lands.
    (ii) All artifacts, samples and collections resulting from work 
under the requested permit for which the custody or disposition is not 
undertaken by the Indian owners, and copies of records, data, 
photographs, and other documents resulting from work conducted under the 
requested permit, where the permit is for the excavation and/or removal 
of archaeological resources from Indian lands.
    (b) When the area of the proposed work would cross jurisdictional 
boundaries, so that permit applications must be submitted to more than 
one Federal land manager, the Federal land manager shall coordinate the 
review and evaluation of applications and the issuance of permits.



Sec. 229.9  Terms and conditions of permits.

    (a) In all permits issued, the Federal land manager shall specify:
    (1) The nature and extent of work allowed and required under the 
permit, including the time, duration, scope, location, and purpose of 
the work;
    (2) The name of the individual(s) responsible for conducting the 
work and, if different, the name of the individual(s) responsible for 
carrying out the terms and conditions of the permit;
    (3) The name of any university, museum, or other scientific or 
educational institutions in which any collected materials and data shall 
be deposited; and
    (4) Reporting requirements.
    (b) The Federal land manager may specify such terms and conditions 
as deemed necessary, consistent with this part, to protect public safety 
and other values and/or resources, to secure work areas, to safeguard 
other legitimate land uses, and to limit activities incidental to work 
authorized under a permit.
    (c) The Federal land manager shall include in permits issued for 
archaeological work on Indian lands such terms and conditions as may be 
requested by the Indian landowner and the Indian tribe having 
jurisdiction over the lands, and for archaeological work on public lands 
shall include such terms and conditions as may have been developed 
pursuant to Sec. 229.7.
    (d) Initiation of work or other activities under the authority of a 
permit signifies the permittee's acceptance of the terms and conditions 
of the permit.
    (e) The permittee shall not be released from requirements of a 
permit until all outstanding obligations have been satisfied, whether or 
not the term of the permit has expired.
    (f) The permittee may request that the Federal land manager extend 
or modify a permit.
    (g) The permittee's performance under any permit issued for a period 
greater than 1 year shall be subject to review by the Federal land 
manager, at least annually.



Sec. 229.10  Suspension and revocation of permits.

    (a) Suspension or revocation for cause. (1) The Federal land manager 
may suspend a permit issued pursuant to this part upon determining that 
the permittee has failed to meet any of the terms and conditions of the 
permit or has violated any prohibition of the Act or Sec. 229.4. The 
Federal land manager shall provide written notice to the permittee of 
the suspension, the cause thereof, and the requirements which must be 
met before the suspension will be removed.
    (2) The Federal land manager may revoke a permit upon assessment of 
a civil penalty under Sec. 229.15 upon the permittee's conviction under 
section 6 of the Act, or upon determining that the permittee has failed 
after notice under this section to correct the situation which led to 
suspension of the permit.
    (b) Suspension or revocation for management purposes. The Federal 
land manager may suspend or revoke a permit, without liability to the 
United States, its agents, or employees, when continuation of work under 
the permit would be in conflict with management requirements not in 
effect when the permit was issued. The Federal land manager shall 
provide written notice to the permittee stating the nature of and basis 
for the suspension or revocation.

[[Page 514]]



Sec. 229.11  Appeals relating to permits.

    Any affected person may appeal permit issuance, denial of permit 
issuance, suspension, revocation, and terms and conditions of a permit 
through existing administrative appeal procedures, or through procedures 
which may be established by the Federal land manager pursuant to section 
10(b) of the Act and this part.



Sec. 229.12  Relationship to section 106 of the National Historic Preservation Act.

    Issuance of a permit in accordance with the Act and this part does 
not constitute an undertaking requiring compliance with section 106 of 
the Act of October 15, 1966 (16 U.S.C. 470f). However, the mere issuance 
of such a permit does not excuse the Federal land manager from 
compliance with section 106 where otherwise required.



Sec. 229.13  Custody of archaeological resources.

    (a) Archaeological resources excavated or removed from the public 
lands remain the property of the United States.
    (b) Archaeological resources excavated or removed from Indian lands 
remain the property of the Indian or Indian tribe having rights of 
ownership over such resources.
    (c) The Secretary of the Interior may promulgate regulations 
providing for the exchange of archaeological resources among suitable 
universities, museums, or other scientific or educational institutions, 
for the ultimate disposition of archaeological resources, and for 
standards by which archaeological resources shall be preserved and 
maintained, when such resources have been excavated or removed from 
public lands and Indian lands.
    (d) In the absence of regulations referenced in paragraph (c) of 
this section, the Federal land manager may provide for the exchange of 
archaeological resources among suitable universities, museums, or other 
scientific or educational institutions, when such resources have been 
excavated or removed from public lands under the authority of a permit 
issued by the Federal land manager.
    (e) Notwithstanding the provisions of paragraphs (a) through (d) of 
this section, the Federal land manager will follow the procedures 
required by NAGPRA and its implementing regulations for determining the 
disposition of Native American human remains and other ``cultural 
items'', as defined by NAGPRA, that have been excavated, removed, or 
discovered on public lands.



Sec. 229.14  Determination of archaeological or commercial value and cost of restoration and repair.

    (a) Archaeological value. For purposes of this part, the 
archaeological value of any archaeological resource involved in a 
violation of the prohibitions in Sec. 229.4 of this part or conditions 
of a permit issued pursuant to this part shall be the value of the 
information associated with the archaeological resource. This value 
shall be appraised in terms of the costs of the retrieval of the 
scientific information which would have been obtainable prior to the 
violation. These costs may include, but need not be limited to, the cost 
of preparing a research design, conducting field work, carrying out 
laboratory analysis, and preparing reports as would be necessary to 
realize the information potential.
    (b) Commercial value. For purposes of this part, the commercial 
value of any archaeological resource involved in a violation of the 
prohibitions in Sec. 229.4 of this part or conditions of a permit 
issued pursuant to this part shall be its fair market value. Where the 
violation has resulted in damage to the archaeological resource, the 
fair market value should be determined using the condition of the 
archaeological resource prior to the violation, to the extent that its 
prior condition can be ascertained.
    (c) Cost of restoration and repair. For purposes of this part, the 
cost of restoration and repair of archaeological resources damaged as a 
result of a violation of prohibitions or conditions pursuant to this 
part, shall be the sum of the costs already incurred for emergency 
restoration or repair work, plus those costs projected to be necessary 
to complete restoration and repair, which may include, but need not be 
limited to, the costs of the following:

[[Page 515]]

    (1) Reconstruction of the archaeological resource;
    (2) Stabilization of the archaeological resource;
    (3) Ground contour reconstruction and surface stabilization;
    (4) Research necessary to carry out reconstruction or stabilization;
    (5) Physical barriers or other protective devices, necessitated by 
the disturbance of the archaeological resource, to protect it from 
further disturbance;
    (6) Examination and analysis of the archaeological resource 
including recording remaining archaeological information, where 
necessitated by disturbance, in order to salvage remaining values which 
cannot be otherwise conserved;
    (7) Reinterment of human remains in accordance with religious custom 
and State, local, or tribal law, where appropriate, as determined by the 
Federal land manager.
    (8) Preparation of reports relating to any of the above activities.



Sec. 229.15  Assessment of civil penalties.

    (a) The Federal land manager may assess a civil penalty against any 
person who has violated any prohibition contained in Sec. 229.4 or who 
has violated any term or condition included in a permit issued in 
accordance with the Act and this part.
    (b) Notice of violation. The Federal land manager shall serve a 
notice of violation upon any person believed to be subject to a civil 
penalty, either in person or by registered or certified mail (return 
receipt requested). The Federal land manager shall include in the 
notice:
    (1) A concise statement of the facts believed to show a violation;
    (2) A specific reference to the provision(s) of this part or to a 
permit issued pursuant to this part allegedly violated;
    (3) The amount of penalty proposed to be assessed, including any 
initial proposal to mitigate or remit where appropriate, or a statement 
that notice of a proposed penalty amount will be served after the 
damages associated with the alleged violation have been ascertained;
    (4) Notification of the right to file a petition for relief pursuant 
to paragraph (d) of this section, or to await the Federal land manager's 
notice of assessment, and to request a hearing in accordance with 
paragraph (g) of this section. The notice shall also inform the person 
of the right to seek judicial review of any final administrative 
decision assessing a civil penalty.
    (c) The person served with a notice of violation shall have 45 
calendar days from the date of its service (or the date of service of a 
proposed penalty amount, if later) in which to respond. During this time 
the person may:
    (1) Seek informal discussions with the Federal land manager;
    (2) File a petition for relief in accordance with paragraph (d) of 
this section;
    (3) Take no action and await the Federal land manager's notice of 
assessment;
    (4) Accept in writing or by payment the proposed penalty, or any 
mitigation or remission offered in the notice. Acceptance of the 
proposed penalty or mitigation or remission shall be deemed a waiver of 
the notice of assessment and of the right to request a hearing under 
paragraph (g) of this section.
    (d) Petition for relief. The person served with a notice of 
violation may request that no penalty be assessed or that the amount be 
reduced, by filing a petition for relief with the Federal land manager 
within 45 calendar days of the date of service of the notice of 
violation (or of a proposed penalty amount, if later). The petition 
shall be in writing and signed by the person served with the notice of 
violation. If the person is a corporation, the petition must be signed 
by an officer authorized to sign such documents. The petition shall set 
forth in full the legal or factual basis for the requested relief.
    (e) Assessment of penalty. (1) The Federal land manager shall assess 
a civil penalty upon expiration of the period for filing a petition for 
relief, upon completion of review of any petition filed, or upon 
completion of informal discussions, whichever is later.
    (2) The Federal land manager shall take into consideration all 
available information, including information provided pursuant to 
paragraphs (c)

[[Page 516]]

and (d) of this section or furnished upon further request by the Federal 
land manager.
    (3) If the facts warrant a conclusion that no violation has 
occurred, the Federal land manager shall so notify the person served 
with a notice of violation, and no penalty shall be assessed. (4) Where 
the facts warrant a conclusion that a violation has occurred, the 
Federal land manager shall determine a penalty amount in accordance with 
Sec. 229.16.
    (f) Notice of assessment. The Federal land manager shall notify the 
person served with a notice of violation of the penalty amount assessed 
by serving a written notice of assessment, either in person or by 
registered or certified mail (return receipt requested). The Federal 
land manager shall include in the notice of assessment:
    (1) The facts and conclusions from which it was determined that a 
violation did occur;
    (2) The basis in Sec. 229.16 for determining the penalty amount 
assessed and/or any offer to mitigate or remit the penalty; and
    (3) Notification of the right to request a hearing, including the 
procedures to be followed, and to seek judicial review of any final 
administrative decision assessing a civil penalty.
    (g) Hearings. (1) Except where the right to request a hearing is 
deemed to have been waived as provided in paragraph (c)(4) of this 
section, the person served with a notice of assessment may file a 
written request for a hearing with the adjudicatory body specified in 
the notice. The person shall enclose with the request for hearing a copy 
of the notice of assessment, and shall deliver the request as specified 
in the notice of assessment, personally or by registered or certified 
mail (return receipt requested).
    (2) Failure to deliver a written request for a hearing within 45 
days of the date of service of the notice of assessment shall be deemed 
a waiver of the right to a hearing.
    (3) Any hearing conducted pursuant to this section shall be held in 
accordance with 5 U.S.C. 554. In any such hearing, the amount of civil 
penalty assessed shall be determined in accordance with this part, and 
shall not be limited by the amount assessed by the Federal land manager 
under paragraph (f) of this section or any offer of mitigation or 
remission made by the Federal land manager.
    (h) Final administrative decision. (1) Where the person served with 
a notice of violation has accepted the penalty pursuant to paragraph 
(c)(4) of this section, the notice of violation shall constitute the 
final administrative decision;
    (2) Where the person served with a notice of assessment has not 
filed a timely request for a hearing pursuant to paragraph (g)(1) of 
this section, the notice of assessment shall constitute the final 
administrative decision;
    (3) Where the person served with a notice of assessment has filed a 
timely request for a hearing pursuant to paragraph (g)(1) of this 
section, the decision resulting from the hearing or any applicable 
administrative appeal therefrom shall constitute the final 
administrative decision.
    (i) Payment of penalty. (1) The person assessed a civil penalty 
shall have 45 calendar days from the date of issuance of the final 
administrative decision in which to make full payment of the penalty 
assessed, unless a timely request for appeal has been filed with a U.S. 
District Court as provided in section 7(b)(1) of the Act.
    (2) Upon failure to pay the penalty, the Federal land manager may 
request the Attorney General to institute a civil action to collect the 
penalty in a U.S. District Court for any district in which the person 
assessed a civil penalty is found, resides, or transacts business. Where 
the Federal land manager is not represented by the Attorney General, a 
civil action may be initiated directly by the Federal land manager.
    (j) Other remedies not waived. Assessment of a penalty under this 
section shall not be deemed a waiver of the right to pursue other 
available legal or administrative remedies.



Sec. 229.16  Civil penalty amounts.

    (a) Maximum amount of penalty. (1) Where the person being assessed a 
civil penalty has not committed any previous violation of any 
prohibition in Sec. 229.4 or of any term or condition included in a 
permit issued pursuant to

[[Page 517]]

this part, the maximum amount of the penalty shall be the full cost of 
restoration and repair of archaeological resources damaged plus the 
archaeological or commercial value of archaeological resources destroyed 
or not recovered.
    (2) Where the person being assessed a civil penalty has committed 
any previous violation of any prohibition in Sec. 229.4 or of any term 
or condition included in a permit issued pursuant to this part, the 
maximum amount of the penalty shall be double the cost of restoration 
and repair plus double the archaeological or commercial value of 
archaeological resources destroyed or not recovered.
    (3) Violations limited to the removal of arrowheads located on the 
surface of the ground shall not be subject to the penalties prescribed 
in this section.
    (b) Determination of penalty amount, mitigation, and remission. The 
Federal land manager may assess a penalty amount less than the maximum 
amount of penalty and may offer to mitigate or remit the penalty.
    (1) Determination of the penalty amount and/or a proposal to 
mitigate or remit the penalty may be based upon any of the following 
factors:
    (i) Agreement by the person being assessed a civil penalty to return 
to the Federal land manager archaeological resources removed from public 
lands or Indian lands;
    (ii) Agreement by the person being assessed a civil penalty to 
assist the Federal land manager in activity to preserve, restore, or 
otherwise contribute to the protection and study of archaeological 
resources on public lands or Indian lands;
    (iii) Agreement by the person being assessed a civil penalty to 
provide information which will assist in the detection, prevention, or 
prosecution of violations of the Act or this part;
    (iv) Demonstration of hardship or inability to pay, provided that 
this factor shall only be considered when the person being assessed a 
civil penalty has not been found to have previously violated the 
regulations in this part;
    (v) Determination that the person being assessed a civil penalty did 
not willfully commit the violation;
    (vi) Determination that the proposed penalty would constitute 
excessive punishment under the circumstances;
    (vii) Determination of other mitigating circumstances appropriate to 
consideration in reaching a fair and expeditious assessment.
    (2) When the penalty is for a violation on Indian lands, the Federal 
land manager shall consult with and consider the interests of the Indian 
landowner and the Indian tribe having jurisdiction over the Indian lands 
prior to proposing to mitigate or remit the penalty.
    (3) When the penalty is for a violation which may have had an effect 
on a known Indian tribal religious or cultural site on public lands, the 
Federal land manager should consult with and consider the interests of 
the affected tribe(s) prior to proposing to mitigate or remit the 
penalty.



Sec. 229.17  Other penalties and rewards.

    (a) Section 6 of the Act contains criminal prohibitions and 
provisions for criminal penalties. Section 8(b) of the Act provides that 
archaeological resources, vehicles, or equipment involved in a violation 
may be subject to forfeiture.
    (b) Section 8(a) of the Act provides for rewards to be made to 
persons who furnish information which leads to conviction for a criminal 
violation or to assessment of a civil penalty. The Federal land manager 
may certify to the Secretary of the Treasury that a person is eligible 
to receive payment. Officers and employees of Federal, State, or local 
government who furnish information or render service in the performance 
of their official duties, and persons who have provided information 
under Sec. 229.16(b)(1)(iii) shall not be certified eligible to receive 
payment of rewards.
    (c) In cases involving Indian lands, all civil penalty monies and 
any item forfeited under the provisions of this section shall be 
transferred to the appropriate Indian or Indian tribe.



Sec. 229.18  Confidentiality of archaeological resource information.

    (a) The Federal land manager shall not make available to the public, 
under subchapter II of chapter 5 of title 5 of

[[Page 518]]

the U.S. Code or any other provision of law, information concerning the 
nature and location of any archaeological resource, with the following 
exceptions:
    (1) The Federal land manager may make information available, 
provided that the disclosure will further the purposes of the Act and 
this part, or the Act of June 27, 1960, as amended (16 U.S.C. 469-469c), 
without risking harm to the archaeological resource or to the site in 
which it is located.
    (2) The Federal land manager shall make information available, when 
the Governor of any State has submitted to the Federal land manager a 
written request for information, concerning the archaeological resources 
within the requesting Governor's State, provided that the request 
includes:
    (i) The specific archaeological resource or area about which 
information is sought;
    (ii) The purpose for which the information is sought; and
    (iii) The Governor's written commitment to adequately protect the 
confidentiality of the information.
    (b) [Reserved]



Sec. 229.19  Report.

    (a) Each Federal land manager, when requested by the Secretary of 
the Interior, will submit such information as is necessary to enable the 
Secretary to comply with section 13 of the Act and comprehensively 
report on activities carried out under provisions of the Act.
    (b) The Secretary of the Interior will include in the annual 
comprehensive report, submitted to the Committee on Interior and Insular 
Affairs of the United States House of Representatives and to the 
Committee on Energy and Natural Resources of the United States Senate 
under section 13 of the Act, information on public awareness programs 
submitted by each Federal land manager under Sec. 229.20(b). Such 
submittal will fulfill the Federal land manager's responsibility under 
section 10(c) of the Act to report on public awareness programs.
    (c) The comprehensive report by the Secretary of the Interior also 
will include information on the activities carried out under section 14 
of the Act. Each Federal land manager, when requested by the Secretary, 
will submit any available information on surveys and schedules and 
suspected violations in order to enable the Secretary to summarize in 
the comprehensive report actions taken pursuant to section 14 of the 
Act.



Sec. 229.20  Public awareness programs.

    (a) Each Federal land manager will establish a program to increase 
public awareness of the need to protect important archaeological 
resources located on public and Indian lands. Educational activities 
required by section 10(c) of the Act should be incorporated into other 
current agency public education and interpretation programs where 
appropriate.
    (b) Each Federal land manager annually will submit to the Secretary 
of the Interior the relevant information on public awareness activities 
required by section 10(c) of the Act for inclusion in the comprehensive 
report on activities required by section 13 of the Act.



Sec. 229.21  Surveys and schedules.

    (a) The Secretaries of the Interior, Agriculture, and Defense and 
the Chairman of the Board of the Tennessee Valley Authority will develop 
plans for surveying lands under each agency's control to determine the 
nature and extent of archaeological resources pursuant to section 14(a) 
of the Act. Such activities should be consistent with Federal agency 
planning policies and other historic preservation program 
responsibilities required by 16 U.S.C. 470 et seq. Survey plans prepared 
under this section will be designed to comply with the purpose of the 
Act regarding the protection of archaeological resources.
    (b) The Secretaries of the Interior, Agriculture, and Defense and 
the Chairman of the Tennessee Valley Authority will prepare schedules 
for surveying lands under each agency's control that are likely to 
contain the most scientifically valuable archaeological resources 
pursuant to section 14(b) of the Act. Such schedules will be developed 
based on objectives and information identified in survey plans described 
in paragraph (a) of this section and implemented systematically to

[[Page 519]]

cover areas where the most scientifically valuable archaeological 
resources are likely to exist.
    (c) Guidance for the activities undertaken as part of paragraphs (a) 
through (b) of this section is provided by the Secretary of the 
Interior's Standards and Guidelines for Archeology and Historic 
Preservation.
    (d) Other Federal land managing agencies are encouraged to develop 
plans for surveying lands under their jurisdictions and prepare 
schedules for surveying to improve protection and management of 
archaeological resources.
    (e) The Secretaries of the Interior, Agriculture, and Defense and 
the Chairman of the Tennessee Valley Authority will develop a system for 
documenting and reporting suspected violations of the various provisions 
of the Act. This system will reference a set of procedures for use by 
officers, employees, or agents of Federal agencies to assist them in 
recognizing violations, documenting relevant evidence, and reporting 
assembled information to the appropriate authorities. Methods employed 
to document and report such violations should be compatible with 
existing agency reporting systems for documenting violations of other 
appropriate Federal statutes and regulations. Summary information to be 
included in the Secretary's comprehensive report will be based upon the 
system developed by each Federal land manager for documenting suspected 
violations.



PART 230_FINANCIAL INSTITUTIONS ON DOD INSTALLATIONS--Table of Contents



Sec.
230.1 Purpose.
230.2 Applicability.
230.3 Definitions.
230.4 Policy.
230.5 Responsibilities.

    Authority: 10 U.S.C. 136.

    Source: 66 FR 46373, Sept. 5, 2001, unless otherwise noted.



Sec. 230.1  Purpose.

    This part:
    (a) Updates policies and responsibilities for financial institutions 
that serve Department of Defense (DoD) personnel on DoD installations 
worldwide. Associated procedures are contained in 32 CFR part 231.
    (b) Prescribes consistent arrangements for the provision of services 
by financial institutions among the DoD Components, and requires that 
financial institutions operating on DoD installations provide, and are 
provided, support consistent with the policies stated in this part.



Sec. 230.2  Applicability.

    This part applies to the Office of the Secretary of Defense (OSD), 
the Military Departments, the Chairman of the Joint Chiefs of Staff 
(JCS), the Combatant Commands, the Inspector General of the Department 
of Defense, the Defense Agencies, the DoD Field Activities, and all 
other organizational entities within the Department of Defense 
(hereafter collectively referred to as ``the DoD Components'') and all 
nonappropriated fund instrumentalities including the Military Exchange 
Services and morale, welfare and recreation (MWR) activities.



Sec. 230.3  Definitions.

    Terms used in this part are set forth in 32 CFR part 231.



Sec. 230.4  Policy.

    (a) The following pertains to financial institutions on DoD 
installations:
    (1) Except where they already may exist as of May 1, 2000, no more 
than one banking institution and one credit union shall be permitted to 
operate on a DoD installation.
    (2) Upon the request of an installation commander and with the 
approval of the Secretary of the Military Department concerned (or 
designee), duly chartered financial institutions may be authorized to 
provide financial services on DoD installations to enhance the morale 
and welfare of DoD personnel and facilitate the administration of public 
and quasi-public monies. Arrangement for the provision of such services 
shall be in accordance with this part and the applicable provisions of 
32 CFR part 231.
    (3) Financial institutions or branches thereof, shall be established 
on DoD installations only after approval by the Secretary of the 
Military Department

[[Page 520]]

concerned (or designee) and the appropriate regulatory agency.
    (i) Except in limited situations overseas (see paragraph (b)(2)(iii) 
of this section), only banking institutions insured by the Federal 
Deposit Insurance Corporation and credit unions insured by the National 
Credit Union Share Insurance Fund or by another insurance organization 
specifically qualified by the Secretary of the Treasury, shall operate 
on DoD installations. These financial institutions may either be State 
or federally chartered; however, U.S. credit unions operated overseas 
shall be federally insured.
    (ii) Military banking facilities (MBFs) shall be established on DoD 
installations only when a demonstrated and justified need cannot be met 
through other means. An MBF is a financial institution that is 
established by the Department of the Treasury under statutory authority 
that is separate from State or Federal laws that govern commercial 
banking. Section 265 of title 12, United States Code contains the 
provisions for the Department of the Treasury to establish MBFs. 
Normally, MBFs shall be authorized only at overseas locations. This form 
of financial institution may be considered for use at domestic DoD 
installations only when the cognizant DoD Component has been unable to 
obtain, through normal means, financial services from a State or 
federally chartered financial institution authorized to operate in the 
State in which the installation is located. In times of mobilization, it 
may become necessary to designate additional MBFs as an emergency 
measure. The Director, Defense Finance and Accounting Service (DFAS) may 
recommend the designation of MBFs to the Department of the Treasury.
    (iii) Retail banking operations shall not be performed by any DoD 
Component. Solicitations for such services shall be issued, or proposals 
accepted, only in accordance with the policies identified in this part. 
The DoD Components shall rely on commercially available sources in 
accordance with DoD Directive 4100.15. \1\
---------------------------------------------------------------------------

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

    (4) Installation commanders shall not seek the provision of 
financial services from any entity other than the on-base banking office 
or credit union. The Director, DFAS, with the concurrence of the Under 
Secretary of Defense (Comptroller) (USD(C)), may approve exceptions to 
this policy.
    (5) Financial institutions authorized to locate on DoD installations 
shall be provided logistic support as set forth in 32 CFR part 231.
    (6) Military disbursing offices, nonappropriated fund 
instrumentalities (including MWR activities and the Military Exchange 
Services) and other DoD Component activities requiring financial 
services shall use on-base financial institutions to the maximum extent 
feasible.
    (7) The Department encourages the delivery of retail financial 
services on DoD installations via nationally networked automated teller 
machines (ATMs).
    (i) ATMs are considered electronic banking services and, as such, 
shall be provided only by financial institutions that are chartered and 
insured in accordance with the provisions of paragraph (a)(3) of this 
section.
    (ii) Proposals by the installation commander to install ATMs from 
other than on-base financial institutions shall comply with the 
provisions of paragraph (a)(4) of this section.
    (8) Expansion of financial services (to include in-store banking) 
requiring the outgrant of additional space or logistical support shall 
be approved by the installation commander. Any DoD activity or financial 
institution seeking to expand financial services shall coordinate such 
requests with the installation bank/credit union liaison officer prior 
to the commander's consideration.
    (9) The installation commander shall ensure, to the maximum extent 
feasible, that all financial institutions operating on that installation 
are given the opportunity to participate in pilot programs to 
demonstrate new financial-related technology or establish new business 
lines (e.g., in-store banking) where a determination has been made by 
the respective DoD Component that the offering of such services is 
warranted.

[[Page 521]]

    (10) The installation commander shall approve requests for 
termination of financial services that are substantiated by sufficient 
evidence and forwarded to the Secretary of the Military Department 
concerned (or designee). The Secretary of the Military Department (or 
designee) shall coordinate such requests with the USD(C), through the 
Director, DFAS, before notification to the appropriate regulatory 
agency.
    (11) Additional guidance pertaining to financial services is set 
forth in 32 CFR part 231.
    (b) The following additional provisions pertain only to financial 
institutions on overseas DoD installations:
    (1) The extension of services by MBFs and credit unions overseas 
shall be consistent with the policies stated in this part and with the 
applicable status of forces agreements, other intergovernmental 
agreements, or host-country law.
    (2) Financial services at overseas DoD installations may be provided 
by:
    (i) Domestic on-base credit unions operating overseas under a 
geographic franchise and, where applicable, as authorized by the 
pertinent status of forces agreements, other intergovernmental 
agreements, or host-country law.
    (ii) MBFs operated under and authorized by the pertinent status of 
forces agreement, other intergovernmental agreement, or host-country 
law.
    (iii) Domestic and foreign banks located on overseas DoD 
installations that are:
    (A) Chartered to provide financial services in that country, and
    (B) A party to a formal operating agreement with the installation 
commander to provide such services, and
    (C) Identified, where applicable, in the status of forces 
agreements, other intergovernmental agreements, or host-country law.
    (3) In countries served by MBFs operated under contract, 
nonappropriated fund instrumentalities and on-base credit unions that 
desire, and are authorized, to provide accommodation exchange services 
shall acquire foreign currency from the MBF at the MBF accommodation 
rate; and shall sell such foreign currency at a rate of exchange that is 
no more favorable to the customer than the customer rate available at 
the MBF.



Sec. 230.5  Responsibilities.

    (a) The Under Secretary of Defense (Comptroller) (USD(C)) shall 
develop policies governing establishment, operation, and termination of 
financial institutions on DoD installations and take final action on 
requests for exceptions to this part.
    (b) The Under Secretary of Defense (Acquisition, Technology and 
Logistics) (USD(AT&L)) shall monitor policies and procedures governing 
logistical support furnished to financial institutions on DoD 
installations, including the use of DoD real property and equipment.
    (c) The Under Secretary of Defense (Personnel and Readiness) 
(USD(P&R)) shall advise the USD(C) on all aspects of on-base financial 
institution services that affect the morale and welfare of DoD 
personnel.
    (d) DoD Component responsibilities pertaining to this part are set 
forth in 32 CFR part 231.



PART 231_PROCEDURES GOVERNING BANKS, CREDIT UNIONS AND OTHER FINANCIAL 
INSTITUTIONS ON DOD INSTALLATIONS--Table of Contents



                          Subpart A_Guidelines

Sec.
231.1 Overview.
231.2 Policy.
231.3 Responsibilities.
231.4 General provisions.
231.5 Procedures--domestic banks.
231.6 Procedures--overseas banks.
231.7 Procedures--domestic credit unions.
231.8 Procedures--overseas credit unions.
231.9 Definitions.

                     Subpart B_DoD Directive 1000.11

231.10 Financial institutions on DoD installations.

 Subpart C_Guidelines for Applications of the Privacy Act to Financial 
                         Institution Operations

231.11 Guidelines.

Appendix A to Part 231--Sample Operating Agreement Between Military 
          Installations and Financial Institutions
Appendix B to Part 231--In-store Banking.

[[Page 522]]

Appendix C to Part 231--Sample certificate of compliance for credit 
          unions.

    Authority: 10 U.S.C. 136.

    Source: 66 FR 46708, Sept. 7, 2001, unless otherwise noted.



                          Subpart A_Guidelines



Sec. 231.1  Overview.

    (a) Purpose. This part implements DoD Directive 1000.11 (32 CFR part 
230) \1\ and prescribes guidance and procedures governing the 
establishment, support, operation, and termination of banks and credit 
unions operating on DoD installations worldwide, to include military 
banking facilities (MBFs). In addition, this part provides guidance 
intended to ensure that arrangements for the provision of services by 
financial institutions are consistent among DoD Components, and that 
financial institutions operating on DoD installations provide, and are 
provided, support consistent with the guidance and procedures stated 
herein.
---------------------------------------------------------------------------

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

    (b) Applicability. This part applies to the Office of the Secretary 
of Defense (OSD), the Military Departments, the Joint Chiefs of Staff 
(JCS), the Joint Staff and the supporting Joint Agencies, the Combatant 
Commands, the Inspector General of the Department of Defense (IG, DoD), 
the Defense Agencies, the DoD Field Activities, the Uniformed Services 
University of the Health Sciences (USUHS), all DoD nonappropriated fund 
instrumentalities including the Military Exchange Services and morale, 
welfare and recreation (MWR) activities, and all other organizational 
entities within the Department of Defense.



Sec. 231.2  Policy.

    The policy pertaining to financial institutions operating on DoD 
installations is contained in DoD Directive 1000.11 (32 CFR part 230) 
and in Sec. 231.4.



Sec. 231.3  Responsibilities.

    (a) The Under Secretary of Defense (Comptroller) (USD(C)) shall 
develop and monitor policies governing establishment, operation, and 
termination of financial institutions on DoD installations and take 
final action on requests for exceptions to this part.
    (b) The Under Secretary of Defense (Acquisition, Technology and 
Logistics) (USD(AT&L)) shall monitor policies and procedures governing 
logistical support furnished to financial institutions on DoD 
installations, including the use of DoD real property and equipment.
    (c) The Under Secretary of Defense (Personnel and Readiness) 
(USD(P&R)) shall advise the USD(C) on all aspects of on-base financial 
institution services that affect the morale and welfare of DoD 
personnel.
    (d) The Director, Defense Finance and Accounting Service (DFAS) 
shall:
    (1) Develop procedures governing banks and credit unions on DoD 
installations for promulgation in this part.
    (2) For domestic DoD installations, coordinate with the Secretaries 
of the Military Departments (or designees) on requests from subordinate 
installation commanders to establish or terminate banking offices or on-
base credit unions. For overseas DoD installations, coordinate with the 
Secretary of the Military Department concerned (or designee) on requests 
from subordinate installation commanders to establish or discontinue the 
provision of financial services from the on-base financial institution 
under contract with the Department of Defense or to establish or 
terminate banking offices or credit unions located on DoD installations.
    (3) In coordination with affected DoD Components, authorize the 
specific types of banking services that will be provided by overseas 
military banking facilities (MBFs) and specify the charges or fees, or 
the basis for these, to be levied on users of these services.
    (4) Coordinate with the Fiscal Assistant Secretary of the Treasury 
on the designation of domestic and overseas MBFs as depositaries and 
financial agents of the U.S. Government.
    (5) Designate a technical representative to provide policy direction 
for the procuring and administrative contracting officer(s) responsible 
under the Federal Acquisition Regulation (FAR) for acquiring banking 
services required at overseas DoD installations.

[[Page 523]]

    (6) Serve as principal liaison with banking institutions having 
offices on overseas DoD installations. In this capacity, monitor MBF 
managerial and operational policies, procedures, and operating results 
and take action as appropriate.
    (7) As necessary, assist in the formation of government-to-
government agreements for the provision of banking services on overseas 
DoD installations, in accordance with DoD Directive 5530.3 \2\.
---------------------------------------------------------------------------

    \2\ See footnote 1 to Sec. 231.1(a).
---------------------------------------------------------------------------

    (8) Provide procedural guidance to DoD Components, as required.
    (9) Maintain liaison with financial institution trade associations, 
leagues, and councils in order to interpret DoD policies toward 
respective memberships and aid in resolving mutual concerns affecting 
the provision of financial services.
    (10) Coordinate with the USD(P&R), through the USD(C), on all 
aspects of morale and welfare and with the USD(AT&L), through the 
USD(C), on all aspects of logistic support for on-base financial 
institutions.
    (11) Monitor industry trends, conduct studies and surveys, and 
facilitate appropriate dialogues on banking and credit union 
arrangements and cost-benefit relationships, coordinate as necessary 
with DoD Components, financial institutions, and trade associations as 
appropriate.
    (12) Maintain liaison, as appropriate, with financial institution 
regulatory agencies at federal and state levels.
    (13) Ensure that recommendations of the Combatant Commands are 
considered before processing requests for overseas banking and credit 
union service or related actions.
    (14) Maintain a listing of all geographic franchises assigned to 
credit unions serving DoD overseas installations.
    (e) Secretaries of the Military Departments (or designees) shall:
    (1) For domestic DoD installations, take action on requests from 
subordinate installation commanders to establish or terminate financial 
institution operations. For overseas DoD installations, take action in 
accordance with guidance contained herein on requests from subordinate 
installation commanders to establish or discontinue the provision of 
financial services from the DoD contracted banking institution, or to 
establish or terminate other financial institutions located on DoD 
installations.
    (2) Provide for liaison to those financial institutions that operate 
banking offices on respective domestic DoD installations.
    (3) Oversee the use of banking offices and credit unions on 
respective DoD installations within the guidance contained herein and in 
DoD Directive 1000.11 (32 CFR part 230).
    (4) Evaluate the services provided and related charges and fees by 
respective on-base banking offices and credit unions to ensure that they 
fulfill the requirements upon which the establishment and retention of 
those services were justified.
    (5) Monitor practices and procedures of respective banking offices 
and credit unions to ensure that the welfare and interests of DoD 
personnel as consumers are protected.
    (6) Assist on-base banking offices and credit unions to develop and 
expand necessary services for DoD personnel consistent with this part.
    (7) Encourage the conversion of existing domestic MBFs on respective 
installations to independent or branch bank status where feasible.
    (8) Provide logistical support to overseas MBFs under terms and 
conditions identified in this part as well as with the applicable terms 
of DoD contracts with financial institutions responsible for the 
operations of overseas MBFs.
    (9) Refer matters requiring policy decisions or proposed changes to 
this part or DoD Directive 1000.11 (32 CFR part 230) to the USD(C) 
through the Director, DFAS.
    (10) Monitor and encourage the use of financial institutions on DoD 
installations to accomplish the following ends.
    (i) Facilitate convenient, effective management of the appropriated, 
nonappropriated, and private funds of on-base activities.
    (ii) Assist DoD personnel in managing their personal finances 
through participation in programs such as direct deposit and regular 
savings plans, including U.S. savings bonds. The use

[[Page 524]]

of on-base financial institutions shall be on a voluntary basis and 
should not be urged in preference to, or to the exclusion of, other 
financial institutions.
    (11) Encourage and assist duly chartered financial institutions on 
domestic DoD installations to provide complete financial services to 
include, without charge, basic financial education and counseling 
services. Financial education and counseling services refer to basic 
personal and family finances such as budgeting, checkbook balancing and 
account reconciliation, benefits of savings, prudent use of credit, how 
to start a savings program, how to shop and apply for credit, and the 
consequences of excessive credit.
    (12) Establish liaison, as appropriate, with federal and state 
regulatory agencies and financial institution trade associations, 
leagues, and councils.
    (13) Make military locator services available to on-base financial 
institutions in accordance with the Privacy Act guidelines in subpart B 
of this part.
    (14) Permit DoD personnel to serve on volunteer boards or committees 
of on-base financial institutions, without compensation, when neither a 
conflict of duty nor a conflict of interest is involved, in accordance 
with DoD Directive 5500.7. \3\
---------------------------------------------------------------------------

    \3\ See footnote 1 to Sec. 231.1(a).
---------------------------------------------------------------------------

    (15) Allow DoD personnel to attend conferences and meetings that 
bring together representatives of on-base financial institutions, when 
neither a conflict of duty nor a conflict of interest is involved, in 
accordance with DoD Directive 1327.5, \4\ subchapter 630 of the DoD 
Civilian Personnel Manual (DoD 1400.25-M \5\), and Comptroller General 
Decision B-212457.
---------------------------------------------------------------------------

    \4\ See footnote 1 to Sec. 231.1(a).
    \5\ See footnote 1 to Sec. 231.1(a).
---------------------------------------------------------------------------

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

[[Page 525]]

1400.25-M), and Comptroller General Decision B-212457.
    (8) Seek the provision of financial services only from existing on-
base financial institutions, proposing alternatives only where on-base 
financial institutions fail to respond favorably to a valid requirement.



Sec. 231.4  General provisions.

    (a) Security. The installation commander (or designee) and officials 
of the on-base financial institutions shall work with the installation 
security authorities to establish an understanding as to each entity's 
responsibilities. The on-base financial institutions are encouraged to 
establish an ongoing relationship with installation security authorities 
on all matters of asset protection.
    (1) A written agreement shall be established outlining the security 
procedures that the financial institution will follow and the role that 
installation security authorities will play with regard to alarms, 
movement of cash, and procedures to be followed in response to criminal 
activity (e.g., armed robbery).
    (2) Cash and other assets in on-base banking offices and credit 
unions are the property of those financial institutions. Maintenance of 
alarms and use of armored cars is the sole responsibility of the on-base 
financial institution. The on-base financial institution is also solely 
responsible for the guarding or escorting of cash unless the 
installation commander determines that providing such services is 
desirable or necessary.
    (b) Central locator services. Military locator services shall be 
provided per the guidelines in subpart B of this part.
    (1) When appropriate, installations will process financial 
institution requests for central locator service to obtain military 
addresses of active duty personnel. This service will be used to locate 
persons for settling accounts, and recovering funds on checks that did 
not clear or loans that are delinquent or in default (see DoD Directive 
1344.9 \6\). If delinquent loans or dishonored checks are not recouped 
within 48 hours, financial institutions operating on DoD installations 
may bring this information to the attention of the local commander, bank 
liaison officer, or other designee for assistance in effecting 
restitution of the amount due, if not otherwise prohibited by law. The 
financial institution will pay the appropriate fee for each request to 
the respective Military Department.
---------------------------------------------------------------------------

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

    (2) The DoD Components shall assist financial institutions to locate 
DoD personnel whose whereabouts cannot be locally determined. The 
request should be on the financial institution's letterhead, include the 
Service member's name and social security number, and cite the cognizant 
Military Service regulation that authorizes the use of locator services. 
If a financial institution needs immediate service, the cognizant 
institution official should contact the bank or credit union liaison 
officer.
    (i) For addresses of Department of the Army active, retired, 
separated and civilian personnel, financial institutions may telephone 
(703) 325-3732 or write to: Department of the Army Worldwide Locator, 
U.S. Army Enlisted Record and Evaluation Center, 8899 E. 56th Street, 
Indianapolis, IN 46249-5301.
    (ii) For addresses of Navy active, retired, separated and civilian 
personnel, financial institutions may telephone (901) 874-3388 or write 
to: Navy Personnel Command, PERS-312F, 5720 Integrity Drive, Millington, 
TN 38055-3120.
    (iii) For addresses of Department of the Air Force active, retired, 
separated and civilian personnel, financial institutions may telephone 
(210) 565-2660 or write to: Air Force Personnel Center, MSIMDL Suite 50, 
550 C Street West, Randolph AFB, TX 78150-4752.
    (iv) For addresses of United States Marine Corps active, retired, 
separated and civilian personnel, financial institutions may telephone 
(703) 784-3942 or write to:

                                 Active

U.S. Marine Corps--CMC, HQ MC MMS B 10, 2008 Elliot Road, Room 201, 
    Quantico, VA 22134-5030.

[[Page 526]]

                            Retired-Separated

Q U.S. MMRS-6, 280 Russell Road, Quantico, VA 22134-5105.

                                Civilian

Commanding General, 15303 Andrew Road, Kansas City, MO 64147-1207.
    (c) Advertising. (1) An on-base financial institution may use the 
unofficial section of that installation's daily bulletin, provided space 
is available, to inform DoD personnel of financial services and announce 
seminars, consumer information programs, and other matters of broad 
general interest. Announcements of free financial counseling services 
are encouraged. Such media may not be used for competitive or 
comparative advertising of, for example, specific interest rates on 
savings or loans.
    (2) An on-base financial institution may use installation bulletin 
boards, newsletters or web pages to post general information that 
complements the installation's financial counseling programs and 
promotes financial responsibility and thrift. Message center services 
may distribute a reasonable number of announcements to units for use on 
bulletin boards so long as this does not impose an unreasonable 
workload.
    (3) An on-base financial institution may include an insert in the 
installation's newcomers package (or equivalent). This insert should 
benefit newcomers by identifying the financial services that are 
available on the installation.
    (4) DoD Directive 5120.20 \7\ prevents use of the Armed Forces Radio 
and Television Service to promote a specific financial institution.
---------------------------------------------------------------------------

    \7\ See footnote 1 to Sec. 231.1(a).
---------------------------------------------------------------------------

    (5) Off-base financial institutions are not permitted to distribute 
competitive literature or forms on the installation. These institutions, 
however, may use commercial advertising, mailings or telecommunications 
to reach their customers.
    (6) Advertising in government-funded (official) installation papers 
is not permitted with the exception of insert advertising in the Stars 
and Stripes overseas. Installation newspapers funded by advertisers are 
not official publications and, thus, may include advertising paid for by 
any financial institution.
    (7) Installation activities, including Military Exchange Services 
and concessionaire outlets, shall not permit the distribution of 
literature from off-base financial institutions if there is an on-base 
financial institution. This does not prevent the Military Exchange 
Services from distributing literature on affinity credit card services 
that those Military Exchange Services may acquire centrally through 
competitive solicitation.
    (d) Automated teller machine (ATM) service. On-base financial 
institutions are encouraged to install ATMs at those installation(s) on 
which they are located.
    (1) Financial institutions that propose to install ATMs on DoD 
installations shall bear the cost of ATM installation, maintenance and 
operation. The installation commander may enter into an agreement with 
the on-base financial institution wherein the installation may acquire 
and provide ATMs to on-base financial institutions under certain 
circumstances, such as when it is advantageous to the government to have 
one or more ATMs available for use but the acquisition cost to the 
financial institution is prohibitive. No ATM shall be purchased by an 
installation unless approved by the Secretary of the Military Department 
concerned (or designee). In all such cases, installation costs and all 
logistic support shall be borne by the financial institution.
    (2) ATM approval authority is as shown:
    (i) The installation commander has approval authority when an on-
base financial institution wishes to place an ATM on the installation. 
This approval should be reflected as an amendment to the operating 
agreement.
    (ii) Where there is no on-base financial institution, follow the 
solicitation procedures to obtain financial services set forth in 
Sec. Sec. 231.5(c) and 231.7(b).
    (3) The availability of ATM service shall not preclude the later 
establishment of a banking office should conditions change on an 
installation.
    (4) Proposals by an installation commander to install ATMs on 
domestic installations from other than on-base

[[Page 527]]

financial institutions, including the Military Exchange Services, 
morale, welfare and recreational activities and/or other nonappropriated 
fund instrumentalities, shall be considered only when:
    (i) ATM service is unavailable or existing service is inadequate, 
and
    (ii) The on-base financial institution(s) either declines to provide 
the service, fails to improve existing service so that it is adequate, 
or does not formally respond to the request for such service within 30 
days of the date of the request. Any ATM service from other than on-base 
financial institutions is considered an exception to policy. The 
procedures to establish an on-base financial institution set forth in 
Sec. Sec. 231.5(c) and 231.7(b) shall be followed when soliciting for 
such ATM services. Proposals offering shared-access ATMs (e.g., ATMs 
operated by two or more financial institutions where their 
accountholders are not assessed any or all fees applicable to 
nonaccountholders) shall receive preference.
    (5) ATM service from foreign banking institutions may be authorized 
on overseas installations with or without MBFs operated under contract 
where the installation or community commander determines that a bonafide 
need exists to support local national hires. On installations with MBFs 
operated under contract, the MBFs shall be the primary source of the ATM 
service except when a determination has been made by the cognizant 
contract program office that providing the service is either not cost 
effective or precluded by pertinent status of forces agreements, other 
intergovernmental agreements or host-country law. In those instances 
where ATM service from foreign banking institutions is authorized and 
provided by other than the on-base financial institution, ATM 
connectivity shall be limited to host country networks and the ATMs 
shall dispense only local currency (no U.S. dollars). The operating 
agreement covering ATM service shall be negotiated by the installation 
or community commander and submitted for approval by the appropriate 
Combatant Commander (or designee) prior to its execution. A copy of the 
operating agreement will be forwarded through DoD Component channels to 
the DFAS.
    (e) Domestic and international treasury general accounts. In cases 
where authorization will be required for the on-base banking office or 
credit union to act as a Treasury General Account (TGA) domestic 
depositary (or, on overseas installations, an International Treasury 
General Account (ITGA) depository), the financial institution shall 
satisfy the risk management standard established by the Secretary of the 
Treasury. Local operating funds may be used if the on-base financial 
institution requests reimbursement for costs incurred. On-base financial 
institutions shall accept deposits for credit to the TGA (or ITGA) when 
so authorized.
    (f) Staffing. (1) On-base financial institutions shall be staffed 
adequately (i.e., commensurate with industry standards for similar 
numbers of accountholders and financial services rendered). Staffing at 
overseas MBFs operated under DoD contract shall be maintained within 
negotiated ceilings.
    (2) All staffing shall comply fully with applicable equal employment 
opportunity laws and with the spirit of DoD equal employment opportunity 
policies as set forth in DoD Directive 1440.1. \8\
---------------------------------------------------------------------------

    \8\ See footnote 1 to Sec. 231.1(a).
---------------------------------------------------------------------------

    (3) DoD personnel, excluding military retirees and their dependents, 
may not serve as directors of domestic or foreign banking institutions 
operating banking offices on those DoD installations where they 
currently are assigned. This does not preclude a member of a Reserve 
Component, who has been serving as a director of a domestic or foreign 
banking institution operating a banking office on a DoD installation, 
from retaining his or her directorship if called to active duty.
    (4) DoD personnel may not be detailed to duty with an on-base 
financial institution located on a DoD installation. Off-duty personnel, 
however, may be employed by an on-base financial institution subject to 
approval by the installation commander (or designee). Such employment 
must not interfere with the performance of the individual's official 
duties and responsibilities.

[[Page 528]]

    (g) Departure clearance. The installation commander establishes the 
clearance policy for all DoD personnel leaving the installation. The on-
base financial institutions shall be included as places requiring 
clearance. The purpose of a clearance is to report change of address, 
reaffirm allotments or outstanding debts, and receive financial 
counseling, if desired or appropriate. Clearance may not be denied in 
order to collect debts or resolve disputes with financial institution 
management.
    (h) Financial education. (1) Officials of on-base financial 
institutions shall be invited to take part in seminars to educate 
personnel on personal financial management and financial services. 
Financial institutions shall be encouraged to provide financial 
education and counseling services as an integral part of their financial 
service offerings. Officials of on-base financial institutions shall 
submit advance briefing texts for approval by the installation commander 
to ensure that the program is not used to promote services of a specific 
financial institution.
    (2) DoD personnel who tender uncollectible checks, overdraw their 
accounts or fail to meet their financial obligations in a proper and 
timely manner damage their credit reputation and adversely affect the 
public image of all government personnel. For uniformed personnel, 
military financial counselors and legal advisors shall recommend 
workable repayment plans that avoid further endangering credit ratings 
and counsel affected personnel to protect their credit standing and 
career. Counselors shall ensure that such personnel are aware of the 
stigma associated with bankruptcy and difficulties in obtaining future 
credit at reasonable rates and terms and shall recommend its use only 
when no other alternative will alleviate the situation.
    (i) Operating agreements. (1) Before operations of an on-base 
banking office or credit union begin, a written operating agreement 
(Appendix C of this part) and the appropriate real estate outgrant 
(i.e., a lease, permit or license issued as identified in Sec. Sec. 
231.5(e), 231.5(f), 231.5(g), 231.7(d), 231.7(e) and 231.7(f) shall be 
negotiated directly between the installation commander and officials of 
the designated financial institution. Thereafter, the operating 
agreement shall be jointly reviewed by the installation commander and 
the financial institution at least once every 5 years. The operating 
agreement shall define the basic relationship between the on-base 
financial institution and the installation commander and identify mutual 
support activities such as hours of operation, service fees and security 
provided. One copy of the agreement shall be sent through command 
channels to the Secretary of the Military Department concerned (or 
designee). A copy of the agreement shall be maintained by the 
installation commander and the banking office or on-base credit union. 
At a minimum, the agreement shall include the following provisions:
    (i) Identification of services to be rendered and the conditions for 
service. Full financial services shall be provided where feasible. 
Agreements, however, may not restrict either entity's right to 
renegotiate services and fees.
    (ii) Agreement by both parties that they will comply with this part 
and DoD Directive 1000.11 (32 CFR part 230).
    (iii) Agreement by the on-base financial institution that it will 
furnish copies of its financial reports and other local publications on 
an ``as needed'' basis in response to a formal request from the 
installation commander (or designee).
    (iv) Agreement that the on-base financial institution will indemnify 
and hold harmless the U.S. Government from (and against) any loss, 
expense, claim, or demand to which the U.S. Government may be subjected 
as a result of death, loss, destruction, or damage in conjunction with 
the use and occupancy of the premises caused in whole or in part by 
agents or employees of the on-base financial institution.
    (v) Agreement that neither the Department of Defense nor its 
representatives shall be responsible or liable for the financial 
operation of the on-base financial institution or for any loss 
(including criminal losses), expense, or claim for damages arising from 
operations.
    (vi) Agreement by the on-base financial institution (or any 
successor) that

[[Page 529]]

it will provide no less than 180 days advance written notice to the 
installation commander before ceasing operations.
    (vii) Specification of the security services to be provided for 
guarding cash shipments, at times of unusual risk to the financial 
institution and to avoid excessive insurance costs charged to that 
institution.
    (viii) Statement that the physical security for cash and negotiable 
items will be in a manner consistent with the requirements of the on-
base financial institution's insurer. A copy of those requirements will 
be provided to the installation commander on request.
    (ix) Statement that the financial institution, whenever possible, 
will accommodate local command requests for lectures and printed 
materials for consumer credit education programs. Officials invited to 
participate in such programs shall not use the occasion to promote the 
exclusive services of a particular financial institution.
    (x) Agreement that the financial institution will reimburse the 
installation for the provision of logistical support (such as custodial, 
janitorial, and other services provided by the government) at rates set 
forth in the lease or agreement between the installation and the 
financial institution.
    (xi) Statement that on-base financial institution operations shall 
be terminated, when required, under provisions specified in this part.
    (2) Approved expansion of services will be documented as an 
amendment to the existing operating agreement between the installation 
commander and the on-base financial institution. The amendment to the 
operating agreement and any required lease (to include a change to an 
existing lease) shall be in place prior to the initiation of new 
financial services or offices.
    (j) Installation financial services. (1) Retail banking operations 
shall not be performed by any DoD Component or nonappropriated fund 
instrumentality including the Military Exchange Services and morale, 
welfare and recreation (MWR) activities or any other organizational 
entity within the Department of Defense.
    (2) Financial services provided on DoD installations will be as 
uniform as possible for all personnel. As separately negotiated, or 
based on a fee schedule, custodians of nonappropriated funds shall 
compensate on-base financial institutions for services received. 
Compensation may be made with compensating balances or paying fees based 
on the services provided or a combination of these payment mechanisms. 
Fees shall not exceed the charge customary for the financial institution 
less an offsetting credit on balances maintained. Banking offices shall 
classify nonappropriated fund accounts as commercial accounts.
    (3) At a minimum, banking offices shall provide the same services to 
individuals and nonappropriated fund instrumentalities as are available 
in the surrounding geographic area.
    (4) On-base financial institutions may conduct operations during 
normal duty hours provided they do not disrupt the performance of 
official duties. Operating hours shall be set, in consultation with the 
bank or credit union liaison officer, to meet the needs of all 
concerned. ATMs may be used to expand financial services and operating 
hours.
    (5) DoD personnel may use their allotment of pay privileges to 
establish sound credit and savings practices through on-base financial 
institutions.
    (i) The on-base financial institution shall credit customer accounts 
not later than the deposit date of the allotment check or electronic 
funds transfer.
    (ii) The initiation of an allotment is voluntary (See Volume 7a, 
Chapter 42, Section 4202 of The DoD Financial Management Regulation 
(7200.14-R)). Thus, DoD personnel generally cannot be required to 
initiate an allotment for the repayment of a loan. Allotments 
voluntarily established by DoD personnel for the purpose of repaying a 
loan or otherwise providing funds to an on-base financial institution 
shall continue in effect at the option of the allotter.
    (6) In accordance with sound lending practice, policies on loans to 
individuals are expected to be as liberal as feasible while remaining 
consistent with the overall interests of the on-

[[Page 530]]

base financial institution. On-base financial institutions shall conform 
to the Standards of Fairness principles before executing loan or credit 
agreements. See DoD Directive 1344.9.
    (7) On-base financial institutions shall make basic financial 
education and counseling services available without charge to 
individuals seeking these services. Financial education and counseling 
services refer to basic personal and family finances such as budgeting, 
checkbook balancing and account reconciliation, benefits of savings, 
prudent use of credit, how to start a savings program, how to shop and 
apply for credit, and the consequences of excessive credit. DoD 
personnel in junior enlisted or civilian grades, or newly married 
couples who apply for loans, shall be given special attention and 
counseling.
    (8) On-base financial institutions must strive to provide the best 
service to all customers. On-base financial institutions that evidence a 
policy of discrimination in their services are in violation of this 
part. In resolving complaints of discrimination, use the procedures 
specified in Sec. 231.5(h)(8).
    (9) All correspondence regarding on-base financial institutions, and 
questions concerning their operation that cannot be resolved locally, 
shall be referred through command channels to the Secretary of the 
Military Department concerned (or designee) for consideration.



Sec. 231.5  Procedures--domestic banks.

    (a) General policy. Given their role in promoting morale and 
welfare, on-base banks shall be recognized and assisted by DoD 
Components at all levels.
    (b) Establishment. (1) The following information shall be included 
in the installation commander's request to the Secretary of the Military 
Department concerned (or designee) for establishment of banking offices:
    (i) The approximate number of DoD personnel at the installation, and 
other persons who may be authorized to use the banking office.
    (ii) The distance between the installation and the financial 
institutions in the vicinity, and the names of those institutions.
    (iii) Available transportation between the installation and the 
financial institutions listed in paragraph (b)(1)(ii) of this section.
    (iv) The number of DoD personnel in duty assignments that confine 
them to the installation or who cannot obtain transportation (such as 
hospital patients).
    (v) The name and location of the depositary used to make official 
deposits for credit to the TGA.
    (vi) A list of organizational and nonappropriated fund accounts, the 
name and location of the financial institutions where deposited, and the 
average daily activity and balance of each account.
    (vii) A written description and photographs of the space proposed 
for banking office use.
    (viii) A statement listing the requirements of the proposed banking 
office for safes and a vault, alarm systems, and surveillance equipment, 
when necessary.
    (ix) Reasons for use of space controlled by the General Services 
Administration (GSA). All the GSA assigned space, whether leased space 
or federal office building space, is reimbursable to the GSA at the 
standard level user charge. As such, space occupied by a banking office 
to serve military needs will be assigned and charged by the GSA.
    (x) Any other information pertinent to the establishment of a 
banking office.
    (2) The Secretary of the Military Departments (or designee) shall:
    (i) Review each request for the establishment of banking offices.
    (ii) Conduct a solicitation for the services when warranted.
    (iii) Approve proposals for banking offices.
    (iv) Notify the selected financial institution either directly or 
through the installation commander. The selected banking institution 
will, in turn, obtain operating authority from their regulating 
agencies.
    (v) Forward proposals to establish TGAs to the DFAS for subsequent 
forwarding to the Fiscal Assistant Secretary of the Treasury in 
accordance with Volume 5, Chapter 5, paragraph

[[Page 531]]

050102 of The DoD Financial Management Regulation (7000.14-R).
    (c) Solicitations. The Secretary of the Military Department 
concerned (or designee), or the installation commander with advice from 
the cognizant Secretary of the Military Department (or designee), shall 
conduct solicitations to include pre-proposal conferences for on-base 
banking. Subject to the criteria for selection outlined in paragraph 
(c)(4) of this section the preferred sources of on-base financial 
services at domestic installations are federally-insured, state-
chartered or federally-insured, federally-chartered banking institutions 
operating in the local area. The guidance at paragraph (c)(1) of this 
section addresses distribution of the solicitation only and does not 
preclude any federally-insured, state-chartered or federally-insured, 
federally-chartered banking institution from responding at any stage 
(from local distribution in paragraph (c)(1)(i) of this section to 
publication in the Commerce Business Daily and financial institution 
trade journals as outlined in paragraph (c)(1)(iii) of this section of 
the solicitation process. No commitment may be made to any banking 
institution regarding its proposal until a designation is made by the 
appropriate regulatory agency.
    (1) Solicitations for banking services shall be accomplished in the 
following order:
    (i) Solicitation letters will be sent to local banking institutions 
and a solicitation announcement will be published in the local 
newspaper(s) and forwarded to financial institution associations.
    (ii) If the Secretary of the Military Department concerned (or 
designee) or, where delegated, the installation commander, determines 
that the geographic scope of the solicitation needs to be expanded, a 
prospectus will be forwarded to financial institutions in a larger 
geographic area, as well as financial institution associations and 
regulatory authorities in the state where the installation is located.
    (iii) If the Secretary of the Military Department concerned (or 
designee) or, where delegated, the installation commander, determines 
that the geographic scope of the solicitation needs to be expanded 
further, the prospectus will be published in the Commerce Business Daily 
and financial institution trade journals.
    (2) For solicitations conducted at the installation level, the 
installation commander shall review proposals to establish banking 
offices, select the banking institution making the best offer and 
forward a recommendation to the Secretary of the Military Department 
concerned (or designee) for final approval.
    (3) Banking institutions shall not be coerced when banking 
arrangements are under consideration or after banking offices are 
established. If otherwise proper, this prohibition does not preclude:
    (i) Discussions with banking institutions prior to submitting a 
proposal for a new banking office.
    (ii) Helping banking offices extend their operations in support of 
an installation requirement.
    (iii) Discussions with banking institutions to improve services or 
to create savings for the banking institution or DoD personnel.
    (iv) Seeking proposals for banking service as directed by the 
Secretary of the Military Department concerned (or designee).
    (v) Negotiations preparatory to signing a banking agreement.
    (4) When soliciting for banking services, proposals shall be 
evaluated on specific factors identified in the solicitation. These 
factors, at a minimum, shall be predicated on the services to be 
provided as outlined in appendix A, paragraph 3, of this part, the 
financial institution's schedule of service fees and charges, and the 
extent of logistical support required. Prior to issuance of the 
solicitation, the preparing office shall identify (for internal use 
during the subsequent evaluation period) the weights to be applied to 
the factors reflected in the solicitation. Proposals shall be evaluated 
and ultimate selection made based upon the factors and weights developed 
for the solicitation.
    (5) The Secretary of the Military Department concerned (or 
designee), or the installation commander with advice from the cognizant 
Secretary of the Military Department (or designee),

[[Page 532]]

shall make the selection of the banking institution based on the 
provisions outlined in this section.
    (d) Terminations. (1) Requests for termination of financial services 
shall be approved by the installation commander, substantiated by 
sufficient evidence and forwarded to the Secretary of the Military 
Department concerned (or designee). The termination of banking office 
operations shall be initiated by the installation commander only under 
one of the following conditions:
    (i) The mission of the installation has changed, or is scheduled to 
be changed, thereby eliminating or substantially reducing the 
requirement for financial services.
    (ii) Active military operations prevent continuation of on-base 
financial services.
    (iii) Performance of the banking office in providing services is not 
satisfactory according to standards ordinarily associated with the 
financial services industry or is inconsistent with the operating 
agreements or the procedures prescribed herein.
    (iv) When merger, acquisition, change of control or other action 
results in violation of the terms and conditions of the existing 
operating agreement, the Secretary of the Military Department (or 
designee) shall terminate the operating agreement with the existing 
banking institution. When the merger, acquisition, change of control or 
other action does not result in violation of the terms and conditions of 
the existing operating agreement, the Secretary of the Military 
Department (or designee) shall initiate a novation action of the 
operating agreement identifying the change in control.
    (2) The installation commander shall forward requests for 
termination to the Secretary of the Military Department concerned (or 
designee). The Secretary of the Military Department (or designee) shall 
coordinate all termination actions with the USD(C), through the 
Director, DFAS, before notification to the appropriate regulatory 
agency. Subsequent to this coordination process:
    (i) The Secretary of the Military Department (or designee) shall 
inform the regulatory agency of the action.
    (ii) The installation commander shall revoke the authority of the 
financial institution to operate. The lease will be terminated.
    (3) Any banking office that intends to terminate its operations 
should notify the installation commander at least 180 days before the 
closing date. This notification should precede any public announcement 
of the planned closure. When appropriate, the commander shall attempt to 
negotiate an agreement permitting the banking office to continue 
operations until the installation has made other arrangements. 
Immediately upon notification of a closing, the commander shall advise 
the DoD Component headquarters concerned. If it is determined that 
continuation of banking services is justified, action to establish 
another banking office shall be taken in accordance with the guidance 
prescribed herein.
    (e) Use of space, logistical support, and military real property for 
domestic banks--(1) Lease Terms. (i) The consideration for a lease shall 
be determined by appraisal of fair market rental value in accordance 
with 10 U.S.C. 2667. Periodic reappraisals shall be based upon the fair 
market rental value exclusive of the improvements made by the banks.
    (ii) The term of the lease shall not exceed 5 years except where the 
banking institution uses its own funds to improve existing government 
space as outlined in paragraph (e)(5) of this section. If space occupied 
is assigned by the GSA, charges to financial institutions for space and 
services shall be at the GSA standard level user rate.
    (iii) Leases shall include the following provisions:
    (A) The government has the right to terminate the lease due to 
national emergency; installation inactivation, closing, or other 
disposal action; or default by the lessee.
    (B) The lessee shall provide written notice 180 days prior to 
voluntarily terminating the lease.
    (C) Upon a lease termination, the government has the option to cause 
the title of all structures and other improvements to be conveyed to the 
United States without reimbursement, or require the lessee to remove the 
improvements and restore the land to its original condition.

[[Page 533]]

    (2) Logistical support. (i) The banking office shall be housed in a 
building accessible to DoD personnel on the installation and in a 
location permitting reasonable security.
    (ii) Banking institutions shall perform all maintenance, repair, 
improvements, alterations, and construction on the banking premises.
    (iii) Banking institutions shall pay for all utilities (i.e., 
electricity, natural gas or fuel oil, water and sewage), heating and air 
conditioning, intrastation telephone service, and custodial and 
janitorial services to include garbage disposal and outdoor maintenance 
(such as grass cutting and snow removal) at rates set forth in the 
lease, operating agreement or other written agreement between the 
installation and the banking institution.
    (3) Leases executed before the issuance of this part may not be 
altered solely as a result of the provisions of this part unless a 
lessee specifically requests a renegotiation under these provisions. No 
lease may be negotiated or renegotiated, nor may any rights be waived or 
surrendered without compensation to the government.
    (4) When a banking institution participates in the construction of a 
shopping mall complex the lease shall cover only land where the banking 
office physically is located.
    (5) When a banking institution uses its own funds to improve 
existing government space, leases, for a period not to exceed 25 years 
subject to periodic review every 5 years to assess changes in fair 
market value, may be negotiated for a period commensurate with the 
appraised value of the leasehold improvements divided by the annual 
lease fee.
    (f) Land leases. (1) A lease for construction of a building to house 
a banking office shall be at the appraised fair market rental value. 
Charges shall apply for the term of the lease not to exceed 25 years, 
subject to periodic review every 5 years to assess changes in fair 
market value.
    (2) If determined to be in the government's interest, an existing 
lease of land may be extended prior to expiration of its term. Passage 
of title to facilities shall be deferred until all extensions have 
expired. Such extensions shall be for periods not to exceed 5 years with 
lease payments set at the appraised fair market rental of the land only 
as determined on the date of each such extension. Banking institution 
lessees shall continue to maintain the premises and pay for utilities 
and services furnished.
    (3) When, under the terms of a lease, title to improvements passes 
to the government, arrangements normally will be made as follows:
    (i) When the square footage involved exceeds that authorized in DoD 
4270.1-M \9\, the banking institution shall be given first choice to 
continue occupying the excess space under a lease that provides for fair 
market rental for the land underlying that excess space.
---------------------------------------------------------------------------

    \9\ See footnote 1 to Sec. 231.1(a).
---------------------------------------------------------------------------

    (ii) The charge for continued occupancy of improved space by a 
banking office shall be at fair market rental value only for the 
associated land. The lessee shall continue to maintain the premises and 
pay the cost of utilities and services furnished.
    (g) Construction. Banks may construct buildings subject to the 
following provisions:
    (1) The building shall be solely for the use of the banking 
institution and may not provide for other commercial enterprises or 
government instrumentalities.
    (2) Construction projects must meet the criteria in DoD 4270.1-M.
    (3) Construction projects approval authority. (i) Projects costing 
$25,000 or more shall be approved by the Major Command with an 
information copy sent to the Secretary of the Military Department 
concerned (or designee). The Secretary of the Military Department (or 
designee) shall have 30 days to provide comments to the Major Command 
before final approval can be granted.
    (ii) Projects costing less than $25,000, to include interior 
alterations and room or office additions to existing banking offices, 
shall be approved by installation commanders. Copies of approvals, 
including the identification of project cost, shall be furnished to the 
Secretary of the Military Department concerned (or designee).

[[Page 534]]

    (4) The Congress shall be notified of all construction projects, 
using other than appropriated funds and costing over $500,000, in 
accordance with DoD Instruction 7700.18 \10\.
---------------------------------------------------------------------------

    \10\ See footnote 1 to Sec. 231.1(a).
---------------------------------------------------------------------------

    (5) Proposals for construction of structures on installations at a 
banking institution's expense shall be reviewed and reported in 
accordance with regulations of the Military Department concerned. The 
following information shall be listed to support each proposal:
    (i) Number of DoD personnel at the installation plus others who may 
use the banking office.
    (ii) Square footage of the proposed building.
    (iii) Land area to be leased to the banking institution.
    (iv) Term of the lease.
    (v) Estimated cost of construction.
    (vi) Estimated fair market value of the land to be leased.
    (vii) Statement that the banking institution will be responsible for 
utility connections and other utility and maintenance costs.
    (viii) Statement that the building will be used only for financial 
services.
    (ix) A statement that financial institution officials understand the 
potential loss of the building in the event of installation closure or 
other delimiting condition.
    (x) Justification for a waiver of space criteria if the building 
exceeds that specified in DoD 4270.1-M.
    (6) Banks shall pay for interior alterations and maintenance as well 
as utilities, custodial, and other furnished services.
    (7) Banks shall pay all construction costs.
    (h) Bank liaison officer (BLO). Each installation commander having 
an on-base banking office shall appoint a BLO. The BLO's name and duty 
telephone number shall be displayed prominently at each banking office 
on the installation. As appropriate, the BLO's responsibility shall be 
assigned to comptroller or resource management personnel. Employees, 
officials or directors of a financial institution may not serve as BLOs. 
The BLO shall:
    (1) Ensure that the banking institution operating the banking office 
has the latest version of this part.
    (2) Ensure that traveler's checks and money orders are not being 
sold by other on-base organizations when banking offices are open for 
business. Postal units and credit unions, however, are exempt from this 
restriction. Also, ensure that other financial services, to include 
vehicle financing on domestic installations, are offered only by the 
banking office.
    (3) Attend financial workshops, conferences, and seminars as 
appropriate. These gatherings offer excellent opportunities for 
personnel of financial institutions and the Department to improve the 
military banking program. Free discussion among the attendees gives an 
excellent forum for planning, developing, and reviewing programs that 
improve financial services made available to DoD personnel and 
organizations.
    (4) Assist, when requested by the banking office manager or the 
installation commander, in locating and collecting from individuals 
tendering uncollectible checks, overdrawing accounts, or defaulting on 
loans (within the guidelines of subpart C) if not otherwise prohibited 
by law.
    (5) Maintain regular contact with the banking office manager to 
confer and discuss quantitative and qualitative improvements in the 
services provided. In executing this authority, the BLO shall not become 
involved in the internal operations of the financial institution.
    (6) Review the schedule of service charges and fees annually, and 
ensure that the operating agreement is updated at least every 5 years. 
Renegotiate the financial services offered and related service charges 
and fees as necessary.
    (7) Assist in resolving customer complaints about banking services.
    (8) Assist in resolving complaints of discrimination with financial 
services by the banking institution. If a complaint cannot be resolved, 
a written request for investigation shall be forwarded to the 
appropriate regulatory agency. Any such request must document the 
problem and command efforts

[[Page 535]]

taken toward its resolution. Information copies of all related 
correspondence shall be sent through channels to the Secretary of the 
Military Department concerned (or designee) for transmittal to the DFAS.
    (9) Assist the installation commander to report to the appropriate 
regulatory agency any evidence suggesting malpractice by banking office 
personnel.
    (i) In-store banking. Under the direction and approval of the 
installation commander, an on-base financial institution may provide in-
store banking within the premises of a commissary operated by the 
Defense Commissary Agency, a Military Exchange, or any other on-base 
retail facility.
    (1) Provision of the requested services, and any associated 
stipulations, shall be documented as an amendment to the existing 
operating agreement between the installation commander and the on-base 
financial institution that will provide in-store services.
    (2) The amendment to the operating agreement shall be drafted 
through close coordination between the requesting DoD Component 
representative, the on-base financial institution representative, the 
bank liaison officer, and the installation commander (or designee). The 
final amendment shall be signed by the installation commander and the 
on-base financial institution with the acknowledgement of the DoD 
Component that will host the in-store banking operation.
    (3) The installation commander shall extend the opportunity to 
provide the requested in-store banking services to all financial 
institutions located on the installation. The selection process is 
outlined in Appendix B of this part.
    (4) Space shall be granted by the installation commander through a 
lease to the banking institution that will provide in-store service.
    (j) Domestic military banking facilities (MBFs)--(1) Domestic MBF 
establishment. (i) Requests to establish MBFs shall be made only when a 
need for services cannot be met by other means. During mobilization, 
however, MBFs may be designated as an emergency measure.
    (ii) Installation commanders shall send requests for an MBF with 
justification for its establishment through the Secretary of the 
Military Department concerned (or designee) to the Director, DFAS, for 
coordination with the Department of the Treasury. The Department of the 
Treasury may approve the designation of an MBF under provisions of 12 
U.S.C. 265.
    (iii) MBF operations may begin only after approval for MBF status is 
granted by the Department of the Treasury.
    (2) MBF conversion. (i) Where MBFs exist, installation commanders 
shall encourage their conversion to independent or branch banks.
    (ii) Proposals from the on-base banking institution to convert an 
existing MBF to an independent or branch bank shall be sent through 
command channels to the Secretary of the Military Department concerned 
(or designee) for approval. The Secretary of the Military Department (or 
designee) shall forward the request to the Director, DFAS, for 
coordination with the Department of the Treasury.
    (iii) Unsolicited proposals from banking institutions to establish 
independent or branch banks where an MBF exists shall be forwarded 
through command channels to the Secretary of the Military Department 
concerned (or designee). Each proposal shall be evaluated on its own 
merits.
    (A) The installation commander shall inform the banking institution 
operating the MBF that an unsolicited proposal for a banking office has 
been received and shall offer that incumbent institution the opportunity 
to submit its own proposal.
    (B) Preference to operate an independent or branch bank shall be 
given to the banking institution that has operated the MBF, provided 
that the banking service previously rendered has been satisfactory and 
that the institution's proposal is adequate.
    (3) MBF termination. The Director, DFAS, shall coordinate the 
termination of a financial institution's authority to operate an MBF 
with the Department of the Treasury.

[66 FR 46708, Sept. 7, 2001; 66 FR 54136, Oct. 26, 2001]



Sec. 231.6  Procedures--overseas banks.

    (a) General provisions of banking services overseas. The Department 
acquires banking services overseas for use by

[[Page 536]]

authorized persons and organizations from the following sources:
    (1) MBFs operated under contract and authorized by the pertinent 
status of forces agreement, other intergovernmental agreements, or host-
country law.
    (2) Domestic and foreign banking institutions located on overseas 
DoD installations. Each such institution shall be:
    (i) Chartered to provide financial services in that country.
    (ii) A party to a formal operating agreement with the installation 
commander to provide such services.
    (iii) Identified, where applicable, in the status of forces 
agreements, other intergovernmental agreements, or host-country law.
    (b) Establishment--(1) Overseas MBFs operated under contract. 
Installation or community commanders requiring banking services will 
send a request through command channels to the Secretary of the Military 
Department concerned (or designee) for concurrence and subsequent 
transmittal to the Director, DFAS, for approval.
    (i) Requests to establish MBFs shall include, but are not limited 
to, the following information:
    (A) The approximate number of DoD personnel at the installation and 
in the community and any other persons who may be authorized to use the 
MBF.
    (B) The distance between the installation and the nearest MBF and 
credit union office, the names; addresses, and telephone numbers of the 
operators of those institutions; and the installations and communities 
where they are located.
    (C) The availability of official and public transportation between 
the installation or community and the nearest MBF and credit union 
office.
    (D) The name and location of the depository used to make official 
deposits for credit to the TGA.
    (E) A list of organizational and nonappropriated fund accounts, the 
name and location of the financial institutions where deposited, and the 
average daily activity and balance of each account.
    (F) A written description and photographs or drawings of the space 
proposed for MBF use. The extent and approximate cost of required 
alterations, including the construction of counters and teller cages.
    (G) A statement that recognizes the logistical support, including 
equipment, to be provided by the local command as detailed in paragraph 
(c) of this section. The statement will include the costs of such 
equipment and the manner in which it will be acquired.
    (H) In countries where no MBFs currently are operated under 
contract, a statement from the cognizant Combatant Command that the 
requirement has been coordinated with the U.S. Chief of Diplomatic 
Mission or U.S. Embassy and that the host country will permit the 
operation in accordance with paragraph (c)(1)(i) of this section.
    (I) Any other pertinent information to justify the establishment of 
an MBF.
    (ii) As a general rule, MBFs may be established only when the 
installation or community population meets the following criteria:
    (A) Full-time MBF. Except in unusual circumstances, a total of at 
least 1,000 permanent military personnel and DoD civilian employees are 
necessary to qualify for a full-time MBF.
    (B) Part-time MBF. Except in unusual circumstances, a total of at 
least 250 permanent military personnel and DoD civilian employees are 
necessary to qualify for a part time MBF.
    (iii) If the population at a certain remote area is not sufficient 
to qualify under the criteria for full-time or part-time MBFs, the 
installation or community commander will explore all other alternatives 
for acquiring limited banking services before requesting establishment 
of an MBF as an exception to these provisions. Alternatives to limited 
banking services include installation of ATMs and check cashing and 
accommodation exchange service by disbursing officers and their agents.
    (iv) Establishment of an overseas MBF is predicated on and requires:
    (A) Designation of the MBF contractor as a depositary and financial 
agent of the U.S. Government by the Department of the Treasury.
    (B) The availability of banking contractors interested in bidding 
for the

[[Page 537]]

operation of the facility and the viability of such proposals.
    (C) The availability of appropriated funds to underwrite such 
banking services.
    (D) Establishment of a U.S. dollar currency custody account to 
support banking operations.
    (2) Other overseas banking offices. Where a need for financial 
services has been identified and either the banking and currency control 
laws of certain host countries do not permit MBFs to operate on DoD 
installations or MBFs, where permitted, have not been established, then 
the following applies:
    (i) Installation or community commanders shall send requests for 
banking services or unsolicited proposals from foreign banking 
institutions to their Major Commands with supporting data as required in 
Sec. 231.5(b)(1).
    (ii) Major Commands shall forward installation or community 
commander requests to the Secretary of the Military Department concerned 
(or designee) for approval. The Secretary of the Military Department 
concerned (or designee) shall coordinate with the DFAS to seek the 
designation of the parent foreign banking institution as a depositary 
and financial agent of the U.S. Government by the Department of the 
Treasury.
    (iii) Banking offices in this category cannot become operational 
until the foreign parent banking institution has been designated a 
depositary and financial agent of the U.S. Government. The institution 
also shall indicate a willingness and ability to provide collateral 
backing for any official and nonappropriated fund U.S. dollar deposits. 
Any collateral pledged shall be in a form acceptable to the DFAS and the 
Department of the Treasury.
    (c) Logistical support--(1) Overseas MBFs operated under contract. 
(i) Given that appropriated funds support those MBFs that are operated 
under contract, installation or community commanders shall provide the 
MBFs logistical support to the maximum possible extent. Such support 
normally includes:
    (A) Adequate office space, including steel bars; grillwork; security 
doors; a vault, safes, or both; security alarm systems and camera 
surveillance equipment (where deemed necessary) that meet documented 
requirements of the MBF contractor's insurance carrier; construction of 
counters, teller cages, and customer and work areas; necessary 
modifications and alterations to existing buildings; and construction of 
new MBF premises, if necessary.
    (1) The size and arrangement of space should permit efficient 
operations. Space assigned may not exceed that prescribed in DoD 4270.1-
M.
    (2) All maintenance, repair, rehabilitation, alterations, or 
construction for banking offices shall comply with guidelines 
established by the installation commander.
    (B) Office space in a building that is accessible to most users and 
permits the maximum security. In addition, office space for MBF area and 
district administrations and storage space for retention of records, 
files, and storage of supplies.
    (C) DoD housing on a rental basis to assigned MBF staff that are 
designated as key and essential MBF managerial personnel who are unable 
to find suitable, reasonably priced housing in the vicinity of the DoD 
installation, subject to the assignment procedures and other 
requirements of DoD 4165.63-M. \11\
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    \11\ See footnote 1 to Sec. 231.1(a).
---------------------------------------------------------------------------

    (D) Education, on a space-available, tuition-paying basis, provided 
by the Department of Defense Education Activity to minor dependents of 
assigned staff in accordance with DoD Directive 1342.13. \12\
---------------------------------------------------------------------------

    \12\ See footnote 1 to Sec. 231.1(a).
---------------------------------------------------------------------------

    (E) Air conditioning, which is considered a normal utility for 
banking offices located at installations that qualify for air 
conditioning under applicable regulations. Banking space is classified 
as administrative space at military installations.
    (F) Utilities (i.e., electricity, natural gas or fuel oil, water and 
sewage), heating, intrastation telephone service, and custodial and 
janitorial services to include garbage disposal and outdoor maintenance 
(such as grass cutting and snow removal).
    (G) Defense Switched Network (DSN) voice and data communication to 
include, where feasible, Internet access.

[[Page 538]]

    (H) Military guards, civilian guards (for use within the 
installation), military police, or other protective services to 
accompany shipments of money. This level of protective service also 
shall be provided at other times as required to include replenishment of 
ATM currency and receipts, alarm system failures, and to avoid undue 
risks or insurance costs on the part of the MBF.
    (I) U.S. Military Postal Service access in accordance with DoD 
Directive 4525.6. \13\ Use of free intra-theater delivery system (IDS) 
is authorized for all routine mail sent and received between Army Post 
Offices (APOs) and Fleet Post Offices (FPOs) within a theater.
---------------------------------------------------------------------------

    \13\ See footnote 1 to Sec. 231.1(a).
---------------------------------------------------------------------------

    (J) Office equipment and furniture on memorandum receipt if 
available from local stock. If office equipment or furniture is 
unavailable, statements of nonavailability shall be issued.
    (K) Vehicle registration and fuel sales from government-owned 
facilities for bank-operated vehicles, if not in conflict with host 
government agreements. Vehicle registration shall be subject to normal 
fees.
    (L) Issuance by local commanders of invitational travel orders, at 
no expense to the U.S. Government when required for official onsite 
visits by U.S. based banking institution officials.
    (ii) Suggestions for changes to the logistical support provisions of 
the MBF contract may be forwarded for consideration through command 
channels to the Director, DFAS.
    (2) Other overseas banking offices. (i) Logistical support provided 
to such offices will be negotiated with the parent foreign banking 
institution and incorporated into the written operating agreement.
    (ii) Logistical support shall not exceed that provided to contract 
MBFs, as specified in paragraph (c)(1) of this section.
    (d) Operations--(1) General conditions of MBF operation. (i) Before 
initiating MBF operations, a written agreement shall be negotiated 
directly and signed by the installation or community commander and a 
senior official of the banking contractor or other financial institution 
concerned. One copy of the agreement with U.S. banking contractors and 
two copies of the agreement with institutions other than U.S. banking 
contractors shall be forwarded through command channels to the Secretary 
of the Military Department concerned (or designee). The Secretary of the 
Military Department (or designee) shall forward one copy of the 
agreement with institutions other than U.S. banking contractors through 
command channels to the Director, DFAS. A copy of the agreement also 
shall be maintained at all times by the installation or community 
commander and the banking institution manager.
    (ii) For MBFs operated by U.S. banking contractors, the agreement 
shall state operating details not set forth in the contract. Though the 
contract limits the number of operating hours per week, local commanders 
and MBF managers should set days and hours of operation to best meet 
local needs. Operating times may include Saturdays and evening hours 
when necessary to complement other retail services for DoD personnel, 
provided the contractor can implement that service at no additional cost 
to the government. When added cost is involved, the commander shall send 
a request including reasons for expanded or modified times of operation, 
through command channels, to the Secretary of the Military Department 
concerned (or designee) for action. If approved, the request, with 
recommendations, shall be forwarded to the Director, DFAS (or designee).
    (2) Overseas MBFs operated under contract--(i) General. Overseas 
MBFs shall operate under terms and conditions established at the time of 
contract negotiations and confirmed in respective contracts or 
contracting officer determinations.
    (ii) Authorized customers. DoD banking contracts specify the 
personnel authorized to receive service. Additionally, overseas major 
commanders may approve banking services for other individuals that 
qualify for individual logistic support under the regulations of the DoD 
Component concerned, provided that the use of banking services is not 
precluded by status of forces agreements, other intergovernmental 
agreements, or host-country law.

[[Page 539]]

    (iii) Services rendered. DoD banking contracts specify the services 
to be rendered and related charges. Suggestions for expansion or 
modification of authorized services, fees or charges may be forwarded 
through DoD Component channels to the Director, DFAS. Proposals for any 
new service must be coordinated with the appropriate Combatant Command 
and U.S. Chief of Diplomatic Mission or U.S. Embassy to make certain 
that the proposal does not conflict with the status of forces 
agreements, other intergovernmental agreements, or host-country law.
    (iv) Regulation to be provided. The Director, DFAS (or designee) 
shall advise each U.S. banking contractor operating an overseas MBF of 
this Regulation and furnish a copy to the contractor.
    (v) Conditions of operation. (A) Part-time and payday service MBFs 
shall provide limited services that mirror, to the extent feasible, 
those provided by full-time MBFs. Since part-time MBFs operate out of 
nearby MBFs, installation or community commanders shall provide and fund 
transportation and guards for their operation.
    (B) Any deficiency of banking services under DoD banking contracts 
shall be reported to the manager of the MBF within 7 calendar days of 
noting the deficiency. If the problem has not been corrected within 30 
calendar days after being noted, the commander shall report the problem 
through DoD Component channels to the Director, DFAS (or designee).
    (C) The MBF contractor and military disbursing officers shall 
establish cash management practices that minimize the cash required 
conducting business.
    (D) Commanders shall assist MBF contractors to develop and update 
contingency plans for banking services in the event of hostilities or 
other emergencies.
    (E) MBF provision of foreign currency shall be in accordance with 
Volume 5, Chapter 13 of The DoD Financial Management Regulation (DoD 
7000.14-R).
    (3) Other overseas banking offices--(i) Authorized customers. The 
list of authorized customers shall be negotiated between the 
installation commander and the foreign banking institution and shall be 
reflected in the operating agreement. The list of authorized customers 
included in the operating agreement shall be consistent with the 
applicable status of forces agreement, other intergovernmental 
agreements, or host-country law.
    (ii) Services rendered. Services and charges shall parallel, 
whenever practical, the services and charges of MBFs operated under 
contract. Specific services shall be negotiated and included in the 
agreement with the foreign banking institution. A copy of the agreement 
shall be sent through DoD Component channels to the Director, DFAS (or 
designee).
    (iii) Operating agreements. Before agreements are executed, they 
will be coordinated with and approved by the cognizant Combatant Command 
(or designee).
    (iv) Conditions of operation. A foreign banking institution shall 
provide equipment (except that furnished by the installation or 
community), supplies, and trained personnel.
    (4) Relocation of MBF. (i) When an MBF is moved from one location to 
another at the same installation or community, the commander shall 
notify the cognizant Military Department, through command channels. The 
Military Department shall forward the information to the Director, DFAS 
(or designee).
    (ii) For all other relocations, prior approval from the Director, 
DFAS (or designee) shall be obtained through DoD Component channels.
    (5) Comments. Installation or community commanders shall send their 
banking comments through DoD Component channels to the Director, DFAS 
(or designee) for any of the following:
    (i) Major changes in installation population that would affect use 
of the MBF.
    (ii) Opinion that the space assigned is not adequate for the 
efficient operation of the MBF including a statement concerning 
corrective action.
    (iii) Suggestions that might improve the MBF operation, increase 
efficiency, or decrease costs.
    (iv) Pending developments that may have a material impact on the MBF 
operation.
    (6) Bank liaison officer. The duties of the BLO are outlined in 
Sec. 231.5(h).

[[Page 540]]

    (e) Termination. Requests to eliminate any or all MBFs in a foreign 
country shall include documentation that the U.S. Chief of Diplomatic 
Mission has been informed and that arrangement for local termination 
announcements and procedures have been made with the U.S. Embassy.
    (1) Overseas MBFs operated under contract. In cases where an 
installation or community no longer can justify overseas MBF operations, 
the commander shall notify the Secretary of the Military Department 
concerned (or designee) through command channels.
    (i) The report shall state whether a part-time MBF should be 
established and specify the days each week that the MBF would be needed.
    (ii) The Secretary of the Military Department (or designee) shall 
send this report with recommendations to the Director, DFAS (or 
designee).
    (2) Other overseas banking offices. Termination actions, when 
required, shall be taken in accordance with the applicable clauses in 
the operating agreement. Notice of intent to terminate, including the 
closing date, shall be sent through DoD Component channels to Director, 
DFAS (or designee), who shall notify the Department of the Treasury so 
that the foreign banking institution's authority as a Depositary and 
Financial Agent of the U.S. Government at that location may be revoked.



Sec. 231.7  Procedures--domestic credit unions.

    (a) General policy. Given their role in promoting morale and 
welfare, on-base credit unions shall be recognized and assisted by DoD 
Components at all levels. These financial institutions shall provide 
services to DoD personnel of all ranks and grades within their 
respective fields of membership.
    (b) Establishment. A demonstrated need for credit union services may 
be addressed by establishing a new full-service credit union or by 
opening a branch office or facility of an existing credit union under 
the common bond principle.
    (1) DoD personnel seeking to establish a new full-service credit 
union shall submit a proposal to the installation commander for review. 
In addition to the information identified in Sec. 231.5(b)(1), the 
proposal shall include a request for the establishment of a field of 
membership that includes all personnel at the installation. Upon 
installation commander concurrence, the proposal shall be forwarded 
through DoD Component channels to the Secretary of the Military 
Department (or designee).
    (2) The Secretary of the Military Department concerned (or designee) 
shall:
    (i) Obtain a list of credit unions that could establish eligibility 
to serve the installation's military members and civilian employees from 
the National Credit Union Administration (NCUA) Regional Office that has 
geographic jurisdiction and the applicable state regulatory agency.
    (ii) Prepare and send formal solicitation letters to eligible credit 
unions informing them of an opportunity to establish a branch office at 
the installation.
    (iii) In coordination with the installation commander, establish the 
criteria for selection of a specific credit union in accordance with 
Sec. 231.5(c)(4). Proposals shall be evaluated, and a selection made, 
based upon the factors and weights developed for the solicitation.
    (3) Upon approval by the Secretary of the Military Department (or 
designee), the NCUA or applicable state regulatory agency shall be 
notified and asked to establish or amend the selected credit union's 
charter to include the new location.
    (4) No commitment may be made to a credit union regarding its 
proposal until the appropriate regulatory agency has approved the 
requested charter change.
    (c) Terminations--(1) Voluntary credit union terminations. (i) When 
a credit union plans to end operations on a DoD installation, it shall 
be required to notify the installation commander 180 days before the 
closing date. Such notification shall be required to precede public 
announcement of the planned closure. When appropriate, the commander 
shall attempt to negotiate an agreement permitting the credit union to 
continue operations until the installation has made other arrangements.

[[Page 541]]

    (ii) The installation commander shall inform the Secretary of the 
Military Department concerned (or designee) immediately upon receiving 
notification of a closing. The report shall include a recommendation 
about continued credit union service on the installation. Paragraph (b) 
of this section applies if continued service is needed.
    (2) Termination for cause. If, after discussion with credit union 
officials, an installation commander determines that the operating 
policies of a credit union are inconsistent with this Regulation, a 
recommendation for termination of logistical support and space 
arrangements may be made through the Secretary of the Military 
Department concerned (or designee). A credit union shall be removed from 
the installation only with approval of the Secretary of the Military 
Department (or designee) after coordination with the USD(C) through the 
Director, DFAS, and the appropriate regulatory agency.
    (3) Termination in the interest of national defense. At the option 
of the government, leases may be terminated in the event of national 
emergency or as a result of installation deactivation, closing, or other 
disposal action.
    (4) Termination resulting from merger, acquisition, or change of 
control. When merger, acquisition, change of control or other action 
results in violation of the terms and conditions of the existing 
operating agreement, the Secretary of the Military Department (or 
designee) shall, subsequent to coordination with the USD(C), through the 
Director, DFAS, terminate the operating agreement with the existing 
credit union. When the merger, acquisition, change of control or other 
action does not result in violation of the terms and conditions of the 
existing operating agreement, the Secretary of the Military Department 
(or designee) shall initiate a novation action of the operating 
agreement identifying the change in control.
    (5) Termination of lease. The lessee shall provide written notice 
180 days prior to a voluntary termination of the lease. Upon lease 
termination, the government has the option to cause the title of all 
structures and other improvements to be conveyed to the United States 
without reimbursement, or require the lessee to remove the improvements 
and restore the land to its original condition.
    (d) Use of space, logistical support, and military real property for 
domestic credit unions--(1) Criteria for use of space in Government-
owned real property. (i) Criteria governing the assignment of space and 
construction of new space for credit unions are in DoD 4270.1-M.
    (ii) A credit union may be furnished space on a DoD installation at 
one or more locations for periods not exceeding 5 years except where the 
credit union uses its own funds to improve existing government space as 
outlined in paragraphs (d)(1)(ii)(C) and (d)(1)(ii)(D) of this section. 
The cumulative total of space furnished shall be subject to the 
limitations of DoD 4270.1-M.
    (A) The furnishing of office space (including ATM placement) to on-
base credit unions is governed by section 170 of the Federal Credit 
Union Act (12 U.S.C. 1770). The provision of no-cost office space for a 
period not to exceed 5 years is limited to credit unions if at least 95 
percent of the membership to be served by the allotment of space is 
composed of individuals who are, or who were at the time of admission 
into the credit union, military personnel or federal employees, or 
members of their families. A written statement to the effect that the 
credit union meets the 95 percent criterion shall be required to justify 
and document the allotment of free government space. This statement 
shall be prepared on the credit union's letterhead and signed either by 
the chairman of the board of directors or the president. A certification 
also shall be required whenever there is a merger, takeover, or 
significant change in a field of membership. This certification shall 
serve as justification and documentation for the continued allocation of 
free government space including space renovated with credit union funds. 
The statement shall be updated every 5 years and on renewal of each no-
cost permit or license. (See appendix C of this part for a sample format 
of the statement.)
    (B) Credit unions that fail to meet the 95 percent criterion shall 
be charged fair market rental for space provided. Except where more than 
one credit union exists on an installation

[[Page 542]]

prior to June 9, 2000, credit unions giving less than full service or 
not serving all assigned DoD personnel are not authorized no-cost office 
space.
    (C) When a credit union that meets the 95 percent criterion uses its 
own funds to expand, modify, or renovate government-owned space, it may 
be provided a no-cost permit or license for a period commensurate with 
the extent of the improvements not to exceed 25 years as determined by 
the DoD Component concerned. The permit or license shall be effective 
until the agreed date of expiration or until the credit union ceases to 
satisfy the 95 percent criterion. In this latter case, the no-cost 
permit shall be cancelled in favor of a lease immediately negotiated at 
fair market value under the provisions of paragraph (d)(1)(ii)(B) of 
this section. If the credit union desires, this permit or license may 
extend through the period identified in the original permit or license 
not to exceed 25 years.
    (D) Similarly, a credit union not meeting the 95 percent criterion 
that uses its own funds to expand, modify, or renovate government-owned 
space, may be provided a lease at fair market value for a period not to 
exceed 25 years subject to periodic review every 5 years to assess 
changes in fair market value. Duration of this lease shall be 
commensurate with the extent of the improvements as determined by the 
DoD Component concerned.
    (iii) All space assigned by the GSA, whether leased or in a federal 
office building, is reimbursable to the GSA at the standard level user 
charge. Consequently, the GSA shall charge the benefiting DoD Component 
for any space assigned for credit union operations. Such space is 
subject to the provisions of paragraph (d)(1)(i) and (ii) of this 
section.
    (2) Logistical support. When available, custodial and janitorial 
services to include garbage disposal and outdoor maintenance (such as 
grass cutting and snow removal), heating and air conditioning, utilities 
(i.e., electricity, natural gas or fuel oil, water, and sewage), 
fixtures, and maintenance shall be furnished without cost to credit 
unions occupying no-cost office space in government buildings. With the 
exception of intrastation telephone service, credit unions shall be 
required to pay for all communication services to include telephone 
lines, long distance data services and Internet connections. Credit 
unions also shall pay for space alterations. Should a credit union fail 
to meet the 95 percent membership criterion, any logistical support 
furnished shall be on a reimbursable basis.
    (3) Leases executed before the issuance of this part may not be 
altered solely as a result of the provisions of this part unless a 
lessee specifically requests a renegotiation under these provisions. No 
lease may be negotiated or renegotiated, nor may any rights be waived or 
surrendered without compensation to the government.
    (4) When a credit union participates in the construction of a 
shopping mall complex the lease shall cover only land where the branch 
or facility physically is located.
    (5) Administrative fees. All administrative fees associated with the 
initiation, modification, or renewal of an outgrant shall be borne by 
the installation, provided that the credit union satisfies the 95 
percent membership criterion requirement for no-cost office space as 
outlined paragraph (d)(1)(ii)(A) of this section, and that the fees are 
associated with the no-cost space.
    (e) Land leases. Credit unions entering into a land lease to 
construct a building on a DoD installation shall do so in accordance 
with Sec. 231.5(f).
    (f) Construction. Credit unions constructing a building on a DoD 
installation shall do so in accordance with Sec. 231.5(g).
    (g) Credit unions offering ATM service shall do so in accordance 
with Sec. 231.4(d).
    (h) Staffing. (1) On-base credit unions shall provide full service. 
To do so, credit union offices shall be staffed by:
    (i) An official authorized to act on loan applications.
    (ii) An individual authorized to sign checks; and
    (iii) A qualified financial counselor available to serve members 
during operating hours.
    (2) Exceptions to paragraph (h)(1)(i) of this section may be 
approved by the installation commander with advice

[[Page 543]]

from the Secretary of the Military Department concerned (or designee) in 
the case of newly organized credit unions.
    (3) When an on-base credit union can support only minimum staffing, 
one of the positions required in paragraph (h)(1)(i) of this section or 
paragraph (h)(1)(ii) of this section also may be subsumed under the 
counselor duties.
    (4) Credit union remote service locations at the same installation 
may be staffed with one person alone, provided that a direct courier or 
an electronic or automated message service links each remote location to 
the credit union's main office.
    (i) Credit union liaison officer (CULO). When a credit union office 
is located on an installation, the commander shall appoint a CULO. As 
appropriate, the CULO responsibility should be assigned to comptroller 
or resource management personnel. The CULO's name and duty telephone 
number shall be displayed prominently at each credit union office on the 
installation. Anyone who serves as a credit union board member or in any 
other official credit union capacity may not serve as a CULO. The duties 
of a CULO are the same as the duties listed for a BLO (see Sec. 
231.5(h)).
    (j) In-store banking. In-store banking services may be provided in 
accordance with Sec. 231.5(i) except that:
    (1) Credit unions interested in submitting proposals to provide 
requested in-store banking services shall provide a statement from the 
NCUA or applicable state regulatory agency certifying the credit union's 
authority to offer the requested financial services to the commissary, 
Military Exchange, or other on-base facilities.
    (2) Space granted to a credit union selected to provide in-store 
banking services should be issued through a no-cost license in 
accordance with section 170 of the Federal Credit Union Act (12 U.S.C. 
1770).



Sec. 231.8  Procedures--overseas credit unions.

    (a) General policy. (1) Credit union services to authorized persons 
and organizations may be provided by domestic on-base credit unions 
operating under a geographic franchise.
    (2) The extension of credit union service overseas is encouraged 
consistent with the principles prescribed for domestic credit unions and 
with applicable status of forces agreements or other intergovernmental 
agreements, or host-country law.
    (3) Where permitted by the status of forces agreements or other 
intergovernmental agreements, or host-country law, only federal credit 
unions or federally insured state chartered credit unions may operate on 
overseas DoD installations. The ultimate decision to provide services 
overseas rests with the credit union itself.
    (b) Establishment. (1) Commanders shall notify the Secretary of the 
Military Department concerned (or designee), through command channels, 
when overseas credit union services are needed. Such requests shall 
include:
    (i) Full information about available space and logistical support.
    (ii) The name and location of the nearest credit union facility or 
branch.
    (iii) The distance between the installation and the nearest credit 
union facility or branch.
    (iv) The availability of any official or public transportation.
    (v) The number of DoD personnel in duty assignments that confine 
them to the installation or who cannot obtain transportation (such as 
hospital patients).
    (vi) In countries not presently served, a statement concurred in by 
the cognizant Combatant Command that the requirement has been 
coordinated with the U.S. Chief of Diplomatic Mission or U.S. Embassy. 
The statement shall include that the host country will permit credit 
union operations and will indicate any conditions imposed by the host 
country with respect to those operations.
    (2) Subsequent to approval of the request from the installation or 
community commander to establish an overseas credit union facility, the 
Secretary of the Military Department concerned (or designee) shall 
solicit proposals for the provision of full credit union services under 
the following provisions.
    (i) Where there is a DoD designated geographic franchise with a 
specific field of membership, the Secretary of

[[Page 544]]

the Military Department (or designee) shall direct the installation or 
community commander to contact the supporting credit union and request 
that a branch or facility be established. The basic decision concerning 
such extensions of service rests with the servicing credit union. The 
Director, DFAS (or designee) shall maintain a listing of all geographic 
franchises assigned to credit unions serving DoD overseas installations.
    (ii) Where there is no DoD designated geographic franchise, the 
Secretary of the Military Department (or designee) shall:
    (A) Coordinate requests, through the Director, DFAS (or designee), 
to obtain a geographic franchise. A geographic franchise is the 
authorization granted to a credit union by the Office of the Under 
Secretary of Defense (Comptroller) (OUSD(C)) to provide financial 
services in a specific geographic region located outside the United 
States, its territories and possessions.
    (B) Solicit proposals from credit unions currently operating on DoD 
installations.
    (C) Review proposals of interested credit unions.
    (D) Coordinate with field commands, as needed.
    (E) Recommend selection to the NCUA or applicable state regulatory 
agency with a copy to the DFAS and the OUSD(C), requesting that the 
appropriate field of membership adjustment be made. Such a 
recommendation shall identify the primary installations on which the 
credit union would operate and, if applicable, the contiguous geographic 
boundaries for future facilities and branches.
    (3) Where there is an existing field of membership, the Secretary of 
the Military Department concerned (or designee) shall take the following 
actions:
    (i) If a credit union on an installation terminates operation, 
afford any other credit union having a geographic franchise within that 
country an opportunity to assume the franchise being vacated. If all 
such institutions decline, the geographic franchise shall be offered to 
the federally insured credit union community. If, as a result of a 
credit union decision to decline service to an installation or a 
termination action, another credit union:
    (A) Offers to provide service.
    (B) Meets host country requirements (if any) and
    (C) Is assigned the former geographic franchise or portion thereof, 
the NCUA or the applicable state regulatory agency shall be notified and 
requested to make appropriate field of membership adjustments.
    (ii) When other credit union(s) having a geographic franchise within 
a country decline the opportunity, or there is no other credit union 
having a franchise within that country, the provisions of paragraph 
(b)(2)(ii) of this section apply.
    (4) No commitment may be made to a credit union regarding its 
proposal until the appropriate regulatory agency has announced a 
selection.
    (c) Logistical support. Installation or community commanders shall 
provide logistical credit union support. Such support normally shall 
include:
    (1) Adequate office space, including steel bars; grillwork; security 
doors; a vault, safes or both; security alarm systems and camera 
surveillance equipment (where deemed necessary) that meet documented 
requirements of the credit union's insurance carrier; construction of 
counters, teller cages, and customer and work areas; necessary 
modifications and alterations to existing buildings. The size and 
arrangement of space should permit efficient operations. The credit 
union shall pay for all improvements to the space given. Space assigned 
may not exceed that prescribed in DoD 4270.1-M.
    (2) DoD housing on a rental basis to key credit union personnel 
unable to find suitable, reasonably priced housing in the vicinity of 
the DoD installation, if available.
    (3) Education, on a space-available, tuition-paying basis, provided 
by the Department of Defense Education Activity to minor dependents of 
assigned staff in accordance with DoD Directive 1342.13.
    (4) Utilities (i.e., electricity, natural gas or fuel oil, water and 
sewage), heating, intrastation telephone service, and custodial and 
janitorial services.

[[Page 545]]

    (5) DSN voice and data communication to include, where feasible, 
internet access.
    (6) U.S. Military Postal Service support under DoD Directive 4525.6. 
The use of free intra-theater delivery system (IDS) is authorized for 
all routine mail sent and received between Army Post Offices (APOs) and 
Fleet Post Offices (FPOs) within a theater.
    (7) Military guards, civilian guards (for use within the 
installation), military police, or other protective services to 
accompany shipments of money from the MBF to the credit union and return 
where it is impractical or not authorized to have a local armored car 
service or civilian police authorities entering a military installation 
to provide cash escort service or when the cost of obtaining such 
service is prohibitive. This level of protective service also shall be 
provided at other times as required to include replenishment of ATM 
currency and receipts, alarm system failures, and to avoid undue risks 
or insurance costs.
    (d) Travel. Travel by credit union officials must be at no expense 
to the U.S. Government. Overseas commanders may issue invitational 
travel orders for official on-base visits by credit union officials at 
no cost to the U.S. Government.
    (e) Operations. (1) An overseas credit union shall confine its field 
of membership to individuals or organizations eligible by law or 
regulation to receive services and benefits from the installation. 
Services shall not be provided to those personnel precluded such 
services by the applicable status of forces agreement, other 
intergovernmental agreements, or host-country law.
    (2) The Department assigns overseas credit unions a prescribed 
geographic franchise. Any credit union, however, may continue to serve 
its members stationed overseas by mail or telecommunications, to include 
access to the Internet.
    (3) A credit union proposing a new service to be offered by a branch 
office that is not authorized by the operating agreement shall 
coordinate the establishment of the new service through the cognizant 
Component command to the Combatant Command. The new service shall be 
offered only after the appropriate command's approval and coordination 
with the U.S. Chief of Diplomatic Mission or U.S. Embassy to ensure that 
the service does not conflict with the applicable status of forces 
agreement, other intergovernmental agreements, or host-country law.
    (4) Credit unions that operate full service branches shall have U.S. 
currency and coin available for member transactions. In areas served by 
currency custody accounts, transactional U. S. currency and coins shall 
be made available from the servicing MBF with no direct or analysis 
charge to the credit union, provided settlement is made via the local 
MBF account or equivalent arrangements are made with the MBF.
    (5) In countries served by MBFs operated under contract, credit 
unions shall purchase foreign currency only from the servicing MBF.
    (i) The bulk rate purchase price shall apply to currency used by the 
credit union to make payments to vendors or to make payroll payments.
    (ii) Credit unions that desire and are authorized to provide 
accommodation exchange services to its members shall acquire foreign 
currency from the servicing MBF at the MBF wholesale rate and sell it at 
a rate of exchange no more favorable than that available to customers of 
the MBF.
    (6) Credit unions operating under a geographic franchise on an 
overseas DoD installation shall not publicize, display or sell vehicles 
on the installation.
    (7) The NCUA or applicable state regulatory agency may review 
operations of overseas credit union offices either when it examines the 
main credit union or at other times of its choosing. For federally 
insured, state chartered credit unions, the applicable state regulatory 
agency also may examine credit unions operations.



Sec. 231.9  Definitions.

    (a) Automated Teller Machine (ATM). An electronic machine that 
dispenses cash, and may perform such other functions as funds transfers 
among a customer's various accounts and acceptance of deposits. 
Equipment generally

[[Page 546]]

is activated by a plastic card in combination with a personal 
identification number (PIN). Typically, when the cardholder's account is 
with a financial institution other than that operating the ATM, its use 
results in the assessment of a fee from the ATM network (e.g., Armed 
Forces Financial Network (AFFN), Cirrus, or PLUS) that processes the 
transaction.
    (b) Banking institution. An entity chartered by a state or the 
federal government to provide financial services.
    (c) Banking office. A branch bank, or independent bank operated by a 
banking institution on a domestic DoD installation or by a foreign 
banking institution on an overseas DoD installation.
    (d) Branch bank. A separate unit chartered to operate at an on-base 
location geographically remote from its parent banking institution.
    (e) Credit union. A cooperative nonprofit association, incorporated 
under the Federal Credit Union Act (12 U.S.C. 1751 et seq.), or similar 
state statute, for the purposes of encouraging thrift among its members 
and creating a source of credit at a fair and reasonable rate of 
interest.
    (f) Credit union facility. A facility employing a communications 
system with the parent credit union to conduct business at remote 
locations where a full-service credit union or credit union branch is 
impractical. Credit union facilities need not provide cash transaction 
services but must disburse loans and shares by check or draft and 
provide competent financial counseling during normal working hours.
    (g) Discrimination. Any differential treatment in provision of 
services, including loan services, by a financial institution to DoD 
personnel and their dependents on the basis of race, color, religion, 
national origin, sex, marital status, age, rank, or grade.
    (h) DoD Component. For the purposes of this part, DoD Components 
include the Office of the Secretary of Defense, the Military 
Departments, the Joint Chiefs of Staff, the Joint Staff and the 
supporting Joint Agencies, the Combatant Commands, the Inspector General 
of the Department of Defense, the Defense Agencies, the DoD Field 
Activities, the Uniformed Services University of the Health Sciences, 
all nonappropriated fund instrumentalities including the Military 
Exchange Services, and morale, welfare and recreation activities, and 
all other organizational entities within the Department of Defense.
    (i) DoD Personnel. All military personnel; DoD civil service 
employees; other civilian employees, including special government 
employees of all offices, Agencies, and Departments performing functions 
on a DoD installation (including nonappropriated fund 
instrumentalities); and their dependents. On domestic DoD installations, 
retired U.S. military personnel and their dependents are included.
    (j) Domestic DoD installation. For the purposes of this Regulation, 
a military installation located within a state of the United States, the 
District of Columbia, Guam or the Commonwealth of Puerto Rico.
    (k) Fair market rental. A reasonable charge for on-base land, 
buildings, or building space. Rental is determined by a government 
appraisal based on comparable properties in the local civilian economy. 
The appraiser, however, shall consider that on-base property may not 
always be comparable to similar property in the local commercial 
geographic area. Examples of circumstances that may affect fair market 
rental include limitations of usage and access to the financial 
institution by persons other than those on the installation, proximity 
to the community center or installation business district, and the 
government's right to terminate the lease or take title to improvements 
constructed at the financial institution's expense.
    (l) Field of membership. A group of people entitled to credit union 
membership because of a common bond of occupation, association, 
employment, or residence within a well-defined neighborhood, community, 
rural district, and other persons sharing a common bond as described by 
credit union board of directors policy or by Interpretation Ruling and 
Policy Statement (IRPS) 99-1. A field of membership is defined in the 
credit union's charter by the appropriate regulatory agency.
    (m) Financial institution. This term encompasses any banking 
institution,

[[Page 547]]

credit union, thrift institution and subordinate office branch or 
facility, each as separately defined herein.
    (n) Financial services. Those services commonly associated with 
financial institutions in the United States, such as electronic banking 
(e.g., ATMs and personal computing banking), in-store banking, checking, 
share and savings accounts, funds transfers, sales of official checks, 
money orders, and travelers checks, loan services, safe deposit boxes, 
trust services, sale and redemption of U.S. Savings Bonds, and 
acceptance of utility payments and any other services provided by 
financial institutions.
    (o) Foreign banking institution. A bank located outside the United 
States chartered by the country in which it is domiciled.
    (p) Full service credit union. A credit union that provides full-
time counter transaction services, to include cash operations, and is 
staffed during normal working hours by a loan officer, a person 
authorized to sign checks, and a qualified financial counselor. In 
overseas areas, ``full service'' includes cash operations where not 
prevented by:
    (1) Status of forces agreements, other intergovernmental agreements, 
or host-country law.
    (2) Physical security requirements that cannot be resolved by the 
credit union or local command.
    (q) Geographic franchise. Authorization granted to a credit union by 
the Office of the Under Secretary of Defense (Comptroller) to provide 
financial services in a specific geographic region located outside the 
United States, its territories and possessions.
    (r) Independent bank. A bank specifically chartered to operate on 
one or more DoD installations whose directors and officers usually come 
from the local business and professional community. Such operations are 
thus differentiated from county-wide or state-wide branch systems 
consisting of a head office and one or more geographically separate 
branch offices.
    (s) In-store banking. An expansion of financial services provided by 
an on-base financial institution within the premises of a commissary 
store operated by the Defense Commissary Agency, a Military Exchange 
outlet, and other on-base retail facilities.
    (t) Malpractice. Any unreasonable lack of skill or fidelity in 
fiduciary duties or the intentional violation of an applicable law or 
regulation or both that governs the operations of the financial 
institution. A violation shall be considered intentional if the 
responsible officials know that the applicable action or inaction 
violated a law or regulation.
    (u) Military banking facility (MBF). A banking office located on a 
DoD installation and operated by a financial institution that the 
Department of the Treasury specifically has authorized, under its 
designation as a ``Depository and Financial Agent of the U.S. 
Government,'' to provide certain banking services at the installation.
    (v) National bank. An association approved and chartered by the 
Comptroller of the Currency to operate a banking business.
    (w) On-base. Refers to physical presence on a domestic or overseas 
DoD installation.
    (x) Operating agreement. A mutual agreement between the installation 
commander and the on-base financial institution to document their 
relationships.
    (y) Overseas DoD installation. A military installation (or 
community) located outside the states of the United States, the District 
of Columbia, Guam or the Commonwealth of Puerto Rico.
    (z) Part-time MBF. A MBF that operates fewer than 5 days a week 
exclusive of additional payday service. When only payday service is 
provided, the MBF may be termed a ``payday service facility.''
    (aa) Regulatory Agency. Includes the Office of the Comptroller of 
the Currency, Department of the Treasury; the Federal Deposit Insurance 
Corporation; the Board of Governors of the Federal Reserve System; the 
respective Federal Reserve Banks; the National Credit Union 
Administration; Office of Thrift Supervision; the various state agencies 
and commissions that oversee financial institutions; and, for military 
banking facilities (MBFs), the Fiscal Assistant Secretary of the 
Treasury (or designee).

[[Page 548]]

    (bb) State bank. An institution organized and chartered under the 
laws of one of the states of the United States to operate a banking 
business within that state.
    (cc) Thrift institution. An institution organized and chartered 
under federal or state law as a Savings Bank, Savings Association, or 
Savings and Loan Association.

[66 FR 46708, Sept. 7, 2001; 66 FR 54136, Oct. 26, 2001]



                     Subpart B_DoD Directive 1000.11



Sec. 231.10  Financial institutions on DoD installations.

    (a) Purpose. This subpart:
    (1) Updates policies and responsibilities for financial institutions 
that serve Department of Defense (DoD) personnel on DoD installations 
worldwide. Associated procedures are contained in subpart A of this 
part.
    (2) Prescribes consistent arrangements for the provision of services 
by financial institutions among the DoD Components, and requires that 
financial institutions operating on DoD installations provide, and are 
provided, support consistent with the policies stated herein.
    (b) Applicability. This subpart applies to the Office of the 
Secretary of Defense, the Military Departments, the Chairman of the 
Joint Chiefs of Staff, the Combatant Commands, the Inspector General of 
the Department of Defense, the Defense Agencies, the DoD Field 
Activities, and all other organizational entities within the Department 
of Defense (hereafter collectively referred to as ``the DoD 
Components''), and all nonappropriated fund instrumentalities including 
the Military Exchange Services and morale, welfare and recreation (MWR) 
activities.
    (c) Definitions. Terms used in this subpart are set forth in subpart 
A of this part.
    (d) Policy. (1) The following pertains to financial institutions on 
DoD installations:
    (i) Except where they already may exist as of May 1, 2000, no more 
than one banking institution and one credit union shall be permitted to 
operate on a DoD installation.
    (ii) Upon the request of an installation commander and with the 
approval of the Secretary of the Military Department concerned (or 
designee), duly chartered financial institutions may be authorized to 
provide financial services on DoD installations to enhance the morale 
and welfare of DoD personnel and facilitate the administration of public 
and quasi-public monies. Arrangement for the provision of such services 
shall be in accordance with this subpart and the applicable provisions 
of subpart A of this part.
    (iii) Financial institutions or branches thereof, shall be 
established on DoD installations only after approval by the Secretary of 
the Military Department concerned (or designee) and the appropriate 
regulatory agency.
    (A) Except in limited situations overseas (see paragraph 
(d)(2)(ii)(C) of this section), only banking institutions insured by the 
Federal Deposit Insurance Corporation and credit unions insured by the 
National Credit Union Share Insurance Fund or by another insurance 
organization specifically qualified by the Secretary of the Treasury, 
shall operate on DoD installations. These financial institutions may 
either be State or federally chartered; however, U.S. credit unions 
operated overseas shall be federally insured.
    (B) Military banking facilities (MBFs) shall be established on DoD 
installations only when a demonstrated and justified need cannot be met 
through other means. An MBF is a financial institution that is 
established by the Department of the Treasury under statutory authority 
that is separate from State or Federal laws that govern commercial 
banking. Section 265 of title 12, United States Code contains the 
provisions for the Department of the Treasury to establish MBFs. 
Normally, MBFs shall be authorized only at overseas locations. This form 
of financial institution may be considered for use at domestic DoD 
installations only when the cognizant DoD Component has been unable to 
obtain, through normal means, financial services from a State or 
federally chartered financial institution authorized to operate in the 
State in which the installation is located. In times of mobilization, it 
may become necessary to

[[Page 549]]

designate additional MBFs as an emergency measure. The Director, Defense 
Finance and Accounting Service (DFAS) may recommend the designation of 
MBFs to the Department of the Treasury.
    (C) Retail banking operations shall not be performed by any DoD 
Component. Solicitations for such services shall be issued, or proposals 
accepted, only in accordance with the policies identified in this 
subpart. The DoD Components shall rely on commercially available sources 
in accordance with DoD Directive 4100.15. \14\
---------------------------------------------------------------------------

    \14\ See footnote 1 to Sec. 231.1(a).
---------------------------------------------------------------------------

    (iv) Installation commanders shall not seek the provision of 
financial services from any entity other than the on-base banking office 
or credit union. The Director, DFAS, with the concurrence of the Under 
Secretary of Defense (Comptroller) (USD(C)), may approve exceptions to 
this policy.
    (v) Financial institutions authorized to locate on DoD installations 
shall be provided logistic support as set forth in subpart A of this 
part.
    (vi) Military disbursing offices, nonappropriated fund 
instrumentalities (including MWR activities and the Military Exchange 
Services) and other DoD Component activities requiring financial 
services shall use on-base financial institutions to the maximum extent 
feasible.
    (vii) The Department encourages the delivery of retail financial 
services on DoD installations via nationally networked automated teller 
machines (ATMs).
    (A) ATMs are considered electronic banking services and, as such, 
shall be provided only by financial institutions that are chartered and 
insured in accordance with the provisions of paragraph (d)(1)(iii) of 
this section.
    (B) Proposals by the installation commander to install ATMs from 
other than on-base financial institutions shall comply with the 
provisions of paragraph (d)(1)(iv) of this section.
    (viii) Expansion of financial services (to include in-store banking) 
requiring the outgrant of additional space or logistical support shall 
be approved by the installation commander. Any DoD activity or financial 
institution seeking to expand financial services shall coordinate such 
requests with the installation bank/credit union liaison officer prior 
to the commander's consideration.
    (ix) The installation commander shall ensure, to the maximum extent 
feasible, that all financial institutions operating on that installation 
are given the opportunity to participate in pilot programs to 
demonstrate new financial-related technology or establish new business 
lines (e.g., in-store banking) where a determination has been made by 
the respective DoD Component that the offering of such services is 
warranted.
    (x) The installation commander shall approve requests for 
termination of financial services that are substantiated by sufficient 
evidence and forwarded to the Secretary of the Military Department 
concerned (or designee). The Secretary of the Military Department (or 
designee) shall coordinate such requests with the USD(C), through the 
Director, DFAS, before notification to the appropriate regulatory 
agency.
    (xi) Additional guidance pertaining to financial services is set 
forth in subpart A of this part.
    (2) The following additional provisions pertain to only to financial 
institutions on overseas DoD installations:
    (i) The extension of services by MBFs and credit unions overseas 
shall be consistent with the policies stated herein and with the 
applicable status of forces agreements, other intergovernmental 
agreements, or host-country law.
    (ii) Financial services at overseas DoD installations may be 
provided by:
    (A) Domestic on-base credit unions operating overseas under a 
geographic franchise and, where applicable, as authorized by the 
pertinent status of forces agreements, other intergovernmental 
agreements, or host-country law.
    (B) MBFs operated under and authorized by the pertinent status of 
forces agreement, other intergovernmental agreement, or host-country 
law.
    (C) Domestic and foreign banks located on overseas DoD installations 
that are:
    (1) Chartered to provide financial services in that country, and

[[Page 550]]

    (2) A party to a formal operating agreement with the installation 
commander to provide such services, and
    (3) Identified, where applicable, in the status of forces 
agreements, other intergovernmental agreements, or host-country law.
    (iii) In countries served by MBFs operated under contract, 
nonappropriated fund instrumentalities and on-base credit unions that 
desire, and are authorized, to provide accommodation exchange services 
shall acquire foreign currency from the MBF at the MBF accommodation 
rate; and shall sell such foreign currency at a rate of exchange that is 
no more favorable to the customer than the customer rate available at 
the MBF.
    (e) Responsibilities. (1) The Under Secretary of Defense 
(Comptroller) (USD(C)) shall develop policies governing establishment, 
operation, and termination of financial institutions on DoD 
installations and take final action on requests for exceptions to this 
subpart.
    (2) The Under Secretary of Defense (Acquisition, Technology and 
Logistics) (USD(AT&L)) shall monitor policies and procedures governing 
logistical support furnished to financial institutions on DoD 
installations, including the use of DoD real property and equipment.
    (3) The Under Secretary of Defense (Personnel and Readiness) 
(USD(P&R)) shall advise the USD(C) on all aspects of on-base financial 
institution services that affect the morale and welfare of DoD 
personnel.
    (4) DoD Component responsibilities pertaining to this subpart are 
set forth in subpart A of this part.



  Subpart C_Guidelines for Application of the Privacy Act to Financial 
                         Institution Operations



Sec. 231.11  Guidelines.

    (a) The following guidelines govern the application of DoD Directive 
5400.11 \15\ to those financial institutions that operate under this 
part:
---------------------------------------------------------------------------

    \15\ See footnote 1 to Sec. 231.1(a).
---------------------------------------------------------------------------

    (1) Financial institutions and their branches and facilities 
operating on DoD military installations do not fall within the purview 
of 5 U.S.C. 552 et seq.
    (i) These financial institutions do not fit the definition of 
``agency'' to which the Privacy Act applies, that is, any executive 
department, Military Department, government corporation, government-
controlled corporation, or other establishment in the executive branch 
of the government (including the Executive Office of the President), or 
an independent regulatory agency (5 U.S.C. 552(e) and 552a(a)(1)).
    (ii) These financial institutions are not ``government contractors'' 
within the meaning of 5 U.S.C. 552a(o), as they do not operate a system 
of records on behalf of an agency to accomplish an agency function. 
According to the Office of Management and Budget Privacy Act Guidelines, 
the provision relating to government contractors applies only to systems 
of records actually taking the place of a federal system which, but for 
the contract, would have been performed by an agency and covered by the 
Privacy Act. Clearly, the subject institutions do not meet these 
criteria.
    (iii) Since the Act does not apply to them, these financial 
institutions are not required to comply with 5 U.S.C. 552a(e)(3) in 
obtaining and making use of personal information in their relationships 
with personnel authorized to use such institutions. Thus, these 
institutions are not required to inform individuals from whom 
information is requested of the authority for its solicitation, the 
principal purpose for which it is intended to be used, the routine uses 
that may be made of it, or the effects of not providing the information. 
There also is no requirement to post information of this nature within 
on-base banking and credit union offices.
    (2) The financial institutions concerned hold the same position and 
relationship to their account holders, members, and to the government as 
they did before enactment of OMB Circular A-130. Within their usual 
business relationships, they still are responsible for safeguarding the 
information provided by their account holders or members and for 
obtaining only

[[Page 551]]

such information as is reasonable and necessary to conduct business. 
This includes credit information and proper identification, which may 
include social security number, as a precondition for the cashing of 
checks.
    (3) Financial institutions may incorporate the following conditions 
of disclosure of personal identification in all contracts, including 
loan agreements, account signature cards, certificates of deposit 
agreements, and any other agreements signed by their account holders or 
members:

    I hereby authorize the Department of Defense and its various 
Components to verify my social security number or other identifier and 
disclose my home address to authorized (name of financial institution) 
officials so that they may contact me in connection with my business 
with (name of financial institution). All information furnished will be 
used solely in connection with my financial relationship with (name of 
financial institution).

    (ii) When the financial institution presents such signed 
authorizations, the receiving military command or installation shall 
provide the appropriate information.
    (4) Even though an agreement described in paragraph (a)(3) of this 
section has not been obtained, the Department of Defense may provide 
these financial institutions with salary information and, when 
pertinent, the length or type of civilian or military appointment, 
consistent with DoD Directives 5400.11 and 5400.7. \16\ Some examples of 
personal information pertaining to DoD personnel that normally can be 
released without creating an unwarranted invasion of personal privacy 
are name, rank, date of rank, salary, present and past duty assignments, 
future assignments that have been finalized, office phone number, source 
of commission, and promotion sequence number.
---------------------------------------------------------------------------

    \16\ See footnote 1 to 231.1(a).
---------------------------------------------------------------------------

    (5) When DoD personnel with financial obligations are reassigned and 
fail to inform the financial institution of their whereabouts, they 
should be located by contacting the individual's last known commander or 
supervisor at the official position or duty station within that 
particular DoD Component. That commander or supervisor either shall 
furnish the individual's new official duty location address to the 
financial institution, or shall forward, through official channels, any 
correspondence received pertaining thereto to the individual's new 
commander or supervisor for appropriate assistance and response. 
Correspondence addressed to the individual concerned at his or her last 
official place of business or duty station shall be forwarded as 
provided by postal regulations to the new location. Once an individual's 
affiliation with the Department of Defense is terminated through 
separation or retirement, however, the Department's ability to render 
locator assistance (i.e., disclose a home address) is severely curtailed 
unless the public interest dictates disclosure of the last known home 
address. The Department may, at its discretion, forward correspondence 
to the individual's last known home address. The Department may not act 
as an intermediary for private matters concerning former DoD personnel 
who are no longer affiliated with the Department.
    (b) Questions concerning this guidance should be forwarded through 
channels to the Deputy Chief Financial Officer, Office of the Under 
Secretary of Defense (Comptroller), The Pentagon, Washington, DC 20301-
1100.





         Sec. Appendix A to Part 231--Sample Operating Agreement

Sample Operating Agreement Between Military Installations and Financial 
                              Institutions

    Note: The following operating agreement template identifies general 
arrangement and content. Content of the actual operating agreement may 
vary according to the circumstances of each installation.

 Operating Agreement Between (Name of Installation), (State or Country 
       Installation Located) and (Name of Financial Institution).

    This Agreement is made and entered into this day by and between the 
installation commander of (name of installation) in his or her official 
capacity as installation commander, hereinafter referred to as the 
``commander'' and the (name of financial institution), having its 
principal office at (location of home office) hereinafter referred to as 
the

[[Page 552]]

``financial institution,'' together hereinafter referred to as ``the 
parties.'' Whereas the commander and the financial institution enter 
into this Operating Agreement upon the mutual consideration of the 
promises, covenants, and agreements hereinafter contained.
    1. The parties understand and agree that this Agreement shall in no 
way modify, change, or alter the terms and conditions of Lease Number 
(number of lease) covering the use of real property described therein, 
and this Agreement shall continue, subject to the termination provisions 
herein-after set forth, during the terms of said lease and any 
extensions thereof. In the case of a banking institution operating a 
military banking facility (MBF) overseas, this agreement will not change 
the conditions of the contract between the banking institution and the 
Department of Defense.
    2. The financial institution agrees to operate a (federally or 
state) chartered office on-base in accordance with the policies and 
procedures set forth in DoD Directive 1000.11, and Volume 5, Chapter 34, 
of the DoD 7000.14-R (as codified in the Code of Federal Regulations 
(CFR) at 32 CFR parts 230 and 231, respectively); and, in addition for 
the Overseas Military Banking Program (OMBP), the policies and 
procedures set forth in the applicable DoD contract. The hours of 
operations shall be between (hour office opens) and (hour office 
closes), and on the following days (weekdays office open), except on 
government holidays when the financial institution may be closed. The 
Program Office for the OMBP shall notify the commander of any changes to 
the DoD contract.
    3. The financial institution shall provide the following services:
    a. Services for Individuals.
    (1) Demand (checking) account services.
    (2) Cashing personal checks and government checks for 
accountholders.
    (3) Maintaining savings accounts and (any other interestbearing 
accounts).
    (4) Selling official checks, money orders, and traveler's checks.
    (5) Selling and redeeming United States savings bonds.
    (6) Providing direct deposit service.
    (7) Loan services.
    (8) Electronic banking (i.e., automated teller machines, internet 
banking).
    b. Services for disbursing officers.
    (1) Furnishing cash (if the financial institution's terms for doing 
so is consistent with sound management practices).
    (2) Accepting deposits for credit to the Treasury General Account 
(where the financial institution has entered into an agreement with the 
Department of the Treasury).
    c. Services for nonappropriated fund instrumentalities and private 
organizations.
    (1) Demand (checking) account services, including wire transfers.
    (2) Savings accounts and nonnegotiable certificates of deposit or 
other interestbearing accounts offered by the banking institution.
    (3) Currency and coin for change.
    4. Service charges shall be as follows:
    a. Service for individuals.
    (1) No fees shall be charged to individuals for the services listed 
in subparagraphs 3.a.(2), and 3.a.(5), above, except for subparagraph 
3.a.(2), wherein checks drawn on other financial institutions may be 
treated in accordance with the financial institution's established 
policy. Any charge to cash a government check shall not exceed that 
typically charged by financial institutions in the vicinity of the 
installation. Fees assessed to accountholders and nonaccountholders for 
use of automated teller machines shall be the customary service charges 
of the financial institution or those negotiated for base personnel per 
the attached schedule.
    (2) Checking and savings accounts. Fees for individual checking and 
savings accounts shall be the customary service charges of the financial 
institution or those negotiated for base personnel per the attached 
schedule.
    (3) Sale of official checks, money orders, traveler's checks and 
other types of financial paper. Charges for these services shall be the 
customary charges of the financial institution operating the on-base 
office.
    b. Service for Disbursing Officers. No charge shall be made for the 
services listed in subparagraph 3.b.(2), above. Compensation to the 
financial institution shall be per its separate agreement with the 
Department of the Treasury. Charges, if any, for the services stated in 
subparagraph 3.b.(1) shall be as locally negotiated with the financial 
institution.
    c. Nonappropriated Fund Instrumentalities and Private Organizations. 
State the charges or refer to a schedule of charges for funds and 
organizations that do not participate in a central banking program. For 
those activities participating in a central banking program, determine 
the compensation to the financial institution by account analysis.
    5. It is agreed that the financial institution shall:
    a. Notify the commander or designated representative of any proposed 
changes to the attached schedule of fees and services at least 30 days 
prior to implementation.
    b. Follow the requirements in Volume 5, Chapter 34, of DoD 7000.14-
R, as codified in the Code of Federal Regulations (CFR), and any changes 
thereto.
    c. Comply with Department of the Treasury requirements for 
establishment and operation of a Treasury General Account where the 
financial institution agrees to act as a depository for government 
funds.
    d. Absolve the (Military Service) and its representatives of 
responsibility or liability for the financial operation of the financial

[[Page 553]]

institution; and for any loss (including losses due to criminal 
activity), expenses, or claims for damages arising from financial 
institution operations.
    e. Indemnify, and hold harmless the United States from (and against) 
any loss, expense, claim, or demand, including attorney fees, court 
costs, and costs of litigation, to which the government may be subjected 
as a result of death, loss, destruction, or damage in connection with 
the use and occupancy of (Military Service) premises occasioned in whole 
or in part by officers, agents or employees of the financial institution 
operating an office of the financial institution.
    f. Favorably respond, whenever feasible, to reasonable local command 
requests for lectures and printed materials to support consumer credit 
education programs, financial management program and newcomer's 
briefings.
    g. Prominently post in the lobby of the financial institution the 
name, duty telephone number of the (Bank or Credit Union) Liaison 
Officer.
    h. Accept the government travel card in all on-base ATMs operated by 
the financial institution.
    i. Abide by the installation fire protection program, including 
immediate correction of fire hazards noted by the installation fire 
inspector during periodic fire prevention inspections.
    6. The commander shall provide the following space and support:
    a. Space requirements for financial institution operations shall be 
administered in accordance with the existing outgrant (i.e., lease, 
permit or license). (Show Number of Outgrant).
    b. Utilities (i.e., electricity, natural gas or fuel oil, water and 
sewage), heating and air conditioning, intrastation telephone service, 
and custodial and janitorial services to include garbage disposal and 
outdoor maintenance (such as grass cutting and snow removal) on a 
reimbursable basis.
    c. DoD housing and minor dependent education in overseas locations 
for military banking facility (MBF) and credit union personnel in 
accordance with Sec. Sec. 231.6(c)(1)(i)(C), 231.6(c)(1)(D), 
231.8(c)(2) and 231.8(c)(3).
    7. Termination of this Agreement shall be consistent with the 
termination provision of the real property lease and subpart A. The 
Secretary of the (Military Department) shall have the right to terminate 
this Agreement at any time. Any termination of the right of the 
financial institution to operate on the installation shall render this 
Agreement terminated without any applicable action by the commander.
    8. Any provision of this Agreement that is contrary to or violates 
any laws, rules, or regulations of the United States, its agencies, or 
the state of (state in which the financial institution is located) that 
apply on federal installations shall be void and have no force or 
effect; however, both parties to this Agreement agree to notify the 
other party promptly of any known or suspected continuing violation of 
such laws, rules, or regulations.
    9. So long as this Agreement remains in effect, it shall be reviewed 
jointly by the commander and the financial institution at least once 
every 5 years to ensure compatibility with current DoD issuances and to 
determine if any changes are required to the Agreement.
    In witness whereof, the commander, and the financial institution, by 
their duly authorized office, have hereunto set their hands this day of 
(month, day, year).
________________________________________________________________________
Financial Institution Official
________________________________________________________________________
Installation Commander



              Sec. Appendix B to Part 231--In-Store Banking

    A. Selection Process. The purpose of this guidance is to assure an 
impartial and thorough process to select the best on-base financial 
institution to provide in-store banking services when such services are 
desired and approved by the installation commander.
    1. Consistent with DoD Component delegation, the final decision to 
solicit for an in-store banking office rests with the installation 
commander.
    2. The DoD Component seeking in-store banking (e.g., in buildings 
operated by the Defense Commissary Agency, Military Exchange Services 
and MWR activities) shall draft the solicitation letter.
    3. Close coordination among all cognizant DoD organizations is 
essential throughout the selection process.
    B. Specific Procedures
    1. The need for in-store banking service may be identified from 
either:
    a. An unsolicited proposal from an on-base financial institution,
    b. A DoD Component's request, or
    c. An installation commander's request.
    2. The cognizant installation commander (or designee) is responsible 
for assessing the environment and authorizing the Bank/Credit Union 
Liaison Officer(s) to pursue the acquisition of in-store banking 
services. If no authorization is given, no further action is required.
    3. The cognizant installation commander shall determine whether a 
solicitation is required. (A solicitation shall be required whenever 
there are two or more financial institutions on a DoD installation.) If 
no solicitation is required, then the Bank/Credit Union Liaison Officer 
shall work directly with the on-base financial institution to obtain the 
requested services. Where there is

[[Page 554]]

neither a banking office nor an on-base credit union, use the 
solicitation process outlined in Sec. 231.5(c) of this chapter, as 
supplemented by the provisions outlined in paragraph A, above.
    4. The solicitation letter shall identify the financial services 
being requested and classify these services as either mandatory or 
optional. In addition, the solicitation letter shall highlight any 
services that will be weighed as more important than others during the 
evaluation of the proposals. Any space consideration and terms of the 
proposed agreement also shall be identified in the letter.
    5. The installation commander (or designee) formally shall notify 
the selected financial institution and request that institution to 
coordinate with the proper activity to begin any construction, 
modifications or renovations necessary to open the in-store banking 
office. The cognizant facility management personnel shall begin the 
process of obtaining the necessary outgrant instruments. Concurrently, 
the requesting DoD Component representative and the financial 
institution representative shall draft the appropriate amendment to the 
operating agreement. The amendment should contain provisions regarding:
    a. The roles and responsibilities of all parties involved.
    b. The financial services to be provided, and
    c. The logistical support arrangements to include custodial services 
and security provisions. The amendment should be coordinated with the 
Bank/Credit Union Liaison Officer(s) prior to forwarding that document 
to the installation commander for signature. The amendment shall be 
signed by the installation commander (or designee) and the appropriate 
financial institution official with a copy furnished to the Secretary of 
the Military Department concerned (or designee) and the Director, DFAS 
(or designee).



Sec. Appendix C to Part 231--Sample Certificate of Compliance for Credit 
                    Unions Certificate of Compliance

    I, (name), Chairman of the Board of Directors or President of the 
(credit union), located at (place), certify that this credit union 
complies with the requirements of section 170 of the Federal Credit 
Union Act (12 U.S.C 1770), for the allotment of space in federal 
buildings without charge for rent or services. The provision of no-cost 
office space is limited to credit unions if at least 95 percent of the 
membership to be served by the allotment of space is composed of 
individuals who are, or who were at the time of admission into the 
credit union, military personnel or federal employees, or members of 
their families.

________________________________________________________________________
(Date)
________________________________________________________________________
(Name)
(Chairman of the Board of Directors or the President)

    Note: The Certificate of Compliance shall be written on credit union 
letterhead.



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



Sec.
232.1 Authority, purpose, and coverage.
232.2 Applicability; examples.
232.3 Definitions.
232.4 Terms of consumer credit extended to covered borrowers.
232.5 Identification of covered borrower.
232.6 Mandatory loan disclosures.
232.7 Preemption.
232.8 Limitations.
232.9 Penalties and remedies.
232.10 Administrative enforcement.
232.11 Servicemembers Civil Relief Act provisions unaffected.
232.12 Effective dates.
232.13 Compliance dates.

    Authority: 10 U.S.C. 987.

    Source: 80 FR 43606, July 22, 2015, unless otherwise noted.



Sec. 232.1  Authority, purpose, and coverage.

    (a) Authority. This part is issued by the Department of Defense to 
implement 10 U.S.C. 987.
    (b) Purpose. The purpose of this part is to impose limitations on 
the cost and terms of certain extensions of credit to Service members 
and their dependents, and to provide additional protections relating to 
such transactions in accordance with 10 U.S.C. 987.
    (c) Coverage. This part defines the types of transactions involving 
``consumer credit,'' a ``creditor,'' and a ``covered borrower'' that are 
subject to the regulation, consistent with the provisions of 10 U.S.C. 
987. In addition, this part:
    (1) Provides the maximum allowable amount of all charges, and the 
types of charges, that may be associated with a covered extension of 
consumer credit;
    (2) Requires a creditor to provide to a covered borrower a statement 
of the Military Annual Percentage Rate, or

[[Page 555]]

MAPR, before or at the time the borrower becomes obligated on the 
transaction or establishes an account for the consumer credit. The 
statement required by Sec. 232.6(a)(1) differs from and is in addition 
to the disclosures that must be provided to consumers under the Truth in 
Lending Act;
    (3) Provides for the method a creditor must use in calculating the 
MAPR; and
    (4) Contains such other criteria and limitations as the Secretary of 
Defense has determined appropriate, consistent with the provisions of 10 
U.S.C. 987.



Sec. 232.2  Applicability; examples.

    (a)(1) Applicability. This part applies to consumer credit extended 
by a creditor to a covered borrower, as those terms are defined in this 
part. Nothing in this part applies to a credit transaction or account 
relating to a consumer who is not a covered borrower at the time he or 
she becomes obligated on a credit transaction or establishes an account 
for credit. Nothing in this part applies to a credit transaction or 
account relating to a consumer (which otherwise would be consumer 
credit) when the consumer no longer is a covered borrower.
    (2) Examples--(i) Covered borrower. Consumer A is a member of the 
armed forces but not serving on active duty, and holds an account for 
closed-end credit with a financial institution. After establishing the 
closed-end credit account, Consumer A is ordered to serve on active 
duty, thereby becoming a covered borrower, and soon thereafter 
separately establishes an open-end line of credit for personal purposes 
(which is not subject to any exception or temporary exemption) with the 
financial institution. This part applies to the open-end line of credit, 
but not to the closed-end credit account.
    (ii) Not a covered borrower. Same facts as described in paragraph 
(a)(2)(i) of this section. One year after establishing the open-end line 
of credit, Consumer A ceases to serve on active duty. This part never 
did apply to the closed-end credit account, and because Consumer A no 
longer is a covered borrower, this part no longer applies to the open-
end line of credit.
    (b) Examples. The examples in this part are not exclusive. To the 
extent that an example in this part implicates a term or provision of 
Regulation Z (12 CFR part 1026), issued by the Consumer Financial 
Protection Bureau to implement the Truth in Lending Act, Regulation Z 
shall control the meaning of that term or provision.



Sec. 232.3  Definitions.

    As used in this part:
    (a) Affiliate means any person that controls, is controlled by, or 
is under common control with another person.
    (b) Billing cycle has the same meaning as ``billing cycle'' in 
Regulation Z.
    (c) Bureau means the Consumer Financial Protection Bureau.
    (d) Closed-end credit means consumer credit (but for the conditions 
applicable to consumer credit under this part) other than consumer 
credit that is ``open-end credit'' as that term is defined in Regulation 
Z.
    (e) Consumer means a natural person.
    (f)(1) Consumer credit means credit offered or extended to a covered 
borrower primarily for personal, family, or household purposes, and that 
is:
    (i) Subject to a finance charge; or
    (ii) Payable by a written agreement in more than four installments.
    (2) Exceptions. Notwithstanding paragraph (f)(1) of this section, 
consumer credit does not mean:
    (i) A residential mortgage, which is any credit transaction secured 
by an interest in a dwelling, including a transaction to finance the 
purchase or initial construction of the dwelling, any refinance 
transaction, home equity loan or line of credit, or reverse mortgage;
    (ii) Any credit transaction that is expressly intended to finance 
the purchase of a motor vehicle when the credit is secured by the 
vehicle being purchased;
    (iii) Any credit transaction that is expressly intended to finance 
the purchase of personal property when the credit is secured by the 
property being purchased;
    (iv) Any credit transaction that is an exempt transaction for the 
purposes of Regulation Z (other than a transaction exempt under 12 CFR 
1026.29) or otherwise is not subject to disclosure requirements under 
Regulation Z; and

[[Page 556]]

    (v) Any credit transaction or account for credit for which a 
creditor determines that a consumer is not a covered borrower by using a 
method and by complying with the recordkeeping requirement set forth in 
Sec. 232.5(b).
    (g)(1) Covered borrower means a consumer who, at the time the 
consumer becomes obligated on a consumer credit transaction or 
establishes an account for consumer credit, is a covered member (as 
defined in paragraph (g)(2) of this section) or a dependent (as defined 
in paragraph (g)(3) of this section) of a covered member.
    (2) The term ``covered member'' means a member of the armed forces 
who is serving on--
    (i) Active duty pursuant to title 10, title 14, or title 32, United 
States Code, under a call or order that does not specify a period of 30 
days or fewer; or
    (ii) Active Guard and Reserve duty, as that term is defined in 10 
U.S.C. 101(d)(6).
    (3) The term ``dependent'' with respect to a covered member means a 
person described in subparagraph (A), (D), (E), or (I) of 10 U.S.C. 
1072(2).
    (4) Notwithstanding paragraph (g)(1) of this section, covered 
borrower does not mean a consumer who (though a covered borrower at the 
time he or she became obligated on a consumer credit transaction or 
established an account for consumer credit) no longer is a covered 
member (as defined in paragraph (g)(2) of this section) or a dependent 
(as defined in paragraph (g)(2) of this section) of a covered member.
    (h) Credit means the right granted to a consumer by a creditor to 
defer payment of debt or to incur debt and defer its payment.
    (i) Creditor, except as provided in Sec. 232.8(a), (f), and (g), 
means a person who is:
    (1) Engaged in the business of extending consumer credit; or
    (2) An assignee of a person described in paragraph (i)(1) of this 
section with respect to any consumer credit extended.
    (3) For the purposes of this definition, a creditor is engaged in 
the business of extending consumer credit if the creditor considered by 
itself and together with its affiliates meets the transaction standard 
for a ``creditor'' under Regulation Z with respect to extensions of 
consumer credit to covered borrowers.
    (j) Department means the Department of Defense.
    (k) Dwelling means a residential structure that contains one to four 
units, whether or not the structure is attached to real property. The 
term includes an individual condominium unit, cooperative unit, mobile 
home, and manufactured home.
    (l) Electronic fund transfer has the same meaning as in the 
regulation issued by the Bureau to implement the Electronic Fund 
Transfer Act, as amended from time to time (12 CFR part 1005).
    (m) Federal credit union has the same meaning as ``Federal credit 
union'' in the Federal Credit Union Act (12 U.S.C. 1752(1)).
    (n) Finance charge has the same meaning as ``finance charge'' in 
Regulation Z.
    (o) Insured depository institution has the same meaning as ``insured 
depository institution'' in the Federal Deposit Insurance Act (12 U.S.C. 
1813(c)).
    (p) Military annual percentage rate (MAPR). The MAPR is the cost of 
the consumer credit expressed as an annual rate, and shall be calculated 
in accordance with Sec. 232.4(c).
    (q) Open-end credit means consumer credit that (but for the 
conditions applicable to consumer credit under this part) is ``open-end 
credit'' under Regulation Z.
    (r) Person means a natural person or organization, including any 
corporation, partnership, proprietorship, association, cooperative, 
estate, trust, or government unit.
    (s) Regulation Z means any rules, or interpretations thereof, issued 
by the Bureau to implement the Truth in Lending Act, as amended from 
time to time, including any interpretation or approval issued by an 
official or employee duly authorized by the Bureau to issue such 
interpretations or approvals. However, for any provision of this part 
requiring a creditor to comply with Regulation Z, a creditor who is 
subject to Regulation Z (12 CFR part 226) issued by the Board of 
Governors of the Federal Reserve System must continue to comply with 12 
CFR part

[[Page 557]]

226. Words that are not defined in this part have the same meanings 
given to them in Regulation Z (12 CFR part 1026) issued by the Bureau, 
as amended from time to time, including any interpretation thereof by 
the Bureau or an official or employee of the Bureau duly authorized by 
the Bureau to issue such interpretations. Words that are not defined in 
this part or Regulation Z, or any interpretation thereof, have the 
meanings given to them by State or Federal law.
    (t) Short-term, small amount loan means a closed-end loan that is--
    (1) Subject to and made in accordance with a Federal law (other than 
10 U.S.C. 987) that expressly limits the rate of interest that a Federal 
credit union or an insured depository institution may charge on an 
extension of credit, provided that the limitation set forth in that law 
is comparable to a limitation of an annual percentage rate of interest 
of 36 percent; and
    (2) Made in accordance with the requirements, terms, and conditions 
of a rule, prescribed by the appropriate Federal regulatory agency (or 
jointly by such agencies), that implements the Federal law described in 
paragraph (t)(1) of this section, provided further that such law or rule 
contains--
    (i) A fixed numerical limit on the maximum maturity term, which term 
shall not exceed 9 months; and
    (ii) A fixed numerical limit on any application fee that may be 
charged to a consumer who applies for such closed-end loan.



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

    (a) General conditions. A creditor who extends consumer credit to a 
covered borrower may not require the covered borrower to pay an MAPR for 
the credit with respect to such extension of credit, except as:
    (1) Agreed to under the terms of the credit agreement or promissory 
note;
    (2) Authorized by applicable State or Federal law; and
    (3) Not specifically prohibited by this part.
    (b) Limit on cost of consumer credit. A creditor may not impose an 
MAPR greater than 36 percent in connection with an extension of consumer 
credit that is closed-end credit or in any billing cycle for open-end 
credit.
    (c) Calculation of the MAPR.--(1) Charges included in the MAPR. The 
charges for the MAPR shall include, as applicable to the extension of 
consumer credit:
    (i) Any credit insurance premium or fee, any charge for single 
premium credit insurance, any fee for a debt cancellation contract, or 
any fee for a debt suspension agreement;
    (ii) Any fee for a credit-related ancillary product sold in 
connection with the credit transaction for closed-end credit or an 
account for open-end credit; and
    (iii) Except for a bona fide fee (other than a periodic rate) which 
may be excluded under paragraph (d) of this section:
    (A) Finance charges associated with the consumer credit;
    (B) Any application fee charged to a covered borrower who applies 
for consumer credit, other than an application fee charged by a Federal 
credit union or an insured depository institution when making a short-
term, small amount loan, provided that the application fee is charged to 
the covered borrower not more than once in any rolling 12-month period; 
and
    (C) Any fee imposed for participation in any plan or arrangement for 
consumer credit, subject to paragraph (c)(2)(ii)(B) of this section.
    (iv) Certain exclusions of Regulation Z inapplicable. Any charge set 
forth in paragraphs (c)(1)(i) through (iii) of this section shall be 
included in the calculation of the MAPR even if that charge would be 
excluded from the finance charge under Regulation Z.
    (2) Computing the MAPR--(i) Closed-end credit. For closed-end 
credit, the MAPR shall be calculated following the rules for calculating 
and disclosing the ``Annual Percentage Rate (APR)'' for credit 
transactions under Regulation Z based on the charges set forth in 
paragraph (c)(1) of this section.
    (ii) Open-end credit--(A) In general. Except as provided in 
paragraph (c)(2)(ii)(B) of this section, for open-end credit, the MAPR 
shall be calculated following the rules for calculating the effective 
annual percentage rate for a billing cycle as set forth in Sec. 
1026.14(c)

[[Page 558]]

and (d) of Regulation Z (as if a creditor must comply with that section) 
based on the charges set forth in paragraph (c)(1) of this section. 
Notwithstanding Sec. 1026.14(c) and (d) of Regulation Z, the amount of 
charges related to opening, renewing, or continuing an account must be 
included in the calculation of the MAPR to the extent those charges are 
set forth in paragraph (c)(1) of this section.
    (B) No balance during a billing cycle. For open-end credit, if the 
MAPR cannot be calculated in a billing cycle because there is no balance 
in the billing cycle, a creditor may not impose any fee or charge during 
that billing cycle, except that the creditor may impose a fee for 
participation in any plan or arrangement for that open-end credit so 
long as the participation fee does not exceed $100 per annum, regardless 
of the billing cycle in which the participation fee is imposed; 
provided, however, that the $100-per annum limitation on the amount of 
the participation fee does not apply to a bona fide participation fee 
imposed in accordance with paragraph (d) of this section.
    (d) Bona fide fee charged to a credit card account--(1) In general. 
For consumer credit extended in a credit card account under an open-end 
(not home-secured) consumer credit plan, a bona fide fee, other than a 
periodic rate, is not a charge required to be included in the MAPR 
pursuant to paragraph (c)(1) of this section. The exclusion provided for 
any bona fide fee under this paragraph (d) applies only to the extent 
that the charge by the creditor is a bona fide fee, and must be 
reasonable for that type of fee.
    (2) Ineligible items. The exclusion for bona fide fees in paragraph 
(d)(1) of this section does not apply to--
    (i) Any credit insurance premium or fee, including any charge for 
single premium credit insurance, any fee for a debt cancellation 
contract, or any fee for a debt suspension agreement; or
    (ii) Any fee for a credit-related ancillary product sold in 
connection with the credit transaction for closed-end credit or an 
account for open-end credit.
    (3) Standards relating to bona fide fees --(i) Like-kind fees. To 
assess whether a bona fide fee is reasonable under paragraph (d)(1) of 
this section, the fee must be compared to fees typically imposed by 
other creditors for the same or a substantially similar product or 
service. For example, when assessing a bona fide cash advance fee, that 
fee must be compared to fees charged by other creditors for transactions 
in which consumers receive extensions of credit in the form of cash or 
its equivalent. Conversely, when assessing a foreign transaction fee, 
that fee may not be compared to a cash advance fee because the foreign 
transaction fee involves the service of exchanging the consumer's 
currency (e.g., a reserve currency) for the local currency demanded by a 
merchant for a good or service, and does not involve the provision of 
cash to the consumer.
    (ii) Safe harbor. A bona fide fee is reasonable under paragraph 
(d)(1) of this section if the amount of the fee is less than or equal to 
an average amount of a fee for the same or a substantially similar 
product or service charged by 5 or more creditors each of whose U.S. 
credit cards in force is at least $3 billion in an outstanding balance 
(or at least $3 billion in loans on U.S. credit card accounts initially 
extended by the creditor) at any time during the 3-year period preceding 
the time such average is computed.
    (iii) Reasonable fee. A bona fide fee that is higher than an average 
amount, as calculated under paragraph (d)(3)(ii) of this section, also 
may be reasonable under paragraph (d)(1) of this section depending on 
other factors relating to the credit card account. A bona fide fee 
charged by a creditor is not unreasonable solely because other creditors 
do not charge a fee for the same or a substantially similar product or 
service.
    (iv) Indicia of reasonableness for a participation fee. An amount of 
a bona fide fee for participation in a credit card account may be 
reasonable under paragraph (d)(1) of this section if that amount 
reasonably corresponds to the credit limit in effect or credit made 
available when the fee is imposed, to the services offered under the 
credit card account, or to other factors relating to the credit card 
account. For example, even if other creditors typically charge $100 per 
annum for participation

[[Page 559]]

in credit card accounts, a $400 fee nevertheless may be reasonable if 
(relative to other accounts carrying participation fees) the credit made 
available to the covered borrower is significantly higher or additional 
services or other benefits are offered under that account.
    (4) Effect of charging fees on bona fide fees--(i) Bona fide fees 
treated separately from charges for credit insurance products or credit-
related ancillary products. If a creditor imposes a fee described in 
paragraph (c)(1) of this section and imposes a finance charge to a 
covered borrower, the total amount of the fee(s) and finance charge(s) 
shall be included in the MAPR pursuant to paragraph (c) of this section, 
and the imposition of any fee or finance charge described in paragraph 
(c)(1) of this section shall not affect whether another type of fee may 
be excluded as a bona fide fee under this paragraph (d).
    (ii) Effect of charges for non-bona fide fees. If a creditor imposes 
any fee (other than a periodic rate or a fee that must be included in 
the MAPR pursuant to paragraph (c)(1) of this section) that is not a 
bona fide fee and imposes a finance charge to a covered borrower, the 
total amount of those fees, including any bona fide fees, and other 
finance charges shall be included in the MAPR pursuant to paragraph (c) 
of this section.
    (iii) Examples. (A) In a credit card account under an open-end (not 
home-secured) consumer credit plan during a given billing cycle, 
Creditor A imposes on a covered borrower a fee for a debt cancellation 
product (as described in paragraph (c)(1)(i) of this section), a finance 
charge (as described in paragraph (c)(1)(iii)(A)), and a bona fide 
foreign transaction fee that qualifies for the exclusion under this 
paragraph (d). Only the fee for the debt cancellation product and the 
finance charge must be included when calculating the MAPR.
    (B) In a credit card account under an open-end (not home-secured) 
consumer credit plan during a given billing cycle, Creditor B imposes on 
a covered borrower a fee for a debt cancellation product (as described 
in paragraph (c)(1)(i) of this section), a finance charge (as described 
in paragraph (c)(1)(iii)(A)), a bona fide foreign transaction fee that 
qualifies for the exclusion under this paragraph (d), and a bona fide, 
but unreasonable cash advance fee. All of the fees--including the 
foreign transaction fee that otherwise would qualify for the exclusion 
under this paragraph (d)--and the finance charge must be included when 
calculating the MAPR.
    (5) Rule of construction. Nothing in paragraph (d)(1) of this 
section authorizes the imposition of fees or charges otherwise 
prohibited by this part or by other applicable State or Federal law.



Sec. 232.5  Optional identification of covered borrower.

    (a) No restriction on method for covered-borrower check. A creditor 
is permitted to apply its own method to assess whether a consumer is a 
covered borrower.
    (b) Safe harbor--(1) In general. A creditor may conclusively 
determine whether credit is offered or extended to a covered borrower, 
and thus may be subject to 10 U.S.C. 987 and the requirements of this 
part, by assessing the status of a consumer in accordance with this 
paragraph (b).
    (2) Methods to check status of consumer--(i) Department database--
(A) In general. To determine whether a consumer is a covered borrower, a 
creditor may verify the status of a consumer by using information 
relating to that consumer, if any, obtained directly or indirectly from 
the database maintained by the Department, available at https://
www.dmdc.osd.mil/ mla/welcome.xhtml. A search of the Department's 
database requires the entry of the consumer's last name, date of birth, 
and Social Security number.
    (B) Historic lookback prohibited. At any time after a consumer has 
entered into a transaction or established an account involving an 
extension of credit, a creditor (including an assignee) may not, 
directly or indirectly, obtain any information from any database 
maintained by the Department to ascertain whether a consumer had been a 
covered borrower as of the date of that transaction or as of the date 
that account was established.
    (ii) Consumer report from a nationwide consumer reporting agency. To 
determine whether a consumer is a covered borrower, a creditor may 
verify the

[[Page 560]]

status of a consumer by using a statement, code, or similar indicator 
describing that status, if any, contained in a consumer report obtained 
from a consumer reporting agency that compiles and maintains files on 
consumers on a nationwide basis, or a reseller of such a consumer report 
(as each of those terms is defined in the Fair Credit Reporting Act (15 
U.S.C. 1681a) and any implementing regulation (12 CFR part 1022)).
    (3) Determination and recordkeeping; one-time determination 
permitted. A creditor who makes a determination regarding the status of 
a consumer by using one or both of the methods set forth in paragraph 
(b)(2) of this section shall be deemed to be conclusive with respect to 
that transaction or account involving consumer credit between the 
creditor and that consumer, so long as that creditor timely creates and 
thereafter maintains a record of the information so obtained. A creditor 
may make the determination described in this paragraph (b), and keep the 
record of that information obtained at that time, solely at the time--
    (i) A consumer initiates the transaction or 30 days prior to that 
time;
    (ii) A consumer applies to establish the account or 30 days prior to 
that time; or
    (iii) The creditor develops or processes, with respect to a 
consumer, a firm offer of credit that (among the criteria used by the 
creditor for the offer) includes the status of the consumer as a covered 
borrower, so long as the consumer responds to that offer not later than 
60 days after the time that the creditor had provided that offer to the 
consumer. If the consumer responds to the creditor's offer later than 60 
days after the time that the creditor had provided that offer to the 
consumer, then the creditor may not rely upon its initial determination 
in developing or processing that offer, and, instead, may act on the 
consumer's response as if the consumer is initiating the transaction or 
applying to establish the account (as described in paragraph (b)(3)(i) 
or (ii) of this section).



Sec. 232.6  Mandatory loan disclosures.

    (a) Required information. With respect to any extension of consumer 
credit (including any consumer credit originated or extended through the 
internet) to a covered borrower, a creditor shall provide to the covered 
borrower the following information before or at the time the borrower 
becomes obligated on the transaction or establishes an account for the 
consumer credit:
    (1) A statement of the MAPR applicable to the extension of consumer 
credit;
    (2) Any disclosure required by Regulation Z, which shall be provided 
only in accordance with the requirements of Regulation Z that apply to 
that disclosure; and
    (3) A clear description of the payment obligation of the covered 
borrower, as applicable. A payment schedule (in the case of closed-end 
credit) or account-opening disclosure (in the case of open-end credit) 
provided pursuant to paragraph (a)(2) of this section satisfies this 
requirement.
    (b) One-time delivery; multiple creditors. (1) The information 
described in paragraphs (a)(1) and (a)(3) of this section are not 
required to be provided to a covered borrower more than once for the 
transaction or the account established for consumer credit with respect 
to that borrower.
    (2) Multiple creditors. If a transaction involves more than one 
creditor, then only one of those creditors must provide the disclosures 
in accordance with this section. The creditors may agree among 
themselves which creditor may provide the information described in 
paragraphs (a)(1) and (a)(3) of this section.
    (c) Statement of the MAPR--(1) In general. A creditor may satisfy 
the requirement of paragraph (a)(1) of this section by describing the 
charges the creditor may impose, in accordance with this part and 
subject to the terms and conditions of the agreement, relating to the 
consumer credit to calculate the MAPR. Paragraph (a)(1) of this section 
shall not be construed as requiring a creditor to describe the MAPR as a 
numerical value or to describe the total dollar amount of all charges in 
the MAPR that apply to the extension of consumer credit.

[[Page 561]]

    (2) Method of providing a statement regarding the MAPR. A creditor 
may include a statement of the MAPR applicable to the consumer credit in 
the agreement with the covered borrower involving the consumer credit 
transaction. Paragraph (a)(1) of this section shall not be construed as 
requiring a creditor to include a statement of the MAPR applicable to an 
extension of consumer credit in any advertisement relating to the 
credit.
    (3) Model statement. A statement substantially similar to the 
following statement may be used for the purpose of paragraph (a)(1) of 
this section: ``Federal law provides important protections to members of 
the Armed Forces and their dependents relating to extensions of consumer 
credit. In general, the cost of consumer credit to a member of the Armed 
Forces and his or her dependent may not exceed an annual percentage rate 
of 36 percent. This rate must include, as applicable to the credit 
transaction or account: The costs associated with credit insurance 
premiums; fees for ancillary products sold in connection with the credit 
transaction; any application fee charged (other than certain application 
fees for specified credit transactions or accounts); and any 
participation fee charged (other than certain participation fees for a 
credit card account).''
    (d) Methods of delivery--(1) Written disclosures. The creditor shall 
provide the information required by paragraphs (a)(1) and (3) of this 
section in writing in a form the covered borrower can keep.
    (2) Oral disclosures. (i) In general. The creditor also shall orally 
provide the information required by paragraphs (a)(1) and (3) of this 
section.
    (ii) Methods to provide oral disclosures. A creditor may satisfy the 
requirement in paragraph (d)(2)(i) of this section if the creditor 
provides--
    (A) The information to the covered borrower in person; or
    (B) A toll-free telephone number in order to deliver the oral 
disclosures to a covered borrower when the covered borrower contacts the 
creditor for this purpose.
    (iii) Toll-free telephone number on application or disclosure. If 
applicable, the toll-free telephone number must be included on--
    (A) A form the creditor directs the consumer to use to apply for the 
transaction or account involving consumer credit; or
    (B) A written disclosure the creditor provides to the covered 
borrower, pursuant to paragraph (d)(1) of this section.
    (e) When disclosures are required for refinancing or renewal of 
covered loan. The refinancing or renewal of consumer credit requires new 
disclosures under this section only when the transaction for that credit 
would be considered a new transaction that requires disclosures under 
Regulation Z.



Sec. 232.7  Preemption.

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



Sec. 232.8  Limitations.

    Title 10 U.S.C. 987 makes it unlawful for any creditor to extend 
consumer credit to a covered borrower with respect to which:
    (a) The creditor rolls over, renews, repays, refinances, or 
consolidates any

[[Page 562]]

consumer credit extended to the covered borrower by the same creditor 
with the proceeds of other consumer credit extended by that creditor to 
the same covered borrower. This paragraph shall not apply to a 
transaction when the same creditor extends consumer credit to a covered 
borrower to refinance or renew an extension of credit that was not 
covered by this paragraph because the consumer was not a covered 
borrower at the time of the original transaction. For the purposes of 
this paragraph, the term ``creditor'' means a person engaged in the 
business of extending consumer credit subject to applicable law to 
engage in deferred presentment transactions or similar payday loan 
transactions (as described in the relevant law), provided however, that 
the term does not include a person that is chartered or licensed under 
Federal or State law as a bank, savings association, or credit union.
    (b) The covered borrower is required to waive the covered borrower's 
right to legal recourse under any otherwise applicable provision of 
State or Federal law, including any provision of the Servicemembers 
Civil Relief Act (50 U.S.C. App. 501 et seq.).
    (c) The creditor requires the covered borrower to submit to 
arbitration or imposes other onerous legal notice provisions in the case 
of a dispute.
    (d) The creditor demands unreasonable notice from the covered 
borrower as a condition for legal action.
    (e) The creditor uses a check or other method of access to a 
deposit, savings, or other financial account maintained by the covered 
borrower, except that, in connection with a consumer credit transaction 
with an MAPR consistent with Sec. 232.4(b), the creditor may:
    (1) Require an electronic fund transfer to repay a consumer credit 
transaction, unless otherwise prohibited by law;
    (2) Require direct deposit of the consumer's salary as a condition 
of eligibility for consumer credit, unless otherwise prohibited by law; 
or
    (3) If not otherwise prohibited by applicable law, take a security 
interest in funds deposited after the extension of credit in an account 
established in connection with the consumer credit transaction.
    (f) The creditor uses the title of a vehicle as security for the 
obligation involving the consumer credit, provided however, that for the 
purposes of this paragraph, the term ``creditor'' does not include a 
person that is chartered or licensed under Federal or State law as a 
bank, savings association, or credit union.
    (g) The creditor requires as a condition for the extension of 
consumer credit that the covered borrower establish an allotment to 
repay the obligation. For the purposes of this paragraph only, the term 
``creditor'' shall not include a ``military welfare society,'' as 
defined in 10 U.S.C. 1033(b)(2), or a ``service relief society,'' as 
defined in 37 U.S.C. 1007(h)(4).
    (h) The covered borrower is prohibited from prepaying the consumer 
credit or is charged a penalty fee for prepaying all or part of the 
consumer credit.



Sec. 232.9  Penalties and remedies.

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

[[Page 563]]

covered borrower when the agreement was made.
    (e) Civil liability--(1) In general. A person who violates 10 U.S.C. 
987 as implemented by this part with respect to any person is civilly 
liable to such person for:
    (i) Any actual damage sustained as a result, but not less than $500 
for each violation;
    (ii) Appropriate punitive damages;
    (iii) Appropriate equitable or declaratory relief; and
    (iv) Any other relief provided by law.
    (2) Costs of the action. In any successful action to enforce the 
civil liability described in paragraph (e)(1) of this section, the 
person who violated 10 U.S.C. 987 as implemented by this part is also 
liable for the costs of the action, together with reasonable attorney 
fees as determined by the court.
    (3) Effect of finding of bad faith and harassment. In any successful 
action by a defendant under this section, if the court finds the action 
was brought in bad faith and for the purpose of harassment, the 
plaintiff is liable for the attorney fees of the defendant as determined 
by the court to be reasonable in relation to the work expended and costs 
incurred.
    (4) Defenses. A person may not be held liable for civil liability 
under paragraph (e) of this section if the person shows by a 
preponderance of evidence that the violation was not intentional and 
resulted from a bona fide error notwithstanding the maintenance of 
procedures reasonably adapted to avoid any such error. Examples of a 
bona fide error include clerical, calculation, computer malfunction and 
programming, and printing errors, except that an error of legal judgment 
with respect to a person's obligations under 10 U.S.C. 987 as 
implemented by this part is not a bona fide error.
    (5) Jurisdiction, venue, and statute of limitations. An action for 
civil liability under paragraph (e) of this section may be brought in 
any appropriate United States district court, without regard to the 
amount in controversy, or in any other court of competent jurisdiction, 
not later than the earlier of:
    (i) Two years after the date of discovery by the plaintiff of the 
violation that is the basis for such liability; or
    (ii) Five years after the date on which the violation that is the 
basis for such liability occurs.



Sec. 232.10  Administrative enforcement.

    The provisions of this part, other than Sec. 232.9(a), shall be 
enforced by the agencies specified in section 108 of the Truth in 
Lending Act (15 U.S.C. 1607) in the manner set forth in that section or 
under any other applicable authorities available to such agencies by 
law.



Sec. 232.11  Servicemembers Civil Relief Act protections unaffected.

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



Sec. 232.12  Effective dates.

    (a) In general. This regulation shall take effect October 1, 2015, 
except that, other than as provided in this section and in Sec. 
232.13(b)(1), nothing in this part shall apply to consumer credit that 
is extended to a covered borrower and consummated before October 3, 
2016.
    (b) Prior extensions of consumer credit. Consumer credit that is 
extended to a covered borrower and consummated any time between October 
1, 2007, and October 3, 2016, is subject to the definitions, conditions, 
and requirements of this part as were established by the Department and 
effective on October 1, 2007.
    (c) New extensions of consumer credit. Except as provided in 
paragraphs (d) and (e) of this section with respect to extensions of 
consumer credit under paragraph (b) of this section (and except as 
permitted by Sec. 232.13(b)(1)), the requirements of this part that are 
effective as of October 1, 2015, shall apply only to a consumer credit 
transaction or account for consumer credit consummated or established on 
or after October 3, 2016.
    (d) Provisions of 10 U.S.C. 987(d)(2). The amendments to 10 U.S.C. 
987(d)(2) enacted in section 661(a) of the National Defense 
Authorization Act for Fiscal Year 2013 (Pub. L. 112-239, 126 Stat. 
1785), as reflected in Sec. 232.7(b), took effect on January 2, 2014.

[[Page 564]]

    (e) Civil liability remedies. The provisions set forth in Sec. 
232.9(e) shall apply with respect to consumer credit extended on or 
after January 2, 2013.



Sec. 232.13  Compliance dates.

    (a) In general. Except as provided in paragraph (c) of this section, 
a creditor must comply with the requirements of this part, as may be 
applicable, with respect to a consumer credit transaction or account for 
consumer credit consummated or established on or after October 3, 2016, 
not later than that date.
    (b) Safe harbors for identifying a covered borrower--(1) New safe 
harbors. Section 232.5 shall apply October 3, 2016.
    (2) Prior safe harbor valid until general compliance date. The 
provisions relating to the identification of a covered borrower set 
forth in Sec. 232.5(a) of the regulation established by the Department 
and effective on October 1, 2007 (including the interpretation by the 
Department that provides an exception from the safe harbor for the 
creditor's knowledge that the applicant is a covered borrower) shall 
remain in effect until October 3, 2016.
    (c) Limited exemption for credit card account; reservation of 
authority--(1) In general. Notwithstanding Sec. 232.3(f)(1) and subject 
to paragraph (c)(2) of this section, until October 3, 2017, consumer 
credit does not mean credit extended in a credit card account under an 
open-end (not home-secured) consumer credit plan.
    (2) Authority to issue an order to extend exemption. The Secretary, 
or an official of the Department duly authorized by the Secretary, may, 
by order, extend the expiration of the exemption set forth in paragraph 
(c)(1) of this section, until a date not later than October 3, 2018.



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



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

    Authority: E.O. 12642; 10 U.S.C. 1566a; 52 U.S.C. 20506; 52 U.S.C. 
Ch. 203.

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



Sec. 233.1  Purpose.

    This part:
    (a) Establishes policy and assigns responsibilities for the FVAP in 
accordance with Executive Order 12642 and the Uniformed and Overseas 
Citizens Absentee Voting Act (UOCAVA), 52 U.S.C. Ch. 203.
    (b) Establishes policy and assigns responsibilities for the 
development and implementation of installation voter assistance (IVA) 
offices in accordance with 10 U.S.C. 1566a.
    (c) Establishes policy and assigns responsibilities for the 
development and implementation, jointly with each State, of procedures 
for persons to apply to register to vote at recruitment offices of the 
Military Services in accordance with 52 U.S.C. 20506.

[77 FR 57487, Sept. 18, 2012, as amended at 84 FR 59722, Nov. 6, 2019]



Sec. 233.2  Applicability.

    This part applies to:
    (a) The Office of the Secretary of Defense, the Military Departments 
(including the Coast Guard at all times, including when it is a Service 
in the Department of Homeland Security by agreement with that 
Department), the Office of the Chairman of the Joint Chiefs of Staff and 
the Joint Staff, the Combatant Commands, the Office of the Inspector 
General of the Department of Defense (IG DoD), the Defense Agencies, the 
DoD Field Activities, and all other organizational entities within the 
DoD (hereinafter referred to collectively as the ``DoD Components'').
    (b) The Commissioned Corps of the Public Health Service (PHS), under 
agreement with the Department of Health and Human Services, and the 
Commissioned Corps of the National Oceanic and Atmospheric 
Administration (NOAA), under agreement with the Department of Commerce, 
and the United States Maritime Administration (MARAD) under agreement 
with the Department of Transportation. The term ``uniformed services'' 
refers to the Army, the Navy, the Air Force, the Marine Corps, the Coast 
Guard, and

[[Page 565]]

their Reserve Components, as well as the Commissioned Corps of the PHS 
and the NOAA.
    (c) Other Federal Executive departments and agencies with employees 
assigned outside the United States that provide assistance to the FVAP 
under 52 U.S.C. 20301(c). Recommended procedures for these departments 
and agencies are contained in Sec. 233.6(c) of this part.
    (d) United States Postal Service pursuant to 52 U.S.C. 20304(b)(2) 
and (4).

[77 FR 57487, Sept. 18, 2012, as amended at 84 FR 59722, Nov. 6, 2019; 
85 FR 13047, Mar. 6, 2020]



Sec. 233.3  Definitions.

    Terms used in this part are defined in DoD Dictionary of Military 
Terms (available at http://www.jcs.mil/ Doctrine) and this section. 
These terms and their definitions are for the purpose of this part.
    Eligible voter. Any of the following:
    (1) Absent uniformed services voter:
    (i) A member of a uniformed service on active duty who, by reason of 
such active duty, is absent from the place of residence where the member 
is otherwise qualified to vote.
    (ii) A member of the merchant marine who, by reason of service in 
the merchant marine, is absent from the place of residence where the 
member is otherwise qualified to vote.
    (iii) A spouse or dependent of a member referred to in the first two 
sentences of this definition who, by reason of the active duty or 
service of the member, is absent from the place of residence where the 
spouse or dependent is otherwise qualified to vote.
    (2) Overseas voter:
    (i) An absent uniformed services voter who, by reason of active duty 
or service, is absent from the United States on the date of the election 
involved;
    (ii) A person who resides outside of the United States and is 
qualified to vote in the last place in which the person was domiciled 
before leaving the United States; or
    (iii) A person who resides outside of the United States and (but for 
such residence) would be qualified to vote in the last place in which 
the person was domiciled before leaving the United States.
    Federal office. The offices of President or Vice President; 
Presidential Elector; or of Senator or Representative in; or Delegate or 
Resident Commissioner to Congress.
    Installation voter assistance (IVA) offices. The office designated 
by the installation commander, pursuant to 10 U.S.C. 1556a, to provide 
voter assistance to military personnel, voting-age military dependents, 
Government employees, contractors, and other civilian U.S. citizens with 
access to the installation. IVA offices also serve as voter registration 
agencies pursuant to 52 U.S.C. 20506(a)(2).
    Installation voter assistance officer (IVAO). An individual 
responsible for voting assistance coordination at the installation 
level.
    Recruitment offices of the Military Services. Any office of a 
military service open to the public and engaged in the recruitment of 
persons for appointment or enlistment in an Active Component of the 
Military Services. This does not include Army National Guard and Air 
National Guard recruiting offices.
    State. A State of the United States, the District of Columbia, the 
Commonwealth of Puerto Rico, Guam, the Virgin Islands, and American 
Samoa.
    State election. Any non-Federal election held solely, or in part, 
for selecting, nominating, or electing any candidate for any State 
office, such as Governor, Lieutenant Governor, State Attorney General, 
or State Legislator, or on issues of Statewide interest.
    Uniformed services. The Army, Navy, Air Force, Marine Corps, Space 
Force, and Coast Guard, the commissioned corps of the Public Health 
Service, and the commissioned corps of the National Oceanic and 
Atmospheric Administration.
    Voter registration agency. An office designated pursuant to 52 
U.S.C. 20506 to perform voter registration activities. Pursuant to 52 
U.S.C. 20506(c), a recruitment office of the Military Services is 
considered to be a voter registration agency. All IVA offices are also 
designated as voter registration agencies pursuant to 52 U.S.C. 
20506(a)(2).

[[Page 566]]

    Voting assistance officer (VAO). An individual responsible for 
voting assistance.

[77 FR 57487, Sept. 18, 2012, as amended at 84 FR 59722, Nov. 6, 2019; 
86 FR 70748, Dec. 13, 2021]



Sec. 233.4  Policy.

    It is DoD policy that:
    (a) The FVAP shall ensure that eligible voters receive, pursuant to 
52 U.S.C. 20301(b)(5), information about registration and voting 
procedures and materials pertaining to scheduled elections, including 
dates, offices, constitutional amendments, and other ballot proposals.
    (b) The right of U.S. citizens to vote is a fundamental right that 
is afforded protection by the U.S. Constitution. Every eligible voter 
shall:
    (1) Be given an opportunity to register and vote in any election for 
which he or she is eligible.
    (2) Be able to vote in person or by absentee.
    (c) All persons assisting in the voting process shall take all 
necessary steps to prevent discrimination, fraud, intimidation or 
coercion, and unfair registration and voting assistance procedures. This 
includes, but is not limited to, preventing actions such as:
    (1) Using military authority to influence the vote of any other 
member of the uniformed services or to require any member to march to 
any polling place or place of voting as proscribed by 18 U.S.C. 592, 18 
U.S.C. 593, and 18 U.S.C. 609. This subsection does not, in any way, 
prohibit free discussion about political issues or candidates for public 
office as stated in 18 U.S.C. 609.
    (2) Polling any member of the uniformed services before or after he 
or she votes, as proscribed in 18 U.S.C. 596.
    (d) The FVAP shall conduct official surveys authorized by 52 U.S.C. 
20301 to report to the President and the Congress on the effectiveness 
of the assistance provided to eligible voters (including a separate 
statistical analysis of voter participation and a description of 
Federal-State cooperation).
    (e) DoD personnel involved in assisting in the voter registration or 
absentee voting process shall use the names of persons applying or 
declining to register to vote only for voter registration purposes and 
shall not release such information for any other purpose.
    (f) Military or civilian personnel employed in recruitment offices 
of the Military Services shall be subject to the restrictions outlined 
in Sec. 233.6(b) of this part.
    (g) An installation commander may permit non-partisan voter 
registration activities on an installation by State and county 
officials, or groups recognized in accordance with section 501(c)(19) of 
the Internal Revenue Code, subject to all applicable military 
installation rules and regulations governing such activities on military 
installations.

[77 FR 57487, Sept. 18, 2012, as amended at 84 FR 59722, Nov. 6, 2019]



Sec. 233.5  Responsibilities.

    (a) The Under Secretary of Defense for Personnel and Readiness 
(USD(P&R)) shall:
    (1) Execute the responsibilities of the Presidential designee in 
accordance with DoD Directive 5124.02 (available at https://
www.esd.whs.mil/ Portals/54/ Documents/DD/ issuances/dodd/512402p.pdf).
    (2) Administer the FVAP in accordance with Executive Order 12642, 10 
U.S.C. 1566a, 52 U.S.C. 20506; 52 U.S.C. Ch. 203.
    (3) Coordinate and implement actions that may be necessary to 
discharge Federal responsibilities assigned in DoD Directive 5124.02, 
Executive Order 12642, 10 U.S.C. 1566, 52 U.S.C. 20506; 52 U.S.C. Ch. 
203.
    (4) Develop policy and procedures to implement DoD responsibilities 
under 52 U.S.C. 20506 (also known as the ``National Voter Registration 
Act (NVRA)'').
    (5) Grant or deny any hardship exemption waivers submitted by a 
State pursuant to 52 U.S.C. 20302(g) (after consultation with the 
Attorney General's designee) and inform the State of the results of the 
waiver request.
    (b) The Heads of the DoD Components and the Uniformed Services shall 
disseminate voting information and assist eligible voters, as required, 
in their respective organization, following the procedures in Sec. 
233.6(b) of this part.

[77 FR 57487, Sept. 18, 2012, as amended at 84 FR 59722, Nov. 6, 2019]

[[Page 567]]



Sec. 233.6  Procedures.

    (a) FVAP Procedures. FVAP, shall:
    (1) Manage, coordinate, and perform the Presidential designee's 
responsibilities pursuant to 52 U.S.C. Ch. 203.
    (2) Encourage and assist States and other U.S. jurisdictions to 
adopt the mandatory and recommended provisions of 52 U.S.C. 20302 and 
ensure they are aware of the requirements of 52 U.S.C. Ch. 203.
    (3) Establish and maintain contact with State election officials, 
State legislators, and with other State and local government officials 
to improve the absentee voting process for the Uniformed and Overseas 
Citizens Absentee Voting Act (UOCAVA) citizens.
    (4) Obtain, from each State, current voter registration and absentee 
voting information and disseminate it to other Federal Executive 
departments, agencies, DoD Components, and voters qualified to vote, 
pursuant to 52 U.S.C. 20301(b)(5).
    (5) Establish and maintain a voting assistance program to assist all 
eligible voters as covered by 52 U.S.C. Ch. 203, and to assist those 
persons to vote.
    (6) Establish and maintain an FVAP Web site that provides:
    (i) Information to citizens on the voter registration and absentee 
voting process.
    (ii) Information on the means of electronic transmission of election 
materials allowed by each State.
    (iii) A method to assist citizens in the voter registration process 
and how to request an absentee ballot.
    (iv) A list of State contact information in accordance with 52 
U.S.C. 20302(e)(4).
    (v) The ability to print a Standard Form (SF) 186, ``Federal Write-
In Absentee Ballot,'' and a list of all candidates in a Federal 
election.
    (vi) A portal that hosts Service-specific information regarding 
voting assistance programs, including links to IVA offices; the contact 
information for voting assistance officers (installation, major command 
and commissioned units) within the DoD Component; procedures to order 
voting materials; and links to other Federal and State voting Web sites.
    (vii) Absentee ballot data reported under 52 U.S.C. 20301(b)(6) and 
(b)(11) and 52 U.S.C. 20308.
    (viii) Other information as deemed necessary by FVAP.
    (7) Survey U.S. citizens including, but not limited to, uniformed 
services and their dependents as well as overseas U.S. civilians covered 
by 52 U.S.C. Ch. 203, voting assistance officers (VAOs), and election 
officials to gather necessary statistical information and prepare the 
reports to the President and the Congress required by 52 U.S.C. 20301(6) 
and 52 U.S.C. 20308.
    (8) Prescribe the standard oath to be used with any document 
pursuant to 52 U.S.C. 20301(7).
    (9) Coordinate with the Military Postal Service Agency, as addressed 
in DoD 4525.6-M (available at http://www.dtic.mil/ whs/directives/
corres/ pdf/452506m.pdf), to implement measures to ensure a postmark or 
other proof of mailing date is provided on each absentee ballot 
collected at any overseas location or vessel at sea, and that voting 
materials are moved expeditiously to the maximum extent practicable by 
military postal authorities.
    (10) Establish procedures, in consultation with the Attorney 
General, regarding hardship exemption waivers submitted by a State 
pursuant to 52 U.S.C. 20302(g).
    (11) Prescribe the required voting program metrics to be used by the 
DoD Components and uniformed services to be used in evaluating their 
individual voting assistance programs, and report on compliance with 
those metrics. To the extent practicable, establish and maintain an 
online portal to collect and consolidate voting program metrics.
    (12) In coordination with the Services, develop multiple types of 
training materials for use by IVA offices, IVAOs, UVAOs, and recruiters 
to provide voter registration and absentee ballot assistance and at 
recruitment offices of the Military Services to provide voter 
registration assistance. Conduct voting assistance training during even-
numbered years worldwide.
    (13) Maintain multiple lines of support for use by uniformed 
services and overseas voters, personnel assigned to recruitment offices 
of the Military

[[Page 568]]

Services and State election officials to provide assistance outlined 
pursuant to 52 U.S.C. 20301.
    (b) DoD Component and Uniformed Services Procedures. The DoD 
Components and the uniformed services shall:
    (1) Establish IVA offices on each military installation and maintain 
an updated list of IVA offices, including location, address, hours of 
operation, phone number and email address, published on the Service 
voting assistance Web site. At the discretion of the installation 
commander, satellite offices may be established under the primary IVA 
office.
    (i) The IVA office will provide voter assistance to military 
personnel, their dependents, civilian Federal employees, and all 
qualified voters who have access to such installation offices. IVA 
offices shall also serve as voter registration agencies under 52 U.S.C. 
20506(a)(2).
    (ii) The IVA office shall be established within the installation 
headquarters organization reporting directly to the installation 
commander, even if geographically located in another office.
    (iii) The IVA office should be located in a well-advertised, fixed 
location, consistent throughout the Service, and should be physically 
co-located with an existing office that receives extensive visits by 
Service personnel, family members, and DoD civilians. The IVA office 
shall be staffed during the hours the installation office is open with 
trained personnel to provide direct assistance in registration and 
voting procedures, including the assistance required under 52 U.S.C. 
20506(a)(4).
    (iv) The IVA office shall:
    (A) Be included in the administrative in-processing and out-
processing activities required of reporting and detaching personnel.
    (B) Ensure that members of a uniformed service, their voting-age 
dependents, and overseas DoD civilians are provided proper voting 
assistance at the IVA office, including the opportunity to update their 
voter registration information through the submission of a revised SF 
76, ``Federal Post Card Application (FPCA)'' or National Mail Voter 
Registration Form.
    (C) Ensure that voting assistance is provided to all personnel, 
military and civilian, reporting for duty on the installation, detaching 
from duty, deploying, and returning from deployment of 6 months or 
longer.
    (1) SF 76s shall be used to notify local election officials of the 
change of mailing address for absentee ballot delivery purposes.
    (D) Provide written information on voter registration and absentee 
ballot procedures. This can be met by providing the applicant with the 
SF 76, SF 186, (if applicable), or the National Mail Voter Registration 
Form, the attached instructions for those forms, and the State-specific 
instructions from the Voting Assistance Guide (available at http://
www.fvap.gov) for absent uniformed services voters, voting-age dependent 
voters, and overseas civilians. Citizens may also be provided with all 
of the necessary resources including, but not limited to, access to a 
computer system connected to the Internet, a printer, and a scanner to 
use the FPCA wizard available at the FVAP Web site, www.fvap.gov.
    (1) SF 76 and SF 186 (if applicable) shall be provided to absent 
uniformed services personnel and their family members (within and 
outside of the United States) and to Federal civilian employees and 
other U.S. citizens who have access to an IVA office outside the United 
States.
    (2) The National Mail Voter Registration Form shall be provided to 
Federal civilian employees and other U.S. citizens who have access to 
the IVA office within the United States, and to uniformed services 
voters who currently reside in their voting districts.
    (E) Provide direct assistance to individuals in completing the forms 
necessary to register to vote, update their voter registration 
information, and request absentee ballots.
    (F) Collect from the voter and transmit the completed SF 76 or 
National Mail Voter Registration Form for the applicant, within 5 
calendar days, to the appropriate local election office.
    (2) To the greatest extent practicable, ensure voters who are 
eligible to cast absentee ballots on DoD facilities are able to do so in 
a private and independent manner.

[[Page 569]]

    (3) Ensure all personnel assigned to recruitment offices are 
informed of the policies in this part and are trained to provide voter 
registration assistance. Ensure the recruitment offices of the Military 
Services:
    (i) Provide each prospective enlistee with the National Mail Voter 
Registration Form, available at https://www.eac.gov/ voters/register-
and-vote -in-your-state/, and DD Form 2645, Voter Registration 
Information Form, available at http://www.esd.whs.mil/ Portals/54/ 
Documents/DD/ forms/dd/dd2645.pdf, unless the applicant, in writing, 
declines to register to vote.
    (ii) Distribute the National Mail Voter Registration Form to each 
eligible citizen and provide assistance in completing the form unless 
the applicant refuses such assistance.
    (iii) Provide each eligible citizen or prospective enlistee who does 
not decline to register to vote the same degree of assistance for the 
completion of the National Mail Voter Registration Form as is provided 
by the office for the completion of its own forms, e.g., the application 
for enlistment, unless the person refuses such assistance.
    (iv) Transmit all completed registration applications within 5 
calendar days to the appropriate State election officials.
    (v) Maintain statistical information and records on voter 
registration assistance provided by recruitment offices in the format 
prescribed by the FVAP, for a period of 2 years, in accordance with 52 
U.S.C. 20507(i).
    (4) Revise all voting assistance program instructions and procedures 
to incorporate the provisions of this part.
    (5) Establish a DoD Component-wide means to communicate effectively 
with and expeditiously disseminate voting information to Commanders, 
VAOs, and uniformed services and overseas DoD civilian members of the 
DoD Component and their voting age dependents. This communication effort 
should be coordinated with the FVAP.
    (c) Executive Department and Agency Procedures. (1) Federal 
Executive departments and agencies, including, but not limited to, the 
Department of State, the Department of Commerce, and the Department of 
Health and Human Services, shall enter into agreements with the 
Presidential designee to adopt regulations and procedures that conform 
to this part to the maximum extent practicable, consistent with their 
organizational missions. By doing so, the FVAP will be able to assist 
the Executive departments, agencies, and their voting constituencies to 
the maximum extent.
    (2) The head of each Government department, agency, or other entity 
shall distribute balloting materials and develop a non-partisan program 
of information and education for all employees and family members 
pursuant to 52 U.S.C. 20301(c).
    (i) The department or agency is responsible for providing voter 
assistance with assistance available from the FVAP.
    (ii) Each department or agency with employees or family members 
covered by 52 U.S.C. 20301 shall designate an individual to coordinate 
and administer a voting assistance program for the department or agency 
to include, where practicable, the responsibilities in this part. The 
name, mailing address, email address, and telephone number of this 
individual shall be provided to the FVAP.
    (iii) The Secretary of State shall designate a voting action officer 
at the Department of State headquarters to oversee the Department's 
program as well as a U.S. citizen at each U.S. embassy or consulate to 
assist, to the fullest extent practicable, other U.S. citizens residing 
outside of the United States who are eligible to vote. The Secretary of 
State shall provide annually, or as requested by the FVAP, estimates of 
the numbers of U.S. citizens currently residing in each country with an 
established embassy.
    (iv) Each embassy and consulate should have sufficient quantities of 
materials to include SF 76s, and SF 186s, needed by U.S. citizens to 
register and vote. Embassies and consulates will also inform and educate 
U.S. citizens regarding their right to register and vote, and will 
publicize voter assistance programs.
    (v) The Department of State's voting action officer shall coordinate 
with the FVAP, in the development and conduct of voting events, programs 
to inform and educate U.S. citizens outside of the

[[Page 570]]

United States, and provision of voting information and resources for 
assistance.
    (vi) Department of State and the Military Service voting action 
officers shall assist, as requested, installation, embassy and consulate 
VAOs with post-election surveys of U.S. civilians outside of the United 
States.

[77 FR 57487, Sept. 18, 2012, as amended at 84 FR 59722, Nov. 6, 2019; 
85 FR 13047, Mar. 6, 2020]



PART 234_CONDUCT ON THE PENTAGON RESERVATION--Table of Contents



Sec.
234.1 Definitions.
234.2 Applicability.
234.3 Admission to property.
234.4 Trespassing.
234.5 Compliance with official signs.
234.6 Interfering with agency functions.
234.7 Disorderly conduct.
234.8 Preservation of property.
234.9 Explosives.
234.10 Weapons.
234.11 Alcoholic beverages and controlled substances.
234.12 Restriction on animals.
234.13 Soliciting, vending, and debt collection.
234.14 Posting of materials.
234.15 Use of visual recording devices.
234.16 Gambling.
234.17 Vehicles and traffic safety.
234.18 Enforcement of parking regulations.
234.19 Penalties and effect on other laws.

    Authority: 10 U.S.C. 131 and 2674(c).

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



Sec. 234.1  Definitions.

    As used in this part.
    Authorized person. An employee or agent of the Pentagon Force 
Protection Agency, or any other Department of Defense employee or agent 
who has delegated authority to enforce the provisions of this part.
    Operator. A person who operates, drives, controls, otherwise has 
charge of, or is in actual physical control of a mechanical mode of 
transportation or any other mechanical equipment.
    Pentagon Reservation. Area of land and improvements thereon, located 
in Arlington, Virginia, on which the Pentagon Office Building, Federal 
Building Number 2, the Pentagon heating and sewage treatment plants, and 
other related facilities are located. Pursuant to 10 U.S.C. 674, the 
Pentagon Reservation also includes the area of land known as Raven Rock 
Mountain Complex (``RRMC''), located in Adams County, Pennsylvania, and 
Site ``C,'' which is located in Washington County, Maryland, and other 
related facilities. The Pentagon Reservation shall include all roadways, 
walkways, waterways, and all areas designated for the parking of 
vehicles.
    Permit. A written authorization to engage in uses or activities that 
are otherwise prohibited, restricted, or regulated.
    Possession. Exercising direct physical control or dominion, with or 
without ownership, over property.
    State law. The applicable and nonconflicting laws, statutes, 
regulations, ordinances, and codes of the state(s) and other political 
subdivision(s) within whose exterior boundaries the Pentagon Reservation 
or a portion thereof is located.
    Traffic. Pedestrians, ridden or herded animals, vehicles, and other 
conveyances, either singly or together, while using any road, path, 
street, or other thoroughfare for the purposes of travel.
    Vehicle. Any vehicle that is self-propelled or designed for self-
propulsion, any motorized vehicle, and any vehicle drawn by or designed 
to be drawn by a motor vehicle, including any device in, upon, or by 
which any person or property is or can be transported or drawn upon a 
highway, hallway, or pathway; to include any device moved by human or 
animal power, whether required to be licensed in any state or otherwise.
    Weapons. Any loaded or unloaded pistol, rifle, shotgun, or other 
device which is designed to, or may be readily converted to, expel a 
projectile by the ignition of a propellant, by compressed gas, or by 
spring power; any bow and arrow, crossbow, blowgun, spear gun, hand-
thrown spear, slingshot, irritant gas device, explosive device, or any 
other implement designed to discharge missiles; any other weapon, 
device, instrument, material, or substance, animate or inanimate that is 
used for or is readily capable of, causing death or serious bodily 
injury, including any weapon the possession of which is prohibited under 
the laws of the state in

[[Page 571]]

which the Pentagon Reservation or portion thereof is located; except 
that such term does not include a pocket knife with a blade of less than 
2\1/2\ inches in length.



Sec. 234.2  Applicability.

    The provisions of this part apply to all areas, lands, and waters on 
or adjoining the Pentagon Reservation and under the jurisdiction of the 
United States, and to all persons entering in or on the property. They 
supplement those penal provisions of Title 18, United States Code, 
relating to crimes and criminal procedure and those provisions of State 
law that are federal criminal offenses by virtue of the Assimilative 
Crimes Act, 18 U.S.C. 13.



Sec. 234.3  Admission to property.

    (a) Access to the Pentagon Reservation or facilities thereon shall 
be restricted in accordance with AI Number 30 \1\ and other applicable 
Department of Defense rules and regulations in order to ensure the 
orderly and secure conduct of Department of Defense business. Admission 
to facilities or restricted areas shall be limited to employees and 
other persons with proper authorization. Forward written requests for 
copies of the document to Washington Headquarters Services, Executive 
Services Division, Freedom of Information Division, 1155 Defense 
Pentagon, Washington, DC 20301-1155.
---------------------------------------------------------------------------

    \1\ Copies may be obtained at http://www.dtic.mil/ whs/directives/
corres/ ins2.html.
---------------------------------------------------------------------------

    (b) All persons entering or upon the Pentagon Reservation shall, 
when required and/or requested, display identification to authorized 
persons.
    (c) All packages, briefcases, and other containers brought into, on, 
or being removed from facilities or restricted areas on the Pentagon 
Reservation are subject to inspection and search by authorized persons. 
Persons entering on facilities or restricted areas who refuse to permit 
an inspection and search will be denied entry.
    (d) Any person or organization desiring to conduct activities 
anywhere on the Pentagon Reservation shall file an application for 
permit with the applicable Building Management Office or Installation 
Commander. Such application shall be made on a form provided by the 
Department of Defense and shall be submitted in the manner specified by 
the Department of Defense. Violation of the conditions of a permit 
issued in accordance with this section is prohibited and may result in 
the loss of access to the Pentagon Reservation.



Sec. 234.4  Trespassing.

    (a) Trespassing, entering, or remaining in or upon property not open 
to the public, except with the express invitation or consent of the 
person or persons having lawful control of the property, is prohibited. 
Failure to obey an order to leave under paragraph (b) of this section, 
or reentry upon property after being ordered to leave or not reenter 
under paragraph (b) of this section, is also prohibited.
    (b) Any person who violates a Department of Defense rule or 
regulation may be ordered to leave the Pentagon Reservation by an 
authorized person. A violator's reentry may also be prohibited.



Sec. 234.5  Compliance with official signs.

    Persons on the Pentagon Reservation shall at all times comply with 
official signs of a prohibitory, regulatory, or directory nature.



Sec. 234.6  Interfering with agency functions.

    The following are prohibited:
    (a) Interference. Threatening, resisting, intimidating, or 
intentionally interfering with a government employee or agent engaged in 
an official duty, or on account of the performance of an official duty.
    (b) Violation of a lawful order. Violating the lawful order of a 
government employee or agent authorized to maintain order and control 
public access and movement during fire fighting operations, search and 
rescue operations, law enforcement actions, and emergency operations 
that involve a threat to public safety or government resources, or other 
activities where the control of public movement and activities is 
necessary to maintain order and public health or safety.
    (c) False information. Knowingly giving a false or fictitious report 
or other false information:

[[Page 572]]

    (1) To an authorized person investigating an accident or violation 
of law or regulation, or
    (2) On an application for a permit.
    (d) False report. Knowingly giving a false report for the purpose of 
misleading a government employee or agent in the conduct of official 
duties, or making a false report that causes a response by the 
government to a fictitious event.



Sec. 234.7  Disorderly conduct.

    A person commits disorderly conduct when, with intent to cause 
public alarm, nuisance, jeopardy, or violence, or knowingly or 
recklessly creating a risk thereof, such person commits any of the 
following prohibited acts:
    (a) Engages in fighting or threatening, or in violent behavior.
    (b) Uses language, an utterance, or gesture, or engages in a display 
or act that is obscene, physically threatening or menacing, or done in a 
manner that is likely to inflict injury or incite an immediate breach of 
the peace.
    (c) Makes noise that is unreasonable, considering the nature and 
purpose of the actor's conduct, location, time of day or night, and 
other factors that would govern the conduct of a reasonably prudent 
person under the circumstances.
    (d) Creates or maintains a hazardous or physically offensive 
condition.
    (e) Impedes or threatens the security of persons or property, or 
disrupts the performance of official duties by Department of Defense 
employees, or obstructs the use of areas such as entrances, foyers, 
lobbies, corridors, concourses, offices, elevators, stairways, roadways, 
driveways, walkways, or parking lots.



Sec. 234.8  Preservation of property.

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



Sec. 234.9  Explosives.

    (a) Using, possessing, storing, or transporting explosives, blasting 
agents or explosive materials is prohibited, except pursuant to the 
terms and conditions of a permit issued by the applicable Building 
Management Office or Installation Commander. When permitted, the use, 
possession, storage and transportation shall be in accordance with 
applicable Federal and State law.
    (b) Using or possessing fireworks or firecrackers is prohibited.
    (c) Violation of the conditions established by the applicable 
Building Management Office or Installation Commander or of the terms and 
conditions of a permit issued in accordance with this section is 
prohibited and may result in the loss of access to the Pentagon 
Reservation.



Sec. 234.10  Weapons.

    (a) Except as otherwise authorized under this section, the following 
are prohibited:
    (1) Possessing a weapon.
    (2) Carrying a weapon.
    (3) Using a weapon.
    (b) This section does not apply to any agency or Department of 
Defense component that has received prior written approval from the 
Pentagon Force Protection Agency or the Installation Commander to carry, 
transport, or use a weapon in support of a security, law enforcement, or 
other lawful purpose while on the Pentagon Reservation.



Sec. 234.11  Alcoholic beverages and controlled substances.

    (a) Alcoholic beverages. The consumption of alcoholic beverages or 
the possession of an open container of an alcoholic beverage within the 
Pentagon Reservation is prohibited unless authorized by the Director, 
Washington Headquarters Services, or his designee, the Installation 
Commander, or the Heads of the Military Departments, or their designees. 
Written notice of such authorizations shall be provided to the Pentagon 
Force Protection Agency.
    (b) Controlled substances. The following are prohibited:
    (1) The delivery of a controlled substance, except when distribution 
is made by a licensed physician or pharmacist in accordance with 
applicable law. For the purposes of this paragraph, delivery means the 
actual, attempted, or constructive transfer of a controlled substance.

[[Page 573]]

    (2) The possession of a controlled substance, unless such substance 
was obtained by the possessor directly from, or pursuant to a valid 
prescription or order by, a licensed physician or pharmacist, or as 
otherwise allowed by Federal or State law.
    (c) Presence on the Pentagon Reservation when under the influence of 
alcohol, a drug, a controlled substance, or any combination thereof, to 
a degree that may endanger oneself or another person, or damage 
property, is prohibited.



Sec. 234.12  Restriction on animals.

    Animals, except guide dogs for persons with disabilities, shall not 
be brought upon the Pentagon Reservation for other than official 
purposes.



Sec. 234.13  Soliciting, vending, and debt collection.

    Commercial or political soliciting, vending of all kinds, displaying 
or distributing commercial advertising, collecting private debts or 
soliciting alms upon the Pentagon Reservation is prohibited. This does 
not apply to:
    (a) National or local drives for funds for welfare, health, or other 
purposes as authorized by 5 CFR parts 110 and 950, Solicitation of 
Federal Civilian and Uniformed Services Personnel for Contributions to 
Private Voluntary Organizations, issued by the U.S. Office of Personnel 
Management under Executive Order 12353, 3 CFR, 1982 Comp., p. 139, as 
amended.
    (b) Personal notices posted on authorized bulletin boards, and in 
compliance with building rules governing the use of such authorized 
bulletin boards, advertising to sell or rent property of Pentagon 
Reservation employees or their immediate families.
    (c) Solicitation of labor organization membership or dues authorized 
by the Department of Defense under the Civil Service Reform Act of 1978.
    (d) Licensees, or their agents and employees, with respect to space 
licensed for their use.
    (e) Solicitations conducted by organizations composed of civilian 
employees of the Department of Defense or members of the uniformed 
services among their own members for organizational support or for the 
benefit of welfare funds for their members, after compliance with the 
requirements of Sec. 234.3(d).



Sec. 234.14  Posting of materials.

    Posting or affixing materials, such as pamphlets, handbills, or 
fliers on the Pentagon Reservation is prohibited except as provided by 
Sec. 234.13(b) or when conducted as part of activities approved by the 
applicable Building Management Office or Installation Commander under 
Sec. 234.3(d).



Sec. 234.15  Use of visual recording devices.

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



Sec. 234.16  Gambling.

    Gambling in any form, or the operation of gambling devices, is 
prohibited. This prohibition shall not apply to the vending or exchange 
of chances by licensed blind operators of vending facilities for any 
lottery set forth in a State law and authorized by the provisions of the 
Randolph-Sheppard Act (20 U.S.C. 107, et seq.).



Sec. 234.17  Vehicles and traffic safety.

    (a) In general. Unless specifically addressed by regulations in this 
part, traffic and the use of vehicles within the Pentagon Reservation 
are governed by State law. Violating a provision of State law is 
prohibited.
    (b) Open container of an alcoholic beverage. (1) Each person within 
a vehicle is responsible for complying with the provisions of this 
section that pertain to carrying an open container. The operator of a 
vehicle is the person responsible for complying with the provisions

[[Page 574]]

of this section that pertain to the storage of an open container.
    (2) Carrying or storing a bottle, can, or other receptacle 
containing an alcoholic beverage that is open or has been opened, or 
whose seal is broken, or the contents of which have been partially 
removed, within a vehicle on the Pentagon Reservation is prohibited.
    (3) This section does not apply to:
    (i) An open container stored in the trunk of a vehicle or, if a 
vehicle is not equipped with a trunk, an open container stored in some 
other portion of the vehicle designed for the storage of luggage and not 
normally occupied by or readily accessible to the operator or 
passengers; or
    (ii) An open container stored in the living quarters of a motor home 
or camper.
    (4) For the purpose of paragraph (a)(3)(i) of this section, a 
utility compartment or glove compartment is deemed to be readily 
accessible to the operator and passengers of a vehicle.
    (c) Operating under the influence of alcohol, drugs, or controlled 
substances. (1) Operating or being in actual physical control of a 
vehicle is prohibited while:
    (i) Under the influence of alcohol, a drug or drugs, a controlled 
substance or controlled substances, or any combination thereof, to a 
degree that renders the operator incapable of safe operation; or
    (ii) The alcohol concentration in the operator's blood or breath is 
0.08 grams or more of alcohol per 100 milliliters of blood or 0.08 grams 
or more of alcohol per 210 liters of breath. Provided, however, that if 
State law that applies to operating a vehicle while under the influence 
of alcohol establishes more restrictive limits of alcohol concentration 
in the operator's blood or breath, those limits supersede the limits 
specified in this paragraph.
    (2) The provisions of paragraph (c)(1) of this section shall also 
apply to an operator who is or has been legally entitled to use alcohol 
or another drug.
    (3) Tests.
    (i) At the request or direction of an authorized person who has 
probable cause to believe that an operator of a vehicle within the 
Pentagon Reservation has violated a provision of paragraph (c)(1) of 
this section, the operator shall submit to one or more tests of the 
blood, breath, saliva, or urine for the purpose of determining blood 
alcohol, drug, and controlled substance content.
    (ii) Refusal by an operator to submit to a test is prohibited and 
may result in detention and citation by an authorized person. Proof of 
refusal may be admissible in any related judicial proceeding.
    (iii) Any test or tests for the presence of alcohol, drugs, and 
controlled substances shall be determined by and administered at the 
direction of an authorized person.
    (iv) Any test shall be conducted by using accepted scientific 
methods and equipment of proven accuracy and reliability operated by 
personnel certified in its use.
    (4) Presumptive levels.
    (i) The results of chemical or other quantitative tests are intended 
to supplement the elements of probable cause used as the basis for the 
arrest of an operator charged with a violation of this section. If the 
alcohol concentration in the operator's blood or breath at the time of 
the testing is less than the alcohol concentration specified in 
paragraph (c)(1)(ii) of this section, this fact does not give rise to 
any presumption that the operator is or is not under the influence of 
alcohol.
    (ii) The provisions of paragraphs (c)(3) and (c)(4)(i) of this 
section are not intended to limit the introduction of any other 
competent evidence bearing upon the question of whether the operator, at 
the time of the alleged violation, was under the influence of alcohol, a 
drug or drugs, or a controlled substance or controlled substances, or 
any combination thereof.



Sec. 234.18  Enforcement of parking regulations.

    Parking regulations for the Pentagon Reservation shall be enforced 
in accordance with the Pentagon Reservation Parking Program and State 
law; violating such provisions is prohibited. A vehicle parked in any 
location without authorization, or parked contrary to the directions of 
posted signs or markings, shall be subject to removal at the owner's 
risk and expense, in addition to any penalties imposed. The

[[Page 575]]

Department of Defense assumes no responsibility for the payment of any 
fees or costs related to such removal which may be charged to the owner 
of the vehicle by the towing organization. This section may be 
supplemented from time to time with the approval of the Director, 
Washington Headquarters Services, or his designee, or the Installation 
Commander, by the issuance and posting of such parking directives as may 
be required, and when so issued and posted such directive shall have the 
same force and effect as if made a part hereof.



Sec. 234.19  Penalties and effect on other laws.

    (a) Whoever shall be found guilty of willfully violating any rule or 
regulation enumerated in this part is subject to the penalties imposed 
by Federal law for the commission of a Class B misdemeanor offense.
    (b) Whoever violates any rule or regulation enumerated in this part 
is liable to the United States for a civil penalty of not more than 
$1,000.
    (c) Nothing in this part shall be construed to abrogate any other 
Federal laws.



PART 236_DEPARTMENT OF DEFENSE (DoD)_DEFENSE INDUSTRIAL BASE (DIB)
CYBER SECURITY (CS) ACTIVITIES--Table of Contents



Sec.
236.1 Purpose.
236.2 Definitions.
236.3 Policy.
236.4 Mandatory cyber incident reporting procedures.
236.5 DoD's DIB CS program.
236.6 General provisions of DoD's DIB CS program.
236.7 DoD's DIB CS program requirements.

    Authority: 10 U.S.C. 391, 393, and 2224; 44 U.S.C. 3506 and 3544; 50 
U.S.C. 3330.

    Source: 80 FR 59584, Oct. 2, 2015, unless otherwise noted.



Sec. 236.1  Purpose.

    Cyber threats to contractor unclassified information systems 
represent an unacceptable risk of compromise of DoD information and pose 
an imminent threat to U.S. national security and economic security 
interests. This part requires all DoD contractors to rapidly report 
cyber incidents involving covered defense information on their covered 
contractor information systems or cyber incidents affecting the 
contractor's ability to provide operationally critical support. The part 
also permits eligible DIB participants to participate in the voluntary 
DIB CS program to share cyber threat information and cybersecurity best 
practices with DIB CS participants. The DIB CS program enhances and 
supplements DIB participants' capabilities to safeguard DoD information 
that resides on, or transits, DIB unclassified information systems.

[80 FR 59584, Oct. 2, 2015, as amended at 81 FR 68317, Oct. 4, 2016]



Sec. 236.2  Definitions.

    As used in this part:
    Access to media means provision of media, or access to media 
physically or remotely to DoD personnel, as determined by the 
contractor.
    Cleared defense contractor (CDC) means a private entity granted 
clearance by DoD to access, receive, or store classified information for 
the purpose of bidding for a contract or conducting activities in 
support of any program of DoD.
    Compromise means disclosure of information to unauthorized persons, 
or a violation of the security policy of a system, in which unauthorized 
intentional or unintentional disclosure, modification, destruction, or 
loss of an object, or the copying of information to unauthorized media 
may have occurred.
    Contractor means an individual or organization outside the U.S. 
Government who has accepted any type of agreement or order to provide 
research, supplies, or services to DoD, including prime contractors and 
subcontractors.
    Contractor attributional/proprietary information means information 
that identifies the contractor(s), whether directly or indirectly, by 
the grouping of information that can be traced back to the contractor(s) 
(e.g., program description, facility locations), personally identifiable 
information, as well as trade secrets, commercial or financial 
information, or other commercially

[[Page 576]]

sensitive information that is not customarily shared outside of the 
company.
    Controlled Technical Information means technical information with 
military or space application that is subject to controls on the access, 
use, reproduction, modification, performance, display, release, 
disclosure, or dissemination. Controlled technical information would 
meet the criteria, if disseminated, for distribution statements B 
through F using the criteria set forth in DoD Instruction 5230.24, 
``Distribution Statements of Technical Documents,'' available at http://
www.dtic.mil/ whs/directives/corres/ pdf/523024p.pdf. The term does not 
include information that is lawfully publicly available without 
restrictions.
    Covered contractor information system means an unclassified 
information system that is owned or operated by or for a contractor and 
that processes, stores, or transmits covered defense information.
    Covered defense information means unclassified controlled technical 
information or other information (as described in the Controlled 
Unclassified Information (CUI) Registry at http://www.archives.gov/cui/ 
registry/ category-list.html) that requires safeguarding or 
dissemination controls pursuant to and consistent with law, regulations, 
and Government wide policies, and is:
    (1) Marked or otherwise identified in an agreement and provided to 
the contractor by or on behalf of the DoD in support of the performance 
of the agreement; or
    (2) Collected, developed, received, transmitted, used, or stored by 
or on behalf of the contractor in support of the performance of the 
agreement.
    Cyber incident means actions taken through the use of computer 
networks that result in a compromise or an actual or potentially adverse 
effect on an information system and/or the information residing therein.
    Cyber incident damage assessment means a managed, coordinated 
process to determine the effect on defense programs, defense scientific 
and research projects, or defense warfighting capabilities resulting 
from compromise of a contractor's unclassified computer system or 
network.
    Defense Industrial Base (DIB) means the Department of Defense, 
Government, and private sector worldwide industrial complex with 
capabilities to perform research and development, design, produce, and 
maintain military weapon systems, subsystems, components, or parts to 
satisfy military requirements.
    DIB participant means a contractor that has met all of the 
eligibility requirements to participate in the voluntary DIB CS program 
as set forth in this part (see Sec. 236.7).
    Forensic analysis means the practice of gathering, retaining, and 
analyzing computer-related data for investigative purposes in a manner 
that maintains the integrity of the data.
    Government furnished information (GFI) means information provided by 
the Government under the voluntary DIB CS program including but not 
limited to cyber threat information and cybersecurity practices.
    Information means any communication or representation of knowledge 
such as facts, data, or opinions in any medium or form, including 
textual, numerical, graphic, cartographic, narrative, or audiovisual.
    Information system means a discrete set of information resources 
organized for the collection, processing, maintenance, use, sharing, 
dissemination, or disposition of information.
    Malicious software means software or firmware intended to perform an 
unauthorized process that will have adverse impact on the 
confidentiality, integrity, or availability of an information system. 
This definition includes a virus, worm, Trojan horse, or other code-
based entity that infects a host, as well as spyware and some forms of 
adware.
    Media means physical devices or writing surfaces, including but not 
limited to, magnetic tapes, optical disks, magnetic disks, large-scale 
integration memory chips, and printouts onto which covered defense 
information is recorded, stored, or printed within a covered contractor 
information system.
    Operationally critical support means supplies or services designated 
by the

[[Page 577]]

Government as critical for airlift, sealift, intermodal transportation 
services, or logistical support that is essential to the mobilization, 
deployment, or sustainment of the Armed Forces in a contingency 
operation.
    Rapid(ly) report(ing) means within 72 hours of discovery of any 
cyber incident.
    Technical Information means technical data or computer software, as 
those terms are defined in DFARS 252.227-7013, ``Rights in Technical 
Data--Noncommercial Items'' (48 CFR 252.227-7013). Examples of technical 
information include research and engineering data, engineering drawings 
and associated lists, specifications, standards, process sheets, 
manuals, technical reports, technical orders, catalog-item 
identifications, data sets, studies and analyses and related 
information, and computer software executable code and source code.
    Threat means any circumstance or event with the potential to 
adversely impact organization operations (including mission, functions, 
image, or reputation), organization assets, individuals, other 
organizations, or the Nation through an information system via 
unauthorized access, destruction, disclosure, modification of 
information and/or denial of service.
    U.S. based means provisioned, maintained, or operated within the 
physical boundaries of the United States.
    U.S. citizen means a person born in the United States or 
naturalized.

[80 FR 59584, Oct. 2, 2015, as amended at 81 FR 68317, Oct. 4, 2016]

    Editorial Note: At 81 FR 68317, Oct. 4, 2016, Sec. 236.2 was 
amended; however, a portion of the amendment could not be incorporated 
due to inaccurate amendatory instruction.



Sec. 236.3  Policy.

    It is DoD policy to:
    (a) Establish a comprehensive approach to require safeguarding of 
covered defense information on covered contractor information systems 
and to require contractor cyber incident reporting.
    (b) Increase Government stakeholder and DIB situational awareness of 
the extent and severity of cyber threats to DoD information by 
implementing a streamlined approval process that enables the contractor 
to elect, in conjunction with the cyber incident reporting and sharing, 
the extent to which DoD may share cyber threat information obtained from 
a contractor (or derived from information obtained from the company) 
under this part that is not information created by or for DoD with:
    (1) DIB CS program to enhance their cybersecurity posture to better 
protect covered defense information on covered contractor information 
systems, or a contractor's ability to provide operationally critical 
support; and
    (2) Other Government stakeholders for lawful Government activities, 
including cybersecurity for the protection of Government information or 
information systems, law enforcement and counterintelligence (LE/CI), 
and other lawful national security activities directed against the cyber 
threat (e.g., those attempting to infiltrate and compromise information 
on the contractor information systems).
    (c) Modify eligibility criteria to permit greater participation in 
the voluntary DIB CS program.

[80 FR 59584, Oct. 2, 2015, as amended at 81 FR 68317, Oct. 4, 2016]



Sec. 236.4  Mandatory cyber incident reporting procedures.

    (a) Applicability and order of precedence. The requirement to report 
cyber incidents shall be included in all forms of agreements (e.g., 
contracts, grants, cooperative agreements, other transaction agreements, 
technology investment agreements, and any other type of legal instrument 
or agreement) between the Government and the contractor in which covered 
defense information resides on, or transits covered contractor 
information systems or under which a contractor provides operationally 
critical support, and shall be identical to those requirements provided 
in this section (e.g., by incorporating the requirements of this section 
by reference, or by expressly setting forth such reporting requirements 
consistent with those of this section). Any inconsistency between the 
relevant terms and condition of any such agreement and this section 
shall be resolved in favor of the terms

[[Page 578]]

and conditions of the agreement, provided and to the extent that such 
terms and conditions are authorized to have been included in the 
agreement in accordance with applicable laws and regulations.
    (b) Cyber incident reporting requirement. When a contractor 
discovers a cyber incident that affects a covered contractor information 
system or the covered defense information residing therein or that 
affects the contractor's ability to provide operationally critical 
support, the contractor shall:
    (1) Conduct a review for evidence of compromise of covered defense 
information including, but not limited to, identifying compromised 
computers, servers, specific data, and user accounts. This review shall 
also include analyzing covered contractor information system(s) that 
were part of the cyber incident, as well as other information systems on 
the contractor's network(s), that may have been accessed as a result of 
the incident in order to identify compromised covered defense 
information, or that affect the contractor's ability to provide 
operationally critical support; and
    (2) Rapidly report cyber incidents to DoD at http://dibnet.dod.mil.
    (c) Cyber incident report. The cyber incident report shall be 
treated as information created by or for DoD and shall include, at a 
minimum, the required elements at http://dibnet.dod.mil.
    (d) Subcontractor reporting procedures. Contractors shall flow down 
the cyber incident reporting requirements of this part to their 
subcontractors that are providing operationally critical support or for 
which subcontract performance will involve a covered contractor 
information system. Contractors shall require subcontractors to rapidly 
report cyber incidents directly to DoD at http://dibnet.dod.mil and the 
prime contractor. This includes providing the incident report number, 
automatically assigned by DoD, to the prime contractor (or next higher-
tier subcontractor) as soon as practicable.
    (e) Medium assurance certificate requirement. In order to report 
cyber incidents in accordance with this part, the contractor or 
subcontractor shall have or acquire a DoD-approved medium assurance 
certificate to report cyber incidents. For information on obtaining a 
DoD-approved medium assurance certificate, see http://iase.disa.mil/ 
pki/ eca/Pages/ index.aspx.
    (f) If the contractor utilizes a third-party service provider (SP) 
for information system security services, the SP may report cyber 
incidents on behalf of the contractor.
    (g) Contractors are encouraged to report information to promote 
sharing of cyber threat indicators that they believe are valuable in 
alerting the Government and others, as appropriate in order to better 
counter threat actor activity. Cyber incidents that are not compromises 
of covered defense information or do not adversely affect the 
contractor's ability to perform operationally critical support may be of 
interest to the DIB and DoD for situational awareness purposes.
    (h) Malicious software. Malicious software discovered and isolated 
by the contractor will be submitted to the DoD Cyber Crime Center (DC3) 
for forensic analysis.
    (i) Media preservation and protection. When a contractor discovers a 
cyber incident has occurred, the contractor shall preserve and protect 
images of known affected information systems identified in paragraph (b) 
of this section and all relevant monitoring/packet capture data for at 
least 90 days from submission of the cyber incident report to allow DoD 
to request the media or decline interest.
    (j) Access to additional information or equipment necessary for 
forensics analysis. Upon request by DoD, the contractor shall provide 
DoD with access to additional information or equipment that is necessary 
to conduct a forensic analysis.
    (k) Cyber incident damage assessment activities. If DoD elects to 
conduct a damage assessment, DoD will request that the contractor 
provide all of the damage assessment information gathered in accordance 
with paragraph (e) of this section.
    (l) DoD safeguarding and use of contractor attributional/proprietary 
information. The Government shall protect against the unauthorized use 
or release of information obtained from the contractor (or derived from 
information obtained from the contractor) under

[[Page 579]]

this part that includes contractor attributional/proprietary 
information, including such information submitted in accordance with 
paragraph (b) of this section. To the maximum extent practicable, the 
contractor shall identify and mark attributional/proprietary 
information. In making an authorized release of such information, the 
Government will implement appropriate procedures to minimize the 
contractor attributional/proprietary information that is included in 
such authorized release, seeking to include only that information that 
is necessary for the authorized purpose(s) for which the information is 
being released.
    (m) Use and release of contractor attributional/proprietary 
information not created by or for DoD. Information that is obtained from 
the contractor (or derived from information obtained from the 
contractor) under this part that is not created by or for DoD is 
authorized to be released outside of DoD:
    (1) To entities with missions that may be affected by such 
information;
    (2) To entities that may be called upon to assist in the diagnosis, 
detection, or mitigation of cyber incidents;
    (3) To Government entities that conduct LE/CI investigations;
    (4) For national security purposes, including cyber situational 
awareness and defense purposes (including sharing non-attributional 
cyber threat information with DIB contractors participating in the DIB 
CS program authorized by this part); or
    (5) To a support services contractor (``recipient'') that is 
directly supporting Government activities related to this part and is 
bound by use and non-disclosure restrictions that include all of the 
following conditions:
    (i) The recipient shall access and use the information only for the 
purpose of furnishing advice or technical assistance directly to the 
Government in support of the Government's activities related to this 
part, and shall not be used for any other purpose;
    (ii) The recipient shall protect the information against 
unauthorized release or disclosure;
    (iii) The recipient shall ensure that its employees are subject to 
use and non-disclosure obligations consistent with this part prior to 
the employees being provided access to or use of the information;
    (iv) The third-party contractor that reported the cyber incident is 
a third-party beneficiary of the non-disclosure agreement between the 
Government and the recipient, as required by paragraph (m)(5)(iii) of 
this section;
    (v) That a breach of these obligations or restrictions may subject 
the recipient to:
    (A) Criminal, civil, administrative, and contractual actions in law 
and equity for penalties, damages, and other appropriate remedies by the 
United States; and
    (B) Civil actions for damages and other appropriate remedies by the 
third party that reported the incident, as a third party beneficiary of 
the non-disclosure agreement.
    (n) Use and release of contractor attributional/proprietary 
information created by or for DoD. Information that is obtained from the 
contractor (or derived from information obtained from the contractor) 
under this part that is created by or for DoD (including the information 
submitted pursuant to paragraph (b) of this section) is authorized to be 
used and released outside of DoD for purposes and activities authorized 
by this section, and for any other lawful Government purpose or 
activity, subject to all applicable statutory, regulatory, and policy 
based restrictions on the Government's use and release of such 
information.
    (o) Contractors shall conduct their respective activities under this 
part in accordance with applicable laws and regulations on the 
interception, monitoring, access, use, and disclosure of electronic 
communications and data.
    (p) Freedom of Information Act (FOIA). Agency records, which may 
include qualifying information received from non-federal entities, are 
subject to request under the Freedom of Information Act (5 U.S.C. 552) 
(FOIA), which is implemented in the DoD by DoD Directive 5400.07 and DoD 
Regulation 5400.7-R (see 32 CFR parts 285 and 286, respectively). 
Pursuant to established procedures and applicable regulations, the 
Government will protect sensitive nonpublic information reported under 
mandatory reporting requirements against unauthorized public disclosure

[[Page 580]]

by asserting applicable FOIA exemptions. The Government will inform the 
non-Government source or submitter (e.g., contractor or DIB participant 
of any such information that may be subject to release in response to a 
FOIA request), in order to permit the source or submitter to support the 
withholding of such information or pursue any other available legal 
remedies.
    (q) Other reporting requirements. Cyber incident reporting required 
by this part in no way abrogates the contractor's responsibility for 
other cyber incident reporting pertaining to its unclassified 
information systems under other clauses that may apply to its 
contract(s), or as a result of other applicable U.S. Government 
statutory or regulatory requirements, including Federal or DoD 
requirements for Controlled Unclassified Information as established by 
Executive Order 13556, as well as regulations and guidance established 
pursuant thereto.

[80 FR 59584, Oct. 2, 2015, as amended at 81 FR 68317, Oct. 4, 2016]



Sec. 236.5  DoD's DIB CS program.

    (a) All contractors that are CDCs and meet the requirements set 
forth in Sec. 236.7 are eligible to join the voluntary DIB CS program 
as a DIB participant.
    (b) Under the voluntary activities of the DIB CS program, the 
Government and each DIB participant will execute a standardized 
agreement, referred to as a Framework Agreement (FA) to share, in a 
timely and secure manner, on a recurring basis, and to the greatest 
extent possible, cybersecurity information.
    (c) Each such FA between the Government and a DIB participant must 
comply with and implement the requirements of this part, and will 
include additional terms and conditions as necessary to effectively 
implement the voluntary information sharing activities described in this 
part with individual DIB participants.
    (d) DoD's DIB CS Program Office is the overall point of contact for 
the program. The DC3 managed DoD DIB Collaborative Information Sharing 
Environment (DCISE) is the operational focal point for cyber threat 
information sharing and incident reporting under the DIB CS program.
    (e) The Government will maintain a Web site or other internet-based 
capability to provide potential DIB participants with information about 
eligibility and participation in the program, to enable online 
application or registration for participation, and to support the 
execution of necessary agreements with the Government.
    (f) GFI. The Government shall share GFI with DIB participants or 
designated SP in accordance with this part.
    (g) Prior to receiving GFI from the Government, each DIB participant 
shall provide the requisite points of contact information, to include 
security clearance and citizenship information, for the designated 
personnel within their company (e.g., typically 3-10 company designated 
points of contact) in order to facilitate the DoD-DIB interaction in the 
DIB CS program. The Government will confirm the accuracy of the 
information provided as a condition of that point of contact being 
authorized to act on behalf of the DIB participant for this program.
    (h) GFI will be issued via both unclassified and classified means. 
DIB participant handling and safeguarding of classified information 
shall be in compliance with DoD 5220.22-M, ``National Industrial 
Security Program Operating Manual (NISPOM),'' available at http://
www.dss.mil/ documents/odaa/ nispom2006-5220.pdf. The Government shall 
specify transmission and distribution procedures for all GFI, and shall 
inform DIB participants of any revisions to previously specified 
transmission or procedures.
    (i) Except as authorized in this part or in writing by the 
Government, DIB participants may:
    (1) Use GFI only on U.S. based covered contractor information 
systems, or U.S. based networks or information systems used to provide 
operationally critical support; and
    (2) Share GFI only within their company or organization, on a need-
to-know basis, with distribution restricted to U.S. citizens.
    (j) In individual cases DIB participants may request, and the 
Government may authorize, disclosure and use of GFI under applicable 
terms and conditions when the DIB participant can

[[Page 581]]

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

[80 FR 59584, Oct. 2, 2015, as amended at 81 FR 68317, Oct. 4, 2016]



Sec. 236.6  General provisions of DoD's DIB CS program.

    (a) Confidentiality of information that is exchanged under the DIB 
CS program will be protected to the maximum extent authorized by law, 
regulation, and policy. DoD and DIB participants each bear 
responsibility for their own actions under the voluntary DIB CS program.
    (b) All DIB CS participants may participate in the Department of 
Homeland Security's Enhanced Cybersecurity Services (ECS) program 
(http://www.dhs.gov/ enhanced-cybersecurity -services).
    (c) Participation in the voluntary DIB CS program does not obligate 
the DIB participant to utilize the GFI in, or otherwise to implement any 
changes to, its information systems. Any action taken by the DIB 
participant based on the GFI or other participation in this program is 
taken on the DIB participant's own volition and at its own risk and 
expense.
    (d) A DIB participant's participation in the voluntary DIB CS 
program is not intended to create any unfair competitive advantage or 
disadvantage in DoD source selections or competitions, or to provide any 
other form of unfair preferential treatment, and shall not in any way be 
represented or interpreted as a Government endorsement or approval of 
the DIB participant, its information systems, or its products or 
services.
    (e) The DIB participant and the Government may each unilaterally 
limit or discontinue participation in the voluntary DIB CS program at 
any time.

[[Page 582]]

Termination shall not relieve the DIB participant or the Government from 
obligations to continue to protect against the unauthorized use or 
disclosure of GFI, attribution information, contractor proprietary 
information, third-party proprietary information, or any other 
information exchanged under this program, as required by law, 
regulation, contract, or the FA.
    (f) Upon termination of the FA, and/or change of Facility Security 
Clearance (FCL) status below Secret, GFI must be returned to the 
Government or destroyed pursuant to direction of, and at the discretion 
of, the Government.
    (g) Participation in these activities does not abrogate the 
Government's, or the DIB participants' rights or obligations regarding 
the handling, safeguarding, sharing, or reporting of information, or 
regarding any physical, personnel, or other security requirements, as 
required by law, regulation, policy, or a valid legal contractual 
obligation. However, participation in the voluntary activities of the 
DIB CS program does not eliminate the requirement for DIB participants 
to report cyber incidents in accordance with Sec. 236.4.

[80 FR 59584, Oct. 2, 2015, as amended at 81 FR 68317, Oct. 4, 2016]



Sec. 236.7  DoD's DIB CS program requirements.

    (a) To participate in the DIB CS program, a contractor must be a CDC 
and shall:
    (1) Have an existing active FCL to at least the Secret level granted 
under the NISPOM (DoD 5220.22-M); and
    (2) Execute the standardized FA with the Government (available 
during the application process), which implements the requirements set 
forth in Sec. Sec. 236.5 through 236.7, and allows the CDC to select 
their level of participation in the voluntary DIB CS program.
    (3) In order for participating CDCs to receive classified cyber 
threat information electronically, they must:
    (i) Have or acquire a Communication Security (COMSEC) account in 
accordance with the NISPOM Chapter 9, Section 4 (DoD 5220.22-M), which 
provides procedures and requirements for COMSEC activities; and
    (ii) Have or acquire approved safeguarding for at least Secret 
information, and continue to qualify under the NISPOM for retention of 
its FCL and approved safeguarding; and
    (iii) Obtain access to DoD's secure voice and data transmission 
systems supporting the voluntary DIB CS program.
    (b) [Reserved]

[80 FR 59584, Oct. 2, 2015, as amended at 81 FR 68317, Oct. 4, 2016]




PART 238_DoD ASSISTANCE TO NON-GOVERNMENT, ENTERTAINMENT-ORIENTED 
MEDIA PRODUCTIONS--Table of Contents



Sec.
238.1 Purpose.
238.2 Applicability.
238.3 Definitions.
238.4 Policy.
238.5 Responsibilities.
238.6 Procedures.

Appendix A to Part 238--Sample Production Assistance Agreement
Appendix B to Part 238--Sample Documentary Production Assistance 
          Agreement

    Authority: 10 U.S.C. 2264; 31 U.S.C. 9701.

    Source: 80 FR 47836, Aug. 10, 2015, unless otherwise noted.



Sec. 238.1  Purpose.

    This part establishes policy, assigns responsibilities, and 
prescribes procedures for DoD assistance to non-Government entertainment 
media productions such as feature motion pictures, episodic television 
programs, documentaries, and electronic games.



Sec. 238.2  Applicability.

    This part:
    (a) Applies to the Office of the Secretary of Defense, the Military 
Departments, the Office of the Chairman of the Joint Chiefs of Staff and 
the Joint Staff, the combatant commands, the Office of the Inspector 
General of the Department of Defense, the Defense Agencies, the DoD 
Field Activities, and all other organizational entities within the 
Department of Defense (referred to collectively in this part as the 
``DoD Components'').
    (b) Does not apply to productions that are intended to inform the 
public

[[Page 583]]

of fast-breaking or developing news stories.



Sec. 238.3  Definitions.

    Unless otherwise noted, this term and its definition are for the 
purposes of this part.
    Assistance (as in ``DoD Assistance to Non-Government, Entertainment-
Oriented Media Productions''). The variety of support that the DoD can 
provide. The assistance ranges from supplying technical advice during 
script development, to allowing access to military installations for 
production.



Sec. 238.4  Policy.

    It is DoD policy that:
    (a) DoD assistance may be provided to an entertainment media 
production, to include fictional portrayals, when cooperation of the 
producers with the Department of Defense benefits the Department of 
Defense, or when such cooperation would be in the best interest of the 
Nation based on whether the production:
    (1) Presents a reasonably realistic depiction of the Military 
Services and the Department of Defense, including Service members, 
civilian personnel, events, missions, assets, and policies;
    (2) Is informational and considered likely to contribute to public 
understanding of the Military Services and the Department of Defense; or
    (3) May benefit Military Service recruiting and retention programs.
    (b) DoD assistance to an entertainment-oriented media production 
will not deviate from established DoD safety and environmental 
standards, nor will it impair the operational readiness of the Military 
Services. Diversion of equipment, personnel, and material resources will 
be kept to a minimum.
    (c) The production company will reimburse the Government for any 
expenses incurred as a result of DoD assistance rendered in accordance 
with the procedures in this part.
    (d) Official activities of Service personnel in assisting the 
production; use of official DoD property, facilities, and material; and 
employment of Service members in an off-duty, non-official status will 
be in accordance with the procedures in this part.
    (e) Footage shot with DoD assistance and official DoD footage 
released for a specific production will not be reused for or sold to 
other productions without Department of Defense approval.



Sec. 238.5  Responsibilities.

    (a) The Assistant to the Secretary of Defense for Public Affairs 
(ATSD(PA)) will serve as the sole authority for approving DoD 
assistance, including DoD involvement in marketing and publicity, to 
non-Government entertainment-oriented media. The ATSD(PA) will make DoD 
commitments, in consultation with the Heads of the Military Components, 
only after:
    (1) The script, treatment, or narrative description is found to 
qualify in accordance with the general principles in Sec. 238.4(a).
    (2) The support requested is determined to be feasible.
    (3) For episodic television, motion pictures, and other 
nondocumentary entertainment media productions, the producer has an 
acceptable public exhibition agreement with a recognized exhibition 
entity (i.e., studio or network), and the capability to complete the 
production (i.e., completion bond or other industry-recognized guarantor 
of completion, such as the commitment of a major studio or other source 
of financial commitment). For documentaries, the producer has indicated 
a clear capability to complete the production.
    (b) The Heads of the Military Components will develop procedures for 
implementing this part and will ensure that the requirements of this 
part are met.



Sec. 238.6  Procedures.

    (a) General. (1) The producer will be required to sign a written 
Production Assistance Agreement (see appendices A and B of this part for 
sample documents), explaining the terms under which DoD's production 
assistance is provided, with the designee of the Assistant to the 
Secretary of Defense for Public Affairs, and may be required to post 
advance payment or a letter of credit issued by a recognized financial 
institution to cover the estimated costs before receiving DoD 
assistance.
    (2) Official activities of Service members in assisting the 
production must

[[Page 584]]

be within the scope of normal military activities. On-duty service 
members and DoD civilians are prohibited from serving as actors, such as 
by speaking filmmaker-invented, or scripted dialogue, unless approved in 
writing by the ATSD(PA) or his or her designee. With the exception of 
assigned project officer(s) and technical advisor(s), Service members 
and DoD civilians will not be assigned to perform functions outside the 
scope of their normal duties.
    (3) Official personnel services and DoD material will not be 
employed in such a manner as to compete directly with commercial and 
private enterprises. DoD assets may be provided when similar civilian 
assets are not reasonably available.
    (4) The production company may hire Service members in an off-duty, 
non-official status to perform as extras or actors in minor roles, etc., 
provided there is no conflict with any existing Service regulation. In 
such cases, contractual arrangements are solely between those 
individuals and the production company; however, payment should be 
consistent with current industry standards. The producer is responsible 
for resolving any disputes with unions governing the hiring of non-union 
actors and extras. Service members accepting such employment will comply 
with the standards of conduct in DoD Directive 5500.07, ``Standards of 
Conduct'' (available at http://www.dtic.mil/ whs/directives/corres/ pdf/
550007p.pdf). The Heads of the Components may assist the production 
company in publicizing the opportunity for employment and in identifying 
appropriate personnel.
    (5) The production company will restore all Government property and 
facilities used in the production to the same or better condition as 
when they were made available for the company's use. This includes 
cleaning the site and removing trash.
    (6) The DoD project officer, described in paragraph (b)(3) of this 
section, may make DoD motion and still media archival materials 
available when a production qualifies for assistance in accordance with 
the general principles in Sec. 238.4(a).
    (b) Specific procedures--(1) Script development and review. (i) 
Before a producer officially submits a project to the Office of the 
Assistant to the Secretary of Defense for Public Affairs (OATSD(PA)), 
the Military Components are authorized to assist entertainment-oriented 
media producers, scriptwriters, etc., in their efforts to develop a 
script that might ultimately qualify for DoD assistance. Such activities 
could include guidance, suggestions, answers to research queries for 
technical research, and interviews with technical experts. However, the 
Military Departments providing such assistance are required to 
coordinate with and update OATSD(PA) of the status of such projects. 
Military Components will refrain from making commitments and rendering 
official DoD opinions until first coordinating through appropriate 
channels to obtain OATSD(PA) concurrence in such actions.
    (ii) Production company officials requesting DoD assistance will 
submit a completed script (or a treatment or narrative description for 
documentaries), along with a list of desired support. If a definitive 
list is not available when the script is initially submitted, 
requirements should be stated in general terms at the outset. However, 
no DoD commitment will be made until the detailed list of support 
requested has been reviewed and deemed to be feasible.
    (iii) OATSD(PA) will coordinate the review of scripts, treatment, or 
narrative description submitted for production assistance consideration. 
The coordinated review will include each Military Service depicted in 
the script. Although no commitment for assisting in the production is 
implied, OATSD(PA) may provide, or authorize the Military Services to 
provide, further guidance and suggestions for changes that might resolve 
problems that would prevent DoD assistance.
    (2) Production assistance notification. Upon reviewing the 
recommendations of the Military Components concerned, the ATSD(PA) will 
determine whether a given production meets the DoD criteria for support 
and if the support requested is feasible. If both requirements are 
satisfied, the ATSD(PA) will

[[Page 585]]

notify in writing the production company concerned, advising it that the 
Department of Defense has approved DoD production assistance and 
identifying the DoD project officer tasked with representing the 
Department of Defense throughout the production process. On a case-by-
case basis, the ATSD(PA) may choose to delegate the responsibility of 
signing the Production Assistance Agreement on behalf of DoD to the 
designated DoD project officer or other DoD official responsible for 
coordinating production assistance. If so, this decision would be 
included in the notification letter. If production assistance is 
approved for only a portion of the proposed project, the written 
notification shall clearly describe the portion(s) approved. If 
assistance is not approved, ATSD(PA) or the ATSD(PA)'s designee will 
send a letter to the production company stating reasons for disapproval.
    (3) Role of the DoD project officer. (i) When production assistance 
has been approved, the Military Components will assign a project officer 
(commissioned, non-commissioned, or civilian) who will be designated by 
OATSD(PA) as the principal DoD liaison to the production company. The 
DoD project officer will at a minimum:
    (A) Act as liaison between the production company and the 
Secretaries of the Military Departments and maintain contact with 
OATSD(PA) through appropriate channels. In this regard, the project 
officer will serve as the central coordinator for billing the producer 
and monitoring payments to the Government. (See paragraph (d) of this 
section for billing procedures.)
    (B) Advise the production company on technical aspects and arrange 
for information necessary to ensure reasonably accurate and authentic 
portrayals of the Department of Defense.
    (C) Maintain liaison with units and commands providing assistance to 
ensure timely arrangements consistent with the approved support.
    (D) Coordinate with installations or commands that intend to provide 
support to the production to ensure that no material assistance is 
provided before a Production Assistance Agreement is signed by both DoD 
and the production company.
    (E) When DoD assistance to the production requires the production 
company to reimburse the Government for additional expenses, develop an 
estimate of expenses based on the assistance requested, and ensure that 
these are reflected in the Production Assistance Agreement.
    (F) Coordinate with each installation or command providing assets to 
the production to ensure the production company receives accurate and 
prompt statements of charges assessed by the Government and that the 
Government receives sufficient payment for any additional expenses 
incurred to support the production.
    (G) For project officers assigned to a documentary or a non-
documentary television series, maintain close liaison with the 
producer(s) and writers in developing story outlines. All story ideas 
considered for further development by the production company should be 
submitted to OATSD(PA) to provide the earliest opportunity for 
appraisal.
    (ii) When considered to be in the best interest of the Department of 
Defense, the assigned project officer may provide ``on-scene'' 
assistance to the production company. Military or civilian technical 
advisor(s) may also be required. In such cases:
    (A) Assignment will be at no additional cost to the Government. The 
production company will assume payment of such items as travel (air, 
rental car, reimbursement for fuel, etc.) and per diem (lodging, food 
and incidentals).
    (B) Assignment should be for the length of time required to meet 
preproduction requirements through completion of photography. When 
feasible, assignment may be extended to cover post-production stages and 
site clean-up.
    (iii) Additional project officer responsibilities, when considered 
to be in the best interest of the Department of Defense, will include:
    (A) Supervising the use of DoD equipment, facilities, and personnel.
    (B) Attending pertinent preproduction and production conferences, 
being available during rehearsals to provide technical advice, and being 
present during filming of all

[[Page 586]]

scenes pertinent to the Department of Defense.
    (C) Ensuring proper selection of locations, appropriate uniforms, 
awards and decorations, height and weight standards, grooming standards, 
insignia, and set dressing applicable to the military aspects of the 
production. This applies to active duty members as well as paid civilian 
actors.
    (D) Arranging for appropriate technical advisers to be present when 
highly specialized military technical expertise is required.
    (E) Ensuring that the production adheres to the agreed-upon script 
and list of support to be provided.
    (F) Authorizing minor deviations from the approved script or list of 
support to be provided, so long as such deviations are feasible, 
consistent with the safety standards, and in keeping with the approved 
story line. All other deviations shall be referred for approval to 
OATSD(PA) through appropriate channels.
    (G) In accordance with the Production Assistance Agreement, 
providing notice of non-compliance, and when necessary, suspending 
assistance when action by the production company is contrary to 
stipulations governing the project and suspension is in the best 
interest of the Department of Defense until the matter is resolved 
locally or by referral to OATSD(PA).
    (H) Attending the approval screening of the production, unless the 
Military Department concerned, OATSD(PA), and the production company 
mutually agree otherwise.
    (I) Determining whether the production company will need to obtain 
the written consent of DoD personnel who may be recorded, photographed, 
or filmed by the production company, including when the production 
company uses the personally identifying information (PII) of DoD 
personnel. The likeness of DoD personnel in any imagery is included in 
the meaning of PII. If the recording or imagery captures medical 
treatment being performed on DoD personnel, the project officer shall 
require the production company to gain written consent from such DoD 
personnel. In the case of DoD personnel who are deceased or 
incapacitated, the project officer shall require the production company 
to gain written consent from the next of kin of the deceased or 
incapacitated DoD personnel.
    (c) Production company procedures--(1) Review of productions. When 
DoD assistance has been provided to a non-documentary production, the 
production company must arrange for an official DoD screening in 
Washington, DC, or at another location agreeable to OATSD (PA), before 
the production is publicly exhibited. This review should be early, but 
at a stage in editing when changes can be accommodated, to allow the 
Department of Defense to confirm military sequences conform to the 
agreed upon script. For documentary productions, the production company 
will provide to the DoD project officer and the DoD designee(s) 
responsible for coordinating production assistance a digital videodisc 
(DVD) of military-themed photography and the roughly edited version of 
the production at a stage in editing when changes can be accommodated. 
In addition to confirming that the military sequences conform to the 
agreed upon script, treatment, or narrative, this review will also serve 
to preclude release or disclosure of sensitive, security-related, or 
classified information; and to ensure that the privacy of DoD personnel 
is not violated. Should DoD determine that material in the production 
compromises any of the preceding concerns, DoD will alert the production 
company of the material, and the production company will remove the 
material from the production.
    (2) Credit titles. The production company will use its best efforts 
to place a credit in the end titles immediately above the ``Special 
Thanks'' section (if any) that states ``Special Thanks to the United 
States Department of Defense,'' with no less than one clear line above 
and one clear line below such credit acknowledging the DoD assistance 
provided. Such acknowledgment(s) will be in keeping with industry 
customs and practices, and will be of the same size and font used for 
other similar credits in the end titles.

[[Page 587]]

    (3) Requests for promotional assistance. Pursuant to DoD Directive 
5122.05, ``Assistant Secretary of Defense for Public Affairs'' 
(available at http://www.dtic.mil/ whs/directives/corres/ pdf/
512205p.pdf), the ATSD(PA) is the final authority for military 
participation in public events, including participation in promotional 
events for entertainment media productions. The production company will 
forward requests for promotional assistance to OATSD(PA) in sufficient 
detail to permit a complete evaluation.
    (4) Publicity photos and promotional material. The production 
company will provide DoD with copies of all promotional and marketing 
materials (e.g., electronic press kits, one-sheets, and television 
advertisements) for internal information and historical purposes in 
documenting DoD assistance to the production.
    (5) Copies of completed production. The production company will 
provide, in a format to be specified in the Production Assistance 
Agreement, copies of the completed production to DoD for briefings and 
for historical purposes.
    (d) Billing procedures. Pursuant to 10 U.S.C. 2264 and 31 U.S.C. 
9701, production companies will reimburse the Government for additional 
expenses incurred as a result of DoD assistance.
    (1) Each installation or Military Component will provide the 
production company with individual statements of charges assessed for 
providing assets to assist in the production. Unless agreed otherwise, 
statements should be presented to the production company within 45 days 
from the last day of the month in which filming and/or photography is 
completed to ensure prompt and complete accounting of charges for DoD 
assistance.
    (2) The production company will be billed for only those expenses 
that are considered to be additional expenses to the Government. In 
accordance with paragraph (b)(3)(i)(A) of this section, the assigned 
project officer will serve as the central coordinator for submitting 
statements to the producer and monitoring receipt of payment to the 
Government. Items for which the costs may be reimbursed to the 
Government include:
    (i) Petroleum, oil, and lubricants for equipment used.
    (ii) Depot maintenance for equipment used.
    (iii) Cost incurred in diverting or moving equipment.
    (iv) Lost or damaged equipment.
    (v) Expendable supplies.
    (vi) Travel and per diem (unless reimbursed under 31 U.S.C. 1353).
    (vii) Civilian overtime.
    (viii) Commercial power or other utilities for facilities kept open 
beyond normal duty hours or when the production company's consumption of 
utilities is significant, based on average usage rates.
    (ix) Should the production company not comply with requested clean-
up required by production, project officer will require production 
company to hire a cleaning company. Should the production company not 
provide for the necessary clean-up, it shall reimburse the Government 
for any additional expenses incurred by the Government in performing 
such clean-up.
    (3) The production company will be required to reimburse the 
Government for all flying hours related to production assistance, 
including takeoffs, landings, and ferrying aircraft from military 
locations to filming sites, except when such missions coincide with and 
can be considered legitimate operational and training missions. The 
production company will be required to reimburse the Government for all 
steaming days related to production assistance, including all costs 
(tugs, harbor pilots and port costs) required to move ships from 
military locations to filming sites, except when such missions coincide 
with and can be considered legitimate operational and training missions. 
These reimbursements will be calculated at the current DoD User Rates.
    (4) In cases where provision of support provides a significant 
benefit to DoD, the production company will not be required to reimburse 
the Government for military or civilian manpower (except for civilian 
overtime) when such personnel are officially assigned to assist in the 
production. However, this limitation does not apply to Reserve Component 
personnel assigned in an official capacity, because such

[[Page 588]]

members are called to active duty at additional cost to the Government 
to perform the assigned mission. Reimbursement for Reserve Component 
personnel in an official capacity will be at composite standard pay and 
reimbursement rates for military personnel published annually by the 
Under Secretary of Defense (Comptroller)/DoD Chief Financial Officer.
    (5) Normal training and operational missions that would occur 
regardless of DoD assistance to a particular production are not 
considered to be chargeable to the production company.
    (6) Beyond actual operational expenses, imputed rental charges 
ordinarily will not be levied for use of structures or equipment.
    (7) The production company will provide proof of adequate industry 
standard liability insurance, naming DoD as an additional insured entity 
prior to the commencement of production involving DoD. The production 
company will maintain, at its sole expense, insurance in such amounts 
and under such terms and conditions as may be required by DoD to protect 
its interests in the property involved.

[[Page 589]]



   Sec. Appendix A to Part 238--Sample Production Assistance Agreement
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   Sec. Appendix B to Part 238--Sample Production Assistance Agreement
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PART 239_HOMEOWNERS ASSISTANCE PROGRAM_APPLICATION PROCESSING
--Table of Contents



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

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

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



Sec. 239.1  Purpose.

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



Sec. 239.2  Applicability and scope.

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



Sec. 239.3  Policy.

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



Sec. 239.4  Definitions.

    (a) Armed Forces. The Army, Navy, Air Force, Marine Corps, and Coast 
Guard (see section 101(a) of title 10, U.S.C., as stipulated in section 
1001(p) of Public Law 111-5).
    (b) Closing costs. Sellers' closing costs typically include: loan 
payoff fees; the real estate commission; title insurance; all or part of 
transfer taxes and escrow fees, if there are any; attorney's fees where 
applicable; and other fees set by local custom. HAP pays sellers' 
closing costs that are customary for the region where the home is 
located.

[[Page 601]]

Applicant's realtor or lender can provide the applicant with the normal 
closing costs for his/her region. HAP will reimburse the seller for 
limited contributions made to the buyer's portion of closing costs, 
including appraisal cost and realtor fees.
    (c) Deficiency judgment. Judicial recognition of personal liability 
under applicable state law against a Service member whose property was 
foreclosed on or who otherwise passed title to another person for a 
primary residence through a sale that realized less than the full 
outstanding mortgage balance.
    (d) Deployment. Performing service in a training exercise or 
operation at a location or under circumstances that make it impossible 
or infeasible for the member to spend off-duty time in the housing in 
which the member resides when on garrison or installation duty at the 
member's permanent duty station, or home port, as the case may be.
    (e) Eligible mortgage. A mortgage secured by the primary residence 
that was incurred to acquire or improve the primary residence. For a 
mortgage refinancing the original mortgage(s) or for a mortgage incurred 
subsequent to purchasing the property, funds from the refinanced or 
subsequent mortgages must be traced to the purchase of the primary 
residence or have been used to improve the primary residence. Home 
improvements that are documented (even if not financed through a 
subsequent mortgage or line of credit) may be added to the purchase 
price of the primary residence. Funds from a refinanced or subsequent 
mortgage that were used for other purposes are not eligible and may not 
be considered. Benefits will be calculated using the amount of $729,750 
for primary residences with an eligible mortgage that exceeds $729,750. 
The total benefit payable (excluding allowable closing costs) shall not 
exceed $729,750. The ARRA expanded HAP calculates PFMV as the purchase 
price plus improvements. Improvements are identified in the Internal 
Revenue Publication 523 (http://www.irs.gov/ publications/p523/ 
ar02.html) which outlines items considered home improvements and 
distinguishes improvements from repairs and maintenance.
    (f) Forward deployment. Performing service in an area where the 
Secretary of Defense or the Secretary's designee has determined that 
Service members are subject to hostile fire or imminent danger under 
section 310(a)(2) of title 37, U.S.C.
    (g) Primary residence. The one- or two-family dwelling from which 
employees or members regularly commute (or commuted) to their primary 
place of duty. Under Sec. 239.6(a) and (b) of this part, the relevant 
property for which compensation might be offered must have been the 
primary residence of the member or civilian employee at the time of the 
relevant wound, injury, or illness. The first field grade officer (or 
civilian equivalent) in the member or employee's chain of command may 
certify primary residence status.
    (h) Prior Fair Market Value (PFMV). The PFMV is the purchase price 
of the primary residence. Benefits will be calculated using the amount 
of $729,750 as the PFMV for primary residences with a PFMV that exceeds 
$729,750.
    (i) Purchase. Purchase occurs when the applicant enters into a 
contract for the purchase of the property. In the absence of a contract 
for purchase, the purchase occurs when the applicant closes on the 
property.
    (j) Reasonable effort to sell. Applicant's primary residence must be 
listed, actively marketed, and available for purchase for a minimum of 
120 days. With regard to marketing, applicant must demonstrate that the 
asking price was within the current market value of the home as 
determined by the HQUSACE automated value model (AVM) for no less than 
30 days. It is the applicant's responsibility to explain marketing 
efforts by detailing how the asking price was gradually reduced until it 
reached the true current fair market value (e.g., maintaining a log 
containing date and asking price recorded over period of time indicating 
number of visits by prospective buyers and offers to purchase). If an 
applicant is unable to sell the primary residence, the HQUSACE will 
determine whether efforts to sell were reasonable.
    (k) Permanent Change of Station (PCS). The assignment or transfer of 
a member to a different permanent duty station (PDS), to include 
relocation to

[[Page 602]]

place of retirement, when retirement is mandatory, under a competent 
authorization/order that does not specify the duty as temporary, provide 
for further assignment to a new PDS, or direct the military service 
member return to the old PDS.



Sec. 239.5  Benefit elections.

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

[[Page 603]]

for government possession of the property. Since the benefit reimburses 
the applicant a percentage of the applicant's purchase price, if the 
benefit exceeds the mortgage payoff amount, the applicant will receive a 
benefit payment for the difference between the mortgage payoff and the 
total benefit payment. If the applicant has a buyer for the home, the 
payment of real estate commissions when an applicant's mortgage exceeds 
the property's current fair market value (i.e., upside down) will be 
accomplished as follows:
    (i) Commission will be at the normal and customary rate for the area 
(normally six percent) on the price agreed upon by the applicant and the 
buyer and to whom the Government will then sell the home. While the 
commission payment is the responsibility of the applicant, the 
Government will make the commission payment for the applicant when the 
home is sold by the Government to the applicant's buyer contingent upon 
both the Government acquisition and Government sale contract 
transactions being completed and recorded. Commissions will be paid to 
the broker listing the property. The allocation of dollars to real 
estate agents will be the responsibility of the listing broker.
    (ii) After Government acquisition, the Government will then sell the 
property to the buyer found by the applicant.
    (iii) No other payment of fees or commissions will be made without 
the prior approval of HQUSACE.
    (3) Foreclosure: In the case of a foreclosure, benefit is paid to 
lien holder for legally enforceable liabilities.
    (d) Tax Implications. 26 U.S.C. 132(n) exempts Expanded HAP benefits 
from Federal taxes and is not subject to withholding.



Sec. 239.6  Eligibility.

    (a) Eligibility by Category. Those eligible for benefits under the 
Expanded HAP include the following categories of persons:
    (1) Wounded, Injured, or Ill. (i) Members of the Armed Forces:
    (A) Who receive a disability rating of 30% or more for an unfitting 
condition (using the Department of Veterans Affairs Schedule for Ratings 
Disabilities), or who are eligible for Service member's Group Life 
Insurance Traumatic Injury Protection Program, or whose treating 
physician (in a grade of at least captain in the Navy or Coast Guard or 
colonel in Army, Marine Corps, or Air Force) certifies that the member 
is likely, by a preponderance of the evidence, to receive a disability 
rating of 30 percent or more for an unfitting condition (using the 
Department of Veterans Affairs Schedule for Ratings Disabilities) for 
wounds, injuries, or illness incurred in the line of duty while 
deployed, on or after September 11, 2001, and
    (B) Who are reassigned in furtherance of medical treatment or 
rehabilitation, or due to retirement in connection with such disability, 
and
    (C) Who need to market the primary residence for sale due to the 
wound, injury, or illness. (For example, the need to be closer to a 
hospital or a family member caregiver or the need to find work more 
accommodating to the disability.)
    (ii) Civilian employees of DoD or the United States Coast Guard 
(excluding temporary employees or contractors, but including employees 
of non-appropriated fund instrumentalities):
    (A) Who suffer a wound, injury, or illness (not due to own 
misconduct), on or after September 11, 2001, in the performance of 
duties while forward deployed in support of the Armed Forces, whose 
treating physician provides written documentation that the individual, 
by a preponderance of the evidence, meets the criteria for a disability 
rating of 30 percent or more. As described in paragraph (a)(1) of this 
section, this documentation will be certified by a physician in the 
grade of at least captain in the Navy or Coast Guard or colonel in Army, 
Marine Corps, or Air Force.
    (B) Who relocate from their primary residence in furtherance of 
medical treatment, rehabilitation, or due to medical retirement 
resulting from the wound, injury, or illness, and
    (C) Who need to market the primary residence for sale due to the 
wound, injury, or illness. (For example, the need to be closer to a 
hospital or a family member caregiver or the need to find

[[Page 604]]

work more accommodating to the disability.)
    (2) Surviving spouse. The surviving spouse of a Service member or of 
a civilian employee:
    (i) Whose spouse dies as the result of a wound, injury, or illness 
incurred in the line of duty while deployed (or forward deployed for 
civilian employees) on or after September 11, 2001, and
    (ii) Who relocates from the member's or civilian employee's primary 
residence within two years of the death of spouse.
    (3) BRAC 2005 members and civilian employees. Members of the Armed 
Forces and civilian employees of the Department of Defense and the 
United States Coast Guard (not including temporary employees or 
contractors) and employees of non-appropriated fund instrumentalities 
meeting the assignment requirements of Sec. 239.6(b)(4)(i)(A) of this 
part and who have not previously received HAP benefit payments:
    (i) Whose position is eliminated or transferred because of the 
realignment or closure; and
    (ii) Who accepts employment or is required to relocate because of a 
transfer beyond the normal commuting distance from the primary residence 
(50 miles). The new residence must be within 50 miles of the new duty 
station.
    (4) Permanently reassigned members of the Armed Forces. Members who 
have not previously received HAP benefit payments and who are reassigned 
under permanent PCS orders:
    (i) Dated between February 1, 2006, and September 30, 2012 (subject 
to availability of funds),
    (ii) To a new duty station or home port outside a 50-mile radius of 
the member's former duty station or home port.
    (b) Eligibility based on economic impact, timing, price, orders, and 
submission of application. (1) Minimum economic impact. (i) BRAC 2005 
Members and Civilian Employees as well as permanently reassigned members 
of the Armed Forces whose primary residence have suffered at least a 10 
percent personal home value loss from the date of purchase to date of 
sale. Market value of the home will be verified by the USACE.
    (ii) Applicants qualifying as Wounded, Injured, or Ill or as 
surviving spouse do not need to show minimum economic impact.
    (2) Timing of purchase and sale. (i) BRAC 2005 Members and Civilian 
Employees must have been the owner-occupant of their primary residence 
before May 13, 2005, the date of the BRAC 2005 announcement or have 
vacated the owned residence as a result of being ordered into on-post 
housing after November 13, 2004. An owner-occupant is someone who has 
both purchased and resides in the residence.
    (ii) Permanently reassigned members of the Armed Forces must have 
purchased their primary residence before July 1, 2006.
    (iii) Wounded, injured, or ill members and employees and Surviving 
Spouses are eligible for compensation without respect to the date of 
purchase.
    (iv) BRAC 2005 Members and Civilian employees and permanently 
reassigned members must have sold their primary residence between July 
1, 2006 and September 30, 2012.
    (3) Maximum home prior fair market value and eligible mortgage. When 
calculating benefits, both the PFMV and the eligible mortgage will be 
capped at $729,750.
    (4) Date of assignment; report date; basis for relocation. (i) Date 
of assignment, report date. (A) BRAC 2005 Members and Civilian Employees 
must have been assigned to an installation or unit identified for 
closure or realignment under the 2005 round of the Base Realignment and 
Closure Act of 1990 on May 13, 2005; transferred from such an 
installation or unit, or employment terminated as a result of a 
reduction in force, after November 13, 2004; or transferred from such an 
installation or activity on an overseas tour after May 13, 2002. BRAC 
2005 Members transferred from such an installation or activity after May 
13, 2005, are also eligible if, in connection with that transfer the 
member was informed of a future, programmed reassignment to the 
installation.
    (B) For initial implementation, permanently reassigned members of 
the Armed Forces must have received qualifying orders to relocate dated 
between February 1, 2006, and September

[[Page 605]]

30, 2010. These dates may be extended to September 30, 2012, at the 
discretion of the DUSD(I&E) based on availability of funds.
    (ii) Basis for relocation: Permanently reassigned members of the 
Armed Forces who are reassigned or who otherwise relocate for the 
following reasons are not eligible for Expanded HAP benefits:
    (A) Members who voluntarily retire prior to reaching their mandatory 
retirement date.
    (B) Members who are a new accession into the Armed Forces or who are 
otherwise entering active duty.
    (C) Members who are voluntarily separated or discharged.
    (D) Members whose separation or discharge is characterized as less 
than honorable.
    (E) Members who request and receive voluntary release from active 
duty (REFRAD).
    (F) Members who are REFRAD for misconduct or poor performance.
    (c) Applications will be processed according to eligibility category 
in the following order: (1) Wounded, injured, and ill. Within this 
category, applications will generally be processed in chronological 
order of the wound, injury, or illness.
    (2) Surviving spouses. Within this category, applications will 
generally be processed in chronological order of the date of death of 
the member or employee.
    (3) BRAC 2005 members and civilian employees. Within this category, 
applications will generally be processed in chronological order of the 
date of job elimination.
    (4) Permanently reassigned members of the Armed Forces. Within this 
category, applications will generally be processed beginning with the 
earliest report-not-later-than date of PCS orders.



Sec. 239.7  Responsibilities.

    (a) The DUSD(I&E), under the authority, direction, and control of 
the USD(AT&L), shall, in relation to the Expanded HAP:
    (1) Prescribe and monitor administrative and operational policies 
and procedures.
    (2) Determine applicable personnel benefits and policies, in 
coordination with the Under Secretary of Defense (Comptroller) and the 
Under Secretary of Defense for Personnel and Readiness.
    (3) Serve as senior appeals authority for appeals submitted by 
applicants.
    (b) The Under Secretary of Defense (Comptroller) shall, in relation 
to the Expanded HAP:
    (1) Implement policies and prescribe procedures for financial 
operations.
    (2) Review and approve financial plans and budgets.
    (3) Issue financing and obligation authorities.
    (4) Administer the DoD Homeowners Assistance Fund.
    (c) The Deputy Assistant Secretary of the Army for Installations and 
Housing (DASA(I&H)), subject to review by the DUSD(I&E), as the DoD 
Executive Agent for administering, managing, and executing the HAP, 
shall:
    (1) Establish detailed policies and procedures for execution of the 
program.
    (2) Maintain necessary records, prepare reports, and conduct audits.
    (3) Publish regulations and forms.
    (4) Disseminate information on the program.
    (5) Forward copies of completed responses to congressional inquiries 
and appeals to the DUSD(I&E) for information.
    (6) Serve as the initial approval authority for HAP appeals. The 
DASA(I&H) may approve appeals and shall forward recommendations for 
Expanded HAP denial to the DUSD(I&E) for decision.
    (d) The Heads of the DoD Components and the Commandant of the Coast 
Guard, by agreement of the Secretary of Homeland Security, shall:
    (1) Designate at least one representative at the headquarters level 
to work with DASA(I&H) and HQUSACE HAP offices.
    (2) Require each installation to establish a liaison with the 
nearest HAP field office to obtain guidance or assistance on the HAP.
    (3) Supply the HQUSACE HAP office a copy of any internal regulation, 
instruction, or guidance published relative to the Expanded HAP program.

[[Page 606]]

    (4) Disseminate information on the Expanded HAP and, upon request, 
supply HAP field offices with data pertaining to the Expanded HAP.
    (e) HQUSACE. (1) Real Estate Community of Practice (CEMP-CR). The 
Director of Real Estate, acting for the Chief of Engineers, has been 
delegated authority and responsibility for the execution of HAP. CEMP-
CR, as the central office for HAP, is responsible for the following:
    (i) Supervision, interagency coordination, development of 
procedures, policy guidance, and processing of appeals forwarded from 
the districts and HQUSACE Major Subordinate Commands (MSC).
    (ii) Maintaining an Expanded HAP central office and Expanded HAP 
field offices.
    (iii) Processing appeals from the MSC where applicant agreement 
cannot be reached. Such appeals will be forwarded, in turn, to DASA(I&H) 
for consideration.
    (2) Districts. Districts designated by the Director of Real Estate, 
and their Chiefs of Real Estate, have been delegated the authority to 
administer, manage, and execute the HAP on behalf of all applicants. 
Districts (as identified in Sec. 239.9 of this part) are responsible 
for the following:
    (i) Accepting applications (DD Form 1607) for HAP and Expanded HAP 
benefits.
    (ii) Determining the eligibility of each applicant for Expanded HAP 
assistance using the criterion established by the DUSD(I&E).
    (iii) Determining and advising each applicant on the most 
appropriate type of assistance.
    (iv) Determining amounts to be paid, consistent with DoD policy, and 
making payments or authorizing and arranging for acquisition or transfer 
of the applicant's property.
    (v) Maintaining, managing, and disposing of acquired properties or 
contracting for such services with private contractors.
    (vi) Processing all appeals, except where applicant agreement cannot 
be reached. Such appeal cases will be forwarded, in turn, to the MSC, 
CEMP-CR, and DASA(I&H) for consideration.
    (3) HQUSACE Major Subordinate Commands (MSC). MSCs have been 
delegated the authority to perform oversight and review of district 
program management and based upon that review, or in response to 
specific requests, to provide local policy guidance to the districts and 
recommend program changes or forward appeals to CEMP-CR for 
consideration.



Sec. 239.8  Funding.

    (a) Revolving fund account. The revolving fund account contains 
money appropriated in accordance with the ARRA, and receipts from the 
management, rental, or sale of the properties acquired.
    (b) Appropriation, receipts, and allocation. Funds required for 
administration of the program will be made available by DoD to the 
HQUSACE. Funds provided will be used for purchase or reimbursement as 
provided herein and to defray expenses connected with the acquisition, 
management, and disposal of acquired properties, including payment of 
mortgages or other indebtedness, as well as the cost of staff services, 
contract services, Title Insurance, and other indemnities.
    (c) Obligation of funds. For government acquisition of homes under 
the authority of this Rule, funds will be committed prior to the 
Government's offer to purchase is conveyed to the applicant. The 
obligation will occur upon timely receipt of the accepted offer returned 
by the applicant.



Sec. 239.9  Application processing procedures.

    (a) Acceptance of applications. The district will accept 
applications (DD Form 1607) for HAP and Expanded HAP benefits submitted 
through the U.S. Mail or other delivery system direct to the appropriate 
district office. See Sec. 239.15 of this part for a list of District 
field offices.
    (1) Applications for benefits by members of the Armed Forces due to 
eligibility pursuant to Sec. 239.6(a)(4) of this part because of 
permanent reassignment must be submitted directly to the U.S. Army Corps 
of Engineers field office identified in Sec. 239.15 of this part by

[[Page 607]]

U.S. Mail or commercial delivery service, and must be postmarked or 
deposited with the commercial delivery service no later than September 
30, 2012. Applications postmarked or deposited after September 30, 2012, 
will not be accepted.
    (2) Applications of eligible personnel for benefits due to 
eligibility pursuant to Sec. 239.6(a)(3) of this part because of BRAC 
2005 must be submitted directly to the U.S. Army Corps of Engineers 
field office identified in Sec. 239.15 of this part by U.S. Mail or 
commercial delivery service, and must be postmarked or deposited with 
the commercial delivery service no later than September 30, 2012. 
Applications postmarked or deposited after September 30, 2012, will not 
be accepted.
    (b) Application Form (DD Form 1607). Should the DD form 1607 not 
provide all the information required to process Expanded HAP 
applications, Districts must provide applicants appropriate supplemental 
instructions.
    (c) Assignment of application numbers. (1) Assignment of application 
numbers. When a District receives an application, it will assign the 
application number and develop and maintain an individual file for each 
property. Applications for programs located in another District will not 
be assigned a number, but will be forwarded immediately to the District 
having jurisdiction. An application number, once assigned, will not be 
reassigned regardless of the disposition of the original application. 
Reactivation or reopening of a withdrawn application does not require a 
new application or application number.
    (2) Method of assignment. An application will be numbered in the 
following manner:
    (i) Agency code. Code to indicate the Federal agency accountable for 
installation being closed or applicant support:
    (A) 1--Army
    (B) 2--Air Force
    (C) 3--Navy
    (D) 4--Marine Corps
    (E) 5--Defense Agencies
    (F) 6--Non-Defense Agencies
    (G) 7--U.S. Coast Guard
    (ii) District code.
    (A) Sacramento: L2
    (B) Savannah: K6
    (C) Fort Worth: M2
    (iii) Applicant category code (military/civilian/wounded/surviving 
spouse/PCS):
    (A) 1 = Civilian (BRAC)
    (B) 2 = Military (BRAC)
    (C) 3 = Non-appropriated Fund Instrumentalities
    (D) 4 = Military Wounded
    (E) 5 = Civilian Wounded
    (F) 6 = Surviving Spouse (military deceased)
    (G) 7 = Surviving Spouse (civilian employee deceased)
    (H) 8 = Military PCS
    (iv) State: State abbreviation.
    (v) Installation number: The five digit ZIP Code of the applicant's 
present (former, if they have already moved) installation, offices, or 
unit address. Examples are:
    (A) For a BRAC 05 applicant moving from the closing Saint Louis, 
Missouri, DFAS office to Minneapolis, Minnesota, use the ZIP Code of the 
city from which he or she is moving, e.g., 63101, for St. Louis, 
Missouri.
    (B) For wounded warrior or surviving spouse who moved from primary 
residence, use present installation or home town.
    (C) For Service members who are eligible based on PCS criteria, use 
ZIP Code of installation from which they depart.
    (vi) Application Number: Sequential beginning with 0001.

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

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

[[Page 608]]

the valuation of individual primary residences.

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



Sec. 239.10  Management controls.

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



Sec. 239.11  Appeals.

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



Sec. 239.12  Tax documentation.

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



Sec. 239.13  Program performance reviews.

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



Sec. 239.14  On-site inspections.

    The HQUSACE and its major subordinate commands may conduct periodic 
on-site inspections of district offices and monitor program execution 
through HAPMIS and CEFMS reports.



Sec. 239.15.  List of HAP Field Offices.

                            HAP FIELD OFFICE

    U.S. Army Engineer District, Savannah, Corps of Engineers, Attn: 
CESAS-RE-HM, 100 West Oglethorpe Avenue, Savannah, Georgia 31401-3604, 
1-800-861-8144, Internet Address: http://www.sas.usace[fsxp0].army.mil.

                           HAP CENTRAL OFFICE

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

[77 FR 39629, July 5, 2012]

[[Page 609]]



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



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

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

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



Sec. 240.1  Purpose.

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



Sec. 240.2  Applicability.

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



Sec. 240.3  Definitions.

    The following definitions are used in this part:
    CAE. A collective term that refers to both CAE/IAE and CAE-R.
    CAE/IAE. An institution of higher education that has met established 
criteria for IA education and has been jointly designated by the 
Department of Homeland Security and the NSA as a national center of 
excellence.
    CAE-R. An institution of higher education which has met established 
criteria for IA research and has been jointly designated by the 
Department of Homeland Security and the NSA as a national center of 
excellence.
    IA. For the purpose of this part, the term ``IA'' includes computer 
security, network security, cybersecurity, cyber operations, and other 
relevant IT related to information assurance pursuant to 10 U.S.C. 
2200e.
    IT. For the purpose of this part, the term ``IT'' refers to any 
equipment or interconnected system or subsystem of equipment that is 
used in the automatic acquisition, storage, manipulation, management, 
movement, control, display, switching, interchange, transmission, or 
reception of data or information. ``IT'' includes computers, ancillary 
equipment, software, firmware, and similar procedures, services 
(including support services), and related resources.
    Institution of Higher Education. For the purpose of this part and as 
defined in 20 U.S.C. 1001, an ``institution of higher education'' refers 
to an educational institution in any state that:
    (1) Admits as regular students only individuals who possess a 
certificate of graduation from a school providing secondary education, 
or the recognized equivalent of such a certificate;
    (2) Is legally authorized to provide a program of education beyond 
secondary education;
    (3) Provides an educational program that awards bachelor's degrees, 
or provides no less than a 2-year program that is acceptable for full 
credit toward a degree;
    (4) Is a public or other nonprofit institution; and
    (5) Is accredited by a nationally recognized accrediting agency or 
association, or if not so accredited, is an institution that has been 
granted preaccreditation status by such an agency or association that 
has been recognized by the Secretary of Education for the granting of 
preaccreditation status, and the Secretary has determined that there is 
satisfactory assurance that the institution will meet the accreditation 
standards of such an agency or association within a reasonable time.
    Partner University. A CAE that has joined in academic partnership 
with the NDU IRMC to award master's and doctoral degrees through the DoD 
IASP.
    Principal Investigator. The primary point of contact at each CAE, 
responsible for publicizing the DoD IASP to potential recruitment 
students and

[[Page 610]]

working with students during the application process. Principal 
investigators also serve as the primary contact for recruitment students 
and retention students who have transferred from the IRMC to a partner 
university.
    Recruitment Program. The portion of the DoD IASP available to 
qualified non-DoD students currently enrolled or accepted for enrollment 
at a designated CAE.
    Recruitment Students. Non-DoD students currently enrolled at a 
designated CAE who are active participants in the DoD IASP recruitment 
program.
    Retention Program. The portion of the DoD IASP available to full-
time, active duty Service personnel and permanent civilian employees of 
the DoD Components.
    Retention Students. Full-time active duty Service personnel and 
permanent civilian employees of the DoD Components who are active 
participants in the DoD IASP retention program.



Sec. 240.4  Policy.

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



Sec. 240.5  Responsibilities.

    (a) The Department of Defense Chief Information Officer (DoD CIO) 
shall:
    (1) Establish overall policy and guidance to conduct and administer 
the DoD IASP pursuant to Deputy Secretary of Defense Memorandum, 
``Delegation of Authority and Assignment of Responsibility under section 
922 of the Floyd D. Spence National Defense Authorization Act for Fiscal 
Year 2001,'' October 30, 2000.
    (2) Develop an annual budget recommendation to administer the DoD 
IASP and provide academic scholarships and grants in accordance with 10 
U.S.C. 2200 and 7045.
    (3) Oversee program administration and execution by the Director, 
National Security Agency (DIRNSA).
    (4) Chair the DoD IASP Steering Committee, established pursuant to 
DoD Instruction 5105.18, to oversee and provide program direction over:
    (i) Student eligibility criteria.
    (ii) Grant and capacity building selection criteria for awards to 
CAEs.
    (iii) Final approval for the allocation of individual DoD IASP 
scholarships and grants.
    (iv) Communications and marketing plans.
    (v) DoD IASP metrics and analysis of performance results, including 
student and CAE/IAE feedback.
    (b) The DIRNSA, under the authority, direction, and control of the 
Under Secretary of Defense for Intelligence, shall:
    (1) Serve as the DoD IASP Executive Administrator to:
    (i) Implement the DoD IASP and publish in writing all of the 
criteria, procedures, and standards required for program implementation. 
Responsibilities are to:

[[Page 611]]

    (A) Implement the scholarship application and selection procedures 
for recruitment and retention students.
    (B) Establish procedures for recruiting students to meet service 
obligations through employment with a DoD Component upon graduation from 
their academic program.
    (C) Ensure that all students' academic eligibility is maintained, 
service obligations are completed, and that reimbursement obligations 
for program disenrollment are fulfilled.
    (D) Establish procedures for CAEs and employing DoD Components to 
report on students' progress.
    (E) Maintain appropriate accounting for all funding disbursements.
    (F) Execute the debt collection process on the behalf of the DoD and 
in accordance with Volume 5 of DoD 7000.14-R for scholarship recipients 
who fail to complete a period of obligated service resulting from their 
participation in the DoD IASP. This includes, but is not limited to, 
exercising the authority under 10 U.S.C. 2200a(e), consistent with the 
relevant provisions of 37 U.S.C. 303a(e), to determine an amount owed 
and to take necessary actions to collect the amount owed, and to act 
upon requests for waivers, in whole or in part, when determined to be 
appropriate.
    (ii) Subject to availability of funds, make grants on behalf of the 
DoD CIO to institutions of higher education to support the 
establishment, improvement, and administration of IA education programs 
pursuant to 10 U.S.C. 2200, 2200b, and 7045.
    (A) Develop and implement the annual solicitation for proposals for 
grants.
    (B) Coordinate the review process for grant proposals.
    (C) Distribute grant funding and maintain appropriate accounting.
    (D) Establish annual reporting procedures for grant recipients 
(CAEs) to detail the resulting accomplishments of their grant 
implementations.
    (E) Obtain written documentation from grant recipients (CAEs) on how 
grant funding was utilized and the resulting accomplishments.
    (2) Provide representation to the DoD IASP Steering Committee and 
provide briefings and reports, as required, to effect proper oversight 
by the DoD CIO and the DoD IASP Steering Committee.
    (3) Maintain databases to support the analysis of performance 
results.
    (c) The Chancellor of the Information Resources Management College 
(IRMC) of the National Defense University, under the authority, 
direction and control of the Chairman of the Joint Chiefs of Staff, 
shall:
    (1) Establish partner university agreements with CAEs to provide 
master's and doctoral degree opportunities to current, former, and 
future IRMC students who are awarded retention scholarships.
    (2) Maintain records of DoD IASP student enrollments and graduates 
and provide data to the DoD IASP Executive Administrator and the DoD CIO 
as required.
    (3) Serve as the liaison between IRMC retention students, their 
follow-on partner university, and the DoD IASP Executive Administrator.
    (4) Provide academic representation to the DoD IASP Steering 
Committee and provide briefings and reports, as required, on the IRMC 
portion of the DoD IASP retention program.
    (d) The Heads of the DoD Components shall:
    (1) Determine the requirement for DoD IASP usage as a primary 
vehicle to recruit and retain IA and IT personnel.
    (2) Identify the office of primary responsibility for administering 
the DoD IASP within their DoD Component.
    (3) Establish DoD Component-specific nomination, selection, and 
post-academic assignment criteria for DoD IASP retention students.
    (i) Nominated personnel shall be high performing employees who are 
rated at the higher levels of the applicable performance appraisal 
system and demonstrate sustained quality performance with the potential 
for increased responsibilities. All individuals must be US citizens and 
be able to obtain a security clearance.
    (ii) Nominations must fulfill specific personnel development 
requirements for both the individual nominee and the nominating 
organization.

[[Page 612]]

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



Sec. 240.6  Retention program.

    (a) The DoD IASP retention program is open to qualified DoD civilian 
employees and Service members. Active duty military officers and 
permanent DoD civilian employees may apply for a master's or doctoral 
degree program; enlisted personnel may apply for a master's program. DoD 
Components may further restrict the eligibility of applicants based on 
Component requirements.
    (b) There are three DoD academic institutions participating in the 
DoD IASP: the Air Force Institute of Technology (AFIT) at Wright-
Patterson Air Force Base in Dayton, Ohio; the IRMC of the National 
Defense University (NDU) at Fort McNair in Washington, DC; and the Naval 
Postgraduate School (NPS) in Monterey, California. Students at AFIT and 
NPS attend full-time programs. Participants may attend the IRMC either 
full or part-time to complete the first part of their required courses 
and then select a follow-on partner university to complete their 
remaining degree requirements either full or part-time. There are no 
part-time doctoral programs. All candidates must meet the eligibility 
requirements for their selected program, which are outlined in DoD IASP 
Academic Programs for Retention Students.
    (1) Military officers and DoD civilian employees may apply to attend 
any one of the three DoD academic institutions.
    (2) Enlisted personnel may attend AFIT or the NPS, which is 
authorized

[[Page 613]]

to enroll enlisted DoD IASP participants pursuant to 10 U.S.C. 2200 and 
7045.
    (c) Students must select a degree program in one of the academic 
disciplines listed in Sec. 240.4(c) and in accordance with DoD 
Component requirements.
    (d) Scholarship funding for AFIT, IRMC, the partner universities, 
and NPS includes full tuition costs and required fees and books. All 
travel costs and necessary position back-fill for individuals selected 
for the program must be paid by the nominating DoD Component. Retention 
students shall continue to receive their military pay or civilian salary 
from their DoD Component throughout their course of study.
    (e) DoD Component nominations are due by January 31st each year. The 
student nomination process is outlined in the DoD IASP Nomination 
Process for Retention Students.
    (f) Retention students shall fulfill post-academic service 
obligations pursuant to 10 U.S.C. 2200a and 7045. Service members shall 
serve on active duty while fulfilling designated DoD Component service 
obligations. DoD civilian employees shall sign a continued service 
agreement that complies with 10 U.S.C. 2200a, prior to commencement of 
their education, to continue service within the DoD upon conclusion of 
their education, for a period equal to three times the length of the 
education period. The period of obligated service is in addition to any 
other period for which the recipient is obligated to serve on active 
duty or in the civil service, as the case may be. Individuals who fail 
to complete the degree program satisfactorily or to fulfill the service 
commitment shall be required to reimburse the United States pursuant to 
10 U.S.C. 2200a(e) for payments made to them through the DoD IASP unless 
a waiver, in whole or in part, is granted by the DoD IASP Executive 
Administrator.
    (g) DoD IASP retention participants are obligated to remain in good 
standing in their degree programs, to continue in service as civilian 
employees or members of the Military Services, and where applicable, to 
repay program costs for failure to complete the degree program 
satisfactorily, or to fulfill the service commitment pursuant to 10 
U.S.C. 2200 and 7045, DoD policy, and the policies of the respective DoD 
Component.



Sec. 240.7  Recruitment program.

    (a) Annually, in November, the DoD IASP Executive Administrator 
announces a solicitation for proposal from CAEs interested in 
participating in the DoD IASP. Graduate students and rising junior or 
senior undergraduates accepted at or enrolled in one of these 
institutions may apply for full scholarships to complete a bachelor's, 
master's, or a doctoral degree, or graduate (post-baccalaureate) 
certificate program in one of the disciplines defined in Sec. 240.4(c). 
Student application requirements are included in the solicitation 
proposal released by NSA.
    (b) DoD Component recruitment student requirements are due to the 
DoD IASP Executive Administrator each year by January 31st.
    (c) The student selection process occurs annually in April. The 
selection process is outlined in the DoD IASP Nomination Process for 
Recruitment Students.
    (d) Recruitment students are provided scholarships, covering the 
full cost of tuition and selected books and fees. Students are also 
provided a stipend to cover room and board expenses.
    (e) Recruitment students may be required to complete a student 
internship, depending on the length of their individual scholarship. For 
example, if a scholar receives a scholarship their junior year, an 
internship is required. If they receive the scholarship their senior 
year, an internship is not required. DoD Components typically use the 
authority granted in 5 CFR 213.3102(r) to arrange the internship.
    (f) Pursuant to 10 U.S.C. 2200a, all recruitment students shall sign 
a service agreement prior to commencement of their education and incur a 
service commitment, which commences after the award of the DoD IASP 
authorized degree on a date to be determined by the relevant DoD 
Component. The obligated service in DoD shall be as a civilian employee 
of the Department or as an active duty enlisted member or officer in one 
of the Military Services.

[[Page 614]]

    (1) Individuals selecting employment in the civil service shall 
incur a service obligation of 1 year of service to the DoD upon 
graduation for each year or partial year of scholarship they receive, in 
addition to an internship, if applicable. Pursuant to the authority 
granted in 10 U.S.C. 2200a(g) and the Under Secretary of Defense for 
Personnel and Readiness Memorandum, ``Implementation Authority to Employ 
Individuals Completing Department of Defense Scholarship or Fellow 
Programs,'' April 5, 2010. DoD Components may appoint DoD IASP graduates 
to IT positions as members of the excepted service. Upon satisfactory 
completion of 2 years of substantially continuous service, DoD 
Components may then convert these individuals to career or career-
conditional appointments without competition.
    (2) Individuals enlisting or accepting a commission to serve on 
active duty in one of the Military Services shall incur a service 
obligation of a minimum of 4 years on active duty in that Service upon 
graduation. The Military Services may establish a service obligation 
longer than 4 years, depending on the occupational specialty and type of 
enlistment or commissioning program selected.
    (g) Individuals in the recruitment program who fail to complete the 
degree program satisfactorily or to fulfill the service commitment upon 
graduation shall be required to reimburse the United States pursuant to 
10 U.S.C. 2200a(e) for payments made to them through the DoD IASP unless 
a waiver, in whole or in part, is granted by the DoD IASP Executive 
Administrator.



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



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

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

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



Sec. 241.1  Purpose.

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



Sec. 241.2  Definitions.

    In this part:
    Detail means the assignment of a DoD employee to a private sector 
organization without a change of position; or the assignment of a 
private sector employee to a DoD Component without a change of position.
    DoD employee means a Federal civilian employee of the DoD.
    Exceptional employee means performance meets or exceeds all 
standards established at the fully successful level

[[Page 615]]

or above and makes significant contributions towards achieving the 
organizational goals. Participating organizations should target highly 
motivated, disciplined employees.
    Information technology (IT) as defined means use of computers, 
ancillary equipment (including imaging peripherals, input, output, and 
storage devices necessary for security and surveillance), peripheral 
equipment designed to be controlled by the central processing unit of a 
computer, software, firmware and similar procedures, services (including 
support services), and related resources. IT includes the planning, 
organizing, staffing, directing, integrating, or controlling of 
information technology, including occupational specialty areas such as 
systems administration, IT project management, network services, 
operating systems, software application, cyber security, enterprise 
architecture, policy and planning, internet/web services, customer 
support, data management and systems analysis.
    Private sector organization means nonpublic or commercial 
individuals and businesses, nonprofit organizations, academia, 
scholastic institutions, and nongovernmental organizations.
    Small business concern means a business concern that satisfies the 
definitions and standards by the Administrator of the Small Business 
Administration (SBA) as defined by 5 U.S.C. 3703(e)(2)(A).



Sec. 241.3  Assignment authority.

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



Sec. 241.4  Eligibility.

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



Sec. 241.5  Written agreements.

    (a) Before a detail begins, the DoD Component authorized approving 
official, private sector organization authorized approving official and 
the employee to be assigned to the ITEP detail must sign a three-party 
agreement. Prior to the agreement being signed the relevant legal office 
for the DoD Component shall review and approve the agreement. The 
agreement must include, but is not limited to the following elements:
    (1) The duties to be performed and length of detail;
    (2) Describe the core IT competencies and technical skills that the 
detailee will be expected to enhance or acquire;
    (3) Identification of the supervisor of detailee.
    (b) The agreement shall require DoD employees, upon completion of 
the assignment serve in the civil service for a period equal to the 
length of the detail; and
    (c) Provide that if the employee of the DoD or of the private sector 
organization (as the case may be) fails to

[[Page 616]]

carry out the agreement, such employee shall be liable to the United 
States for payment of all expenses of the assignment, unless that 
failure was for good and sufficient reason as determined by the 
Secretary of Defense.



Sec. 241.6  Length of details.

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

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



Sec. 241.7  Termination.

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



Sec. 241.8  Terms and conditions.

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



Sec. 241.9  Costs and reimbursements.

    (a) Payment of Salary and Allowances. The lending organization (DoD 
or private sector organization) has full responsibility for payment of 
all salary and allowances to their employee participating in an ITEP 
pilot. Both DoD

[[Page 617]]

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



Sec. 241.10  Small business consideration.

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



Sec. 241.11  Numerical limitation.

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



Sec. 241.12  Reporting requirements.

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

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



Sec. 241.13  Implementation.

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



PART 243_DEPARTMENT OF DEFENSE RATEMAKING PROCEDURES FOR CIVIL 
RESERVE AIR FLEET CONTRACTS--Table of Contents



Sec.
243.1 Purpose.
243.2 Applicability.
243.3 Definitions.
243.4 Ratemaking procedures for Civil Reserve Air Fleet contracts.
243.5 Commitment of aircraft as a business factor.
243.6 Exclusions from the uniform negotiated rate.
243.7 Inapplicable provisions of law.
243.8 Application of FAR cost principles.
243.9 Carrier site visits.
243.10 Disputes.
243.11 Appeals of USTRANSCOM Contracting Officer Decisions regarding 
          rates.
243.12 Required records retention.

    Authority: Section 366 National Defense Authorization Act for FY12 
(Pub. L. 112-81)
    10 U.S.C. Chap 931, Section 9511a.

    Source: 80 FR 30358, May 28, 2015, unless otherwise noted.

[[Page 618]]



Sec. 243.1  Purpose.

    The Secretary of Defense (Secretary) is required to determine a fair 
and reasonable rate of payment for airlift services provided to the 
Department of Defense (DoD) by civil air carriers and operators 
(hereinafter collectively referred to as ``air carriers'') who are 
participants in the Civil Reserve Air Fleet program (CRAF). This 
regulation provides the authority and methodology for such ratemaking 
and designates the United Stated Transportation Command (USTRANSCOM) as 
the rate setter for negotiated uniform rates for DoD airlift service 
contracts in support of the CRAF. This methodology supports a viable 
CRAF mobilization base that ensures sufficient capacity in time of war, 
contingency and humanitarian relief efforts.



Sec. 243.2  Applicability.

    This section governs all contracts with the Department of Defense 
where awards to the air carriers, either through individual contracts or 
teaming arrangements, are commensurate with the relative amount of 
airlift capability committed to the Civil Reserve Air Fleet (CRAF).



Sec. 243.3  Definitions.

    Air carrier. ``Air carrier'' is defined in 49 U.S.C. 40102(a)(2) as 
``a citizen of the United States undertaking by any means, directly or 
indirectly, to provide air transportation.'' Specifically to this 
ratemaking procedure, 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 services are included. Commercial air carriers under 
contract with, or operating on behalf of, the DoD shall have a Federal 
Aviation Administration (FAA) or CAA certificate. The policy contained 
in this directive applies only to air carriers operating fixed wing 
aircraft under CRAF international airlift services.
    Aircraft class. Distinct categories of aircraft with similar broad 
characteristics established for ratemaking purposes. These categories 
include aircraft such as large passenger, medium passenger, large cargo, 
etc. They are determined by USTRANSCOM and identified in Published 
Uniform Rates and Rules for International Service Appendix A (Published 
in FedBizOps).
    Civil Reserve Air Fleet International Airlift Services. Those 
services provided in support of the Civil Reserve Air Fleet contract, 
whereby contractors provide personnel, training, supervision, equipment, 
facilities, supplies and any items and services necessary to perform 
international long-range and short-range airlift services during 
peacetime and during CRAF activation in support of the Department of 
Defense (DoD). Implements the Fly CRAF Act. See 49 U.S.C. 41106.
    Civil Reserve Air Fleet (CRAF) Assured Business Guarantees. See 10 
U.S.C. 9515.
    Civil Reserve Air Fleet (CRAF) Program. The Civil Reserve Air Fleet 
(CRAF) is a wartime readiness program, based on the Defense Production 
Act of 1950, as amended, (50 U.S.C. App. 2601 et seq.), and Executive 
Order 13603 (National Defense Resource Preparedness), March 16, 2012, to 
ensure quantifiable, accessible, and reliable commercial airlift 
capability to augment DoD airlift and to assure a mobilization base of 
aircraft available to the Department of Defense for use in the event of 
any level of national emergency or defense-orientated situations. As a 
readiness program, CRAF quantifies the number of passenger and cargo 
commercial assets required to support various levels of wartime 
requirements and thus allows DoD to account for their use when 
developing and executing contingency operations/war plans. The CRAF is 
composed of U.S. registered aircraft owned or controlled by U.S. air 
carriers specifically allocated (by FAA registration number) for this 
purpose by the Department of Transportation. As used herein, CRAF 
aircraft are those allocated aircraft, which the carrier owning or 
otherwise controlling them, has contractually committed to the DoD, 
under stated conditions, to meet varying emergency needs for civil 
airlift augmentation of the military airlift capability. The contractual 
commitment of the aircraft includes the supporting resources required to 
provide

[[Page 619]]

the contract airlift. In return for a commitment to the CRAF program, 
airlines are afforded access to day-to-day business under various DoD 
contracts.
    Historical Costs. Those allowable costs for airlift services for a 
12 month period, gathered from Department of Transportation (DOT) 
Uniform System of Accounts and Reports (USAR) (hereinafter referred to 
as ``Form 41'') reporting (required by 14 CFR parts 217 and 241).
    Long-range aircraft. Aircraft equipped with navigation, 
communication, and life support systems/emergency equipment required to 
operate in trans-oceanic airspace, and on international routes, for a 
minimum distance of 3,500 nautical miles, while carrying a productive 
payload (75 percent of the maximum payload it is capable of carrying.) 
Additionally aircraft must be equipped and able to operate worldwide 
(e.g., in EUROCONTROL and North Atlantic Minimum Navigation Performance 
Specification airspace and possess the applicable VHF, Mode-S, RNP, and 
RVSM communication and navigation capabilities.)
    Memorandum of Understanding with attachment (MOU). A written 
agreement between certificated air carriers willing to participate in 
the CRAF program and USTRANSCOM with the purpose of establishing 
guidelines to facilitate establishment of rates for airlift services 
(e.g., passenger, cargo, combi, and aeromedical evacuation.)
    Operational data. Those statistics that are gathered from DOT Form 
41 reporting, USTRANSCOM reported monthly round trip (S-1) and one-way 
(S-2) mileage reports, monthly fuel reports or other data deemed 
necessary by the USTRANSCOM contracting officer.
    Participating carriers. Any properly certified and DoD approved air 
carrier in the CRAF program which complies with the conditions of the 
MOU and executes a USTRANSCOM contract.
    Projected rates. The estimated rates proposed by carriers based upon 
historical cost and operational data as further described in Sec. 
243.4(a) through (g).
    Ratemaking methodologies. The methodologies agreed to by USTRANSCOM 
and air carriers in the MOU for the treatment of certain cost elements 
to determine the estimated price for the DoD for airlift services.
    Short-range aircraft. Aircraft equipped for extended over-water 
operations and capable of flying a minimum distance of 1,500 nautical 
miles while carrying a productive payload (75 percent of the maximum 
payload it is capable of carrying).



Sec. 243.4  Ratemaking procedures for Civil Reserve Air Fleet contracts.

    The ratemaking procedures contained within this section apply only 
to Airlift Service contracts awarded based on CRAF commitment. 
Competitively awarded contracts may be used by the Department of Defense 
when it considers such contracts to be in the best interest of the 
government. See Sec. Sec. 243.5(b) and 243.6 for exclusions to 
ratemaking.
    (a) Rates of payment for airlift services. USTRANSCOM may utilize 
the principles contained in the Federal Acquisition Regulation (FAR), as 
supplemented, in establishing fair and reasonable rate of payments for 
airlift service contracts in support of CRAF. Specific exceptions to FAR 
are noted in Sec. 243.8 of this rule. To facilitate uniformity within 
the ratemaking process, USTRANSCOM will execute a MOU with air carriers 
to institute the basis for methods upon which the rates will be 
established. An updated MOU will be executed as warranted and published 
for public comment on FedBizOps. Under the MOU, air carriers agree to 
furnish historical cost and operational data, as well as their projected 
rates for the ensuing fiscal year. USTRANSCOM will conduct a review of 
air carriers' historical and projected costs and negotiate with the 
carriers to establish rates using ratemaking methodologies contained in 
the attachment to the MOU.
    (b) Obtaining data from participating carriers. USTRANSCOM will 
annually notify those participating carriers to provide data using the 
USTRANSCOM cost package and related instructions. The data provided 
includes pricing data, cost data, and judgmental information necessary 
for the USTRANSCOM contracting officer to determine a fair and 
reasonable price

[[Page 620]]

or to determine cost realism. Carriers will be provided 60 calendar days 
to act upon the request.
    (c) Analysis. (1) USTRANSCOM will consider carrier reported DOT Form 
41 costs as well as other applicable costs directly assigned to 
performance in USTRANSCOM service. These costs will be reviewed and 
analyzed by USTRANSCOM for allowability, allocability, and 
reasonableness. Costs may also be audited by the Defense Contract Audit 
Agency (DCAA), as necessary, in accordance with the DCAA Contract Audit 
Manual 7640.01.
    (2) To determine allocation of these costs to USTRANSCOM service, 
USTRANSCOM considers carrier reported DOT Form 41 operational data, as 
well as USTRANSCOM S-1, S-2 mileage reports, fuel reports, and other 
relevant information requested by the contracting officer.
    (d) Rates. Rates will be determined by aircraft class (e.g., large 
passenger, medium passenger, large cargo, etc.) based on the average 
efficiency of all participating carriers within the specified class. 
Application of these rates, under varying conditions (e.g., ferry, one-
way, etc), are addressed in the Final Rates published in accordance with 
Sec. 243.4(h).
    (e) Components of the rate--(1) Return on Investment (ROI). ROI for 
USTRANSCOM service is intended to adequately compensate carriers for 
cost of capital. USTRANSCOM will apply a minimum return applied to the 
carrier's total operating costs. If a full return on investment applied 
to a carrier's capital investment base is provided in the MOU, the 
carrier will receive whichever is greater.
    (i) Full ROI. The full ROI will be computed using an optimal capital 
structure of 45 percent debt and 55 percent equity. The cost-of-debt and 
cost-of-equity are calculated from revenues of major carriers as 
reported to the Department of Transportation.
    (A) Cost-of-Debt (COD). COD will be calculated considering the Risk 
Free Rate (RFR) plus the weighted debt spread, with the formula as 
agreed upon in the MOU.
    (B) Cost-of-Equity (COE). COE will be determined by a formula agreed 
upon in the MOU, which considers RFR, weighted betas, annualized equity 
risk premium and a future expected return premium.
    (C) Owned/Capital/Long-Term Leased Aircraft. New airframes and 
related support parts will receive full ROI on the net book value of 
equipment at mid-point of forecast year. USTRANSCOM will apply the 
economic service life standards to aircraft as indicated in paragraph 
(e)(2) of this section.
    (D) Short-term leased aircraft. As a return on annual lease 
payments, short-term leased equipment will receive the Full ROI less the 
cost of money rate per the Secretary of the Treasury under Public Law 
92-41 (85 Stat. 97), as provided by the Office of Management and Budget, 
in accordance with the MOU.
    (E) Working capital. Working capital will be provided in the 
investment base at an established number of days provided in the MOU. 
The investment base will be computed on total operating cash less non 
cash expenses (depreciation) as calculated by USTRANSCOM.
    (ii) Minimum Return. USTRANSCOM will determine minimum return 
utilizing the Weighted Guidelines methodology as set forth in DFARS 
Subpart 215.4, Contract Pricing, or successor and as provided in the 
MOU.
    (2) Depreciation. USTRANSCOM will apply economic life standards for 
new aircraft at 14 years, 2 percent residual (narrowbody) and 16 years 
and 10 percent residual (widebody) aircraft. USTRANSCOM will apply 
economic life standards for used aircraft as indicated in the MOU.
    (3) Utilization. Utilization considers the number of airborne hours 
flown per aircraft per day. USTRANSCOM will calculate aircraft 
utilization in accordance with the DOT Form 41 reporting and the MOU.
    (4) Cost escalation. Escalation is the percentage increase or 
decrease applied to the historical base year costs to reliably estimate 
the cost of performance in the contract period. Yearly cost escalation 
will be calculated in accordance with the MOU.
    (5) Weighting of rate. Rates will be weighted based upon the direct 
relationship between contract performance and cost incurred in execution 
of the

[[Page 621]]

contract. The specific weighting will be as defined in the MOU.
    (6) Obtaining data from participating carriers. Carriers 
participating in USTRANSCOM acquisitions subject to ratemaking shall 
provide, other than certified cost and pricing data for USTRANSCOM, rate 
reviews as required in the MOU.
    (f) Contingency rate. Authority is reserved to the Commander, 
USTRANSCOM, at his discretion, during conditions such as outbreak of 
war, armed conflict, insurrection, civil or military strife, emergency, 
or similar conditions, to use a temporary contingency rate in order to 
ensure mission accomplishment. Any such temporary rate would terminate 
at the Commander's discretion upon his determination that such rate is 
no longer needed.
    (g) Proposed rate. Once the data is analyzed and audit findings 
considered, USTRANSCOM will prepare a package setting forth proposed 
airlift rates and supporting data. The proposed rates will be approved 
by the USTRANSCOM contracting officer and posted publicly on FedBizOps 
for comment. The comment period will be as specified in the proposed 
rate package.
    (h) Final rate. Upon closing of the comment period, comments and 
supporting rationale will be addressed and individual negotiations 
conducted between USTRANSCOM and the air carriers. After negotiations 
have concluded, USTRANSCOM will prepare a rate package setting forth 
final airlift rates for each aircraft class, along with supporting data 
consisting of individual carrier cost elements. Comments and disposition 
of those comments will be included in the final rate package. The final 
rates will be approved by the USTRANSCOM contracting officer and 
publicly posted on FedBizOps for use in the ensuing contract.



Sec. 243.5  Commitment of aircraft as a business factor.

    For the purpose of rate making, the average fleet cost of aircraft 
proposed by the carriers for the forecast year is used. Actual awards to 
CRAF carriers are based upon the aircraft accepted into the CRAF 
program. The Secretary may, in determining the quantity of business to 
be received under an airlift services contract for which the rate of 
payment is determined in accordance with subsection (a) of 10 U.S.C. 
9511a, use as a factor the relative amount of airlift capability 
committed by each air carrier to the CRAF.
    (a) Adjustments in commitment to target specific needs of the 
contract period. The amount of business awarded in return for commitment 
to the program under a CRAF contract may be adjusted prior to the award 
of the contract to reflect increased importance of identified aircraft 
categories (e.g., Aeromedical Evacuation) or performance factors (e.g., 
flyer's bonus, superior on-time performers, etc.). These adjustments 
will be identified in the solicitation.
    (b) Exclusions of categories of business from commitment based 
awards. Where adequate competition is available and USTRANSCOM 
determines some part of the business is more appropriate for award under 
competitive procedures, the rate-making will not apply. Changes to areas 
of business will be reflected in the solicitation.



Sec. 243.6  Exclusions from the uniform negotiated rate.

    Domestic CRAF is handled differently than international CRAF in that 
aircraft committed does not factor into the amount of business awarded 
during peacetime. If domestic CRAF is activated, carriers will be paid 
in accordance with pre-negotiated prices that have been determined fair 
and reasonable, not a uniform rate.



Sec. 243.7  Inapplicable provisions of law.

    An airlift services contract for which the rate of payment is 
determined in accordance with subsection (a) of 10 U.S.C. 9511a shall 
not be subject to the provisions of 10 U.S.C. 2306a, or to the 
provisions of subsections (a) and (b) of 41 U.S.C. 1502. Specifically, 
contracts establishing rates for services provided by air carriers who 
are participants in the CRAF program are not subject to the cost or 
pricing data provision of the Truth in Negotiations Act (10 U.S.C. 
2306a) or the Cost Accounting Standards (41 U.S.C. 1502). CRAF carriers 
will, however, continue to submit

[[Page 622]]

data in accordance with the MOU and the DOT, Form 41.



Sec. 243.8  Application of FAR cost principles.

    In establishing fair and reasonable rate of payments for airlift 
service contracts in support of CRAF, USTRANSCOM, in accordance with10 
U.S.C. 9511a, procedures differ from the following provisions of FAR 
Part 31 and DFARS Part 231, as supplemented:

FAR 31.202, Direct Costs
FAR 31.203, Indirect Costs
FAR 31.205-6, Compensation for Personal Services, subparagraphs (g), 
(j), and (k)
FAR 31.205-10, Cost of Money
FAR 31.205-11, Depreciation
FAR 31.205-18, Independent Research and Development and Bid and Proposal 
Costs
FAR 31.205-19, Insurance and Indemnification
FAR 31.205-26, Material Costs
FAR 31.205-40, Special Tooling and Special Test Equipment Costs
FAR 31.205-41, Taxes
DFARS 231.205-18, Independent research and development and bid and 
proposal costs



Sec. 243.9  Carrier site visits.

    USTRANSCOM may participate in carrier site visits, as required to 
determine the reasonableness or verification of cost and pricing data.



Sec. 243.10  Disputes.

    Carriers should first address concerns to the ratemaking team for 
resolution. Ratemaking issues that are not resolved to the carrier's 
satisfaction through discussions with the ratemaking team may be 
directed to the USTRANSCOM contracting officer.



Sec. 243.11  Appeals of USTRANSCOM Contracting Officer Decisions regarding rates.

    If resolution of ratemaking issues cannot be made by the USTRANSCOM 
contracting officer, concerned parties shall contact the USTRANSCOM 
Ombudsman appointed to hear and facilitate the resolution of such 
concerns. In the event a ratemaking issue is not resolved through the 
ombudsman process, the carrier may request a final agency decision from 
the Director of Acquisition, USTRANSCOM.



Sec. 243.12  Required records retention.

    The air carrier is required to retain copies of data submitted to 
support rate determination for a period identified in Subpart 4.7 of the 
Federal Acquisition Regulation, Contractor Records Retention.



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



Sec.

                            Subpart A_General

245.1 Purpose.
245.2 Applicability.
245.3 Responsibilities.

       Subpart B_Explanation of Terms, Acronyms and Abbreviations

245.5 Terms.
245.6 Abbreviations and acronyms.

                        Subpart C_The ESCAT Plan

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

            Subpart D_Procedures for Implementation of ESCAT

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

            Subpart E_ESCAT Air Traffic Priority List (EATPL)

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

       Subpart F_Procedure for Movement of Air Traffic Under ESCAT

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

[[Page 623]]

                        Subpart G_Test Procedures

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

                        Subpart H_Authentication

245.33 Approval.

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

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



                            Subpart A_General



Sec. 245.1  Purpose.

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



Sec. 245.2  Applicability.

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



Sec. 245.3  Responsibilities.

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



       Subpart B_Explanation of Terms, Acronyms and Abbreviations



Sec. 245.5  Terms.

    For the purpose of this part, the words ``will'' and ``shall'' 
denote mandatory action by the affected person(s) or agency(ies).
    Air control measures. Airspace and/or flight restrictions that may 
be issued in support of National Defense or Homeland Security 
initiatives.
    Air defense. All defensive measures designed to destroy attacking 
enemy aircraft or missiles as well as enemy operated aircraft or 
missiles in the Earth's envelope of atmosphere, or to nullify or reduce 
the effectiveness of such attack.
    Air defense area (ADA). Airspace of defined dimensions designated by 
the appropriate agency within which the ready control of airborne 
vehicles is required in the interest of national security.
    Air defense emergency (ADE). An emergency condition, declared by the 
appropriate military authority, that exists when attack upon the 
continental United States, Alaska, Hawaii, other U.S. territories and 
possessions or Canada by hostile aircraft or missiles is considered 
probable, is imminent, or is taking place.
    Air defense identification zone (ADIZ). Airspace of defined 
dimensions within which the ready identification, location, and control 
of airborne vehicles are required.
    Air defense liaison officer (ADLO). FAA representative at a North 
American Aerospace Defense Command (NORAD) air defense facility (NORAD 
Region or NORAD Air Defense Sector).
    Air defense region. A geographical subdivision of an air defense 
area.
    Air defense sector. A geographical subdivision of an air defense 
region.
    Air traffic control system command center (ATCSCC). FAA Command 
Center responsible for the efficient operation of the National Airspace 
System, ensuring safe and efficient air travel within the United States.
    Anchor annex flight. Classified DoD mission.

[[Page 624]]

    Appropriate military authority. The military commander with the 
authority to direct the implementation of this part. The appropriate 
military authorities are designated in part 245.11, (a)(1), (a)(2), 
(a)(3) and (b)(1), (b)(2), (b)(3).
    Chief of the Defense Staff (CDS). Canada's counterpart to the 
Chairman, Joint Chiefs of Staff.
    Civil reserve air fleet (CRAF). Those aircraft allocated, or 
identified for allocation, to the DoD under section 101 of the Defense 
Production Act of 1950 (50 U.S.C. App. 2071), or made available (or 
agreed to be made available) for use by the DoD under a contract made 
under this title, as part of the program developed by the DoD through 
which the DoD augments its airlift capability by use of civil aircraft.
    Combatant Command. A command with a broad continuing mission under a 
single commander established and so designated by the President, through 
the Secretary of Defense and with the advice and assistance of the 
Chairman of the Joint Chiefs of Staff. The Combatant Commands typically 
have geographic or functional responsibilities. For the purposes of this 
part, the term ``combatant command'' also includes NORAD.
    Continental United States (CONUS). All U.S. territory of the 48 
contiguous states (does not include Alaska and Hawaii), including the 
adjacent territorial waters within 12 miles of the coast of the 48 
contiguous states.
    Contingency operations. A military operation that:
    (1) Is designated by the Secretary of Defense as an operation in 
which members of the armed forces are or may become involved in military 
actions, operations, or hostilities against an enemy of the United 
States or against an opposing military force; or
    (2) Results in the call or order to, or retention on, active duty of 
members of the uniformed services under section 688, 12301 (a), 12302, 
12304, 12305, or 12406 of title 10 U.S.C., chapter 15, as amended by 
E.O. 13286, February 28 2003, or any other provision of law during a war 
or during a national emergency declared by the President or Congress.
    Defense emergency. An emergency condition that exists when:
    (1) A major attack is made upon U.S. forces overseas or on allied 
forces in any theater and is confirmed by either the commander of a 
command established by the Secretary of Defense or higher authority; or
    (2) An overt attack of any type is made upon the United States and 
is confirmed either by the commander of a command established by the 
Secretary of Defense or higher authority.
    Dispersal. Relocation of forces for the purpose of increasing 
survivability.
    Diversion. A change made in a prescribed route or destination for 
operational or tactical reasons.
    Domestic event network (DEN). A 24/7 FAA sponsored, telephonic 
conference call network that includes all of the Air Route Traffic 
Control Centers (ARTCC) in the U.S. It also includes various other 
governmental agencies that monitor the DEN. The purpose of the DEN is to 
provide timely notification to the appropriate authorities that there is 
an emerging air-related problem or incident within the CONUS.
    ESCAT air traffic priority list (EATPL). A list comprised of eight 
priorities designed to control the volume of air traffic when ESCAT has 
been implemented.
    National Airspace System (NAS). The NAS consists of the overall 
environment for the safe operation of aircraft that are subject to the 
FAA's jurisdiction. It includes: air navigation facilities, equipment 
and services, airports or landing areas; aeronautical charts, 
information and services; rules, regulations and procedures, technical 
information, and manpower and material. Included are system components 
used by the DoD.
    National emergency. A condition declared by the President or the 
Congress by virtue of powers previously vested in them that authorize 
certain emergency actions to be undertaken in the national interest. 
Actions to be taken may include partial, full, or total mobilization of 
national resources.
    Navigational aids (NAVAIDs). Aids to navigation, including but are 
not limited to, Global Positioning System (GPS), Tactical Air Navigation 
(TACAN), VHF Omnidirectional range (VOR), VHF Omnidirectional range/
Tactical Air Navigation (VORTAC),

[[Page 625]]

Radar, and Long Range Navigation (LORAN). GPS also includes its Federal 
government-provided augmentations, i.e., the FAA Wide Area Augmentation 
System (WAAS) and Local Area Augmentation System (LAAS), United States 
Coast Guard (USCG) Maritime Differential GPS (MDGPS) and USCG Nationwide 
Differential GPS (NDGPS).
    North American Aerospace Defense Command (NORAD). A combined 
military command established by the Governments of Canada and the United 
States responsible for North American aerospace warning and control. 
Headquartered in Colorado Springs, CO, NORAD is subdivided into three 
geographic regions: Alaska NORAD Region (ANR), Canadian NORAD Region 
(CANR) and the CONUS NORAD Region (CONR).
    Security assurance check. Measures taken by DoD/DHS, as appropriate, 
to ensure aircraft, cargo and crew security has not been compromised by 
hostile organizations or individuals who are or may be engaged in 
espionage, sabotage, subversion, terrorism or other criminal activities.
    Security control authorization (SCA). Authorization for an EATPL 
category eight aircraft to take off when ESCAT has been implemented, 
which will be coordinated between DHS and the appropriate military 
authority.
    Special Use Airspace (SUA). Airspace of defined dimensions 
identified by an area on the surface of the earth wherein activities 
must be confined because of their nature, and/or wherein limitation may 
be imposed upon aircraft operations that are not part of those 
activities. Types of special use airspace include Military Operations 
Areas, Prohibited Areas, Restricted Areas and Warning Areas.

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



Sec. 245.6  Abbreviations and acronyms.

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

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

[[Page 626]]



                        Subpart C_The ESCAT Plan



Sec. 245.8  Purpose.

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



Sec. 245.9  Authority.

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

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



Sec. 245.10  Scope.

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



Sec. 245.11  General description of the ESCAT plan.

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



Sec. 245.12  Amplifying instructions.

    (a) Prior to any formal ESCAT implementation, the appropriate 
military

[[Page 627]]

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

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


[[Page 628]]

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



Sec. 245.13  Responsibilities.

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

[[Page 629]]

    (1) Ensure that departing North American strategic flights are 
coordinated with appropriate NORAD and FAA/NAVCANADA authorities.
    (2) Ensure training/testing of this part at all levels within their 
command, as appropriate.



            Subpart D_Procedures for Implementation of ESCAT



Sec. 245.15  Appropriate military authority.

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



Sec. 245.16  ATCSCC.

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



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

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



Sec. 245.18  Transportation security operations center (TSOC).

    TSOC will direct appropriate FSDs and field offices to implement 
ESCAT restrictions as specified by the appropriate military authority. 
FSDs and field offices will take the following actions when directed to 
implement ESCAT:
    (a) Provide the appropriate military authority feedback through the 
TSOC on the impact of restrictions and when the restrictions have been 
implemented.
    (b) Impose restrictions on civil aviation as directed by DOT/DHS.
    (c) Disseminate ESCAT implementation instructions to U.S. civil 
aircraft operators and airports.

[[Page 630]]



            Subpart E_ESCAT Air Traffic Priority List (EATPL)



Sec. 245.20  Purpose.

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



Sec. 245.21  ESCAT air traffic priority list.

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

[[Page 631]]

    (3) LIFEGUARD and MEDEVAC aircraft in direct support of emergency 
medical services.
    (4) Flight operations essential to the development, production, and 
delivery of equipment, personnel, materials, and supplies essential to 
national security.
    (5) Other essential CARDA missions not covered in Priority Three.
    (g) Priority Seven. Other military flight operations.
    (h) Priority Eight. Other flight operations not specifically listed 
in priorities 1 through 7.



Sec. 245.22  Policy for application of EATPL.

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

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



       Subpart F_Procedure for Movement of Air Traffic Under ESCAT



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

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



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

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



Sec. 245.26  Aircraft being recovered.

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



Sec. 245.27  Data entry.

    Aircraft will file IFR or VFR flight plans, assigned a discrete 
transponder code, and must be in direct radio communication with ATC. 
The appropriate EATPL number will be entered in the remarks section of 
the flight plan. The

[[Page 632]]

EATPL number will be passed with flight plan data from one ATC facility 
to the next, and to the appropriate air defense control facilities.



                        Subpart G_Test Procedures



Sec. 245.29  Purpose.

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



Sec. 245.30  ESCAT test procedures restrictions.

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



Sec. 245.31  ESCAT test.

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

     and/or

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



                        Subpart H_Authentication



Sec. 245.33  Approval.

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



PART 246_STARS AND STRIPES (S&S) NEWSPAPER AND BUSINESS OPERATIONS--Table of Contents



Sec.
246.1 Purpose.
246.2 Applicability.
246.3 Definitions.
246.4 Policy.
246.5 Responsibilities.
246.6 Procedures.

[[Page 633]]

246.7 Information requirements.

Appendix A to Part 246--Mission
Appendix B to Part 246--Business and Financial Operations
Appendix C to Part 246--Personnel Policies and Procedures
Appendix D to Part 246--Editorial Operations
Appendix E to Part 246--Stars and Stripes (S&S) Board of Directors

    Authority: 10 U.S.C. 136.

    Source: 59 FR 19137, Apr. 22, 1994, unless otherwise noted.



Sec. 246.1  Purpose.

    This part:
    (a) Establishes policy, assigns responsibilities, and prescribes 
procedures for the S&S organizations owned by designated Unified 
Commands consistent with 32 CFR part 372.
    (b) Supersedes policies and procedures in 32 CFR part 247 about the 
S&S newspapers.
    (c) Authorizes the establishment, management, operation, and 
oversight of the Stars and Stripes, including the resale of commercial 
publications necessary to support the overall S&S mission, production, 
distribution authority, and business operations as mission-essential 
activities of the Department of Defense and the designated Unified 
Commands.
    (d) Designates the Secretary of the Army as the DoD Executive Agent 
for providing administrative and logistical support to the American 
Forces Information Service (AFIS), designated Unified Commands, and the 
S&S.
    (e) Authorizes the Commander in Chief, U.S. European Command, and 
the Commander in Chief (CINC), U.S. Pacific Command, to establish and 
maintain a S&S board of directors to address S&S business operations in 
their Unified Commands.



Sec. 246.2  Applicability.

    This part applies to the Office of the Secretary of Defense, the 
Military Departments (including their National Guard and Reserve 
components), the Chairman of the Joint Chiefs of Staff and the Joint 
Staff, the Unified and Specified Commands, the Inspector General of the 
Department of Defense, the Defense Agencies, and the DoD Field 
Activities (hereafter referred to collectively as ``the DoD 
Components''). The term ``the Military Services,'' as used herein, 
refers to the Army, the Navy, the Air Force, and the Marine Corps.



Sec. 246.3  Definitions.

    (a) Adverse Conditions. Conditions that may adversely affect the 
survival of the newspapers such as troop drawdown, increase in troop 
population, currency fluctuations, inflation, armed conflict, national 
contingency deployment, and others.
    (b) S&S Commander/Publisher. The senior position in each S&S 
responsible for simultaneously performing dual functions. This military 
officer commands the S&S to which assigned, while also serving as the 
publisher of the Stars and Stripes produced by that organization.
    (c) S&S Management Action Group (MAG) and S&S Steering Committee. 
These are ad hoc joint committees between the Office of the Assistant 
Secretary of Defense (Public Affairs) [OASD (PA)] and the Office of the 
Assistant Secretary of Defense (Force Management and Personnel) [OASD 
(FM&P)] that address S&S personnel and business policies. The S&S MAG is 
chaired by the senior OASD (PA) AFIS member and includes members from 
the OASD (FM&P) and other DoD offices with the authority and expertise 
to address various S&S problems. The Director of the AFIS, and the 
Deputy Assistant Secretary, OASD (FM&P), serves as co-chairman of the 
S&S Steering Committee that addresses DoD-level S&S issues. Neither the 
DoD S&S Steering Committee, nor the S&S MAG, involve themselves in Stars 
and Stripes editorial policies.
    (d) S&S Ombudsman. A highly qualified journalist hired from outside 
the Department of Defense for a term of 3 years who independently 
advises the Unified Command CINCs, the S&S commander/publisher, the 
Stars and Stripes editor, the Director of the AFIS, and the Congress on 
matters of readership interest in the Stars and Stripes.
    (e) Stars and Stripes. The title of one, or both, depending on the 
context of usage, of the newspapers produced by the S&S.

[[Page 634]]

    (f) Stars and Stripes Editor. The senior civilian position on the 
newspaper editorial staff of the S&S to which he or she is assigned. All 
mention of ``the editor'' in this part refers exclusively to this 
position, unless otherwise specified.
    (g) Stars and Stripes (S&S). The organizations that perform the 
administrative, editorial, and business operations, which include 
newspapers, bookstores, job-printing plants, etc. necessary to do their 
mission.



Sec. 246.4  Policy.

    It is DoD policy that:
    (a) The U.S. European Command and the U.S. Pacific Command are 
authorized to publish the Stars and Stripes and provide support to the 
S&S. The Unified Command component commanders and their public affairs 
staffs shall provide the Stars and Stripes editorial staffs the same 
help provided to commercial newspapers, in compliance with the 
principles governing the release of information to media in 32 CFR part 
375.
    (b) Editorial policies and practices of the Stars and Stripes shall 
be in accordance with journalistic standards governing U.S. daily 
commercial newspapers of the highest quality, with emphasis on matters 
of interest to the Stars and Stripes readership. Except as provided in 
paragraph (e) of this section, the DoD policy for the Stars and Stripes 
is that there shall be a free flow of news and information to its 
readership without news management or censorship. The calculated 
withholding of unfavorable news is prohibited.
    (c) The S&S are basically self-sustaining operations. Each S&S shall 
be administered in accordance with DoD Directive 1015.1 \1\ as a joint-
Service nonappropriated fund (NAF) instrumentality (NAFI) in its Unified 
Command, except where different procedures are specified in this part. 
Funding shall be provided through newspaper sales, resale of commercial 
publications, authorized advertising, job printing, and appropriated 
fund (APF) support as authorized by this part, DoD Directive 1015.6 \2\ 
and DoD Instruction 1330.18 \3\. The S&S shall conduct bookstore 
operations similar to business operations of commercial bookstores in 
the United States. The Stars and Stripes and the S&S bookstores provide 
important news and information to U.S. personnel and their families 
stationed overseas while generating NAF revenues.
---------------------------------------------------------------------------

    \1\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
    \2\ See footnote 1 to Sec. 246.4(c).
    \3\ See footnote 1 to Sec. 246.4(c).
---------------------------------------------------------------------------

    (d) The Stars and Stripes personnel procedures shall differ from 
commercial newspapers only because the S&S are U.S. Government 
organizations that are required to operate in accordance with the 
following:
    (1) 32 CFR part 40, other Federal laws and DoD Directives that 
affect all DoD employees, and the Manual for Courts Martial (MCM), 1984 
\4\, for S&S military personnel on active duty.
---------------------------------------------------------------------------

    \4\ See footnote 1 to Sec. 246.4(c).
---------------------------------------------------------------------------

    (2) National security constraints prescribed by E.O. 12356 (47 FR 
14874 and 15557, 3 CFR, 1982 Comp., p. 166).
    (3) Overseas status of forces agreements (SOFAs), where applicable.
    (e)(1) The only circumstances under which news or information that 
is not in the public domain may be directed to be withheld from 
publication in the Stars and Stripes by a Unified Command CINC are when 
such publication:
    (i) Involves disclosure of classified national security information.
    (ii) Would adversely affect national security.
    (iii) Clearly endangers the lives of U.S. personnel.
    (2) Those circumstances in paragraphs (e)(1)(i) through (e)(1)(iii) 
may not be construed to permit the calculated withholding of news 
unfavorable to the Department of Defense, the Military Services, or the 
U.S. Government. Only the Unified Command CINC may authorize withholding 
of news or information from the Stars and Stripes. When the CINC directs 
withholding of publication, the Unified Command shall immediately inform 
the ASD(PA) by telephone and then forward an immediate precedence, 
appropriately classified, message to the following: SECDEF Washington 
DC//OATSD-PA, with information copies to

[[Page 635]]

the Director, AFIS, and the Special Assistant for Public Affairs to the 
Chairman of the Joint Chiefs of Staff. The CINC may include the 
appropriate ``AMEMBASSY'' as an information addressee.
    (f) Sensitivities of host-nations shall not be a reason to withhold 
any story from publication in the Stars and Stripes. The Unified Command 
theater host-nation sensitivity lists prepared for the Armed Forces 
Radio and Television Service (AFRTS) shall not be used to restrict the 
content of the Stars and Stripes. If representatives of other 
governments show an interest in, or concern about, the content of the 
Stars and Stripes, they shall be informed that:
    (1) The Stars and Stripes does not represent the official position 
of the U.S. Government, including the Department of Defense or the 
Unified Command.
    (2) The Stars and Stripes is an unofficial, abstracted collection of 
commercial news and opinion available to commercial newspapers in the 
United States, along with Stars and Stripes editorial staff-generated 
DoD, command, and local news and information. The Stars and Stripes 
provides this information to the members of the Department of Defense 
and their family members serving overseas, as do commercial daily 
newspapers that are published and sold throughout the United States in 
keeping with the principles of the First Amendment to the U.S. 
Constitution.
    (g) The Department of the Army shall be the DoD Executive Agency to 
provide APF and NAF support to the S&S. APFs shall be provided, when 
required by adverse conditions or special circumstances as defined in 
Sec. 246.3, by the Military Services, as agreed on through a memorandum 
of agreement (MOA) detailing the shared responsibilities, and approved 
by the OSD and the Unified Commands.



Sec. 246.5  Responsibilities.

    (a) The Assistant to the Secretary of Defense (Public Affairs), 
under 32 CFR part 375, as the principal staff assistant to the Secretary 
of Defense for internal information policy and programs, including S&S 
matters, shall:
    (1) Provide policy and broad operational guidance to the Director of 
the AFIS.
    (2) Monitor and evaluate the overall effectiveness of the policies 
in Sec. 246.4, and procedures in Sec. 246.6.
    (b) The Director, American Forces Information Service, under 32 CFR 
part 372 shall:
    (1) Develop, issue, and oversee the implementation of policies and 
procedures for the Unified Commands and the Military Departments for the 
operation of the S&S.
    (2) Provide business and policy counsel on the mission performance 
and financial operations of the S&S.
    (3) Serve as the DoD point of contact with the Congressional Joint 
Committee on Printing (JCP) for S&S matters.
    (4) In coordination with the Chairman of the Joint Chiefs of Staff 
and the ATSD(PA), provide broad and overall planning guidelines to the 
Unified Commands for S&S wartime operations that involve more than one 
area of responsibility.
    (5) Chair, as required, at the Deputy Assistant to the Secretary of 
Defense level, or above, the steering committee providing guidance to 
the S&S MAG.
    (6) Select and employ the S&S Ombudsman.
    (c) The Secretaries of the Military Departments shall:
    (1) Nominate the most highly-qualified military personnel for 
positions in the S&S in accordance with appendix C to this part.
    (2) Enter into appropriate MOAs, as provided by the Unified 
Commanders and, as required by the Office of the Secretary of Defense 
(OSD), to provide APF and/or NAF support when required by adverse 
conditions as defined in Sec. 246.3(a).
    (d) The Secretary of the Army shall:
    (1) Provide administrative and logistic support, as the DoD 
Executive Agent, to the S&S organizations.
    (2) Support NAF and APF accounting and reporting procedures required 
by DoD Instruction 7000.12 \5\, in coordination with the Unified 
Commands and the Director of the AFIS.
---------------------------------------------------------------------------

    \5\ See footnote 1 to Sec. 246.4(c).

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

[[Page 636]]

    (3) Designate the successor-in-interest to the S&S, as agreed upon 
by the applicable Unified Command and the Director of the AFIS.
    (e) The Commander in Chief, U.S. European Command, and the Commander 
in Chief, U.S. Pacific Command, shall:
    (1) Authorize a Stars and Stripes newspaper, provide operational 
direction to the S&S commander publisher, and support the S&S throughout 
the Unified Command area of responsibility, consistent with each 
organization's status as a category B NAFI.
    (2) Provide Unified Command regulations and guidance, as needed, to 
carry out this part.
    (3) Establish procedures to resolve situations wherein a U.S. 
Ambassador (or, if so designated, the chief of mission) believes a 
specific issue in his or her nation of responsibility, not already in 
the public domain through other news sources, would violate national 
security or endanger the safety of American citizens, or other persons 
under their jurisdiction, if it were to be published in the Stars and 
Stripes.
    (4) Select the S&S commander/publisher and other military officers 
in S&S positions.
    (5) Aid the S&S commander/publisher to educate the Stars and Stripes 
editorial staff about the missions of their Unified Command and Military 
Service component commands.
    (6) Approve the selection of the Stars and Stripes editor.
    (7) Establish and maintain a S&S board of directors to address S&S 
business operations. (See appendix E to this part)
    (8) Establish and maintain Stars and Stripes readership forums, 
which may take many forms, to address Stars and Stripes matters of 
interest and S&S bookstore operations. Those forums are to provide 
community feedback to the S&S. This will enable the S&S commander/
publisher and the Stars and Stripes editor to better understand and, 
thereby, better serve the interests and needs of the readers and 
bookstore customers.
    (9) At the discretion of the Unified Command CINC, provide for 
meetings between the S&S commander/publisher and the Stars and Stripes 
editor, the Unified Command public affairs office, and the Unified 
Command component commands, represented by their directors of public 
affairs, to discuss the performance of the Stars and Stripes and the 
performance of related public affairs operations. The Unified Commands, 
their component commands, and the S&S may invite any attendees they 
choose. Representatives from the AFIS may attend. Those meetings may not 
serve as editorial advisory boards. The Unified Command and component 
commands represent the principal source, and a prominent subject, of 
Stars and Stripes staff-generated news coverage. Consequently, any 
involvement or appearance of involvement by component command staffs in 
the Stars and Stripes editorial policy creates an unacceptable conflict 
of interest damaging to the editorial integrity and credibility of the 
Stars and Stripes.
    (10) Ensure that the S&S Commander/Publisher:
    (i) Assumes the duties and responsibilities of command, leadership, 
management, and training for the S&S.
    (ii) Executes DoD and Unified Command policy.
    (iii) Is responsible to the Unified Command CINC for S&S operations 
to include the newspaper publication and timely circulation, the 
operation of the S&S resale and job printing activities, and associated 
distribution systems in the relevant Unified Command area of 
responsibility.
    (iv) Provides planning and execution of initiatives to ensure 
support of U.S. Armed Forces during contingency operations and armed 
conflict. The S&S commander/publisher shall identify wartime and 
contingency S&S personnel asset requirements to the Unified Command CINC 
to fulfill the Unified Command force responsibilities during armed 
conflict.
    (v) Selects the Stars and Stripes editor.
    (vi) Approves, in coordination with the Stars and Stripes editor, 
military personnel selectees for the Stars and Stripes editorial staff. 
(See appendix C to this part)
    (vii) Provides a current status briefing and 2-year financial 
forecast to the Director of the AFIS at the annual AFIS S&S meeting. 
Provides support

[[Page 637]]

to the S&S board of directors as required in appendix E to this part.
    (viii) Conducts frequent independent readership surveys, in 
accordance with DoD Instruction 1100.13 \6\, and readership focus groups 
to gather information.
---------------------------------------------------------------------------

    \6\ See footnote 1 to Sec. 246.4(c).
---------------------------------------------------------------------------

    (f) The Other Unified Commanders in Chief shall ensure that their 
deployment exercise, contingency, and war-time planning documents 
reflect the S&S transportation, funding or reimbursement, and in-theater 
distribution requirements, as applicable. Information copies of such 
planning documents or annexes shall be furnished to the following:
    (1) U.S. European Command (ATTN: Director, Public Affairs).
    (2) U.S. Pacific Command (ATTN: Director, Public Affairs).
    (3) The AFIS (ATTN: Assistant Director for Plans and Policy).



Sec. 246.6  Procedures.

    (a) General. (1) Authority to establish or disestablish S&S 
operations is from the Secretary of Defense through the ATSD(PA) and the 
Director of the AFIS. The Unified Commands shall forward such requests 
to the Director of the AFIS, as required.
    (2) Classified information shall be protected in accordance with 32 
CFR parts 159 and 159a.
    (3) The Stars and Stripes and the S&S business operations shall 
conform to applicable regulations and laws involving libel, copyright, 
U.S. Government printing and postal regulations, and DoD personnel 
policies and procedures.
    (4) With the concurrence of the Unified Command, the S&S is 
authorized direct communication with the Military Services on S&S 
personnel matters and with the Department of the Army on S&S financial 
matters. The S&S shall keep the Unified Command and the AFIS informed of 
all actions.
    (b) Management Review and Evaluation. (1) The Director of the AFIS 
provides business counsel, assistance, and policy oversight for the S&S. 
The Director of the AFIS shall meet annually with the Unified Command 
representatives, to include the S&S commander/publisher, and senior DoD 
officials who have S&S responsibilities, such as the S&S MAG.
    (2) The Director of the AFIS shall be assisted by a S&S MAG composed 
of senior representatives from the AFIS, the OASD(FM&P), and the other 
DoD offices with the authority and expertise to aid in solving S&S 
problems. As needed, the Director of the AFIS may organize a DoD 
steering committee to oversee and aid the S&S MAG to address specific 
concerns identified by the Director of the AFIS and the Unified Command 
CINCs.
    (3) In accordance with DoD Instruction 7600.6 \7\, and Army 
implementation thereof, the S&S shall be audited on an annual basis, 
either by the Army Audit Agency (AAA) or by an AAA-approved audit 
contractor. NAF funds of the S&S shall be used for such contracts. The 
audits will be performance audits and may be financial in nature as 
prescribed by the Comptroller General of the United States Government 
Auditing Standards. Each annual audit will determine whether prior audit 
recommendations have been implemented and the reasons any have not been 
implemented. When the Inspector General, DoD, elects to perform an audit 
of the S&S organization, such audit may substitute for the required 
annual audit. The S&S organizations shall coordinate their audit 
requirements with each other and the Army Community and Family Support 
Center to the maximum extent practicable to avoid duplication of costs 
and to increase the efficiency and effectiveness of these audits. 
Information copies of the audit contractor reports shall be forwarded by 
the S&S to the Unified Commands, AFIS and AAA. The S&S shall provide a 
response to the audit to the Unified Command CINC within 60 days of 
receiving the completed report. The S&S response to the audit must 
indicate a concurrence or nonconcurrence for each finding and 
recommendation. For each concurrence the corrective actions taken or 
planned should be described and completion dates for actions already 
taken, as well as the estimated dates for completion of planned actions, 
should be provided. For each

[[Page 638]]

nonconcurrence, specific reasons must be stated. If appropriate, 
alternative methods for accomplishing desired improvements may be 
proposed. If nonconcurrences in the findings and recommendations cannot 
be resolved between the S&S management and the auditors or AAA endorses 
the contractors' findings and recommendations, then the resolution 
procedures established by DoD Directive 7650.3 \8\, and Army Regulations 
should be followed. The Unified Command shall forward the response to 
the Director of the AFIS and the AAA.
---------------------------------------------------------------------------

    \7\ See footnote 1 to Sec. 246.4(c).
    \8\ See footnote 1 to Sec. 246.4(c).
---------------------------------------------------------------------------



Sec. 246.7  Information requirements.

    The reporting requirements in Sec. 246.6, and appendix B to this 
part shall be submitted in accordance with DoD Instruction 7000.12, and 
7600.6, unless specifically excepted by this part.



                  Sec. Appendix A to Part 246--Mission

    A. General. The Stars and Strips (S&S) organizations shall 
contribute to the overall U.S. joint-defense mission overseas by 
providing news and information for the Armed Forces internal audiences 
serving in a Unified Command area of responsibility, or deployed in 
support of designated joint-Service exercises, contingency operations, 
or situations of armed conflict. That shall be done through the 
operation of a daily newspaper and resale activities of commercial 
publications (primarily through the S&S bookstores).
    B. Newspapers. The Stars and Stripes coverage of news and 
information makes possible the continued exercise of the 
responsibilities of citizenship by DoD personnel and their families 
overseas. The Stars and Stripes are to be published overseas during 
peacetime, contingency operations, and armed conflicts. They shall 
provide the same range of international, national, and regional news and 
opinion from commercial sources, as is provided by newspapers in the 
United States. Additionally, to better serve their readers, the Stars 
and Stripes shall pay special attention to news of local, host-country 
conditions relevant to their audiences. They shall provide, through 
their reporters and bureaus, news of local military communities within 
the theater and news of the U.S. Government, the Department of Defense, 
the Military Services, and theater operations not usually available to 
readers from outside commercial sources. The Stars and Stripes are to 
serve the interests of their overseas DoD readership as do prominent 
commercial daily newspapers throughout the United States.
    C. S&S Bookstores and Retail Operations. The S&S shall serve 
readers' needs for contemporary news and information by providing a 
broad selection of resale commercial publications of interest to their 
customers at the most reasonable prices, either directly in the S&S 
bookstores or through other authorized sales outlets at their discretion 
throughout the Unified Command designated geographic area. The S&S shall 
have the same authorities and rights for resale commercial publications 
that the military exchange services have for other nonsubsistence goods 
and services.
    D. S&S Job Shop Printing. The S&S are authorized to operate job shop 
printing, to include book publishing and/or printing, within the Unified 
Commands for U.S. military community newspapers, military organizations, 
nonappropriated fund (NAF) instrumentalities (NAFI), Morale, Welfare, 
and Recreation (MWR) activities, private organizations of interest and 
concern to the Department of Defense, as designated by 32 CFR part 212, 
DoD employees and their immediate families, and others designated by the 
Unified Command.
    E. War-Time Mission and Contingency Operations. The S&S shall 
provide the Stars and Stripes on a daily basis for transportation to, 
and distribution in, the designated area of operations, as requested and 
funded by the responsible Unified Command Commander-in-Chief (CINC), and 
supported by the respective Unified Command owning the S&S organization. 
The Unified Commands shall plan for required airlift on a timely basis 
and intratheater distribution of daily Stars and Stripes newspapers as 
part of their operational planning documents. Intratheater distribution 
and required airlift of the Stars and Stripes shall be the 
responsibility of the supported Unified Command CINC and respective 
component commands, who shall reimburse the S&S for nonresale issues on 
a per-issue basis. When deployed to an area of operations, the Stars and 
Stripes reporters shall operate in the same manner as commercial media 
representatives. The deployed Stars and Stripes reporters shall be 
eligible for participation in DoD and command-sponsored regional and 
local media pools.



     Sec. Appendix B to Part 246--Business and Financial Operations

    A. General Financial Operations. 1. For financial management 
purposes, the Unified Commands shall administer the Stars and Stripes 
(S&S), with policy oversight exercised by the Director of the American 
Forces Information Service (AFIS), as nonappropriated fund 
instrumentalities (NAFIs) in accordance with Sec. 246.4(c), except 
where procedures differ as defined in this part. The

[[Page 639]]

S&S shall report as prescribed in DoD Instruction 7000.12, \1\ providing 
information copies to the Unified Commands and the Director of the AFIS.
---------------------------------------------------------------------------

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

    a. The S&S shall be authorized nonappropriated fund (NAF) and 
appropriated fund (APF) support as category B NAFIs as provided under 
DoD Instruction 1015.6. \2\
---------------------------------------------------------------------------

    \2\ See footnote 1 to A.1. of this appendix.
---------------------------------------------------------------------------

    b. The S&S shall be funded to the maximum extent possible through 
the sale and distribution of the newspaper, news magazines, books, 
periodicals, and similar products; job printing; authorized advertising 
revenues; and other authorized sources of revenue, as approved by the 
Department of Defense and the Congress.
    c. APF support shall be kept to a minimum, consistent with the S&S 
mission.
    2. The Secretary of the Army shall be the DoD Executive Agent for 
APF and NAF support to the S&S. If adverse conditions occur, the other 
Military Services shall provide proportionate funding support through a 
memorandum of agreement (MOA) containing funding procedures coordinated 
with the affected Unified Commands and the AFIS. Copies of the agreement 
shall be provided to all concerned parties.
    3. The Stars and Stripes and other S&S commercial resale 
publications may be made available within the Unified Command to other 
U.S. Government Agency members, and U.S. Government contractors, as 
approved by the Unified Command.
    4. The S&S system of accounting and internal control shall conform 
with the requirements of DoD Instruction 7000.12, Army regulations on 
Morale, Welfare and Recreation (MWR) activities and NAFIs, and NAF 
accounting policies and procedures, except as authorized by the S&S 
Comptroller's Manual to meet business and consolidation requirements. 
The S&S shall ensure that quarterly reports are furnished to the Unified 
Commands, the S&S Board of Directors, and the Director of the AFIS.
    B. Appropriated Funds. In addition to DoD Directive 1015.6, the S&S 
shall be authorized APF support:
    1. As provided by the U.S. Army for direct funding support when 
adverse conditions make such funding necessary to ensure the survival of 
the newspaper without impairment of mission capability. The Secretary of 
the Army shall provide such funding when requested by the affected 
Unified Command Commander-in-Chief (CINC), through the Director of the 
AFIS.
    2. For regional air transportation of the newspaper, overseas 
``transportation of things'' as authorized to joint-Service NAFIs; and 
electronic, optical, or satellite transmission of the newspaper when 
long distances require these modes to ensure timely and economical 
delivery.
    3. As required, to transport Stars and Stripes to officially 
designated ``remote and isolated'' locations. The Unified Commands may 
authorize DoD official postage to remote and isolated locations, if that 
action is required to ensure timely delivery. Each S&S shall annually 
review its mailing support to minimize APF expenditures. The U.S. postal 
regulations apply to the S&S.
    a. The S&S shall use in-house or other non-postal means of 
transportation to distribute the newspaper to areas that are not 
designated as remote and isolated.
    b. The S&S are authorized to use official managerial and 
administrative mail related exclusively to the business of the U.S. 
Government in accordance with DoD 4525.8-M, \3\ Chapter 3, Subsection 
O.8. Such official mail is also authorized to support archive 
responsibilities in the United States, as designated by the AFIS. 
Official mail may forward the Stars and Stripes through the Department 
of Defense to the Congress. Official mail is not authorized to provide 
the Stars and Stripes to general readership or to support in-theater 
distribution of S&S resale commercial publications.
---------------------------------------------------------------------------

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

    4. For transportation of military personnel incident to mission-
essential travel, required military training, participation in 
contingency operations, in military field exercises, such as 
``REFORGER'' or ``TEAM SPIRIT,'' or to areas of armed conflict.
    5. In times of armed conflict or national contingency deployment, as 
directed by the Chairman of the Joint Chiefs of Staff for production and 
free distribution of the Stars and Stripes to forces as designated. The 
other Military Services shall reimburse the Department of the Army for 
services as authorized in the MOA. The Unified Commands shall endeavor 
to provide the Stars and Stripes and other S&S services for DoD 
personnel engaged in military operations, contingency operations, and 
exercises in the most expeditious manner possible as requested by the 
participating commands. The requesting Unified Command shall be 
responsible for distribution of the Stars and Stripes within its theater 
of operations. These services shall be provided on a reimbursable basis 
to the S&S.
    6. In other agreements as made with the Unified Commands, the 
Department of Defense, and the U.S. Army as the DoD Executive Agency.
    C. Nonapproriated Funds. 1. So that the Department of the Army may 
perform its duties as the DoD Executive Agency, the S&S

[[Page 640]]

NAFS shall be invested in the Army's Banking and Investment Program and 
insured with the Army's Risk Management Insurance Program in accordance 
with DoD instruction 7000.12 and the implementing Army regulations.
    2. Excess NAFs belonging to the S&S may be declared excess by the 
Unified Command CINC, upon the recommendation of the S&S board of 
directors, under the guidelines in section C.3. of this appendix. 
Disposition of excess NAFs shall be as directed by the Unified Command 
CINC. The S&S NAFs declared in excess in one theater may be allocated or 
loaned to the other Unified Command for S&S-related activities.
    3. The S&S NAFs may be declared in excess only if the following 
conditions are met:
    a. The S&S working capital is at a level to continue prudent 
operations.
    b. The local national S&S employee retirement and severance accounts 
are fully funded. The other S&S employment agreements required by 
applicable NAF regulations must also be fully funded.
    c. Sufficient capital is available from an investment and/or 
contingency fund to complete all planned and projected capital 
expenditure projects, and to fulfill the other legitimate S&S business 
obligations.
    d. Additional sinking funds are available to sustain the S&S through 
foreseeable periods of financial crisis created by adverse conditions. 
The sinking fund level shall be determined by the S&S board of directors 
and recommended to the Unified Command CINC for approval.
    e. The retail price of the Stars and Stripes is at, or below, the 
most prevalent charge for similar U.S. newspapers. That shall be 
determined by the S&S board of directors and recommended to the Unified 
Command CINC for approval. The Director of the AFIS will be informed of 
any decision to raise the retail sales price of Stars and Stripes and 
will provide the Unified Command CINC an assessment of average 
commercial newspaper sales prices throughout the United States. The 
availability of the Stars and Stripes at reasonable cost to overseas 
personnel, commensurate with the retail sales price of comparable 
commercial newspapers throughout the United States, is a major quality-
of-life consideration. A reasonable retail sales price is critical to 
ensure the greatest access for all overseas personnel and their family 
members to current print news and information so that they may remain 
informed U.S. citizens.
    f. The S&S books, periodicals, magazines, and similar products are 
to be sold at no more than cover price and should be discounted to an 
appropriate level that still sustains full S&S operations, as determined 
by the S&S board of directors and recommended to the Unified Command 
CINC for approval.
    4. Under adverse conditions, the S&S commander/publisher may apply 
for NAF support through the Unified Commands to the Director of the 
AFIS. Following approval by the Unified Command, the Director of the 
AFIS shall forward the request to the Secretary of the Army for 
appropriate action. Such NAF requests must first be recommended by the 
S&S board of directors and approved by the Unified Command CINC. In 
these cases, the S&S NAFs in either Unified Command may be considered as 
the first source before forwarding a request to the Department of the 
Army. The Unified Commands may lend NAFs from one S&S to the other 
through an MOA.
    D. Bookstores and Related Resale Activities. 1. The S&S shall 
endeavor to provide the same selection of resale commercial publications 
that would be available in quality bookstores in the United States 
through its bookstores, or, at the discretion of the S&S management, 
other authorized sales outlets. The S&S has the same authorities and 
rights for resale and distribution of commercial publications that the 
military exchange services have on military installations for other 
nonsubsistence goods and services. The assortment of commercial books, 
periodicals, magazines, and similar products shall approximate 
publications commercially available in United States bookstore chains of 
similar size. Decisions on which publications to include shall be made 
by the S&S on the basis of marketability and service, not content. As an 
exception to the Army NAF procurement regulations, contracting authority 
limitations applicable to U.S. Army and joint-Service NAFIs do not apply 
to the S&S procurement of resale commercial publications. Limitations 
will be as recommended by the S&S board of directors and approved by the 
Unified Command.
    2. The Unified Command CINC shall adjudicate publications resale 
issues within the theater that cannot be resolved by the S&S at the 
operating level.
    3. Both S&S shall consolidate their wholesale purchases of 
commercial publications to the maximum extent, consistent with Unified 
Command distribution criteria, actual economies of scale, and cost-
efficiencies. Consolidation initiatives shall be worked in concert with 
the Unified Commands, the AFIS, and the S&S board of directors. As 
recommended by the S&S board of directors and approved by the Unified 
Command CINC, the S&S bookstores shall offer discounts similar to 
commercial United States bookstore franchises. The offering of discounts 
should not endanger the financial viability of the S&S.
    4. The S&S bookstores shall be audited by the S&S management at 
least annually. Where bookstores are operating at a consistent financial 
loss, the S&S may consider servicing readers through arrangements with

[[Page 641]]

exchanges, other military outlets, or consider consolidation at central 
points.
    a. Bookstore inventory levels shall be verified internally on a 
semiannual basis. Inventory levels shall be held to cost-effective 
levels that still consider the servicing needs of overseas customers.
    b. The S&S shall establish affidavit-return procedures to vendors 
and/or publishers, where possible, to return damaged merchandise, 
overstock, or out-of-date publications to reduce APF expenditures 
necessary for ``over-the-water'' transportation.
    5. The S&S shall conduct local ``market-penetration'' surveys. The 
S&S shall also operate a ``customer-complaint'' feedback system to 
monitor its service and provide the best possible service to its 
customers. The results of those surveys shall be provided to the Unified 
Command with recommendations to the S&S board of directors, as required.
    E. Advertising. 1. As U.S. Government publications, the Stars and 
Stripes operate under the authority of the ``Government Printing & 
Binding Regulations'' \4\ issued by the Joint Committee on Printing 
(JCP) of the U.S. Congress. To serve the readership, the JCP has granted 
an exemption to Title III of the ``Government Printing and Binding 
Regulations'', authorizing the Stars and Stripes to carry limited 
advertising so that they may provide information to overseas DoD 
personnel and their families on commercial goods and services. The Stars 
and Stripes are authorized to solicit, sell, publish, and circulate 
display advertising, paid classified ads, and supplement section 
advertising, to include price and brand names of products or services 
and related coupons that are available through authorized Government 
outlets, their concessionaires, NAF activities, or private organizations 
operating on DoD installations under 32 CFR part 212. The Stars and 
Stripes may have run-of-the-paper display advertising not to exceed 25 
percent of the newspaper over a period of 1 month. In addition, the 
Stars and Stripes are authorized to sell, publish, and circulate display 
advertising, and supplement section advertising for consumer goods and 
services not available through authorized Government outlets, their 
concessionaires, NAF activities, or private organizations operating on 
DoD installations under 32 CFR part 212 when sponsored by MWR 
activities, NAFIs, or Type I (Federally Sanctioned) private 
organizations as defined by 32 CFR part 212. Implementation of the 
advertising authority shall be as specified by the Director of the AFIS, 
who shall coordinate with the JCP.
---------------------------------------------------------------------------

    \4\ Copies may be obtained from the Joint Committee on Printing of 
the U.S. Congress, 818 Hart Senate Office Building, Washington, DC 
20510.
---------------------------------------------------------------------------

    2. The Stars and Stripes may sell, through commercial advertising 
agencies, run-of-the-paper advertising of DoD recruiting and retention 
programs or activities.
    3. The S&S has the right to refuse any advertising.
    4. The Stars and Stripes may publish news stories on special DoD-
affiliated tours or entertainment opportunities for DoD personnel and 
their dependents in accordance with DoD Instructions 1015.2 \5\ and 
1330.13 \6\.
---------------------------------------------------------------------------

    \5\ See footnote 1 to A.1 of this appendix.
    \6\ See footnote 1 to A.1 of this appendix.
---------------------------------------------------------------------------

    5. The S&S may promote the Stars and Stripes, books, periodicals, 
magazines and similar products; authorized advertising; and job printing 
services (except APF) in the Stars and Stripes. Books, periodicals, 
magazines, and similar product promotions may include publications by 
name, title, author, and price. The Stars and Stripes also may promote 
literacy, health, safety, and other community service issues.
    6. The S&S may promote AFRTS schedules, programs, and services in 
their newspapers and bookstores. The S&S shall cooperate with AFRTS 
outlets to promote each others' programs and services as authorized by 
DoD Directive 5120.20 \7\.
---------------------------------------------------------------------------

    \7\ See footnote 1 to A.1 of this appendix.
---------------------------------------------------------------------------

    7. As a newspaper operated by the Department of Defense, the Stars 
and Stripes may not:
    a. Contain any material that implies that the DoD Components or 
their subordinate levels endorse or favor a specific commercial and/or 
individually-owned product, commodity, or service.
    b. Subscribe, even at no cost, to a commercial, feature wire, or 
other service whose primary purpose is the advertisement or promotion of 
commercial products, commodities, or services.
    c. Carry any advertisement that implies discrimination as to race, 
age, origin, gender, politics, religion, or physical characteristics 
that include health.
    F. Trademark. The S&S shall trademark the Stars and Stripes in 
overseas areas where it is distributed.



     Sec. Appendix C to Part 246--Personnel Policies and Procedures

    A. General Nonappropriated Fund (NAF) Employment Policies. 1. The 
Stars and Stripes (S&S) shall have a personnel system that is business 
oriented in terms of personnel management concepts. The system shall 
provide maximum authority and accountability to the S&S managers at all 
levels and shall endeavor to improve productivity through a system of 
awards and bonuses for high-performing employees. The S&S NAF employees 
shall be governed in accordance with the U.S. Army NAF regulations, 
except where

[[Page 642]]

exceptions to general policy have been granted by the Unified Commands, 
the American Forces Information Service (AFIS), and the U.S. Army to the 
S&S.
    2. As DoD employees, the S&S civilian personnel shall abide by 32 
CFR part 40, the Department of Defense, the Unified Command, and the 
U.S. Army regulations, U.S. laws governing Government employees, the 
applicable host-nation laws, and the applicable status of forces 
agreements (SOFA) requirements. The S&S commander/publisher shall ensure 
that the S&S employees are made aware of those provisions before being 
hired and that employees receive adequate personnel training.
    3. The S&S shall endeavor to recruit civilian personnel with solid 
experience, education, and performance credentials in the required 
business, publishing, or editorial disciplines. The S&S, as part of its 
hiring practices, shall specify terms of Government employment and 
include responsibilities, such as those in 32 CFR part 40, so that the 
S&S civilian employees are fully aware of their obligations as DoD 
employees.
    B. Appropriated Fund (APF) Personnel Assignment Authority. 
Appropriated-funded manpower staffing to operate, manage, or support the 
S&S is authorized under DoD Directive 1015.4. \1\
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    \1\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
---------------------------------------------------------------------------

    C. Military Officer Personnel Procedures. 1. Candidates for the S&S 
military officer positions shall be nominated by the Military Services, 
through the Director of the AFIS, to the Unified Command Commander-in-
Chief (CINC), who shall make the final selection. The S&S military 
officer positions considered for nomination shall be the S&S commander/
publisher and deputy commander(s).
    a. The S&S commander/publisher should have military public affairs 
and joint-Service experience, and a journalism degree.
    b. The S&S officers supervising business operations should have 
experience in DoD Comptroller functions and be familiar with laws and 
regulations applicable to DoD and NAFI business operations. A master's 
degree in business administration is desirable, but not mandatory.
    c. Instead of an advanced degree or military public affairs 
experience, nominees may be authorized, by the Unified Command CINC and 
the AFIS, to substitute a DoD-funded ``training-with-industry'' program 
with comparable newspaper operations in the United States.
    d. The Unified Commands shall forecast military vacancies in the S&S 
to allow time for the Military Services' nomination processes to be 
completed and provide for education before the S&S assignment.
    e. The Military Services shall provide highly qualified officers for 
all S&S assignments at the required grade levels.
    2. Military officers selected for duty as S&S commander/publisher 
shall undergo a ``training-with-industry'' program to provide real-world 
training with a commercial newspaper. That program shall be administered 
by the Director of the AFIS, in coordination with the Military Services 
and the Unified Commands.
    D. Enlisted Members of the Stars and Stripes Editorial Staff. 1. 
Enlisted military personnel shall be assigned to the Stars and Stripes 
editorial staff, as reflected in the designated Unified Command Joint 
Manpower Program (JMP) documents, on a nominative basis. The Military 
Services shall nominate the most mature and professional personnel for 
assignment to the Stars and Stripes editorial staff at the required JMP 
grade- and experience-level, coordinating with the Unified Commands and 
the Director of the AFIS. Nominations shall be considered on a 
competitive basis by the S&S commander/publisher and the Stars and 
Stripes editor. The S&S shall request nominations 18 months before 
projected billet vacancies. The Military Services shall forward 
nominations 6-10 months in advance to the S&S, (ATTN: S&S Commander/
Publisher). The Military Services shall provide the S&S with reasonable 
overlap of military enlisted members serving on the Stars and Stripes 
editorial staff.
    2. The S&S commander/publisher shall coordinate with the Unified 
Commands to ensure that there is an appropriate mixture of Military 
Service billets and/or assignments represented in the S&S to preserve 
the tradition of the Stars and Stripes as joint-Service newspapers.



            Sec. Appendix D to Part 246--Editorial Operations

    A. General. 1. The Stars and Stripes shall serve the interests of 
their overseas DoD readership, as commercial daily newspapers serve 
their readers throughout the United States. However, as a Government 
organization, the Stars and Stripes news staff may not take an 
independent editorial position. The Stars and Stripes editorial 
practices and policies shall be in accordance with the highest standards 
of American journalism.
    2. The Stars and Stripes editor, with the concurrence of the S&S 
commander/publisher, and the Unified Command Commander-in-Chief (CINC), 
as the owner of the newspaper, may establish a standard code of personal 
and professional ethics and general editorial principles similar to 
those developed at major metropolitan newspapers or by professional 
journalists in organizations

[[Page 643]]

such as the Society of Professional Journalists. Those codes usually 
stress the following:
    a. Responsibility of the newspaper to fully inform its readership.
    b. Freedom of the press.
    c. Commitment to personal and professional ethics.
    d. Emphasis on content accuracy, objectivity, and fair 
representation of all sides of an issue.
    When developed, copies of the code and style guides shall be 
provided to the Unified Command CINC and the Director of the American 
Forces Information Service (AFIS).
    3. The Stars and Stripes editor shall be responsible for developing 
editorial procedures and, if required, a style guide that mirrors daily 
U.S. commercial newspapers.
    4. The editorial content of the Stars and Stripes shall be governed 
by the general principles applicable to quality commercial press as 
follows:
    a. Presentation of News. A major purpose of the Stars and Stripes is 
to provide news and information from varied sources. This aids DoD 
members and their families stationed overseas to exercise their 
democratic citizenship responsibilities.
    b. Commercially-Contracted News, Features, and Opinion Columns. The 
Stars and Stripes purchase (or contract for) and carry news stories, 
features, syndicated columns, comic strips, and editorial cartoons from 
commercial services or sources. Wire-service news, information, and 
feature material may be edited in accordance with source contracts and 
for space requirements. The Stars and Stripes reflect the news of the 
day being carried in comparable U.S. commercial daily newspapers. They 
should reflect different sides of issues over a reasonable amount of 
time.
    c. Staff-Generated Copy. In keeping with the standards established 
for major daily commercial newspapers in the United States, staff-
generated news and features in the Stars and Stripes shall be accurate, 
factual, impartial, and objective. News stories and feature material 
shall distinguish between fact and opinion. Every effort should be made 
to attribute quotations and facts to identified sources. In the case of 
controversial or sensitive stories, the Stars and Stripes editor, or his 
or her designee, shall ascertain the identity of confidential sources, 
as required by normal journalistic practices that ensure that sources 
are credible. The Stars and Stripes may use the normal range of 
journalistic techniques including ``people-on-the-street'' interviews if 
that technique does not constitute a political poll.
    d. Political Campaign News. (1) The Stars and Stripes shall publish 
coverage of the U.S. political campaigns from commercial news sources. 
Presentation of such political campaign news shall be made on an 
impartial, unbiased, and nonpartisan basis reflecting DoD policies of 
non-endorsement of any specific candidate for an elected office. Every 
effort should be made to ensure that the Stars and Stripes reflect the 
full spectrum of campaign news being published in the United States on 
national candidates and issues.
    (2) The Stars and Stripes shall support the Federal Voting 
Assistance Program by carrying factual information about registration 
and voting laws.
    e. The Stars and Stripes shall provide balance in commercial 
syndicated columns. Since the Stars and Stripes may not take an 
independent editorial position, a balanced selection of syndicated 
opinion columns shall be published over a reasonable time period. The 
presentation of syndicated editorial cartoons should reflect the full 
spectrum of topical editorial cartoons being published throughout the 
United States. The S&S commander/publisher shall provide the Unified 
Commands annual assurance that the required balance for syndicated 
opinion columns has been met.
    B. Administrative. 1. The Stars and Stripes shall comply with DoD 
Instruction 1100.13 \1\ on polls, surveys, and straw votes. The Stars 
and Stripes may not conduct a poll, a survey, exit polls, or a straw 
vote on any political campaign. The Stars and Stripes may publish polls, 
surveys, and/or straw votes furnished to the newspaper through its 
contracted wire services. The Stars and Stripes may not conduct lottery 
games.
---------------------------------------------------------------------------

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

    2. The Stars and Stripes shall have the following disclaimer placed 
in the masthead or at the extreme bottom of one of the prominent pages, 
segregated from copy in a box:
    This newspaper is authorized for publication by the Department of 
Defense for members of the Military Services overseas. However, the 
contents of the Stars and Stripes are unofficial, and are not to be 
considered as the official views of, or endorsed by, the U.S. 
Government, including the Department of Defense or the (name of the 
appropriate Unified Command). As a DoD newspaper, the Stars and Stripes 
may be distributed through official channels and use appropriated funds 
for distribution to remote and isolated locations where overseas DoD 
personnel are located.
    The appearance of advertising in this publication, including inserts 
or supplements, does not constitute endorsement by the Department of 
Defense or the Stars and Stripes of the products or services advertised.

[[Page 644]]

    Products or services advertised in this publication shall be made 
available for purchase, use, or patronage without regard to race, color, 
religion, sex, national origin, age, marital status, physical handicap, 
political affiliation or any other nonmerit factor of the purchaser, 
user, or patron.
    C. Editorial. 1. The Stars and Stripes news staffs are authorized to 
gather and report news, good and bad, on the Department of Defense and 
its subordinate commands. All reporting necessarily requires some 
investigation and, as with journalists on commercial newspapers, the 
Stars and Stripes news staff members have the right and need to ask 
questions and expect response to fulfill the S&S mission. However, the 
Stars and Stripes is not an authorized investigative agency, such as 
military law enforcement agencies, investigative bodies, or an Inspector 
General, and shall not function in that capacity. As DoD employees, the 
Stars and Stripes news staff members must adhere to the DoD personnel 
policies that may not usually apply to journalists employed by 
commercial newspapers and must comply with 32 CFR part 40 and, as 
applicable, the Manual for Courts Martial, 1984. \2\
---------------------------------------------------------------------------

    \2\ See footnote 1 to B.1. of this appendix.
---------------------------------------------------------------------------

    a. Since most journalistic reporting is investigative by nature, 
``investigative reporting,'' as such, is not banned. The Stars and 
Stripes reporters have the same need to ask questions of sources, and 
expect responses, as do commercial newspaper journalists. While the 
Stars and Stripes staff cannot conduct independent investigations that 
fall under the jurisdiction of various military law enforcement or 
designated investigative agencies, the Stars and Stripes may report on 
open or completed investigations by agencies authorized to perform 
investigative functions. If the Stars and Stripes employees note 
unlawful or criminal actions in their performance of duty, they must 
report such incidents immediately to the S&S commander/publisher or to 
their immediate supervisor, in accordance with 32 CFR part 40, who shall 
also comply with 32 CFR part 40 and, as applicable, DoD Directive 7050.1 
\3\ and DoD Instruction 5240.4. \4\ If there is an authorized 
investigation, a Stars and Stripes reporter or editor cannot protect a 
source as confidential when the information may be required to complete 
the investigation. Coverage of an investigation, from a news 
perspective, should be based on case progress or the resolution provided 
by the investigative agency if considered newsworthy by the Stars and 
Stripes. The Stars and Stripes editorial procedures shall not prohibit 
publishing news of independent investigations furnished by commercial 
media and, therefore, in the public domain.
---------------------------------------------------------------------------

    \3\ See footnote 1 to B.1. of this appendix.
    \4\ See footnote 1 to B.1. of this appendix.
---------------------------------------------------------------------------

    b. The Stars and Stripes staff may not knowingly place classified 
information in Stars and Stripes staff-generated material. That does not 
apply to public domain information attributed to commercially contracted 
news, features, or opinion columns.
    2. The Stars and Stripes editorial staffs shall receive the same 
treatment as commercial media.
    a. The Stars and Stripes reporters shall have the same right to ask 
questions, to gain help, to have access, and to attend gatherings 
available to reporters from the commercial media. Commanders or public 
affairs staffs may not use the U.S. Government status of Stars and 
Stripes reporters to block the release of, or access to, otherwise 
releasable news, information, or events. Under the same circumstances, 
the Stars and Stripes reporters may not use their U.S. Government status 
or credentials to gain special treatment, access to restricted areas or 
gatherings, or other advantages that are not given equally to civilian 
media.
    b. In keeping with the ``Principles of Information'' in 32 CFR part 
375 governing release of information to commercial media, the DoD 
Components are expected to make available timely and accurate 
information so that the Stars and Stripes news staffs and readers may 
assess and understand the facts about their military organizations, the 
national defense, and defense strategy. Consistent with statutory 
requirements, information shall be made fully and readily available 
under the principles for the release of information to the media issued 
by the Secretary of Defense. A Government organization may not file a 
request for information against another Government organization under 32 
CFR part 285, which implements the Freedom of Information Act (FOIA) in 
the Department of Defense, but it is the responsibility of all commands 
to honor the DoD Principles of Information, particularly regarding the 
intent of open access as described in 32 CFR part 285 when responding to 
queries from Stars and Stripes reporters.
    3. To meet organizational responsibilities, the Stars and Stripes 
editor, the S&S commander/publisher, and the Stars and Stripes staff 
members they select, should meet frequently with area commanders and 
public affairs officers and staffs to confer, as their counterparts in 
U.S. commercial daily newspapers do with local government and community 
interest representatives.
    4. When matters of interest to the Stars and Stripes readership cut 
across the Unified Command component command responsibilities, the Stars 
and Stripes editor may use ``special project reporting teams'' to 
examine such concerns. Whether the areas of Stars and Stripes interest 
are military exercises, fast-breaking news affecting the entire

[[Page 645]]

Unified Command community, or policies that require a greater-than-
individual-reporter effort, the Stars and Stripes editor, through the 
S&S commander/publisher, can gain help by keeping the Unified Command 
and its component command public affairs offices informed of the need 
for theater-wide assistance. Such aid could help dispel morale-damaging 
rumors.
    5. The Stars and Stripes shall conduct readership surveys at least 
once every 3 years in the Unified Commands where the Stars and Stripes 
are distributed. Such formal surveys shall be conducted in accordance 
with DoD Instruction 1100.13. The S&S may make shorter market surveys 
through its bookstore operations to determine changing readership 
interests. The Stars and Stripes is also encouraged to make frequent use 
of readership focus groups throughout the Unified Command.
    6. The Stars and Stripes may review commercial entertainment where 
relevant and where it supports readership interest.
    7. All bureau personnel and field reporters shall have Stars and 
Stripes newsroom experience before being given independent assignments. 
The Stars and Stripes military reporters may wear military or civilian 
clothes at the discretion of the S&S commander/publisher. If authorized 
by the S&S commander/publisher, Stars and Stripes military members may 
be authorized a clothing allowance in accordance with individual Service 
directives.
    8. The Stars and Stripes are both authorized to maintain a 
Washington, DC, bureau located with other correspondent bureaus in the 
OASD (PA) Correspondents' Corridor. A desk will be provided for each 
Stars and Stripes. The S&S shall select the most qualified reporters 
possible for assignment to the bureau. A joint memorandum of 
understanding on personnel support shall be established between the two 
newspapers and approved by the Unified Commands, with a copy provided to 
the Director of the AFIS.



 Sec. Appendix E to Part 246--Stars and Stripes (S&S) Board of Directors

    A. Organization and Management. 1. The S&S board of directors of 
each Unified Command shall provide advice to the S&S management, and 
recommend guidance to its Commander-in-Chief (CINC) on all business 
operations. Attendance is at the direction of the Unified Command CINC.
    2. Each Unified Command CINC shall designate the chairman of its S&S 
board of directors.
    3. Each S&S board of directors shall include a member from the 
Unified Command Offices of Public Affairs and the Comptroller, and at 
least one member from each of the Unified Command Service components. 
Members shall be appointed by the Unified Command CINC for 2 years to 
ensure continuity. They shall be the best qualified personnel available 
in business-related disciplines. Members should be at the grade of 0-5, 
GS-12, or higher. Other than the Unified Command and the S&S senior 
representatives, the S&S board members should not be members of any 
other S&S forums or councils. Representatives from the American Forces 
Information Service (AFIS) and one S&S may attend the meetings of the 
other S&S board of directors and have their observations included in the 
minutes, but they are not voting members. Recommendations approved by 
the S&S board of directors may be incorporated by the Unified Command 
CINC into the Unified Command S&S instruction or directive, as 
applicable.
    4. The S&S board of directors should meet at least three times each 
year. The minutes of each meeting shall be approved by the Unified 
Command CINC. The approved S&S board recommendations shall be 
incorporated, as permanent policy, into the Unified Command S&S 
implementing instructions or directives. Where such recommendations 
affect DoD policy, the Unified Commands shall ask the Director of the 
AFIS for resolution. The S&S commander/publisher shall provide 
sufficient documentation to the S&S board members between meetings to 
inform them of on-going business operations and the execution of 
financial actions.
    B. Functions. 1. The S&S board of directors shall monitor planning 
and execution of the S&S business activities.
    2. The S&S board of directors shall aid the S&S commander/publisher 
with evaluation of external factors that impact the S&S, such as adverse 
conditions, as recommended by the S&S commander/publisher, the S&S board 
of directors, or the Unified Command CINC.
    3. Annually, the S&S commander/publisher shall provide a financial 
plan that shall include a capital expenditure budget and a 2-year 
forecast for the S&S board of directors' evaluation and recommendation 
to the Unified Command CINC. The S&S shall also forecast and get 
approval for building and/or construction projects through the S&S board 
of directors.
    4. The S&S shall maintain a 5-year business strategic and corporate 
plan that shall be forwarded to the S&S board of directors. The Unified 
Commands shall forward the on-going strategic and corporate plan to the 
Director of the AFIS for overall DoD strategic goals.

[[Page 646]]



PART 247_DEPARTMENT OF DEFENSE NEWSPAPERS, MAGAZINES AND CIVILIAN
ENTERPRISE PUBLICATIONS--Table of Contents



Sec.
247.1 Purpose.
247.2 Applicability.
247.3 Definitions.
247.4 Policy.
247.5 Responsibilities.
247.6 Procedures.
247.7 Information requirements.

Appendix A to Part 247--Funded Newspapers and Magazines
Appendix B to Part 247--CE Publications
Appendix C to Part 247--Mailing of DoD Newspapers, Magazines, CE Guides, 
          and Installation Maps; Sales and Distribution of Non-DoD 
          Publications
Appendix D to Part 247--AFIS Print Media Directorate
Appendix E to Part 247--DoD Command Newspaper and Magazine Review System

    Authority: 10 U.S.C. 121 and 133.

    Source: 62 FR 42905, Aug. 11, 1997, unless otherwise noted.



Sec. 247.1  Purpose.

    This part implements DoD Directive 5122.10 \1\ and implements 
policy, assigns responsibilities, and prescribes procedures concerning 
authorized DoD Appropriated Funded (APF) newspapers and magazines, and 
Civilian Enterprise (CE) newspapers, magazines, guides, and installation 
maps in support of the DoD Internal Information Program.
---------------------------------------------------------------------------

    \1\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22121.
---------------------------------------------------------------------------



Sec. 247.2  Applicability.

    This part:
    (a) Applies to the Office of the Secretary of Defense (OSD), the 
Military Departments, the Chairman of the Joint Chiefs of Staff, the 
Combatant Commands, the Defense Agencies, and the DoD Field Activities 
(hereafter referred to collectively as ``the DoD Components''). The term 
``Military Services,'' as used herein, refers to the Army, the Navy, the 
Air Force, the Marine Corps, and includes the Coast Guard when operating 
as a Military Service in the Navy. The term Commander, as used herein, 
also means Heads of the DoD Components.
    (b) Does not apply to the Stars and Stripes (S&S) newspapers and 
business operations. S&S guidance is provided in DoD Directive 5122.11. 
\2\
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    \2\ See footnote 1 to Sec. 247.1.
---------------------------------------------------------------------------

    (c) The term Commander, as used in this part, also means Heads of 
the DoD Components.



Sec. 247.3  Definitions.

    Civilian Enterprise (CE) guides and installation maps. Authorized 
publications containing advertising that are prepared and published 
under contract with commercial publishers. The right to circulate the 
advertising in these publications to the DoD readership constitutes 
contractual consideration to pay for these DoD publications. The 
publications become the property of the command, installation, or 
intended recipient upon delivery in accordance with terms of the 
contract. Categories of these publications are:
    (1) Guides. Publications that provide DoD personnel with information 
about the mission of their command; the availability of command, 
installation, or community services; local geography; historical 
background; and other information. These publications may include 
installation telephone directories at the discretion of the commander.
    (2) Installation maps. Publications designed for orientation of new 
arrivals or for visitors.
    CE publications. CE newspapers, CE magazines, CE guides and 
installation maps produced commercially under the CE concept.
    DoD newspapers. Authorized, unofficial publications, serving as part 
of the commander's internal information program, that support DoD 
command internal communication requirements. Usually, they are 
distributed weekly or monthly. DoD newspapers contain most, if not all, 
of the following elements to communicate with the intended DoD 
readership: command, military department, and DoD news and features; 
commanders' comments;

[[Page 647]]

letters to the editor; editorials; commentaries; features; sports; 
entertainment items; morale, welfare, and recreation news and 
announcements; photography; line art; and installation and local 
community news and announcements. DoD newspapers do not necessarily 
reflect the official views of, or endorsement of content by, the 
Department of Defense.
    (1) CE newspapers. Newspapers published by commercial publishers 
under contract with the DoD Components or their subordinate commands. 
The commander or public affairs office provides oversight and final 
approval authority for the news and editorial content of the paper. 
Authorized news and information sources include the Office of the 
Assistant Secretary of Defense for Public Affairs (OASD(PA)), AFIS, the 
Military Departments, their subordinate levels of command, and other 
Government Agencies. CE contractor personnel may provide material for 
use in the newspaper if approved by the commander or public affairs 
officer (PAO), as the commander's representative. These newspapers 
contain advertising sold by the commercial publisher on the same basis 
as for CE guides and installation maps and may contain supplements or 
inserts. They become the property of the command, installation, or 
intended recipient upon delivery in accordance with terms of the 
contract.
    (2) Funded newspapers. Newspapers published by the DoD Components or 
their subordinate commands using appropriated funds. The editorial 
content of these newspapers is prepared by the internal information 
section of the public affairs staff or other internal sources. Usually, 
these newspapers are printed by the Government Printing Office (GPO) or 
under GPO contract in accordance with Government printing regulations. 
DoD Directive 5330.3 \3\ specifies DPS as the sole DoD conduit to the 
GPO.
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    \3\ See footnote 1 to Sec. 247.1.
---------------------------------------------------------------------------

    (3) Overseas Combatant Command newspapers. Newspapers published for 
overseas audiences approved by the Assistant Secretary of Defense for 
Public Affairs (ASD(PA)) to provide world, U.S., and regional news from 
commercial sources, syndicated columns, editorial cartoons, and 
applicable U.S. Government, Department of Defense, Component, and 
subordinate command news and information.
    (4) News bulletins and summaries. Publications of deployed or 
isolated commands and ships compiled from national and international 
news and opinion obtained from authorized sources. News bulletins or 
summaries may be authorized by the next higher level of command when no 
daily English language newspapers are readily available.
    Inserts. A flier, circular, or freestanding advertisement placed 
within the folds of the newspaper. No disclaimer or other labeling is 
required.
    Magazines. Authorized, unofficial publications, serving as part of 
the commander's internal information program. They are produced and 
distributed periodically, usually monthly, and contain information of 
interest to personnel of the publishing DoD component or organization. 
They usually reflect a continuing policy as to purpose, format, and 
content. They are normally non-directive in nature and are published to 
inform, motivate, and improve the performance of the personnel and 
organization. They may be published as funded magazines or under the CE 
concept.
    Option. A unilateral right in a contract by which, for a specified 
time, the Government may elect to acquire additional supplies or 
services called for by the contract, or may elect to extend the term of 
the contract.
    Organizational terms--(1) Command. A unit or units, an organization, 
or an area under the command of one individual. It includes 
organizations headed by senior civilians that require command internal 
information-type media.
    (2) DoD Components. See Sec. 247.2 (a).
    (3) Installation. A DoD facility or ship that serves as the base for 
one or more commands. Media covered by this part may serve the command 
communication needs of one or several commands located at one 
installation.
    (4) Major command. A designated command such as the Air Mobility 
Command or the Army Forces Command that serves as the headquarters for 
subordinate commands or installations that have the same or related 
missions.

[[Page 648]]

    (5) Subordinate levels. Lower levels of command.
    Publications. As used in this part, ``publications'' refers to DoD 
newspapers, magazines, guides and/or installation maps serving the 
commander's internal information program published in both paper and 
electronic format, including digital printing.
    Supplements. Features, advertising sections, or morale, welfare and 
recreation sections printed with or inserted into newspapers for 
distribution. Supplements must be labeled ``Supplement to the (name of 
newspaper).'' Editorial content in supplements is subject to approval by 
the commander or the PAO as his or her agent.



Sec. 247.4  Policy.

    It is DoD policy that:
    (a) A free flow of news and information shall be provided to all DoD 
personnel without censorship or news management. The calculated 
withholding of news unfavorable to the Department of Defense is 
prohibited.
    (b) News coverage and other editorial content in DoD publications 
shall be factual and objective. News and headlines shall be selected 
using the dictates of good taste. Morbid, sensational, or alarming 
details not essential to factual reporting shall be avoided.
    (c) DoD publications shall distinguish between fact and opinion, 
both of which may be part of a news story. When an opinion is expressed, 
the person or source shall be identified. Accuracy and balance in 
coverage are paramount.
    (d) DoD publications shall distinguish between editorials (command 
position) and commentaries (personal opinion) by clearly identifying 
them as such.
    (e) News content in DoD publications shall be based on releases, 
reports, and materials provided by the DoD Components and their 
subordinate levels, DoD newspaper staff members, and other government 
agencies. DoD publications shall credit sources of all material other 
than local, internal sources. This includes, but is not limited to, 
Military Department news sources, American Forces Information Service, 
and command news releases.
    (f) DoD publications may contain articles of local interest to 
installation personnel produced outside official channels (e.g., 
stringers, local organizations), provided that the author's permission 
has been obtained, the source is credited, and they do not otherwise 
violate this part.
    (g) DoD publications normally shall not be authorized the use of 
commercial news and opinion sources, such as Associated Press (AP), 
United Press International (UPI), New York Times, etc., except as stated 
in this paragraph and the following paragraph. The use of such sources 
is beyond the scope of the mission of command or installation 
publications and puts them in direct competition with commercial 
publications. The use of such sources may be authorized for a specific 
DoD newspaper by the cognizant DoD Component only when other sources of 
national and international news and opinion are not available.
    (h) Overseas Combatant Command newspapers published outside the 
United States may purchase or contract for and carry news stories, 
features, syndicated columns, and editorial cartoons from commercial 
services or sources. A balanced selection of commercial news or opinion 
shall appear in the same issue and same page, whenever possible, but in 
any case, over a reasonable time period. Selection of commercial news 
sources, syndicated columns, and editorial cartoons to be purchased or 
contracted for shall be approved by the Commanders. Overseas Combatant 
Command newspapers, news bulletins, and news summaries authorized to 
carry national and world news may include coverage of U.S. political 
campaign news from commercial news sources. Presentation of such 
political campaign news shall be made on a balanced, impartial, and 
nonpartisan basis.
    (i) The masthead of all DoD publications shall contain the following 
disclaimer printed in type no smaller than 6-point: ``This (DoD 
newspaper, magazine, guide or installation map) is an authorized 
publication for members of the Department of Defense. Contents of (name 
of the DoD newspaper/magazine/this guide/this installation map) are not 
necessarily the official views of, or

[[Page 649]]

endorsed by, the U.S. Government, the Department of Defense, or (the 
name of the publishing DoD Component).''
    (j) The masthead of DoD CE publications shall contain the following 
statements in addition to that contained in paragraph (i) of this 
section:
    (1) ``Published by (name), a private firm in no way connected with 
the (Department of Defense/the U.S. Army/the U.S. Navy/the U.S. Air 
Force/the U.S. Marine Corps) under exclusive written contract with (DoD 
Component or subordinate level).''
    (2) ``The appearance of advertising in this publication, including 
inserts or supplements, does not constitute endorsement by the 
(Department of Defense/the U.S. Army/the U.S. Navy/the U.S. Air Force/
the U.S. Marine Corps), or (name of commercial publisher) of the 
products or services advertised.''
    (3) ``Everything advertised in this publication shall be made 
available for purchase, use, or patronage without regard to race, color, 
religion, sex, national origin, age, marital status, physical handicap, 
political affiliation, or any other nonmerit factor of the purchaser, 
user, or patron.'' If a violation or rejection of this equal opportunity 
policy by an advertiser is confirmed, the publisher shall refuse to 
print advertising from that source until the violation is corrected.
    (k) DoD publications shall not contain campaign news, partisan 
discussions, cartoons, editorials, or commentaries dealing with 
political campaigns, candidates, issues, or which advocate lobbying 
elected officials on specific issues. DoD CE publications shall not 
carry paid political advertisements for a candidate, party, which 
advocate a particular position on a political issue, or which advocate 
lobbying elected officials on a specific issue. This includes those 
advertisements advocating a position on any proposed DoD policy or 
policy under review.
    (l) DoD newspapers shall support the Federal Voting Assistance 
Program by carrying factual information about registration and voting 
laws, especially those on absentee voting requirements of the various 
States, the District of Columbia, Puerto Rico, and U.S. territories and 
possessions. DoD newspapers shall use voting materials provided by the 
Director, Federal Voting Assistance Program; the OSD; and the Military 
Departments. Such information is designed to encourage DoD personnel to 
register as voters and to exercise their right to vote as outlined in 
DoD Directive 1000.4. \4\
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    \4\ See footnote 1 to Sec. 247.1.
---------------------------------------------------------------------------

    (m) DoD publications shall comply with DoD Instruction 1100.13 \5\ 
pertaining to polls, surveys, and straw votes.
---------------------------------------------------------------------------

    \5\ See footnote 1 to Sec. 247.1.
---------------------------------------------------------------------------

    (1) The DoD Components and subordinate levels may authorize polls on 
matters of local interest, such as soldier of the week, and favorite 
athlete.
    (2) A DoD publication shall not conduct a poll, a survey, or a straw 
vote relating to a political campaign or issue.
    (3) Opinion surveys must be in compliance with Military Service 
regulations.
    (n) DoD newspapers will support officially authorized fund-raising 
campaigns (e.g., Combined Federal Campaign (CFC)) within the Department 
of Defense in accordance with DoD Directive 5035.1. \6\ News coverage of 
the campaign will not discuss monetary goals, quotas, competition or 
tallies of solicitation between or among agencies. To avoid any 
appearance of endorsement, features and news coverage will discuss the 
campaign in general and not promote specific agencies within the CFC. 
Agencies may be mentioned routinely but must not be a main focus of 
features and news coverage.
---------------------------------------------------------------------------

    \6\ See footnote 1 to Sec. 247.1.
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    (o) DoD publications shall not:
    (1) Contain any material that implies that the DoD Components or 
their subordinate levels endorse or favor a specific commercial product, 
commodity, or service.
    (2) Subscribe, even at no cost, to a commercial or feature wire or 
other service whose primary purpose is the advertisement or promotion of 
commercial products, commodities, or services.
    (3) Carry any advertisement that violates or rejects DoD equal 
opportunity policy. (See paragraph (j)(3) of this section).

[[Page 650]]

    (p) All commercial advertising, including advertising supplements, 
shall be clearly identifiable as such. Paid advertorials and advertising 
supplements may be included but must be clearly labeled as advertising 
and readily distinguishable from editorial content.
    (q) Alteration of official photographic and video imagery will 
comply with DoD Directive 5040.5. \7\
---------------------------------------------------------------------------

    \7\ See footnote 1 to Sec. 247.1.
---------------------------------------------------------------------------

    (r) Commercial sponsors of Armed Forces Professional Entertainment 
Program events and morale, welfare and recreation events may be 
mentioned routinely with other pertinent facts in news stories and 
announcements in DoD newspapers. (See DoD Instructions 1330.13 \8\ and 
1015.2. \9\
---------------------------------------------------------------------------

    \8\ See footnote 1 to Sec. 247.1.
    \9\ See footnote 1 to Sec. 247.1.
---------------------------------------------------------------------------

    (s) Book, radio, television, movie, travel, and other entertainment 
reviews may be carried if written objectively and if there is no 
implication of endorsement by the Department of Defense or any of its 
Components or their subordinate levels.
    (t) All printing using appropriated funds will be obtained in 
accordance with DoD Directive 5330.3.
    (u) Although DoD internet web sites are normally discouraged from 
linking to commercial activities, the commander may authorize an 
installation web site to be linked to the web site carrying the 
authorized civilian enterprise publication.



Sec. 247.5  Responsibilities.

    (a) The Assistant Secretary of Defense for Public Affairs, 
consistent with DoD Directive 5122.5, \10\ shall:
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    \10\ See footnote 1 to Sec. 247.1.
---------------------------------------------------------------------------

    (1) Develop policies and provide guidance on the administration of 
the DoD Internal Information Program.
    (2) Provide policy and operational direction to the Director, AFIS.
    (3) Monitor and evaluate overall mission effectiveness within the 
Department of Defense for matters under this part.
    (b) The Director, American Forces Information Service, shall:
    (1) Develop and oversee the implementation of policies and 
procedures pertaining to the management, content, and publication of DoD 
publications encompassed by this part.
    (2) Serve as DoD point of contact with the Joint Committee on 
Printing, Congress of the United States, for matters under this part.
    (3) Serve as the DoD point of contact in the United States for 
Combatant Command newspaper matters.
    (4) Provide guidance to the Combatant Commands, Military 
Departments, and other DoD Components pertaining to DoD publications.
    (5) Monitor effectiveness of business and financial operations of 
DoD publications and provide business counsel and assistance, as 
appropriate.
    (6) Sponsor a DoD Interservice Newspaper Committee and a Flagship 
Magazine Committee composed of representatives of the Military 
Departments to coordinate matters on publications encompassed by this 
part and flagship magazine matters, respectively.
    (7) Provide a press service for joint-Service news and information 
for use by authorized DoD publication editors.
    (c) The Secretaries of the Military Departments shall:
    (1) Provide policy guidance and assistance to the Department's 
publications.
    (2) Encourage the use of CE publications when they are the most 
cost-effective means of fulfilling the command communication 
requirement.
    (3) Ensure that adequate resources are available to support 
authorized internal information products under this part.
    (4) Designate a member of their public affairs staff to serve on the 
DoD Interservice Newspaper Committee.
    (5) Ensure all printing obtained with appropriated funds complies 
with DoD Directive 5330.3.
    (d) The Commanders of Combatant Commands shall:
    (1) Publish Combatant Command newspapers, if authorized. In 
discharging this responsibility, the Commander shall ensure that policy, 
direction, resources, and administrative support are provided, as 
required, to produce a professional quality newspaper to support the 
command mission.
    (2) Ensure that the newspaper is prepared to support U.S. forces in 
the

[[Page 651]]

command area during contingencies and armed conflict.



Sec. 247.6  Procedures.

    (a) General. (1) National security information shall be protected in 
accordance with DoD Directive 5200.1 \11\ and DoD 5200.1-R. \12\
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    \11\ See footnote 1 to Sec. 247.1.
    \12\ See footnote 1 to Sec. 247.1.
---------------------------------------------------------------------------

    (2) Specific items of internal information of interest to DoD 
personnel and their family members prepared for publication in DoD 
publications may be made available to requesters if the information can 
be released as provided in DoD Directive 5400.7 \13\ and DoD 5400.1-R. 
\14\
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    \13\ See footnote 1 to Sec. 247.1.
    \14\ See footnote 1 to Sec. 247.1.
---------------------------------------------------------------------------

    (3) Editorial policies of DoD publications shall be designed to 
improve the ability of DoD personnel to execute the missions of the 
Department of Defense.
    (4) DoD editors of publications covered under this part shall 
conform to applicable policies, regulations, and laws involving the 
collection, processing, storage, use, publication and distribution of 
information by DoD Components (e.g., libel, photographic image 
alteration, copyright, sexually explicit materials, classification of 
information, protection of sensitive information and U.S. Government 
printing and postal regulations).
    (5) DoD publications shall comply with DoD Directive 5400.11 \15\ 
regarding the DoD privacy program.
---------------------------------------------------------------------------

    \15\ See footnote 1 to Sec. 247.1.
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    (b) Establishment of DoD newspapers. (1) Commanders are authorized 
to establish Funded newspapers (appendix A to this part) or CE 
newspapers (appendix B to this part) when:
    (i) A valid internal information mission requirement exists.
    (A) Command or installation newspapers provide the commander a 
primary means of communicating mission-essential information to members 
of the command. They provide feedback through such forums as letters to 
the editor columns. This alerts the commander to the emotional status 
and state of DoD knowledge of the command. The newspaper is used as a 
return conduit for command information to improve attitudes and increase 
knowledge.
    (B) News reports and feature stories on individuals and 
organizational elements of the command provides a crossfeed of DoD 
information, which improves internal cooperation and mission 
performance. Recognition of excellence in individual or organizational 
performance motivates and sets forth expected norms for mission 
accomplishment.
    (C) The newspaper improves morale by quelling rumors and keeping 
members informed on DoD information that will affect their futures. It 
provides information and assistance to family members, which improve 
their spirits and thereby the effectiveness of their military service 
and/or civilian member. The newspaper encourages participation in 
various positive leisure-time activities to improve morale and deter 
alcohol abuse and other pursuits that impair their ability to perform.
    (D) The newspaper provides information to make command members aware 
of the hazards of the abuse of drugs and other substances, and of the 
negative impact that substance abuse has on readiness.
    (E) CE newspapers provide advertisements that guide command members 
to outlets where they may fulfill their purchasing needs. A by-product 
of this commercial contact is increased installation-community 
communication, which enhances mutual support.
    (F) The newspaper increases organizational cohesiveness and 
effectiveness by providing a visual representation of the essence of the 
command itself.
    (G) Good journalistic practices are vital, but are not an end unto 
themselves. They are the primary means to enhance receptivity of command 
communication through the newspaper.
    (H) The newspaper exists to facilitate accomplishment of the command 
or installation mission. That is the only basis for the expenditure of 
DoD resources to produce them.
    (ii) A newspaper is determined by the commander and the next higher 
level of command to be the most cost-effective means of fulfilling the 
command internal communication requirement.

[[Page 652]]

    (2) The use of appropriated funds is authorized to establish a 
Funded newspaper if a CE newspaper is not feasible. The process of 
establishing a newspaper must include an investigation of the 
feasibility of publishing under the CE concept. This investigation must 
include careful consideration of the potential for real or apparent 
conflict of interest. If publishing under the CE concept is determined 
to be feasible, commanders must ensure that they have obtained approval 
to establish the newspaper before authorizing their representatives to 
negotiate a contract with a CE publisher.
    (3) DoD newspapers are mission activities. The use of 
nonappropriated funds for any aspect of their operations is not 
authorized.
    (4) Appropriated funds shall not be used to pay any part of the 
commercial publisher's costs incurred in publishing a CE publication.
    (5) Only one DoD newspaper or magazine is authorized for each 
command or installation.
    (i) If a newspaper is required at an installation where more than 
one command or headquarters is collocated, the host commander shall be 
responsible for publication of one funded or CE newspaper for all. The 
host command shall provide balanced and sufficient coverage of the other 
commands, their personnel, and activities in that locality. These 
commands, or headquarters, shall assist the staff of the host newspaper 
with coverage. If required by unusual circumstance, a commander other 
than the host may publish the single authorized newspaper when the 
majority of affected organizations concur.
    (ii) This provision is not intended to prohibit the headquarters of 
a geographically dispersed command that receives its local coverage in 
the host installation newspaper from publishing a command-wide 
newspaper; nor is it intended to prohibit a command that has information 
needs that are significantly different from the majority of the host 
installation audience from publishing a separate newspaper, when 
authorized by the designated approving authority. (See appendix E to 
this part).
    (iii) Establishment of CE Guides and Installation Maps. When valid 
communication requirements exist, publications in this category may be 
established by the commander, if feasible. (See appendix B to this part) 
Only one CE guide and installation map is authorized for each command or 
installation. The requirements of paragraph (b)(4) of this section, 
apply to CE guides and installation maps. These publications shall be 
approved by the next higher level. Approval authorities shall exercise 
care not to overburden community advertisers.
    (iv) Use of trademark. The DoD Components and their subordinate 
levels shall trademark--State, Federal, or both--the names of their 
publications when possible.
    (v) Use of recycled products. The public affairs office shall, 
whenever possible, based on contractual agreements, use recycled paper 
for publications covered under this part.
    (vi) Mailing requirements and sales and distribution of non-DoD 
publications. See appendix C to this part.
    (vii) AFIS print media directorate. See appendix D to this part.
    (viii) DoD command newspaper and magazine review system. See 
appendix E to this part.
    (6) When, in the opinion of the Assistant Secretary of Defense for 
Public Affairs, or the Combatant Command Commander, a Combatant Command 
newspaper is needed, establishment shall be directed by the Secretary of 
Defense. Both appropriated and nonappropriated funds may be used in the 
publication of overseas Combatant Command newspapers.
    (7) Establishment of magazines. New magazines shall be approved by 
the Head of the publishing DoD Component. New magazines serving the 
Military Services shall be approved in accordance with Service 
procedures. Only one DoD magazine or newspaper is authorized for each 
command or installation. Magazines are normally financed through 
appropriated funds. When CE magazines are approved, provisions in this 
part regarding advertising and contracting for CE publications apply to 
CE magazines. Magazines must:

[[Page 653]]

    (i) Serve a clearly defined purpose in support of the mission of the 
publishing DoD Component, and the purpose must justify the cost.
    (ii) Not duplicate equivalent magazines serving the same, or 
substantially the same purpose.
    (iii) Be published and distributed efficiently and economically.
    (iv) Be reviewed every two years by the publishing DoD Component to 
ensure they are in compliance with this part, are mission essential, and 
are economically achieving their desired objective.



Sec. 247.7  Information requirements.

    The biennial reporting requirement contained in this part has been 
assigned Report Control Symbol DD-PA(BI) 1638.



      Sec. Appendix A to Part 247--Funded Newspapers and Magazines

    A. Purpose. Funded newspapers and magazines support the command 
communication requirements of the DoD Components and their subordinate 
commands. Normally, printing is accomplished by a commercial printer 
under contract or in government printing facilities in accordance with 
DoD Directive 5330.3. \1\ The editorial content of these publications 
and distribution are accomplished by the contracting command. Overseas, 
Funded newspapers are authorized to be printed under contract with the 
S&S. Where printing by S&S is not feasible because of distance or other 
factors, Funded newspapers may be printed by other means. These are 
evaluated on a case-by-case basis with the cognizant DPS office.
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    \1\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22121.
---------------------------------------------------------------------------

    B. Name. The name of the publication may include the name of the 
command or installation, or, the name of the command or installation may 
appear separately in the nameplate (flag). The emblem of the command or 
installation may be included in the nameplate, also. When possible, the 
DoD Components and their subordinate levels shall trademark the names of 
their publications, as stated in Sec. 247.5(d).
    C. Masthead. The masthead shall include the names of the commanding 
officer and the PAO, the names and editorial titles of the primary staff 
of the publication, and the mailing address and telephone number of the 
editorial staff, in addition to that required in Sec. 247.4(i).
    D. News and editorial materials. The commander and the public 
affairs staff shall generate and select news, information, photographs, 
editorial, and other materials to be used. Authorized news and 
information sources include the Office of the Assistant Secretary of 
Defense for Public Affairs (OASD(PA)), AFIS, the Military Departments, 
their subordinate levels of command, and other Government Agencies. 
Civilian community service news and announcements of benefit to 
personnel assigned to the command or installation and their family 
members may also be used. Photographic images used will be in compliance 
with Sec. 247.4(r).
    E. Assignment of personnel. Military and DoD civilian personnel may 
not be assigned to duty at the premises of the contract printer to 
perform any job functions that are part of the business activities or 
contractual responsibilities of the contract printer. Members of the 
public affairs staff who produce editorial content may work on the 
premises as liaison and monitor to specify and coordinate layout and 
other production details provided for in the command contract with the 
contract printer. A member of the public affairs staff shall review 
proof copy to prevent mistakes.
    F. Funding. The expense of publishing and distributing Funded 
newspapers and magazines is charged to appropriated funds of the 
publishing command.
    G. Printing. Printing of a funded publication shall be handled in 
accordance with DoD Directive 5330.3 in conjunction with the DoD 
Component's printing function with public affairs as the office of 
primary publishing interest. The use of color is authorized if the 
cognizant commander, the DoD Component's printing function and the PAO 
determine it enhances communication.
    H. Distribution. Funded publications may be distributed through 
official channels. Appropriated funds and manpower may be used for 
distribution of Funded publications, as required.
    I. Advertising. Funded publications shall not carry commercial 
advertising. As a service, the Funded newspaper may carry nonpaid 
listings of personally owned items and services for sale by members of 
the command. Noncommercial news stories and announcements concerning 
nonappropriated fund activities and commissaries may be published in 
funded publications.
    J. Employment and gratuities. DoD personnel shall not accept any 
gratuities from or employment with any GPO-contracted printers in 
violation of the DoD 5500.7-R, \2\ the Joint Ethics Regulation. In 
addition, DoD personnel whose spouse or children (or

[[Page 654]]

other relatives as described in the Joint Ethics Regulation) are offered 
employment by, or work for, a GPO-contracted printer, must take 
appropriate action to avoid conflicts of interest.
---------------------------------------------------------------------------

    \2\ See footnote 1 to section A. of this appendix.
---------------------------------------------------------------------------



              Sec. Appendix B to Part 247--CE Publications

    A. Purpose. CE publications consist of DoD newspapers, magazines, 
guides, and installation maps. They support command internal 
communications. The commander or public affairs office provides 
oversight and final approval authority for the news and editorial 
content of the publication. CE publishers sell advertising to cover 
costs and secure earnings, print the publications, and may make all or 
part of the distribution. Periodically, CE publishers compete for 
contracts to publish these publications. Neither appropriated nor 
nonappropriated funds shall be used to pay for any part of a CE 
publisher's costs incurred in publishing a CE publication.
    B. Name. The name of the publication may include the name of the 
command or installation, or the name of the command or installation may 
appear separately in the nameplate (flag). The emblem of the command or 
installation may also be included in the nameplate. When possible, the 
DoD Components and their subordinates shall trademark the names of their 
publications, as stated in Sec. 247.6(d).
    C. Masthead. The masthead shall include the following in addition to 
that required in Sec. 247.4 (i) and (j). ``The editorial content of 
this publication is the responsibility of the (name of command or 
installation) Public Affairs Office.'' The names of the commanding 
officer and PAO, the names and editorial titles of the staff assigned 
the duty of preparing the editorial content, and the office address and 
telephone number of the editorial staff shall be listed in the masthead 
of DoD newspapers, but is not required in CE guides and installation 
maps. The names of the publisher and employees of the publisher may be 
listed separately.
    D. News and editorial materials. The commander or the public affairs 
office shall provide oversight and final approval authority for news, 
information, photographs, editorial, and other materials to be used in a 
CE publication in the space allotted for that purpose by written 
contract with the commercial publisher. Authorized news and information 
sources include the OASD(PA), AFIS, the Military Departments and their 
subordinate levels of command, and other Government Agencies. CE 
contractor personnel may provide material for use in the publication if 
approved by the commander or PAO, as the commander's representative. 
Commercial news and opinion sources, such as AP, UPI, New York Times, 
etc., are not normally authorized for use in DoD publications except as 
stated in Sec. 247.4(q). Newspapers may publish community service news 
and announcements of the civilian community for the benefit of command 
or installation personnel and their families. Imagery used will be in 
compliance with Sec. 247.4(r).
    E. Assignment of personnel. Neither military nor DoD civilian 
personnel shall be assigned to duty at the premises of the CE publisher. 
Neither military nor DoD civilian personnel shall perform any job 
functions that are part of the business activities or contractual 
responsibilities of the CE publisher either at the contractor's facility 
or the Government facility. The PAO and staff who produce the non-
advertising content of the CE publication may perform certain 
installation liaison functions on publisher premises including 
monitoring and coordinating layout and design and other publishing 
details set forth in the contract to ensure the effective presentation 
of information. One or more members of the public affairs staff shall 
review proof copy to prevent mistakes. Newspaper text-editing-system 
pagination and copy terminals owned by the CE publisher may be placed in 
the command or installation public affairs office under contractual 
agreement for use by the public affairs staff to coordinate layout and 
ensure that the preparation of editorial material is performed in such a 
way as to enhance the efficiency and effectiveness of the printing and 
publication functions performed by the CE publisher. All costs of these 
terminals shall be borne by the CE newspaper publishers who shall retain 
title to the equipment and full responsibility for any damage to or loss 
of such equipment. The relationship between the public affairs staff and 
employees of the CE contractor is that of Government employees working 
with employees of a private contractor. Supervision of CE employees; 
that is, the responsibility to rate performance, set rate of pay, grant 
vacation time, exercise discipline, assign day-to-day administrative 
tasks, etc., remains with the CE publisher. Any modification of the 
contract must be made by the responsible contracting officer. Public 
affairs staff members must be aware that employees of the contractor are 
not employees of the government and should be treated accordingly.
    F. Distribution of CE publications.
    1. A funded newspaper shall not be distributed as an insert to a CE 
newspaper, unless provided for in the CE contract, nor shall a CE 
newspaper be distributed as an insert to a funded newspaper.
    2. Supplements, clearly labeled as such, and advertising inserts, 
may be inserted into and distributed with a CE newspaper.
    3. The commercial publisher of a CE publication shall make as much 
of the distribution to the intended readership as possible. CE 
publications may be distributed through official channels.

[[Page 655]]

    4. Except as authorized by the next higher headquarters for special 
situations or occasions (such as an installation open house), CE 
publications shall not be distributed outside the intended DoD audience 
and retirees, which includes family members. Electronic publication on 
the internet/world wide web is not considered distribution outside the 
intended DoD audience. The CE publisher may provide complete copies of 
each specific issue of a CE publication to an advertiser whose 
advertisement is carried therein.
    5. The CE publisher of a CE newspaper will provide the appropriate 
number of news racks determined by the installation commander for 
publication distribution.
    CE publishers are responsible for maintenance of these racks.
    6. CE guides, magazines, and installation maps may be delivered in 
bulk quantities to the appropriate installation offices to distribute 
these publications through official channels as necessary.
    G. Responsibilities regarding advertising.
    1. Only the CE publisher shall use the space agreed upon for 
advertising. While the editorial content of the publication is 
completely controlled by the installation, the advertising section, 
including its content, is the responsibility of the CE publisher. The 
public affairs staff, however, retains the responsibility to review 
advertisements before they are printed.
    2. Any decision by a CE publisher to accept or reject an 
advertisement is final. The PAO may discuss with a publisher their 
decision not to run an advertisement, but cannot substitute his judgment 
for that of the publisher.
    3. Before each issue of a CE publication is printed, the public 
affairs staff shall review advertisements to identify any that are 
contrary to law or to DoD or Military Service regulations, including 
this part, or that may pose a danger or detriment to DoD personnel or 
their family members, or that interfere with the command or installation 
missions. It is in the command's best interest to carefully apply DoD 
and Service regulations and request exclusion of only those 
advertisements that are clearly in violation of this part. If any such 
advertisements are identified, the public affairs office shall obtain a 
legal coordination of the proposed exclusion. After coordination, the 
public affairs office shall request, in writing if necessary, that the 
commercial publisher delete any such advertisements. If the publisher 
prints the issue containing the objectionable advertisement(s), the 
commander may prohibit distribution in accordance with DoD Directive 
1325.6. \1\
---------------------------------------------------------------------------

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

    4. DoD Directive 1325.6 gives the commander authority to prohibit 
distribution on the installation of a CE publication containing 
advertising he or she determines likely to promote a situation leading 
to potential riots or other disturbances, or when the circulation of 
such advertising may present a danger to loyalty, discipline, or morale 
of personnel. Each commander shall determine whether particular 
advertisements to be placed by the publisher in a CE publication serving 
the command or installation may interfere with successful mission 
performance. Some considerations in this decision are the local 
situation, the content of the proposed advertisement, and the past 
performance of the advertiser. Prior to making a determination to 
prohibit distribution of a CE publication, the commander shall obtain a 
legal coordination.
    5. CE publications may carry paid and nonpaid advertising of the 
products and services of nonappropriated fund activities and 
commissaries, if allowed by DoD and Military Service regulations. (See 
DoD Instruction 1015.2 \2\)
---------------------------------------------------------------------------

    \2\ See footnote 1 to section G.3. of this appendix.
---------------------------------------------------------------------------

    6. The Military Departments will coordinate a standard set or ratios 
of advertising-to-editorial copy for multiples of pages for run of the 
publication advertising in CE publications that will be included in all 
DoD Component regulations supplementing this part. The recommended 
annual average is a ratio of 60/40. Inserts and advertising supplements 
will not count in the total ad-to-copy ratio; However, the commander may 
prohibit the distribution of supplemental advertising deemed excessive.
    7. Bingo games and lotteries conducted by a commercial organization 
whose primary business is conducting lotteries may not be advertised in 
CE publications. Non-lottery activities (such as dining at a restaurant 
or attending a musical performance) of a commercial organization whose 
primary business is conducting lotteries may be advertised in CE 
publications. Exceptions are allowed for authorized State lotteries, 
lotteries conducted by a not-for-profit organization or a governmental 
organization, or conducted as a promotional activity by a commercial 
organization and clearly occasional and ancillary to the primary 
business of that organization. An exception also pertains to any gaming 
conducted by an Indian tribe under 25 U.S.C. 2720. See section D. of 
appendix C to this part.
    H. CE guides and maps.
    1. The name of the publication may include the name and emblem of 
the command or installation.

[[Page 656]]

    2. At the discretion of the commander, an installation telephone 
directory may be included as a section of a CE guide. The telephone 
section shall be part of the guide contract specifications. Separate 
contracts for CE telephone directories are not authorized. Over-run 
printing of the telephone directory/yellow pages section of the 
installation guide is authorized. The number of guides with integral 
telephone directories and the number of over-run copies of the telephone 
directory/yellow pages will be clearly specified in the single guide 
contract. Required communication security information shall be printed 
on the first page of the telephone section and not on the cover of the 
guide. The cover of the guide may notify users that the publication 
contains the telephone directory.
    3. CE contracts for guides and maps shall establish firm delivery 
dates and shall contain provisions to ensure distribution is controlled 
by the command. Delivery dates may vary for guides and maps to make them 
more attractive to advertisers. The contract provisions shall specify 
delivery dates.
    I. Employment and gratuities. DoDpersonnel shall not accept any 
gratuities from or employment with any CE publisher in violation of DoD 
Directive 5500.7-R. \3\ In addition, DoD personnel whose spouse or 
children (or other relations as described in DoD Directive 5500.7-R) are 
offered employment by, or work for, a CE publisher, must take 
appropriate action to avoid conflicts of interest.
---------------------------------------------------------------------------

    \3\ See footnote 1 to section G.3. of this appendix.
---------------------------------------------------------------------------

    J. Contracting for a CE publication.
    1. General. The DoD Components and their subordinate commands are 
authorized to contract in writing for CE publications. The underlying 
premise of the CE concept is that the DoD Components and their 
subordinate commands will save money by transferring certain publishing 
and distribution functions to a commercial publisher selected through a 
competitive process. The CE publication is printed and delivered to the 
command, installation, or its readership in accordance with the terms of 
a written contract. Oral contracts are not acceptable. The right to sell 
and circulate advertising to the complete readership in the CE 
publication provides the publisher revenue to cover costs and secure 
earnings. The command or installation guarantees first publication and 
distribution of locally-produced editorial content in the publication. 
The publication becomes the property of the command, installation, or 
intended reader upon delivery in accordance with terms of the contract.
    2. Contracting process. Whether a first time initiative to establish 
a CE publication or a recompetition of an existing CE contract, the 
process must start with advance planning as to the nature of the 
command's requirements, the contracting strategy, and the market of 
potential advertisers and competitors for the job. The CE contract 
solicitation and the contract itself must contain a statement of work 
that describes in legally sufficient detail the Government's 
requirements and the conditions and restrictions under which the 
contractor will perform. The cognizant contracting office for the CE 
contracting action shall be the contracting office which normally 
provides contracting support to the command for service contracts and 
other procurements of a general nature which are above the simplified 
small purchase threshold. The contracting officer shall combine the 
statement of work with appropriate contractual terms and conditions, 
using 48 CFR chapter I and II as guides, although CE contracts are not 
subject to the FAR or DFARS, because they do not involve the expenditure 
of appropriated funds. The resulting solicitation and contract shall 
completely identify the rights and obligations of both parties. 
Proposals shall be solicited from all known commercial publishers who 
could potentially become the CE contractor. Upon evaluation of the 
competing proposals by the Source Selection Advisory Committee (SSAC) 
and selection of a winner by the selecting official, the CE contract 
shall be awarded by the contracting officer. The CE contract shall not 
require the contractor to pay money to the command or to provide goods, 
services, or other consideration not directly related to the CE 
publication. In the event that only one offer is received, the SSAC may 
recommend to the selecting official that no award be made or that the 
contracting officer enter into negotiations with the sole offeror to 
obtain the best possible service and product for the Government.
    3. Statement of Work (SOW). The SOW should be written to have the CE 
contractor perform as many of the publishing and distribution functions 
as practical to generate maximum savings to the Department of Defense. 
In so doing, care must be taken to balance Government requirements with 
a realistic view of the advertising revenue potential so as to achieve a 
contract that is commercially viable. The command's internal information 
needs shall be paramount. Some of the key issues that shall be addressed 
in the SOW follow:
    a. A general description of the scope of the proposed contract 
including the name and nature of the publication involved; for example, 
weekly newspaper, monthly magazine, annual guide and installation map. 
Normally, guides and installation maps are included in the same 
contract.
    b. A description of editorial content to be carried; e.g., news, 
features, supplements, and factual information, along with provisions 
addressing the possible inclusion of

[[Page 657]]

contractor-furnished advertising supplements for newspapers, provided 
any such supplement shall have the prior approval of the commander.
    c. A description of the rules for the inclusion of advertising in 
the publication, substantially as follows: ``The contractor agrees not 
to include in the publication any advertising of the following types: 
(1) paid political advertisements for a candidate, party, or which 
advocate a particular position on a political issue, including 
advertisements advocating a position on any proposed DoD policy or 
policy under review, or which advocate lobbying elected officials on a 
specific issue; (2) advertisements for any establishment declared ``off 
limits'' by the command; (3) advertisements that are contrary to law or 
to DoD or Military Service regulations or that in the government's 
opinion pose a danger or detriment to DoD personnel or their family 
members, or that interfere with the command or installation missions; 
(4) advertisements for bingo games or lotteries conducted by a 
commercial organization whose primary business is conducting lotteries; 
(5) (other restrictions deemed appropriate by the Service/command, if 
any.)'' Additionally, the contract will contain provisions which: (1) 
specify the annual average advertising-to-editorial ratio for newspapers 
and magazines; (2) state that the commander's representative shall have 
the authority to specify newspaper advertising layout when required to 
enhance communication's effectiveness of the publication; and (3) which 
requires the contractor to notify advertisers of the requirements in 
Sec. 247.4(i) and Sec. 247.4(j).
    d. A provision substantially as follows: ``The contractor agrees not 
to enter into any exclusive advertising agreement with any firm, broker, 
or individual for the purpose of selling advertising associated with 
this contract.''
    e. A description of the CE contractor's responsibilities for 
distribution of the publication. This provision should address such 
matters as contractor furnishing of news racks along with contractor 
responsibility for maintenance of these racks.
    f. A description of contractor-owned and/or contractor-furnished 
equipment such as text editing, copy terminals, and modems determined to 
be required to coordinate layout and ensure that the preparation of 
editorial material is performed in such a way as to enhance the 
efficiency and effectiveness of the publication process.
    g. A description of contractor-furnished editorial support services 
determined to be required. Such description must be in terms of the end 
product required; e.g., photography service and/or writer/reporter 
services, and not as a requirement to make available certain contractor 
personnel. In day-to-day performance and administration of the CE 
contract, contractor personnel performing such support services shall 
not be treated in any way as though they are Government employees.
    h. A provision that the use, where economically feasible, of 
recycled paper for internal products will be a consideration for 
awarding the contract, as stated in Sec. 247.6 (e).
    i. SOW's and RFP's for CE newspapers shall specify standard 
newsprint, recyclable, subject to requirements of applicable laws and 
regulations.
    j. For CE magazines, a provision requiring the contractor to provide 
a bulk number of copies of each printing to the Government Printing 
Office (GPO) for distribution to Federal Depository Libraries. The 
number of copies to be provided will be determined on the number of 
libraries desiring to subscribe to the publication. The number could be 
a maximum of 1,400, but has historically averaged approximately 500 to 
600 copies for military magazines. The contractor would be required to 
contact GPO to initiate this procedure at (202) 512-1071.
    4. Contract provisions. The CE concept is based on an exception to 
the Government Printing and Binding Regulations \4\ published by the 
Congressional Joint Committee on Printing. While CE contracts are not 
subject to the FAR (48 CFR chapter I) or the DFARS (48 CFR chapter II), 
the FAR contains many clauses that are useful in protecting the 
interests of the Government. The following clauses may be helpful in 
obtaining the best possible CE publication:
---------------------------------------------------------------------------

    \4\ Copies may be obtained, at cost, from the Superintendent of 
Documents, U.S. Government Printing Office, Washington, DC 20402.
---------------------------------------------------------------------------

    a. Status of FAR clause. To clarify the status of FAR clauses 
appearing in CE contracts, the following clause shall be included in all 
new CE contracts:

    ``The (name of DoD installation/unit/organization) is an element of 
the United States Government. This agreement is a United States 
Government contract authorized under the provisions of DoD Instruction 
5120.4 \5\ as an exception to the Government Printing and Binding 
Regulations published by the Congressional Joint Committee on Printing. 
Although this contract is not subject to the Federal Acquisition 
Regulation (FAR) or the Defense FAR Supplement (DFARS), FAR clauses 
useful in protecting the interests of the Government and implementing 
those provisions required by law are included in this contract.''
---------------------------------------------------------------------------

    \5\ See footnote 1 to section G.3. of this appendix.
---------------------------------------------------------------------------

    b. Option clause. Insert a clause substantially the same as the 
following to extend the term of the CE publisher contract:

[[Page 658]]

    (1) ``The Government may extend the term of this contract by written 
notice to the contractor within [insert in the clause the period of time 
in which the contracting officer has to exercise the option]; provided 
that the Government shall give the contractor a preliminary written 
notice of its intent to exercise the option at least 60 days before the 
contract expires. The preliminary notice does not commit the government 
to exercise the option.'' In the case of base closure or realignment the 
publisher has the right to request a renegotiation of the contract.
    (2) ``If the Government exercises this option, the extended contract 
shall be considered to include this option provision.''
    (3) ``The total duration of this contract, including the exercise of 
any options under this clause, shall not exceed 6 years.''
    c. Default clause. Insert the following clause in solicitations and 
contracts:
    (1) ``The Government may, by written notice of default to the 
contractor, terminate this contract in whole or in part if the 
contractor fails to:
    (a) Deliver the CE publications in the quantities required or to 
perform the services within the time specified in this contract or any 
extension;
    (b) Make progress, so as to endanger performance of this contract;
    (c) Perform any of the other provisions of this contract.''
    (2) ``If the Government terminates this contract in whole or in 
part, it may acquire, under the terms and in the manner the contracting 
officer considers appropriate, supplies or services similar to those 
terminated. However, the contractor shall continue the work not 
terminated.''
    (3) ``The rights and remedies of the Government in this clause are 
in addition to any other rights and remedies provided by law or under 
this contract.''
    d. Termination for convenience of the Government. Insert the 
following clause in solicitations and contracts:
    ``The contracting officer, by written notice, may terminate this 
contract, in whole or in part if the services contracted for are no 
longer required by the Government, or when it is in the Government's 
interest, such as with installation closures. Any such termination shall 
be at no cost to the Government.'' The Government will use its best 
efforts to mitigate financial hardship on the publisher.
    5. Term of contract. CE contracts may be entered into for an initial 
period of up to 2 years, and may contain options to extend the contract 
for one or more additional periods of 1 or 2 years duration. The total 
period of the contract, including options, shall not exceed 6 years, 
after which the contract must be recompeted.
    6. Exercise of options. Under normal circumstances, when the 
contractor is performing satisfactorily, options for additional periods 
of performance should be exercised. However, the exercise of the option 
is the exclusive right of the Government.
    7. Modification of the contract. Any changes to the SOW or other 
terms and conditions of the contract shall be made by written contract 
modification signed by both parties.
    8. SSAC. The commander shall appoint an SSAC. The committee shall 
participate in the development of the Source Selection Plan (SSP) before 
the solicitation of proposals, evaluate proposals, and recommend a 
source to the selecting official. Since cost is not a factor in the 
evaluation, award will be based on technical proposals, the offeror's 
experience and/or qualifications, and past performance.
    a. The SSAC shall consist of a minimum of five voting members: a 
chairperson, who shall be a senior member of the command; senior 
representatives from public affairs and printing; and a minimum of two 
other functional specialists with skills relevant to the selection 
process. Each SSAC shall have non-voting legal and contracting advisors 
to assist in the selection process.
    b. In arriving at its recommendations, the SSAC shall follow the SSP 
and avail itself of all relevant information, including the proposals 
submitted, independently derived data regarding offerors' performance 
records, the results of on-site surveys of offerors' facilities, where 
feasible, and in appropriate cases, personal presentations by offerors.
    c. The work of the SSAC must be coordinated with the contracting 
officer to ensure that the process is objective and fair. All 
communications between the offerors and the Government shall be through 
the contracting officer. No member of the SSAC or the selecting official 
shall communicate directly with any offeror regarding the source 
selection.
    d. In cases where a losing competitor requests a debriefing from the 
contracting officer, members of the SSAC may be called upon to 
participate so as to give the losing competitor the most thorough 
explanation practical as to why its proposal was not successful. No 
information regarding competitors' proposals shall be discussed with the 
unsuccessful offerors during debriefings, discussions, or negotiations.
    9. SSP. A SSP (see sample SSP at attachment 1 to this appendix) must 
be developed early in the planning process to serve as a guide for the 
personnel involved and ensure a fair and objective process and a 
successful outcome. The contracting officer is primarily responsible for 
development of the SSP, in coordination with the PAO and other members 
of the SSAC. Ideally, the SSP should be completed and approved prior to 
issuance of the solicitation; it must be completed and approved before 
the receipt of proposals.

[[Page 659]]

    10. Evaluation criteria and proposal requirements. The solicitation 
must specify, in relative order of importance, the factors the 
Government will consider in selecting the most advantageous proposal. In 
addition, the solicitation must specify the types of information the 
proposal must contain to be properly evaluated. These two aspects of the 
solicitation must closely parallel one another. The contracting officer 
is primarily responsible for development of these two solicitation 
provisions, in coordination with the PAO, legal counsel, and members of 
the SSAC.
    a. Evaluation criteria for award. Drawing upon the SSP, this feature 
of the solicitation must advise offerors what factors the Government 
will consider in evaluating proposals and the relative importance of 
each factor. The sample SSP (attachment 1 to this appendix) provides an 
example of criteria that might be used. Note that under the ``Services 
and/or Items Offered'' factor, paragraph E.2.b. of attachment 1 to this 
appendix, it is necessary to list and indicate the relative importance 
of services and/or items above the minimum requirements of the SOW that 
the command would consider desirable and that, if offered, will enhance 
the offeror's evaluation standing. The offer of services and/or items 
not listed in the evaluation criteria shall not be considered in the 
evaluation of proposals, but may be accepted in the contract award if 
deemed valuable to the Government, PROVIDED the service and/or item 
involved is directly related to producing the publication and not in 
violation of any other statute or regulation. Examples of items that 
cannot be considered during the evaluation process are; press kits, 
laminated maps, economic development reports, or other separate 
publications not an integral part of the CE publication.
    b. Proposal requirements. This provision of the solicitation must 
describe the specific and general types of information necessary to be 
submitted as part of the proposal to be evaluated. Offerors shall be 
notified that unnecessarily elaborate proposals are not desired.

               Attachment 1 to Appendix B to Part 247--SSP

                             A. Introduction

    1. The objectives of this plan are:
    a. To ensure an impartial, equitable, and thorough evaluation of all 
offerors' proposals in accordance with the evaluation criteria presented 
in the request for proposals (RFP).
    b. To ensure that the contracting officer is provided technical 
evaluation findings of the SSAC in such a manner that selection of the 
offer most advantageous to the Government is ensured.
    c. To document clearly and thoroughly all aspects of the evaluation 
and decision process to provide effective debriefings to unsuccessful 
offerors, to respond to legal challenges to the selection, and to ensure 
adherence to evaluation criteria.
    2. This plan will be used to select a CE contractor for publication 
of the ____________________ newspaper (CE guide, magazine, or 
installation map) and will:
    a. Give each SSAC member a clear understanding of his or her 
responsibilities as well as a complete overview of the evaluation 
process.
    b. Establish a well-balanced evaluation structure, equitable and 
uniform scoring procedures, and a thorough and accurate appraisal of all 
considerations pertinent to the negotiated contracting process.
    c. Provide the selecting official with meaningful findings that are 
clearly presented and founded on the collective, independent judgment of 
technical and managerial experts.
    d. Ensure identification and selection of a contractor whose final 
proposal offers optimum satisfaction of the Government's technical and 
managerial requirements as expressed in the RFP.
    e. Serve as part of the official record for the evaluation process.

                      B. Organization and Staffing

    1. The SSAC will consist of the Chairperson and a minimum of four 
other voting committee members plus the non-voting advisors to the SSAC.
    2. The SSAC committee members are:

------------------------------------------------------------------------
                   Name                               Position
------------------------------------------------------------------------
                                           Chairperson
                                           Member
                                           Member
                                           Member
                                           Member
                                           Legal
                                           Advisor \1\
                                           Contract
                                           Advisor \1\
------------------------------------------------------------------------
\1\ Non-voting members.

                           C. Responsibilities

    1. Selecting Official:
    a. Approves the SSP.
    b. Reviews the evaluation and findings of the SSAC.
    c. Considers the SSAC's recommendation of award.
    d. Selects the successful offeror.
    2. Chairperson of the Source Selection Advisory Committee (C/SSAC):
    a. Reviews the SSP.
    b. Approves membership of the SSAC.
    c. Analyzes the evaluation and findings of the SSAC and applies 
weights to the evaluation results.
    d. Approves the SSAC report for submission to the selecting 
official.
    3. Contracting Officer:

[[Page 660]]

    a. Is responsible for the proper and efficient conduct of the entire 
source selection process encompassing solicitation, evaluation, 
selection, and contract award.
    b. Provides SSAC and the selecting official with guidance and 
instructions to conduct the evaluation and selection process.
    c. Receives proposals submitted and makes them available to the 
SSAC, taking necessary precautions to ensure against premature or 
unauthorized disclosure of source selection information.
    4. SSAC members shall:
    a. Familiarize themselves with the RFP and SSP.
    b. Provide a fair and impartial review and evaluation of each 
proposal against the solicitation requirements and evaluation criteria.
    c. Provide written documentation substantiating their evaluations to 
include strengths, weaknesses, and any deficiencies of each proposal.
    5. Legal advisor:
    a. Reviews RFP and SSP for form and legality.
    b. Advises the SSAC members of their duties and responsibilities, 
regarding procurement integrity issues and confidentiality requirements.
    c. Participate in SSAC meetings and provide legal advice as 
required.
    d. Provides legal review of all documents supporting the selection 
decision to ensure legal sufficiency and consistency with the evaluation 
criteria in the RFP and SSP.
    e. Advises the selecting official on the legality of the selection 
decision.

                     D. Administrative Instructions

    1. Evaluation overview. The advisory committee will operate with 
maximum flexibility. Collective discussion by evaluators at committee 
meetings of their evaluation findings is permitted in the interchange of 
viewpoints regarding strengths, weaknesses, and deficiencies noted in 
the proposals relating to evaluation items. Evaluators will not suggest 
or disclose numerical scores or other information regarding the relative 
standing of offerors outside of committee meetings.
    2. Evaluation procedure. The evaluation of offers is based on good 
judgment and a thorough knowledge of the guidelines and criteria 
applicable to each evaluation factor.
    a. Numerical scoring is merely reflective of the composite findings 
of the SSAC. The evaluation scoring system is used as a tool to assist 
the Chairperson of the SSAC in determining the proposal most 
advantageous to the Government.
    b. The most important documents supporting the contract award will 
be the findings, conclusions, and reports of the SSAC.
    3. Safeguarding data. The sensitivity of the proceedings and 
documentation require stringent and special safeguards throughout the 
evaluation process:
    a. Inadvertent release of information could be a source of 
considerable misunderstanding and embarrassment to the Government. It is 
imperative, therefore, for all members of the SSAC to avoid any 
unauthorized disclosures of information pertaining to this evaluation. 
Evaluation participants will observe the following rules:
    (1) All offeror and evaluation materials will be secured when not in 
use (i.e., during breaks, lunch, and at the end of the day).
    (2) All attempted communications by offeror's representatives shall 
be directed to the contracting officer. No communications between 
members of the SSAC or the selecting official and offerors regarding the 
contract award or evaluation is permitted except when called upon under 
the provisions of paragraph J.8.d, of appendix B to this part.
    (3) Neither SSAC members or the selecting official shall disclose 
anything pertaining to the source selection process to any offeror 
except as authorized by the contracting officer.
    (4) Neither SSAC members or the selecting official shall discuss the 
substantive issues of the evaluation with any unauthorized individual, 
even after award of the contract.

                   E. Technical Evaluation Procedures

    1. Evaluation process. Proposals will be evaluated based on the 
following criteria as indicated in Section M of the solicitation: The 
evaluation worksheet (attachment 2 to this appendix) shall be used to 
score the technical factors. Using the technical evaluation worksheet, 
each member of the SSAC will independently review each proposal and 
assign an appropriate number of points to each factor being considered. 
Point scores for each factor will range from ``0'' to ``5'' based on the 
committee member's evaluation of the proposal. Upon completion of 
individual evaluations, the group will meet in committee with the 
Chairperson and arrive at a single numeric score for each factor in the 
proposal.
    2. Criteria. An example of applicable evaluation criteria and their 
relative order of importance are listed below in paragraphs E.2. a. 
through d. of this appendix. Criteria and weights are provided as an 
example only. The SSAC must determine its own weighting factors tailored 
to meet the needs of the particular CE publication and describe the 
relative weights assigned in the RFP; e.g., ``Evaluation factors are 
listed in descending order of importance; criteria 1 is twice as 
important as criteria 2,'' etc.
    a. Technical and production capability. Scores will range from ``0'' 
(unacceptable), to ``5'' (exhibits state-of-the-art, award winning, or 
clearly superior technical ability to produce the required newspaper, 
magazine, guide, or installation map). Factors to be considered for 
newspaper contracts include:

[[Page 661]]

level of automation; compatibility of automation with existing PAO 
automation (unless other automation is provided); printing capability; 
production equipment; physical plant (capabilities); and driving 
distance to the plant. Similar factors may be considered for magazines, 
guides and installation maps.
    b. Services and/or items offered. Scores will range from ``0'' 
(unacceptable), to ``5'' (the offer of equipment, such as automation 
equipment; or services, such as editorial or photographic services as 
set forth in the contract solicitation that will greatly enhance the 
newspaper and/or its production). Factors to be considered for 
newspapers include: offer of automation equipment and the quality and 
amount of equipment offered; the quality and amount of services offered; 
the usefulness of the services and/or items to the public affairs office 
in enhancing the newspaper; the impact of the services and/or items on 
other parts of the contract. Similar factors may be considered for 
magazines, guides and installation maps. The offer of equipment or 
services not specifically related to producing the publication will not 
result in the assignment of a higher score.
    c. Past performance record. Scores will range from ``0'' (no 
experience in newspaper, magazine, guide, or installation map publishing 
and/or unsatisfactory, previous performance), to ``5'' (long-term, 
highly successful experience publishing similar newspapers, magazines, 
guides, or installation maps). Factors to be considered include: 
demonstrated ability to successfully produce a CE or similar 
publication; demonstrated printing ability (types of printing, history 
of newspaper, magazine, guide, or installation map printing); 
demonstrated success in contract performance in a timely and responsive 
manner; demonstrated capability to sell advertising and successfully 
recoup publication costs.
    d. Management approach. Scores will range from ``0'' (approach 
unacceptable), to ``5'' (proposal demonstrates a sound and innovative 
approach to interfacing with the PAO and managing the CE publication 
operation). Factors to be considered include: The offeror's proposed 
approach to:
    (1) Interfacing with the PAO staff.
    (2) Controlling the quality and timeliness of the finished product.
    (3) Sale of ads of the type that enhance the publication's image in 
the community and with the readership at large.
    (4) Ensuring that contractor's personnel are properly supervised and 
managed.
    3. Weighting factors. Points will be assigned to the final score of 
each factor in a proposal as determined by multiplying the score 
assigned (e.g., ``0,'' ``1,'' ``2,'' ``3,'' ``4,'' or ``5'') by the 
relative weight of the individual criterion as indicated:

------------------------------------------------------------------------
                                     Relative weight
              Factor                    (percent)        Maximum points
------------------------------------------------------------------------
CRITERION 1.......................                 40                200
CRITERION 2.......................                 30                150
CRITERION 3.......................                 20                100
CRITERION 4.......................                 10                 50
                                    .................                500
------------------------------------------------------------------------


(EXAMPLE ONLY):
  CRITERION 1: Score 5 (5 x 40), Total Points..................      200
  CRITERION 1: Score 4 (4 x 30), Total Points..................      120
  CRITERION 1: Score 3 (3 x 20), Total Points..................       60
  CRITERION 1: Score 2 (2 x 10), Total Points..................       20
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
 

    4. Report of findings and recommendations. After the SSAC has 
completed final evaluation of proposals and all weighting has been 
completed, the committee will prepare a written report of its findings 
and recommendations, setting forth the consensus of the committee and 
its composite scores (Sample at attachment 3 to this appendix). The 
Chairperson will sign the report to confirm its accuracy and his 
agreement with the recommendation. All copies of proposals and 
evaluation worksheets will be returned to the contracting officer.

   Attachment 2 to Appendix B to Part 247--Sample Evaluation Worksheet

CONTRACTOR______________________________________________________________

EVALUATOR_______________________________________________________________

DATE____________________________________________________________________
EVALUATION CRITERIA AND SCORES (RANGE 0-5 POINTS FOR EACH)

1. Technical and production
 capability:____________________________________________________________
2. Services and items

 offered:_______________________________________________________________
3. Past performance

 record:________________________________________________________________
4. Management

 approach:______________________________________________________________
NARRATIVE DISCUSSION: \1\
---------------------------------------------------------------------------

    (\1\ Discussions of strengths, weaknesses, and deficiencies should 
reference the specific evaluation factor involved to ensure that 
proposals are evaluated only against the criterion set forth in the RFP, 
to facilitate debriefings, and to provide an effective defense to any 
challenges regarding the legality of the selection process.)

---------------------------------------------------------------------------
Strengths_______________________________________________________________

Weaknesses______________________________________________________________

Deficiencies____________________________________________________________


[[Page 662]]

________________________________________________________________________

Attachment 3 to Appendix B to Part 247--Sample Memorandum for Selecting 
                                Official

SUBJECT: Evaluation of Proposals

 RFP No.________________________________________________________________

    1. All proposals received in response to subject RFP have been 
evaluated by the Source Selection Advisory Committee (SSAC). The results 
and comments are listed below.
    a. Offeror's proposals were rated as follows:

Offeror Name Numerical Score

    b. Summary Narrative Comments.

(This section of the report shall be a summary of the individual 
strengths and weaknesses in each proposal, along with any deficiencies 
that are susceptible to being cured through written or oral discussions 
with the offeror, as noted by the SSC evaluators. This summary should be 
supported by detailed narratives contained on the individual evaluator's 
worksheets.)
    2. Recommendation.

________________________________________________________________________
Chairperson, SSAC



 Sec. Appendix C to Part 247--Mailing of DoD Newspapers, Magazines, CE 
    Guides, and Installation Maps; Sales and Distribution of Non-DoD 
                              Publications

    A. Policy. It is DoD policy that mailing costs shall be kept at a 
minimum consistent with timeliness and applicable postal regulations. 
(See DoD Instruction 4525.7 \1\ and DoD 4525.8-M. \2\ Responsible 
officials shall consult with appropriate postal authorities to obtain 
resolution of specific problems.
---------------------------------------------------------------------------

    \1\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
    \2\ See footnote 1 to section A. of this appendix.
---------------------------------------------------------------------------

    B. Definition. DoD appropriated fund postage includes all means of 
paying postage using funds appropriated for the Department of Defense. 
These means include meter imprints and stamps, permit imprints, postage 
stamps, and other means authorized by the U.S. Postal Service.
    C. Use of appropriated fund postage.
    1. DoD appropriated fund postage shall be used only for:
    a. Mailing copies to satisfy mandatory distribution requirements.
    b. Mailing copies to other public affairs offices for administrative 
purposes.
    c. Mailing copies to headquarters in the chain of command.
    d. Bulk mailings of DoD newspapers and magazines to subordinate 
units for distribution to members of the units.
    e. Mailing information copies to other U.S. Government Agencies, 
Members of Congress, libraries, hospitals, schools, and depositories.
    f. Mailing of an individual copy of a DoD newspaper, magazine, or CE 
publication in response to an unsolicited request from a private person, 
firm, or organization, if such response is in the best interest of the 
DoD Component or its subordinate levels of command.
    g. Mailing copies of DoD newspapers, magazines, guides, or 
installation maps to incoming DoD personnel and their families to orient 
them to their new command, installation, and community.
    2. DoD appropriated fund postage shall not be used for mailing:
    a. To the general readership of DoD newspapers, magazines, guides, 
and installation maps, unless specifically excepted in this part.
    b. By a CE publisher.
    c. CE publications other than newspapers and magazines in bulk. (See 
paragraph C.1.d. of this section).
    3. Generally, DoD newspapers, magazines, and CE publications shall 
be mailed as second class Requester Publication Rate, third-class bulk, 
or third- or fourth-class mail.
    D. Legal prohibitions. Compliance with 18 U.S.C., 1302 and 1307 is 
mandatory. 18 USC Section 1302 prohibits the mailing of publications 
containing advertisements of any type of lottery or scheme that is based 
on lot or chance. 18 USC 1307 authorizes exceptions pertaining to 
authorized State lotteries, lotteries conducted by a not-for-profit 
organization or a governmental organization, or conducted as a 
promotional activity by a commercial organization and clearly occasional 
and ancillary to the primary business of that organization. An exception 
also pertains to any gaming conducted by an Indian tribe under 25 U.S.C. 
2720. Lottery is defined as containing the following three elements:
    1. Prize (whatever items of value are offered in the particular 
game).
    2. Chance (random selection of numbers to produce a winning 
combination).
    3. Consideration (requirement to pay a fee to play).
    E. Review of mailing and distribution effectiveness.
    1. Mailing and distribution lists shall be reviewed annually to 
determine distribution effectiveness and continuing need of each 
recipient to receive the publication.
    2. Distribution techniques, target audiences, readers-per-copy 
ratios, and use of the U.S. Postal Service to ensure the most economical 
use of mail services consistent with timeliness shall be revalidated 
annually.
    F. Non-DoD publications. A commander shall afford reputable 
distributors of other publications the opportunity to sell or give away 
publications at the activity he or she

[[Page 663]]

commands in accordance with DoD Directive 1325.6. \3\ Such publications 
shall not be distributed through official channels. These publications 
may be made available through subscription paid for by the recipient or 
placed in specific general use areas designated by the commander, such 
as the foyers of open messes or exchanges. They will be placed only in 
stands or racks provided by the responsible publisher. The responsible 
publisher will maintain the stand or rack to present a neat and orderly 
appearance. Subscriptions paid for by a recipient may be home-delivered 
by the commercial distributor in installation residential areas.
---------------------------------------------------------------------------

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



        Sec. Appendix D to Part 247--AFIS Print Media Directorate

    A. General. The Print Media Directorate (PMD), an element of AFIS, 
develops, publishes, and distributes a variety of print media products 
that support DoD-wide programs and policies for targeted audiences 
throughout the DoD community. Products include the following:
    1. American Forces Press Service, news and feature articles, 
photographs, and art targeted principally to editors of DoD newspapers.
    2. DEFENSE magazine, a bimonthly magazine featuring articles 
authored by senior military and civilian officials on DoD programs and 
policies. An annual almanac edition highlights DoD's organization and 
statistical information.
    3. Defense Billboard, a monthly poster featuring topics of 
particular interest to junior Military Service members, but applicable 
to general DoD audiences.
    4. Pamphlets, booklets, and other posters covering a variety of 
joint interest information topics.
    5. PMD posts the Press Service on Military Service computer bulletin 
boards and internet world wide web sites. PAOs and editors may download 
text and art in a form readily usable for word processing or desktop 
publishing. All other PMD publications should be requisitioned through 
the Military Service's or organization's publications distribution 
system.
    6. Additional information may be obtained on the internet using the 
AFIS Uniform Resource Locator: http://www.dtic.mil/ defenselink/ afis/.
    B. Use of materials published by print media directorate. With the 
exception of copyrighted matter, all materials published by PMD may be 
reproduced or adapted for use by DoD newspaper and magazine editors as 
appropriate. When PMD material is edited or revised, accuracy and 
conformance to DoD policy and accepted standards of good taste will be 
maintained. Due to the policy-oriented nature of DEFENSE magazine 
contents, particular care shall be taken to preserve the original 
context, tone, and meaning of any material adapted, revised, or edited 
from this publication.
    C. Eligible activities. The following activities are eligible to 
receive the above listed PMD products:
    1. All authorized DoD newspapers and magazines.
    2. Headquarters of the DoD Components and their subordinate 
commands.
    3. Proponent offices of DoD periodicals published by the DoD 
Components.
    4. Armed Forces Radio and Television Service networks and outlets.
    5. Isolated commands and detachments at which DoD newspapers are not 
readily available.



 Sec. Appendix E to Part 247--DoD Command Newspaper and Magazine Review 
                                 System

    A. Purpose. The purpose of the DoD command newspaper and magazine 
review system is to assist commanders in establishing and maintaining 
cost-effective internal communications essential to mission 
accomplishment. The system also enables internal information managers to 
assess the cost and effective use of resources devoted to command 
newspapers and to provide requested reports.
    B. Policy. DoD newspapers and magazines shall be reviewed and 
reported biennially. The review process is not intended to replace day-
to-day quality assurance procedures or established critique programs.
    C. Review criteria. Each newspaper and magazine shall be evaluated 
on the basis of mission essentiality, communication effectiveness, cost-
effectiveness, and compliance with applicable regulations.
    D. Reporting requirements.
    1. The DoD Components (less the Military Departments) shall forward, 
by January 31 of each even numbered year, the information indicated at 
attachment 1 to this appendix for each newspaper published to: Director, 
American Forces Information Service, ATTN: Print Media Plans and Policy, 
601 North Fairfax Street, Alexandria, VA 22314-2007.
    2. No later than April 15 of each even-numbered year, the Secretary 
(or designee) of each Military Department shall forward to the address 
above a report of the Military Department's review of newspapers and 
magazines. This report shall include summary data on total number of 
newspapers and magazines, along with a listing of the information 
indicated at attachment 1 to this appendix.

[[Page 664]]

    3. One information copy of each issue of all DoD newspapers and 
magazines shall be forwarded on publication date to the address in 
paragraph H.1. of this appendix.
    4. Information copies of CE contracts shall be forwarded to the 
address in paragraph H.1. of this appendix, upon request.
    5. Administrative Instructions shall be issued by the Director, 
AFIS, for the annual review and reporting of newspapers and magazines.

Attachment 1 to Appendix E to Part 247--Newspaper and Magazine Reporting 
                                  Data

    As required by section H. of this appendix, the following 
information shall be provided biennially regarding newspapers and 
magazines:
    A. Name of newspaper or magazine.
    B. Publishing command and mailing address.
    C. Printing arrangement:
    1. Government equipment.
    2. Government contract with commercial printer.
    3. CE contract with commercial publisher (provide name, mailing 
address, and phone number of commercial publisher).
    D. Frequency and number of issues per year.
    E. Number of copies printed and estimated readership.
    F. Paper size (metro, tabloid, or magazine format).



PART 250_WITHHOLDING OF UNCLASSIFIED TECHNICAL DATA FROM
PUBLIC DISCLOSURE--Table of Contents



Sec.
250.1 Purpose.
250.2 Applicability and scope.
250.3 Definitions.
250.4 Policy.
250.5 Procedures.
250.6 Responsibilities.
250.7 Pertinent portions of Export Administration Regulations (EAR).
250.8 Pertinent portions of International Traffic in Arms Regulations 
          (ITAR).
250.9 Notice to accompany the dissemination of export-controlled 
          technical data.

    Authority: Sec. 1217, Pub. L. 98-94, (10 U.S.C. 140c).

    Source: 49 FR 48041, Dec. 10, 1984, unless otherwise noted.



Sec. 250.1  Purpose.

    This part establishes policy, prescribes procedures, and assigns 
responsibilities for the dissemination and withholding of technical 
data.



Sec. 250.2  Applicability and scope.

    (a) This part applies to:
    (1) All unclassified technical data with military or space 
application in the possession of, or under the control of, a DoD 
Component which may not be exported lawfully without an approval, 
authorization, or license under E.O. 12470 or the Arms Export Control 
Act. However, the application of this part is limited only to such 
technical data that disclose critical technology with military or space 
application. The release of other technical data shall be accomplished 
in accordance with DoD Instruction 5200.21 and DoD 5400.7-R.
    (2) The Office of the Secretary of Defense (OSD) and activities 
support administratively by OSD, the Military Departments, the 
Organization of the Joint Chiefs of Staff, the Defense Agencies, and the 
Unified and Specified Commands (hereafter referred to collectively as 
``DoD Components'').
    (b) This part does not:
    (1) Modify or supplant the regulations promulgated under E.O. 12470 
or the Arms Export Control Act governing the export of technical data, 
that is, 15 CFR part 379 of the Export Administration Regulations (EAR) 
and 22 CFR part 125 of the International Traffic in Arms Regulations 
(ITAR).
    (2) Introduce any additional controls on the dissemination of 
technical data by private enterprises or individuals beyond those 
specified by export control laws and regulations or in contracts or 
other mutual agreements, including certifications made pursuant to Sec. 
250.3(a). Accordingly, the mere fact that the Department of Defense may 
possess such data does not in itself provide a basis for control of such 
data pursuant to this part.
    (3) Introduce any controls on the dissemination of scientific, 
educational, or other data that qualify for General License GTDA under 
15 CFR 379.3 of the EAR (see Sec. 250.7) or for general exemptions 
under 22 CFR 125.11 of the ITAR (see Sec. 250.8).
    (4) Alter the responsibilities of DoD Components to protect 
proprietary data of a private party in which the Department of Defense 
has ``limited rights'' or ``restricted rights'' (as defined in 32 CFR 9-
201(c) and 9-601(j) of the DoD Acquisition Regulation, or

[[Page 665]]

which are authorized to be withheld from public disclosure under 5 
U.S.C. 552(b)(4).
    (5) Pertain to, or affect, the release of technical data by DoD 
Components to foreign governments, international organizations, or their 
respective representatives or contractors, pursuant to official 
agreements or formal arrangements with the U.S. Government, or pursuant 
to U.S. Government-licensed transactions involving such entities or 
individuals. In the absence of such U.S. Government-sanctioned 
relationships, however, this part does apply.
    (6) Apply to classified technical data. After declassification, 
however, dissemination of such data that are within the scope of Sec. 
250.2(a)(1) is governed by this part.



Sec. 250.3  Definitions.

    (a) Qualified U.S. contractor.\1\ A private individual or enterprise 
(hereinafter described as a ``U.S. contractor'') that, in accordance 
with procedures established by the Under Secretary of Defense for 
Research and Engineering, certifies, as a condition of obtaining export-
controlled technical data subject to this Directive from the Department 
of Defense, that:
---------------------------------------------------------------------------

    \1\ Canadian contractors may be qualified in accordance with this 
part for technical data that do not require a license for export to 
Canada under 22 CFR 125.12 of the ITAR and 15 CFR 379.4(d) and 379.5(e) 
of the EAR submitting an equivalent certification to the U.S. Department 
of Defense.
---------------------------------------------------------------------------

    (1) The individual who will act as recipient of the export-
controlled technical data on behalf of the U.S. contractor is a U.S. 
citizen or a person admitted lawfully into the United States for 
permanent residence and is located in the United States.
    (2) Such data are needed to bid or perform on a contract with the 
Department of Defense, or other U.S. Government agency, or for other 
legitimate business purposes \2\ in which the U.S. contractor is 
engaged, or plans to engage. The purpose for which the data are needed 
shall be described sufficiently in such certification to permit an 
evaluation of whether subsequent requests for data, pursuant to Sec. 
250.5(d)(2) are related properly to such business purpose.
---------------------------------------------------------------------------

    \2\ This does not require a contract with or a grant from the U.S. 
Government.
---------------------------------------------------------------------------

    (3) The U.S. contractor acknowledges its responsibilities under U.S. 
export control laws and regulations (including the obligation, under 
certain circumstances, to obtain an export license prior to the release 
of technical data within the United States) and agrees that it will not 
disseminate any export-controlled technical data subject to this part in 
a manner that would violate applicable export control laws and 
regulations.
    (4) The U.S. contractor also agrees that, unless dissemination is 
permitted by Sec. 250.5(h), it will not provide access to export-
controlled technical data subject to this part to persons other than its 
employees or persons acting on its behalf, without the permission of the 
DoD Component that provided the technical data.
    (5) To the best of its knowledge and belief, the U.S. contractor 
knows of no person employed by it, or acting on its behalf, who will 
have access to such data, who is debarred, suspended, or otherwise 
ineligible from performing on U.S. Government contracts; or has violated 
U.S. export control laws or a certification previously made to the 
Department of Defense under the provisions of this part.
    (6) The U.S. contractor itself is not debarred, suspended, or 
otherwise determined ineligible by any agency of the U.S. Government to 
perform on U.S. Government contracts, has not been convicted of export 
control law violations, and has not been disqualified under the 
provisions of this part. When the certifications required by paragraphs 
(a) (5) and (6) of this section, cannot be made truthfully, the U.S. 
contractor may request the certification be accepted based on its 
description of extenuating circumstances.
    (b) Controlling DoD Office. The DoD activity that sponsored the work 
that generated the technical data or received the technical data on 
behalf of the Department of Defense and therefore has the responsibility 
for determining the distribution of a document containing such technical 
data. In the

[[Page 666]]

case of joint sponsorship, the controlling office is determined by 
advance agreement and may be either a party, a group, or a committee 
representing the interested activities or DoD Components. (The 
controlling DoD office is identified on each export-controlled document 
in accordance with DoD Directive 5230.24.
    (c) Critical Technology. Technologies that consist of (1) arrays of 
design and manufacturing know-how (including technical data); (2) 
keystone manufacturing, inspection, and test equipment; (3) keystone 
materials; and (4) goods accompanied by sophisticated operation, 
application, or maintenance know-how that would make a significant 
contribution to the military potential of any country or combination of 
countries and that may prove detrimental to the security of the United 
States (also referred to as militarily critical technology).
    (d) Other legitimate business purposes. Include:
    (1) Providing or seeking to provide equipment or technology to a 
foreign government with the approval of the U.S. Government (for 
example, through a licensed direct foreign military sale).
    (2) Bidding, or preparing to bid, on a sale of surplus property.
    (3) Selling or producing products for the commercial domestic 
marketplace or for the commercial foreign marketplace, providing that 
any required export license is obtained.
    (4) Engaging in scientific research in a professional capacity.
    (5) Acting as a subcontractor to a concern described in paragraphs 
(d) (1) through (4) of this section; or
    (6) Selling technical data subject to this part in support of DoD 
contractors or in supporting of the competitive process for DoD 
contracts, provided such sales are limited solely to DoD contractors or 
potential DoD contractors who also are qualified U.S. contractors and 
provided such technical data are related to the purpose for which the 
qualified U.S. contractor is certified, or selling technical data to 
foreign contractors or governments overseas after receiving the required 
export license or approval by the U.S. Government.
    (e) Potential DoD contractor. An individual or organization outside 
the Department of Defense declared eligible for DoD information services 
by a sponsoring DoD activity on the basis of participation in one of the 
following programs:
    (1) The Department of the Army Qualitative Requirements Information 
Program.
    (2) The Department of the Navy Industry Cooperative Research and 
Development Program.
    (3) The Department of the Air Force Potential Contractor Program.
    (4) The DoD Scientific and Technical Program; or
    (5) Any similar program in use by other DoD Components.
    (f) Public disclosure. Making technical data available without 
restricting its dissemination or use.
    (g) Technical data with military or space application, or technical 
data. Any blueprints, drawings, plans, instructions, computer software 
and documentation, or other technical information that can be used or be 
adapted for use to design, engineer, produce, manufacture, operate, 
repair, overhaul, or reproduce any military or space equipment or 
technology concerning such equipment.
    (h) United States. For the purpose of this part, the 50 States, the 
District of Columbia, and the territories and possessions of the United 
States.



Sec. 250.4  Policy.

    (a) In accordance with 10 U.S.C. 140c, the Secretary of Defense may 
withhold from public disclosure, notwithstanding any other provision of 
law, any technical data with military or space application in the 
possession of, or under the control of, the Department of Defense, if 
such data may not be exported lawfully without an approval, 
authorization, or license under E.O. 12470 or the Arms Export Control 
Act. However, technical data may not be withheld under this section if 
regulations promulgated under either the Order or Act authorize the 
export of such data pursuant to a general, unrestricted license or 
exemption in such regulations. (Pertinent portions of such regulations 
are set forth in Sec. Sec. 250.7 and 250.8).

[[Page 667]]

    (b) Because public disclosure of technical data subject to this part 
is tantamount to providing uncontrolled foreign access, withholding such 
data from public disclosure, unless approved, authorized, or licensed in 
accordance with export control laws, is necessary and in the national 
interest. Unclassified technical data that are not governed by this 
part, unless otherwise restricted, shall continue to be made available 
to the public as well as to state and local governments.
    (c) Nothwithstanding the authority provided in paragraph (a), of 
this section, it is DoD policy to provide technical data governed by 
this part to individuals and enterprises that are determined to be 
currently qualified U.S. contractors, when such data relate to a 
legitimate business purpose for which the contractor is certified. 
However, when such data are for a purpose other than to permit the 
requester to bid or perform on a contract with the Department of 
Defense, or other U.S. Government agency, and the significance of such 
data for military purposes is such that release for purposes other than 
direct support of DoD activities may jeopardize an important U.S. 
technological or operational advantage, those data shall be withheld in 
such cases.
    (d) This part may not be used by DoD Components as authority to deny 
access to technical data to the Congress, or to any Federal, State, or 
local governmental agency that requires such data for regulatory or 
other official governmental purposes. Any such dissemination will 
include a statement that the technical data are controlled by the 
Department of Defense in accordance with this part.
    (e) The authority provided herein may not be used to withhold from 
public disclosure unclassified information regarding DoD operations, 
policies, activities, or programs, including the costs and evaluations 
of performance and reliability of military and space equipment. When 
such information does contain technical data subject to this part, the 
technical data shall be excised from that which is disclosed publicly.
    (f) This part may not be used as a basis for the release of 
``limited rights'' or ``restricted rights'' data as defined in 32 CFR 9-
201(c) and 9-601(j) of the DoD Acquisition Regulation or that are 
authorized to be withheld from public disclosure under the Freedom of 
Information Act (FOIA).
    (g) This part may not be used to provide protection for technical 
data that should be classified in accordance with E.O. 12356 and DoD 
5200.1-R.
    (h) This part provides immediate authority to cite 5 U.S.C. 
552(b)(3) as the basis for denials under the FOIA of technical data 
currently determined to be subject to the provisions of this part.



Sec. 250.5  Procedures.

    All determinations to disseminate or withhold technical data subject 
to this part shall be consistent both with the policies set forth in 
Sec. 250.4 of this part, and with the following procedures:
    (a) Requests for technical data shall be processed in accordance 
with DoD Directive 5230.24 and DoD Instruction 5200.21. FOIA requests 
for technical data subject to this part shall be handled in accordance 
with the procedures established in DoD 5400.7-R. Such FOIA requests for 
technical data currently determined to be subject to the withholding 
authority effected by this part shall be denied under citing the third 
exemption to mandatory disclosure, and the requester shall be referred 
to the provisions of this part permitting access by qualified U.S. 
contractors.
    (b) Upon receipt of a request for technical data in the possession 
of, or under the control of, the Department of Defense, the controlling 
DoD office shall determine whether such data are governed by this part. 
The determination shall be based on the following:
    (1) The office's finding \3\ that such data would require an 
approval, authorization, or license for export under E.O. 12470 or the 
Arms Export Control Act and that such data may not be exported pursuant 
to a general, unrestricted license (15 CFR 379.3, EAR) (see Sec. 250.7) 
or exemption (22 CFR 125.11, ITAR) (see Sec. 250.8).
---------------------------------------------------------------------------

    \3\ May require consultation with the Department of State or the 
Department of Commerce, as appropriate.

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

[[Page 668]]

    (2) The office's judgment that the technical data under 
consideration disclose critical technology with military or space 
application. For purposes of making this determination, the Militarily 
Critical Technologies List (MCTL) shall be used as general guidance. The 
controlling DoD office may request assistance in making such a 
determination from the Office of the Under Secretary of Defense for 
Research and Engineering (OUSDR&E) in accordance with procedures 
established by that office.
    (c) The controlling DoD office shall ensure that technical data 
determined to be governed by this part are marked in accordance with DoD 
Directive 5230.24.
    (d) The controlling DoD office shall authorize release of technical 
data governed by this part to currently qualified U.S. contractors only, 
as defined in Sec. 250.3(a) of this part, unless one of the following 
apply:
    (1) The qualification of the U.S. contractor concerned has been 
temporarily revoked in accordance with Sec. 250.5(e) of this part; or
    (2) The requested data are judged to be unrelated to the purpose for 
which the qualified U.S. contractor is certified. When release of 
technical data is denied in accordance with this section, the 
controlling DoD office shall request additional information sufficient 
to explain the intended use of the requested data and, if appropriate, 
request a new certification (see Sec. 250.3(a) above) describing the 
intended use of the requested data; or
    (3) The technical data are being requested for a purpose other than 
to permit the requester to bid or perform on a contract with the 
Department of Defense or other U.S. Government agency, in which case the 
controlling DoD office shall withhold such data if it has been 
determined by the DoD Component focal point (see Sec. 250.5(e)(5)) that 
the significance of such data for military purposes is such that release 
for purpose other than direct support of DoD-approved activities may 
jeopardize an important technological or operational military advantage 
of the United States.
    (e) Upon receipt of credible and sufficient information that a 
qualified U.S. contractor has (1) violated U.S. export control law, (2) 
violated its certification, (3) made a certification in bad faith, or 
(4) made an omission or misstatement of material fact, the DoD Component 
shall revoke temporarily the U.S. contractor's qualification. Such 
revocations having the potential for compromising a U.S. Government 
investigation may be delayed. Immediately upon such revocation, the DoD 
Component shall notify the contractor and the OUSDR&E. Such contractor 
shall be given an opportunity to respond in writing to the information 
upon which the temporary revocation is based before being disqualified. 
Any U.S. contractor whose qualification has been revoked temporarily may 
be reinstated upon presentation of sufficient information showing that 
the basis for such revocation was in error or has been remedied.
    (f) When the basis for a contractor's temporary revocation cannot be 
removed within 20 working days, the DoD Component shall recommend to the 
OUSDR&E that the contractor be disqualified.
    (g) Charges for copying, certifying, and searching records rendered 
to requesters shall be levied in accordance with DoD Instruction 7230.7. 
Normally, only one copy of the same record or document will be provided 
to each requester. Any release to qualified U.S. contractors of 
technical data controlled by this part shall be accompanied by a notice 
to the recipient as set forth in Sec. 250.9.
    (h) Qualified U.S. contractors who receive technical data governed 
by this part may disseminate such data for purposes consistent with 
their certification without prior permission of the controlling DoD 
office or when such dissemination is:
    (1) To any foreign recipient for which the data are approved, 
authorized, or licensed under E.O. 12470 or the Arms Export Control Act.
    (2) To another currently qualified U.S. contractor (as defined in 
Sec. 250.3(a) above, including existing or potential subcontractors, 
but only within the scope of the certified legitimate business purpose 
of such recipient.
    (3) To the Departments of State and Commerce, for purposes of 
applying for

[[Page 669]]

appropriate approvals, authorizations, or licenses for export under the 
Arms Export Control Act or E.O. 12470. Any such application shall 
include a statement that the technical data for which such approval, 
authorization, or license is sought are controlled by the Department of 
Defense in accordance with this part.
    (4) To Congress or any Federal, State, or local governmental agency 
for regulatory purposes, or otherwise as may be required by law or court 
order. Any such dissemination shall include a statement that the 
technical data are controlled by the Department of Defense in accordance 
with this part.
    (i) A qualified U.S. contractor desiring to disseminate technical 
data subject to this part in a manner not permitted expressly by the 
terms of this part shall seek authority to do so from the controlling 
DoD office.
    (j) Any requester denied technical data, or any qualified U.S. 
contractor denied permission to redisseminate such data, pursuant to 
this part, shall be provided promptly a written statement of reasons for 
that action, and advised of the right to make a written appeal of such 
determination to a specifically identified appellate authority within 
the DoD Component. Appeals of denials made under DoD 5400.7-R (reference 
(e)) shall be handled in accordance with procedures established therein. 
Other appeals shall be processed as directed by the OUSDR&E.
    (k) Denials shall cite 10 U.S.C. 140c as implemented by this part, 
and, in the case of FOIA denials made in reliance on this statutory 
authority, 5 U.S.C. 552(b)(3). Implementing procedures shall provide for 
resolution of any appeal within 20 working days.



Sec. 250.6  Responsibilities.

    (a) The Under Secretary of Defense for Research and Engineering 
(USDR&E) shall have overall responsibility for the implementation of 
this Directive and shall designate an office to:
    (1) Administer and monitor compliance with this Directive.
    (2) Receive and disseminate notifications of temporary revocation in 
accordance with Sec. 250.5(e) of this part.
    (3) Receive recommendations for disqualification made in accordance 
with Sec. 250.5(f) of this part, and act as initial disqualification 
authority.
    (4) Provide, when necessary, technical assistance to DoD Components 
in assessing the significance of the military or space application of 
technical data that may be withheld from public disclosure under this 
Directive.
    (5) Establish procedures to develop, collect, and disseminate 
certification statements and ensure their sufficiency, accuracy, and 
periodic renewal, and to make final determinations of qualification.
    (6) Ensure that the requirements of this Directive are incorporated 
into the DoD Federal Acquisition Regulation Supplement for optional 
application to contracts involving technical data governed by this 
Directive.
    (7) Develop, in conjunction with the General Counsel, Department of 
Defense, guidelines for responding to appeals.
    (8) Develop procedures to ensure that DoD Components apply 
consistent criteria in authorizing exceptions under Sec. 250.5(i) of 
this part.
    (9) Establish procedures and appropriate mechanisms for the 
certification of qualified U.S. contractors, pursuant to Sec. 
250.6(a)(5) of this part, within 60 days of the effective date of this 
Directive. During this 60-day period, requests for technical data 
governed by this Directive shall be processed in accordance with 
procedures in effect before the promulgation of this Directive.
    (10) Take such other actions that may be required to ensure 
consistent and appropriate implementation of this Directive within the 
Department of Defense.
    (b) The Under Secretary of Defense for Policy shall:
    (1) Develop and promulgate, as required, policy guidance to DoD 
Components for implementing this Directive.
    (2) Develop procedures with the Departments of State and Commerce to 
ensure referral of export cases involving technical data governed by 
this Directive to the Department of Defense.
    (c) The Assistant Secretary of Defense (Public Affairs) shall:

[[Page 670]]

    (1) Monitor the implementation of provisions of this Directive that 
pertain to DoD 5400.7-R.
    (2) Provide such other assistance as may be necessary to ensure 
compliance with this Directive.
    (d) The General Counsel, Department of Defense, shall:
    (1) Assist in carrying out the provisions of this Directive by 
advising DoD Components with respect to the statutory and regulatory 
requirements governing the export of technical data.
    (2) Advise the USDR&E regarding consistent and appropriate 
implementation of this Directive.
    (e) The Heads of DoD Components shall:
    (1) As the delegated authority, have the option to redelegate the 
authority to withhold technical data in accordance with this Directive.
    (2) Disseminate and withhold from public disclosure technical data 
subject to this Directive in a manner consistent with the policies and 
procedures set forth herein.
    (3) Designate a focal point to
    (i) Ensure implementation of this Directive;
    (ii) Identify classes of technical data the release of which is 
governed by Sec. 250.5(d)(3) of this part;
    (iii) Act on appeals relating to case-by-case denials of technical 
data;
    (iv) Suspend a contractor's qualification pursuant to Sec. 250.(e) 
of this part;
    (v) Receive and evaluate requests for reinstatement of a 
contractor's qualification; and, when appropriate,
    (vi) Recommend disqualification to the OUSDR&E.
    (4) Promulgate and effect regulations to implement this Directive 
within 180 days.
    (5) Disseminate technical data governed by this Directive in the 
manner prescribed herein, to the extent feasible, during the period 
after which certification procedures have been established under Sec. 
250.6(a)(9) of this part, but before DoD Components have issued 
implementing regulations under paragraph (e)(4) of this section. 
However, if such dissemination is not feasible, the DoD Component may 
process requests for such data in accordance with procedures in effect 
before the promulgation of this Directive.



Sec. 250.7  Pertinent portions of Export Administration Regulations (EAR).

    The following pertinent section of the EAR is provided for the 
guidance of DoD personnel in determining the releasability technical 
data under the authority of this part.

             Export Administration Regulations 15 CFR 379.3

   General License GTDA: Technical Data Available to All Destinations

    A General License designated GTDA is hereby established authorizing 
the export to all destinations of technical data described in Sec. 
379.3(a), (b), or (c), below:
    (a) Data Generally Available. Data that have been made generally 
available to the public in any form, including
    (1) Data released orally or visually at open conferences, lectures, 
trade show, or other media open to the public; and
    (2) Publications that may be purchased without restrictions at a 
nominal cost, or obtained without costs, or are readily available at 
libraries open to the public.
    The term ``nominal cost'' as used in Sec. 379.3(a)(2), is intended 
to reflect realistically only the cost of preparing and distributing the 
publication and not the intrinsic value of the technical data. If the 
cost is as much as to prevent the technical data from being generally 
available to the public, General License GTDA would not be applicable.
    (b) Scientific or Educational Data. (1) Dissemination of information 
not directly and significantly related to design, production, or 
utilization in industrial processes, including such dissemination by 
correspondence, attendance at, or participation in, meetings; or
    (2) Instruction in academic institutions and academic laboratories, 
excluding information that involves research under contract related 
directly and significantly to design, production, or utilization in 
industrial processes.
    (c) Patent Applications. Data contained in a patent application, 
prepared wholly from foreign-origin technical data where such 
application is being sent to the foreign inventor to be executed and 
returned to the United States for subsequent filing in the U.S. Patent 
and Trademark Office. (No validated export license from the Office of 
Export Administration is required for data contained in a patent 
application, or an amendment, modification, supplement, or division 
thereof for filing in a foreign country in accordance with the 
regulations of the Patent and Trademark Office 37 CFR part 5. See Sec. 
370.10(j).)

[[Page 671]]



Sec. 250.8  Pertinent portions of International Traffic in Arms Regulations (ITAR).

    The following pertinent section of the ITAR is provided for the 
guidance of DoD personnel in determining the releasibility of technical 
data under the authority of this part.

         International Traffic in Arms Regulations 22 CFR 125.11

                           General Exemptions

    (a) Except as provided in Sec. 26.01, district directors of customs 
and postal authorities are authorized to permit the export without a 
license of unclassified technical data as follows:
    (1) If it is in published \4\ form and subject to public 
dissemination by being:
---------------------------------------------------------------------------

    \4\ The burden for obtaining appropriate U.S. Government approval 
for the publication of technical data falling within the definition in 
Sec. 125.01, including such data as may be developed under other than 
U.S. Government contract, is on the person or company seeking 
publication.
---------------------------------------------------------------------------

    (i) Sold at newsstands and bookstores;
    (ii) Available by subscription or purchase without restrictions to 
any person or available without cost to any person;
    (iii) Granted second class mailing privileges by the U.S. 
Government; or
    (iv) Freely available at public libraries.
    (2) If it has been approved for public release by any U.S. 
Government department or agency having authority to classify information 
or material under Executive Order [12356], as amended, and other 
applicable Executive Orders, and does not disclose the details of 
design, production, or manufacturing of any arms, ammunition, or 
implements of war on the U.S. Munitions List.
    (3) If the export is in furtherance of a manufacturing license or 
technical assistance agreement approved by the Department of State in 
accordance with part 124 of this chapter.
    (4) If the export is in furtherance of a contract with an agency of 
the U.S. Government or a contract between an agency of the U.S. 
Government and foreign persons, provided the contract calls for the 
export of relevant unclassified technical data, and such data are being 
exported only by the prime contractor. Such data shall not disclose the 
details of development, engineering, design, production, or manufacture 
of any arms, ammunition, or implements of war on the U.S. Munitions 
List. (This exemption does not permit the prime contractor to enter into 
subsidiary technical assistance or manufacturing license agreements, or 
any arrangement which calls for the exportation of technical data 
without compliance with part 124 of this subchapter.)
    (5) If it relates to firearms not in excess of caliber .50 and 
ammunition for such weapons, except technical data containing advanced 
designs, processes, and munufacturing techniques.
    (6) If it consists of technical data, other than design, 
development, or production information relating to equipment, the export 
of which has been previously authorized to the same recipient.
    (7) If it consists of operations, maintenance and training manuals, 
and aids relating to equipment, the export of which has been authorized 
to the same recipient. \5\
---------------------------------------------------------------------------

    \5\ Not applicable to technical data relating to Category VI(d) and 
Category XVI.
---------------------------------------------------------------------------

    (8) If it consists of additional copies of technical data previously 
approved for export to the same recipient; or if it consists of revised 
copies of technical data, provided it pertains to the identical 
Munitions List article, and the revisions are solely editorial and do 
not add to the content of technology previously approved for export to 
the same recipient.
    (9) If it consists solely of technical data being reexported to the 
original source of import.
    (10) If the export is by the prime contractor in direct support and 
within the technical and/or product limitations of a ``U.S. Government 
approved project'' and the prime contractor so certifies. The Office of 
Munitions Control, Department of State, will verify, upon request, those 
projects which are ``U.S. Government approved,'' and accord an exemption 
to the applicant who applies for such verification and exemption, where 
appropriate, under this subparagraph. \6\
---------------------------------------------------------------------------

    \6\ Classified information may also be transmitted in direct support 
of and within the technical and/or product limitation of such verified 
U.S. Government approved projects without prior Department of State 
approval provided the U.S. party so certifies and complies with the 
requirements of the Department of Defense Industrial Security Manual 
relating to the transmission of such classified information (and any 
other requirements of cognizant U.S. Government departments or 
agencies).
---------------------------------------------------------------------------

    (11) If the export is solely for the use of American citizen 
employees of U.S. firms provided the U.S. firm certifies its overseas 
employee is a U.S. citizen and has a ``need to know.'' \7\
---------------------------------------------------------------------------

    \7\ Classified information may also be exported to such certified 
American citizen employees without prior Department of State approval 
provided the U.S. party complies with the requirements of the Department 
of Defense Industrial Security Manual relating to the transmission of 
such classified information (and any other requirements of cognizant 
U.S. Government departments or agencies). Such technical data or 
information (classified or unclassified) shall not be released by oral, 
visual, or documentary means to any foreign person.

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

[[Page 672]]

    (12) If the export is directly related to classified information, 
the export of which has been previously authorized to the same 
recipient, and does not disclose the details of design, production, or 
manufacture of any arms, ammunition, or implements of war on the U.S. 
Munitions List.
    (b) Plant visits. Except as restricted by the provisions of Sec. 
126.01 of this subchapter:
    (1) No license shall be required for the oral and visual disclosure 
of unclassified technical data during the course of a plant visit by 
foreign nationals provided the data [are] disclosed in connection with a 
classified plant visit or the visit has the approval of a U.S. 
Government agency having authority for the classification of information 
or material under Executive Order [12356], as amended, and other 
applicable Executive Orders, and the requirements of section V, 
paragraph [41(d)] of the Industrial Security Manual are met.
    (2) No license shall be required for the documentary disclosure of 
unclassified technical data during the course of a plant visit by 
foreign nationals provided the document does not contain technical data 
as defined in Sec. 125.01 in excess of that released orally or visually 
during the visit, is within the terms of the approved visit request, and 
the person in the United States assures that the technical data will not 
be used, adopted for use, or disclosed to others for the purpose of 
manufacture or production without the prior approval of the Department 
of State in accordance with part 124 of this subchapter.
    (3) No Department of State approval is required for the disclosure 
of oral and visual classified information during the course of a plant 
visit by foreign nationals provided the visit has been approved by the 
cognizant U.S. Defense agency and the requirements of section V, 
paragraph [41(d)] of the Defense Industrial Security Manual are met.



Sec. 250.9  Notice to accompany the dissemination of export-controlled technical data.

    (a) Export of information contained herein, which includes, in some 
circumstances, release to foreign nationals within the United States, 
without first obtaining approval or license from the Department of State 
for items controlled by the International Traffic in Arms Regulations 
(ITAR), or the Department of Commerce for items controlled by the Export 
Administration Regulations (EAR), may constitute a violation of law.
    (b) Under 22 U.S.C. 2778 the penalty for unlawful export of items or 
information controlled under the ITAR is up to 2 years imprisonment, or 
a fine of $100,000, or both. Under 50 U.S.C., appendix 2410, the penalty 
for unlawful export of items or information controlled under the EAR is 
a fine of up to $1,000,000, or five times the value of the exports, 
whichever is greater; or for an individual, imprisonment of up to 10 
years, or a fine of up to $250,000, or both.
    (c) In accordance with your certification that establishes you as a 
``qualified U.S. contractor,'' unauthorized dissemination of this 
information is prohibited and may result in disqualification as a 
qualified U.S. contractor, and may be considered in determining your 
eligibility for future contracts with the Department of Defense.
    (d) The U.S. Government assumes no liability for direct patent 
infringement, or contributory patent infringement or misuse of technical 
data.
    (e) The U.S. Government does not warrant the adequacy, accuracy, 
currency, or completeness of the technical data.
    (f) The U.S. Government assumes no liability for loss, damage, or 
injury resulting from manufacture or use for any purpose of any product, 
article, system, or material involving reliance upon any or all 
technical data furnished in response to the request for technical data.
    (g) If the technical data furnished by the Government will be used 
for commercial manufacturing or other profit potential, a license for 
such use may be necessary. Any payments made in support of the request 
for data do not include or involve any license rights.
    (h) A copy of this notice shall be provided with any partial or 
complete reproduction of these data that are provided to qualified U.S. 
contractors.

[[Page 673]]



PART 251_NATIONAL LANGUAGE SERVICE CORPS (NLSC)--Table of Contents



Sec.
251.1 Purpose.
251.2 Applicability.
251.3 Definitions.
251.4 Policy.
251.5 Responsibilities.
251.6 Procedures.

    Authority: 5 U.S.C. 3109, 18 U.S.C. 202, 31 U.S.C. 1535, 50 U.S.C. 
1913.

    Source: 80 FR 76635, Dec. 10, 2015, unless otherwise noted.



Sec. 251.1  Purpose.

    This part:
    (a) Implements the responsibilities of the Secretary of Defense in 
50 U.S.C. 1913 by establishing the NLSC program.
    (b) Establishes policy, assigns responsibilities, and provides 
procedures for the management of the NLSC program.
    (c) Assigns responsibility to the National Security Education Board 
(NSEB) to oversee and coordinate the activities of the NLSC (as provided 
and determined by the Secretary of Defense pursuant to 50 U.S.C. 1903 
and 1913 with policy and funding oversight provided by the Under 
Secretary of Defense for Personnel and Readiness (USD(P&R)) in 
accordance with DoD Directive 5124.02, ``Under Secretary of Defense for 
Personnel and Readiness (USD(P&R))'' (available at http://www.dtic.mil/ 
whs/directives/corres/ pdf/512402p.pdf).



Sec. 251.2  Applicability.

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



Sec. 251.3  Definitions.

    Unless otherwise noted, these terms and their definitions are for 
the purposes of this part.
    Consultant. Defined in 5 CFR part 304.
    Excepted service. Appointments in the excepted service are civil 
service appointments within the Federal Government that do not confer 
competitive status and are excepted from competitive service by or 
pursuant to statute, by the President, or by the Office of Personnel 
Management, and which are not in Senior Executive Service.
    Foreign language. Any language other than English.
    Language proficiency. The U.S. Government relies on the Interagency 
Language Roundtable (ILR) scale to determine language proficiency. 
According to the ILR scale:
    (1) 0 is No Proficiency.
    (2) 0+ is Memorized Proficiency.
    (3) 1 is Elementary Proficiency.
    (4) 1+ is Elementary Proficiency, Plus.
    (5) 2 is Limited Working Proficiency.
    (6) 2+ is Limited Working Proficiency, Plus.
    (7) 3 is General Professional Proficiency.
    (8) 3+ is General Professional Proficiency, Plus.
    (9) 4 is Advanced Professional Proficiency.
    (10) 4+ is Advanced Professional Proficiency, Plus.
    (11) 5 is Functional Native Proficiency.
    Special government employee (SGE). Defined in 18 U.S.C. 202.



Sec. 251.4  Policy.

    It is DoD policy that:
    (a) The NLSC provides DoD, or other U.S. departments or agencies, 
with U.S. citizens with high levels of foreign language proficiency for 
short-term temporary assignments providing foreign language services.
    (b) The NLSC is authorized to employ U.S. citizens as language 
consultants pursuant to 50 U.S.C. 1913, 5 U.S.C. 3109, and 5 CFR part 
304.
    (c) The NLSC is exempt from DoD Instruction 5160.71, ``DoD Language 
Testing Program'' (available at http://www.dtic.mil/ whs/directives/
corres/ pdf/516071_2009 _ch1.pdf), such that the NLSC may use tests of 
the Defense Language Proficiency Testing System or may use and develop 
other tests to assess language proficiency for the purpose of employing 
NLSC members as language consultants.

[[Page 674]]

    (d) The NLSC will be available to support DoD or other U.S. 
departments or agencies pursuant to 50 U.S.C. 1913.
    (e) The NLSC will:
    (1) Collect personally identifiable information pursuant to 50 
U.S.C. 1913 from individuals interested in applying for NLSC membership.
    (2) Comply with DoD Instruction 8910.01, ``Information Collection 
and Reporting'' (available at http://www.dtic.mil/ whs/directives/
corres/ pdf/891001p.pdf), Volume 2 of DoD Manual 8910.01, ``DoD 
Information Collections Manual: Procedures for DoD Public Information 
Collections'' (available at http://www.dtic.mil/ whs/directives/corres/ 
pdf/891001m_vol2.pdf), and 32 CFR part 310.
    (f) Qualified and available members with requested language skills 
hired in accordance with 5 U.S.C. 3109 and 5 CFR part 304 and DoD 
Administrative Instruction 2, ``Employment of Experts and Consultants'' 
(available at http://www.dtic.mil/ whs/directives/corres/ pdf/
ai002p.pdf), will be temporarily assigned to government agencies 
pursuant to reimbursable agreements described in 31 U.S.C. 1535.



Sec. 251.5  Responsibilities.

    (a) The USD(P&R):
    (1) Provides overall policy guidance for carrying out the 
responsibilities and duties of the Secretary of Defense in accordance 
with DoD Directive 5124.02 and 50 U.S.C. 1913.
    (2) Ensures appropriate resources are programmed for the 
administration and operation of the NLSC.
    (b) Under the authority, direction, and control of the USD(P&R), the 
Assistant Secretary of Defense for Readiness (ASD(R)):
    (1) Through the Deputy Assistant Secretary of Defense for Force 
Education:
    (i) Develops processes and polices regarding the NLSC oversight and 
coordination by the NSEB in accordance with 50 U.S.C. 1903 and 1913.
    (ii) Recommends and oversees the establishment and execution of 
policies, programs, and goals to ensure the NLSC supports the readiness 
of the Military Services.
    (iii) Oversees, and monitors compliance with the NLSC programs and 
processes on behalf of the Secretary of Defense to include the 
procedures in Sec. 251.6.
    (iv) Ensures that functions needed to support the accomplishment of 
the NLSC mission are executed, including engagement with DoD Components, 
federal agencies, and State and local governments to identify language 
needs, assessment of language proficiency of its members, and skill 
sustainment training.
    (v) Determines eligibility for NLSC membership.
    (2) Hosts the annual program review identified in 50 U.S.C. 1913.
    (3) Designates a program manager responsible for overseeing 
implementation of NLSC programs and processes.
    (c) Under the authority, direction, and control of the USD(P&R), the 
Director, Department of Defense Human Resources Activity (DoDHRA):
    (1) Implements procedures and instructions for the appointment of 
NLSC members in support of DoD or other U.S. departments or agencies.
    (2) Authorizes and signs interagency agreements between the NLSC and 
organizations outside of the DoD, and delegates authority to sign such 
agreements as needed.
    (3) Provides administrative support to the NLSC, including actions 
related to intra- and inter-agency agreements, the intra- and inter-
agency transfer of funds, personnel actions, and travel requirements.
    (4) Provides fiscal management and oversight to ensure all funds 
provided for the NLSC are separately and visibly accounted for in the 
DoD budget.
    (d) DoD Components heads ensure that the use of NLSC members is 
considered during exercise and operational planning.



Sec. 251.6  Procedures.

    (a) NLSC purpose. (1) The purpose of the NLSC is to identify and 
provide U.S. citizens with foreign language skills to support DoD or 
other U.S. departments or agencies, in need of foreign language 
services, for requirements of less than one year.
    (2) The NLSC will provide capable, federally-hired individuals to 
rapidly respond to critical national needs and assist DoD and other U.S. 
departments

[[Page 675]]

and agencies with surge or emergency requirements.
    (b) NLSC membership criteria. NLSC members must:
    (1) Be a U.S. citizen.
    (2) Be at least 18 years of age.
    (3) Have satisfied Selective Service requirements.
    (4) Be proficient in English and any other language.
    (c) NLSC member recruitment. The NLSC program manager will oversee 
recruitment of members. NLSC maintains a registry of individuals who 
have applied or been accepted for membership and responds to requests 
for foreign language services by searching the registry to identify 
individuals who can provide support. NLSC collects applicant information 
through electronically available DD forms (located at the DoD Forms 
Management Program Web site at http://www.dtic.mil/ whs/directives/
infomgt/ forms/formsprogram.htm) or comparable Web-based applications:
    (1) DD Form 2932. Contains a brief set of screening questions and is 
used to determine basic eligibility for NLSC membership.
    (2) DD Form 2933. A language screening tool to evaluate the 
applicant's skills with respect to specific tasks. DD Form 2933 is used 
in conjunction with the screening of language skills for entry into the 
NLSC.
    (3) DD Form 2934. Provides an overall assessment of the applicant's 
foreign language ability. DD Form 2934 is also used in conjunction with 
the screening of detailed skills for entry into the NLSC.
    (d) NLSC member appointment as federal employees. Where applicants 
meet NLSC membership criteria and are matched to foreign language 
services requirements, the NLSC program manager ensures actions are 
initiated to temporarily hire applicants and members for forecasted and 
actual support requests.
    (1) For federal hiring, members follow excepted service hiring 
policies in accordance with 5 U.S.C. 3109, 5 CFR part 304, and 32 CFR 
part 310, and are appointed as language consultants in advance of 
participating in a support request, in accordance with DoD 
Administrative Instruction 2.
    (2) An NLSC member who is already employed by a U.S. Government 
agency or is under contract full-time to one agency must receive a 
release from the head of that agency or individual empowered to release 
the employee or contractor before being employed for service within the 
NLSC pursuant to 50 U.S.C. 1913 and must comply with applicable laws and 
regulations regarding compensation. Such requests will be coordinated by 
the NLSC with the department or agency head concerned.
    (3) NLSC members will be appointed on an annual basis pursuant to 5 
U.S.C. 3109, 5 CFR part 304, and 32 CFR part 310 to perform duties as 
language consultants. If serving less than 130 days in a consecutive 
365-day period, they will be considered SGEs as defined in 18 U.S.C. 
202. Concurrent appointments as an SGE may be held with other DoD 
Components or in another federal agency.
    (4) The NLSC program manager will track the number of days each NLSC 
member performed services and the total amount paid to each NLSC member 
within the 365-day period after the NLSC member's appointment.
    (e) NLSC member activation. Activation encompasses all aspects of 
matching and hiring NLSC members to perform short-term temporary 
assignments to provide foreign language services. Under NLSC program 
manager oversight:
    (1) Customer requirements are matched with skills of NLSC members 
and support is requested from DoDHRA to process necessary agreements, 
funding documents, and personnel actions to provide foreign language 
services. In accordance with paragraph (d)(3) of this section, NLSC 
members are temporarily hired as DoD employees.
    (2) NLSC members are prepared for activation. If members are to be 
mobilized out of their home area, travel order requests are initiated. 
During the assignment, action will be taken to coordinate with members 
and clients, and assess success with the requesting agency upon 
completion.
    (3) If duty requires issuance of DoD identification (e.g., Common 
Access Card), such identification will be issued to and maintained by 
activated NSLC members in accordance with Volume 1

[[Page 676]]

of DoD Manual 1000.13, ``DoD Identification (ID) Cards: ID Card Life-
Cycle'' (available at http://www.dtic.mil/ whs/directives/corres/ pdf/
100013_vol1.pdf). Upon completion of the assignment, the identification 
will be retrieved in accordance with Volume 1 of DoD Manual 1000.13.
    (4) Upon completion of assignments, DoDHRA will provide post-
assignment support to members and reconcile funding to close project 
orders.



PART 252_PROFESSIONAL U.S. SCOUTING ORGANIZATION OPERATIONS AT U.S.
MILITARY INSTALLATIONS OVERSEAS--Table of Contents



Sec.
252.1 Purpose.
252.2 Applicability.
252.3 Definitions.
252.4 Policy.
252.5 Responsibilities.
252.6 Procedures.

    Authority: E.O. 12715, May 3, 1990, 55 FR 19051; 10 U.S.C. 2606, 
2554, and 2555.

    Source: 81 FR 3961, Jan. 25, 2016, unless otherwise noted.



Sec. 252.1  Purpose.

    This part updates policy and outlines fiscal and logistical support 
that the DoD may provide to qualified scouting organizations operating 
on U.S. military installations overseas.



Sec. 252.2  Applicability.

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



Sec. 252.3  Definitions.

    These terms and their definitions are for the purposes of this part.
    DoD personnel and their families. Members of the Military Services 
and their family members and DoD civilian employees and their family 
members.
    Military Services. The Army, Navy, Air Force, and Marine Corps.
    Qualified scouting organization. The Girl Scouts of the United 
States of America (GSUSA) and the Boy Scouts of America (BSA).
    Sponsored organization or sponsored council. Scouting organizations 
or councils authorized to operate as scouting affiliates on military 
installations.



Sec. 252.4  Policy.

    It is DoD policy to cooperate with and assist qualified scouting 
organizations in establishing and providing facilities and services, 
within available resources, at locations outside the United States to 
support DoD personnel and their families in accordance with 10 U.S.C. 
2606, 2554, and 2555 and Executive Order 12715, ``Support of Overseas 
Scouting Activities for Military Dependents''.



Sec. 252.5  Responsibilities.

    (a) The Under Secretary of Defense for Personnel and Readiness 
(USD(P&R)) oversees development and implementation of this part.
    (b) The DoD Component heads implement this part and comply with its 
provisions.
    (c) In addition to the responsibilities in paragraph (b) of this 
section and acting as the DoD Executive Agent for DoD support to the BSA 
and GSUSA local councils and organizations in areas outside of the 
United States in accordance with 32 CFR part 212, the Secretary of the 
Army:
    (1) Makes policy determinations in coordination with the other 
Military Department Secretaries regarding topics including, but not 
limited to, support that:
    (i) DoD installation commanders are authorized to provide to the 
scouting program and personnel.
    (ii) The scouting organization provides to DoD.
    (2) Ensures accountability for appropriated fund (APF) and non-
appropriated fund (NAF) assets used in the support of qualified scouting 
organizations.
    (3) Provides input for and works with the scouting organizations in 
establishing the extent and scope of the annual scouting programs in 
support of

[[Page 677]]

DoD personnel and their families within the parameters established in 
this part and available resources.
    (4) Ensures that the cost of the support provided is shared by each 
of the Military Services in proportion to benefits derived by their 
members from scouting programs overseas.



Sec. 252.6  Procedures.

    (a) General guidance. (1) Support provided by DoD and services 
provided by qualified scouting organizations is documented in a written 
agreement and signed by the appropriate regional combatant commander or 
designee. Installation-specific support and services are documented in a 
written agreement and signed by the installation commander or designee. 
This agreement replaces the need for qualified scouting organizations to 
submit individual articles of incorporation, written constitutions, 
charters, or articles of agreement to gain approval from the 
installation commander to operate on the installation as required by 32 
CFR part 212.
    (2) Overseas installation commanders may authorize DoD support for 
qualified scouting organizations outside the United States when:
    (i) Support is permitted under international agreements with the 
host nation, if applicable.
    (ii) Support is permitted pursuant to law and DoD issuances.
    (iii) Such support is within the capabilities of their respective 
installations.
    (iv) Providing such support will not impede fulfillment of the 
military mission.
    (3) Committees composed of representatives of the Military Services 
will be formed to review annual qualified scouting organization budget 
requirements.
    (4) Overseas scouting committees will provide the overseas scouting 
organizations with information on the scouting requirements of DoD 
personnel and will monitor and evaluate the scouting organizations' 
efforts to satisfy those requirements.
    (5) Funds raised by the scouting organizations, as a non-Federal 
entity, cannot be commingled with NAF funds and will be made available 
for annual audits.
    (6) Employees of a qualified scouting organization are not 
considered to be U.S. Government employees, or employees of an 
instrumentality of the United States for the purpose of benefits or 
entitlements.
    (i) APF is not used to reimburse their salaries and benefits.
    (ii) They are not entitled to participate in the NAF retirement 
fund.
    (iii) Serving in those positions does not constitute NAF employment 
credit or produce rehire priority.
    (7) These organizations generally are not covered under the terms of 
United States' Status of Forces or other relevant agreements with host 
nations.
    (i) Questions regarding whether they are covered under such 
agreements should be referred to the legal office servicing the 
applicable command. Applicability of any relevant agreements would be 
addressed with the host nation only by the applicable command, and not 
the organization.
    (ii) To the extent the organization is not covered under any 
relevant agreement, host nation laws apply. In all cases, the host 
nation will determine the scope and extent of the applicability of host 
nation laws to these employees.
    (b) Funding guidance. (1) Any APF and NAF support provided will be 
programmed and approved on an annual basis by the DoD Components. NAF 
support is authorized for youth activities programs in accordance with 
DoD Instruction 1015.15, ``Establishment, Management, and Control of 
Nonappropriated Fund Instrumentalities and Financial Management of 
Supporting Resources'' (available at http://www.dtic.mil/ whs/
directives/corres/ pdf/101515p.pdf) and for qualified scouting 
organizations in accordance with paragraph (b)(5) of this section.
    (2) APF may be used in conjunction with overseas scouting 
organizations. The following services may be provided on a non-
reimbursable basis:
    (i) Transportation of executive personnel (to include household 
goods and baggage) of qualified scouting organizations:
    (A) When on invitational travel orders.

[[Page 678]]

    (B) To and from overseas assignments.
    (C) While providing scouting support to DoD personnel and their 
families. Transportation of supplies of qualified scouting organizations 
necessary to provide such support may also be provided.
    (ii) Office space where regular meetings can be conducted, and space 
for recreational activities.
    (iii) Warehousing.
    (iv) Utilities.
    (v) Means of communication.
    (3) DoD may provide the following additional support to scouting 
executives assigned overseas:
    (i) Pursuant to section API 3.18 of DoD 4525.6-M, ``Department of 
Defense Postal Manual'' (available at http://www.dtic.mil/ whs/
directives/corres/ pdf/452506m.pdf), access to use Military Services 
postal services is authorized.
    (ii) Pursuant to section 4.3.2.2.2 of Department of Defense 
Education Activity Regulation 1342.13, ``Eligibility Requirements for 
Education of Elementary and Secondary School-age Dependents in Overseas 
Areas'' (available at http://www.dodea.edu/Offices/ Regulations/
index.cfm), access to DoD Dependents Schools (overseas) may be provided 
on a space-available, tuition-paying basis.
    (iii) Pursuant to 32 CFR part 230, use of military banking 
facilities operated under DoD contracts is authorized.
    (iv) Pursuant to DoD Instruction 1015.10, ``Military Morale, 
Welfare, and Recreation (MWR) Programs'' (available at http://
www.dtic.mil/ whs/directives/corres/ pdf/101510p.pdf), the use of 
morale, welfare, and recreation programs may be provided.
    (v) Pursuant to 32 CFR part 161, medical care in uniformed services 
facilities on a space-available basis at rates specified in uniformed 
services instructions, with charges collected locally, is authorized.
    (vi) Pursuant to Office of Management and Budget Circular A-45, 
``Rental and Construction of Government Quarters'' (available at http://
www.whitehouse.gov/ omb/circulars_a045) and subparagraph 2.c(1)(e) of 
DoD 4165.63-M, ``DoD Housing Management'' (available at http://
www.dtic.mil/ whs/directives/corres/ pdf/416563m.pdf), when DoD-
sponsored civilian personnel serving DoD military installations at 
foreign locations cannot obtain suitable housing in the vicinity of an 
installation, they and their families may occupy DoD housing on a rental 
basis. The Military Service determines the priority of such leasing 
actions. These civilians are required to pay the established rental rate 
in accordance with DoD 4165.63-M and Military Service guidance.
    (vii) Pursuant to DoD Instruction 1330.17, ``DoD Commissary 
Program'' (available at http://www.dtic.mil/ whs/directives/corres/ pdf/
133017p.pdf), overseas installation commanders or Secretaries of the 
Military Departments may extend commissary access through official 
support agreements.
    (viii) Pursuant to DoD Instruction 1330.21, ``Armed Services 
Exchange Regulations'' (available at http://www.dtic.mil/ whs/
directives/corres/ pdf/133021p.pdf), the Secretaries of the Military 
Departments may grant Armed Forces Exchange deviations with regard to 
authorized patron privileges for individuals or classes and groups of 
persons at specific installations when based on alleviating individual 
hardships.
    (4) NAF may be used in conjunction with qualified scouting 
organizations to:
    (i) Reimburse for salaries and benefits of employees of those 
organizations for periods during which their professional scouting 
employees perform services in overseas areas in direct support of DoD 
personnel and their families.
    (ii) Reimburse travel to and from official meetings of the overseas 
scouting committee upon approval from the appropriate combatant 
commander.
    (5) The total amount of NAF support for the scouting program must 
not exceed 70 percent of the total cost of the scouting program.

[81 FR 3961, Jan. 25, 2016, as amended at 81 FR 61615, Sept. 7, 2016]



PART 257_ACCEPTANCE OF SERVICE OF PROCESS--Table of Contents



Sec.
257.1 Purpose.
257.2 Applicability.

[[Page 679]]

257.3 Definition.
257.4 Policy.
257.5 Responsibilities.

    Authority: 5 U.S.C. 301, 133.

    Source: 49 FR 1490, Jan. 12, 1984, unless otherwise noted.



Sec. 257.1  Purpose.

    This rule updates DoD policy governing acceptance of service of 
process served on the Secretary of Defense and the Secretaries of the 
Military Departments.



Sec. 257.2  Applicability.

    This rule applies to the Office of the Secretary of Defense (OSD) 
and the Military Departments.



Sec. 257.3  Definition.

    Service of Process. When applied to the filing of a court action 
against an officer or agency of the United States, service of process 
refers to the delivery or, when appropriate, receipt by mail, of a 
summons and complaint made in accordance with Rule 4, Federal Rules of 
Civil Procedure by serving the United States and by serving a copy of 
the summons and complaint by registered or certified mail to such 
officer or agency. It further signifies the delivery of a subpoena 
requiring a witness to appear and give testimony or of a subpoena 
requiring production of documents, or delivery of a subpoena for any 
other reason whether or not the matter involves the United States.



Sec. 257.4  Policy.

    It is DoD policy to accept service of process directed to the 
Secretary of Defense or a Secretary of a Military Department in his 
official capacity. Acceptance of service of process will not constitute 
an admission or waiver with respect to the jurisdiction or to the 
propriety of service.



Sec. 257.5  Responsibilities.

    The following responsibilities may not be redelegated:
    (a) The General Counsel, Department of Defense, shall accept service 
of process for the OSD.
    (b) The Secretary of the Army, or his designee, the Chief, 
Litigation Division, Office of the Judge Advocate General, shall accept 
service of process for the Department of the Army.
    (c) The Secretary of the Navy, or his designee, the General Counsel, 
shall accept service of process for the Department of the Navy.
    (d) The Secretary of the Air Force, or his designee, the Chief, 
General Litigation Division, Office of the Judge Advocate General, shall 
accept service of process for the Department of the Air Force.



PART 259_UNIFORM RELOCATION ASSISTANCE AND REAL PROPERTY ACQUISITION
FOR FEDERAL AND FEDERALLY-ASSISTED PROGRAMS--Table of Contents



    Authority: Section 213, Uniform Relocation Assistance and Real 
Property Acquisition Policies Act of 1970, Pub. L. 91-646, 84 Stat. 
1894, (42 U.S.C. 4601) as amended by the Surface Transportation and 
Uniform Relocation Assistance Act of 1987, Title IV of Pub. L. 100-17, 
101 Stat. 246-256 (42 U.S.C. 4601 note).



Sec. 259.1  Uniform relocation assistance and real property acquisition.

    Regulations and procedures for complying with the Uniform Relocation 
Assistance and Real Property Acquisition Policies Act of 1970, Pub. L. 
91-646, 84 Stat. 1894 42 U.S.C. 4601) as amended by the Surface 
Transportation and Uniform Relocation Assistance Act of 1987 (Title IV 
of Pub. L. 100-17, 101 Stat. 246-256, 42 U.S.C. 4601 note) are set forth 
in 49 CFR part 24.

[52 FR 48020, Dec. 17, 1987]



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



Sec.
260.1 Purpose.
260.2 Applicability.
260.3 Definitions.
260.4 Policy.
260.5 Responsibilities.
260.6 Procedures.
260.7 Information requirements.

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

[[Page 680]]



Sec. 260.1  Purpose.

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



Sec. 260.2  Applicability.

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



Sec. 260.3  Definitions.

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

[[Page 681]]

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



Sec. 260.4  Policy.

    It is DoD policy that a DoD Component having accountability for real 
property shall extend priority on such property to the blind when 
implementing the Randolph-Sheppard Act, as set out in the following 
paragraphs:
    (a) The blind shall be given priority in the establishment and 
operation of vending facilities.
    (b) The blind shall be given priority in the award of contracts to 
operate cafeterias.
    (c) In conjunction with acquisition or substantial alteration or 
renovation of a building, satisfactory sites shall be

[[Page 682]]

provided for operation of blind vending facilities.
    (d) Specified income from vending machines operated on DoD-
controlled property by a DoD Component either directly or by contract 
shall be given to State licensing agencies.



Sec. 260.5  Responsibilities.

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

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

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



Sec. 260.6  Procedures.

    The DoD Components in control of the maintenance, operation, and 
protection of Federal property shall take necessary action to ensure the 
requirements set forth in this Section are implemented for these 
properties.
    (a) The blind have a priority to operate vending facilities on DoD 
property, whenever feasible, in light of appropriate space and potential 
patronage. Implementation of this priority is not required when:
    (1) The number of people using the property is or will be 
insufficient to support a vending facility; or
    (2) The Secretary of Education determines that the limitation on the 
placement or operation of a vending facility is warranted pursuant to 
260.5(b)(5)(ii), which is binding on the DoD Component. Notice of the 
Secretary of Education's determination will be published in the Federal 
Register.
    (b) Applications for permits by the State licensing agency to 
operate vending facilities (except cafeterias) on DoD-controlled 
property must be submitted in writing to the Head of the DoD Component 
concerned through the on-site official. When an application is not 
approved, the Head of the DoD Component concerned shall advise the State 
licensing agency in writing and shall indicate the reasons for the 
disapproval. Permits shall describe the location of the vending facility 
and shall be subject to the following requirements:
    (1) The permit shall be issued in the name of the State licensing 
agency.
    (2) The permit shall be issued for an indefinite period of time 
subject to suspension or termination upon failure to comply with agreed-
upon terms. It shall be subject to termination by either party on 60 
days' written notice to the other party, in cases of:
    (i) Inactivation of the installation or activity.

[[Page 683]]

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

[[Page 684]]

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

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

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

[[Page 685]]

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



Sec. 260.7  Information requirements.

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

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



PART 263_TRAFFIC AND VEHICLE CONTROL ON CERTAIN DEFENSE MAPPING AGENCY SITES
--Table of Contents



Sec.
263.1 Definitions.
263.2 Applicability.
263.3 Compliance.
263.4 Registration of vehicles.
263.5 Inspection of license and registration.
263.6 Speeding or reckless driving.
263.7 Emergency vehicles.
263.8 Signs.
263.9 Right-of-way in crosswalks.
263.10 Parking.
263.11 Penalties.

    Authority: 63 Stat. 377 as amended, 18 U.S.C. 13, 40 U.S.C. 318 a 
through d, 50 U.S.C. 797, Delegations, 43 FR 56895, 46 FR 58306.

    Source: 48 FR 34952, Aug. 2, 1983, unless otherwise noted.



Sec. 263.1  Definitions.

    As used in this part:
    (a) Brookmont site means those grounds and facilities of the Defense 
Mapping Agency Hydrographic/Topographic Center (DMAHTC) and the Defense 
Mapping Agency Office of Distribution Services (DMAODS) located in 
Montgomery County, Maryland, over which the Federal Government

[[Page 686]]

has acquired exclusive or concurrent jurisdiction.
    (b) Uniformed guard means a designated DMA government guard 
appointed to enforce vehicle and traffic regulations by the Director, 
DMAHTC.



Sec. 263.2  Applicability.

    The provisions of this regulation apply to all areas in the 
Brookmont site and to all persons on or within the site. They supplement 
those penal provisions of Title 18, U.S. Code, relating to crimes and 
criminal procedures, which apply without regard to the place of the 
offense and those provisions of state law which are made federal 
criminal offenses by virtue of the Assimilative Crimes Act, 18 U.S.C. 
13.



Sec. 263.3  Compliance.

    (a) All persons entering the site shall comply with this regulation; 
with all official signs; and with the lawful directions or orders of a 
uniformed guard in connection with the control or regulation of traffic, 
parking or other conduct at the Brookmont site.
    (b) At the request of a uniformed guard, a person must provide 
identification by exhibiting satisfactory credentials (such as driver's 
license).
    (c) No person shall knowingly give any false or fictitious report 
concerning an accident or violation of this regulation to any person 
properly investigating an accident or alleged violation.
    (d) All incidents resulting in injury to persons or damage to 
property must be reported to the Security Office immediately.
    (e) No person involved in an accident shall leave the scene of that 
accident without first giving aid or assistance to the injured and 
making his or her identity known.



Sec. 263.4  Registration of vehicles.

    (a) Newly assigned or employed individuals who intend to operate a 
privately-owned vehicle at the site shall register it with the Security 
Police Division within 24 hours after entry on duty.
    (b) Temporary registration for a specified period of time will be 
permitted for temporarily hired, detailed, or assigned personnel; 
consultants; contractors; visiting dignitaries, etc.



Sec. 263.5  Inspection of license and registration.

    No person may operate any motor vehicle on the site without a valid, 
current operator's license, nor may any person, if operating a motor 
vehicle on the site, refuse to exhibit for inspection, upon request of a 
uniformed guard, his operator's license or proof of registration of the 
vehicle under his control at time of operation.



Sec. 263.6  Speeding or reckless driving.

    (a) No person shall drive a motor vehicle on the site at a speed 
greater than or in a manner other that what is reasonable and prudent 
for the particular location, given the conditions of traffic, weather, 
and road surface and having regard to the actual and potential hazards 
existing.
    (b) Except when a special hazard exists that requires lower speed, 
the speed limit on the site is 15 m.p.h., unless another speed limit has 
been duly posted, and no person shall drive a motor vehicle on the site 
in excess of the speed limit.



Sec. 263.7  Emergency vehicles.

    No person shall fail or refuse to yield the right-of-way to an 
emergency vehicle when operating with siren or flashing lights.



Sec. 263.8  Signs.

    Every driver shall comply with all posted traffic signs.



Sec. 263.9  Right-of-way in crosswalks.

    No person shall fail or refuse to yield the right-of-way to a 
pedestrian or bicyclist crossing a street in the marked crosswalk.



Sec. 263.10  Parking.

    (a) No person, unless otherwise authorized by a posted traffic sign 
or directed by a uniformed guard, shall stand or park a motor vehicle:
    (1) On a sidewalk, lawn, plants or shrubs.
    (2) Within an intersection or within a crosswalk.

[[Page 687]]

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



Sec. 263.11  Penalties.

    (a) Except with respect to the laws of the State of Maryland 
assimilated under 18 U.S.C. 13, whoever shall be found guilty of 
violating these regulations is subject to a fine of not more than $50 or 
imprisonment of not more than 30 days, or both in accordance with 40 
U.S.C. 318c. Except as expressly provided in this part, nothing 
contained in these regulations shall be construed to abrogate any other 
Federal laws or regulations, or any State and local laws and regulations 
applicable to the area in which the site is situated.
    (b) In addition to the penalties described in subsection (a) of this 
section, parking privileges may be revoked by the issuing authority for 
violations of any of the provisions of this regulation.
    (c) Any motor vehicle that is parked in violation of this regulation 
may be towed away or otherwise moved if a determination is made by a 
uniformed guard that it is a nuisance or hazard. A fee for the moving 
service and for the storage of the vehicle, if any, may be charged, and 
the vehicle is subject to a lien for that charge.



PART 264_INTERNATIONAL INTERCHANGE OF PATENT RIGHTS AND TECHNICAL 
INFORMATION--Table of Contents



Sec.
264.1 Purpose and cancellation.
264.2 Scope.
264.3 Background.
264.4 Policy.
264.5 Claims for compensation.

    Authority: Secs. 601, 606, 75 Stat. 438, 440; 22 U.S.C. 2351, 2356.

    Source: 25 FR 14456, Dec. 31, 1960, unless otherwise noted.



Sec. 264.1  Purpose and cancellation.

    The purpose of this part is to restate Department of Defense policy 
concerning the international interchange for defense purposes of patent 
rights and technical information. DoD Directive 2000.3, ``Technical 
Property Interchange Agreements'', dated April 15, 1954, is hereby 
superseded and cancelled. Delegation published at 19 FR 2523 is 
cancelled.



Sec. 264.2  Scope.

    This part applies to the activities of all Department of Defense 
personnel involved in the international interchange for defense purposes 
of patent rights and technical information. The policy prescribed herein 
applies to unclassified as well as classified information, owned by the 
United States Government or privately owned, but does not apply to 
patents, patent applications, and technical information in the field of 
atomic energy.



Sec. 264.3  Background.

    (a) Pursuant to the provisions of the Mutual Security Act of 1954, 
as amended, and of predecessor legislation superseded by that Act, the 
United

[[Page 688]]

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

[[Page 689]]

information should be referred to the patent activity of the appropriate 
Military Department.

[25 FR 14456, Dec. 31, 1960, as amended at 26 FR 1993, Mar. 8, 1961; 26 
FR 6479, July 19, 1961]



Sec. 264.4  Policy.

    It is the policy of the Department of Defense to encourage and 
facilitate international interchanges of patent rights and technical 
information to further the common defense of the United States and 
friendly nations. In achieving this purpose, the following principles 
shall be observed.
    (a) Classified military information shall be released only through 
Government channels and only when consistent with the National 
Disclosure Policy, or when approved as an exception to that policy.
    (b) In accordance with the Congressional policy prescribed by 
section 413(a) of the Mutual Security Act of 1954, as amended (22 U.S.C. 
1933(a)), and pursuant to the bilateral agreements referred to in Sec. 
264.3, commercial relationships shall be utilized whenever appropriate 
and to the maximum extent feasible in order to encourage the 
participation of private enterprise in the Mutual Security Program, to 
relieve the Department of Defense of administrative burdens, and to 
reduce the costs to the United States of such interchanges.
    (c) In accordance with section 414 of the Mutual Security Act of 
1954, as amended (22 U.S.C. 1934), the utilization of commercial 
channels for the exportation of unclassified privately owned technical 
information relating to articles designated as arms, ammunition, and 
implements of war in the United States Munitions List shall be subject 
to the regulations issued by the Secretary of State pursuant to section 
414 of the Mutual Security Act of 1954, as amended (22 U.S.C. 1934) 
(Title 22 CFR, chapter I, subchapter M). (The term ``technical data'' is 
used in those regulations to describe technical information relating to 
such articles).
    (d) Technical information which might be privately owned may be 
released under paragraph (e) (1) or (2) of this section by Department of 
Defense Agencies to foreign governments if any one of the following 
conditions are met:
    (1) The owner expressly consents to the proposed release;
    (2) The United States, by contract or otherwise, has acquired or is 
entitled to acquire, the information under circumstances which permit 
the proposed release; or
    (3) The Secretary of the Military Department concerned, or his 
designee, determines, under the authority of the Mutual Security Act of 
1954, as amended, that:
    (i) The exigencies of the requirement for release to further the 
common defense do not allow sufficient time to obtain the consent of the 
owner; or
    (ii) The owner refuses consent and the best interests of the United 
States would be served by the release.
    (e) In accordance with the provisions of the agreements referred to 
in Sec. 264.3, the release to foreign governments by Department of 
Defense agencies of technical information which might be privately owned 
shall normally be in accord with the following two step procedure:
    (1) Release for information only.
    (2) Permission for manufacture, or use, for defense purposes.
    (f)(1) All technical information, whether privately owned or 
government owned, released to a foreign government by Department of 
Defense Agencies shall be marked with the following restrictions:

    1. This information is accepted for defense purposes only.
    2. This information shall be accorded substantially the same degree 
of security protection as such information has in the United States.
    3. This information shall not be disclosed to another country 
without the consent of the United States.

    (2) When technical information which might be privately owned is 
released for information only, the restrictive marking shall also 
contain these additional notations:

    4. This information is accepted upon the understanding that it might 
be privately owned.
    5. This information is accepted solely for the purpose of 
information and shall accordingly be treated as disclosed in confidence. 
The recipient Government shall use its best endeavors to ensure that the 
information is

[[Page 690]]

not dealt with in any manner likely to prejudice the rights of the 
private owner thereof to obtain patent or other like statutory 
protection therefor.
    6. The recipient Government shall obtain the consent of the United 
States if it desires that this information be made available for 
manufacture, or use, for defense purposes.

    (g) When technical information which might be privately owned is 
released under the procedures set forth herein, the owner, if known, 
shall be furnished:
    (1) Notice of the release;
    (2) The identity of the recipient, if not contrary to security 
regulations;
    (3) Notice that the recipient has been advised that the information 
might be privately owned; and
    (4) Notice of the restrictions to which the release is subject.



Sec. 264.5  Claims for compensation.

    (a) With respect to interchanges in furtherance of the purposes of 
the Mutual Security Act of 1954, as amended, section 506 of the Mutual 
Security Act of 1954, as amended (22 U.S.C. 1758) provides the exclusive 
remedy for compensation for infringement within the United States of a 
patent issued by the United States and for damage resulting from the 
disclosure by the United States of privately owned technical 
information.
    (b) The Secretaries of the Military Departments are hereby 
authorized to exercise the power and authority conferred by section 506 
of the Mutual Security Act of 1954, as amended (22 U.S.C. 1758) to enter 
into agreements with claimants in full settlement and compromise of any 
claim against the United States thereunder, subject to such rules and 
regulations, if any, as the Secretary of Defense may promulgate from 
time to time. The Secretaries of the Military Departments are authorized 
to make successive redelegations in writing of this power and authority 
to any officer, employee, board or agent of their respective 
departments.
    (c) Funds appropriated for military assistance pursuant to the 
Mutual Security Act of 1954, as amended, which have been made available 
to a Military Department may be used to settle claims under section 506 
of the Mutual Security Act of 1954, as amended (22 U.S.C. 1758). In 
addition, in those cases where the provisions of 10 U.S.C. 2386 are 
applicable, funds appropriated for a Military Department available for 
making or procuring supplies may be used to settle such claims.



PART 269_CIVIL MONETARY PENALTY INFLATION ADJUSTMENT--Table of Contents



Sec.
269.1 Scope and purpose.
269.2 Definitions.
269.3 Civil monetary penalty inflation adjustment.
269.4 Cost of living adjustments of civil monetary penalties.
269.5 Application of increase to violations.

    Authority: 28 U.S.C. 2461 note.

    Source: 61 FR 67945, Dec. 26, 1996, unless otherwise noted.



Sec. 269.1  Scope and purpose.

    The purpose of this part is to establish a mechanism for the regular 
adjustment for inflation of civil monetary penalties under the 
jurisdiction of the Department of Defense. Applicable civil monetary 
penalties must be adjusted in conformity with the Federal Civil 
Penalties Inflation Adjustment Act of 1990, 28 U.S.C. 2461 note, as 
amended by the Debt Collection Improvement Act of 1996, Public Law 104-
134, April 26, 1996, and further amended by the Federal Civil Penalties 
Inflation Adjustment Act Improvements Act of 2015, Public Law 114-74, 
November 2, 2015, in order to improve the deterrent effect of civil 
monetary penalties and to promote compliance with the law.

[81 FR 33391, May 26, 2016]



Sec. 269.2  Definitions.

    (a) Department. The Department of Defense.
    (b) Civil monetary penalty. Any penalty, fine, or other sanction 
that:
    (1)(i) Is for a specific monetary amount as provided by Federal law; 
or
    (ii) Has a maximum amount provided by Federal law; and
    (2) Is assessed or enforced by the Department pursuant to Federal 
law; and
    (3) Is assessed or enforced pursuant to an administrative proceeding 
or a civil action in the Federal Courts.

[[Page 691]]

    (c) Consumer Price Index. The index for all urban consumers 
published by the Department of Labor.

[61 FR 67945, Dec. 26, 1996, as amended at 81 FR 33391, May 26, 2016]



Sec. 269.3  Civil monetary penalty inflation adjustment.

    The Department must, not later than July 1, 2016 and not later than 
January 15 of every year thereafter--
    (a) By regulation, adjust each civil monetary penalty provided by 
law within the jurisdiction of the Department by the inflation 
adjustment described in Sec. 269.4; and
    (b) Publish each such update in the Federal Register.

[61 FR 67945, Dec. 26, 1996, as amended at 81 FR 33391, May 26, 2016]



Sec. 269.4  Cost of living adjustments of civil monetary penalties.

    (a) The inflation adjustment under Sec. 269.3 must be determined by 
increasing the maximum civil monetary penalty or the range of minimum 
and maximum civil monetary penalties, as applicable, for each civil 
monetary penalty by the cost-of-living adjustment. Any increase 
determined under this subsection shall be rounded to the nearest 
multiple of $1.
    (b) For purposes of paragraph (a) of this section, the term ``cost-
of-living adjustment'' means the percentage (if any) for each civil 
monetary penalty by which the Consumer Price Index for the month of 
October preceding the date of the adjustment (January 15), exceeds the 
Consumer Price Index for the month of October in the previous calendar 
year. For example, if the Consumer Price Index for October 2016 is 1.0 
and the Consumer Price Index for October 2015 was 0.75, then all 
applicable penalties will need to be positively adjusted by 0.25 by 
January 15, 2017.
    (c) Limitation on initial adjustment. The initial adjustment of 
civil monetary penalty pursuant to Sec. 269.3 may not exceed 150 
percent of such penalty.
    (d) Inflation adjustment. Maximum civil monetary penalties within 
the jurisdiction of the Department are adjusted for inflation as 
follows:

                                            Table 1 to Paragraph (d)
----------------------------------------------------------------------------------------------------------------
                                                                                      Maximum      New adjusted
                                                     Civil monetary penalty           penalty         maximum
              United States Code                           description             amount  as of      penalty
                                                                                     2022  ($)      amount  ($)
----------------------------------------------------------------------------------------------------------------
National Defense Authorization Act for FY       Unauthorized Activities Directed         144,887         156,108
 2005, 10 U.S.C 113, note.                       at or Possession of Sunken
                                                 Military Craft.
10 U.S.C. 1094(c)(1)..........................  Unlawful Provision of Health              12,722          13,707
                                                 Care.
10 U.S.C. 1102(k).............................  Wrongful Disclosure--Medical
                                                 Records:.
                                                First Offense...................           7,523           8,106
                                                Subsequent Offense..............          50,152          54,036
10 U.S.C. 2674(c)(2)..........................  Violation of the Pentagon                  2,073           2,234
                                                 Reservation Operation and
                                                 Parking of Motor Vehicles Rules
                                                 and Regulations.
31 U.S.C. 3802(a)(1)..........................  Violation Involving False Claim.          12,537          13,508
31 U.S.C. 3802(a)(2)..........................  Violation Involving False                 12,537          13,508
                                                 Statement.
42 U.S.C. 1320a-7a(a); 32 CFR 200.210(a)(1)...  False claims....................          22,426          24,163
42 U.S.C. 1320a-7a(a); 32 CFR 200.210(a)(1)...  Claims submitted with a false             22,426          24,163
                                                 certification of physician
                                                 license.
42 U.S.C. 1320a-7a(a); 32 CFR 200.210(a)(2)...  Claims presented by excluded              22,426          24,163
                                                 party.
42 U.S.C. 1320a-7a(a); 32 CFR 200.210(a)(2);    Employing or contracting with an          22,426          24,163
 (b)(2)(ii).                                     excluded individual.
42 U.S.C. 1320a-7a(a); 32 CFR 200.210(a)(1)...  Pattern of claims for medically           22,426          24,163
                                                 unnecessary services/supplies.
42 U.S.C. 1320a-7a(a); 32 CFR 200.210(a)(2)...  Ordering or prescribing while             22,426          24,163
                                                 excluded.
42 U.S.C. 1320a-7a(a); 32 CFR 200.210(a)(5)...  Known retention of an                     22,426          24,163
                                                 overpayment.
42 U.S.C. 1320a-7a(a); 32 CFR 200.210(a)(4)...  Making or using a false record           112,131         120,816
                                                 or statement that is material
                                                 to a false or fraudulent claim.
42 U.S.C. 1320a-7a(a); 32 CFR 200.210(a)(6)...  Failure to grant timely access            33,640          36,245
                                                 to OIG for audits,
                                                 investigations, evaluations, or
                                                 other statutory functions of
                                                 OIG.

[[Page 692]]

 
42 U.S.C. 1320a-7a(a); 32 CFR 200.210(a)(3)...  Making false statements,                 112,131         120,816
                                                 omissions, misrepresentations
                                                 in an enrollment application.
42 U.S.C. 1320a-7a(a); 32 CFR 200.310(a)......  Unlawfully offering, paying,             112,131         120,816
                                                 soliciting, or receiving
                                                 remuneration to induce or in
                                                 return for the referral of
                                                 business in violation of
                                                 1128B(b) of the Social Security
                                                 Act.
----------------------------------------------------------------------------------------------------------------


[81 FR 33391, May 26, 2016, as amended at 82 FR 6249, Jan. 19, 2017; 83 
FR 3078, Jan. 23, 2018; 84 FR 12099, Apr. 1, 2019; 85 FR 13049, Mar. 6, 
2020; 86 FR 46600, Aug. 19, 2021; 87 FR 57147, Sept. 19, 2022; 88 FR 
2240, Jan. 13, 2023]



Sec. 269.5  Application of increase to violations.

    Any increase in a civil monetary penalty under this part must apply 
only to civil monetary penalties, including those whose associated 
violation predated such increase, which are assessed after the date the 
increase takes effect (i.e., July 1, 2016).

[61 FR 67945, Dec. 26, 1996, as amended at 81 FR 33391, May 26, 2016]



PART 273_DEFENSE MATERIEL DISPOSITION--Table of Contents



               Subpart A_Disposal Guidance and Procedures

Sec.
273.1 Purpose.
273.2 Applicability.
273.3 Definitions.
273.4 Policy.
273.5 Responsibilities.
273.6 Procedures.
273.7 Excess DoD property and scrap disposal processing.
273.8 Donations, loans, and exchanges.
273.9 Through-life traceability of uniquely identified items.

         Subpart B_Reutilization, Transfer, and Sale of Property

273.10 Purpose.
273.11 Applicability.
273.12 Definitions.
273.13 Policy.
273.14 Responsibilities.
273.15 Procedures.

    Authority: 10 U.S.C. 2194, 2208, 2557, 2572, 2576, 2576a, 2576b, 
2577, 4683, 7306, 7545; 15 U.S.C. 3710(i); 22 U.S.C. 2151, 2321b, 2321j, 
2751, and 2778 et seq.; 40 U.S.C. subtitle I and sections 101, 541 et 
seq., and 701; 42 U.S.C. 3015 and 3020; and 42 U.S.C. Chapter 68.

    Source: 80 FR 68159, Nov. 3, 2015, unless otherwise noted.



               Subpart A_Disposal Guidance and Procedures



Sec. 273.1  Purpose.

    (a) This part is composed of several subparts, each containing its 
own purpose. In accordance with the authority in DoD Directive 5134.12, 
``Assistant Secretary of Defense for Logistics and Materiel Readiness 
(ASD(L&MR))'' (available at http://www.dtic.mil/ whs/directives/corres/ 
pdf/513412p.pdf); DoD Instruction 4140.01, ``Supply Chain Materiel 
Management Policy'' (available at http://www.dtic.mil/whs/ directives/
corres/ pdf/414001p.pdf); and DoD Instruction 4160.28, ``DoD 
Demilitarization (DEMIL) Program'' (available at http://www.dtic.mil/ 
whs/directives/corres/ pdf/416028p.pdf), this part:
    (1) Prescribes uniform procedures for the disposition of DoD 
personal property.
    (2) Establishes the sequence of processes for disposition of 
personal property of the DoD Components.
    (b) This subpart:
    (1) Implements the statutory authority and regulations under which 
DoD personal property disposal takes place, as well as the scope and 
applicability for the program.
    (2) Defines the responsibilities of personnel and agencies involved 
in the Defense Materiel Disposition Program.
    (3) Provides procedures for disposal of excess property and scrap.

[[Page 693]]

    (4) Provides procedures for property donations, loans, and 
exchanges.



Sec. 273.2  Applicability.

    (a) This subpart applies to the Office of the Secretary of Defense, 
the Military Departments, the Office of the Chairman of the Joint Chiefs 
of Staff and the Joint Staff, the Combatant Commands, the Office of the 
Inspector General of the Department of Defense, the Defense Agencies, 
the DoD Field Activities, and all other organizational entities within 
the DoD (referred to collectively in this subpart as the ``DoD 
Components'').
    (b) If a procedural conflict exists, these references take 
precedence:
    (1) 41 CFR chapters 101 and 102 (also known as the Federal Property 
Management Regulations and Federal Management Regulation (FPMR and 
FMR)).
    (2) 40 U.S.C. subtitle I, also known as the Federal Property and 
Administrative Services Act.



Sec. 273.3  Definitions.

    Unless otherwise noted, these terms and their definitions are for 
the purpose of this subpart.
    Abandonment and destruction (A/D). A method for handling property 
that:
    (1) Is abandoned and a diligent effort to determine the owner is 
unsuccessful.
    (2) Is uneconomical to repair or the estimated costs of the 
continued care and handling of the property exceeds the estimated 
proceeds of sale.
    (3) Has an estimated cost of disposal by A/D that is less than the 
net sales cost.
    Accountability. The obligation imposed by law, lawful order, or 
regulation, accepted by a person for keeping accurate records to ensure 
control of property, documents, or funds, with or without possession of 
the property. The person who is accountable is concerned with control 
while the person who has possession is responsible for custody, care, 
and safekeeping.
    Acquisition cost. The amount paid for property, including 
transportation costs, net any trade and cash discounts. Also see 
standard price.
    Ammunition. Generic term related mainly to articles of military 
application consisting of all kinds of bombs, grenades, rockets, mines, 
projectiles, and other similar devices or contrivances.
    Automatic identification technology (AIT). A suite of technologies 
enabling the automatic capture of data, thereby enhancing the ability to 
identify, track, document, and control assets (e.g. materiel), deploying 
and redeploying forces, equipment, personnel, and sustainment cargo. AIT 
encompasses a variety of data storage or carrier technologies, such as 
linear bar codes, two-dimensional symbols (PDF417 and Data Matrix), 
magnetic strips, integrated circuit cards, optical laser discs (optical 
memory cards or compact discs), satellite tracking transponders, and 
radio frequency identification tags used for marking or ``tagging'' 
individual items, equipment, air pallets, or containers. Known 
commercially as automatic identification data capture.
    Batchlot. The physical grouping of individual receipts of low-
dollar-value property. The physical grouping consolidates multiple 
disposal turn-in documents (DTIDs) under a single cover DTID. The 
objective of batchlotting is to reduce the time and costs related to 
physical handling and administrative processes required for receiving 
items individually. The cover DTID establishes accountability in the 
accountable record and individual line items lose their identity.
    Bid. A response to an offer to sell that, if accepted, would bind 
the bidder to the terms and conditions of the contract (including the 
bid price).
    Bidder. Any entity that is responding to or has responded to an 
offer to sell.
    Care and handling. Includes packing, storing, handling, and 
conserving excess, surplus, and foreign excess property. In the case of 
property that is dangerous to public health, safety, or the environment, 
this includes destroying or rendering such property harmless.
    Commercial off the shelf (COTS) software. Software that is available 
through lease or purchase in the commercial market. Included in COTS are 
the operating system software that runs on the information technology

[[Page 694]]

equipment and other significant software purchased with a license that 
supports system or customer requirements.
    Commerce control list (CCL) items (formerly known as strategic list 
item). Commodities, software, and technology subject to export controls 
in accordance with Export Administration Regulations (EAR) in 15 CFR 
parts 730 through 774. The EAR contains the CCL and is administered by 
the Bureau of Industry and Security, Department of Commerce (DOC).
    Component. An item that is useful only when used in conjunction with 
an end item. Components are also commonly referred to as assemblies. For 
purposes of this definition an assembly and a component are the same. 
There are two types of components: Major components and minor 
components. A major component includes any assembled element which forms 
a portion of an end item without which the end item is inoperable. For 
example, for an automobile, components will include the engine, 
transmission, and battery. If you do not have all those items, the 
automobile will not function, or function as effectively. A minor 
component includes any assembled element of a major component. 
Components consist of parts. References in the CCL to components include 
both major components and minor components.
    Container. Any portable device in which a materiel is stored, 
transported, disposed of, or otherwise handled, including those whose 
last content was a hazardous or an acutely hazardous material, waste, or 
substance.
    Continental United States (CONUS). Territory, including the adjacent 
territorial waters, located within the North American continent between 
Canada and Mexico (comprises 48 States and the District of Columbia).
    Controlled substances. (1) Any narcotic, depressant, stimulant, or 
hallucinogenic drug or any other drug or other substance or immediate 
precursor included in 21 U.S.C. 801. Exempted chemical preparations and 
mixtures and excluded substances are listed in 21 CFR part 1308.
    (2) Any other drug or substance that the United States Attorney 
General determines to be subject to control in accordance with 21 CFR 
part 1308.
    (3) Any other drug or substance that, by international treaty, 
convention, or protocol, is to be controlled by the United States.
    Counterfeit. A counterfeit part is one whose identity has been 
deliberately altered, misrepresented, or is offered as an unauthorized 
product substitution.
    Defective property. An item, part, or component that does not meet 
military, Federal, or commercial specifications as required by military 
procurement contracts because of unserviceability, finite life, or 
product quality deficiency and is determined to be unsafe for use. 
Defective property may be dangerous to public health or safety by virtue 
of latent defects. These defects are identified by technical inspection 
methods; or condemned by maintenance or other authorized activities as a 
result of destructive and nondestructive test methods such as magnetic 
particle, liquid penetrant, or radiographic testing, which reveal 
defects not apparent from normal visual inspection methods.
    Defense Logistics Agency Disposition Services Automated Information 
System (DAISY). An automated property accounting management data system 
designed to process property through the necessary disposal steps and 
account for excess, surplus, and foreign excess personal property (FEPP) 
from receipt to final disposal.
    Demilitarization. The act of eliminating the functional capabilities 
and inherent military design features from DoD personal property. 
Methods and degree range from removal and destruction of critical 
features to total destruction by cutting, crushing, shredding, melting, 
burning, etc. DEMIL is required to prevent property from being used for 
its originally intended purpose and to prevent the release of inherent 
design information that could be used against the United States. DEMIL 
applies to material in both serviceable and unserviceable condition.
    Disposal. End-of-life tasks or actions for residual materials 
resulting from demilitarization or disposition operations.

[[Page 695]]

    Disposition. The process of reusing, recycling, converting, 
redistributing, transferring, donating, selling, demilitarizing, 
treating, destroying, or fulfilling other end of life tasks or actions 
for DoD property. Does not include real (real estate) property.
    Defense Logistics Agency (DLA) Disposition Services. The 
organization provides DoD with worldwide reuse, recycling and disposal 
solutions that focus on efficiency, cost avoidance and compliance.
    DLA Disposition Services site. The DLA Disposition Services office 
that has accountability for and control over disposable property. May be 
managed in part by a commercial contractor. The term is applicable 
whether the disposal facility is on a commercial site or a Government 
installation and applies to both Government and contractor employees 
performing the disposal mission.
    DoD Activity Address Code (DoDAAC). A 6-digit code assigned by the 
Defense Automatic Addressing Service to provide a standardized address 
code system for identifying activities and for use in transmission of 
supply and logistics information that supports the movement of property.
    DoD Item Unique Identification (IUID) Registry. The DoD data 
repository that receives input from both industry and Government sources 
and provides storage of, and access to, data that identifies and 
describes tangible Government personal property.
    Donation. The act of providing surplus personal property at no 
charge to a qualified donation recipient, as allocated by the General 
Services Administration (GSA).
    Donation recipient. Any of the following entities that receive 
federal surplus personal property through State agencies for surplus 
property (SASP):
    (1) A Service educational activity (SEA).
    (2) A public agency that uses surplus personal property to carry out 
or promote one or more public purposes. (Public airports are an 
exception and are only considered donation recipients when they elect to 
receive surplus property through a SASP, but not when they elect to 
receive surplus property through the Federal Aviation Administration 
(FAA).)
    (3) An eligible nonprofit tax-exempt educational or public health 
institution (including a provider of assistance to homeless or 
impoverished families or individuals).
    (4) A State or local government agency, or a nonprofit organization 
or institution, that receives funds appropriated for a program for older 
individuals.
    Educational institution. An approved, accredited, or licensed public 
or nonprofit institution or facility, entity, or organization conducting 
educational programs, including research for any such programs, such as 
a childcare center, school, college, university, school for the mentally 
handicapped, school for the physically handicapped, or an educational 
radio or television station.
    Excess personal property.
    (1) Domestic excess. Government personal property that the United 
States and its territories and possessions, applicable to areas covered 
by GSA (i.e., the 50 States, District of Columbia, Puerto Rico, American 
Samoa, Guam, Northern Mariana Islands, the Federated States of 
Micronesia, the Marshall Islands, Palau, and the U.S. Virgin Islands), 
consider excess to the needs and mission requirements of the United 
States.
    (2) DoD Component excess. Items of DoD Component owned property that 
are not required for their needs and the discharge of their 
responsibilities as determined by the head of the Service or Agency.
    (3) Foreign excess personal property (FEPP). U.S.-owned excess 
personal property that is located outside the zone of interior (ZI). 
This property becomes surplus and is eligible for donation and sale as 
described in Sec. 273.7.
    Exchange. Replace personal property by trade or trade-in with the 
supplier of the replacement property. To exchange non-excess, non-
surplus personal property and apply the exchange allowance or proceeds 
of sale in whole or in part payment for the acquisition of similar 
property. For example, the replacement of a historical artifact with 
another historical artifact by trade; or to exchange an item of 
historical property or goods for services

[[Page 696]]

based on the fair market value of the artifact.
    Federal civilian agency (FCA). Any non-defense executive agency 
(e.g. DoS, Department of Homeland Security) or any establishment in the 
legislative or judicial branch of the U.S. Government (USG) (except the 
Senate, the House of Representatives, and the Architect of the Capitol 
and any activities under his or her direction).
    FEPP. See excess personal property.
    Firearm. Any weapon (including a starter gun) that will or is 
designed to or may readily be converted to expel a projectile by the 
action of an explosive; the frame or receiver of any such weapon; any 
firearm muffler or firearm silencer; or any destructive device. The term 
does not include an antique firearm.
    Flight safety critical air parts (FSCAP). Any aircraft part, 
assembly, or installation containing a critical characteristic whose 
failure, malfunction, or absence could cause a catastrophic failure 
resulting in loss or serious damage to the aircraft or an uncommanded 
engine shutdown, resulting in an unsafe condition.
    Foreign purchased property. Property paid for by foreign countries, 
but where ownership is retained by the United States.
    Friendly foreign government. For purposes of trade security controls 
(TSC), governments of countries other than those designated as 
restricted parties.
    Generating activity (``generator''). The activity that declares 
personal property excess to its needs, e.g. DoD installations, 
activities, contractors, or FCAs.
    Government-furnished material (GFM). Property provided by the U.S. 
Government for the purpose of being incorporated into or attached to a 
deliverable end item or that will be consumed or expended in performing 
a contract. Government-furnished materiel includes assemblies, 
components, parts, raw and process material, and small tools and 
supplies that may be consumed in normal use in performing a contract. 
Government-furnished materiel does not include material provided to 
contractors on a cash-sale basis nor does it include military property, 
which are government-owned components, contractor acquired property (as 
specified in the contract), government furnished equipment, or major end 
items being repaired by commercial contractors for return to the 
government.
    GSAXcess[supreg]. A totally web-enabled platform that eligible 
customers use to access functions of GSAXcess[supreg] for reporting, 
searching, and selecting property. This includes the entry site for the 
Federal Excess Personal Property Utilization Program and the Federal 
Surplus Personal Property Donation Program operated by the GSA.
    Historical artifact. Items (including books, manuscripts, works of 
art, drawings, plans, and models) identified by a museum director or 
curator as significant to the history of that department, acquired from 
approved sources, and suitable for display in a military museum. 
Generally, such determinations are based on the item's association with 
an important person, event, or place; because of traditional association 
with an important person, event, or place; because of traditional 
association with a military organization; or because it is a 
representative example of military equipment or represents a significant 
technological contribution to military science or equipment.
    Hazardous material (HM). (1) In the United States, any material that 
is capable of posing an unreasonable risk to health, safety, and 
property during transportation. All HM appears in the HM Table at 49 CFR 
172.101.
    (2) Overseas, HM is defined in the applicable final governing 
standards or overseas environmental baseline guidance document, or host 
nation laws and regulations.
    Hazardous property (HP). (1) A composite term used to describe DoD 
excess property, surplus property, and FEPP, which may be hazardous to 
human health, human safety, or the environment. Various Federal, State, 
and local safety and environmental laws regulate the use and disposal of 
hazardous property.
    (2) In more technical terms, HP includes property having one or more 
of the following characteristics:
    (i) Has a flashpoint below 200 degrees Fahrenheit (93 degrees 
Celsius) closed

[[Page 697]]

cup, or is subject to spontaneous heating or is subject to 
polymerization with release of large amounts of energy when handled, 
stored, and shipped without adequate control.
    (ii) Has a threshold limit value equal to or below 1,000 parts per 
million (ppm) for gases and vapors, below 500 milligram per cubic meter 
(mg/m\3\) for fumes, and equal to or less than 30 million particles per 
cubic foot (mppcf) or 10 mg/m\3\ for dusts (less than or equal to 2.0 
fibers/cc greater than 5 micrometers in length for fibrous materials).
    (iii) Causes 50 percent fatalities to test animals when a single 
oral dose is administered in doses of less than 500 mg per kilogram of 
test animal weight.
    (iv) Is a flammable solid as defined in 49 CFR 173.124, or is an 
oxidizer as defined in 49 CFR 173.127, or is a strong oxidizing or 
reducing agent with a half cell potential in acid solution of greater 
than +1.0 volt as specified in Latimer's table on the oxidation-
reduction potential.
    (v) Causes first-degree burns to skin in short-time exposure, or is 
systematically toxic by skin contact.
    (vi) May produce dust, gases, fumes, vapors, mists, or smoke with 
one or more of the above characteristics in the course of normal 
operations.
    (vii) Produces sensitizing or irritating effects.
    (viii) Is radioactive.
    (ix) Has special characteristics which, in the opinion of the 
manufacturer, could cause harm to personnel if used or stored 
improperly.
    (x) Is hazardous in accordance with Occupational Health and Safety 
Administration, 29 CFR part 1910.
    (xi) Is hazardous in accordance with 29 CFR part 1910.
    (xii) Is regulated by the EPA in accordance with 40 CFR parts 260 
through 280.
    Hazardous waste (HW). An item that is regulated pursuant to 42 
U.S.C. 6901 or by State regulation as an HW. HW is defined federally at 
40 CFR part 261. Overseas, HW is defined in the applicable final 
governing standards or overseas environmental baseline guidance 
document, or host nation laws and regulations.
    Holding agency. The Federal agency that is accountable for, and 
generally has possession of, the property involved.
    Hold harmless. A promise to pay any costs or claims which may result 
from an agreement.
    Information technology. Any equipment or interconnected system or 
subsystem of equipment that is used in the automatic acquisition, 
storage, manipulation, management, movement, control, display, 
switching, interchange, transmission or reception of data or information 
by the DoD Component. Includes computers, ancillary equipment, software, 
firmware, and similar procedures, services (including support services), 
and related sources. Does not include any equipment that is acquired by 
a Federal contractor incidental to a Federal contract. Equipment is 
``used'' by a DoD Component if the equipment is used by the DoD 
Component directly or is used by a contractor under a contract with the 
DoD Component that:
    (1) Requires the use of such equipment.
    (2) Requires the use to a significant extent of such equipment in 
the performance of a service or the furnishing of a product.
    Installation. A military facility together with its buildings, 
building equipment, and subsidiary facilities such as piers, spurs, 
access roads, and beacons.
    International organizations. For TSC purposes, this term includes: 
Columbo Plan Council for Technical Cooperation in South and Southeast 
Asia; European Atomic Energy Community; Indus Basin Development; 
International Atomic Energy; International Red Cross; NATO; Organization 
of American States; Pan American Health Organization; United Nations; UN 
Children's Fund; UN Development Program; UN Educational, Scientific, and 
Cultural Organization; UN High Commissioner for Refugees Programs; UN 
Relief and Works Agency for Palestine Refugees in the Near East; World 
Health Organization; and other international organizations approved by a 
U.S. diplomatic mission.
    Interrogation. A communication between two or more ICPs, other DoD 
activities, and U.S. Government agencies to determine the current 
availability of an item or suitable substitute for a

[[Page 698]]

needed item before procurement or repair.
    Interservice. Action by one Military Department or Defense Agency 
ICP to provide materiel and directly related services to another 
Military Department or Defense Agency ICP (either on a recurring or 
nonrecurring basis).
    Inventory adjustments. Changes made in inventory quantities and 
values resulting from inventory recounts and validations.
    Inventory control point (ICP). An organizational unit or activity 
within the DoD supply system that is assigned the primary responsibility 
for the materiel management of a group of items either for a particular 
Military Department or for the DoD as a whole. In addition to materiel 
manager functions, an ICP may perform other logistics functions in 
support of a particular Military Department or for a particular end item 
(e.g., centralized computation of retail requirements levels and 
engineering tasks associated with weapon system components).
    Item unique identification (IUID). A system of establishing globally 
widespread unique identifiers on items of supply within the DoD, which 
serves to distinguish a discrete entity or relationship from other like 
and unlike entities or relationships. AIT is used to capture and 
communicate IUID information.
    Line item. A single line entry on a reporting form or sale document 
that indicates a quantity of property located at any one activity having 
the same description, condition code, and unit cost.
    Line item value (for reporting and other accounting and approval 
purposes). Quantity of a line item multiplied by the standard price.
    Marketing. The function of directing the flow of surplus and FEPP to 
the buyer, encompassing all related aspects of merchandising, market 
research, sale promotion, advertising, publicity, and selling.
    Material potentially presenting an explosive hazard (MPPEH). 
Material owned or controlled by the Department of Defense that, prior to 
determination of its explosives safety status, potentially contains 
explosives or munitions (e.g., munitions containers and packaging 
material; munitions debris remaining after munitions use, 
demilitarization, or disposal; and range-related debris) or potentially 
contains a high enough concentration of explosives that the material 
presents an explosive hazard (e.g., equipment, drainage systems, holding 
tanks, piping, or ventilation ducts that were associated with munitions 
production, demilitarization, or disposal operations). Excluded from 
MPPEH are munitions within the DoD-established munitions management 
system and other items that may present explosion hazards (e.g., 
gasoline cans and compressed gas cylinders) that are not munitions and 
are not intended for use as munitions.
    Metalworking machinery. A category of plant equipment consisting of 
power driven nonportable machines in Federal Supply Classification Code 
(four digits) (FSC) 3411 through 3419 and 3441 through 3449, which are 
used or capable of use in the manufacture of supplies or equipment, or 
in the performance of services, or for any administrative or general 
plant purpose.
    Munitions list items (MLI). Any item contained on the U.S. Munitions 
List (USML) in 22 CFR part 121. Defense articles, associated technical 
data (including software), and defense services recorded or stored in 
any physical form, controlled for export and permanent import by 22 CFR 
parts 120 through 130. 22 CFR part 121, which contains the USML, is 
administered by the DoS Directorate of Defense Trade Controls.
    Museum, DoD or Service. An appropriated fund entity that is a 
permanent activity with a historical collection, open to both the 
military and civilian public at regularly scheduled hours, and is in the 
care of a professional qualified staff that performs curatorial and 
related historical duties full time.
    Mutilation. A process that renders materiel unfit for its originally 
intended purposes by cutting, tearing, scratching, crushing, breaking, 
punching, shearing, burning, neutralizing, etc.
    NAF property. Property purchased with NAFs, by religious activities 
or nonappropriated morale welfare or recreational activities, post 
exchanges,

[[Page 699]]

ships stores, officer and noncommissioned officer clubs, and similar 
activities. Such property is not Federal property.
    Narcotics. See controlled substances.
    National stock number (NSN). The 13-digit stock number replacing the 
11-digit federal stock number. It consists of the 4-digit federal supply 
classification code and the 9-digit national item identification number. 
The national item identification number consists of a 2-digit National 
Codification Bureau number designating the central cataloging office 
(whether North Atlantic Treaty Organization or other friendly country) 
that assigned the number and a 7-digit (xxx-xxxx) nonsignificant number. 
Arrange the number as follows: 9999-00-999-9999.
    Nonappropriated fund (NAF). Funds generated by DoD military and 
civilian personnel and their dependents and used to augment funds 
appropriated by 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.
    Nonprofit institution. An institution or organization, no part of 
the net earnings of which inures or may lawfully inure to the benefit of 
any private shareholder or individual, and which has been held to be tax 
exempt under the provisions of 26 U.S.C. 501, also known as the Internal 
Revenue Code of 1986.
    Nonsalable materiel. Materiel that has no reutilization, transfer, 
donation, or sale value as determined by the DLA Disposition Services 
site, but is not otherwise restricted from disposal by U.S. law or 
Federal or military regulations.
    Obsolete combat materiel. Military equipment once used in a 
primarily combat role that has been phased out of operational use; if 
replaced, the replacement items are of a more current design or 
capability.
    Ordnance. Explosives, chemicals, pyrotechnics, and similar stores, 
e.g., bombs, guns and ammunition, flares, smoke, or napalm.
    ppm. Unit of concentration by volume of a specific substance.
    Personal property. Property except real property. Excludes records 
of the Federal Government, battleships, cruisers, aircraft carriers, 
destroyers, and submarines.
    Pilferable materiel. Materiel having a ready resale value or 
application to personal possession, which is especially subject to 
theft.
    Plant equipment. Personal property of a capital nature (including 
equipment, machine tools, test equipment, furniture, vehicles, and 
accessory and auxiliary items) for use in manufacturing supplies, in 
performing services, or for any administrative or general plant purpose. 
It does not include special tooling or special test equipment.
    Precious metals. Gold, silver, and the platinum group metals 
(platinum, palladium, iridium, rhodium, osmium, and ruthenium).
    Precious Metals Recovery Program (PMRP). A DoD program for 
identification, accumulation, recovery, and refinement of precious 
metals from excess and surplus end items, scrap, hypo solution, and 
other precious metal bearing materiel for authorized internal purposes 
or as GFM.
    Pre-receipt. Documentation processed prior to physically 
transferring or turning the property into a DLA Disposition Services 
site.
    Privacy Act property. Any document or other information about an 
individual maintained by the agency, whether collected or grouped, 
including but not limited to, information regarding education, financial 
transactions, medical history, criminal or employment history, or other 
personal information containing the name or other personal 
identification number, symbol, etc., assigned to such individual.
    Privately owned personal property. Personal effects of DoD personnel 
(military or civilian) that are not, nor will ever become, Government 
property unless the owner (or heirs, next of kin, or legal 
representative of the owner) executes a written and signed release 
document unconditionally giving the U.S. Government all right, title, 
and interest in the privately owned property.
    Public agency. Any State, political subdivision thereof, including 
any unit

[[Page 700]]

of local government or economic development district; or any department, 
agency, instrumentality thereof, including instrumentalities created by 
compact or other agreement between States or political subdivisions, 
multi-jurisdictional substate districts established by or under State 
law; or any Indian tribe, band, group, pueblo, or community located on a 
State reservation. (See Sec. 273.8 regarding donations made through 
State agencies.)
    Qualified recycling programs (QRP). Organized operations that 
require concerted efforts to cost effectively divert or recover scrap or 
waste, as well as efforts to identify, segregate, and maintain the 
integrity of recyclable materiel to maintain or enhance its 
marketability. If administered by a DoD Component other than DLA, a QRP 
includes adherence to a control process providing accountability for all 
materials processed through program operations.
    Reclamation. A cost avoidance or savings measure to recover useful 
(serviceable) end items, repair parts, components, or assemblies from 
one or more principal end items of equipment or assemblies (usually 
supply condition codes (SCCs) listed in DLM 4000.25-2 as SCC H for 
unserviceable (condemned) materiel, SCC P for unserviceable 
(reclamation) materiel, and SCC R for suspended (reclaimed items, 
awaiting condition determination) materiel) for the purpose of 
restoration to use through replacement or repair of one or more 
unserviceable, but repairable principal end items of equipment or 
assemblies (usually SCCs listed in DLM 4000.25-2 as SCC E for 
unserviceable (limited restoration) materiel, SCC F for unserviceable 
(reparable) materiel, and SCC G for unserviceable (incomplete) 
materiel). Reclamation is preferable prior to disposition (e.g., DLA 
Disposition Services site turn-in), but end items or assemblies may be 
withdrawn from DLA Disposition Services sites for such reclamation 
purposes.
    Restricted parties. Those countries or entities that the Department 
of State (DoS), DOC, or Treasury have determined to be prohibited or 
sanctioned for the purpose of export, sale, transfer, or resale of items 
controlled on the United States Munitions List (USML) or Commerce 
Control List. A consolidated list of prohibited entities or destinations 
for which transfers may be limited or barred, may be found at: http://
export.gov/ ecr/eg_main _023148.asp.
    Reutilization. The act of re-issuing FEPP and excess property to DoD 
Components. Also includes qualified special programs (e.g., Law 
Enforcement Agency (LEA), Humanitarian Assistance Program, Military 
Affiliate Radio System (MARS)) pursuant to applicable enabling statutes.
    Salvage. Personal property that has some value in excess of its 
basic material content, but is in such condition that it has no 
reasonable prospect of use as a unit for the purpose for which it was 
originally intended, and its repair or rehabilitation for use as a unit 
is impracticable.
    Scrap. Recyclable waste and discarded materials derived from items 
that have been rendered useless beyond repair, rehabilitation, or 
restoration such that the item's original identity, utility, form, fit 
and function have been destroyed. Items can be classified as scrap if 
processed by cutting, tearing, crushing, mangling, shredding, or 
melting. Intact or recognizable USML or CCL items, components, and parts 
are not scrap. 41 CFR 102-36.40 and 15 CFR 770.2 provide additional 
information on scrap.
    Screening. The process of physically inspecting property or 
reviewing lists or reports of property to determine whether it is usable 
or needed.
    Sensitive items. Materiel that requires a high degree of protection 
and control due to statutory requirements or regulations, such as 
narcotics and drug abuse items; precious metals; items of high value; 
items that are highly technical, or of a hazardous nature; non-nuclear 
missiles, rockets, and explosives; small arms, ammunition and 
explosives, and demolition material.
    Service educational activity (SEA). Any educational activity that 
meets specified criteria and is formally designated by the Department of 
Defense as being of special interest to the Military Services. Includes 
educational activities such as maritime academies or military, naval, or 
Air Force preparatory schools, junior colleges, and institutes;

[[Page 701]]

senior high school-hosted Junior Reserve Officer Training Corps; and 
nationally organized youth groups. The primary purpose of such entities 
is to offer courses of instruction devoted to the military arts and 
sciences.
    Small arms/light weapons. Man-portable weapons made or modified to 
military specifications for use as lethal instruments of war that expel 
a shot, bullet, or projectile by action of an explosive. Small arms are 
broadly categorized as those weapons intended for use by individual 
members of armed or security forces. They include handguns; rifles and 
carbines; sub-machine guns; and light machine guns. Light weapons are 
broadly categorized as those weapons designed for use by two or three 
members of armed or security forces serving as a crew, although some may 
be used by a single person. They include heavy machine guns; hand-held 
under-barrel and mounted grenade launchers; portable anti-aircraft guns; 
portable anti-tank guns; recoilless rifles; man-portable launchers of 
missile and rocket systems; and mortars.
    Standard price. The price customers are charged for a DoD managed 
item (excluding subsistence), which remains constant throughout a fiscal 
year. The standard price is based on various factors which include the 
latest acquisition price of the item plus surcharges or cost recovery 
elements for transportation, inventory loss, obsolescence, maintenance, 
depreciation, and supply operations.
    State agencies for surplus property (SASP). The agency designated 
under State law to receive Federal surplus personal property for 
distribution to eligible donation recipients within the States as 
provided for in 40 U.S.C. 549.
    State or local government. A State, territory, or possession of the 
United States, the District of Columbia, American Samoa, Guam, Puerto 
Rico, Commonwealth of Northern Mariana Islands, the U.S. Virgin Islands, 
and any political subdivision or instrumentality thereof.
    Supply condition codes (SCC). Code used to classify materiel in 
terms of readiness for issue and use or to identify action underway to 
change the status of materiel. These codes are assigned by the Military 
Departments or Defense Agencies. DLA Disposition Services may change a 
SCC if there is an appearance of an improperly assigned code and the 
property is of a non-technical nature. If change is not appropriate or 
property is of a technical nature, DLA Disposition Services sites may 
challenge a suspicious SCC.
    Surplus personal property. Excess personal property no longer 
required by the Federal agencies, as determined by the Administrator of 
General Services. Applies to surplus personal property in the United 
States, American Samoa, Guam, Puerto Rico, the Commonwealth of the 
Northern Mariana Islands, and the U.S. Virgin Islands.
    Trade security controls (TSC). Policy and procedures, in accordance 
with DoD Instruction 2030.08, designed to prevent the sale or shipment 
of USG materiel to any person, organization, or country whose interests 
are unfriendly or hostile to those of the United States and to ensure 
that the disposal of DoD personal property is performed in compliance 
with U.S. export control laws and regulations, the International Traffic 
in Arms Regulations (ITAR) in 22 CFR parts 120 through 130, and the EAR 
in 15 CFR parts 730 through 774.
    Transfer. The act of providing FEPP and excess personal property to 
Federal civilian agencies (FCAs) as stipulated in the FMR. Property is 
allocated by the GSA. When a line item is less than $10,000, an FCA may 
coordinate allocation to another FCA directly.
    Trash. Post-consumer refuse, waste and food by-products such as 
litter, rubbish, cooked grease, bones, fats, and meat trimmings.
    Uniform Materiel Movement and Issue Priority System (UMMIPS). System 
to ensure that requirements are processed in accordance with the mission 
of the requiring activity and the urgency of need, and to establish 
maximum uniform order and materiel movement standard.
    Unique item identifier (UII). A set of data elements marked on an 
item that is globally unique and unambiguous. The term includes a 
concatenated UII or a DoD-recognized unique identification equivalent.
    Unsalable materiel. Materiel for which sale or other disposal is 
prohibited by

[[Page 702]]

U.S. law or Federal or military regulations.
    Usable property. Commercial and military type property other than 
scrap and waste.
    Veterans' organization. An organization composed of honorably 
discharged soldiers, sailors, airmen, and marines, which is established 
as a veterans' organization and recognized as such by the U.S. 
Department of Veterans Affairs.
    Zone of interior (ZI). The United States and its territories and 
possessions, applicable to areas covered by GSA and where excess 
property is considered domestic excess. Includes the 50 States, District 
of Columbia, Puerto Rico, American Samoa, Guam, Northern Mariana 
Islands, and the U.S. Virgin Islands.



Sec. 273.4  Policy.

    It is DoD policy consistent with 41 CFR chapters 101 and 102 that 
excess DoD property must be screened and redistributed among the DoD 
Components, and reported as excess to the GSA. Pursuant to 40 U.S.C. 
701, DoD will efficiently and economically dispose DoD FEPP.



Sec. 273.5  Responsibilities.

    (a) The Assistant Secretary of Defense for Logistics and Materiel 
Readiness (ASD(L&MR)), under the authority, direction, and control of 
the USD(AT&L), and in accordance with DoD Directive 5134.12:
    (1) Develops DoD materiel disposition policies, including policies 
for FEPP.
    (2) Oversees the effective implementation of the DoD materiel 
disposition program.
    (3) Approves policy changes as appropriate to support contingency 
operations.
    (4) Approves national organizations for special interest 
consideration as SEAs, and approve categories of property considered 
appropriate, usable, and necessary for transfer to SEAs.
    (b) The Director, Defense Logistics Agency (DLA), under the 
authority, direction, and control of the Under Secretary of Defense for 
Acquisition, Technology, and Logistics, through the Assistant Secretary 
of Defense for Logistics and Materiel Readiness (ASD(L&MR)), and in 
addition to the responsibilities in paragraph (c) of this section:
    (1) Provides agency-level command and control and administers the 
worldwide Defense Materiel Disposition Program.
    (2) Implements guidance issued by the ASD(L&MR) or other 
organizational elements of the OSD and establishes system concepts and 
requirements, resource management, program guidance, budgeting and 
funding, training and career development, management review and 
analysis, internal control measures, and crime prevention for the 
Defense Materiel Disposition Program.
    (3) Chairs the Disposal Policy Working Group (DPWG).
    (4) Provides direction to the DLA Disposition Services on 
implementing the worldwide defense materiel disposition program.
    (5) Provides direction to the DLA inventory control points (ICPs) on 
the cataloging of items in the Federal Logistics Information System 
(FLIS) as outlined in DoD 4100.39-M, ``Federal Logistics Information 
System (FLIS) Procedures Manual-Glossary and Volumes 1-16'' (available 
at  whs/directives/ corres/html/410039m.html). This is done to prevent 
the unauthorized disposition or release of items within DoD, other 
federal civilian agencies, or release into commerce.
    (6) Promotes maximum reuse of FEPP, excess, and surplus property. 
Pursues all possible avenues to sponsor or endorse reuse of excess DoD 
property and preclude unnecessary purchases.
    (7) Directs the DLA Disposition Services communications with the DoD 
Components regarding changes in service delivery processes or plans that 
will affect disposal support provided. In overseas locations, these 
communications will include geographic Combatant Commanders, U.S. Chiefs 
of Mission, and the in-country security assistance offices.
    (8) Accommodates contingency operation requirements. Directs the DLA 
support team to determine any needed

[[Page 703]]

deviations from standard disposal processing guidance and communicates 
approved temporary changes to the Military Departments and DLA 
Disposition Services.
    (9) Ensures maximum compatibility between documentation, procedures, 
codes, and formats used in materiel disposition systems and the Military 
Departments' supply systems.
    (10) Programs, budgets, funds, accounts, allocates and controls 
personnel, spaces, and other resources for its respective activities.
    (11) Annually provides to GSA a report of property transferred to 
non-federal recipients in accordance with 41 CFR 102-36.295.
    (12) Assumes the worldwide disposal of all DoD HP except for those 
categories specifically designated to remain the responsibility of the 
Military Department or Defense Agency as described in DoD Manual 
4160.21, Volume 4.
    (13) Ensures property disposal training courses are available (e.g., 
at DLA Training Center) for all personnel associated with the disposal 
program.
    (14) Ensures DLA Disposition Services follows the DoD disposal 
hierarchy with landfill disposal as a last resort.
    (c) The DoD Components Heads:
    (1) Recommend Defense Materiel Disposition Program policy changes to 
the ASD(L&MR).
    (2) Recommend Defense Materiel Disposition Program procedural 
changes to the Director, DLA, and provide information copies to the 
ASD(L&MR).
    (3) Assist the Director, DLA, upon request, to resolve matters of 
mutual concern.
    (4) Treat the disposal of DoD property as an integral part of DoD 
Supply Chain Management; ensure that disposal actions and costs are a 
part of each stage of the supply chain management of items and that 
disposal of property is a planned event at all levels of their 
organizations.
    (5) Provide the Director, DLA, with mutually agreed-upon data 
necessary to administer the Defense Materiel Disposition Program.
    (6) Participate in the DoD PMRP and promote maximum reutilization of 
FEPP, excess, and surplus property and fine precious metals for internal 
use or as GFM.
    (7) Nominate to the ASD(L&MR) national organizations for special 
interest consideration as SEAs; approve schools (non-national 
organizations) as SEAs; and recommend to the ASD(L&MR) categories of 
property considered appropriate, usable, and necessary for transfer to 
SEAs.
    (8) Provide administrative and logistics support, including 
appropriate facilities, for the operations of tenant and related off-
site DLA Disposition Services field activities under inter-Service 
support agreements (ISSAs).
    (9) For property not explicitly identified in this part, follow 
Service-unique regulations to dispose of and maintain accountability of 
property. Ensure all accountable records associated with the disposal of 
FEPP, excess, and surplus property are established and updated to 
reflect supply status and ensure audit ability in accordance with DoD 
Instruction 5000.64, ``Accountability and Management of DoD Equipment 
and Other Accountable Property'' (available at http://www.dtic.mil/ whs/
directives/corres/ pdf/500064p.pdf). This requirement also applies to 
modified processes that may be developed for contingency operations.
    (10) Ensure completion of property disposition (reutilization and 
marketing) training courses, as appropriate.
    (11) Administer reclamation programs and accomplish reclamation from 
excess materiel.
    (12) Establish and administer disposal accounts, as jointly agreed 
to by DLA and the Military Departments, to support the demilitarization 
(DEMIL) and reclamation functions performed by the Military Departments.
    (13) Dispose of surplus merchant vessels or vessels of 1,500 gross 
tons or more, capable of conversion to merchant use, through the Federal 
Maritime Administration, U.S. Department of Transportation, by 
forwarding a ``Report of Excess Personal Property'' Standard Form 120 to 
GSA, in accordance with the procedures in 41 CFR chapters 101 and 102. 
For vessels explicitly excluded by 41 CFR chapters 101 and 102, follow 
procedures in DoD

[[Page 704]]

4160.28-M, Volumes 1-3, ``Defense Demilitarization: Program 
Administration, Demilitarization Coding, Procedural Guidance'' 
(available at http://www.dtic.mil/ whs/directives/corres/ pdf/
416028m_vol1.pdf, http://www.dtic.mil/ whs/directives/corres/ pdf/
416028m_vol2.pdf, http://www.dtic.mil/ whs/directives/corres/ pdf/
416028m_vol3.pdf), i.e., battleships, cruisers, aircraft carriers, 
destroyers, or submarines.
    (14) Dispose of HP specifically designated as requiring DoD 
Component processing.
    (15) Request DLA Disposition Services provide sales services, as 
needed, for recyclable marketable materials generated as a result of 
resource recovery programs through the DoD Component QRP in accordance 
with the procedures in Sec. 273.7.
    (16) Consider public donation if applicable before landfill disposal 
and monitor, with DLA Disposition Services Site personnel, all property 
sent to landfills to ensure no economically salable or recyclable 
property is discarded.
    (17) Report, accurately identify on approved turn in documents, and 
turn in all authorized scrap generations to servicing DLA Disposition 
Services sites.
    (18) Update the DoD IUID Registry upon the materiel disposition of 
uniquely identified items in accordance with the procedures in Sec. 
273.9.
    (19) Improve disposal policies, training, and procedural 
implementation among the DoD Components and Federal civilian agencies 
through membership on the DPWG.



Sec. 273.6  Procedures.

    (a) Personal property disposition. The general guidelines and 
procedures for property disposition are:
    (1) 41 CFR chapters 101 and 102 implements 40 U.S.C. subtitle I and 
section 101 which established the Personal Property Disposition Program. 
41 CFR chapter 101 and other laws and regulations apply to the 
disposition of FEPP, excess, and surplus property. In the event of 
conflicting guidance, 41 CFR chapters 101 and 102 takes precedence. 41 
CFR chapter 102 is the successor regulation to 41 CFR chapter 101, the 
``Federal Property Management Regulation''. It updates regulatory 
policies of 41 CFR chapter 101.
    (2) All references to ``days'' are calendar days unless otherwise 
specified.
    (3) The Department of Defense provides guidance for budgeting for 
the disposal of excess, surplus, and FEPP property through DoD 7000.14-
R, ``Department of Defense Financial Management Regulations (FMRs): 
Volume 12, `Special Accounts Funds and Programs'; Chapter 7, `Financial 
Liability for Government Property Lost, Damaged, Destroyed, or Stolen' 
'' (http://comptroller.defense.gov/ Portals/45/documents/ fmr/
Volume_12.pdf), with updates via program budget decisions. The Service 
level billing is based on the services turn-in percentage of the 
Disposition Services workload. As an example, if the Army constitutes 40 
percent of the workload the Army will pay 40 percent of the Disposition 
Services Service-level bill.
    (i) Billings are addressed to each Military Department, Defense 
Agency, and FCA.
    (ii) Billing for disposition of excess property depends on decisions 
made between DLA and the customer: the Military Department, Defense 
Agency, those sponsoring DoD-related organizations (e.g., Civil Air 
Patrol, MARS) or FCA.
    (b) Scope and relevancy. (1) In conjunction with DoD 4160.28-M 
Volumes 1-3, the provisions of this part apply to service providers, 
whether they are working at a government facility or at a commercial 
site, and to contractors to the extent it is stipulated in the 
performance work statement of the contracts. DoD 4160.28-M and 10 U.S.C. 
2576 contain additional specific guidance for property identified as MLI 
or CCL items.
    (2) The procedures in this subpart will be used to the extent 
possible in all contingency operations. As appropriate, the ASD(L&MR) 
will modify policy guidance to support the mission requirements and 
operational tempo of contingency operations.
    (3) This subpart does not govern the disposal of the property 
described in paragraphs (b)(3)(i), (ii), and (iii) of this section. 
However, once property in

[[Page 705]]

these categories has been altered to remove the inherently sensitive 
characteristics, it may be processed through a DLA Disposition Services 
site using an appropriate FSC code for the remaining components.
    (i) Items under management control of the Defense Threat Reduction 
Agency in Federal Supply Group (FSG) 11. These items include Department 
of Energy special design and quality controlled items and all DoD items 
designed specifically for use on or with nuclear weapons. These items 
are identified by manufacturers' codes 57991, 67991, 77991, and 87991 in 
the DLA Logistics Information Service FLIS. These items will be 
processed in accordance with Air Force Instruction 21-204, ``Nuclear 
Weapons Maintenance Procedures'' (available at http://static.e-
publishing.af.mil/ production/1/ af_a4_7/ publication/ afi21-204/afi21-
204.pdf).
    (ii) Cryptologic and cryptographic materiel. This materiel must be 
processed in accordance with Committee on National Security Systems 
Instruction 4008, ``Program for the Management and Use of National 
Reserve Information Assurance Security Equipment'' (available at https:/
/www.cnss.gov/Assets/ pdf/CNSSI-4008.pdf).
    (iii) Naval Nuclear Propulsion Plant materiel. This materiel must be 
processed in accordance with Office of the Chief of Naval Operations 
Instruction (OPNAVINST) N9210.3, ``Safeguarding of Naval Nuclear 
Propulsion Information (NNPI)'' (available at http://doni.daps.dla.mil/ 
Directives/ 09000%20General %20Ship%20Design %20and%20Support/ 09-
200%20Propulsion %20Plants%20Support/ N9210.3%20(Unclas%20Portion).pdf 
and 45 Manual NAVSEA S9213-45-Man-000, ``Naval Nuclear Material 
Management Manual.''
    (c) Objectives. The objectives of the Defense Materiel Disposition 
Program are to:
    (1) Provide standardized disposition management guidance for DoD 
excess property and FEPP (including scrap) and HP, by using efficient 
internal and external processes. The expected outcome includes 
protecting national security interests, minimizing environmental 
mishaps, satisfying valid needs by extended use of property, permitting 
authorized donations, obtaining optimum monetary return to the U.S. 
Government, and minimizing abandonment or destruction (A/D) of property.
    (2) Migrate from legacy transactions with 80 record position formats 
applicable to military standard system procedures (e.g., Defense 
Logistics Manual (DLM) 4000.25-1, ``Military Standard Requisitioning and 
Issue Procedures (MILSTRIP)'' (available at

http://www2.dla.mil/j-6/ dlmso/ elibrary/ Manuals/ DLM/MILSTRIP/ 
MILSTRIP.pdf) and DLM 4000.25-2, ``Military Standard Transaction 
Reporting and Accounting Procedures (MILSTRAP)'' (available at http://
www2.dla.mil/ j-6/dlmso/ elibrary/ Manuals/DLM/ MILSTRAP/ MILSTRAP.pdf) 
to variable length DLMS transactions as described in DLM 4000.25, 
``Defense Logistics Management System (DLMS)'' (available at

http://www2.dla.mil/j-6/dlmso/ elibrary/ Manuals/DLM/ DLM_4000.25 _DLMS 
_Manual _Combined.pdf) (American National Standards Institute Accredited 
Standards Committee (ANSI ASC) X12 or equivalent XML schema) to track 
items throughout the supply chain life cycle. Implementation must be 
consistent with DoD Directive 8320.02, ``Data Sharing in a Net Centric 
Department of Defense'' (available at http://www.dtic.mil/ whs/
directives/corres/ pdf/832002p.pdf).
    (3) Ensure cost-effective disposal of precious metals bearing scrap 
and end items for the replenishment of valuable resources through the 
DoD PMRP.
    (4) Ensure personal property and related subcomponents are not 
declared excess and disposed of prior to determining the need for 
economic recovery.
    (5) Encourage Military Departments and Defense Agencies to:
    (i) Comply with the spirit and intent of Executive Order 12862, 
``Setting Customer Service Standards.''
    (ii) Set results-oriented goals, such as delivering customer value 
that results in improvement of overall Military Department performance.
    (iii) Serve the tax payer's interests by ensuring tax money is used 
wisely and by being responsive and reliable in all dealings with the 
public.
    (d) Foreign liaison. (1) Authority for granting visits by foreign 
nationals

[[Page 706]]

representing foreign governments rests with the International Programs 
Division (J-347) at DLA. Prospective official foreign visitors should 
submit requests 30 days in advance through their embassy in accordance 
with procedures in DoD Directive 5230.20, ``Visits and Assignments of 
Foreign Nationals'' (available at http://www.dtic.mil/ whs/directives/
corres/ pdf/523020p.pdf). These requests may require a security 
clearance from the host Military Department. DLA processes the requests, 
and will provide written authority to primary-level field activity 
commanders or DLA Disposition Services site chiefs. Unclassified visits 
by foreign nationals can be approved for inspections prior to acquiring 
property through security assistance programs or other programs 
authorized by statute.
    (2) A commander of a DoD activity may authorize foreign nationals 
and representatives of foreign governments or international 
organizations to visit a DLA Disposition Services site, except for those 
foreign nationals and representatives from foreign countries designated 
as restricted parties in the International Traffic in Arms Regulations 
(ITAR) in 22 CFR parts 120 through 130 and the EAR in 15 CFR parts 730 
through 774.
    (3) Visits by foreign nationals for public sales will be at the 
discretion of the host installation commander in accordance with U.S. 
export control laws and regulations, the ITAR in 22 CFR parts 120 
through 130 and the EAR in 15 CFR parts 730 through 774.
    (4) All requests for unclassified information, not previously 
approved for public release will be referred to the appropriate public 
affairs office. This includes requests submitted by representatives of 
foreign governments or representatives of international organizations.
    (5) Requests from foreign nationals or representatives from foreign 
governments of restricted parties will be referred to the appropriate 
security office.
    (6) Release of MLI technical data or CCL items technology will be in 
accordance with DoD 4100.39-M, DoD 4160.28-M Volumes 1-3, 10 U.S.C. 
2576, 22 CFR parts 120 to 130, and 15 CFR parts 730 to 774, DoD 
Instruction 2040.02, and DoD Instruction 2030.08.
    (e) Training. Personnel with Materiel Disposition Program 
responsibilities (DLA Disposition Services employees, ICP integrated 
materiel managers (IMMs), Reservists, etc.) as well as those DoD-related 
and non-DoD organizations disposing of excess, surplus, FEPP, and scrap 
through the Department of Defense, require applicable training in 
defense materiel disposition policies, procedures, and related technical 
areas such as safety, environmental protection, DEMIL, TSC, accounting 
and accountability, administration, or management of those activities. 
Required training will be accomplished according to DoD 4160.28-M 
Volumes 1-3 and DoD Instruction 2030.08, and applicable DoD, DLA, and 
Military Department training issuances. In addition to formal training, 
the DLA Disposition Services Web site (https://www.disposition 
services.dla.mil) provides guidance on various topics related to 
materiel disposition.
    (f) DoD Components. The DoD Components:
    (1) Provide administrative and logistics support, including 
appropriate facilities for the segregation of material according to the 
established ISSAs.
    (i) Establish disposal facilities at suitable locations, separate 
from host installation active stocks. These areas should permit proper 
materiel segregation and be convenient to road networks and railroad 
sidings.
    (ii) Approve all facility improvement projects. Identify in the ISSA 
reimbursable and non-reimbursable host maintenance and repair support, 
not exceeding that prescribed by regulations of the host activity.
    (iii) Fence or otherwise protect the disposal yard to ensure that 
materiel is safeguarded against theft or pilferage. Security matters 
identified in ISSAs are covered by security regulations of the DoD 
Components.
    (iv) Provide information security support to DLA Disposition 
Services field activities through ISSAs, including the retrieval, secure 
storage, and subsequent determination of the appropriate disposition of 
classified property found in disposal assets.

[[Page 707]]

    (2) Properly containerize and ensure all property turned in to DLA 
Disposition Services sites is safe to handle and non-leaking to ensure 
environmental compliance during transport to the DLA Disposition 
Services site and storage during the disposal process. Drain all fluids 
from unserviceable vehicles prior to release to disposal and treat 
fluids according to environmental requirements in accordance with the 
procedures in Enclosure 3 of DoD Manual 4160.21, Volume 4, ``Defense 
Materiel Disposition Manual: Instructions for Hazardous Property and 
Other Special Processing Materiel''.
    (3) Ensure HW storage facilities meet all applicable environmental 
standards and requirements, including 40 CFR parts 262, 264, and 265.
    (4) Provide funds for disposal of HP failing reutilization, 
transfer, donation or sale (RTDS), or if the HP is not eligible for 
RTDS, that it is disposed of on a DLA disposal service contract. Funding 
for disposal by the Military Department or Defense Agency also applies 
in instances when non-regulated waste requires special handling for 
disposal via disposal service contract, or when special services are 
requested on the disposal service contract.
    (5) Comply with the Defense DEMIL Program in accordance with DoD 
Instruction 4160.28 and DoD 4160.28-M Volumes 1-3.
    (i) Provide proper instructions for DEMIL ``F'' property to the DLA 
Disposition Services site at the time of physical turn-in or immediately 
following electronic turn-in in accordance with procedures in Enclosure 
5 of DoD Manual 4160.21, Volume 2 and Enclosure 3 of DoD Manual 4160.21, 
Volume 4 and the procedures on the Army's Integrated Logistics Support 
Center Web site https://tulsa.tacom .army.mil/DEMIL.
    (ii) Ship small arms serialized weapons and serialized parts to the 
Anniston, Alabama, DEMIL Center, as identified on the DLA Disposition 
Services Web site (https://www.disposition services.dla.mil). Contact 
the Anniston center for shipment instructions. All activities generating 
serialized weapons and serialized weapons parts must report a ``ship'' 
transaction, using the appropriate DLA Disposition Services DEMIL Center 
DoDAAC, to the DoD Small Arms/Light Weapons Serialization Program 
registry.
    (6) Implement DoD QRP, as directed by DoD Instruction 4715.4, 
``Pollution Prevention'' (available at http://www.dtic.mil/ whs/
directives/corres/ pdf/471504p.pdf). Establish QRPs to cost effectively 
divert or recover scrap or waste from the waste streams, as well as to 
identify, collect, properly segregate and maintain the integrity of 
recyclable materials in a way that will maintain or enhance their 
marketability. Indicate on the turn-in documents that QRP material is 
identified as such with funds to be deposited to the appropriate budget 
clearing account.
    (7) Implement TSC measures in accordance with DoD Instruction 
2030.08 for USML and CCL items and comply with applicable export control 
regulations and laws.
    (g) DLA Disposition Services. The DLA Disposition Services will:
    (1) Provide Military Departments and Defense Agencies with 
disposition solutions and best value support for the efficient and 
timely RTDS or disposal of excess, surplus, and FEPP property. This 
includes all required training and guidance on programs affecting 
disposition practices.
    (2) Provide visibility and promote maximum reuse of DLA Disposition 
Services-managed inventory assets. Implement transfer and donation 
policies and procedures consistent with GSA regulations.
    (3) Provide tailored disposal support to the DoD warfighter during 
contingency operations, as approved by the ASD(L&MR).
    (i) Work with the Military Departments to receive and dispose of 
property in the most efficient manner. If standard accountability 
practices are not practical, alternative processes may be established on 
a temporary basis. However, as time or conditions permit, prescribed 
processes will be established and appropriate additions, deletions, and 
adjustments to the official accountable record will be completed.
    (ii) Provide comprehensive disposal services supporting customer-
unique needs based on mutually developed service agreements. DLA 
Disposition

[[Page 708]]

Services, along with DLA, will work with customers of all levels, e.g., 
generators, major commands, and Services, to define expectations and 
establish service delivery strategies.
    (4) Use the most appropriate sales method to obtain optimum return 
on investment for all DoD surplus property sold. Respond to inquiries, 
process disputes, protests, and claims pertaining to disposable property 
sales.
    (5) Implement quality control programs for the Defense Materiel 
Disposition Program to assure optimum reutilization; proper DEMIL; use 
of environmentally sound disposal practices; implementation of TSC 
measures for MLI and CCL items.
    (6) Implement TSC in accordance with DoD Instruction 2030.08 for 
USML and CCL items and comply with applicable export control regulations 
and laws.
    (7) Monitor DLA Disposition Services site PMRP operations and 
provide support to DoD Components and participating federal agencies. 
Manage the recovery operations of the PMRP.
    (8) Prepare and distribute reports for disposition.
    (9) Serve as the office of primary responsibility for 
environmentally regulated and HP as detailed in DoD Manual 4160.21, 
Volume 4.
    (10) Comply with and implement the provisions of DoD Instruction 
4160.28, DoD 4160.28-M Volumes 1-3, and DoD Instruction 2030.08 in the 
execution of DLA Disposition Services worldwide. Coordinate procedural 
waivers or deviations for approval by the DoD DEMIL Program Office or 
DoD TSC Office in DLA-HQ (J-334). Forward policy waivers or deviations 
from the DoD DEMIL Program Office or DoD TSC Office to the USD(AT&L) or 
USD(P) respectively for approval.
    (11) Monitor property accountability and approve adjustments or 
corrections to property accounts for assigned DLA Disposition Services 
sites.
    (12) Comply with implementing guidance relative to relationships 
with Combatant Commanders as prescribed in DoD Directive 5105.22, 
``Defense Logistics Agency (DLA)'' (available at http://www.dtic.mil/ 
whs/directives/corres/ pdf/510522p.pdf).
    (13) Support disposal of Military Assistance Program property and 
other foreign-owned property in accordance with DoD 5105.38-M and Sec. 
273.7 of this subpart.
    (14) Provide reutilization, donation, and marketing assistance and 
disposal service to customers.
    (15) Maintain liaison with generating activities to determine most 
efficient method of acceptance (receipt in place vs. physical turn-in), 
determine mutually agreed-upon schedules for property receipts, and 
execute memorandums of understanding (MOUs) for receipt-in-place 
transactions.
    (16) Process excess property, surplus property, FEPP, nonsalable 
materiel, and other authorized turn-ins from generating activities.
    (17) Inspect and accumulate physical receipts of property; verify 
identity, by UII or IUID when applicable, and quantity. DLA Disposition 
Services sites need not verify quantities where units of issues are: 
lot, assortment, board foot, cubic foot, foot, inch, length, meter, 
square foot, square yard, and yard. These units of issue are impractical 
and economically unfeasible.
    (18) Establish and maintain visibility of accountable property 
records for excess, surplus, and FEPP property.
    (19) Provide or arrange adequate covered storage to protect received 
property from the elements, maintain its value and condition, and reduce 
handling. Store property to prevent contamination or mixing, ensure 
proper identification and segregation (bins or areas are prominently 
marked, labeled, tagged, or otherwise readily identifiable with the 
property locator record), and allow inspection.
    (20) Fence or otherwise protect the disposal yard to ensure materiel 
is safeguarded against theft or pilferage. DLA Disposition Services are 
generally a tenant operation on a DoD installation that generates 
disposal property. The DLA Disposition Services must comply with the 
security matters identified in ISSAs established with the DoD Component 
regarding security regulations.
    (21) Provide HW storage, as appropriate. Ensure HW storage 
facilities meet all applicable environmental

[[Page 709]]

standards and requirements, including those specified in 40 CFR part 
264.
    (22) Prepare ISSAs. Coordinate with the local installation to 
resolve matters of mutual concern.
    (23) Provide information and assistance to those who are processing 
precious metals-bearing property into DoD PMRP.
    (24) Ensure periodic inventories are conducted, accountable property 
records updated, and required inventory adjustment documents are 
prepared and processed.
    (25) Implement reutilization, transfer, or donation (RTD) of surplus 
property. Promote maximum RTD of FEPP, excess property, and surplus 
property. Process authorized RTD requests. Ensure accountable records 
are updated in accordance with DoD Instruction 5000.64.
    (26) Provide assistance to all authorized screeners, donees, and 
other interested persons.
    (27) Facilitate the sale of property not reutilized, transferred, or 
donated, and appropriate for release into commerce.
    (28) Deposit sale proceeds and other funds received, including 
storage charges and transfer monies to the appropriate accounts.
    (29) Manage the DoD scrap recycling program (including precious 
metals recovery) and related financial records.
    (30) Assist host installations in executing their QRPs in accordance 
with 10 U.S.C. 2577 and deliver sales revenues from eligible personal 
property to defray the costs incurred by operating and improving 
recycling programs, financing pollution abatement and environmental 
programs, funding energy conservation improvements, improving 
occupational, safety, and health programs, and funding morale, welfare, 
and recreation programs.
    (31) Ensure DEMIL, including small arms serialized weapons and 
serialized parts is accomplished in accordance with DoD Instruction 
4160.28 and DLA Disposition Services internal direction. Provide 
shipment locations and instructions to generating activities, as 
requested.
    (32) Document handling and receipt of serialized weapons in 
accordance with the procedures in Defense Logistics Agency Instruction 
(DLAI) 1104, ``Control of Small Arms by Serial Number'' (available at 
http://www.dla.mil/ issuances/ Documents_1/i1104.pdf) for the control of 
small arms by serial number.
    (33) Update the DoD IUID Registry upon the materiel disposition of 
uniquely identified items in accordance with the procedures in Sec. 
273.9.
    (h) ICP Manager. The ICP Manager is responsible for the materiel 
management of a group of items either for a particular Military 
Department or for the DoD as a whole. For the Defense Materiel 
Disposition Program, the ICP manager will:
    (1) Ensure managed items are properly cataloged in the FLIS, in 
accordance with DoD 4100.39-M. To prevent unauthorized disposition or 
release within DoD, other Federal civilian agencies, or release into 
commerce, include required data elements such as UII (when applicable), 
accurate codes for DEMIL, controlled inventory items, precious metals, 
shelf life items, and critical items (critical safety items (CSI) or 
flight safety critical aircraft parts), or other applicable data 
elements.
    (2) Prepare complete instructions when property is assigned DEMIL 
Code ``F,'' in accordance with life-cycle management requirements in 
Enclosure 5 of DoD 4160.28-M Volume 2. Additionally, load the 
instruction in the DoD DEMIL ``F'' Instruction repository hosted by the 
Army's Integrated Logistics Support Center Web site at https://
tulsa.tacom .army.mil/.
    (3) Review DLA Disposition Services assets and orders, as 
appropriate, prior to initiating new purchases.
    (4) Process other ICP interrogations or orders for requirements 
assigned a UMMIPS priority designator:
    (i) Falling within Issue Priority Group 1 (Priorities 01-03).
    (ii) In accordance with the procedures in DLM 4000.25-1.
    (iii) Considering on-hand assets to the same extent as would be done 
to satisfy their own service orders.
    (5) Prepare data, records for accountability, and provide 
disposition recommendations as prescribed here and in DoD Instruction 
5000.64 in order to

[[Page 710]]

maintain backup material for audit review.
    (6) Annually provide DLA Disposition Services with updates to points 
of contact on the DoD DEMIL program Web site https://demil.osd.mil/ for 
operational matters, such as reutilization, donation, DEMIL, precious 
metals, HP, and CSIs.
    (7) Arrange for DEMIL of those items not authorized for DLA 
Disposition Services site DEMIL processing.
    (8) Submit available technical data needed to prepare specialized 
offers and reclamation requirements, when requested.
    (9) Identify items requiring reclamation and advise Military 
Department and Defense Agency ICPs or IMMs of items with reclamation 
potential.
    (10) Prepare and forward reclamation transactions for the 
interservice interchange of data for component parts with reclamation 
potential.
    (11) Process reclamation notifications and data interchange 
transactions of other ICPs.



Sec. 273.7  Excess DoD property and scrap disposal processing.

    (a) General. (1) Military Departments and Defense Agencies will 
declare DoD property excess and use the DoD in-transit control system 
(ICS) as required by DoD Instruction 5000.64 and DLM 4000.25-2.
    (2) Generating activities are encouraged to retain physical custody 
until disposition instructions are provided to reduce processing costs; 
e.g., packaging, crating, handling, and transportation (PCH&T).
    (3) Disposal of wholesale excess DoD property CONUS stocks from DLA 
Depot recycling control points (RCPs) is automated. This property does 
not require transport to a DLA Disposition Services site. Authorized 
excess DoD property is transferred between the RCP account and the DLA 
Disposition Services account (SC4402). The following FSGs, FSCs, SCCs, 
and DEMIL codes are ineligible for RCP:
    (i) FSGs: 10, 11, 12, 13, 14, 18, 26, 68, 80, 87, 88, 89, 91 and 94.
    (ii) FSCs: 2350, 3690, 4470, 4920, 4927, 6505, 6508, 6750, and 8120.
    (iii) SCCs: H.
    (iv) DEMIL Codes: G and P.
    (b) Property and scrap accepted and excluded. (1) DLA Disposition 
Services must accept and dispose of all authorized DoD-generated excess, 
surplus, FEPP, scrap, and other personal property with the exclusions in 
paragraph (e) of this section.
    (2) Property not disposed of through RTDS will be processed for 
disposal under an HW contract, except as specified elsewhere. For 
example, HP will be processed on HW disposal service contracts. Other 
property will be downgraded to scrap, demilitarized, processed for A/D, 
or disposed of through a DLA Disposition Services service contract.
    (3) DLA Disposition Services sites minimize processing delays as 
much as possible. In the event a site is unable to physically accept the 
property at the desired time and location due to workload, generating 
activities may retain the property for processing in-place, seek another 
DLA Disposition Services site, or hold the property until the DLA 
Disposition Services site is able to receive the property.
    (4) DLA Disposition Services sites:
    (i) Accept and process nonsalable materiel that has no 
reutilization, transfer, donation, or sale value but is not otherwise 
restricted from disposal by U.S. law or Federal or military regulations.
    (ii) Ensure that disposition is by the most economical and practical 
method; for example, donation in lieu of A/D or through a service 
contract that meets minimum legal requirements for disposal of the 
specific types of property.
    (5) DLA Disposition Services sites may not accept (either physically 
or on its account) and no reutilization or sale service will be given 
for:
    (i) Radioactive waste, items, devices, or materiel (all materiel 
that is radioactive).
    (ii) Property designated for disposal by the Military Departments as 
identified in DoD Manual 4160.21, Volume 4.
    (iii) Classified material, except that which is addressed by 
paragraph (b)(5)(v) of this section.
    (iv) Nuclear weapons-related materiel.
    (v) Classified and unclassified information systems security 
material

[[Page 711]]

(cryptological (CRYPTO) or communications security (COMSEC)). Disposal 
of FSCs 5810 and 5811 are the responsibility of the Military Departments 
and may not be transferred to DLA Disposition Services in their original 
configuration as specified in DoD 4160.28-M Volumes 1-3.
    (vi) Property containing information covered by 5 U.S.C. 552a, also 
known as the Privacy Act of 1974.
    (6) DoD Components will manage the collection and disposal of 
installation refuse and trash. If refuse and trash, when properly 
segregated, possesses RTDS potential, disposition may be accomplished 
via DLA Disposition Services, recycling provisions of refuse collection 
contracts, in-house refuse operations, or QRPs as appropriate.
    (7) The DLA Disposition Services site operating as a tenant on an 
installation will notify the host activity when unauthorized shipments 
are received at the DLA Disposition Services site (including off-site 
shipments) of radioactive items, classified material, nuclear weapons-
related materiel, and classified and unclassified information systems 
security material (CRYPTO/COMSEC). The host activity will be responsible 
for retrieving and securing any radioactive items, classified items and 
unclassified information systems security material (CRYPTO/COMSEC) 
immediately upon request of the DLA Disposition Services site.
    (8) DLA Disposition Services sites will not accept scrap 
accumulations that are contaminated or commingled with:
    (i) MPPEH.
    (ii) MLI that require DEMIL (DEMIL Codes C, D, E and F) and MLI that 
require mutilation (DEMIL Code B). MLI with DEMIL Code G and P are not 
authorized for acceptance by DLA Disposition Services in their original 
state.
    (iii) CCL items that have not undergone mutilation to the point of 
scrap as defined in DoD Instruction 2030.08.
    (iv) HP FSCs.
    (9) Contaminated scrap should be turned in as HW.
    (c) Scrap segregation and identification. (1) Separating material at 
the source simplifies scrap segregation and reduces handling. 
Commingling material may reduce or, in some instances, destroy the value 
of the scrap.
    (2) Generating activities are responsible for initial identification 
and segregation. The major basic material or content will be used in the 
item nomenclature block of the DTID.
    (3) Scrap will be segregated to ensure only authorized items are in 
a scrap pile.
    (4) DLA Disposition Services sites will provide guidance and, where 
possible, containers for use by scrap generators at the source.
    (5) The generating activity collecting the scrap or waste will 
maintain proper segregation of the material and determine a point at 
which no further material will be added. When scrap piles are being 
built by the DLA Disposition Services site, the same principles apply. 
Scrap generated from explosive and incendiary items and chemical 
ammunition is dangerous and will not be commingled with other types of 
property.
    (d) Documentation for disposal through DLA Disposition Services. (1) 
Use DoD automated information systems to the extent practical to prepare 
documentation for excess, surplus, or scrap DoD property or FEPP. This 
method of submitting information is preferred, particularly for turn-in 
of HW. In addition to submitting the information through automated 
information systems, hard copies must be produced and maintained with 
the items during the disposal processes.
    (2) The generator will provide to the DLA Disposition Services site 
an original and three hard copies of a DD Form 1348-1A, ``Issue Release/
Receipt Document,'' or DD Form 1348-2, ``Issue Release/Receipt Document 
with Address Label'' (available at http://www.dtic.mil/ whs/directives/
infomgt/ forms/formsprogram.htm.) The DTID must include a valid DoDAAC 
as authorized in Volume 6 of DLM 4000.25, ``Department of Defense 
Activity Address Code (DoDAAC) Directory (Activity Address Code 
Sequence)'' (available at http://www2.dla.mil/ j-6/dlmso/ elibrary/
Manuals/ DLM/V6/Volume6.pdf). All further references to DD Form 1348-1A, 
which also include DD Form 1348-2, will be referred to in this subpart 
as a DTID.

[[Page 712]]

Table 1 of this section provides guidance on preparation of the DD Form 
1348 series documents. For scrap transfers, see paragraph (f) of this 
section.

 Table 1--Transfers of Usable Property to DLA Disposition Services Sites
          (Single Line Item Turn Ins) Using DD Forms 1348-1A/2
------------------------------------------------------------------------
                                                         Entry and
         Field legend            Record position        instructions
------------------------------------------------------------------------
Document Identifier (DI)......  1-3..............  A5J/940R. Use
                                                    information on the
                                                    source document to
                                                    perpetuate the
                                                    archived DI. For
                                                    locally determined
                                                    excesses generated
                                                    at a base, post,
                                                    camp, or station,
                                                    assign a DI code as
                                                    determined by
                                                    shipping activity
                                                    procedures.
Routing Identifier............  4-6..............  Enter the record
                                                    indicator (RI) of
                                                    the shipping
                                                    activity or leave
                                                    blank when the
                                                    shipping activity is
                                                    not assigned an RI.
Media and Status..............  7................  Leave blank.
Stock or Part Number..........  8-22.............  See block 25.
Unit of Issue.................  23-24............  Enter the unit of
                                                    issue of the stock
                                                    or part number being
                                                    turned in.
Disposal Quantity.............  25-29............  Enter the quantity
                                                    being turned in to
                                                    disposal activity.
                                                    See block 26.
Document Number...............  30-43............  See block 24.
Alpha Suffix..................  44...............  Leave blank
                                                    (Exception: Use if
                                                    DTID consists of
                                                    multiple documents
                                                    because the 5-digit
                                                    quantity field
                                                    (Record Positions 24-
                                                    29) is
                                                    insufficient.) See
                                                    block 24.
Supplementary Address.........  45-50............  Enter DoDAAC of
                                                    predesignated
                                                    consignee DLA
                                                    Disposition Services
                                                    Site.
------------------------------------------------------------------------
A DoDAAC is the key component for using the DLA Disposition Services
 property accounting disposal system to either turn in or order excess
 property to and from DLA Disposition Services. The code is required for
 all DoD activities, contractors, and FCAs to order, receive, ship,
 identify custody of government property, or reflect identification in a
 specified military standard logistics system. The code must be approved
 by the Military Departments, Defense Agencies, and FCA authoritative
 organization and be officially registered in the DoD activity address
 file. The DoDAAC system provides identification codes, plain text
 addresses, and selected data characteristics of organizational
 activities needed to order, mark, prepare shipping documents, bills,
 etc., and only recognizes active DoDAACs. FCAs are only authorized to
 turn excess property in to DLA Disposition Services for disposal if
 they have officially authorized an Economy Act Order for reimbursement
 of transaction billing charges..
------------------------------------------------------------------------
Signal........................  51...............  This code is used to
                                                    designate the bill-
                                                    to and ship-to (or
                                                    ship-from in the
                                                    case of DI code
                                                    FT_and FD_records)
                                                    activities. Codes B,
                                                    C, and L apply to HM/
                                                    HW transfers.
Fund..........................  52-53............  For HM and waste turn-
                                                    ins, enter the fund
                                                    code from Military
                                                    Standard Billing
                                                    System (MILSBILLS)
                                                    designating the
                                                    funds to be charged.
                                                    For non-military
                                                    activities who are
                                                    not users of
                                                    MILSBILLS, (e.g.,
                                                    FCAs or NAFs) using
                                                    an activity address
                                                    code), enter ``XP.''
Distribution..................  54...............  Use the information
                                                    on the source
                                                    document to
                                                    perpetuate the
                                                    archived data or
                                                    leave blank.
Retention Quantity............  55-61............  Enter the quantity to
                                                    be retained in
                                                    inventory or leave
                                                    quantity blank.
Precious Metals...............  62...............  Enter applicable code
                                                    from Appendix AP2.23
                                                    of DLM 4000.25-1.
Automated Data Processing       63...............  Enter applicable code
 Equipment Identification.                          from AP2.24 of DLM
                                                    4000.25-1.
Disposal Authority............  64...............  Enter applicable code
                                                    from DLM 4000.25-1
                                                    Appendix AP2.21.
                                                    (Mandatory) (FCAs
                                                    use DAC ``F''--not
                                                    shown in appendix.)
Demilitarization Code.........  65...............  Enter the Web-Enabled
                                                    FLIS or Federal
                                                    Logistics Data
                                                    (FEDLOG) recorded
                                                    DEMIL code of
                                                    record. For LSNs,
                                                    Navy item control
                                                    numbers, or Army
                                                    control numbers
                                                    assign DEMIL code in
                                                    accordance with
                                                    current Volume 2 of
                                                    DoD 4160.28-M
                                                    (Mandatory).
Reclamation...................  66...............  Enter code ``Y'' if
                                                    reclamation was
                                                    performed prior to
                                                    release to a DLA
                                                    Disposition Services
                                                    site. Enter ``R'' if
                                                    reclamation is to be
                                                    performed after turn
                                                    in to DLA
                                                    Disposition Services
                                                    site. Enter code
                                                    ``N'' if reclamation
                                                    is not required.
Routing Identifier............  67-69............  Generate from
                                                    disposal release
                                                    order.
Identifier Ownership..........  70...............  Enter applicable code
                                                    or leave blank.
SCC...........................  71...............  Enter applicable code
                                                    from DLM 4000.25-2.
Management....................  72...............  Enter information
                                                    from source document
                                                    to perpetuate
                                                    archived data or
                                                    leave blank. If
                                                    block 71 (SCC) is Q
                                                    and the management
                                                    code is blank, DLA
                                                    Disposition Services
                                                    will mutilate the
                                                    property upon
                                                    receipt.

[[Page 713]]

 
Criticality Code..............  73...............  Enter criticality
                                                    code documented in
                                                    FLIS for the items
                                                    in accordance with
                                                    DoD 4100.39-M which
                                                    indicates when an
                                                    item is technically
                                                    critical, by reason
                                                    of tolerance, fit,
                                                    application, nuclear
                                                    hardness properties,
                                                    or other
                                                    characteristics that
                                                    affects the
                                                    identification of
                                                    the item.
Unit Price....................  74-80............  Enter the unit price
                                                    for the NSN or part
                                                    number in record
                                                    positions 8-22.
------------------------------------------------------------------------
         Block Entries
------------------------------------------------------------------------
1.............................  Enter the extended value of the
                                 transaction.
2.............................  Enter the shipping point identified by
                                 DoDAAC; if reduced printing is used,
                                 the clear address may be entered in
                                 addition to the DoDAAC.
3.............................  Enter the consignee DLA Disposition
                                 Services site by DoDAAC. This will be
                                 the predesignated DLA Disposition
                                 Services site and will be entered by
                                 the shipping activity; if reduced
                                 printing is used, the in the clear
                                 address may be entered in addition to
                                 the DoDAAC.
4.............................  Insert HM or HW, if applicable.
5.............................  Enter the date of document preparation,
                                 if required by the shipper.
6.............................  Enter the national motor freight
                                 classification, if required by the
                                 shipper.
7.............................  Enter the freight rate, if required by
                                 the shipper.
8.............................  Enter coded cargo data, if required by
                                 the shipper.
9.............................  Enter applicable controlled inventory
                                 item code (CIIC), which describes the
                                 security or pilferage classification of
                                 the shipment from DoD 4100.39-M.
10............................  Enter the quantity actually received by
                                 the DLA Disposition Services site, if
                                 different from positions 25-29.
11............................  Enter the number of units of issue in a
                                 package, if required by the shipper.
12............................  Enter the unit weight applicable to the
                                 unit of issue, if required by the
                                 shipper.
13............................  Enter the unit cube applicable to the
                                 unit of issue, if required by the
                                 shipper.
14............................  Enter the uniform freight
                                 classification, if required by the
                                 shipper.
15............................  Enter the FLIS or FEDLOG recorded shelf-
                                 life code in block 15, if appropriate;
                                 otherwise, leave blank.
16............................  Enter in the clear freight
                                 classification nomenclature, if
                                 required by the shipper.
17............................  Enter the item nomenclature. For non-NSN
                                 items, enter as much descriptive
                                 information as possible. Specified
                                 additive data or certification from the
                                 generating source for specific types of
                                 property should be entered.
18............................  Enter type of container, if required by
                                 the shipper.
19............................  Enter number of containers that makes up
                                 the shipment, if required by the
                                 shipper.
20............................  Enter total weight of shipment, if
                                 required by the shipper.
21............................  Enter total cube of shipment, if
                                 required by the shipper.
22............................  Received by (for DLA Disposition
                                 Services site) signature of person
                                 receiving the materiel.
23............................  Date received (for DLA Disposition
                                 Services site) date materiel was
                                 received and signed for.
24............................  Document number. Generate from source
                                 document. DTID consists of 6-digit
                                 DoDAAC + 1-digit last number of year, 3-
                                 digit Julian Date + 4-digit generator-
                                 assigned serial number. This cannot be
                                 the same document number that was used
                                 to receive the materiel. For locally
                                 determined excesses generated at base,
                                 post, camp, or station, assign a
                                 document number as determined by
                                 Service or agency procedures. Leave
                                 suffix code blank unless needed to
                                 indicate additional documents to show
                                 complete quantity. Generating
                                 activities and ordering activities and
                                 their contractors must have a valid
                                 DoDAAC, as defined in DoD 5105.38-M to
                                 use DLA Disposition Services.
25............................  NSN--Enter the stock or part number
                                 being turned-in. For subsistence items,
                                 enter the type of pack in record
                                 position 21. If an NSN is not used,
                                 FSC, part number, noun or nomenclature,
                                 where appropriate, to build an LSN.
26............................  Leave blank. Reserved for DLA
                                 Disposition Services Site use.
27............................  This block may contain additional data
                                 including bar coding for internal DLA
                                 Disposition Services use, generator
                                 certifications (e.g., inert
                                 certificate) or fund citation, FSCAP
                                 criticality code, etc. Enter data in
                                 this block as required by the shipping
                                 activity or the DLA Disposition
                                 Services Site receiving the materiel.
                                 When data is entered in this block, it
                                 will be clearly identified. For HM and
                                 waste turn ins, enter the DoDAAC of the
                                 bill to office, the contract line item
                                 number (CLIN) for the item, and the
                                 total cost of the disposal, (that is,
                                 CLIN cost times quantity in pounds
                                 equals cost of disposal).
------------------------------------------------------------------------

    (3) Generating activities may use the DLA Disposition Services web-
based program electronic turn-in document (ETID) for submitting the 
required information electronically. ETID accommodates generators that 
do not have service-unique automated capabilities. ETID access and 
guidance are located on the DLA Disposition Services Web site. 
Generating activities requiring

[[Page 714]]

ETID access must apply for a user ID and password.
    (4) In addition to the data required by DLM 4000.25-1, the DTID must 
clearly indicate:
    (i) The reimbursable category (such as foreign purchased, NAF, FCA), 
including the reimbursement fund citation, or an appropriate indicator 
that reimbursement is required (e.g., purchased with NAF or Disposal 
Authority Code ``F'' for FCAs). DTIDs without reimbursement data will be 
processed as non-reimbursable.
    (ii) The value and a list of component parts removed from major end 
items or a copy of the limited technical inspection showing the nature 
and extent of repair required.
    (iii) One of the SCCs listed in DLM 4000.25-2 as determined by the 
generator.
    (5) DoD Components will turn in usable property with line item 
designations.
    (i) To the extent possible, usable property will be turned in as 
individual line items with their assigned and valid NSN and UII (when 
applicable). Exceptions include property turned in as generator 
batchlots (see criteria in paragraph (g)(5)(ii) of this section); 
furniture turned in as a group on a single form; and locally purchased 
property without an NSN.
    (ii) Property may be turned in without a valid NSN when the materiel 
cannot be identified to a valid NSN in FEDLOG (e.g., locally purchased 
property). Prior to assigning an LSN, generating activities will match 
the part number or bar code number from the property against the DLA 
Logistics Information Service Universal Directory of Commercial Items 
Cross Reference Inquiry.
    (iii) Generating activities will assign an LSN if a part number or 
barcode is not available; the property is lost, abandoned, or unclaimed 
privately owned personal property; or the property is confiscated or 
captured enemy materiel. In Block 25 of the DTID, annotate the FSC, NATO 
codification bureau code, if available, and identify the noun, 
nomenclature, or part number.
    (iv) Due to national security concerns, the FSCs listed in Table 2 
of this section that are clearly MLI or CCL items require a higher 
degree of documentation. When these items are not assigned an NSN, the 
DTID must include the appropriate FSC; the valid part number and 
manufacturer's name; nomenclature that accurately describes the item; 
the end item application; and a clear text statement explaining why the 
NSN is not included (e.g., locally purchased item, found on post, lost, 
abandoned, privately owned property). This information may be annotated 
directly on the DTID or securely attached to the DTID.

      Table 2--Federal Stock Classes Requiring Turn-In By Valid NSN
------------------------------------------------------------------------
 
------------------------------------------------------------------------
GROUP 10              GROUP 23                  GROUP 58
ALL FSCs              FSC 2305                  FSC 5810 \2\
                      FSC 2355                  FSC 5811 \2\
GROUP 11              MLI or CCL items 2350     FSC 5820
ALL FSCs              ........................  FSC 5821
                      GROUP 28                  FSC 5825
GROUP 12              FSC 2840                  FSC 5826
ALL FSCs              FSC 2845                  FSC 5840
                                                FSC 5841
GROUP 13              GROUP 29                  FSC 5845
ALL FSCs              FSC 2915                  FSC 5846
                                                FSC 5850
GROUP 14              GROUP 36                  FSC 5855
ALL FSCs              FSC 3690                  FSC 5860
 
GROUP 15              GROUP 42                  GROUP 59
FSC 1560              FSC 4230                  FSC 5963
                                                FSC 5985
GROUP 16              GROUP 44                  FSC 5998
FSC 1670              FSC 4470\1\               FSC 5999
 
GROUP 17              GROUP 49                  GROUP 66
FSC 1710              FSC 4921                  FSC 6615
FSC 1720              FSC 4923
                      FSC 4925                  GROUP 69
GROUP 18              FSC 4927                  FSC 6920
FSC 1810              FSC 4931                  FSC 6930
FSC 1820              FSC 4933                  FSC 6940
FSC 1830              FSC 4935
FSC 1840              FSC 4960                  GROUP 84
                                                FSC 8470
GROUP 19              ........................  FSC 8475
FSC 1905              ........................
------------------------------------------------------------------------
\1\ Disposal of originally configured Navy assigned FSC 4470 items is
  the responsibility of the U.S. Navy.
\2\ Disposal of FSC 5810/5811 equipment with a CIIC of 9 and that is
  classified (CIICs D, E, and F) or designated CCI is the responsibility
  of the owning Military Department and will not be received by DLA
  Disposition Services sites in its original configuration.

    (v) The DTID for any property turned in by LSN without an assigned 
DEMIL code must include a required clear text DEMIL statement, based on 
information in DoD 4160.28-M Volumes 1-3.

[[Page 715]]

Generating activities may request assistance of a DLA Disposition 
Services site, DLA, or the integrated manager for the FSC to determine 
the appropriate statement. DLA Disposition Services sites will assist 
generating activities in developing the clear text DEMIL statement and 
assignment of the appropriate DEMIL code. If assistance is not requested 
or not used, DLA Disposition Services sites may reject the turn-in of 
materiel which does not meet established criteria.
    (6) Scrap DTIDs will include:
    (i) DI code.
    (ii) Unit of issue (pounds or kilograms).
    (iii) Quantity (total weight (estimated or actual)).
    (iv) DTID number.
    (v) Precious metals indicator code.
    (vi) Disposal authority code.
    (vii) Basic material content (Block 17).
    (viii) Reimbursement data, if applicable.
    (7) For HP documentation, see DoD Manual 4160.21, Volume 4.
    (8) The generating activities will complete documentation for in-
transit control of property (excluding scrap (SCC S)), waste, NAF, lost, 
abandoned, or unclaimed, privately owned, and FCA property) in 
accordance with DoD 4160.28-M Volume 3, for shipments or transfers to 
DLA Disposition Services sites of property with a total acquisition 
value of $800 or greater and all property designated as pilferable or 
sensitive identified by an NSN or part number. The ICS document tracks 
property from the time of release by generating activity (regardless 
whether the property is shipped to the DLA Disposition Services site or 
retained by the generating activity) until the DLA Disposition Services 
site accepts accountability. The generating activities will update the 
records to reflect the change in accountability and custody.
    (9) DoD Components will identify defective items, parts, and 
components containing latent defects.
    (i) General information--(A) Category 1 (CAT 1) defective or 
counterfeit property. (1) Is identified as military or Federal 
Government specification property intended for use in safety critical 
areas of systems, as determined by the user and reported to the item 
manager.
    (2) Does not meet commercial specifications.
    (3) If used, would create a public health or safety concern; RTDS as 
usable property is prohibited.
    (4) Must be mutilated by the generating activity according to 
specific instructions provided by the item manager.
    (B) Category 2 (CAT 2) defective property. (1) Does not meet 
military or Federal Government specifications, but may meet commercial 
specifications.
    (2) Cannot be used for its intended military purpose and must not be 
redistributed within the Department of Defense, as directed by the item 
manager.
    (3) May be used for commercial purposes and may be transferred, 
donated, or sold as usable property.
    (4) If sold, requires special terms and conditions warning 
purchasers that the property is CAT 2 defective and is not acceptable 
for resale back to the Department of Defense.
    (ii) ICP requirements. (A) ICPs will list defective property with 
the Government-Industry Data Exchange Program (GIDEP). GIDEP is located 
at http://www.gidep.org/.
    (B) The DLA Disposition Services Safe Alert or Latent Defect (SALD) 
program contains additional disposal processing information for 
defective property and can be viewed at http://www.disposition 
services.dla.mil/.
    (iii) Sales requirements. (A) If the property has been rejected as 
defective due to non-conformance with U.S. Government specifications, it 
may be authorized for sale with a statement as to the specific reason 
for its rejection. DLA Disposition Services will ensure that U.S. 
Government identification, such as contract numbers, specification 
numbers, NSN, and any other printing that would identify the item with 
the U.S. Government is removed or obliterated. A statement to this 
effect will be included in the sales offering, as a condition of sale. 
Terms or conditions in sale offerings will warn purchasers that the 
property is CAT 2 defective and is not acceptable for resale to the 
Department of Defense.

[[Page 716]]

    (B) Return copies of the DTID from the DLA Disposition Services 
site. Unless generating activities provide written notification to DLA 
Disposition Services sites that electronic receipt confirmations are 
acceptable, DLA Disposition Services sites will provide final receipt 
documentation for each DTID. Generating activities can use the DLA 
Disposition Services property accounting system to query transactions 
status.
    (e) Property custody determinations--(1) Physical custody retention. 
(i) Generating activities should consider retaining physical custody of 
property declared as excess to reduce handling and preclude 
transportation costs.
    (ii) An MOU will be established between the servicing DLA 
Disposition Services site and the generating activity. Custodial and 
accountability responsibilities will be identified in the MOU. DLA 
Disposition Services sites will not take accountability until the MOU is 
executed and signed at the approval levels identified in the MOU.
    (iii) Inspection(s) will be completed by the DLA Disposition 
Services site, where appropriate. If not accomplished by the DLA 
Disposition Services site, a mutually agreeable disposal condition code 
will be assigned.
    (iv) Generating activities are responsible for all expenses incurred 
before acceptance of accountability by a DLA Disposition Services site. 
At the point of DLA Disposition Services accountability acceptance (not 
in conditional acceptance time frame as described in paragraph (g)(2) of 
this section), expenses (e.g., PCH&T of non-hazardous excess, surplus, 
and FEPP) are borne by DLA Disposition Services. Exceptions may be 
negotiated by a DoD Component or federal agency representative at a 
level commensurate with DLA Disposition Services Director (Senior 
Executive Service level).
    (v) The DLA Disposition Services site will provide barcode labels to 
the generating activity to affix on the property. The labels will 
contain the DTID number, DEMIL code, and federal condition code. The 
label will be positioned to clearly indicate that the property 
accountability has passed to DLA Disposition Services (e.g., ``on DLA 
Disposition Services Site Inventory''). Property should be consolidated 
and protected in a designated area. The activity with physical custody 
is responsible for the property's care and protection until it is 
disposed of or moved to a DLA Disposition Services site.
    (2) Turn-ins. When the generating activity decides to transport 
property to the DLA Disposition Services site, the care and custody of 
the property will be borne by the DLA Disposition Services site at the 
point of physical receipt.
    (f) Transferring usable property and scrap to a DLA Disposition 
Services site. (1) Generating activities will comply with this part, DLM 
4000.25-1, and their Service or agency retention and disposal policies 
and procedures when preparing property for transfer for disposal. The 
generating service will maintain accountable records of accountable 
property, in accordance with DoD Instruction 5000.64, until formally 
relieved of accountability by DLA Disposition Services.
    (2) Generating activities will schedule all transfers (receipt in-
place or physical) through advanced notification (i.e., use of a listing 
or automated DTIDs.)
    (3) Usable property will, to the extent possible, be transferred as 
individual line items with their assigned valid NSN and UII (when 
applicable). Exceptions include property turned in as generator 
batchlots, furniture turned in as a group on a ``tally-in'' form, and 
locally purchased property without an NSN.
    (4) Scrap, properly identified with supply class by basic material 
content and segregated, must be transferred to a DLA Disposition 
Services site using a DTID.
    (5) If the deficiency prohibits further DoD use, the materiel will 
remain in SCC Q, and owners will direct transfer of the materiel to DLA 
Disposition Services sites following the guidance in paragraph (d)(9) of 
this section. Improperly documented, unauthorized source, defective, 
non-repairable, and time-expired aviation CSI/FSCAP materiel that is not 
mutilated by the holding activity will be directed to the DLA 
Disposition Services site in SCC Q

[[Page 717]]

with management code S. All such materiel will be mutilated. The ICP/IMM 
should identify to the DLA Disposition Services any unique instructions 
for disposal requiring specific methods or information regarding 
hazardous material, waste, or property contained in the item. When 
transferring such aviation CSI/FSCAP to a DLA Disposition Services site, 
the generating activity DTID must clearly state in block 17 that the 
part is defective, non-reparable, time-expired, or otherwise deficient 
and that mutilation is required.
    (6) Property capable of spilling or leaking may not be transferred 
to a DLA Disposition Services site in open, broken, or leaking 
containers. All property will be non-leaking and safe to handle.
    (7) For physical transfers, generating activities will be 
responsible for movement of the property or scrap to the nearest DLA 
Disposition Services location.
    (8) DEMIL instructions are to be provided by the ICP or IMM. DEMIL F 
items must have a valid and verifiable NSN. LSNs with DEMIL F are not 
valid. DLA Disposition Services sites will not accept DEMIL F property 
without the proper instructions.
    (9) DTIDs that do not meet the requirements in paragraph (e) of this 
section will be rejected and returned to the Military Departments.
    (10) To obtain DEMIL F instructions, please visit the Army's 
Integrated Logistics Support Center Web site at https://tulsa.tacom 
.army.mil/DEMIL.
    (g) Receipt of property and scrap--(1) During transfer. (i) DLA 
Disposition Services sites are responsible for ensuring proper receipt, 
classification, processing, safeguarding, storing, and subsequent 
shipping of all property and scrap. This includes property to be 
accounted for as items and properly segregated scrap and waste with RTDS 
value, and materiel destined for disposal.
    (ii) DLA Disposition Services sites will assist, when requested, in 
tracing property when an in-transit control follow-up has been received 
by the generating or shipping activity.
    (iii) DLA Disposition Services sites will maintain close liaison 
with generating activities to ensure:
    (A) Informational guidance on disposal transfers is given to 
generating activities.
    (B) A DLA Disposition Services site's receiving capability and the 
volume of property to be transferred is taken into consideration for 
turn-in scheduling. Property inspections will be performed in-place if 
more advantageous due to the characteristics of the property, as 
determined by DLA Disposition Services.
    (C) Assistance is provided to generating activities, as needed, to 
assure proper segregation of scrap and HW material before transfer. If 
the weight generated, market conditions, or local trade practices 
warrant, further scrap segregation will be made.
    (D) All property (except unsalable materiel that is precluded from 
sale by law), including scrap and refuse or trash with a RTDS value, is 
processed as set forth in this part and will not be disposed of by 
dumping in landfills. If the DLA Disposition Services site has knowledge 
of salable materiel being dumped in a sanitary fill, the DLA Disposition 
Services site chief will notify the installation commander regarding the 
matter.
    (E) Property received is protected to prevent damage from 
unnecessary exposure to the elements. Property transferred as condemned 
may still be usable, and its preservation may benefit the Defense 
Materiel Disposal Program.
    (1) Instances of improper handling of government property will be 
brought to the attention of the generating activity or installation 
commander for remedial action.
    (2) Recurrent instances of improper care or handling will be 
documented for referral to DLA and the disposal focal points of the 
Military Departments and Defense Agencies.
    (iv) The generating activity will assure all property and scrap is 
properly identified, including special handling requirements, and that 
automated information system or manually prepared documentation contains 
the required number of copies and appropriate information for property 
received in place or physically accepted.
    (A) To the maximum extent possible, DLA Disposition Services sites 
will

[[Page 718]]

validate items during pre-receipt processes with documentation 
preparation and receipt processes with the physical transfer of the 
property.
    (1) The generator's representative (if present) should assist with 
validation. Whether received in place or at a DLA Disposition Services 
site, a receipt copy of the DTID will be provided to the generator's 
representative at that time.
    (2) If the turn-in is not accompanied by the generator's 
representative, the official receipt documentation will be provided in 
the most efficient method available; e.g., through an electronic listing 
of items received, an actual copy of an annotated DTID or an electronic 
return of an annotated DTID through a web based document management 
system.
    (3) For turn-ins accompanied by a generator representative, a 
conditional receipt copy will be provided at the time of delivery. DLA 
Disposition Services sites will initial in block 22 and date block 23 of 
the DTID. This copy constitutes conditional acceptance and becomes the 
official receipt unless property is rejected on a supply discrepancy 
report within 15 workdays.
    (B) Validation will consist of verifying property description and 
quantity, and assuring an authorized and appropriate SCC was assigned by 
the generating activity. DLA Disposition Services sites and generating 
activities will work together to validate and verify requirements and 
obtain appropriate certifications, etc., when property is received in 
place versus physically transported to a DLA Disposition Services site. 
The MOU, discussed in Sec. 273.6, will be used for securing and 
documenting these requirements.
    (C) DLA Disposition Services site personnel may exercise 
discretionary authority to change and challenge SCCs (except for items 
in SCC Q, which will be downgraded to scrap and mutilated).
    (D) For items in the general hardware, clothing, tools, furniture, 
and other nontechnical FSCs, DLA Disposition Services sites are 
authorized to use their best knowledge, judgment, and discretion to 
change and assign the appropriate SCC when determined, through physical 
inspection and examination, or where an obvious error in condition 
coding exists. DLA Disposition Services sites are responsible for any 
SCC changes they make and will document the change on the DTID.
    (E) For specialized items such as avionics, or items that require 
test, measurement, or diagnostic to determine serviceability, DLA 
Disposition Services site should challenge the generating activity SCC 
assignment if it appears incorrect. Items in original pack and unopened 
containers that are coded condemned or unserviceable should be viewed 
with guarded skepticism and challenged back to the generating activity.
    (v) Appropriate actions will be taken for discrepancies detected 
during pre-receipt or receipt:
    (A) If property is to be physically received and the generating 
activity's representative is present, accountability and physical 
custody of the property will normally remain with the generator until 
reconciled. DLA Disposition Services sites, at their discretion, may 
retain physical custody until reconciled.
    (B) Discrepancies noted during the receiving process, which may be 
discovered after electronic or hard copy documentation is received, will 
be processed in accordance with DLAI 4140.55/AR 735-11-2/Secretary of 
the Navy Instruction (SECNAVINST) 4355.18A/Air Force Joint Manual (AFJM) 
23-215, ``Reporting of Supply Discrepancies'' (available at http://
www.dla.mil/ issuances/ Documents_1/i4140.55%20(Joint%20Pub%20-%206%20 
Aug%202001).pdf.
    (C) DLA Disposition Services will barcode the property for 
identification purposes. Barcoding should include use of any UII or IUID 
in place when applicable.
    (2) Conditional and accountable acceptance distinction. Conditional 
and accountable acceptances are separate actions.
    (i) Conditional acceptance occurs when a generating activity 
representative accompanies a transfer. DLA Disposition Services sites 
will provide a conditional receipt copy at time of

[[Page 719]]

physical delivery. Conditional acceptance becomes official and final 
acceptance receipt unless property is officially rejected by the DLA 
Disposition Services site within 15 workdays.
    (ii) Accountable acceptance becomes final when verification of 
accurate property description, valid condition code assignment, correct 
quantity, and UII (when applicable) is completed by the DLA Disposition 
Services site. Physical inspections will be conducted, as appropriate.
    (iii) During the conditional acceptance processing, if the property 
is physically transferred to the DLA Disposition Services site and an 
inventory discrepancy surfaces, the DLA Disposition Services site will 
research and provide a report of the lost, damaged, or destroyed 
property in accordance with procedures in DoD 7000.14-R Volume 12, 
Chapter 7. If the property remains at the generating activity site for 
receipt-in-place and an inventory discrepancy surfaces, the generating 
activity will research and provide a report of the lost, damaged, or 
destroyed property in accordance with procedures in DoD 7000.14-R Volume 
12, Chapter 7. The accountable organization will amend the accountable 
property records as appropriate upon completion of the property loss 
investigation.
    (3) Document acceptance. DLA Disposition Services sites will use a 
full signature for receipts in block 22 of the DTID. The conditional 
acceptance date will be entered in block 23. DLA Disposition Services 
sites will also use this date for the accountable record receipt 
transaction.
    (4) Returning receipts. DLA Disposition Services sites will return 
one hard copy on physical transfers, including generator-prepared 
batchlots, if required by the generating activity. DLA Disposition 
Services will make return receipts available to generators via a web 
based document management system. Generating activities may access this 
system via the DLA Disposition Services Web site and search, view, and 
download copies of turn-in documentation. DLA Disposition Services 
personnel should work with generating activities to encourage the use of 
a web-based document management system and eliminate hard copy return 
receipts.
    (i) For property physically received by a DLA Disposition Services 
site, generating activities will be provided a receipt copy upon 
delivery.
    (A) These receipts are considered conditional acceptance of 
accountability, pending completion of DLA Disposition Services site 
inspection and verification of the turn-in. If no follow-up report is 
received by the generating activity within 15 workdays, the provisional 
copy becomes the official receipt document, and the DLA Disposition 
Services Site assumes full accountability.
    (B) If the receipt is not recorded in a web based document 
management system within 30 days, the provisional copy becomes the 
official receipt copy and the DLA Disposition Services Site assumes full 
accountability.
    (C) If a discrepancy is found, DLA Disposition Services sites may 
contact the generating activity and attempt resolution. If required, the 
guidance shown in paragraph (g)(2)(iii) of this section will be used for 
inventory discrepancies.
    (D) When acceptance is not possible, a reject notice will be 
provided to the generating activity within 7 workdays. Return receipts 
are available to generators via a web based document management system.
    (ii) For turn-ins made by commercial carrier, parcel post, etc., DLA 
Disposition Services sites will provide receipt copies no later than 5 
workdays after delivery. These receipts are considered conditional 
acceptance of accountability pending completion of DLA Disposition 
Services site inspection and verification of the turn-in. If a 
discrepancy is found, DLA Disposition Services sites may contact and 
attempt resolution. When acceptance is not possible, a reject notice 
will be provided to the generating activity within 7 workdays.
    (5) DLA Disposition Services site batchlots. (i) Consistent with the 
DoD ICS and in accordance with DLA Disposition Services operating 
guidance, DLA Disposition Services sites may batchlot property after 
receipt:

[[Page 720]]

    (A) Batchlot property with an extended line item value of $800 or 
less, in SCCs A--H.
    (B) Batchlot property that does not contain pilferable or sensitive 
materiel.
    (ii) Property assigned DEMIL code ``A'' in the critical or non-
critical FSG/FSCs, excluding FSCs 5985, 5998, and 5999, is eligible for 
batchlotting.
    (iii) DLA Disposition Services sites may batchlot property requiring 
the same type of special processing, e.g., reimbursable property, same 
FSC.
    (iv) DLA Disposition Services sites may batchlot clothing and 
textile products with infrared or spectral reflectance with a DEMIL code 
of ``E,'' but the batchlots require a certification on the DTID (see 
Figure 1 of this section).
[GRAPHIC] [TIFF OMITTED] TR03NO15.222

    (v) DLA Disposition Services sites will exclude from batchlotting:
    (A) Chemical, biological, radiological, and nuclear (CBRN) property 
and clothing (FSG 83 and 84); lab equipment such as centrifuges, 
biological incubators, micromilling machines, biological safety cabinets 
and laboratory evaporators; (FSG 66), camouflage clothing and individual 
equipment.
    (B) Low dollar property with high potential for RTDS.
    (C) Property defined as a special case in Enclosure 3 of DoD Manual 
4160.21, Volume 4 that requires special receipt and handling 
requirements that cannot be met at time of receipt.
    (D) DEMIL required items identified in DoD 4160.28-M Volumes 1-3, 
DEMIL codes B, Q, and property in critical FSCs in DEMIL codes C, D, E, 
F, G, and P. Property in FSCs 5935, 5996, and 5999 will not be 
batchlotted regardless of DEMIL code.
    (E) Property requiring inert certification.
    (F) Small arms or light weapons.
    (G) Lasers.
    (H) Radioactive materiels (e.g., gauges, meters, watches) not 
eligible for turn-in.
    (I) Chemical, biological, radiological, nuclear--defense (CBRN-D) 
equipment--These items are DEMIL F and instructions have to be followed 
for disposition and are NOT turned in to DLA disposition.
    (J) Items with a CIIC. Items determined to be pilferable or 
sensitive in accordance with Volume 6 of DLM 4000.25 and DLA Regulation 
4145.11/AR 740.7/Navy Supply System Command Instruction (NAVSUPINST) 
4440.146C/Marine Corps Order (MCO) 4450.11,

[[Page 721]]

``Safeguarding of DLA Sensitive Inventory Items, Controlled Substances, 
and Pilferable Items of Supply'' (available at http://www.dla.mil/ 
issuances/ Documents_1/ r4145.11.pdf).
    (K) HP.
    (L) Metalworking machinery and former industrial plant equipment.
    (M) Grade 8 fasteners and machine bolts in FSCs 5305 and 5306. Do 
not batchlot these items if they appear on the SALD list.
    (N) Property in SCC A with a total extended value, per DTID, of $50 
or more, as shown in Table 3 of this section.

 Table 3--FSCs in SCC A  or = $50 Excluded From Batchlotting
------------------------------------------------------------------------
                  FSC                              Description
------------------------------------------------------------------------
2910...................................  Engine Fuel System Component,
                                          Non-Aircraft.
2920...................................  Engine Electrical System
                                          Components, Non-Aircraft.
2940...................................  Engine Air and Oil Filters,
                                          Strainers and Cleaners, Non-
                                          Aircraft.
2990...................................  Miscellaneous Engine
                                          Accessories, Non-Aircraft.
3030...................................  Belting, Drive Belts, Fan
                                          Belts, and Accessories.
4730...................................  Fittings and Specialties; Hose,
                                          Pipe, and Tube.
5660...................................  Fencing, Fences and Gates and
                                          Components.
5895...................................  Miscellaneous Communication
                                          Equipment.
5910...................................  Capacitors.
5935...................................  Connectors, Electrical.
5940...................................  Lugs, Terminals and Terminal
                                          Strips.
5961...................................  Semi-Conductor Devices and
                                          Associated Hardware.
6530...................................  Hospital Furniture, Equipment,
                                          Utensils and Supplies.
6680...................................  Liquid/Gas Flow, Liquid level/
                                          Mechanical Motion Measuring
                                          Instruments.
7105...................................  Household Furniture.
7195...................................  Miscellaneous Furniture and
                                          Fixtures.
9999...................................  Miscellaneous Items (cannot
                                          conceivably be classified
                                          anywhere else).
------------------------------------------------------------------------

    (vi) Notwithstanding the information in paragraph (g)(5)(v) of this 
section, RTD customers may order individual items from a batchlot. DLA 
Disposition Services sites will honor these requests. Otherwise, items 
will not be removed from batchlots.
    (vii) DLA Disposition Services sites are responsible for ensuring 
official receipt copies are returned accessible to generating activities 
(electronically or hard copy). They must provide tracing assistance for 
any DTID receipt copy not received by the generating activity.
    (h) Identification, barcoding, and storage requirements. (1) Usable 
property, transferred to a DLA Disposition Services site or received in 
original location, must be clearly identified with barcode labels. The 
labels will be affixed to property from time of receipt (physically or 
receipt-in-place) until final removal and will correspond with 
accountability records. For property stored at DLA Disposition Services 
sites, signs will be placed appropriately to identify property status 
(RTD, DEMIL, etc.) and to minimize confusion to customers.
    (2) Scrap transferred to a DLA Disposition Services site or received 
in original location will be accumulated and segregated to prevent 
commingling basic material content.
    (i) For use in providing the basic material content information, 
scrap will be identified using the standard waste and scrap 
classification code (SCL) contained in the DAISY codes and terms pocket 
reference located at the DLA Disposition Services Web page (https://
www.disposition services.dla.mil/ publications/ index.shtml). The pocket 
reference is formatted alphabetically.
    (ii) Barcoded labels are not required for scrap accumulations. 
However, both the generating activity and DLA Disposition Services 
accounting records must correspond with the scrap identifications and 
weights. DLA Disposition Services must use the SCL in its DAISY 
accounting records.
    (iii) During storage, DLA Disposition Services will place 
appropriate signs to identify types of scrap and maximize visibility to 
customers.

[[Page 722]]

    (i) Accounting for property at the DLA Disposition Services site. 
(1) Correct accounting for all excess property, surplus property, and 
FEPP by both the Military Departments and DLA Disposition Services sites 
is critical. Non-compliance can result in property being misappropriated 
with potentially severe consequences. Proper accounting impacts 
resourcing (money, equipment, and personnel) decisions.
    (2) Accountability records will be maintained in auditable 
condition, allow property to be traced from receipt to final disposition 
and cleared from the ICS, when appropriate. DLA Disposition Services' 
accountability system will incorporate the requirements of DoD Directive 
8320.02, 15 CFR parts 730 through 799, and DLA Regulation 7500.1, 
``Accountability and Responsibility for Government Property in the 
Possession of the Defense Logistics Agency,'' (DLA Regulation 7500.1 is 
available at: http://www.dla.mil/ issuances/.
    (3) If a contingency operation requires a deviation from standard 
accountability practices, Military Departments and DLA Disposition 
Services sites will maintain spreadsheets, listings, or the most 
appropriate method of temporary accountable records. When the 
contingency operation reaches a point where prescribed accountability 
practices can be resumed, the temporary documents will be used for 
establishing, updating, or adjusting official accountability records 
(both Military Departments and DLA Disposition Services sites) as 
applicable.
    (4) DLA Disposition Services' property accountability records will 
be maintained in sufficient detail to support required sales proceeds 
reimbursements.
    (i) Materiel with different fund citation appropriations may be 
combined in sale lots; however, DLA Disposition Services accountability 
systems will retain individual disbursement information to allow 
appropriate reimbursements to local or departmental accounts, as 
designated by DoD 7000.14-R, ``Department of Defense Financial 
Management Regulations (FMRs): Volume 11a, ``Reimbursable Operations, 
Policy and Procedures``; Chapter 5, ``Disposition of Proceeds from 
Department of Defense Sales of Surplus Personal Property'', (available 
at http://comptroller.defense.gov/ fmr/current/ 11a/Volume_11a.pdf).
    (ii) Non-reimbursable scrap may be physically combined with other 
scrap when considered advantageous; however, accountability records will 
be maintained to substantiate pro-rating of the proceeds.
    (5) Usable and scrap determination and accounting are calculated as 
follows:
    (i) When property not requiring DEMIL is assigned SCCs F, G, or H, 
the DLA Disposition Services site may determine property has scrap value 
only and classify and process as ``scrap upon receipt.''
    (ii) Personal property assigned other SCCs, which the DLA 
Disposition Services site determines to only have basic materiel content 
value, may be downgraded to scrap after the end-of-screening date (ESD) 
and completion of any required DEMIL.
    (iii) DLA Disposition Services sites will minimize changing or 
challenging SCCs and downgrades upon receipt.
    (iv) When an item has been offered on a competitive sale and no bid 
has been received, or bids received are less than the scrap value of the 
item, the property may be downgraded to scrap and re-offered for sale as 
scrap. This includes property returned to a DLA Disposition Services 
site from a joint commercial sales partner that has been confirmed as 
mis-described or as containing only basic material content value. 
Similar items received within a 12-month period that have a history of 
being nonsalable may be downgraded to scrap at ESD.
    (v) When a DLA Disposition Services site determines obsolete printed 
materials have no RTD potential and only scrap market value, these items 
will be downgraded to scrap upon receipt.
    (vi) When end items are turned in as scrap and are reclaimed or 
disassembled for their usable components, the DLA Disposition Services 
site's records will be adjusted to reflect the acquisition cost 
(estimated, if not known) of the components removed.
    (6) Scrap accounting is calculated by weight.

[[Page 723]]

    (i) Estimated weight may be used for receiving scrap if scales are 
not available or if weighing is impractical. Disposition of scrap for 
sale or demanufacturing must be weighed to provide accurate accounting 
and reconciliation with the DLA Disposition Services accountable record.
    (ii) The acceptable degree of accuracy of estimation is 25 percent 
for property processed by the ton, and 10 percent for property processed 
by the pound. Overages and shortages discovered on release of property 
that exceed allowable tolerances will be adjusted.
    (iii) High value scrap must be weighed at the time of receipt.
    (j) Calibration and maintenance of weigh scales. (1) DoD activities, 
including DLA Disposition Services sites with scales used for receipts 
and disposition of scrap, will ensure weigh scales under their 
jurisdiction are maintained, repaired, and calibrated annually or more 
often if required by State or local laws.
    (2) Activities with scales will maintain a log or record of visits 
by qualified inspectors showing the date of the visit and, where 
appropriate, action taken to correct the accuracy of the scales. A 
signed copy of the inspector's findings will be maintained. The activity 
is responsible for obtaining the services of a qualified scale inspector 
and requesting repair when needed.
    (k) Physical inventory accuracy. (1) DLA Disposition Services sites 
will conduct physical inventories. At a minimum, a sample inventory will 
be conducted at each DLA Disposition Services site annually. Inventory 
accuracy of at least 90 percent will be maintained for all usable 
property, except DEMIL required property, HP, and pilferable or 
sensitive property. Discrepancies will be corrected in accordance with 
paragraph (l) of this section. If sample inventories for usable property 
are less than 90 percent accurate, a wall-to-wall inventory will be 
conducted.
    (2) Physical inventories for DEMIL required property, HP, and 
pilferable or sensitive property will be conducted at least annually. 
Inventory accuracy of 100 percent will be maintained. If less than 100 
percent accuracy, DLA Disposition Services site will report the 
discrepancies in accordance with procedures in DoD 7000.14-R.
    (3) Usable property remaining on the DLA Disposition Services site 
account in excess of 6 months will be inventoried on a monthly basis and 
certified.
    (4) Inventory discrepancies will be researched as part of the 
inventory process and corrections documented as inventory adjustments.
    (5) DLA Disposition Services will provide the DLA Disposition 
Services sites with direction for maintaining and reconciling scrap 
accumulations and accountable records. Reconciliation will be performed 
at least monthly.
    (l) Inventory discrepancies and adjustments--(1) Errors before 
acceptance. Item identification, quantity, condition, or price data 
errors discovered before official acceptance of accountability will be 
resolved and corrected during receipt.
    (2) Errors after acceptance. Discrepancies discovered after 
acceptance of accountability; that is, differences between recorded 
balances and quantities on hand, will be processed as inventory 
adjustments. Inventory adjustment procedures are contained in DoD 
7000.14-R, Volume 12, Chapter 7.
    (3) Property not in DLA Disposition Services site custody. (i) When 
property for which a DLA Disposition Services site has assumed 
accountability, but not physical custody, becomes lost, damaged, or 
destroyed, the custodial activity will investigate the discrepancy and 
provide its findings to the DLA Disposition Services site.
    (ii) The DLA Disposition Services site will provide the custodial 
activity with requested item identification number, such as NSN, DTID 
number, or UII (when applicable) or copies of pertinent documentation 
for the lost, damaged, or destroyed item.
    (A) If the custodial activity determines the discrepancy is due to a 
record keeping error, it will fully document the error and inform the 
DLA Disposition Services site to prepare an inventory adjustment.
    (B) If the discrepancy is not due to a record keeping error, the 
custodial activity must prepare a DD Form 200, ``Financial Liability 
Investigation of

[[Page 724]]

Property Loss,'' in accordance with criteria contained in DoD 7000.14-R, 
Volume 12, Chapter 7.
    (iii) Within 30 days after notification of the loss of the property, 
the custodial activity must provide the DLA Disposition Services site a 
completed copy of the DD Form 200 as supportive documentation for the 
DLA Disposition Services site to process an inventory adjustment.
    (m) Property disposition--(1) Packing, crating, and handling (PC&H). 
PC&H for DoD orders will be arranged by the DLA Disposition Services 
site in most cases. When property is received in place, the generating 
activity will prepare the property for shipment. DLA Disposition 
Services will submit payment for these services according to the 
established ISSA or by DLA Disposition Services military 
interdepartmental purchase request.
    (2) Transportation. DLA Disposition Services will directly fund 
transportation costs associated with reutilized property on each 
transaction. However, these costs are recouped as part of the Service-
level annual billings for all associated disposition costs incurred by 
the services including all transportation costs during the year. That 
is, individual DoD units do not pay for reutilization transportation on 
each individual transaction, but their Military Service is billed on an 
annual basis.
    (n) Audits--(1) Outside command involvement. When it is necessary to 
obtain or confirm data on materiel transferred to or from disposal 
accounts, and this involves crossing command lines between DoD 
Components, the policy in DoD Instruction 7600.02, ``Audit Policies'' 
(available at http://www.dtic.mil/ whs/directives/corres/ pdf/
760002p.pdf) will apply.
    (2) Joint Service/DLA Directives used during audits. The DoD 
Components will maintain a clear audit trail of the documentation for 
the disposition of property in accordance with their internal issuances 
for audits. The internal issuances that govern Army, Navy, and Air Force 
are:
    (i) AR 36-2, ``Audit Services in the Department of the Army'' 
(available at http://www.apd.army.mil/ pdffiles/r36_2.pdf).
    (ii) SECNAVINST 7510.7F.
    (iii) Air Force Policy Directive 65-3, ``Internal Auditing'' 
(available at http://static.e-publishing.af.mil/ production/1/ saf_fm/
publication/ afpd65-3/afpd65-3.pdf).



Sec. 273.8  Donations, loans, and exchanges.

    (a) Authority and scope--(1) FMR. Provisions for donation of surplus 
personal property are provided in accordance with 41 CFR part 102-37.
    (2) Other regulations. (i) 10 U.S.C. 2576a permits the Secretary of 
Defense to transfer certain property for use for State and local law 
enforcement agencies. Notwithstanding 41 CFR chapters 101 and 102, 
donations may be made only as authorized by law; under separate 
statutes, the Secretaries of the Military Departments may donate certain 
excess materiel to authorized recipients; through GSA, the Department of 
Defense may donate surplus property to authorized donees. Donations are 
subordinate to federal agency needs, but take precedence over sale or A/
D. This section also contains guidance and procedures pertaining to 
loans or exchanges, providing specific instructions to authorized 
donees.
    (ii) 42 U.S.C. chapter 68 authorizes federal assistance to States, 
local government, and relief organizations based on a declaration of 
emergency or major disaster.
    (iii) 10 U.S.C. 2557, 2572, 2576, and 5576a establishes the 
procedures for organizations participating in surplus personal property 
donation programs, specifically the organizations discussed in this 
section.
    (3) Agreements. Technology transfer projects and 10 U.S.C. 2194 
address educational partnership agreements.
    (b) Compliance with nondiscrimination statutes requirements. (1) All 
of the donation programs covered by this section must comply with:
    (i) 42 U.S.C. 2000a, also known as Title VI of the Civil Rights Act 
of 1964.
    (ii) 20 U.S.C. 1681, also known as Title IX of the Education 
Amendments of 1972.
    (iii) 29 U.S.C. 701 also known as the Rehabilitation Act of 1973.
    (iv) 42 U.S.C. 6101 also known as the Age Discrimination Act of 
1973.

[[Page 725]]

    (2) Any complaints alleging violations of these acts or inquiries 
concerning the applicability to the programs covered in this section 
will be handled by elevating issues through the appropriate chains of 
command and agency-to-agency dialog.
    (c) Donations of surplus personal property--(1) General. (i) Surplus 
property is allocated by GSA considering the factors listed in 41 CFR 
chapters 101 and 102.
    (ii) GSAXcess[supreg] is available for State agencies for surplus 
property (SASPs) and donees, when authorized, to search for and select 
property for donation. Screening is accomplished during the timeframes 
specified in Sec. 273.15.
    (iii) Upon allocation, GSAXcess[supreg] will generate the SF 123, 
``Transfer Order Surplus Personal Property'' to the agency for approval 
and return. DoD orders for DLA Disposition Services assets with a UMMIPS 
Priority Designator within Issue Priority Group 1 (Priorities 01-03), 
and non-mission capable supply (NMCS) orders will be submitted to DLA 
Disposition Services as an exception. DLA Disposition Services will 
immediately fill these orders and notify the GSA area property officer 
for the Front End Data System record adjustment. Priorities 4-15 orders 
received during this timeframe will not be honored.
    (2) Accessing GSAXcess[supreg]. GSAXcess[supreg] screening requires 
an access code from GSA. To learn about GSAXcess[supreg] and obtain 
access code information, see https://gsaxcess.gov/.
    (3) Release of Government liability. On a case-by-case basis, ``hold 
harmless'' clauses to protect the United States may be used, depending 
on the types and quantities of property. Such provisions must be written 
in coordination with appropriate DoD Component legal counsel.
    (4) Reporting. DLA will provide GSA a report of property transferred 
to non-federal recipients. The report:
    (i) Will be submitted to GSA through the GSA on-line Personal 
Property Reporting Tool within 90 calendar days after the close of each 
fiscal year. The Personal Property Reporting Tool is located at https://
gsa.inl.gov/property. If for any reason the report is delayed, the 
organization who possesses the property should contact the GSA Personal 
Property Asset Management (MTA), 1800 F Street NW., Washington, DC 
20405, with an explanation of the delay. The report must cover personal 
property disposed during the fiscal year in all areas within the 50 
United States, the District of Columbia, Puerto Rico, American Samoa, 
Guam, the Northern Mariana Islands, the Federated States of Micronesia, 
the Marshall Islands, Palau, and the U.S. Virgin Islands. Negative 
reports are required.
    (ii) Must reference Interagency Report Control Number 0154-GSA-AN 
and contain:
    (A) Name of the non-Federal recipient.
    (B) Zip code of the recipient.
    (C) Explanation as to the type of recipient (e.g., contractor, 
grantee, cooperative, Stevenson-Wydler recipient, licensee, permittee).
    (D) Appropriate 2-digit FSC group.
    (E) Total original acquisition cost of all personal property 
furnished to each recipient.
    (F) Appropriate comments as necessary.
    (G) IUID or UII equivalent.
    (5) Donation restrictions. (i) All surplus property (including 
property held by working capital funds established under 10 U.S.C. 2208 
or in similar funds) is available for donation to eligible recipients, 
in accordance with authorizing laws, except for property in the 
categories in paragraphs (c)(5)(i)(A) through (M) of this section:
    (A) Agricultural commodities, food, and cotton or woolen goods 
determined from time to time by the Secretary of Agriculture to be 
commodities requiring special handling with respect to price support or 
stabilization.
    (B) Controlled substances.
    (C) Foreign purchased property (as identified in DoD 5105.38-M).
    (D) Naval vessels of the following categories: battleships, 
cruisers, aircraft carriers, destroyers, and submarines.
    (E) NAF property.
    (F) MLI, except in compliance with DoD Instruction 4160.28, DoD 
4160.28-M Volumes 1-3, and DoD Instruction 2030.08.

[[Page 726]]

    (G) CCL items, except in compliance with 15 CFR parts 730 through 
774 and DoD Instruction 2030.08.
    (H) Property acquired with trust funds (e.g., social security trust 
funds).
    (I) Records of the Federal Government.
    (J) Vessels of 1,500 gross tons or more, excluding specified Naval 
combat vessels, which the Maritime Administration determines to be 
merchant vessels or capable of conversion to merchant use (as defined in 
41 CFR chapters 101 and 102).
    (K) Items as may be specified from time to time by the GSA Office of 
Government-wide Policy.
    (L) Property that requires reimbursement upon transfer (such as 
abandoned or other unclaimed property that is found on premises owned or 
leased by the Government).
    (M) Hazardous waste.
    (N) Other Hazardous property and hazardous materials not otherwise 
identified in the categories in paragraphs (c)(5)(i)(A) through (M) of 
this section that is not serviceable, for example supply condition codes 
(SCCs) listed in DLM 4000.25-2 as SCC E for unserviceable (limited 
restoration) materiel, SCC F for unserviceable (reparable) materiel, and 
SCC G for unserviceable (incomplete) materiel, SCC H for unserviceable 
(condemned) materiel, SCC P for unserviceable (reclamation) materiel.
    (ii) Certain items require special processing for donations (in 
accordance with the requirements in DoD 5105.38-M. DoD Manual 4160.21, 
Volume 4 provides the procedures.
    (6) Returnable DoD property. (i) As restrictions are imposed on 
certain commodities, the Department of Defense, through GSA, will 
request a return of these items and provide guidance.
    (ii) Known restrictions require written certification and signature 
by the recipient at the time of removal.
    (7) Allocating surplus property. GSA directly allocates property to:
    (i) FAA. Public airports are managed through the FAA.
    (A) The FAA Administrator has the responsibility for selecting 
property determined to be either:
    (1) Essential, suitable, or desirable for the development, 
improvement, operation, or maintenance of a public airport, as defined 
in 49 U.S.C. 47102.
    (2) Reasonably necessary to fulfill the immediate and foreseeable 
future needs of the grantee for the development, improvement, operation, 
or maintenance of a public airport.
    (3) Needed to develop sources of revenue from non-aviation 
businesses at a public airport.
    (B) Public airports will secure advance approval of donations by 
obtaining signatures of the applicable FAA airport branch chief and by 
the GSA regional office on the order (SF 123).
    (ii) United States Agency for International Development.
    (iii) SASPs. (A) SASPs are responsible for determining eligibility 
of applicants; fairly and equitably distributing donated property to 
eligible donees within their State; assuring donees comply with donation 
terms and conditions; and when requested by donee, arranging for or 
providing shipment of property from the federal holding agency, e.g., 
DLA Disposition Services sites, directly to the recipients.
    (B) The SASP donates property to public and eligible nonprofit 
organizations. Types of eligible recipients are:
    (1) Medical institutions, hospitals, clinics, and health centers.
    (2) Drug abuse and alcohol centers.
    (3) Providers of assistance to homeless individuals.
    (4) Providers of assistance to impoverished families and 
individuals.
    (5) Schools, colleges, and universities.
    (6) Schools for the mentally and physically disabled.
    (7) Child care centers.
    (8) Radio and television stations licensed by the Federal 
Communications Commission as educational radio or television stations.
    (9) Museums attended by the public.
    (10) Libraries providing the resident public (community, district, 
State, or region) with free access.
    (11) State and local government agencies, or nonprofit organizations 
or institutions. 42 U.S.C. 3015 and 3020 authorizes donations of surplus 
property to State and local government agencies, or nonprofit 
organizations or institutions that receive federal funding

[[Page 727]]

to conduct programs for older individuals.
    (12) States and territories.
    (13) SEAs. The Deputy Secretary of Defense is authorized to 
designate new SEAs. Table 4 of this section includes the list of 
approved SEAs. SEA nominations from the Military Departments or Defense 
Agencies should be forwarded to the Office of the Assistant Secretary of 
Defense for Logistics and Materiel Readiness, 3500 Defense Pentagon, 
Washington, DC 20301-3500
    (14) Educational activities that are of special interest to the 
Military Services may receive surplus DoD property in accordance with 41 
CFR chapter 101.

                      Table 4--SEA National Offices
------------------------------------------------------------------------
 
------------------------------------------------------------------------
American National Red Cross, 17th and D  Armed Services YMCA of the USA,
 Streets NW., Washington, DC 20006.       6225 Brandon Avenue, Suite
                                          215, Springfield, VA 22150-
                                          2510.
Big Brothers/Big Sisters of America,     Boys and Girls Clubs of
 230 North 13th Street, Philadelphia,     America, 771 First Avenue, New
 PA 19107.                                York, NY 10017.
Boy Scouts of America, 1325 Walnut Hill  Camp Fire, Inc., 4601 Madison
 Lane, Irving, TX 75038-3096.             Avenue, Kansas City, MO 64112-
                                          1278.
The Center for Excellence In Education,  Girl Scouts of America, 420 5th
 7710 Old Springhouse Road, McLean, VA    Avenue, New York, NY 10018-
 22102.                                   2702.
Little League Baseball, Inc.,            National Association for Equal
 Williamsport, PA 17701.                  Opportunity In Higher
                                          Education, 2243 Wisconsin
                                          Avenue NW., Washington, DC
                                          20007.
National Ski Patrol System, Inc., 133    U.S. Naval Sea Cadet Corps,
 South Van Gordon Street, Suite 100,      2300 Wilson Boulevard,
 Lakewood, CO 80228.                      Arlington, VA 22201.
United Service Organizations, Inc., 601  United States Olympic
 Indiana Avenue, Washington, DC 20004.    Committee, 1 Olympic Plaza,
                                          Colorado Springs, CO 80909-
                                          5760.
National Director, Young Marines of the  President--Board of Directors,
 Marine Corps, P.O. Box 70735,            Marine Cadets of America, USN
 Southwest Station, Washington, DC        & MC Reserve Center, Fort
 20024-0735.                              Nathan Hale Park, New Haven,
                                          CT 06512-3694.
Corporation for the Promotion of Rifle   Marine Corps League, P.O. Box
 Practice and Firearms Safety, Erie       3070, Merrifield, VA 22116.
 Industrial Park, Building 650, P.O.
 Box 576, Port Clinton, OH 43452.
------------------------------------------------------------------------

    (C) High schools that host a Junior Reserve Officer Training Corps 
(JROTC) Unit or a National Defense Cadet Corps Unit, Naval Honor 
Schools, and State Maritime Academies should contact their sponsoring 
Military Department regarding donations.
    (D) SEAs must maintain separate records that include:
    (1) Documentation verifying that the activity has been designated as 
eligible by the Department of Defense to receive surplus DoD property.
    (2) A statement designating one or more donee representatives to act 
for the SEA in acquiring property.
    (3) A listing of the types of property that are needed or have been 
authorized by the Department of Defense for use in the SEA program.
    (8) Identification of screeners. (i) SASP personnel or donee 
personnel representing a SASP must have a valid screener-identification 
card (GSA Optional Form 92, screener's identification, or other suitable 
identification approved by GSA) before screening and selecting property 
at holding agencies. However, SASP or donee personnel do not need a 
screener ID card to inspect or remove property previously set aside or 
approved by GSA for transfer.
    (ii) Screeners, having identified themselves and indicated the 
purpose of their visit, will sign the Visitor or Vehicle Register and be 
allowed to complete donation screening only.
    (9) Screening and ordering procedures for DLA Disposition Services 
property. (i) Section 273.15(c) outlines the screening timeframes for ZI 
surplus and FEPP that has reached the surplus release date.
    (ii) When a prospective donee contacts a DLA Disposition Services 
site or military installation regarding possible acquisition of surplus 
property, the individual or organization will be advised to contact the 
applicable SASP for determination of eligibility and procedures to be 
followed. The DLA

[[Page 728]]

Disposition Services sites will assist interested parties regarding 
availability of surplus property.
    (iii) SASP contacts may be located on the GSA Web site at http://
www.gsa.gov/ portal/ content/100851.
    (iv) Prospective donees must go to GSAXcess[supreg] to gain access, 
shop, and select property.
    (A) Once GSA allocates property, the SASP will receive an SF 123. 
The donee should then sign and return the SF 123 to the appropriate GSA 
office.
    (B) GSA will then approve the SF 123 by signature, return the SF 123 
to the SASP, and notify DLA Disposition Services with an electronic 
order.
    (v) Procedures for return of surplus FEPP to the United States for 
ultimate donation are covered in Enclosure 4 of DoD Manual 4160.21, 
Volume 2.
    (vi) DLA Disposition Services sites will require recipients of HM to 
sign a certification statement as shown in Figure 2 of this section.
[GRAPHIC] [TIFF OMITTED] TR03NO15.223

    (A) After allocation and approval, if the customer no longer wants 
or needs the property, the customer is required to notify the SASP, GSA, 
and the DLA Disposition Services site.
    (B) GSA may reallocate the property if there is an existing request 
by another potential recipient. If the property is reallocated, 
cancellation of the existing request will be transmitted by GSA and 
another transmission to DLA Disposition Services is required.
    (C) If the property is not reallocated, GSA must cancel the existing 
MRO.
    (10) Customer removal of ordered property. (i) All transportation 
arrangements and costs are the responsibility of the SASP or designated 
donee. The DLA Disposition Services site may not act as agent packager 
or shipper. Until

[[Page 729]]

release, each holding activity is responsible for the care and handling 
of its property.
    (ii) The SASP or designated donee will only pay for direct costs of 
care and handling incurred in the actual packing, crating, preparation 
for shipment, and loading. The price will be the actual or carefully 
estimated costs incurred by DoD traffic management activities for labor, 
material, or services used in donating the property.
    (iii) Advance payment for care and handling costs will normally be 
required; however, State and local governmental units may be exempted 
from this requirement and authorized to make payment within 60 days from 
date of receipt of property. Advance payment may be required in any case 
where prompt payment after billing has been unsatisfactory.
    (iv) Donees must schedule removal of property with the DLA 
Disposition Services site. Upon arrival, the individual must provide 
identification and must sign the DLA Disposition Services Visitor or 
Vehicle Register, indicating the purpose of the visit.
    (v) The individual must provide an approved SF123 as authorization 
for removal.
    (vi) DLA Disposition Services sites will release surplus property to 
authorized donees upon receipt of a properly completed and approved SF 
123 or MRO.
    (d) Special donations (gifts), loans, and exchanges outside the 
FMR--(1) Compliance. The DoD Components:
    (i) Comply with the specific governing statute for the type of 
property and ensure the limitations of the governing statute are 
observed. In accordance with 10 U.S.C. 2572 and DoD issuances, the 
Secretary of a Military Department or the Secretary of the Treasury is 
permitted to donate, lend, or exchange, as applicable, without expense 
to the United States, books, manuscripts, works of art, historical 
artifacts, drawings, plans, models and condemned or obsolete combat 
materiel that are not needed by the Military Services.
    (ii) Establish supplementary procedures governing loans, donations, 
and exchanges.
    (iii) May donate, loan or exchange items as identified in paragraph 
(d)(1) of this section, if the special donation, loan, or exchange 
action occurs prior to transfer to DLA Disposition Services for 
disposition. It is not authorized after property has been officially 
declared excess and transferred to DLA Disposition Services.
    (iv) May exchange assets for:
    (A) Similar items;
    (B) Conservation supplies, equipment, facilities, or systems;
    (C) Search, salvage, or transportation services;
    (D) Restoration, conservation or preservation services; or
    (E) Educational programs when it directly benefits the historical 
collection of the DoD Components.
    (v) May not make an exchange unless the monetary value of the 
property transferred or services provided to the United States under the 
exchange is not less than the value of the property transferred by the 
United States. The Secretary concerned may waive this limitation in the 
case of an exchange for property in which the Secretary determines the 
item to be received by the United States will significantly enhance the 
historical collection of the property administered by the Secretary.
    (vi) Will not incur costs in connection with loans or gifts. 
However, the DoD Component concerned may, without cost to the recipient, 
DEMIL, prepare, and transport within the CONUS items authorized for 
donation to a recognized war veterans' association in accordance with 
DoD 4160.28-M Volumes 1-3 if the DoD Component determines this can be 
accomplished as a training mission, without additional expenditures for 
the unit involved.
    (vii) Will maintain official records of all DoD materiel loaned 
including physical inventory, record reconciliation, and management 
reporting specified in the inventory management procedures in DoD Manual 
4140.01, ``DoD Supply Chain Materiel Management Procedures'' (available 
at http://www.dtic.mil/ whs/directives/corres/ pdf/414001m/
414001m_vol01.pdf). Verify yearly that property is being used for 
approved purposes, is being maintained

[[Page 730]]

and protected according to the agreement, and that the recipient 
organization still desires to retain the property. The DoD Component may 
perform this annual check by any method that provides reasonable 
assurance the recipient organization is fulfilling its responsibilities. 
DoD Components may request assistance from qualified DoD organizations.
    (2) Organizations authorized to receive loans and donations. (i) A 
municipal corporation.
    (ii) A soldiers' monument association.
    (iii) An incorporated museum or memorial that is operated by a 
historical society, a historical institution of a State or foreign 
nation, or a nonprofit military aviation heritage foundation or 
association incorporated in a State.
    (iv) An incorporated museum that is operated and maintained for 
educational purposes only and the charter of which denies it the right 
to operate for profit.
    (v) A post of the Veterans of Foreign Wars of the United States or 
the American Legion or a unit of any other recognized war veterans' 
association.
    (vi) A local or national unit of any war veterans' association of a 
foreign nation recognized by the national government of that nation (or 
by the government of one of the principal political subdivisions of that 
nation).
    (vii) A post of the Sons of Veterans Reserve.
    (3) Requirements for veterans' organizations. To qualify, veterans' 
organizations must be:
    (i) Sponsored by a Military Department.
    (ii) Evaluated based on its size, purpose, the type and scope of 
services it renders to veterans, and composed of honorably discharged 
American soldiers, sailors, airmen, marines, or coastguardsmen.
    (4) Requirements for museums. To qualify, museums must:
    (i) Meet State (or equivalent foreign national) criteria for not-
for-profit museums.
    (ii) Have an existing facility suitable for the display and 
protection of the type of property desired for loan or donation. If the 
requester has a facility under construction that will meet those 
requirements, interim eligibility may be granted.
    (iii) Have a professional staff that can care for and accept 
responsibility for the loaned or donated property.
    (iv) Have assets that, in the determination of the loaning or 
donating service, indicate the capability of the loaner and the borrower 
to provide the required care and security of historical property.
    (5) Eligibility determination. The DoD Components will determine the 
eligibility of organizations for gifts and loans. The DoD Components may 
establish eligibility requirements dependent upon the unique nature of 
the specific historical item; however, the minimum requirements are:
    (i) Limit donations, loans, or exchanges to property stipulated by 
10 U.S.C. 2557, 2572, 2576, and 2576a. Except for relevant records for 
aircraft and associated engines and equipment (unless authorized under 
DoD 4160.28-M Volumes 1-3 and DoD Instruction 2030.08), government 
records may not be released.
    (ii) Approve the loan, donation, or exchange; process requests for 
variations from the original agreement; and maintain official records of 
all donation, loan, and exchange agreements. The approval of exchanges 
may be delegated at the discretion of the Secretary concerned, and is 
encouraged for low-dollar transactions.
    (iii) Establish controls for determining compliance by the recipient 
organization with the display, security, and usage criteria provided in 
the loan and donation agreements.
    (iv) Provide disposition instructions to the recipient organization 
when loaned or donated property is no longer needed or authorized for 
continued use.
    (v) Establish conditions for making donations, loans, or exchanges.
    (vi) Establish a process (e.g., a council or other means suitable to 
the loan and donation organization) to review and approve proposed 
exchanges incorporating legal and financial review independent of the 
museum involved. Personnel directly involved in museum operations will 
not act as sole approving authority for any exchange transactions.

[[Page 731]]

    (vii) Ensure that correspondence regarding loans, donations, or 
exchanges is signed by individuals authorized to obligate their 
organization.
    (viii) Ensure appropriate DEMIL of the property as prescribed in DoD 
4160.28-M Volumes 1-3 before release. If standard DEMIL criteria cannot 
be applied without destroying the display value, specific DEMIL actions 
(such as aircraft structural cuts) may be delayed. The recipient 
organization must agree to assume responsibility for the property DEMIL 
action, at no cost to the Government, when the item is no longer desired 
or authorized for display purposes. The recipient organization may also 
return the property to the Government via the donating Military 
Department for full DEMIL action.
    (ix) Loan, donate, or exchange property on an ``as is, where is'' 
basis and ensure that the recipient organization agrees to pay all costs 
incident to preparation, handling, and movement of the property. 
Military Department contact points for the loan, donation, or exchange 
of property are at Table 5 of this section.
    (A) Property may not be repaired, modified, or changed at government 
expense over and above normal preparation for handling and movement, 
even if reimbursement is offered for services rendered.
    (B) Property may not be moved at government expense to a recipient's 
location or to another location closer to the recipient to prevent or 
lessen the recipient organization's processing or transportation costs.
    (C) No charge will be made for the property itself, but all physical 
processing of the property for the loan or donation will be the 
responsibility of the recipient organization. The recipient organization 
will pay all applicable charges before release of the property.

   Table 5--Military Department Contact Points for Loan, Donation, or
                          Exchange of Property
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
ARMY: (all commodities)
    Commander
    U.S. Army Tank Automotive and Armament Command
    ATTN: AMSTA-IM-OER
    Warren, MI 48397-5000
    Email: [email protected]
    Telephone: 1-800-325-2920 extension 48469
NAVY:
Navy and Marine Corps aircraft, air launched missiles, aircraft engines,
 and aviation related property:
    Commanding Officer
    NAVSUP Weapon Systems Support
    ATTN: Code-03432-06
    700 Robbins Ave.
    Philadelphia, PA 19111-5098
Obsolete or condemned Navy vessels for donation as memorials; Navy major
 caliber guns and ordnance; and shipboard materiel:
    Commander
    ATTN: NAVSEA-OOD, NC
    Naval Sea Systems Command
    2531 Jefferson Davis Highway
    Arlington, VA 22242-5160
AIR FORCE:
Air Force aircraft, missiles or any other items authorized for donation
 for display purposes to a museum recipient:
    NMUSAF/MUX
    1100 Spaatz St.
    Wright-Patterson AFB, OH 45433-7102
The USAF Museum operates a loan program only. Donations are not offered.
Any other Air Force item authorized for donation for display purposes
 (to recipients other than a museum):
    HQ AFMC/A4RM
    4375 Chidlaw Rd., Building 262
    Wright-Patterson AFB, OH 45433-5006
MARINE CORPS:
Marine Corps assault amphibian vehicles (to recipients other than a
 museum):
    Commandant of the Marine Corps
    ATTN: LPC-2

[[Page 732]]

 
    HQ U.S. Marine Corps
    3000 Marine Corps, Pentagon, RM 2E211
    Washington, DC 20350
Marine Corps historical property (all other inquiries):
    Commandant of the Marine Corps
    ATTN: History and Museum Division (HD)
    Marine Corps Historical Center
    1254 Charles Morris Street SE
    Washington Navy Yard, DC 20374-5040
U.S. Coast Guard
For U. S. Coast Guard historical assets contact COMDT (CG-09224) at mail
 stop 7031:
    Commandant (CG-09224)
    U. S. Coast Guard Headquarters, Douglas A. Munro Building
    2703 Martin Luther King Jr. Ave. South East, Stop 7031
    Washington, DC 20593-7031
For all other assets contact Commandant (CG-844) at mail stop 7618:
    Commandant (CG-844)
    U. S. Coast Guard Headquarters, Douglas A. Munro Building
    2703 Martin Luther King Jr. Avenue South East, Stop 7618
    Washington, DC 20593-7618
------------------------------------------------------------------------

    (x) Record assets on property accountability records before they are 
loaned, donated, or exchanged.
    (xi) Coordinate with the DoS before a donation, loan, or exchange is 
formalized with a foreign museum.
    (xii) Ensure an official authorized to obligate the organization 
signs a certificate of assurance, as shown at Figure 3 of this section.

[[Page 733]]

[GRAPHIC] [TIFF OMITTED] TR03NO15.224

    (xiii) Ensure proper documentation is finalized in accordance with 
DoD 4160.28-M Volumes 1-3 before the release of any property to an 
authorized recipient.
    (A) Use the standard loan agreement in the format prescribed by 
Figure 4 of

[[Page 734]]

this section or a similar document providing the same data for 
accomplishing property loans.
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[[Page 735]]


[GRAPHIC] [TIFF OMITTED] TR03NO15.226


[[Page 736]]


[GRAPHIC] [TIFF OMITTED] TR03NO15.227

    (B) Accomplish property donations made under this authority by use 
of the conditional deed of gift agreement in the format prescribed in 
Figure 5 of this section or a similar document providing the same data.

[[Page 737]]

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[[Page 738]]


[GRAPHIC] [TIFF OMITTED] TR03NO15.229


[[Page 739]]


[GRAPHIC] [TIFF OMITTED] TR03NO15.230

    (C) Accomplish property exchanges made under this authority by use 
of the exchange agreement in the format prescribed in Figure 6 of this 
section or a similar document providing the same data. Items may not be 
exchanged until a determination is made that the item is not needed for 
operational requirements by another Military Department. If the council 
or similar staff review process considers it unlikely the item in 
question will be needed by another Military Department, screening may be 
omitted. A museum of one Military Department may not acquire for the 
purpose of exchanging historical items being screened by another 
Military Department museum.

[[Page 740]]

[GRAPHIC] [TIFF OMITTED] TR03NO15.231


[[Page 741]]


[GRAPHIC] [TIFF OMITTED] TR03NO15.232

    (xiv) Avoid stockpiling condemned or obsolete combat materiel in 
anticipation of future exchanges. Items that cannot be exchanged within 
a 2-year period should be processed for disposal.

[[Page 742]]

    (xv) Notify exchange recipients that the Department of Defense 
cannot certify aircraft, components, or parts as airworthy. Aircraft, 
components, or parts must be certified by the FAA as airworthy before 
being returned to flight usage. If available, logbooks and maintenance 
records for FSCAP must accompany the aircraft and FSCAP. If such 
documentation is not available, or if the aircraft or FSCAP have been 
crash-damaged or similarly compromised, the aircraft, components, or 
parts may not be exchanged, unless the FSCAP parts have been removed 
from the aircraft or component prior to the exchange. Waivers to this 
FSCAP documentation requirement may be considered on a case-by-case 
basis and are restricted to ``display only'' property (not parts); 
waivers will apply only to the exchange of the whole aircraft, aircraft 
engines, and aircraft components. The exchange agreement must explicitly 
cite the lack of documentation.
    (xvi) Consider any adverse market impact that may result from the 
exchange of certain items. The Military Department should consult with 
outside organizations for market impact advice, as appropriate.
    (xvii) Elect to donate property without conditions; for example, 
when the administrative costs to the Military Department to perform 
yearly checks would exceed the value of the property. Unconditional 
donations are restricted to books, manuscripts, works of art, drawings, 
plans and models, and historical artifacts valued at less than $10,000 
that do not require DEMIL (see Figure 7 of this section).

[[Page 743]]

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[[Page 744]]


[GRAPHIC] [TIFF OMITTED] TR03NO15.234

    (6) Military departments loans of bedding. Consistent with 10 U.S.C. 
2557, the Secretary of a Military Department may provide bedding in 
support of homeless shelters that are operated by entities other than 
the Department of Defense. Bedding may be provided to the extent that 
the Secretary determines the donation will not interfere with military 
requirements.
    (7) Army loans to veterans' organizations. (i) The Department of the 
Army, in accordance with 10 U.S.C. 4683, may loan to recognized 
veterans' organizations (or local units of national veterans' 
organizations recognized by the U.S. Department of Veterans Affairs) 
obsolete or condemned rifles or cartridge belts for use by that unit for 
ceremonial purposes. Rifle loans to any one post, local unit, or 
municipality are limited by statute to not more than 10 rifles.
    (ii) The Secretary of the Army, in accordance with 10 U.S.C. 4683 
and Service-unique regulations prescribed by the Secretary, may 
conditionally lend or donate excess M-1 rifles (not more than 15), 
slings, and cartridge belts to any eligible organization for use by that 
organization for funeral ceremonies of a member or former member of the 
Military Services, and for other ceremonial purposes. If the loaned or 
donated properties under paragraph (d)(8)(i) of this section are to be 
used by the eligible organizations for funeral ceremonies of a member or 
former member of the Military Services, the Secretary may issue and 
deliver the rifles, together with the necessary accoutrements and blank 
ammunition, without charge.
    (8) Navy loans and donations. (i) The Secretary of the Navy, in 
accordance with 10 U.S.C. 7545, may donate or loan

[[Page 745]]

captured, condemned, or obsolete ordnance materiel, books, manuscripts, 
works of art, drawings, plans, models, trophies and flags, and other 
condemned or obsolete materiel, as well as materiel of historical 
interest. The Secretary of the Navy may donate this material to any 
State, territory, commonwealth, or possession of the United States and 
political subdivision or municipal corporation thereof, the District of 
Columbia, libraries, historical societies, and educational institutions 
whose graduates or students were in World War I or World War II.
    (A) Loans and donations made under this authority will be subject to 
the same guidelines for donations in accordance with 10 U.S.C. 2572.
    (B) If materiel to be loaned or donated is of historic interest, the 
application will be forwarded through the Navy Curator.
    (C) Donations made under this authority must first be referred to 
the Congress.
    (D) Donations and loans made under 10 U.S.C. 7545 will be made with 
a conditional deed of gift (see Figure 5 of this section for sample 
wording).
    (ii) In accordance with 10 U.S.C. 7306, the Secretary of the Navy, 
with approval of Congress, may donate obsolete, condemned, or captured 
Navy ships, boats, and small landing craft to the States, territories, 
or possessions of the United States, and political subdivisions or 
municipal corporations thereof, the District of Columbia, or to 
associations or corporations whose charter or articles of agreement 
denies them the right to operate for profit. The Navy restricts the use 
of donated vessels for use in static display purposes only (i.e., as 
memorials or museums).
    (A) Applications for ships, boats, and small landing craft will be 
submitted to the Commander, Naval Sea Systems Command (NSEA 00DG), 2531 
Jefferson Davis Highway, Arlington, VA 22240-5160.
    (B) Before submission of an application, the applicant must locate 
obsolete, condemned, or captured Navy ships, boats, and small landing 
craft which are available for transfer.
    (iii) Each application will contain:
    (A) Type of vessel desired, or in the case of combatant vessels, the 
official Navy identification of the vessel desired.
    (B) Statement of the proposed use to be made of the vessel and where 
it will be located.
    (C) Statement describing and confirming availability of a berthing 
site and the facilities and personnel to maintain the vessel.
    (D) Statement that the applicant agrees to maintain the vessel, at 
its own expense, in a condition satisfactory to the Department of the 
Navy, in accordance with instructions that the Department may issue, and 
that no expense will result to the United States as a consequence of 
such terms and conditions prescribed by the Department of the Navy.
    (E) Statement that the applicant agrees to take delivery of the 
vessel ``as is, where is'' at its berthing site and to pay all charges 
incident to such delivery, including without limitation preparation of 
the vessel for removal or tow, towing, insurance, and berthing or other 
installation at the applicant's site.
    (F) Statement of financial resources currently available to the 
applicant to pay the costs required to be assumed by a donee. The 
statement should include a summary of sources, annual income, and annual 
expenditures exclusive of the estimated costs attributable to the 
requested vessel to permit an evaluation of funds available for upkeep 
of the vessel. In the event the applicant will rely on commitments of 
donated services and materials for maintenance and use of the vessel, 
such commitments must be described in detail.
    (G) Statement that the applicant agrees that it will return the 
vessel, if and when requested to do so by the Department of the Navy, 
during a national emergency, and will not, without the written consent 
of the Department, use the vessel other than as stated in the 
application or destroy, transfer, or otherwise dispose of the vessel.
    (H) If the applicant asserts it is a corporation or association 
whose charter or articles of agreement denies it the

[[Page 746]]

right to operate for profit, their application must also contain a copy 
of the organization's bylaws and either:
    (1) A properly authenticated copy of the charter.
    (2) Certificate of incorporation.
    (3) Articles of agreement made either by:
    (i) The Secretary of State or other appropriate officials of the 
State under the laws where the applicant is incorporated.
    (ii) Organized or other appropriate public official having custody 
of such charter, certificate or articles.
    (I) If the applicant is not incorporated, their application must 
also include the citation of the law and a certified copy of the 
association's charter stating it is empowered to hold property and to be 
bound by the acts of the proposed signatories to the donation agreement.
    (J) If the applicant is not a State, territory, or possession of the 
United States, a political subdivision or municipal corporation thereof, 
or the District of Columbia, the application must also include a copy of 
a determination by the Internal Revenue Service that the applicant is 
exempt from tax under the Internal Revenue Code.
    (K) A notarized copy of the resolution or other action of its 
governing board or membership authorizing the person signing the 
application to represent the organization and to sign on its behalf to 
acquire a vessel.
    (L) A signed copy of the assurance of compliance.
    (M) A statement that the vessel will be used as a static display 
only as a memorial or museum and no system aboard the vessel will be 
activated or permitted to be activated for the purpose of navigation or 
movement under its own power.
    (N) A statement that the galley will not be activated for serving 
meals.
    (iv) Upon receipt, the Navy will determine the eligibility of the 
applicant to receive a vessel by donation. If eligible, the formal 
application will be processed and notice of intention to donate 
presented to the Congress as required by 10 U.S.C. 7306, provided the 
applicant has presented evidence satisfactory to the government that the 
applicant has adequate financial means to accomplish all of the 
obligations required under a donation contract. The Navy will have 
authority to donate only after the application has been before the 
Congress for a period of 60 days of continuous session without adverse 
action by the Congress in accordance with 10 U.S.C. 7306.
    (v) All vessels, boats, and service craft, donated in accordance 
with 10 U.S.C. 7306, will be used as static displays only for use as 
memorials and cannot be activated for the purpose of navigation or 
movement under its own power. Donations of vessels under any other 
authority of this section are subject to certain inspection and 
certification requirements. Applicants for vessels or service craft will 
be advised in writing by the office taking action on the applications 
that, should their request be approved and before operation of the 
vessel or service craft, one of the following stipulations will apply:
    (A) The donee agrees that if the vessel is 65 feet in length or 
less, it may not be operated without a valid certificate of inspection 
issued by the U.S. Coast Guard, while carrying more than six passengers, 
as defined in 46 U.S.C. 2101(21)(B).
    (B) The donee agrees that if the vessel is more than 65 feet in 
length, it may not be operated without a valid certificate of inspection 
issued by the U.S. Coast Guard.
    (vi) In accordance with 10 U.S.C. 7546 and subject to the approval 
of the Navy Museum Curator, the nameplate or any small article of a 
negligible or sentimental value from a ship may be loaned or donated to 
any individual who sponsored that ship provided that such loan or 
donation will be at no expense to the Navy.
    (9) Donation of excess chapel property. In accordance with 10 U.S.C. 
2580, the Secretary of a Military Department may donate excess personal 
property to religious organizations (as described in 26 U.S.C. 501), for 
the purposes of assisting such organizations in restoring or replacing 
property of the organization that has been damaged or destroyed as a 
result of arson or terrorism. The property authorized for donation will 
be limited to ecclesiastical equipment, furnishings and supplies

[[Page 747]]

that fall within FSC 9925, and furniture.
    (10) Disposition after use of special donations (gifts), loans, and 
exchanges. (i) The requirements of the recipient organization are:
    (A) For materiel no longer desired or authorized for continued use 
by a recipient organization, the Military Department will advise the 
recipient organization if it wants to repossess the property. Regardless 
of the determination made, care will be taken to ensure the recipient 
organization fulfills its responsibility to finalize the disposition 
action at no cost to the government. Repossession of the property will 
be governed by the property's historical significance, its potential for 
use in behalf of other requests, or its estimated sale value, if sold by 
the Department of Defense. Repossession of property will be documented; 
copies of the documentation will be retained by the donee and lender.
    (B) Based on type of property, its location, etc., it is not always 
feasible to require the physical movement of the property to the nearest 
DLA Disposition Services site. In these cases, the owning Military 
Department may elect to work with DLA Disposition Services for receipt 
and sale in-place, when economically feasible.
    (ii) Return of property donated to the Navy is subject to the 
approval of the Curator for the Department of the Navy. Any article, 
materiel, or equipment, including silver service, loaned or donated to 
the naval service by any State, group, or organization may be returned 
to the lender or donee in accordance with 10 U.S.C. 7546. When the owner 
cannot be located after a reasonable search, or if, after being offered 
the property, the owner states in writing that the return of the 
property is not desired, the property will be disposed of in the same 
manner as other surplus property.
    (e) Disaster assistance for States. 42 U.S.C. chapter 68 allows for 
disaster assistance to States.
    (1) 42 U.S.C. chapter 68, also known and referred to in this rule as 
``The Stafford Act'' authorizes federal assistance to States, local 
governments, and relief organizations. Upon declaration by the President 
of an emergency or a major disaster, under, the Stafford Act, the State 
receiving the declaration is notified immediately and a notice of the 
declaration is published in the Federal Register by the Federal 
Emergency Management Agency (FEMA).
    (2) Excess personal property may be loaned to State and local 
governments for use or distribution for emergency or major disaster 
assistance purposes. Such uses may include the restoration of public 
facilities that have been damaged as well as the essential 
rehabilitation of individuals in need of major disaster assistance. The 
availability of Federal assistance under the Stafford Act is subject to 
the time periods prescribed in FEMA regulations.
    (f) Academic institutions and non-profit organizations. Educational 
partnership (or other) agreements may be established for the loan or 
donation of property.
    (1) Under an educational partnership (or other) agreement, and 
consistent with 10 U.S.C. 2194, the Secretary of Defense authorized the 
director of each defense laboratory to enter into one or more 
educational partnership agreements with U.S. educational institutions 
for the purpose of encouraging and enhancing study in scientific 
disciplines at all levels of education. The educational institutions 
will be local educational agencies, colleges, universities, and any 
other nonprofit institutions that are dedicated to improving science, 
mathematics, and engineering education. The point of contact is the DoD 
Technology Transfer Program Manager, Suite 1401 Two Skyline Place, 5203 
Leesburg Pike, Falls Church, VA 22041-3466.
    (2) In accordance with 15 U.S.C. 3710(i), the director of a DoD 
laboratory may directly transfer (donate) laboratory (e.g., scientific, 
research) equipment that is excess to the needs of that laboratory to 
public and private schools and nonprofit institutions in the U.S. zone 
of interior (ZI).
    (3) Determinations of property suitable for donation will be made by 
the head of the laboratory. Property will be screened within the DoD 
laboratory and scientific community prior to release.

[[Page 748]]

    (4) Laboratories should be aware that some property might be 
environmentally regulated and, if exported, may require a U.S. DoS or 
Commerce export license, including certain circumstances where exports 
to foreign parties take place in the U.S. Moreover, some property may 
require DEMIL. Standard eligibility criteria must be ensured and a 
screening process for determining trade and security control risk are 
mandatory.



Sec. 273.9  Through-life traceability of uniquely identified items.

    (a) Authority and scope--(1) Property accountability. The 
accountability of property will be enabled by IUID for identification, 
tracking, and management in accordance with DoD Instruction 5000.64 and 
DoD Directive 8320.03, ``Unique Identification (UID) Standards for a 
Net-Centric Department of Defense'' (http://www.acq.osd.mil/ dpap/UID/

(attachments/ 832003p1-20070420.pdf). DoD Component heads post changes 
to the property records for all transactions as required (e.g., loan, 
loss, damage, disposal, inventory adjustments, item modification, 
transfer, sale) pursuant to DoD Instruction 5000.64.
    (2) IUID. IUID provides a standards-based approach to establish a 
UII encoded in a machine-readable two-dimensional data matrix barcode 
that serves to distinguish a discrete item from other items. Qualifying 
items as defined by DoD Instruction 8320.04, ``Item Unique 
Identification (IUID) Standards for Tangible Personal Property'' (http:/
/www.dtic.mil/ whs/ directives/corres/ pdf/832004p.pdf) will be marked 
with a two-dimensional Data Matrix barcode in accordance with Military 
Standard 130N, ``Department of Defense Standard Practice Identification 
Marking of U.S. Military Property'' (available at http://
www.acq.osd.mil/ dpap/pdi/uid/ docs/mil-std130N_ch1.pdf) and registered 
in the IUID Registry.
    (3) Identification marking of U.S. military property. Military 
Standard 130N provides the item marking criteria for development of 
specific marking requirements and methods for identification of items of 
military property produced, stocked, stored, and issued by or for the 
DoD. It also provides the criteria and data content for both free text 
and machine-readable information applications of item identification 
two-dimensional data matrix marking and includes the IUID requirements 
of DoD Instruction 8320.04.
    (4) Registration of UIIs. Enclosure 3 of DoD Instruction 8320.04 
provides procedures for the registration of UIIs in the DoD IUID 
Registry.
    (b) Updating the DoD IUID Registry--(1) Obtaining user access. 
Authorized Government users may add items, update, and add events to 
existing items. Generating activities and DLA Disposal Services can 
register for access by following the instructions for the Business 
Partner Network Support Environment Registration System at https://
iuid.logistics informationservice.dla.mil/BRS.
    (2) Life-cycle events for materiel disposition. When an item leaves 
DoD inventory, its status, or life-cycle event, must be changed in the 
DoD IUID. A drop-down menu in the registry contains the possible life-
cycle events: abandoned, consumed, destroyed by accident, destroyed by 
combat, donated, exchanged--repair, exchanged--sold, exchanged--
warranty, expended--experimental/target, expended--normal use, leased, 
loaned, lost, reintroduced, retired, scrapped, sold--foreign government, 
sold--historic, sold--nongovernment, sold--other federal, sold--state/
local, and stolen.
    (3) Updating procedures. When an item that is marked with a UII 
enters the materiel disposition process through a transfer between 
Components or if the item leaves DoD inventory, an update to the IUID 
Registry is required. Procedures for performing required updates to the 
IUID Registry can be found in the IUID registry user manual available at 
https://iuid.logistics informationservice.dla.mil.



         Subpart B_Reutilization, Transfer, and Sale of Property



Sec. 273.10  Purpose.

    (a) This part is composed of several subparts, each containing its 
own purpose. In accordance with the authority in DoD Directive 5134.12, 
``Assistant Secretary of Defense for Logistics and Materiel Readiness 
(ASD(L&MR)),'' DoD Instruction 4140.01, ``DoD Supply

[[Page 749]]

Chain Materiel Management Policy,'' and DoD Instruction 4160.28, ``DoD 
Demilitarization (DEMIL) Program,'' this part establishes the sequence 
of processes for the disposition of personal property of the DoD 
Components.
    (b) This subpart:
    (1) Implements policy for reutilization, transfer, excess property 
screening, and issue of surplus property and foreign excess personal 
property (FEPP), scrap released by qualified recycling programs (QRPs), 
and non-QRP scrap.
    (2) Provides guidance for removing excess material through security 
assistance programs and foreign military sales (FMS).
    (3) Provides detailed instructions for the sale of surplus property 
and FEPP, scrap released by QRPs, and non-QRP scrap.



Sec. 273.11  Applicability.

    (a) This subpart applies to the Office of the Secretary of Defense, 
the Military Departments, the Office of the Chairman of the Joint Chiefs 
of Staff and the Joint Staff, the Combatant Commands, the Office of the 
Inspector General of the Department of Defense, the Defense Agencies, 
the DoD Field Activities, and all other organizational entities within 
the Department of Defense (hereinafter referred to collectively as the 
``DoD Components'').
    (b) 41 CFR chapters 101 and 102, also known as the Federal Property 
Management Regulation and Federal Management Regulation (FPMR and FMR), 
and 40 U.S.C. subtitle I, also known as the Federal Property and 
Administrative Services, take precedence over this part if a procedural 
conflict exists.



Sec. 273.12  Definitions.

    Unless otherwise noted, these terms and their definitions are for 
the purpose of this subpart:
    Abandonment and destruction (A/D). A method for handling property 
that:
    (1) Is abandoned and a diligent effort to determine the owner is 
unsuccessful.
    (2) Is uneconomical to repair or the estimated costs of the 
continued care and handling of the property exceeds the estimated 
proceeds of sale.
    (3) Has an estimated cost of disposal by A/D that is less than the 
net sales cost.
    Accountability. The obligation imposed by law, lawful order, or 
regulation accepted by a person for keeping accurate records to ensure 
control of property, documents, or funds with or without possession of 
the property. The person who is accountable is concerned with control, 
while the person who has possession is responsible for custody, care, 
and safekeeping.
    Accountable officer. The individual responsible for acquiring and 
maintaining DoD items of supply (physical property and records), 
approving property orders (including reutilization of excess property 
requests), and authenticating materiel release orders (MROs). 
Comparative terms are: Army Supply Support Accountable Officer, Navy 
Accountable Officer, Air Force Accountable Officer/Chief of Supply 
Materiel Support Division, Marine Corps Unit Supply Officer.
    Acquisition cost. The amount paid for property, including 
transportation costs, net any trade and cash discounts. Also see 
standard price.
    Ammunition. Generic term related mainly to articles of military 
application consisting of all kinds of bombs, grenades, rockets, mines, 
projectiles, and other similar devices or contrivances.
    Batchlot. The physical grouping of individual receipts of low-
dollar-value property. The physical grouping consolidates multiple 
disposal turn-in documents (DTIDs) under a single cover DTID. The 
objective of batchlotting is to reduce the time and costs related to 
physical handling and administrative processes required for receiving 
items individually. The cover DTID establishes accountability in the 
accountable record, and individual line items lose their identity.
    Bid. A response to an offer to sell, that, if accepted, would bind 
the bidder to the terms and conditions of the contract (including the 
bid price).
    Bidder. Any entity that is responding to or has responded to an 
offer to sell.
    Commerce control list (CCL) items (formerly known as strategic list 
item). Commodities, software, and technology

[[Page 750]]

subject to export controls in accordance with Export Administration 
Regulations (EAR) in 15 CFR parts 730 through 774. The EAR contains the 
CCL and is administered by the Bureau of Industry and Security, DOC.
    Component. An item that is useful only when used in conjunction with 
an end item. Components are also commonly referred to as assemblies. For 
purposes of this definition an assembly and a component are the same. 
There are two types of ``components: Major components and minor 
components. A major component includes any assembled element which forms 
a portion of an end item without which the end item is inoperable. For 
example, for an automobile, components will include the engine, 
transmission, and battery. If you do not have all those items, the 
automobile will not function, or function as effectively. A minor 
component includes any assembled element of a major component. 
Components'' consist of parts. References in the CCL to components 
include both major components and minor components.
    Continental United States (CONUS). Territory, including the adjacent 
territorial waters, located within the North American continent between 
Canada and Mexico (comprises 48 States and the District of Columbia).
    Contractor inventory. (1) Any property acquired by and in the 
possession of a contractor or subcontractor (including Government-
furnished property) under a contract, terms of which vest title in the 
U.S. Government (USG) and in excess of the amounts needed to complete 
full performance under the entire contract.
    (2) Any property for which the USG is obligated to or has an option 
to take over under any type of contract resulting from changes in the 
specifications or plans or termination of such contract (or subcontract) 
before completion of the work, for the convenience of or at the option 
of the USG.
    Defense Logistics Agency (DLA) Disposition Services. The 
organization provides DoD with worldwide reuse, recycling and disposal 
solutions that focus on efficiency, cost avoidance and compliance.
    DLA Disposition Services site. The DLA Disposition Services office 
that has accountability for and control over disposable property. May be 
managed in part by a commercial contractor. The term is applicable 
whether the disposal facility is on a commercial site or a Government 
installation and applies to both Government and contractor employees 
performing the disposal mission.
    Demilitarization (DEMIL) Code A. DEMIL not required.
    DEMIL. The act of eliminating the functional capabilities and 
inherent military design features from DoD personal property. Methods 
and degree range from removal and destruction of critical features to 
total destruction by cutting, crushing, shredding, melting, burning, 
etc. DEMIL is required to prevent property from being used for its 
originally intended purpose and to prevent the release of inherent 
design information that could be used against the United States. DEMIL 
applies to material in both serviceable and unserviceable condition.
    Disposal. End-of-life tasks or actions for residual materials 
resulting from demilitarization or disposition operations.
    Disposition. The process of reusing, recycling, converting, 
redistributing, transferring, donating, selling, demilitarizing, 
treating, destroying, or fulfilling other end of life tasks or actions 
for DoD property. Does not include real (real estate) property.
    Diversion. Includes collection, separation, and processing of 
material for use as raw material in the manufacture of goods sold or 
distributed in commerce or the reuse of material as substitutes for 
goods made of virgin material.
    DoD Activity Address Code (DoDAAC). A 6-digit code assigned by the 
Defense Automatic Addressing System (DAAS) to provide a standardized 
address code system for identifying activities and for use in 
transmission of supply and logistics information that supports the 
movement of property.
    DoD Item Unique Identification (IUID) Registry. The DoD data 
repository that receives input from both industry and Government sources 
and provides storage of, and access to, data that identifies and 
describes tangible Government personal property.

[[Page 751]]

    Donation. The act of providing surplus personal property at no 
charge to a qualified donation recipient, as allocated by the General 
Services Administration (GSA).
    Educational institution. An approved, accredited, or licensed public 
or nonprofit institution or facility, entity, or organization conducting 
educational programs, including research for any such programs, such as 
a childcare center, school, college, university, school for the mentally 
handicapped, school for the physically handicapped, or an educational 
radio or television station.
    End of screening date. The date when formal reutilization, transfer, 
and donation screening time expires.
    Estimated fair market value. The selling agency's best estimate of 
what the property would be sold for if offered for public sale.
    Excess personal property. (1) Domestic excess. Personal property 
that the United States and its territories and possessions, applicable 
to areas covered by GSA (i.e., the 50 States, District of Columbia, 
Puerto Rico, American Samoa, Guam, Northern Mariana Islands, the 
Federated States of Micronesia, the Marshall Islands, Palau, and the 
U.S. Virgin Islands), consider excess to the needs and mission 
requirements of the United States.
    (2) DoD Component excess. Items of DoD Component owned property that 
are not required for their needs and the discharge of their 
responsibilities as determined by the head of the Service or Agency.
    (3) Foreign excess personal property (FEPP). U.S.-owned excess 
personal property that is located outside the ZI. This property becomes 
surplus and is eligible for donation and sale as described in Sec. 
273.15(b).
    Federal civilian agency (FCA). Any non-defense executive agency 
(e.g. DoS, Department of Homeland Security) or any establishment in the 
legislative or judicial branch of the USG (except the Senate, the House 
of Representatives, and the Architect of the Capitol and any activities 
under his or her direction).
    Federal condition code. A two-digit code consisting of an alphabet 
supply condition code in the first digit, and a numeric or alphabet 
disposal condition code (DCC) in the second digit. A combination of the 
supply condition code and the DCC, which most accurately describes the 
materiel's physical condition.
    (1) Disposal condition code (DCC). Codes assigned by the DLA 
Disposition Services site based upon inspection of materiel at time of 
receipt.
    (2) Supply condition codes. Codes used to classify materiel in terms 
of readiness for issue and use or to identify action underway to change 
the status of materiel. These codes are assigned by the DoD Components. 
DLA Disposition Services may change a supply condition code if the code 
was assigned improperly and the property is of a non-technical nature. 
If change is not appropriate or property is of a technical nature, DLA 
Disposition Services sites may challenge a suspicious supply condition 
code.
    FEPP. See excess personal property.
    Foreign military sales (FMS). A process through which eligible 
foreign governments and international organizations may purchase defense 
articles and services from the USG. A government-to-government 
agreement, documented in accordance with DoD 5105.38-M.
    Foreign purchased property. Property paid for by foreign countries, 
but where ownership is retained by the United States.
    Generating activity (``generator''). The activity that declares 
personal property excess to its needs.
    Government furnished equipment. An item of special tooling, special 
test equipment, or equipment, in the possession of, or directly acquired 
by, the Government and subsequently furnished to the contractor for the 
performance of a contract.
    Government furnished materiel. Property provided by the U.S. 
Government for the purpose of being incorporated into or attached to a 
deliverable end item or that will be consumed or expended in performing 
a contract. Government-furnished materiel includes assemblies, 
components, parts, raw and process material, and small tools and 
supplies that may be consumed in normal use in performing a contract. 
Government-furnished materiel does not

[[Page 752]]

include material provided to contractors on a cash-sale basis nor does 
it include military property, which are government-owned components, 
contractor acquired property, government furnished equipment, or major 
end items being repaired by commercial contractors for return to the 
government.
    GSAXcess[supreg]. A totally web-enabled platform that eligible 
customers use to access functions of GSAXcess[supreg] for reporting, 
searching, and selecting property. This includes the entry site for the 
Federal Excess Personal Property Utilization Program and the Federal 
Surplus Personal Property Donation Program operated by the GSA.
    Hazardous property (HP). A composite term to describe DoD excess 
property, surplus property, and FEPP, which may be hazardous to human 
health, human safety, or the environment. Various Federal, State, and 
local safety and environmental laws regulate the use and disposal of HP. 
In more technical terms, HP includes property having one or more of the 
following characteristics:
    (1) Has a flashpoint below 200 [deg]F (93 [deg]C) closed cup, or is 
subject to spontaneous heating or is subject to polymerization with 
release of large amounts of energy when handled, stored, and shipped 
without adequate control.
    (2) Has a threshold limit value equal to or below 1,000 parts per 
million for gases and vapors, below 500 milligrams per cubic meter (mg/
m\3\) for fumes, and equal to or less than 30 million particles per 
cubic foot or 10 mg/m\3\ for dusts (less than or equal to 2.0 fibers per 
cubic centimeter greater than 5 micrometers in length for fibrous 
materials).
    (3) Causes 50 percent fatalities to test animals when a single oral 
dose is administered in doses of less than 500 mg per kilogram of test 
animal weight.
    (4) Is a flammable solid as defined in 49 CFR 173.124, or is an 
oxidizer as defined in 49 CFR 173.127, or is a strong oxidizing or 
reducing agent with a half cell potential in acid solution of greater 
than +1.0 volt as specified in Latimer's table on the oxidation-
reduction potential.
    (5) Causes first-degree burns to skin in short-time exposure or is 
systematically toxic by skin contact.
    (6) May produce dust, gases, fumes, vapors, mists, or smoke with one 
or more of the characteristics in the course of normal operations.
    (7) Produces sensitizing or irritating effects.
    (8) Is radioactive.
    (9) Has special characteristics which, in the opinion of the 
manufacturer, could cause harm to personnel if used or stored 
improperly.
    (10) Is hazardous in accordance with 29 CFR part 1910, also known as 
the Occupational Safety and Health Standards.
    (11) Is hazardous in accordance with 49 CFR parts 171 through 179.
    (12) Is regulated by the Environmental Protection Agency in 
accordance with 40 CFR parts 260 through 280.
    Hazardous waste (HW). An item that is regulated pursuant to 42 
U.S.C. 6901 or by State regulation as an HW. HW is defined federally at 
40 CFR part 261. Overseas, HW is defined in the applicable final 
governing standards or overseas environmental baseline guidance 
document, or host nation laws and regulations.
    Identical bid. Bids for the same item of property having the same 
total price.
    Industrial scrap. Consists of short ends, machinings, spoiled 
materials, and similar residue generated by an industrial-funded 
activity.
    Information technology. Any equipment or interconnected system or 
subsystem of equipment that is used in the automatic acquisition, 
storage, manipulation, management, movement, control, display, 
switching, interchange, transmission or reception of data or information 
by the DoD Component. Includes computers, ancillary equipment, software, 
firmware, and similar procedures, services (including support services), 
and related sources. Does not include any equipment that is acquired by 
a Federal contractor incidental to a Federal contract. Equipment is 
``used'' by a DoD Component if the equipment is used by the DoD 
Component directly or is used by a contractor under a contract with the 
DoD Component that:

[[Page 753]]

    (1) Requires the use of such equipment.
    (2) Requires the use to a significant extent of such equipment in 
the performance of a service or the furnishing of a product.
    Installation. A military facility together with its buildings, 
building equipment, and subsidiary facilities such as piers, spurs, 
access roads, and beacons.
    International organizations. For trade security control purposes, 
this term includes: Columbo Plan Council for Technical Cooperation in 
South and Southeast Asia; European Atomic Energy Community; Indus Basin 
Development; International Atomic Energy; International Red Cross; NATO; 
Organization of American States; Pan American Health Organization; 
United Nations (UN); UN Children's Fund; UN Development Program; UN 
Educational, Scientific, and Cultural Organization; UN High Commissioner 
for Refugees Programs; UN Relief and Works Agency for Palestine Refugees 
in the Near East; World Health Organization; and other international 
organizations approved by a U.S. diplomatic mission.
    Interservice. Action by one Military Department or Defense Agency 
ICP to provide materiel and directly related services to another 
Military Department or Defense Agency ICP (either on a recurring or 
nonrecurring basis).
    Inventory adjustments. Changes made in inventory quantities and 
values resulting from inventory recounts and validations.
    Inventory control point (ICP). An organizational unit or activity 
within the DoD supply system that is assigned the primary responsibility 
for the materiel management of a group of items either for a particular 
Military Department or for the DoD as a whole. In addition to materiel 
manager functions, an ICP may perform other logistics functions in 
support of a particular Military Department or for a particular end item 
(e.g., centralized computation of retail requirements levels and 
engineering tasks associated with weapon system components).
    Item unique identification (IUID). A system of establishing globally 
widespread unique identifiers on items of supply within the DoD, which 
serves to distinguish a discrete entity or relationship from other like 
and unlike entities or relationships. Automatic identification 
technology is used to capture and communicate IUID information.
    Law enforcement agencies (LEAs). Government agencies whose primary 
function is the enforcement of applicable Federal, State, and local 
laws, and whose compensated law enforcement officers have powers of 
arrest and apprehension.
    Local screening. The onsite review of excess, surplus, and FEPP for 
reutilization, transfer, and donation.
    MAP property. U.S. security assistance property provided under 22 
U.S.C.2151, also known as the Foreign Assistance Act, generally on a 
non-reimbursable basis.
    Marketing. The function of directing the flow of surplus and FEPP to 
the buyer, encompassing all related aspects of merchandising, market 
research, sale promotion, advertising, publicity, and selling.
    Material potentially presenting an explosive hazard (MPPEH). 
Material owned or controlled by the Department of Defense that, prior to 
determination of its explosives safety status, potentially contains 
explosives or munitions (e.g., munitions containers and packaging 
material; munitions debris remaining after munitions use, 
demilitarization, or disposal; and range-related debris) or potentially 
contains a high enough concentration of explosives that the material 
presents an explosive hazard (e.g., equipment, drainage systems, holding 
tanks, piping, or ventilation ducts that were associated with munitions 
production, demilitarization, or disposal operations). Excluded from 
MPPEH are munitions within the DoD-established munitions management 
system and other items that may present explosion hazards (e.g., 
gasoline cans and compressed gas cylinders) that are not munitions and 
are not intended for use as munitions.
    Munitions list item (MLI). Any item contained on the USML in 22 CFR 
part 121. Defense articles, associated technical data (including 
software), and defense services recorded or stored in any physical form, 
controlled by 22 CFR parts 120 through 130. 22 CFR part 121,

[[Page 754]]

which contains the USML, is administered by the DoS Directorate of 
Defense Trade Controls.
    Museum, DoD or Service. An appropriated fund entity that is a 
permanent activity with a historical collection, open to both the 
military and civilian public at regularly scheduled hours, and is in the 
care of a professional qualified staff that performs curatorial and 
related historical duties full time.
    Mutilation. A process that renders materiel unfit for its originally 
intended purposes by cutting, tearing, scratching, crushing, breaking, 
punching, shearing, burning, neutralizing, etc.
    National stock number (NSN). The 13-digit stock number replacing the 
11-digit federal stock number. It consists of the 4-digit federal supply 
classification code and the 9-digit national item identification number. 
The national item identification number consists of a 2-digit National 
Codification Bureau number designating the central cataloging office 
(whether North Atlantic Treaty Organization or other friendly country) 
that assigned the number and a 7-digit (xxx-xxxx) nonsignificant number. 
Arrange the number as follows: 9999-00-999-9999.
    Nonappropriated funds (NAF). Funds generated by DoD military and 
civilian personnel and their dependents and used to augment funds 
appropriated by 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.
    NAF property. Property purchased with NAFs, by religious activities 
or nonappropriated morale welfare or recreational activities, post 
exchanges, ships stores, officer and noncommissioned officer clubs, and 
similar activities. Such property is not Federal property.
    Nonprofit institution. An institution or organization, no part of 
the net earnings of which inures or may lawfully inure to the benefit of 
any private shareholder or individual, and which has been held to be tax 
exempt under the provisions of 26 U.S.C. 501, also known as the Internal 
Revenue Code of 1986.
    Personal property. Property except real property. Excludes records 
of the Federal Government, battleships, cruisers, aircraft carriers, 
destroyers, and submarines.
    Precious metals recovery program (PMRP). A DoD program for 
identification, accumulation, recovery, and refinement of precious 
metals (PM) from excess and surplus end items, scrap, hypo solution, and 
other PM bearing materiel for authorized internal purposes or as 
Government furnished materiel.
    Precious metals (PM). Gold, silver, and the platinum group metals 
(platinum, palladium, iridium, rhodium, osmium, and ruthenium).
    Privately owned personal property. Personal effects of DoD personnel 
(military or civilian) that are not, nor will ever become, government 
property unless the owner (or heirs, next of kin, or legal 
representative of the owner) executes a written and signed release 
document unconditionally giving the USG all right, title, and interest 
in the privately owned property.
    Qualified recycling programs (QRP). Organized operations that 
require concerted efforts to cost effectively divert or recover scrap or 
waste, as well as efforts to identify, segregate, and maintain the 
integrity of recyclable material to maintain or enhance its 
marketability. If administered by a DoD Component, a QRP includes 
adherence to a control process providing accountability for all 
materials processed through program operations.
    Radioactive material. Any material or combination of materials that 
spontaneously emits ionizing radiation and which is subject to 
regulation as radioactive or nuclear material under any Federal law or 
regulation.
    Reclamation. A cost avoidance or savings measure to recover useful 
(serviceable) end items, repair parts, components, or assemblies from 
one or more principal end items of equipment or assemblies (usually 
Supply condition codes (SCCs), H, P, and R) for the purpose of 
restoration to use through replacement or repair of one or more 
unserviceable, but repairable principal end item of equipment or 
assemblies (usually SCCs E, F, and G). Reclamation is preferable prior 
to disposition

[[Page 755]]

(e.g., DLA Disposition Services site turn-in), but end items or 
assemblies may be withdrawn from DLA Disposition Services site for 
reclamation purposes.
    Responsibility criteria. The situations outlined in 41 CFR chapter 
102 that require some certifications from buyers; either that the buyer 
knows they need to take care of the property because of its 
characteristics, or because the buyer must meet certain professional or 
licensing criteria.
    Responsive bid. A bid that meets all the terms, conditions, and 
specifications necessary.
    Restricted parties. Those countries or entities that the Department 
of State (DoS), Department of Commerce (DOC), or Treasury have 
determined to be prohibited or sanctioned for the purpose of export, 
sale, transfer, or resale of items controlled on the United States 
Munitions List (USML) or CCL. A consolidated list of prohibited entities 
or destinations for which transfers may be limited or barred, may be 
found at: http://export.gov/ecr/ eg_main_023148.asp.
    Reutilization. The act of re-issuing FEPP and excess property to DoD 
Components. Also includes qualified special programs (e.g., LEA, 
Humanitarian Assistance Program (HAP), Military Affiliate Radio System 
(MARS)) pursuant to applicable enabling statutes.
    Reutilization screening. The act of reviewing, either by automated 
or physical means, available FEPP, excess or surplus personal property 
to meet known or anticipated requirements.
    Sales contract. An agreement between two parties, binding upon both, 
to transfer title of specified property for a consideration.
    Sales contracting officer (SCO). An individual who has been duly 
appointed and granted the authority conferred by law according to the 
procedures in this part to sell surplus and FEPP by any of the 
authorized and prescribed methods of sale. Also referred to as the SAR.
    Scrap. Recyclable waste and discarded materials derived from items 
that have been rendered useless beyond repair, rehabilitation, or 
restoration such that the item's original identity, utility, form, fit 
and function have been destroyed. Items can be classified as scrap if 
processed by cutting, tearing, crushing, mangling, shredding, or 
melting. Intact or recognizable USML or CCL items, components, and parts 
are not scrap. 41 CFR 102-36.40 provides additional information on 
scrap.
    Screening. The process of physically inspecting property or 
reviewing lists or reports of property to determine whether it is usable 
or needed.
    Screening period. The period in which excess and surplus personal 
property is made available for reutilization, transfer, or surplus 
donation to eligible recipients.
    Security assistance. A group of programs, authorized by law, that 
allows the transfer of military articles and services to friendly 
foreign governments.
    Small arms and light weapons. Man-portable weapons made or modified 
to military specifications for use as lethal instruments of war that 
expel a shot, bullet, or projectile by action of an explosive. Small 
arms are broadly categorized as those weapons intended for use by 
individual members of armed or security forces. They include handguns; 
rifles and carbines; sub-machine guns; and light machine guns. Light 
weapons are broadly categorized as those weapons designed for use by two 
or three members of armed or security forces serving as a crew, although 
some may be used by a single person. They include heavy machine guns; 
hand-held under-barrel and mounted grenade launchers; portable anti-
aircraft guns; portable anti-tank guns; recoilless rifles; man-portable 
launchers of missile and rocket systems; and mortars.
    Solid waste. Includes garbage, refuse, and other discarded 
materials, including solid waste materials resulting from industrial, 
commercial, and agricultural operations, and from community activities. 
Includes solids, liquid, semi-solid or contained gaseous material which 
is discarded and not otherwise excluded by statute or regulation. Mining 
and agricultural solid wastes, hazardous wastes (HW), sludge, 
construction and demolition wastes, and infectious wastes are not 
included in this category.
    Special programs. Programs specified by legislative approval, such 
as FMS,

[[Page 756]]

LEAs and fire fighters, identified on DLA Disposition Services Web site 
(https://www.disposition services.dla.mil/rtd03/ miscprograms.shtml).
    State agency for surplus property (SASP). The agency designated 
under State law to receive Federal surplus personal property for 
distribution to eligible donation recipients within the States as 
provided for in 40 U.S.C. 549.
    State or local government. A State, territory, or possession of the 
United States, the District of Columbia, and any political subdivision 
or instrumentality thereof.
    Transfer. The act of providing FEPP and excess personal property to 
FCAs as stipulated in the FMR. Property is allocated by the GSA.
    Transfer order. Document (SF 122 and SF 123) issued by DLA 
Disposition Services or the headquarters or regional office of GSA 
directing issue of excess personal property.
    Trade security control (TSCs). Policy and procedures, in accordance 
with DoD Instruction 2030.08, designed to prevent the sale or shipment 
of USG materiel to any person, organization, or country whose interests 
are unfriendly or hostile to those of the United States and to ensure 
that the disposal of DoD personal property is performed in compliance 
with U.S. export control laws and regulations, the International Traffic 
in Arms Regulations (ITAR) in 22 CFR parts 120 through 130, and the EAR 
in 15 CFR parts 730 through 774.
    Unique item identifier (UII). A set of data elements marked on an 
item that is globally unique and unambiguous. The term includes a 
concatenated UII or a DoD recognized unique identification equivalent.
    Usable property. Commercial and military type property other than 
scrap and waste.
    Wash-post. A methodology for transfer of accountability to the DLA 
Disposition Services site whereby the DLA Disposition Services site only 
accepts accountability at the time they also document a release from the 
account, through reutilization, transfer, donation, sales, or disposal.
    Zone of interior (ZI). The United States and its territories and 
possessions, applicable to areas covered by GSA and where excess 
property is considered domestic excess. Includes the 50 States, District 
of Columbia, Puerto Rico, American Samoa, Guam, Northern Mariana 
Islands, and the U.S. Virgin Islands.



Sec. 273.13  Policy.

    It is DoD policy consistent with 41 CFR chapters 101 and 102 that 
excess DoD property must be screened and redistributed among the DoD 
Components, and reported as excess to the GSA. Pursuant to 40 U.S.C. 
701, DoD will efficiently and economically dispose DoD FEPP.



Sec. 273.14  Responsibilities.

    (a) The Assistant Secretary of Defense for Logistics and Materiel 
Readiness (ASD(L&MR)), under the authority, direction, and control of 
the USD(AT&L), and in accordance with DoD Directive 5134.12:
    (1) Develops DoD materiel disposition policies, including policies 
for FEPP.
    (2) Oversees the effective implementation of the DoD materiel 
disposition program.
    (3) Approves changes to FEPP procedures as appropriate to support 
contingency operations.
    (b) The Director, Defense Logistics Agency (DLA), under the 
authority, direction, and control of the Under Secretary of Defense for 
Acquisition, Technology, and Logistics, through the Assistant Secretary 
of Defense for Logistics and Materiel Readiness (ASD(L&MR)):
    (1) Administers the worldwide Defense Materiel Disposition Program 
for the reutilization, transfer, screening, issue, and sale of FEPP, 
excess, and surplus personal property.
    (2) Implements guidance issued by the ASD(L&MR) or other 
organizational elements of the OSD and establishes system concepts and 
requirements, resource management, program guidance, budgeting and 
funding, training and career development, management review and 
analysis, internal control measures, and crime prevention for the 
Defense Materiel Disposition Program.

[[Page 757]]

    (3) Annually provides to ASD(L&MR) a summary of sales proceeds from 
recycling transactions in accordance with 10 U.S.C. 2577.
    (4) Ensures prompt processing of monthly sales proceeds under the 
QRP to DoD Components for reconciliation of sales proceeds and 
transactions.
    (c) The DoD Component Heads:
    (1) Implement the procedures prescribed in this subpart and ensure 
that supplemental guidance and procedures are in accordance with 41 CFR 
chapters 101 and 102.
    (2) Reutilize, transfer, screen, issue and sell FEPP, excess and 
surplus personal property according to the procedures in Sec. 273.15(a) 
and (c).
    (3) Treat the disposal of DoD property as an integral part of DoD 
Supply Chain Management; ensure that disposal actions and costs are a 
part of ``end-to-end'' management of items and that disposal of property 
is a planned event at all levels of their organizations.
    (4) Furnish the Director, DLA, with mutually agreed-upon data 
necessary to administer the Defense Materiel Disposition Program.
    (5) Provide administrative and logistics support, including 
appropriate facilities, for the operations of tenant and related off-
site DLA Disposition Services field activities under inter-Service 
support agreements (ISSAs).
    (6) Dispose HP specifically designated as requiring Military 
Department processing.
    (7) Request DLA Disposition Services provide sales services, as 
needed, for recyclable marketable materials generated as a result of 
resource recovery programs.
    (8) Monitor, with DLA Disposition Services Site personnel, all 
property sent to landfills to ensure no economically salable property is 
discarded.
    (9) Report, accurately identify on approved turn in documents, and 
turn in all authorized scrap generations to servicing DLA Disposition 
Services Sites.
    (10) Authorize installation commanders, as appropriate, to sell 
directly recyclable and other QRP materials, or to consign them to the 
DLA Disposition Services for sale.



Sec. 273.15  Procedures.

    (a) Sale of surplus and FEPP, scrap generated from QRPS, and non-QRP 
scrap--(1) Authority and scope--(i) FPMR and FMR. The provisions of this 
section are pursuant to 41 CFR chapters 101 and 102, also known as the 
FPMR and FMR, respectively.
    (ii) Additional guidance. (A) Policy and procedures for the control 
of MLIs and Commerce Control List (CCL) items are contained in DoD 
Instruction 4160.28, DoD 4160.28-M Volumes 1-3, DoD Instruction 4140.62, 
``Materiel Potentially Presenting an Explosive Hazard'' (available at 
http://www.dtic.mil/ whs/directives/corres/ pdf/414062p.pdf), the 
International Traffic in Arms Regulations (ITAR) in 22 CFR parts 120 
through 130, and the EAR in 15 CFR parts 730 through 774, and 
incorporated in the provisions of DoD Instruction 2030.08.
    (B) 31 U.S.C. 3711-3720E provides an additional statutory 
requirement applicable to the sale of personal property.
    (C) 48 CFR part 33 provide additional guidance on handling disputes 
from the sale of personal property.
    (D) 48 CFR subpart 9.4 of the Federal Acquisition Regulation (FAR), 
current edition, provides direction on the debarment or suspension of 
individuals or entities.
    (E) Sales of FEPP, although briefly addressed in the FMR, are 
managed by the agency head and must be in compliance with foreign policy 
of the United States and the terms and conditions of any applicable 
host-nation agreement. For additional information on processing FEPP, 
see Enclosure 4 to DoD Manual 4160.21, Volume 2.
    (F) DoD Directive 3230.3, ``DoD Support for Commercial Space Launch 
Activities'' (available at http://www.dtic.mil/ whs/directives/corres/ 
pdf/323003p.pdf) allows the sale of dedicated expendable launch vehicle 
(ELV) equipment directly to commercial ELV vendors in consultation with 
the Secretary of Transportation.
    (2) Exclusions. This subpart does not govern the sale of property 
that is regulated by the laws or agencies identified in paragraphs 
(a)(2)(i) through (iv) of this section. The information in

[[Page 758]]

paragraphs (a)(2)(i) through (iv) is included for the DoD Components to 
reference when commodities in their possession become excess and 
disposal requires compliance with this part.
    (i) The Strategic and Critical Materials Stock Piling Act (50 U.S.C. 
98 et seq.) provides for the acquisition, disposal (sale) and retention 
of stocks of certain strategic and critical materials and encourages the 
conservation and development of sources of such materials within the 
United States. These materials when acquired and stored constitute and 
are collectively known as the National Defense Stockpile (NDS) or the 
``stockpile.''
    (ii) The Department of Transportation Maritime Administration has 
jurisdiction over the disposal of vessels of 1,500 gross tons or more 
that the Secretary of Transportation determines to be merchant vessels 
or capable of conversion to merchant use, excluding specified combatant 
vessels.
    (iii) Under the provisions of 10 U.S.C. 2576, the Secretary of 
Defense may sell designated items (such as pistols, revolvers, shotguns, 
rifles of a caliber not exceeding .30, ammunition for such firearms, and 
other appropriate equipment) to State and local law enforcement, 
firefighting, homeland security, and emergency management agencies, at 
fair market value if the designated items:
    (A) Have been determined to be surplus property.
    (B) Are certified as being necessary and suitable for the operation 
and exclusive use of such agency by the Governor (or such State official 
as he or she may designate) of the State in which such agency is 
located.
    (C) Do not include used gas masks and any protective body armor.
    (iv) DLA Disposition Services provides a sales service to the DoD 
pursuant to the exchange or sale according to the procedures in DoD 
Manual 4140.01 that implement the authority in 41 CFR part 102-39; 
however, general and specific provisions through this method of sale are 
not addressed in this subpart. More information may be obtained from the 
DLA Disposition Services Exchange Sale Web site at http://
www.disposition services.dla.mil/ sales/typesale.shtml.
    (3) Sales of surplus property, FEPP, scrap generated by QRPs, and 
other scrap. (i) DLA Disposition Services is the primary agency for 
managing surplus and FEPP sales, to include sales of scrap released by 
Military Department QRPs and non-QRP scrap.
    (ii) DoD Components are responsible for disposing of surplus 
property, FEPP, scrap released by QRPs, and other scrap through sales to 
the general public and State and local governments through execution of 
an awarded contract.
    (iii) The Military Departments are authorized to sell eligible scrap 
released by their respective QRPs and non-excess property eligible for 
exchange or sale without the involvement of DLA Disposition Services in 
accordance with their internal operating guidance, DoD Manual 4140.01, 
and 41 CFR chapters 101 and 102.
    (iv) DoD Components advertise excess and surplus personal property 
for sale only after all prescribed screening actions are taken, unless 
screening is not required. See DoD Manual 4160.21 Volume 4 for exempt 
items.
    (v) Sales actions include planning, merchandising, pre-award 
reviews, bid evaluation and award, contract administration, proceeds 
receipt and disbursement, and releasing the property.
    (vi) Information on surplus and FEPP sales can be obtained from the 
DLA Customer Contact Center, accessible 24 hours a day, 7 days a week on 
the DLA Disposition Services Government Sales Web site at https://
www.disposition services.dla.mil/ sales/index.shtml.
    (vii) Within the CONUS, DLA Disposition Services has partnered with 
a commercial firm to sell usable, non-hazardous surplus demilitarization 
(DEMIL) Code A and safe to sell Q property that is not reutilized, 
transferred, or donated. The commercial venture partner schedules and 
holds sales of property released to it by DLA Disposition Services. DLA 
Disposition Services has partnered with a commercial firm to sell scrap 
property. The scrap venture partner schedules and holds sales of scrap 
property released to it by DLA Disposition Services.
    (viii) DLA Disposition Services conducts the balance of surplus and 
FEPP

[[Page 759]]

sales. This includes hazardous and chemical sales and DEMIL- and 
mutilation-required property and scrap sales in controlled property 
groups.
    (A) DoD Components implement controls to mitigate security risks 
associated with the release or disposition of DEMIL Code B MLI and DEMIL 
Code Q CCL items that are sensitive for reasons of national security. 
Certain categories of DEMIL Q items that pose no risk to national 
security will be available for reutilization, transfer, or donation 
(RTD) and sales following normal procedures. However, only FEPP with 
DEMIL Code A (no export license requirements except to restricted 
parties) may be sold in foreign countries that are not restricted 
parties, in accordance with 15 CFR parts 730 through 774. DEMIL B and 
DEMIL Q items, including those posing no risk to national security are 
not permitted for sale.
    (1) DEMIL B and sensitive DEMIL Q property can only be reutilized by 
authorized DoD Components, and approved Special Programs (FMS, law 
enforcement agencies (LEAs) and fire fighters).
    (2) After DLA Disposition Services conducts initial screening, 
serviceable DEMIL B and sensitive DEMIL Q property will be transferred 
to a long term storage (LTS) facility and will remain available for 
reutilization screening by DoD and approved Special Programs customers.
    (3) LTS property can be screened electronically on the DLA 
Disposition Services Web site at https://www.Disposition 
Services.dla.mil/ asset/ govegeo1.html. No physical screening is 
permitted at the LTS facility.
    (B) DoD Components may offer for sale any property designated as 
unsafe for use as originally intended, with mutilation as a condition of 
sale. DoD Components incorporate the method and degree of mutilation 
into the sales offering, as required by an official notification of the 
safety defects. The sales offering must include a condition of sale 
stipulating that title of the property cannot pass from the Government 
to the purchaser until DoD representatives have certified and verified 
the mutilation has been satisfactorily accomplished and have documented 
this certification.
    (C) SCC Q materiel with Management Code S (as defined in DLM 
4000.25-1 is hazardous to public health, safety, or national security. 
If sold, it must require mutilation as a condition of sale. Property 
assigned SCC Q with Management Code O may be offered for sale without 
mutilation as a condition of sale, but the seller must ensure that all 
sales include a restrictive resale provision. In addition, any sales 
offerings must indicate that the restrictive resale provision is to be 
perpetuated to all future sales to deter reentry of the materiel to the 
DoD supply system.
    (D) Hazardous property may be offered for sale with appropriate 
terms and conditions. Prior to award, DoD Components conduct a pre-award 
review to determine whether the prospective purchaser meets the 
responsibility criteria in 41 CFR chapter 102. The prospective purchaser 
must display the ability to comply with applicable laws and regulations 
before the DoD Components can make an award.
    (E) Only FEPP with DEMIL Code A (no export control requirements 
except to restricted parties) may be offered for sale in foreign 
countries that are not restricted parties in accordance with 15 CFR 
parts 730 through 774 and with additional DoD guidance in DoD 4160.28-M 
Volumes 1-3. The sales offering must include terms and conditions 
relating to taxes and duties, import stipulations, and compliance with 
international and local laws and regulations. See Enclosure 4 to DoD 
Manual 4160.21, Volume 2 for additional information.
    (F) Other types of sales offerings for property requiring special 
handling must include applicable terms and conditions.
    (ix) All persons or organizations are entitled to purchase property 
offered by DLA Disposition Services except for:
    (A) Anyone under contract to conduct a specific sale, their agents 
or employees, and immediate members of their households.
    (B) DoD military and civilian personnel and military and civilian 
personnel of the United States Coast Guard (USCG) whose duties include

[[Page 760]]

any functional or supervisory responsibilities for or within the Defense 
Materiel Disposition Program, their agents, employees, and immediate 
members of their households.
    (C) Any persons or organizations intending to ship FEPP, excess and 
surplus personal property to restrictedparties. See http://
pmddtc.state.gov/ embargoed_csuountries/ index.html or https://
demil.osd.mil/ or http://treas.gov/ offices/ enforcement/ ofac/programs 
for additional information on shipments to restricted parties.
    (D) Persons under 18 years of age.
    (E) Individuals or firms who are ineligible to be awarded government 
contracts due to suspension or debarment. See the GSA Excluded Parties 
List at http://epls.gov or https://demil.osd.mil/ or http://treas.gov/ 
offices/enforcement/ ofac/sdn/ or http://bis.doc.gov/ 
complianceandenforcement/ liststocheck.htm.
    (F) Persons or entities who wish to purchase MLI or CCL items who do 
not meet the requirements to receive an end user certificate (EUC) as 
specified in 22 U.S.C. 2778 et seq., also known as the Arms Export 
Control Act, and the implementing regulations 22 CFR parts 120 through 
130, also known as the International Traffic In Arms Regulations and 15 
CFR parts 730 through 774, also known as the Export Administration 
Regulations. Information on demilitarized materiel is provided at 
https://demil.osd.mil/. A consolidated list of prohibited entities or 
destinations may be found at http://export.gov/ ecr/eg_main_ 023148.asp.
    (x) Disposable assets (FEPP, scrap, NAF property, disposable (MAP 
property, etc.) may not be sold directly or indirectly to restricted 
parties or any other areas designated by DoD 4160.28-M Volumes 1-3.
    (xi) DoD Components will update the DoD IUID Registry when an item 
of personal property with a UII is declared FEPP, excess and surplus 
personal property and is subject to reutilization, transfer, or sale. 
The procedures required to update the DoD IUID Registry are in Sec. 
273.9.
    (4) Responsibilities in selling personal property--(i) Selling 
agencies. Selling agencies:
    (A) Determine whether to sell as the holding agency or request 
another agency to sell on behalf of the holding agency.
    (B) Ensure the sale complies with the provisions of 40 U.S.C. 549, 
and any other applicable laws.
    (C) Issue internal guidance for utilizing methods of sale stipulated 
in subchapter B of 41 CFR chapter 102, and promote uniformity of sales 
procedures.
    (D) Obtain appropriate authorization to conduct sales of certain 
property or under certain conditions (e.g., approval by the agency head 
to use the negotiation method of sale).
    (E) Ensure that all sales are made after publicly advertising for 
bids, except as provided for negotiated sales in 41 CFR 102-38.100 
through 102-38.125.
    (F) Document the required terms and conditions of each sale, 
including but not limited to those terms and conditions specified in 41 
CFR 102-38.75.
    (G) Sell personal property upon such terms and conditions as the 
head of the agency deems appropriate to promote fairness, openness, and 
timeliness. Standard Government forms (e.g., the Standard Form (SF) 114 
series, ``Sale of Government Property'') are no longer mandatory, but 
may be used to document terms and conditions of the sale.
    (H) Assure that only representatives designated in writing by the 
selling agency as selling agent representatives (SARs) are appointed to 
approve the sale and bind the United States in a written contractual 
sales agreement. The DLA Disposition Services equivalent of SARs are 
SCOs. The selling agency determines the requirements for approval (e.g., 
select the monetary thresholds for awarding sales contracts).
    (I) Adequately train SARs in regulatory requirements and limitations 
of authority. Ensure SARs are cognizant in identifying and referring 
matters relating to fraud, bribery, or criminal collusion to the proper 
authorities in accordance with 41CFR 102-38.50 and 102-38.225.
    (J) Obtain approvals as necessary prior to award of the property 
(e.g., an approval by the Attorney General of the United States to award 
property with a fair market value of $3 million

[[Page 761]]

or more or if it involves a patent, process, technique, or invention) as 
specified in 41 CFR 102-38.325.
    (K) Be accountable for the care, handling, and associated costs of 
the personal property prior to its removal by the buyer.
    (L) Reconcile property and financial records to reflect the final 
disposition.
    (M) Make the property available to FCAs when a bona fide need exists 
and when no like items are located elsewhere prior to transfer of title 
to the property, to the maximum extent practicable.
    (N) Subject small quantities of low dollar value property in poor 
condition to the A/D Economy Formula (see Enclosure 3 to DoD Manual 
4160.21, Volume 2). If there is no reasonable prospect of disposing of 
the property by sale (including a scrap sale), dispose of the property 
with the A/D processes.
    (O) Ensure that the DoD IUID Registry is updated for DoD personal 
property items marked with a UII in accordance with Sec. 273.6.
    (ii) Sales conducted by DLA Disposition Services. As the major 
selling agency for the Department of Defense and an approved GSA 
Personal Property Sales Center, DLA Disposition Services must, in 
compliance with requirements in paragraph (a)(4)(i) of this section:
    (A) Carefully consider all factors and determine the best method of 
sale for personal property utilizing identification, segregation, 
merchandising, advertising, bid evaluation, and award principles to 
protect the integrity of the sales process.
    (B) Utilize any publicly accessible electronic media for providing 
information regarding upcoming sales, invitations for bid (including 
sales terms and conditions), acceptance of bids, and bid results.
    (C) Provide direction to the DLA Disposition Services site through 
its internal operating procedures and automated systems.
    (D) Verify that personal property items marked with a UII and 
offered for sale have been updated in the DoD IUID Registry.
    (iii) Authorized methods of sale--(A) General. Sale of personal 
property is authorized in 41 CFR part 102-38 by the methods of sale 
identified in paragraphs (a)(4)(iii)(A)(1) through (4) of this section. 
(See Sec. 273.12 for definitions.)
    (1) Sealed bid.
    (2) Spot bid.
    (3) Auction.
    (4) Negotiated sale. Criteria for negotiated sales include:
    (i) The estimated fair market value is not in excess of $15,000 and 
the sale is considered to be in the best interest of the USG. Large 
quantities of materiel were not divided nor disposed through multiple 
sales in order to avoid these requirements.
    (ii) For FEPP, the estimated fair market value is less than 
$250,000; sale is managed by DLA Disposition Services and authorized by 
DLA Disposition Services Director or designee.
    (iii) Disposal is to a State, territory, possession, political 
subdivision thereof, or tax-supported agency therein, and the estimated 
fair market value of the property and other satisfactory terms of 
disposal are obtained by negotiation.
    (iv) Bid prices after advertising are not reasonable and re-
advertising would serve no useful purpose.
    (v) Public exigency does not permit delay, such as that caused by 
the time required to advertise a sale (e.g., disposal of perishable food 
or other property that may spoil or deteriorate rapidly).
    (vi) The sale promotes public health, safety, or national security.
    (vii) The sale is in the public interest in a national emergency 
declared by the President or Congress. This authority may be used only 
with specific lots of property or for categories determined by the GSA 
Administrator for a designated period but not more than 3 months.
    (viii) Selling the property competitively (sealed bid) would have an 
adverse impact on the national economy, provided that the estimated fair 
market value of the property and other satisfactory terms of disposal 
can be obtained by negotiation (e.g., sale of large quantities of an 
agricultural product that impacts domestic markets).
    (ix) The sale is otherwise authorized by 41 CFR chapter 102 or other 
law.
    (5) Negotiated fixed price.

[[Page 762]]

    (i) The head of the selling agency or designee must determine and 
document that this method of sale serves the best interest of the 
government.
    (ii) This type of sale must include appropriate terms and 
conditions; must be publicized consistent with the nature and value of 
the property involved; and be awarded on a first-come, first-served 
basis.
    (B) Sales of surplus, foreign excess, and other categories of 
property. Within the constraints of the FMR-authorized methods of sale 
in paragraphs (a)(4)(iii)(A)(1) through (5) of this section, the types 
of sales that may be conducted for surplus, foreign excess, and other 
categories of property sold in the DoD Defense Materiel Disposition 
Program are:
    (1) One-time sales for disposal of property already generated. 
Actual deliveries may comprise several release transactions.
    (2) Term sales for the disposal of property generated over a period 
of time and in quantities that can be reasonably estimated for a 
specific period of time or are offered with minimum and maximum quantity 
provisions.
    (iv) Negotiated sales reporting. Negotiated sales reports are 
required by GSA within 60 calendar days after the close of each fiscal 
year. DoD Components include in the report a listing and description of 
all negotiated sales with an estimated fair market value in excess of 
$5,000. For each sale negotiated, the report must provide:
    (A) A description of the property.
    (B) The acquisition cost and date. If not known, an estimate of the 
acquisition cost, identified as such.
    (C) The estimated fair market value, including the date of the 
estimate and name of the estimator.
    (D) The name and address of purchaser.
    (E) The date of sale.
    (F) The gross and net sales proceeds.
    (G) A justification for conducting the negotiated sale.
    (v) GSA or DoD-authorized retail method of sale. Sales of small 
quantity, consumer-oriented property at negotiated, auction, or bid 
prices that are conducted on a first-come; first-served; and as-is, 
where-is basis are considered retail sales. Credit or debit cards are 
the only authorized payment methods. Property having a fair market value 
exceeding $15,000 is subject to the limitations applicable to negotiated 
sales of surplus personal property.
    (A) Retail sales of surplus, FEPP, and abandoned privately owned 
property may be conducted whenever such a program can effectively and 
economically be used to supplement other methods of sale. Retail sales 
must be approved in writing at an agency level on a case-by-case basis, 
and the approval must specify the quantities and types of property and 
time period covered. These authorizations are limited to specific 
situations and types of property for which deviation can be fully 
justified. In addition:
    (1) All items must undergo screening, as appropriate, before being 
offered for retail sale.
    (2) Each item being sold must have a fair market value of less than 
$15,000.
    (3) All property received as items, if offered for sale by retail, 
must be sold as items and not by weight or lot, with the exception of 
scrap authorized for retail sale.
    (4) Prices established must reflect the estimated fair market value 
of the property and must be publicized to the extent consistent with the 
nature and value of the property.
    (5) Retail sales are limited to the Federal Supply Classification 
Codes (FSCs), according to the DEMIL code assigned and GSA approval, 
which are in 41 CFR chapter 102.
    (6) Property must be DEMIL Code A and have a DEMIL Integrity Code 1, 
7, or 9.
    (7) The retail selling price of the property, based on the 
condition, may not be set below the price it would bring from a 
commercial vendor.
    (B) Approval in accordance with 41 CFR chapters 101 and 102 is 
required to sell scrap by the retail sale method.
    (C) Only trained cashiers are authorized to collect and deposit 
proceeds received from a retail sale. Retail sales are open to the 
public and all USG personnel except:
    (1) DoD military and civilian personnel and contractors and military 
and civilian personnel and contractors

[[Page 763]]

of the USCG whose duties at the installation where the property is sold 
include any functional or supervisory responsibility for or within the 
DoD Materiel Disposition Program.
    (2) An agent, employee, or immediate member of the household of 
personnel in paragraph (a)(4)(v)(C)(1) of this section.
    (vi) Market impact. (A) DoD Components will give careful 
consideration to the adverse market impact that may result from the 
untimely sale of large quantities of certain surplus items. Where 
applicable, the selling agency or partner organizations consult with 
organizations associated with the commodity proposed for sale to obtain 
advice on the market impact.
    (B) Property reporting and sale schedules are developed to ensure 
expeditious property disposal, maximum competition, maximum sale 
proceeds, good public relations, and uniform workload.
    (C) The selling agency will provide advance notice of all proposed 
or scheduled competitive bid sales (except negotiated) of surplus usable 
property. This includes property:
    (1) Located in the 50 United States, the District of Columbia, 
Puerto Rico, American Samoa, Guam, the Federated States of Micronesia, 
the Northern Mariana Islands, Palau, and the U.S. Virgin Islands.
    (2) With a total acquisition cost of $250,000 or more per sale.
    (3) With a minimum potential return of $5,000 per sale of scrap and 
recyclable material.
    (5) Advertising to promote free and open competition. DoD Components 
will:
    (i) Bring property offered for sale to the attention of the buying 
public by free publicity and paid advertising.
    (ii) Make every effort to obtain maximum free publicity through 
sites such as a Government-wide point of entry, https://
www.fedbizopps.gov.
    (iii) Employ the amount of paid advertising commensurate with the 
type and value of property being sold.
    (iv) Distribute sale offerings to prospective purchasers before the 
first day of the inspection period.
    (6) Pre-sale activities--(i) Preparation and distribution of sale 
offerings--(A) Include in the offer to sell sale date and time, method 
of sale, description of the property being offered, selling agency, 
location of property, time and place for receipt of bids, acceptable 
forms of bid deposits and payments, and general and special terms and 
conditions of sale. DLA Disposition Services sale offerings are 
available on the DLA Disposition Services Web site (www.disposition 
services.dla.mil).
    (B) Establish a sales offering file that contains information about 
the property offered for sale from initiation to bid opening (e.g., sale 
catalog, withdrawals prior to bid opening, agreements with holding 
activities).
    (C) Prepare sale offerings to provide prospective purchasers with 
general information and instructions.
    (D) Include in each offering the specific conditions of sale, the 
contents of which are determined by the selling agency. The SF 114 
series may be used to document the terms and conditions of a sale, but 
their use is not mandatory. Conditions of sale include, but are not 
limited to:
    (1) Inspection results.
    (2) Condition and location of property.
    (3) Eligibility of bidders.
    (4) Consideration of bids.
    (5) Bid deposits and payments.
    (6) Submission of bids.
    (7) Bid price determination.
    (8) Legal title of ownership.
    (9) Delivery, loading, and removal of property.
    (10) Default, returns, or refunds.
    (11) Modifications, withdrawals, or late bids.
    (12) Requirements to comply with applicable laws and regulations.
    (13) Certificate of independent price determination.
    (14) Covenant against contingent fees.
    (15) Limitation of government liability.
    (16) Award of contract.
    (E) DEMIL-required MLI property may not be sold unless DEMIL has 
been accomplished or it is offered for sale with DEMIL as a condition of 
sale. Incorporate the method and degree of DEMIL into the sales 
offering.
    (1) If DEMIL is a condition of sale, the sales offering must include 
a condition of sale stipulating that title of the

[[Page 764]]

property will not pass from the government to the purchaser until the 
property has been satisfactorily DEMIL and has been certified and 
verified in accordance with DoD 4160.28-M Volumes 1-3.
    (2) The sales offering must also include a requirement for the 
bidder to provide an EUC to the selling agency specifying the intended 
use and disposition of the property. The sales offering will also 
include an agreement by the buyer that they will obtain appropriate 
export authorizations from the Departments of Commerce or State prior to 
any export of the item. DLA Disposition Services uses DLA Form 1822, 
``End-Use Certificate.'' The EUC must be processed through designated 
approval channels prior to award of the property to the prospective 
customer.
    (3) The EUC for scrap mutilation residue must be incorporated into 
the sales offering for all MLI and CCL items property, including 
mutilation residue that may still be classified as DEMIL Code B or Q.
    (ii) Inspections. Each sales offering will include an electronic or 
physical inspection period of at least 7 calendar days before the bid 
opening.
    (iii) Bid deposits. The selling agency may incorporate a requirement 
for bidders to provide or post a bid deposit or a bid deposit bond in 
lieu of cash or other acceptable forms of deposit to protect the 
government's interest.
    (iv) PM bid deposits. PM offerings will include a 20 percent bid 
deposit. A deposit bond may be used in lieu of cash or other acceptable 
form of deposit when permitted by the sales offering. If awarded, the 
bid deposit will be applied to the total contract price. Unsuccessful 
bid deposits will be returned. Bid deposit bonds will be returned to the 
bidder when no longer needed to secure the property.
    (v) Payments. (A) Selling agencies will implement a payment policy, 
pursuant to 41 CFR chapter 102 that protects the government against 
fraud.
    (B) Acceptable forms of payment include but are not limited to:
    (1) Guaranteed negotiable instruments made payable to or endorsed to 
the U.S. Treasury in any form (e.g., cashier's check, certified check, 
traveler's check, bank draft, or postal or telegraphic money order).
    (2) Canadian postal money orders designed for payment in the United 
States must state specifically that they are payable in U.S. dollars in 
the United States.
    (3) Electronic funds transfer. Special instructions are available 
through the DLA Disposition Services Web site and must be followed if 
this option is chosen.
    (4) Credit or debit cards.
    (5) Combinations of payment methods in paragraphs (a)(6)(v)(B)(1) 
through (5) of this section.
    (6) Other acceptable forms of payment include:
    (i) Uncertified personal or company check for amounts over $25.00 
accompanied by an irrevocable commercial letter of credit issued by a 
U.S. bank, payable to the Treasurer of the United States or to the 
selling agency. The check may not exceed the amount of the letter of 
credit. Each letter of credit must be an original or clearly state on 
its face that reproductions of the original document may be considered 
as an original document, and clearly state that requests for payment 
will be honored at any time they are presented by the selling agency. 
Selling agents will reject letters of credit with an expiration date. In 
addition, the minimum criteria required for acceptance of letters of 
credit are to state clearly that it is a commercial letter of credit (it 
need not say it is irrevocable, but it cannot say it is revocable); be 
on bank stationery; state the maximum amount guaranteed; state the name 
and address of the company or individual submitting the bid; state the 
sales offering number and opening date; and be signed by the issuer 
(authorized signature of bank official).
    (ii) Uncertified personal or company checks in the amount of $25.00 
or less when submitted for ancillary charges (e.g., debt payment, 
storage charge, liquidated damages, interest).
    (iii) Any form of payment received from a NAF instrumentality or a 
State or local government.
    (7) Acceptable country currencies and information on exchange rates 
used must be provided in the sales offering

[[Page 765]]

and be incorporated into the sales offering. Generally, the exchange 
rate for receipt of monies or payments in designated currencies is 
established on the date of the deposit, which is generally the date of 
receipt.
    (8) FEPP buyers must pay in U.S. dollars or the equivalent in 
foreign currency that is readily convertible into U.S. dollars. Where 
U.S. dollars are not available, the acceptance of foreign currency is 
authorized subject to these conditions:
    (i) Payments exceeding the equivalent of $5,000 U.S. in individual 
sale transactions (that is, for the total of all items offered in a 
single sale, not for individual items included in a sale) may be 
accepted only after obtaining prior approval from the Defense Finance 
and Accounting Service (DFAS). When required, DFAS will submit the 
requests through the chain of command to DoS and Department of Treasury 
for approval. In countries where a considerable amount of FEPP may be 
available for sale and it may be necessary to accept foreign currency, 
the selling agency will request from DFAS an annual authorization, on a 
calendar year basis, to accept foreign currency.
    (ii) Payments of up to the equivalent of $5,000 U.S. for individual 
transactions, at the rate of exchange applicable to the USG, may be 
accepted without further consultation if assurance has been obtained 
through the local DoS representative that such currency may be used in 
payment of any or all USG expenditures in the country whose currency is 
accepted. This provision is applicable only when annual authorizations 
have not been received; it is not feasible to sell for U.S. dollars or 
to ship the property to a country (other than the United States, except 
where property is a type authorized for return) where it may be sold for 
U.S. dollars or a freely convertible foreign currency; the currency is 
not that of a country whose assets in the United States are blocked by 
Department of Treasury regulations; the currency is that of a country 
with which the United States maintains diplomatic relations; and foreign 
currency accepted need not be the currency of the country of sale if the 
currency offered is otherwise acceptable to DoS and Department of 
Treasury and can be accepted pursuant to U.S. and host government 
agreements governing the sale of FEPP. In this connection, the sales 
offerings will indicate the foreign currencies that will be accepted for 
a particular sale.
    (vi) Transfer of title. Selling agencies must document the transfer 
of title of the property from the government to the purchaser:
    (A) By providing to the purchaser a bill of sale.
    (B) By notification within a contract clause stipulating when the 
transfer is affected. For instance:
    (1) Upon removal from the exact location specified in the sales 
offering.
    (2) Upon certification and signature by the government that all 
required demilitarization has been accomplished in accordance with DoD 
Instruction 4160.28.
    (C) By providing certifications required from the buyer prior to a 
transfer of title. An SF 97, ``Certificate of Release of a Motor 
Vehicle,'' (available at http://www.gsa.gov/forms) is required for the 
sale of vehicles. Selling agencies must provide internal guidance on how 
the transfer will occur and what documentation is required.
    (vii) Defaults. If a purchaser breaches a contract by failure to 
make payment within the time allowed or by failure to remove the 
property as required, or breaches other contractual provisions, the 
purchaser is in default. The selling agency representative will give the 
purchaser a written notice of default and a period of time to cure the 
default.
    (A) If the purchaser fails to cure the default, the selling agency 
is entitled to collect or retain liquidated damages as specified in the 
sales offer or contract.
    (B) If a bid deposit was required and the bidder secured the deposit 
with a deposit bond, the selling agency must issue the notice of default 
to the bidder and the surety company.
    (viii) Disputes. All sales offers will include the disputes clause 
contained in 48 CFR 52.233-1 of the FAR.
    (7) Bidder eligibility criteria. (i) As a rule, selling agencies may 
accept bids from any person, representative, or

[[Page 766]]

agent from any entity. To be considered eligible for award of a sales 
contract, the bidder must be of legal age and not be debarred, 
suspended, or indebted to the USG, or from a restricted party. Any 
exceptions must be authorized by the selling agency head, who has 
determined that there is a compelling reason to make the award. A list 
of parties excluded from federal procurement and non-procurement 
programs can be obtained on the GSA Excluded Parties List System Web 
site at http://epls.gov or the OSD DEMIL Web site at https://
demil.osd.mil/.
    (ii) Personal property may be sold to a federal employee whose 
agency does not prohibit the employees from purchasing such property. 
Unless allowed by a federal or agency regulation, employees having non-
public information regarding property offered for sale may not 
participate in that sale. This applies to an immediate member of the 
employee's household.
    (8) Suspension and debarment of bidders. (i) 41 CFR 102-38.170, 31 
U.S.C. 6101 note, Executive Order 12549, ``Debarment and Suspension'' 
(February 18, 1986), and Executive Order 12689, ``Debarment and 
Suspension'' (August 16, 1989) provide the authority for the suspension 
or debarment of bidders or contractors purchasing personal property from 
the government. The selling agent must follow the procedures described 
in 48 CFR subpart 9.4 of the FAR to debar or suspend a person or entity 
from the purchase of personal property. The debarring official for DLA 
Disposition Services sales is the DLA Special Assistant for Contracting 
Integrity.
    (ii) Appointed SARs and SCOs will:
    (A) Prepare recommendations for suspension or debarment from the 
sale of Federal property and acquisition contracts.
    (B) Forward them to their respective servicing legal offices.
    (C) Prepare reports recommending suspension or debarment using the 
procedures described in 48 CFR subpart 209.4 of the Defense FAR 
Supplement, current edition, in all cases where purchasers are 
recommended for suspension or debarment.
    (iii) In addition to applicable guidance in 48 CFR subpart 9.4 and 
48 CFR 45.602-1, 52.233-1, and 14.407 of the FAR and 48 CFR subpart 
209.4 of the Defense FAR Supplement, current edition, contractors who 
are suspended, debarred, or proposed for debarment are also excluded 
from conducting business with the government as agents or 
representatives of another contractor. Firms or individuals who submit 
bids on sale solicitations on behalf of suspended or debarred 
contractors, or who in any other manner conduct business with the 
government as agents or representatives of suspended or debarred 
contractors, may be treated as affiliates as described in 48 CFR 9.403 
of the FAR, and may be suspended or debarred.
    (iv) Parties who violate trade security control (TSC) policies may 
be recommended for debarment or suspension.
    (9) Indebted bidders and purchasers. (i) No awards may be made to 
bidders indebted to the government. Selling agencies will coordinate 
with DFAS to determine if a bidder is indebted to DoD and maintain local 
listings containing bidder name, address, sales contract information, 
amount of indebtedness, and date indebted.
    (ii) Circumstances where the SAR or SCO must initiate action 
include:
    (A) At bid opening. Bidders can bid if they cure the debt prior to 
the opening.
    (B) As the result of monies owed the contractor as a refund.
    (C) As a result of monies received for bid deposit.
    (D) As a result of failure to make payment for overages, ancillary 
charges, etc.
    (E) As a result of affiliation with suspended bidder.
    (iii) Checks received for debts will be deposited immediately and 
the bidder will not be notified until the check has cleared its bank. 
Cash or negotiable instruments will be deposited immediately.
    (iv) SARs or SCOs will contact the bidder and advise that the monies 
have been deposited to offset the specific indebtedness.
    (v) If a SAR or SCO suspects affiliation, the SAR or SCO will 
contact the bidder and advise that the monies have

[[Page 767]]

been deposited according to the procedures in 31 U.S.C. 3711-3720E for 
the collection of debts owed to the United States.
    (10) Bid evaluation--(i) Responsive bids and responsible bidders. 
(A) Only responsive bids (as defined in the Sec. 273.12) may be 
considered for award.
    (B) Bidders do not have to use authorized bid forms. The bid may be 
considered when the bidder agrees to all of the terms and conditions and 
acknowledges that the offer may result in a binding contract award.
    (C) The selling agency must determine that the bidder is a 
responsible person or represents a responsible entity.
    (ii) Late bids. The selling agency will consider late bids for award 
if the bid was delivered in a timely fashion to the address specified in 
the sales offering but did not reach the official designated to accept 
the bid by the bid opening time due to a government delay.
    (iii) Bid modification or withdrawal. (A) A bidder may modify or 
withdraw its bid prior to the start of the bid opening. After the start 
of the sale, the bidder will not be allowed to modify or withdraw its 
bid.
    (B) The selling agency representative may consider late bid 
modifications to an otherwise successful bid at any time, but only when 
it makes the terms of the bid more favorable to the government.
    (iv) Mistakes in bids prior to award. (A) The administrative 
procedures for handling mistakes in bids (prior to or after award) are 
contained in 41 CFR 102-38.260, which utilizes the processes of 48 CFR 
14.407 of the FAR for federal property sales.
    (B) The selling agency head or designee may delegate the authority 
to make administrative decisions regarding mistakes in bid to a central 
authority or alternate. This delegation may not be re-delegated by the 
authority or alternate.
    (C) A signed copy of the administrative determination must be 
included in the contract file and provided to the Government 
Accountability Office, when requested.
    (v) Bid rejections. In the event a bid is rejected, the next most 
advantageous bid may be considered. If an entire sales offering is 
rejected, all items within that sale may be reoffered on another sale.
    (vi) Identical bids. If there are multiple high bids of the same 
amount, the SAR or SCO must consider other factors of the sale (e.g., 
payment arrangements, estimated removal time) that would make one offer 
more advantageous to the government. Otherwise, the SAR or SCO may use 
random tie breakers to avoid expense of reselling or reoffering the 
property.
    (vii) Suspected collusion. The SAR or SCO must refer any suspicion 
of collusion to the agency's Office of the Inspector General or the 
Department of Justice (DOJ) through its legal counsel.
    (viii) Protests. Protests by bidders regarding validity of 
determinations made on the sale of personal property may be submitted to 
the DLA Disposition Services Comptroller General or comptroller general 
for the selling agent.
    (11) Awarding sales contracts--(i) Selling agents. SARs or SCOs 
will:
    (A) Be appointed by agency heads or their designees to act as 
selling agents for the USG.
    (B) Enter into and administer contracts for the sale of government 
property pursuant to the provisions of 40 U.S.C. 101 et seq. and other 
applicable statutes and regulations.
    (C) Award and distribute contracts to responsible bidders whose bids 
conform to the sales offering and are the most advantageous to the 
government.
    (D) Be authorized to reject bids in accordance with paragraph 
(a)(10)(v) of this section.
    (E) Sign under the title of ``Sales Agency Representative'' or 
``Sales Contracting Officer.''
    (F) Sign all contracting documentation on behalf of the USG.
    (G) Be responsible for the proper distribution of sales proceeds.
    (ii) Approvals required for sales and awards. (A) Selling agencies 
will designate the dollar limitations of authority of their appointed 
SARs or SCOs. DLA Disposition Services SCOs may make awards of contracts 
on sales of usable property having a fair market value of less than 
$100,000. Except for

[[Page 768]]

antitrust advice limitations, awards of scrap property do not require 
approval by higher authority.
    (B) Selling agencies will notify the U.S. Attorney General whenever 
an award is proposed for personal property with an estimated fair market 
value of $3 million or more or if the sale involves a patent, process, 
technique, or invention per 41 CFR 102-38.325. Selling agencies will 
otherwise comply with all requirements of 41 CFR chapter 102 including 
but not limited to the prohibition to dispose any such item until 
confirmation from the U.S. Attorney General that the proposed 
transaction would not violate antitrust laws.
    (C) The head of a selling agency or designee must approve all 
negotiated sales of personal property. Selling agencies must submit 
explanatory statements for each sale by negotiation of any personal 
property with an estimated fair market value in excess of $15,000 
through GSA to the House and Senate Oversight Committee to obtain 
approval for the sale in accordance with 40 U.S.C. 549.
    (iii) Processing mistakes in bid after award, claims, disputes, and 
appeals. Keeping the interests of the government in the forefront, SARs 
or SCOs will process these actions expeditiously and fairly, in 
accordance with established internal and external regulations and laws. 
SARs or SCOs will respond to each issue pertaining to mistakes in bids, 
claims, disputes, or appeals until it is resolved and provide a written 
final decision to the claimant or adjudicating agency, as appropriate, 
until the issue is closed. Retain any decisions made or actions taken in 
regard to these issues as official records, as required by agency or 
higher authority directives.
    (12) Notification process for dissemination of awards information. 
(i) The selling agency may only disclose bid results after the award of 
any item or lot of property has been made. No information other than 
names may be disclosed regarding the bidder(s).
    (ii) Bids are disclosed as they are submitted on spot bids or 
auctions.
    (13) Contract administration. Selling agencies will prescribe 
contract administration procedures for the various methods of sale, to 
include procedures for:
    (i) Disseminating award information.
    (ii) Billing.
    (iii) Default and liquidation.
    (iv) Establishing contract folders, including file maintenance and 
disposition.
    (A) Contract administration files will consist of a sale folder, 
financial folder, individual contract folder(s), and an unsuccessful 
bids folder for each sale.
    (B) Selling agencies will develop procedures for maintaining, 
completing, reviewing, and auditing these files. All pertinent 
documentation, including EUC, licenses, pre-award reviews, etc., must be 
included in the files.
    (C) Documentation found in these files may be subject to 5 U.S.C. 
552, also known as the Freedom of Information Act. All Privacy Act, 
privileged, exempt, classified, For Official Use Only, or sensitive 
information must be obliterated prior to release to the public.
    (v) Collection and distribution of sales proceeds.
    (vi) Ensuring all requirements of the contract (e.g., non-payment, 
required licenses) are met prior to releasing the property.
    (vii) Making modifications to contracts resulting from changes to 
the original contract.
    (viii) Handling public requests for information.
    (ix) Timely review and closure of each contract.
    (x) Timely review and closure of each sale.
    (14) Cashier functions and SAR or SCO responsibilities. (i) Cashiers 
must be duly trained in the handling and processing of monies collected 
as payment on sales.
    (ii) Cashiers must credit sales proceeds in accordance with chapter 
5 of Volume 11A of DoD 7000.14-R, ``Department of Defense Financial 
Management Regulations (FMRs)'' (available at http://
comptroller.defense.gov/ fmr/current/11a/ 11a_05.pdf).
    (15) Inquiries regarding suspended or debarred bidders. Refer all 
inquiries regarding suspended or debarred bidders to the office 
effecting the action.
    (16) Release requirements following sales. (i) Removal of property 
is subject

[[Page 769]]

to general and special conditions of sale and the loading table as set 
forth in the sale offering and resulting contract.
    (ii) Prior to releasing sold property, assigned personnel will:
    (A) Verify the sale items to be delivered or shipped to purchasers 
against the sale documents to prevent theft, fraud, or inappropriate 
release of property.
    (B) When DLA Disposition Services is managing the sale and where an 
in-place receipt memorandum of understanding (MOU) has been executed, 
installation commanders will provide, by letter designation and upon 
request from DLA Disposition Services site, the names, telephone 
numbers, and titles of those non-DLA Disposition Services site personnel 
authorized to release property located at their activities. As changes 
occur, installation commanders will provide additions, deletions, and 
revisions in writing to DLA Disposition Services.
    (C) Weigh property sold by weight at the time of delivery to the 
purchaser.
    (D) Count or measure property sold by unit at the time of delivery.
    (iii) Purchasers are required to pay, before delivery, the purchase 
price of item(s) to be removed, based upon the quantity or weight as set 
forth in the sale offering, except for term sales. If prepayment of an 
overage quantity is not practicable or possible, payment will be due 
upon issuance of a statement of account after release of property. Sales 
of property to State and local governments do not require payment prior 
to removal. The DLA Disposition Services contract with its sales 
partners does not require payment prior to delivery of property to State 
and local governments only.
    (17) Withdrawal from sale. (i) Property that has been physically 
inspected, determined to be usable or needed, and thereby has survived 
screening is eligible for sale and may be requested to satisfy valid 
requirements within limitations specified in this paragraph. Generally, 
property past the screening cycle may not be withdrawn from sale. 
However, circumstances may require the withdrawal of property from sale 
to satisfy valid needs within the Department of Defense or FCAs. 
Donation recipients are not eligible to withdraw property from the sale 
unless they can provide DLA Disposition Services with documentation that 
an error was made by DLA Disposition Services and they should have been 
issued the property or the property was never available for electronic 
screening in GSA personal property database GSAXcess[supreg].
    (ii) In many instances, the property remains at a DLA Disposition 
Services site after the title has been transferred. This property is 
ineligible for withdrawal to satisfy DoD needs. If the DoD Component 
intends to pursue purchasing the property from the commercial partner, 
transactions must be handled between the partner and the DoD Component 
without intervention from the DLA Disposition Services.
    (iii) Pursuant to 41 CFR chapter 102, due to the potential for 
adverse public relations, every effort will be made to keep withdrawals 
from sales to a minimum. These efforts will include searching for assets 
elsewhere in the disposal process. Exceptions to this policy will be 
implemented only when all efforts to otherwise satisfy a valid need have 
been exhausted and the withdrawal action is determined to be cost 
effective and in the best interest of the government. DoD Component 
heads will ensure that withdrawal authority is stringently controlled 
and applied.
    (iv) Make requests to the selling agency by the most expeditious 
means. With the exception of ICP or IMM and NMCS orders, requests will 
provide full justification including a statement that the property is 
needed to satisfy a valid requirement.
    (v) Withdrawals may not be processed subject to property inspection 
for acceptability. Inspect property before requesting withdrawal.
    (vi) Orders submitted by ICPs or IMMs do not require justification 
statements before award.
    (vii) With the exception of ICPs and IMMs, minimum written 
information required in the package for withdrawal requests includes:
    (A) Detailed justification as to why the property is required, 
including how the property will be used; such as applicability of 
materiel to active weapons systems.

[[Page 770]]

    (B) Mission impact statement from a support, procurement, and 
funding standpoint if property is not withdrawn from sale (e.g., the 
effect on operational readiness requirements within a specified period 
of time).
    (C) A summary of efforts made to find assets meeting the requirement 
from other sources, including consideration of substitute items.
    (viii) When the DLA Office of Investigations, TSC Assessment Office, 
determines that property was incorrectly described, and that TSC or 
DEMIL requirements are applicable, property will either be withdrawn or 
a provision made to accomplish TSC or DEMIL, as appropriate. The TSC 
Assessment Office may request withdrawal of property and suspend further 
action regarding the property until the matter is resolved in accordance 
with the procedures in DoD Instruction 2030.08.
    (ix) As property moves through the sales cycle, constraints are 
placed on requests for withdrawals from sale.
    (A) The area manager can approve requests for withdrawal during the 
period between the end of screening and the date the property is 
referred to DLA Disposition Services for sale cataloging or until a 
delivery order is signed by the commercial venture partner. The area 
manager can also approve withdrawals prior to bid opening for items on 
authorized local sales.
    (B) DLA Disposition Services can approve withdrawal requests from 
date of referral until the property is awarded. DLA Disposition Services 
can also return requests for withdrawal after award that do not include 
the required written information.
    (x) DLA approval, with DLA legal concurrence, is required on any 
withdrawal request after the award but before removal.
    (xi) When title has passed to the purchaser, the requestor must work 
directly with the purchaser. This includes commercial venture property. 
The SAR or SCO will provide contract information when requested.
    (18) Reporting requirement. (i) In accordance with 10 U.S.C. 2583, 
the Secretary of Defense will prepare an annual report identifying each 
public sale conducted (including property offered for sale and property 
awarded) by a DoD Component of military items that are controlled on the 
U.S. Munitions List pursuant to 22 U.S.C. 121 and assigned a DEMIL Code 
of B in accordance with DoD 4160.28-M Volumes 1-3. For each sale, the 
report will specify:
    (A) The date of the sale.
    (B) The DoD Component conducting the sale.
    (C) The manner in which the sale was conducted (method of sale).
    (D) Description of the military items that were sold or offered for 
sale.
    (E) The purchaser of each item, if awarded.
    (F) The stated end-use of each item sold.
    (ii) The report is submitted not later than March 31 of each year. 
The Secretary of Defense is required to submit to the Committee on Armed 
Services of the House of Representatives and the Committee on Armed 
Services of the Senate the report required by this section for the 
preceding fiscal year. DLA Disposition Services includes shipments made 
during the reporting period to its business partner.
    (19) Special program sales--(i) Resource recovery and recycling 
program. (A) All DoD installations worldwide will have recycling 
programs as required by DoD Instruction 4715.4 with goals for recycling 
as outlined in Executive Order 13514.
    (1) Pursuant to 10 U.S.C. 2577 and 48 CFR subpart 209.4 of the 
DFARS, each installation worldwide will have or be associated with a QRP 
or recycling program available to the installation to appropriately 
dispose of all recyclable materials for all activities. This includes 
all DoD facilities not on a military installation, tenant, leased, and 
government owned-contractor operated (GOCO) space.
    (2) Installations having several recycling programs will incorporate 
them into the single installation QRP if possible, however a separate 
recycling program may be established to appropriately dispose of 
recyclable materials that cannot be recycled through the QRP.
    (3) Each DoD Component will designate a coordinator for each QRP and 
ensure the GOCO facilities participate in QRP.

[[Page 771]]

    (B) Recyclable material includes material diverted from the solid 
waste stream and the beneficial use of such material. It may be 
beneficial to use waste material as a substitute for a virgin material 
in a manufacturing process, as a fuel, or as a secondary material. 
Examples of material that can be recycled through QRP are provided in 
Table 1 of this section and those that cannot be recycled through QRP 
are provided in Table 2 of this section, both from the complete list in 
DoD Instruction 4715.4.
    (C) Continually review each QRP to identify material appropriate for 
waste stream diversion, explore recycling methods, and identify 
potential markets. Additional recyclable material includes not only 
material generating profit, but material whose diversion from the waste 
stream generate a savings to the Department of Defense in disposal 
costs, or when diversion is required by State or local law or 
regulation. Material generated from nonappropriated or personal funds 
(e.g., post consumer wastes from installation housing, and installation 
concessions) may be included.

     Table 1--Examples of Material That Can Be Recycled Through QRP
------------------------------------------------------------------------
 
------------------------------------------------------------------------
          EXAMPLES OF MATERIAL THAT CAN BE RECYCLED THROUGH QRP
------------------------------------------------------------------------
1...........................  Typical recyclable material found in the
                               municipal solid waste stream (glass,
                               plastic, aluminum, newspaper, cardboard,
                               etc.).
2...........................  Scrap metal from non-defense working
                               capital fund activities.
3...........................  Expended small arms cartridge cases that
                               are 50-caliber (12.7 mm) and smaller not
                               suitable for reloading that have been
                               mutilated or otherwise rendered unusable
                               and gleanings made unusable for military
                               firing e.g., crushed, shredded, annealed,
                               or otherwise rendered unusable as
                               originally intended prior to recycling in
                               accordance with DoD Instruction 4715.4,
                               except overseas.
4...........................  Storage and beverage containers (metal,
                               glass, and plastic).
5...........................  Office paper (high-quality, bond,
                               computer, mixed, telephone books, and
                               Federal Registers).
6...........................  Commissary store cardboard and exchange
                               store wastes (cardboard), if the
                               commissary or exchange chooses to use the
                               QRP.
7...........................  Scrap wood and unusable pallets.
8...........................  Rags and textile wastes that have not been
                               contaminated with hazardous material or
                               HW.
9...........................  Automotive and light truck-type tires.
10..........................  Used motor oil.
11..........................  Food wastes from dining facilities.
12..........................  Office-type furniture that is broken or
                               too costly to repair.
13..........................  Donated privately owned personal property.
------------------------------------------------------------------------


    Table 2--Examples of Material That Cannot Be Recycled Through QRP
------------------------------------------------------------------------
 
------------------------------------------------------------------------
        EXAMPLES OF MATERIAL THAT CANNOT BE RECYCLED THROUGH QRP
------------------------------------------------------------------------
1...........................  PM-bearing scrap.
2...........................  Scrap metal generated from a defense
                               working capital fund activity.
3...........................  Items, such as MLI indicated in item 10 of
                               this table, that must be demilitarized
                               (DEMIL) at any time during their life
                               cycle, except for small arms and light
                               weapons brass and gleanings as described
                               in item 3 of Table 1.
4...........................  Hazardous materials and waste.
5...........................  Material that can be reused by the
                               government for their original purpose
                               without special processing. These items
                               may or may not be MLI or CCL items.
6...........................  Repairable items (e.g., used vehicles,
                               vehicle or machine parts).
7...........................  Unopened containers of oil, paints, or
                               solvents.
8...........................  Fuels (uncontaminated and contaminated).
9...........................  MLI or CCL items (Only DEMIL Code A items
                               may be candidates for recycling.).
10..........................  Printed circuit boards containing
                               hazardous materials.
11..........................  Items required to be mutilated prior to
                               sale or release to the public.
12..........................  Ammunition cans, unless certified as MPPEH
                               Designated as Safe in accordance with DoD
                               4160.28-M Volumes 1-3 and DoDI 4140.62.
13..........................  Usable pallets, unless DLA Disposition
                               Services states otherwise.

[[Page 772]]

 
14..........................  Electrical and electronic components
                               (These may be MLI or CCL items eligible
                               only for Electronics Demanufacturing and
                               DEMIL or mutilation.).
------------------------------------------------------------------------

    (D) Installation commanders authorized by their DoD Component head, 
as appropriate, may sell directly recyclable and other QRP materials, or 
consign them to the DLA Disposition Services for sale. If selling 
directly, installations will:
    (1) Maintain operational records for annual reporting requirements, 
review, and program evaluation purposes.
    (2) Manage processes, reports, and proceeds distribution in 
accordance with 41 CFR chapters 101 and 102 and DoD 7000.14-R.
    (E) Excluded material is identified in Attachment 2 to DoD 
Instruction 4715.4, which provides a guide of eligible and ineligible 
materials.
    (F) Although scrap recyclable materials do not require formal 
screening, those purchased with appropriated funds, as surplus property 
under the FPMR and FMR, are available to meet RTD requirements.
    (G) When sold directly by the installation, use proceeds to 
reimburse the installation level costs incurred in operating the 
recycling program. After reimbursement of the costs incurred by the 
installation for operations (e.g., operation and maintenance and 
overhead), installation commanders may use the remaining proceeds as 
authorized by DoD Instruction 4715.4.
    (ii) Commercial Space Launch Act (CSLA). (A) The purpose of the 
CSLA, 51 U.S.C. Chapter 509, is to promote economic growth and 
entrepreneurial activity through the utilization of the space 
environment for peaceful purposes; encourage the private sector to 
provide launch vehicles and associated launch services; and to 
facilitate and encourage the acquisition (sale, lease, transaction in 
lieu of sale, or otherwise) by the private sector of launch property of 
the United States that is excess or otherwise not needed for public use, 
in consultation with Secretary of Transportation. Donation screening is 
not required prior to sale.
    (B) The DoD Chief Information Officer (DoD CIO) has the primary 
responsibility for coordinating DoD issues or views with the Department 
of Treasury, other Executive department organizations, and the Congress 
on matters arising from private sector commercial space activities, 
particularly the operations of commercial ELVs and national security 
interests.
    (C) The DLA Disposition Services is the primary office to conduct 
CSLA sales following the direction for pricing and disposition as 
specified in DoD Directive 3230.3 Sales will be by competitive bid to 
U.S. firms or persons having demonstrated action toward becoming a 
commercial launch provider. The DoD CIO and the Secretary of the U.S. 
Air Force (USAF) designated representative will support DLA Disposition 
Services, as necessary, in the sale or transfer of excess and surplus 
personal property to the private sector, including the identification of 
potential bidders and any special sales terms and conditions. The 
generating activity will assist, as necessary, in completing sales 
transactions.
    (b) Security assistance or FMS--(1) Statutory authority. Authority 
for security assistance is provided primarily under 22 U.S.C. 2751 et 
seq. (also known as the Arms Export Control Act) and annual 
appropriation acts for foreign operations, export financing, and related 
programs.
    (2) Security assistance program requirements. (i) Security 
assistance transfers are authorized under the premise that if these 
transfers are essential to the security and economic well-being of 
friendly governments and international organizations, they are equally 
vital to the security and economic well-being of the United States. 
Security assistance programs support U.S. national security and foreign 
policy objectives.
    (ii) In coordination and cooperation with DOS, the Defense Security 
Cooperation Agency (DSCA) directs, administers, and provides overall 
procedural guidance for the execution of security cooperation and 
additional DoD programs in support of U.S. national

[[Page 773]]

security and foreign policy objectives; and promotes stable security 
relationships with friends and allies through military assistance, in 
accordance with DoD 5105.38-M.
    (3) Foreign purchased property. Disposal initiatives and actions 
will be in accordance with DoD 5105.38-M or guidance provided by 
security assistance implementing agencies on a case-by-case basis.
    (4) FMS disposal process summary--(i) Defense disposal services. (A) 
FEPP, excess, and surplus personal property may be made available to 
foreign countries and international organizations designated as eligible 
to purchase property or services in accordance with 22 U.S.C. 2151, 
2321b, 2321j, 2443, 2751, and 2778 et seq. Such defense articles may be 
made available for sale under the FMS Program. Transactions under this 
authority are reimbursable.
    (B) FMS transactions are completed by use of letters of offer and 
acceptance and the procedures specified in DoD 5105.38-M.
    (ii) Grant transfer of excess defense articles (EDAs). 22 U.S.C. 
2321j authorizes the U.S. Government to grant transfer of EDA to 
eligible foreign governments. For a transfer under this authority, DoD 
funds may not be used for packing, crating, handling, and transportation 
except under certain circumstances consistent with the guidance in 22 
U.S.C. 2321j(e).
    (iii) FMS transportation. (A) As a general rule, FMS customers are 
responsible for all transportation costs.
    (1) The transportation costs can be written into the letters of 
agreement or the items can be shipped on a collect commercial basis. The 
implementing DoD Component or DLA Disposition Services will identify 
exceptions to this rule.
    (2) Sensitive and some other FMS shipments may be made via the 
Defense Transportation System (DTS).
    (i) Sensitive shipments not going through the DTS must be routed 
through a DoD-controlled port (Delivery Term Codes 8, B, or C). See 
Appendix E, paragraph H.1, Part II of the Defense Transportation 
Regulations 4500.9-R, ``Defense Transportation Regulations'', current 
edition (available at http://www.transcom.mil/ dtr/part-ii/ dtr_part_ii_ 
app_e.pdf).
    (ii) For these shipments, the implementing agency will provide 
separate instructions and funds citations. Transportation arrangements 
may be made by the supporting Transportation Office or DLA Disposition 
Services.
    (B) Unless otherwise directed by the implementing agency or DLA 
Disposition Services FMS Office:
    (1) Send small items collect via Federal Express or other parcel 
service to designated freight forwarder.
    (2) Send less than truckload shipments collect via common carrier to 
designated freight forwarder.
    (3) Prepare and send DD Form 1348-5, ``Notice of Availability/
Shipment,'' for larger than truckload shipments to freight forwarder or 
other designated address. Upon receipt of DD Form 1348-5, the recipient 
will provide shipping instructions or advise of pick-up date. If 
shipping instructions are not received within 15 days after DD Form 
1348-5 is issued, follow up with freight forwarder and notify DLA 
Disposition Services if they are the implementing agency.
    (4) For sensitive Delivery Term Code 8 property, in accordance with 
Part II of the Defense Transportation Regulation 4500.9-R, and hazardous 
material property, the supporting transportation office must ensure that 
the property is released in accordance with all applicable regulatory 
requirements. The preferred option is to let the supporting 
transportation office accomplish notice of availability and property 
shipment processes.
    (5) On rare occasions, property may be transferred on a no-fee 
basis. The implementing agency or DLA Disposition Services will provide 
appropriate instructions on a case-by-case basis.
    (C) In accordance with 22 U.S.C. 2403, construction equipment, 
including but not limited to tractors, scrapers, loaders, graders, 
bulldozers, dump trucks, generators, and compressors are not considered 
EDA for purposes of this section.
    (iv) FMS eligibility. Eligibility for FMS is listed in Table C4.T2 
of DoD 5105.38-M. Eligibility to receive excess property as a grant 
pursuant to 22

[[Page 774]]

U.S.C. 2151, 2321, 2751, 2778 et seq. is established by the DOS and 
provided to DSCA. DoD Components will follow the latest guidance from 
DSCA showing which countries are eligible under the various authorities.
    (v) Controlled assets. (A) Foreign countries and international 
organizations may screen and request DLA Disposition Services assets 
during DLA Disposition Services reutilization screening periods.
    (B) 10 U.S.C. 2562 prohibits the sale or transfer of fire equipment 
to foreign countries and international organizations until RTD has been 
accomplished. Fire equipment remaining after these periods may be made 
available to security assistance customers with a certification to DSCA 
that the property is not defective and has completed all required excess 
property processes.
    (C) DSCA will provide guidance for the transfer of items.
    (D) Pricing of FMS is governed by DoD 7000.14-R.
    (c) Reutilization or transfer, excess screening, and issue (includes 
donation of DLA Disposition Services assets)--(1) Authority and scope. 
(i) The provisions of this section are based on the guidelines of 41 CFR 
chapters 101 and 102.
    (ii) The scope of this section includes the RTD screening, ordering, 
issuing, and shipment of DoD FEPP, excess, and surplus personal 
property.
    (A) These procedures apply to the Military Departments, FCAs, 
donees, eligible foreign governments and international agencies, and any 
other activities authorized to screen and order FEPP, excess, and 
surplus personal property.
    (B) See Sec. 273.8 for additional guidance on the DoD HAP, LEAs, 
DoD or Service museums, National Guard units, Senior Reserve Officer 
Training Corps (ROTC) units, morale, welfare, recreational activities 
(MWRAs), the MARS, Civil Air Patrol (CAP), and DoD contractors.
    (C) See Sec. 273.8 and paragraph (b) of this section for additional 
information on foreign governments and international organizations.
    (2) General. (i) DoD policy, in accordance with 41 CFR chapters 101 
and 102, is to reutilize DoD excess property and FEPP to the maximum 
extent feasible to fill existing needs before initiating new procurement 
or repair. All DoD activities will shop for available excess assets and 
review referrals for assets to satisfy valid needs. DLA Disposition 
Services provide asset referrals via front end screening to ICPs daily. 
See individual Military Department guidance regarding eligibility and 
authority to withdraw excess property from DLA Disposition Services.
    (ii) Customers can electronically request specific NSNs for orders, 
whether DLA Disposition Services assets are available at the time the 
need arises. When an asset becomes available in the DLA Disposition 
Services inventory, an electronic notification will be sent to the 
customer for initiating an official order. See paragraph (c)(3)(vii) of 
this section for procedures on the automated want lists.
    (iii) The UII mark, if applicable, will not be removed from a 
personal property item offered for RTD.
    (3) Screening for personal property--(i) Screening. (A) DoD 
reutilization is accomplished electronically via MILSTRIP and DLA 
Transaction Services, through the DLA Disposition Services Web site.
    (B) At the end of the DoD exclusive internal screening cycle, DoD 
excess property (excluding FEPP, scrap and HW) is transmitted to the 
GSAXcess[supreg], and GSA assumes control of federal agency transfer and 
donation screening. The property remains in DLA Disposition Services 
accounts and can be viewed on their Web site.
    (C) GSA federal screening is accomplished through the 
GSAXcess[supreg] platform that is a customer interface to the Federal 
Disposal System (FEDS). DoD personnel may shop in GSAXcess[supreg] at 
any time and search and select property from DoD and other FCAs. 
Transportation costs for other FCA property are borne by the DoD 
screener. DLA Disposition Services makes shipping arrangements for DoD 
orders in GSAXcess[supreg] and includes the transportation costs in the 
cost of the item.
    (D) Enclosure 7 to DoD Manual 4160.21, Volume 2 and Enclosure 3 to 
DoD Manual 4160.21, Volume 4 provides additional information on 
screening for excess personal property by category.

[[Page 775]]

    (E) All references to days are calendar days unless otherwise 
specified.
    (F) With electronic screening, physical tagging of property at a DLA 
Disposition Services site to place a ``hold'' until an order has been 
submitted is no longer authorized.
    (G) DLA Disposition Services provides reasonable access to 
authorized personnel for inspection and removal of excess personal 
property.
    (ii) CONUS screening timeline for excess personal property--(A) 
Accumulation period. DLA Disposition Services accumulates property 
throughout the week as it is inspected and added to the inventory 
system. As property is added to the inventory system, it is visible for 
ordering by DoD customers only. This accumulation period ends each 
Friday, prior to the start of the official 42 day screening timeline.
    (B) DoD and Special Programs screening Cycle (14 days). DoD and the 
Special Programs identified in Sec. 273.8 have exclusive ordering 
authority during the first 14 days of the screening timeline. DoD 
reutilization requirements have priority during this cycle, and property 
will not be issued to Special Programs until the end of this cycle.
    (C) FCA and donees screening cycle (21 days). FCAs and GSA-
authorized donees screen property in GSAXcess[supreg] during the 
following 21 days. FCA requirements have priority during this cycle, and 
property will not be issued to donees until the end of this cycle. 
During this cycle, DoD will search and select property in 
GSAXcess[supreg] rather than submit MILSTRIP orders, with the exception 
of priority designator (PD) 01-03 and NMCS requisitions. DoD customers 
will submit PD 01-03 and NMCS requisitions to DLA Disposition Services, 
who will immediately fill these orders and notify GSA to make the record 
adjustment in GSAXcess[supreg].
    (D) GSA allocation to donees (5 days). The following 5 days are set 
aside for GSA to allocate assets to fill donee requests. During this 
allocation period, no GSAXcess[supreg] ordering can be made.
    (E) Final reutilization/transfer/donation (RTD2) screening (2 days). 
The final 2 days of screening are available to all RTD customers for any 
remaining property on a first come, first served basis.
    (F) Table 3 of this section summarizes the priority of issue and the 
timelines associated with screening and issue of property.

                  Table 3--Summary of Screening and Issue Timelines in Order of Issue Priority
----------------------------------------------------------------------------------------------------------------
            RTD Method                  Eligibility            Screening period             Issuing period
----------------------------------------------------------------------------------------------------------------
Reutilization....................  DoD.................  Days 1-14..................  Days 1-42.
Reutilization....................  Special Programs....  Days 1-14..................  Days 15-42.
Transfer.........................  All Federal Agencies  Days 15-35.................  Days 15-42.
Donation.........................  Authorized GSA        Days 15-35.................  Days 36-42.
                                    Donees.
RTD2.............................  All RTD Customers...  Days 41-42.................  Days 41-42.
Sale.............................  General Public......  N/A........................  N/A.
----------------------------------------------------------------------------------------------------------------

    (iii) FEPP screening timeline. (A) Screening timeline and procedures 
for FEPP will generally follow those listed in paragraph (c)(3)(ii) of 
this section.
    (B) During contingency operations, the ASD (L&MR) may approve 
expedited screening timelines and changes to issue priorities.
    (iv) DoD screening methods. (A) DoD reutilization screening is 
accomplished electronically via MILSTRIP and DLA Transaction Services 
through the DLA Disposition Services Web site. If the electronic method 
is unsuccessful, please fax the following on agency letterhead: Name, 
phone number, point of contact, internet provider (IP) address, and two 
signatures of authorized individuals to DLA Disposition Services 
Reutilization Office at fax commercial 269-961-7348 or DSN 661-7348.
    (B) Local screening at the DLA Disposition Services sites is on-site 
(visual) viewing of excess property. Physical inspection of property may 
not be possible for assets at depot recycling control points (RCPs), 
receipts in-place, or remote locations.
    (v) GSAXcess[supreg] screening. (A) Users must obtain an access code 
from GSA to screen through GSAXcess[supreg]. To learn about 
GSAXcess[supreg] and obtain access

[[Page 776]]

code information, see: http://apps.fss.gsa.gov/ Manuals/ 
Feds_Users_guide.
    (B) DoD customers must obtain access from GSAXcess[supreg] to search 
and select property. The DoD Accountable (Supply) Property Officer must 
provide GSA a letter (on official letterhead) or email (from a ``.mil'' 
address) requesting access for their representatives and include 
addresses, phone numbers, email addresses, and DoDAAC of those 
authorized to select property from GSAXcess[supreg]. Customers may 
select items once the access is granted.
    (C) DoD customers who only want to search for available property in 
GSAXcess[supreg] can also register for search only access at 
www.gsaxcess.gov.
    (vi) Screening exceptions. Generally, property cannot be screened 
before it is entered on DLA Disposition Services site's accountable 
records. However, instances where screening prior to entry may be 
justified include:
    (A) Property needed to fulfill emergency orders, (e.g., PD 01-03, 
NMCS, disaster relief) and which may be processed as a ``wash-post'' 
transaction. The DLA Disposition Services site must be able to fully 
justify these actions and ensure a signed receipt copy of the DTID is 
returned to the generating activity.
    (B) Backlog situations where usable property is in danger of being 
damaged by the elements due to a lack of adequate storage and an 
authorized customer is on location.
    (vii) Automated want lists. (A) Customers may use the automated pre-
receipt information to flag desired NSNs. Use of this tool does not 
guarantee the items will become available. If notified that the item is 
in the excess inventory, customers must use standard MILSTRIP order 
procedures. For more guidance, see https://www.disposition 
services.dla.mil/rtd03/ index.shtml.
    (B) Customers may submit automated searches for recurring NSNs 
through the DoD Property Search Web site at https://www.disposition 
services.dla.mil/rtd03/ index.shtml. Results are emailed to the 
customer.
    (C) Customers may also submit a ``Want List'' in GSAXcess[supreg], 
which can help them locate excess property from civilian agencies.
    (viii) Specialized screening for ICPs. (A) DLA Disposition Services 
will electronically report to designated ICPs those assets with valid 
NSNs meeting dollar value and condition code criteria established by 
each DoD Component. The notification will be sent electronically to the 
recorded DoD wholesale manager (ICP or IMM) concurrently with recording 
the excess in the DLA Disposition Services system for accounting for 
excess property in DoD. Component IMMs may view the NSNs they requested 
during the first 5 days of the accumulation period before the items 
become available to other DoD activities. The ICPs must send their 
request to: DLA Disposition Services, Hart-Dole-Inouye Federal Center, 
74 North Washington Avenue, Suite 2429, Battle Creek, Michigan 49037.
    (B) The DoD ICP or IMM will screen these notifications to determine 
if needs exist. DLA Disposition Services site excesses will be 
reutilized to satisfy known or projected buy and repair needs.
    (C) Orders for property during the internal screening periods will 
be prepared according to MILSTRIP and submitted to DLA Disposition 
Services.
    (ix) Issues to and turn-ins by special programs and activities--(A) 
DoD HAP. (1) The DoD HAP is authorized to dispose excess property 
through DoD DLA Disposition Services site channels.
    (2) Providing non-lethal DoD excess personal property for 
humanitarian purposes is authorized pursuant to 10 U.S.C. 2557. 
Preparation and transportation of this property is carried out in 
accordance with 10 U.S.C. 2661. HAP allows DoD to make available, 
prepare, and transport non-lethal, excess DoD property for distribution 
by DOS for humanitarian reasons. The program is managed by the DSCA 
Office of Humanitarian Assistance and Demining.
    (3) In most instances, property issues will be from DLA Disposition 
Services inventories. The most commonly requested types of property are 
medical equipment, field gear, tools, clothing, rations, light vehicles, 
construction, and engineering equipment. DLA Disposition Services sites 
will issue all property destined for the HAP, with the exception of 
drugs and biologicals (Federal Supply Classification Code

[[Page 777]]

(FSC) 6505), which may be issued directly by the Military Departments. 
HAP orders and issues will be documented on DD Form 1348-1A ``Issue 
Release/Receipt Document.''
    (B) LEAs. In accordance with 10 U.S.C. 2576a, DLA has established an 
office to permit civil police authority to acquire excess DoD property, 
and the Web site https://www.disposition services.dla.mil/rtd03/ leso/
index.shtml provides information to assist with the process. LEAs can 
contact DLA Disposition Services at: DLA Disposition Services, Hart-
Dole-Inouye Federal Center, 74 North Washington Avenue, Suite 2429, 
Battle Creek, Michigan 49037, Toll free: 1-877-DLA-CALL, DSN: 661-7766, 
Commercial/FTS 269-961-7766.
    (1) 10 U.S.C. 2576a authorizes the Secretary of Defense, in 
consultation with the Director, Office of National Drug Control Policy, 
and DOJ, to transfer excess DoD property, including small arms, light 
weapons, and ammunition, to federal and State LEAs, including 
counterdrug and counterterrorism activities. The federal program is 
known as the 1033 Program. The DLA Disposition Services has managerial 
responsibilities in support of such transfers and will establish 
business relationships with participating States by memorandum of 
agreement (MOA).
    (2) LEAs will return sensitive or controlled DEMIL-required property 
originally ordered from DLA Disposition Services when no longer needed. 
DEMIL-required equipment that is the responsibility of the LEA must be 
demilitarized in accordance with DoD 4160.28-M Volumes 1-3. Due to 
constant changes and development of new technology, Table 4 of this 
section is only a partial list of NSNs that may contain radioactive 
components as identified for Army Navy (AN) night vision equipment codes 
in DoD 4160.28-M, Volume 2. These NSNs and many others should not be 
transferred to DLA Disposition Services sites. The turn-in activity will 
verify with the DLA Disposition Services site whether equipment contains 
radioactive components before turning in any night vision equipment.

                Table 4--NSNs With Radioactive Components
------------------------------------------------------------------------
                NSN No.                       Radioactive component
------------------------------------------------------------------------
5855-00-053-3142.......................  AN/TVS-4 (prototype)
5855-00-087-2942.......................  AN/PVS-1
5855-00-087-2947.......................  AN/PVS-2
5855-00-087-2974.......................  AN/PVS-1
5855-00-087-3114.......................  AN/TVS-2
5855-00-113-5680.......................  MX-8201
5855-00-156-4992.......................  AN/PVS-3A
5855-00-156-4993.......................  MX-8201A
5855-00-179-3708.......................  AN/PVS-2A
5855-00-179-3709.......................  MX-7833
5855-00-400-2619.......................  MX-7833A
5855-00-484-8638.......................  AN/TVS-2B
5855-00-688-9956.......................  AN/TVS-4
5855-00-688-9957.......................  AN/TVS-4
5855-00-760-3869.......................  AN/PVS-2B
5855-00-760-3870.......................  AN/TVS-4A
5855-00-791-3358.......................  AN/TVS-2A
5855-00-832-9223.......................  MX-7833
5855-00-832-9341.......................  AN/PVS-3
5855-00-906-0994.......................  AN/TVS-4
5855-00-911-1370.......................  AN/TVS-2
5855-01-093-3080.......................  AN/PAS-7A
5855-00-087-3144.......................  AN/TVS-2
------------------------------------------------------------------------

    (C) DoD or service museums. (1) Legal authority is provided by 10 
U.S.C. 2572, which allows the loan, gift, or exchange of specified 
historic or obsolete or condemned military property. Approval authority 
for museum acquisitions from DLA Disposition Services sites expressly 
for the purpose of exchange must be granted by the activity having staff 
supervision over the museum. Approval authority includes:
    (i) U.S. Army: Chief of Military History (DAMH-MD), 1099 14th Street 
NW., Washington, DC 20005-3402.
    (ii) U.S. Navy: Curator for the Navy, Naval Historical Center, 
Building 108, Washington Navy Yard, Washington, DC 20374-0571.
    (iii) U.S. Air Force: Director, National Museum of the United States 
Air Force, HQAFMC, 1100 Spaatz Street, Wright-Patterson AFB, Ohio 45433-
7102.
    (iv) U.S. Marine Corps: Marine Corps History Division, 3079 Moreel 
Avenue, Quantico, Virginia 22134.
    (v) U.S. Coast Guard: Coast Guard Historian, Commandant (CG-09224), 
U.S. Coast Guard Headquarters, Douglas A. Munro Building, 2703 Martin 
Luther King Jr., Avenue, South East Stop 7031, Washington, DC 20593-
7031.
    (2) The DoD or Military Department museums will use standard DoD 
processes to dispose excess property using DoDAACs.

[[Page 778]]

    (3) The DoD and Military Department museums may obtain property from 
DLA Disposition Services sites for use, display, or exchange. With the 
exception of historical artifacts, stockpiling of property obtained from 
DLA Disposition Services sources for future exchange is prohibited.
    (4) The normal ordering procedures apply. The DD Form 1348-1A, in 
addition to routine information, will include:
    (i) The museum's individual DoDAAC or the DoDAAC of the Service 
headquarters with central responsibility for historical property.
    (ii) A statement if the property is to be used for display, 
exchange, or use (e.g., property needed to maintain the museums' 
buildings and grounds, for day-to-day housekeeping operations, or to 
maintain displays).
    (iii) Only DEMIL Code ``A'' property is requested. Examples of DEMIL 
Code A items suitable for housekeeping purposes by DoD museums may 
include: Federal Supply Classification Groups (FSGs) 52--hand tools; 
53--hardware; 55--lumber; 56--construction materials; 61--electric wire; 
62--lighting fixtures; 71--furniture; 72--furnishings; 75--office 
supplies; 79--cleaning equipment; 80--brushes and paints. Orders of 
property for exchange will reflect the DoDAAC of the DoD Military 
Department museums. An exception to this procedure applies to M151 
series, M561, and M792 (Gamma Goat) vehicles. Although coded as DEMIL 
Code A, exchange of the vehicles is prohibited.
    (5) DLA Disposition Services sites will:
    (i) Ensure DEMIL Code A property ordered by a museum for exchange 
purposes has no current challenges to that code. This applies to all 
items whether recorded in the DLA Logistic Information Service Federal 
Logistics Information System Master Item File or not, including scrap 
and captured military items. Excluded are the M151 series vehicles, 
hazardous property, and MLI and CCL items, which are not authorized for 
museum exchanges.
    (ii) Ensure authorized property ordered by museums for exchange is 
released to the ordering museum personnel only. Identification of the 
individual is required. These personnel must be military or civilian 
employees of the museum, not volunteers or members of the museums' 
private supporting organizations.
    (6) The DoD operating activities and Military Departments will:
    (i) Maintain accountable records according to appropriate DoD and 
Service regulations of all items withdrawn from DLA Disposition Services 
sites, to include all materiel transactions, receipts from the DLA 
Disposition Services site, and transfer and exchange documents.
    (ii) Provide to DLA Disposition Services a list of all the DoD 
museums and Service museums authorized to negotiate with DLA Disposition 
Services sites, including the name of the institution, address, 
telephone number, and the DoDAAC of the museum.
    (D) National Guard units. (1) National Guard Units will use the 
standard DoD processes to dispose excess DoD property through the use of 
DoDAACs.
    (2) Issues of excess DoD property and FEPP to National Guard units 
must be approved by the National Guard Bureau or the U.S. Property and 
Fiscal Officer (USP&FO), or their authorized representative, for the 
State in which the National Guard unit is located. Requests received 
from National Guard units that do not contain the signature of the 
USP&FO, their authorized representative, or the National Guard Bureau, 
will not be honored.
    (E) Senior ROTC units. (1) Senior ROTCs will use standard DoD 
processes to dispose excess DoD property using DoDAACs.
    (2) Military Departments' Senior ROTC units may obtain excess DoD 
property and FEPP from DLA Disposition Services sites to support 
supplemental proficiency training programs. Orders to DLA Disposition 
Services sites must be approved by the installation commander or 
designee, normally responsible for providing logistical support to the 
instructors group. Property will be issued to the accountable officer of 
the school concerned.
    (F) USCG. As a recognized military service and a branch of the U.S. 
Armed Forces, and due to the association of the USCG to the U.S. Navy, 
DLA Disposition Services will accept USCG (DHS) excess property, USCG 
excess

[[Page 779]]

DoD property and FEPP for disposal. The principles outlined in paragraph 
(c)(3)(i) through (viii) of this section apply.
    (1) USCG excess DoD property may be transferred to the nearest DLA 
Disposition Services site after internal USCG screening. Physical 
retention of the property by the USCG is preferred, especially if size 
or economics prevent physical transfer.
    (2) Property physically turned in to the DLA Disposition Services 
site does not qualify for reimbursement.
    (3) After the USCG completes all RTD screening for aircraft and 
vessels, DLA Disposition Services may provide sales services through an 
in-place MOU that outlines all USCG and DLA Disposition Services 
responsibilities.
    (4) USCG aircraft may be transferred to the Aerospace Maintenance 
and Regeneration Group (AMARG), Davis-Monthan Air Force Base, Arizona, 
according to the ISSA between the USCG and the USAF.
    (5) USCG orders must include a citation as to the USCG directive 
authorizing the unit to obtain the property listed on the order. In 
addition, the fund citation for transportation must be included on the 
DTID. Individual floating and shore units of the USCG may be delegated 
authority to order excess DoD property without Commandant, USCG 
approval. Indicate the delegating authority on all orders. The DLA 
Disposition Services site need not validate the authenticity of the 
authority, but only the fact that such authorization appears on the 
order.
    (G) U.S. Army Corps of Engineers (COE) civil works property. (1) 
Based on the association of Civil Works with the U.S. Army, the COE will 
use Department of the Army DoDAACs to transfer personal property through 
DLA Disposition Services for disposal, including hazardous property 
through a service contract.
    (2) COE civil works activities may order property through DLA 
Disposition Services as a DoD activity, using an assigned Army DoDAAC or 
as an FCA, using an address activity code through GSAXcess[supreg].
    (H) MAP Property and Property for FMS. DoD Directive 5105.22 and 
paragraph (b) of this section provide additional procedures for MAP 
property or for property that can be purchased by eligible organizations 
through FMS.
    (1) Following the country decision to dispose through DLA 
Disposition Services, the country and Security Assistance Office will 
determine, in coordination with DLA Disposition Services, the proper 
disposal method (e.g., DEMIL or mutilation requirements, security 
classification, reimbursement decisions).
    (2) DLA Disposition Services, in coordination with the country and 
Security Assistance Office will make provision for in-country U.S. 
personnel, with assistance from local personnel, as appropriate, to act 
as DLA Disposition Services agent where turn-in by the generating 
activity and physical handling by the DLA Disposition Services site is 
impractical. In addition to MILSTRIP documentation requirements of DLM 
4000.25-1, the generating activity will include the following data on 
the electronic turn-in document or DTID for MAP items.
    (i) Country.
    (ii) DTID number, to include at a minimum, in the first position, a 
service code (B, D, K, P, or T); in the second position, a country or 
activity code in accordance with DoD Directive 5230.20, and in the third 
position, the Julian date.
    (iii) Identification of MAP Address Directory Security Assistance 
Offices initiating turn-in.
    (iv) MAP account fund citation.
    (3) Screen disposable MAP property for reutilization, FMS, and 
transfer to fill known federal needs. Process disposable MAP property 
surviving reutilization, FMS screening, and other transfers to sale.
    (4) Process MAP property used for any purpose other than to meet 
approved DoD needs for RTD or sale on a reimbursable basis.
    (5) The allocation of weapons, ammunition, flyable aircraft (rotary 
and fixed-wing) and selected property will be accomplished by DLA, as 
coordinated with the Office of Deputy Assistant Secretary of Defense for 
Supply Chain Integration.
    (6) All other excess DoD property will be processed through DLA 
Disposition

[[Page 780]]

Services on a first-come, first-served basis.
    (I) DoD contractors and contractor inventory. (1) The disposal of 
DoD contractor inventory is generally the contractor's responsibility in 
accordance with 48 CFR 45.602-1 of the Federal Acquisition Regulation, 
unless the contract specifies that excess DoD property be returned to 
the government, as a result of a determination by the CO at contract 
expiration that DLA Disposition Services disposal would be in the best 
interests of the government. Property physically turned in to the DLA 
Disposition Services site does not qualify for reimbursement to the 
generating activity.
    (2) If property is purchased and retained by a DoD contractor, net 
proceeds from the sale of the property will be deposited into the 
generating activity's suspense account.
    (3) DLM 4000.25-1 permits the Military Department or Defense Agency 
management control activity (MCA) to withdraw or authorize the 
withdrawal of specified excess DoD property from DLA Disposition 
Services sites for use as government-furnished material or government-
furnished equipment to support contractual requirements.
    (4) Orders will be completed in accordance with Chapter 11 of DLM 
4000.25-1 and include the DoDAAC assigned to the contractor. These 
orders must be processed by the MCA having cognizance of the applicable 
contract.
    (5) Property ordered must be authorized and listed in the DoD 
contract(s) for which the property will be used, recorded in the ICP's 
MCA responsible for the contract, and the use of the ordered property 
approved by the CO or CO's representative (COR) for such contract(s). 
Each electronic or manual order (DD Form 1348-1A) must contain the 
signature and title of the CO or COR authorizing the withdrawal of 
excess DoD property from the disposal system. Each order must also 
contain the certification: ``For use under Contract No(s)._____.'' The 
certification should be signed by an authorized official and should 
indicate his or her official title.
    (6) DLA Disposition Services sites cannot guarantee the property 
withdrawn meets minimum specifications and standards in terms of 
quality, condition, and safety.
    (J) NAF activities. (1) Includes expense items and NAF resale goods 
procured by NAF activities such as military exchanges and MWRAs or 
Services, but excludes commissary store trust fund account equipment.
    (2) DLA Disposition Services will not process property typically 
reclaimed from customers by the military exchanges such as used 
batteries, tires, oils, etc., as a part of their normal business. The 
NAF must process property in accordance with the guidance shown under 
Army and Air Force Exchange Service in DoD Manual 4160.21, Volume 4 for 
disposal of these assets.
    (3) Acceptable types of property will be processed for federal 
screening only and are not eligible for donation. They are eligible for 
reutilization or transfer provided the generating NAF activities waive 
reimbursement or negotiate reimbursement with the ordering activity.
    (i) The generating activity will provide a statement on the DTID 
that the property was purchased with NAF to obtain appropriate 
reimbursement. If the DTID does not contain this citation, the property 
will be processed as normal excess DoD property.
    (ii) In addition to standard entries, documentation will contain the 
unit cost (in lieu of the Federal Logistics Data acquisition cost) 
recorded in the financial and accounting records of the NAF activity. 
DLA Disposition Services sites will use this value for inventory, 
reporting, reutilization, transfer, and sale purposes.
    (iii) Reimbursement will be completed between the generating 
activity and the order for property reutilized or transferred. Sales 
proceeds will be deposited in accordance with Volume 11a, chapter 5 of 
DoD 7000.14-R (unless otherwise directed or superseded).
    (4) DoD MWRAs or Services may order excess DoD property and FEPP 
through the MWRAs/Services that have a DoDAAC on file with the DAAS. 
Requests for small arms or light weapons must be ordered by servicing 
accountable officers only and be approved by the designated DoD focal 
point as identified in Table 4 of this subpart. See

[[Page 781]]

DoD Manual 4160.21 Volume 4 for guidelines on reutilization of small 
arms and light weapons.
    (5) NAF property ordered by or through a servicing accountable 
officer will be used and accounted for the same as all procurements, 
according to applicable Military Department or Defense Agency 
procedures.
    (6) Orders received by DLA Disposition Services sites directly from 
an MWRA or Military Department accountable officer will be for 
administrative and other purposes from which individuals will realize no 
direct benefits.
    (7) Orders will contain the MWRA or Service account number, the 
signature of the MWRA or Service Accountable Officer, and a statement 
that the property obtained without reimbursement will be identified 
separately in accounting records from property for which reimbursement 
was made. The order will include the statement that, when such property 
is obtained without reimbursement is no longer needed, it will be turned 
in to the nearest DLA Disposition Services site and that no part of the 
proceeds from sale or other disposition will be returned to the MWRAs or 
Services. Perpetuate this information from the order in follow-on 
documentation.
    (8) If the property is not reutilized, transferred, or sold, DLA 
Disposition Services will notify the NAF activity that accountability 
will revert to the NAF activity and further disposal processing will be 
the responsibility of the NAF activity. If the DLA Disposition Services 
site has taken physical custody, the NAF activity will be responsible 
for retrieving the property.
    (K) MARS. (1) MARS is an appropriated fund activity that operates 
under the jurisdiction of the Military Departments and is an integral 
part of the DoD communication system. MARS units will use standard DoD 
processes to dispose excess DoD property using DoDAACs.
    (2) The Military Departments responsible for MARS are authorized to 
order excess DoD property and FEPP through their respective accountable 
officers. The following ordering stipulations apply:
    (i) Designation of accountable officers and representatives 
authorized to screen and obtain excess DoD property and FEPP at DLA 
Disposition Services sites is described in this section.
    (ii) The property ordered is for immediate use by a MARS member or 
member station for its intended purpose; property may not be acquired 
for storage. When property requested is to be used for reclamation, 
written approval for such action must be obtained in advance from the 
Military Department MARS chief in coordination with the accountable 
officer. Property ordered for reclamation is limited to materiel in DCC 
X or S.
    (iii) Excess DoD property and FEPP ordered from a DLA Disposition 
Services site for MARS may be shipped to a DoD activity or picked up at 
a DLA Disposition Services site by personnel who are appropriately 
identified and approved. Property ordered for reclamation is designated 
for local pickup only at the DLA Disposition Services site. Maintain 
accountability of residue in accordance with Military Department 
directives.
    (3) The accountable officer will maintain accountability for all 
property acquired and issued to MARS members and MARS member stations. 
The property remains government property.
    (4) When the property is no longer needed for use by the MARS, the 
accountable officer arranges for the equipment to be turned in to the 
nearest DLA Disposition Services site, if economically feasible. If it 
is not economically feasible to turn in the property, the accountable 
officer will employ A/D procedures according to Enclosure 4 of DoD 
Manual 4160.21, Volume 2.
    (5) The respective Military Department may limit MARS orders to 
selected FSCs.
    (6) The release of property to MARS activities is governed by the 
following procedures:
    (i) Army MARS. In CONUS, the authority to order and obtain excess 
DoD property and FEPP to fill valid requirements is vested in the 
accountable MARS Program Manager (MPM) appointed by the Chief, Army 
MARS. Outside the CONUS, the authority to order and obtain excess DoD 
property

[[Page 782]]

and FEPP for the Army MARS program is vested in the 5th Signal Command 
MARS Director (Europe); 1st Signal Brigade U.S. Army Information System 
Command (USAISC) (Korea); USAISC Japan; and USAISC Western Command 
(Hawaii). The MPM who is the accountable officer appointed by the Chief, 
Army MARS will originate and sign all orders. Process orders through the 
applicable accountable officer for MARS equipment.
    (ii) Navy/Marine Corps MARS (NAVMARCORMARS). In CONUS, the authority 
to originate orders for excess DoD property and FEPP to fill valid 
requirements in the NAVMARCORMARS program is vested in the Chief, 
NAVMARCORMARS; Deputy Chief, NAVMARCORMARS; Directors of the 1st, 2nd, 
3rd, 4th, 5th, and 7th MARS Regions; and the Officer in Charge, 
Headquarters Radio Station. All orders must be signed by the Chief, 
NAVMARCORMARS, or the Deputy Chief, NAVMARCORMARS. Process orders 
through the applicable accountable officer. Outside the CONUS, the 
authority to originate orders comes from Chief, NAVMARCORMARS; the 
Deputy Chief, NAVMARCORMARS; or a regional director or a specific 
designee of the Chief, NAVMARCORMARS. Process orders through the 
applicable accountable officer.
    (iii) USAF MARS. The Office of the Chief, USAF MARS, and staff, 
active duty Installation MARS Directors (IMDs), and active MARS 
affiliates are authorized to screen and identify property for USAF MARS 
use. MARS affiliates are identified by a valid AF Form 3666, ``Military 
Affiliate Radio System Station License and Identification Card,'' signed 
by the Chief, USAF MARS. The IMD is appointed in writing by the 
installation commander or a designated representative; this appointment 
constitutes authority for screening and identification of property. 
Orders for property for MARS reutilization must be approved by the 
Chief, USAF MARS, or designated representative; this approval authority 
cannot be delegated. All approved orders will be processed through the 
USAF MARS Accountable Property Officer or designated alternate, who will 
initiate and sign a DD Form 1348-1A to authorize release of identified 
property. Authority to sign release documents will not be delegated. The 
accountable officer maintains current and valid identification of their 
MARS members to prevent unauthorized screening by MARS members or former 
members.
    (L) CAP. (1) The CAP is the official auxiliary of the USAF and is 
eligible to receive excess DoD property and FEPP without reimbursement 
subject to the approval of the Headquarters USAF, CAP (HQ CAP-USAF). 
Title to the property is transferred to the CAP upon the condition that 
the property be used by the CAP to support valid mission requirements. 
Authority for the CAP members to screen and obtain excess DoD property 
will be in writing and signed by an authorized official of the CAP-USAF. 
HQ CAP-USAF retains the authority to approve and control the types and 
amounts of items obtained by the CAP.
    (2) The CAP will remain accountable for all property acquired from 
the DoD disposal system and will maintain and safeguard the property 
from loss or damage. The CAP and its members are strictly prohibited 
from selling, donating, or bartering property previously obtained from 
the DoD disposal system under any circumstances.
    (3) The CAP is not eligible to screen or receive AMARG aircraft 
reported by the Military Departments and other governmental agencies. If 
flyable non-AMARG category ``A'' aircraft made available for screening 
by an owning Military Department are selected for issue and approved by 
the HQ CAP-USAF to fulfill valid CAP mission needs, the following 
procedures apply:
    (i) Flyable aircraft. The head of the owning Military Department 
will issue the aircraft to the accounts specified by the HQ CAP-USAF, 
ensuring that data plates and all available historical and modification 
records accompany the aircraft. The aircraft will be issued to the CAP 
upon condition that it be used by the CAP to support valid mission 
requirements. Prior to issuance, the appropriate CAP corporate officer 
(wing commander or higher) will execute a conditional gift agreement 
that specifies that the aircraft (parts, etc.)

[[Page 783]]

be issued and delivered to AMARG when it becomes excess to CAP's mission 
needs. When the aircraft is no longer needed by the CAP, or as otherwise 
directed by the HQ CAP-USAF, the CAP will make arrangements through the 
HQ CAP-USAF for issue and delivery of the aircraft, data plates, and 
historical and modification records to AMARG.
    (ii) Reclamation of parts. If the HQ CAP-USAF elects to allow the 
CAP to use the aircraft for parts reclamation, the HQ CAP-USAF will 
contact the owning Military Department to make arrangements concerning 
reclamation of parts by the CAP. If the CAP declines to reclaim parts 
and components from the aircraft, the CAP will arrange through the HQ 
CAP-USAF for issue and delivery of the aircraft, data plates, and 
historical and modification records to AMARG.
    (iii) CAP aircraft. All CAP aircraft delivered to AMARG will be 
reported to the GSA for use by FCAs and authorized donees. The CAP and 
its members are strictly prohibited from selling, donating, or bartering 
aircraft obtained from a Military Department under any circumstances.
    (4) The CAP units will use assigned DoDAACs beginning in ``FG'' to 
transfer and order excess personal property.
    (5) CAP members will identify themselves for pickup of property as 
stated in this section.
    (M) Federal Civilian Agencies (FCAs). (1) These organizations 
include any non-defense executive agency or any member of the 
legislative or judicial branch of the government.
    (2) The processes discussed in this section apply to FCAs 
transferring to and ordering excess DoD property from DLA Disposition 
Services sites.
    (3) FCAs that want to use DLA Disposition Services for disposition 
management instead of GSA are required to review and follow instructions 
provided on the DLA Disposition Services Web site and to:
    (i) Comply with 31 U.S.C. 1535 (also known as the Economy Act).
    (ii) Initiate an Economy Act Order with DLA Disposition Services 
Comptroller for establishing financial transactions. Final acceptance of 
the Economy Act Order constitutes authority for FCAs to use DLA 
Disposition Services. The Economy Act Order must be renewed on October 1 
of each year. DLA Disposition Services transaction activity billing 
(TAB) rates, sales rates, and actual disposal rates are used for billing 
FCAs. TAB rates are available on the DLA Disposition Services Web site. 
DLA Disposition Services will bill and the FCA will pay all costs for 
services rendered. Billing documentation will include contract line item 
number, administrative, and services costs, and will be processed 
quarterly.
    (iii) Ensure all laws and regulations are properly met prior to 
initiating a transfer transaction. Use DoD Instruction 4160.28; 41 CFR 
chapters 101 and 102; 48 CFR subpart 9.4 and 48 CFR 45.602-1, 52.233-1, 
and 14.407 of the FAR, current edition; and 5 U.S.C. 552, Volume 11a, 
Chapter 5 of DoD 7000.14-R, and Office of Management and Budget Circular 
A-76, ``Performance of Commercial Activities'' (available at

http://www.whitehouse.gov/ omb/ circulars_a076_a76_incl_tech 
_correction) as governing documents.
    (iv) Comply with DLM 4000.25-1, since in-transit control 
requirements are not applicable to FCA turn-ins.
    (v) Comply with Sec. 273.7(d), (e), and (f) for transferring excess 
DoD property, using DD Form 1348-1A or DD Form 1348-2, ``Issue Release/
Receipt Document with Address Label,'' as DTIDs. Schedule turn-ins with 
the DLA Disposition Services site and assume responsibility for 
delivering usable and scrap property to DLA Disposition Services sites. 
Non-hazardous property may be received in-place using the standard DoD 
receipt in-place processes. Hazardous property cannot be physically 
accepted at the DLA Disposition Services site and will be processed in-
place only, in accordance with paragraphs (c)(3)(viii)(M)(3)(vi) and 
(vii) of this section. Property will normally be turned in as individual 
line items; however, batchlotting by FSC of non-hazardous items with a 
combined acquisition value of up to $800 is permitted. Identify the 
transaction by using their officially assigned FCA activity address code 
(AAC). The first position of the AAC begins with 1 through 9. Annotate 
``XP'' funding code in

[[Page 784]]

blocks 52 and 53 and a disposal authority code of ``F'' in position 64 
of the DTID. Annotate the DLA Disposition Services Economy Act Order 
Assigned Number in block 27. Include appropriate hazardous property 
documents containing the required information found in Volume 4 of DoD 
4160.21-M. Ensure that no radioactive material, waste, or other excluded 
hazardous property is turned in to the DLA Disposition Services site. 
Cover costs associated with substantiated sale contracts claims, if 
negligence or fault is established. Contact the appropriate DLA 
Disposition Services site for procedures to use when inventory 
discrepancies surface for property that the FCA is designated the 
custodian. The FCA will research and provide a report of the lost, 
damaged, or destroyed property. Procedures are contained in accordance 
with Volume 12, Chapter 7 of DoD 7000.14-R.
    (vi) Work with DLA Disposition Services to obtain HW disposal 
contract support, pursuant to the provisions of the FAR; for hazardous 
property, FCAs will define disposal service requirements for HW disposal 
and provide a yearly estimate of HW streams that may be generated and 
placed on DLA Disposition Services disposal service contracts; cover 
costs associated with substantiated contracts claims, if negligence or 
fault is established; maintain physical custody of hazardous property; 
provide a designated FCA representative to act as a CO's technical 
representative during pickup of hazardous property, and identify who 
will be trained and authorized to release the property for shipment, 
including signing shipping documents according to the procedures 
provided in 49 CFR part 172, subpart H.
    (vii) Comply with the following liability provisions. Should any DLA 
HW disposal contractors' actions on behalf of the FCA result in a notice 
of potential liability to DLA or the FCA under 42 U.S.C. 9601 et seq. 
(also known as the Comprehensive Environmental Response, Compensation 
and Liability Act), 42 U.S.C. 6901 et seq. (also known as the Resource 
Conservation and Recovery Act), or any other provision of federal or 
State law, immediate notification will be provided to DLA Disposition 
Services or the FCA. The FCA retains ultimate liability for hazardous 
property; FCAs will be responsible for environmental response costs 
attributable to their generated hazardous property. FCA is considered 
the generator for reporting purposes in accordance with 42 U.S.C. 6901 
et seq. and 9601 et seq.; According to the terms of DLA Disposition 
Services HW disposal contracts, DLA Disposition Services disposal 
contractors are responsible for spills or leaks during the performance 
of their contracts, which result from the actions of the contractors' 
agents or employees; At no time will the DLA Disposition Services site 
dispose FCA excess DoD property or any provision of a HW contract for 
FCA property be interpreted or construed to require that funds be 
obligated or paid in violation of 31 U.S.C. 1341 or any other provisions 
of law.
    (4) FCAs will:
    (i) Work with DLA Disposition Services for DEMIL-required disposal 
support in accordance with the provisions of DoD Instruction 4160.28.
    (ii) Reimburse DLA Disposition Services for A/D-related services.
    (iii) Continue to turn in PM-bearing property at no charge in 
support of the DoD PMRP according to the procedures in Enclosure 5 to 
DoD Manual 4160.21, Volume 2. These transactions are accomplished 
through an ISSA.
    (iv) Pay for all services rendered, according to established 
requirements and fees.
    (5) Two months prior to the Economy Act Order's expiration, the FCA 
will notify the DLA Disposition Services Comptroller whether continued 
services are desired.
    (i) If the Economy Act Order has not been re-established, DLA 
Disposition Services will continue to receive property for 60 days.
    (ii) FCAs will continue payments until all property that was 
received within the fiscal year has been processed, even if the Economy 
Act Order has expired.
    (iii) FCAs will pay at the rates established or re-established and 
maintain internal procedures to track DTIDs against billings for 
reconciliation.
    (6) The policies in 41 CFR chapter 101 will be implemented when:

[[Page 785]]

    (i) An official Economy Act Order is finalized and the DLA 
Disposition Services Finance Office ensures that an officially assigned 
FCA AAC is in the DLA Disposition Services Accounting System. (This will 
indicate to DLA Disposition Services sites that receipt of excess 
property from the requesting FCA is authorized.)
    (ii) A provisional copy or signed copy of a DD Form 1348-1A is the 
instant at which accountability for the FCA property (non-hazardous or 
hazardous) is transferred to a DLA Disposition Services site.
    (7) If at any time any issue requires resolution, a team approach 
will be used at the turn-in activity and DLA Disposition Services site 
level. Disputes that cannot be resolved will be elevated to the next 
corresponding level of the FCA and the DLA Disposition Services. If 
necessary, alternative dispute resolution will be used.
    (8) DLA Disposition Services sites will:
    (i) Reserve the right to refuse any turn-in due to workload or 
resource constraints if support would seriously impair the DLA mission 
for the DoD.
    (ii) Receive and screen FCA property using the same method used for 
excess DoD property, except property will not be made available to those 
special program organizations who, because of enabling legislation, may 
only obtain excess DoD property; e.g., HAP, law enforcement support 
offices, and SEAs.
    (9) Sales proceeds, if any, will be deposited into the U.S. Treasury 
as miscellaneous receipts, unless otherwise specified by law. No 
reimbursement of proceeds will be made to the FCA. Contract claims 
resulting from the sale of federal property may be the responsibility of 
the FCA.
    (10) For hazardous property, DLA Disposition Services will notify 
FCAs of any:
    (i) New procedures pertaining to the disposal process or funding 
changes. HW contracts may be modified by mutual written consent of the 
parties. Modifications requiring resource changes may be given with 
enough advance notification for revisions or adjustments to be made 
during the budget formulation process and the hazardous disposal service 
contract process.
    (ii) Proposed changes to administrative support costs at least 60 
days in advance of a change.
    (11) DLA Disposition Services will ensure DEMIL-required property 
and property that may require export controls are processed 
appropriately. Property requiring DEMIL may be shipped to an alternate 
location either by DLA Disposition Services or by an FCA. These charges 
are included in the TAB rates.
    (12) FCAs desiring to order excess DoD property from DLA Disposition 
Services sites will follow the GSA procedures for acquiring property 
through GSAXcess[supreg]. Once excess DoD property is physically 
obtained from DLA Disposition Services, the property belongs to and must 
be disposed by the FCA. This includes property that is DEMIL or 
mutilation required. Turn-in of previously ordered property from the DLA 
Disposition Services will be accepted from only those FCAs that have 
established an Economy Act Order.
    (13) FCAs may continue to participate in the DoD PMRP at no charge, 
in accordance with Enclosure 5 to DoD Manual 4160.21, Volume 2. These 
transactions are accomplished via an ISSA between DLA Disposition 
Services and FCAs.
    (O) U.S. Postal Service (USPS). (1) USPS is not authorized to 
dispose excess DoD property through DLA Disposition Services without an 
FCA intragovernmental agreement.
    (2) If such an agreement is executed:
    (i) Items of a strictly postal nature, such as a carrier satchel 
embossed ``U.S. Mail,'' postal scales, or other equipment so similar in 
nature or design to official USPS equipment as to cause confusion may 
not be turned in to DLA Disposition Services sites, sold, or disposed to 
the general public until the USPS has been notified of the intended 
disposition and offered an opportunity to inspect the equipment. DLA 
Disposition Services sites will notify local post office inspectors of 
the existence of this property and arrange for its inspection if the 
USPS wants to prevent it from falling into the hands of unauthorized 
persons.

[[Page 786]]

    (ii) DoD purchased or owned postal equipment with official postal 
identification markings may be transferred to the USPS through DLA 
Disposition Services site processing, under the standard transfer 
policies in 41 CFR chapter 101. If transferred from DoD Components 
without going through an official DLA Disposition Services site, the DoD 
activity will negotiate with USPS for fair market reimbursement.
    (iii) Property not transferred that contains markings that would 
tend to confuse this property with official USPS equipment will have the 
markings removed before release for DLA Disposition Services site 
processing.
    (iv) Excess DoD postal equipment loaned to DoD Components by the 
USPS will be returned to the USPS.
    (P) American National Red Cross. Property that was processed or 
donated by the American National Red Cross to a Military Department and 
becomes excess DoD property may not be disposed without notice to and 
consultation with the American National Red Cross. This property will be 
returned without reimbursement to the American National Red Cross upon 
request, if that organization pays packing and shipping costs.
    (Q) DoD Computers for Learning (CFL). The DoD CFL program implements 
Executive Order 12999, ``Educational Technology: Ensuring Opportunity 
for All Children in the Next Century'' and enables DoD to transfer 
excess IT equipment to pre-kindergarten through grade 12 schools and 
educational non-profit organizations through a DLA Disposition Services 
web-based program. The DLA Disposition Services program replaces the DoD 
Computers for School, Educational Institution Partnership Program that 
was overseen by the Defense Information Systems Agency.
    (1) Eligible educational organizations serve pre-kindergarten 
through grade 12 students and are public, private, or parochial schools 
or educational nonprofits classified as tax-exempt under section 501c of 
the United States tax code. Schools and educational nonprofits must be 
located within the United States and its territories.
    (i) Schools must register in the DLA Disposition Services web-based 
CFL program and complete all point of contact and profile information.
    (ii) Schools must ensure that IT equipment transferred will be used 
for student and faculty training to augment existing IT equipment, to 
strengthen their infrastructure, or for other academic-related programs.
    (iii) All costs incurred in connection with the transfer of 
equipment through the CFL will be the responsibility of the school and 
include: Expenses in connection with the school's inspection of the IT 
equipment at DoD sites; cost of packing, crating, marking, and loading 
the equipment on the carrier's conveyance for transportation; and cost 
of transportation from DoD sites.
    (2) DoD IT equipment FSG 70 with a DEMIL Code of A and DEMIL Code of 
Q with an Integrity Code of 6 that is located in CONUS and has been 
accepted to a DLA Disposition Services site's accountability records is 
eligible for transfer within DoD CFL once DoD screening is complete and 
the inventory is not requisitioned by DoD.
    (3) IT equipment is available on an ``as-is'' basis, without 
warranties from DoD as to the condition of the equipment. Eligible 
equipment includes mainframes, minicomputers, microcomputers, modems, 
disk drives, printers, and items that are defined within the FSG 70 and 
are appropriate for use in CFL.
    (4) After the DoD excess screening is completed, providing there are 
no DoD requests, DLA Disposition Services will:
    (i) Make provisions for schools to receive information concerning 
DoD IT equipment that is available for transfer.
    (ii) Notify the schools of available equipment that matches the 
profile submitted by the school.
    (iii) ``Freeze'' the equipment when the school verifies a need so 
that other schools cannot be offered the same equipment.
    (iv) Review, approve, and notify generating activities to transfer 
to a school by generating a MRO from DLA Disposition Services system for 
accounting for excess surplus property in DoD to decrement quantity and 
preclude transmission to the FEDS.

[[Page 787]]

    (v) While holding for transfer to schools, the following applies: 7-
day accumulation (DoD can order anytime) and 14-day DoD screening (DoD 
can order anytime).
    (vi) On day 14, if still available, DLA Disposition Services will 
freeze the property and create a MILSTRIP initiating a transfer to 
school transaction. DLA Disposition Services will send MILSTRIP to the 
generating activity, who will arrange for the school to remove the item. 
Schools authorized a transfer are responsible for arranging the pickup 
or shipping of IT equipment.
    (vii) The IT equipment not designated to schools during the DoD CFL 
timeframe will be transmitted to GSAXcess[supreg] for FCAs and donees.
    (viii) Generating activities can specify a school for intended 
transfer once DLA Disposition Services has accountability of the 
equipment, through the DLA Disposition Services web-based CFL program. 
From the DLA Disposition Services Home Page, the user may click on 
Property Search for Military, Federal, State, and Special Programs, then 
click on ``Computers for Learning.'' The CFL Program enables the 
generating activity to view the IT equipment that was turned in under 
their DoDAAC and then designate that equipment to approved schools. The 
generating activity has 7 days to make this selection; otherwise, the 
equipment can be viewed by any eligible educational activity.
    (ix) Equipment not identified by a generating activity for a 
specific school will be made available to schools and educational non-
profit organizations that are approved within CFL.
    (x) The authorized school is responsible for coordinating with the 
generating activity for the removal of equipment.
    (xi) The authorized school has 14 days after receipt of 
authorization to remove the equipment.
    (xii) If the school does not remove the equipment within the 14 
days, the generating activity will notify the DLA Disposition Services 
site of the non-removal.
    (xiii) Upon receipt of notification, the DLA Disposition Services 
site will notify DLA Disposition Services to cancel the order.
    (R) Firefighter Transfer Program. The DoD has authorized the U.S. 
Department of Agriculture Forestry Service (USDA FS) to manage DoD 
firefighting property transfers provided for in accordance with 10 
U.S.C. 2576b. Title to all Firefighter Property Transfer Program 
property will pass to the State upon:
    (1) The State taking possession of the equipment (such as removing 
or having the equipment removed from a DLA Disposition Services site).
    (2) The State receiving a DD 1348, ``DoD Single Line Item 
Requisition System Document (Manual),'' or SF 97 or both for the 
equipment. The DD Form 1348 or SF 97 will indicate which property 
requires DEMIL (DEMIL Codes C, D, and F).
    (3) The USDA FS will track all equipment requiring DEMIL until final 
disposition and require the State to ensure that such equipment is 
either transferred to another DoD agency authorized to receive it or is 
returned to a DLA Disposition Services site when no longer required. 
USDA FS will require the State coordinate any such transfers and returns 
with the Distribution Reutilization Policy Directorate at DLA prior to 
the transfer. The recipients are responsible for funding shipment or 
removal.
    (x) Expedited processing (EP). (A) EP is the approved reduction of 
screening timeframes. In the zone of interior (ZI), EP may be used on a 
case-by-case basis. Situations where EP may be considered include 
backlog situations, potential deterioration from outside storage, or 
other compelling reasons.
    (B) GSA is the approving authority for EP for non-DEMIL required 
property within the ZI. DLA Disposition Services is the approving 
authority for DEMIL-required property within the ZI.
    (C) Current automation technology allows items going through EP to 
be visible on the DLA Disposition Services Web site and 
GSAXcess[supreg].
    (D) In contingency operations the supported Combatant Command has 
the authority to accelerate screening timelines based on mission 
requirements and operational tempo.

[[Page 788]]

    (xi) Screener identification and authorization. (A) Individuals 
visiting DLA Disposition Services sites to view, order, or remove 
property or for any other reason are required to provide proper 
identification as authorized representatives of a valid recipient 
activity.
    (1) Upon arrival at the DLA Disposition Services site, the 
individuals will sign the vehicle or visitor register indicating the 
vehicle registration number and the purpose of their visit.
    (2) Visitors representing donation recipients will only be allowed 
to complete the tasks identified under ``purpose of visit'' on the 
vehicle or visitor register.
    (3) All screeners will specify the DoDAAC or AAC for which they are 
inspecting.
    (B) DoD screeners will further identify themselves as authorized 
representatives of a DoD Component by means of a current employee or 
Military personnel identification issued by the DoD activity.
    (C) FCA screeners will present current employee identification as 
valid authorization. This also applies to screeners representing mixed-
ownership USG corporations.
    (D) Non-federal screeners will present an authorization on the 
letterhead of the sponsoring activity, identifying the bearer and 
indicating the nature of the authorization. This letter of authorization 
will be updated at least annually or as changes occur.
    (E) All SEA screeners will present a valid driver's license or other 
State-approved picture identification or the letter of authorization.
    (F) DLA Disposition Services sites will refer problems in 
identifying screeners to the activity commander. For FCA and donation 
screeners, refer to the proper GSA regional office.
    (xii) Screening for property at DLA Disposition Services sites. (A) 
DLA Disposition Services sites will assist customers interested in 
obtaining property by referring them to the DLA Disposition Services Web 
site or by providing guidance for physical inspection and location of 
property. Assistance may also include use of a customer-designated 
personal computer to screen assets worldwide and establish a pre-defined 
customer want list.
    (B) When a prospective donation recipient contacts a DLA Disposition 
Services site or military installation regarding possible acquisition of 
surplus property, the individual or organization will be advised to 
contact the applicable SASP for determination of eligibility and 
procedures.
    (4) Orders for FEPP, excess, and surplus property from DLA 
Disposition Services and GSA--(i) General. (A) DoD activities, FCAs, and 
other authorized activities are permitted to order DoD FEPP, excess, and 
surplus personal property based on the property status at the time the 
authorized screener identifies its availability from the DLA Disposition 
Services Web site. This property may be ordered through DLA Disposition 
Services or GSA.
    (B) DLM 4000.25-1 requires orders for property on the DLA 
Disposition Services site's accountable records to be prepared on DD 
Forms 1348-1A or 1348-2. The use of the DLA Disposition Services Web 
site allows orders to be processed without hard copies of DD Forms 1348-
1A or 1348-2. A separate order is required for each line item on a DLA 
Disposition Services site's inventory (except batchlots that are grouped 
together). The shopper will furnish the appropriate information either 
electronically or by hard copy.
    (C) Orders for property in the GSA screening cycle will be submitted 
through GSAXcess[supreg]. Customers are required to complete and submit 
the SF 122 ``Transfer Order Excess Personal Property'' to GSA. GSA will 
then transmit the order to DLA Disposition Services.
    (D) DoD activities (other than MWRAs or Services, which are covered 
in Sec. 273.6) must request Military Department or Defense Agency 
excess and FEPP through servicing accountable officers or their 
designated representatives.
    (E) See Sec. 273.6 for special guidance affecting USCG ordering.
    (F) U.S. Army accountable supply officers should check with their 
finance accounting office prior to requesting items from DLA Disposition 
Services.

[[Page 789]]

Often, Army customers are billed internally for the items they have 
ordered from DLA Disposition Services.
    (G) The following principles apply to acquiring property from these 
sources, including Federal regulations, which apply to the Department of 
Defense, special programs and activities, FCAs, and donees when 
acquiring excess or surplus personal property:
    (1) There must be an authorized requirement.
    (2) The cost of acquiring and maintaining the excess personal 
property (including packaging, shipping, pickup, and necessary repairs) 
does not exceed the cost of purchasing and maintaining new materiel and 
does not exceed the value of property requested.
    (3) The sources of spare parts or repair and maintenance services to 
support the acquired item are readily accessible.
    (4) The supply of excess parts acquired must not exceed the life 
expectancy of the equipment supported.
    (5) The excess personal property will fulfill the required need with 
reasonable certainty without sacrificing mission or schedule.
    (6) Excess personal property must NOT be acquired with the intent to 
sell or trade for other assets.
    (7) DoD activities will request only that property that is 
authorized by the parent HQ or command. Activities may not request 
quantities of property exceeding authorized retention limits.
    (H) The special screening programs will request only property that 
is authorized by the program or activity accountable officer or program 
manager, whichever is applicable. If the special screening programs want 
DLA Disposition Services site to verify the FSC has been authorized 
before release, the accountable officer or program manager must provide 
a current authorized FSC list to the DLA Disposition Services site. The 
removal agent must sign any certification required, acknowledging 
understanding of rules of disposal, prior to removal of the property.
    (I) The Military Department accountable officer who designates DoD 
individuals to sign orders on their behalf must provide DLA Disposition 
Services sites with an electronic letter of authorization, identifying 
those individuals. The template for the letter is on the DLA Disposition 
Services Web site. It will include the full name, activity, DoDAAC, 
telephone number, address, and signature of the individuals authorized 
to sign and authenticate MROs. These individuals may be different from 
those who are the initial shoppers or those picking up the property.
    (ii) Emergency requests. (A) Telephone requests during non-duty 
hours may be made by contacting the DLA Disposition Services staff duty 
officer (SDO) (DSN 661-4233; Commercial, 269-961-4233). Under these 
circumstances, the SDO will record the request and will contact the DLA 
Disposition Services program manager to initiate proper action.
    (B) If a DoD activity has an emergency need for a surplus DoD item 
in the possession of a SASP, it may be requested from that SASP. The 
acquiring DoD activity must pay any costs of care, handling, and 
transportation that were incurred by the SASP in acquiring this 
property.
    (C) For requests for property to fill training aid and target need 
orders, see ``Training Aids and Target Requirements'' in paragraph 147 
of Enclosure 3 of DoD Manual 4160.21, Volume 4.
    (iii) Late orders. (A) If a DoD order is received after the 
screening timeline has expired, the customer will provide justification 
as to the true necessity for the property requested, indicating why 
other comparable property in the DLA Disposition Services inventory does 
not satisfy the need. See paragraph (a) of this section for more 
guidance if the property needs to be withdrawn from sale.
    (B) Orders for property received during the GSAXcess[supreg] 
screening period must be submitted according to GSA ordering procedures.
    (iv) Requests for small arms and light weapons. Small arms and light 
weapons (see Sec. 273.12) will be processed according to the guidance 
in DoD Manual 4160.21, Volume 4. Table 5 of this section contains a list 
of Military Department and Defense Agency designated control points 
authorized to initiate orders or through which orders must be routed for 
review and approval before issue can be effected.

[[Page 790]]



 Table 5--DoD Designated Control Points for Small Arms and Light Weapons
                   Ordering, Reviewing, and Approving
------------------------------------------------------------------------
          Service/Agency                        Control point
------------------------------------------------------------------------
Army..............................  Director of Armament and Logistics
                                     Activity, Chemical Acquisition,
                                     ATTN: AMSTA-AC-ASI, Rock Island, IL
                                     61299-7630, Telephone: DSN 793-
                                     7531, Commercial: (309) 782-7531.
Air Force.........................  WR-ALC/GHGAM, 460 Richard Ray Blvd.
                                     Suite 221, Robins AFB, GA 31098-
                                     1640, Telephone: DSN 497-2877,
                                     Commercial: (478) 327-2877.
Marine Corps......................  Commandant of the Marine Corps,
                                     ATTN: LPC, Headquarters, U.S.
                                     Marine Corps, 3000 Marine Corps,
                                     Pentagon, RM 2E211, Washington, DC
                                     20350, Telephone: DSN 225-8900,
                                     Commercial: (703) 695-8900.
Coast Guard.......................  Commandant, ATTN: CG-7211,
                                     Commandant (CG-7211), U. S. Coast
                                     Guard HQ, Douglas A. Munro Bldg.,
                                     2703 Martin Luther King Jr. Ave,
                                     SE, Stop 7331, Washington, DC 20593-
                                     7331, (202) 372-2030.
National Security Agency..........  National Security Agency, Item
                                     Accounting Branch, ATTN: L112, Fort
                                     George Meade, MD 20755 6000.
Defense Intelligence Agency.......  Defense Intelligence Agency, ATTN:
                                     RLE 2, Washington, DC 20340 3205.
Defense Threat Reduction Agency...  Headquarters, Defense Threat
                                     Reduction Agency, 8725 John J.
                                     Kingman Road MSC 6201, Fort
                                     Belvoir, VA 22060-6201, ATTN: BDLL,
                                     Telephone: DSN 427-0785, Commercial
                                     (703) 767-0785.
------------------------------------------------------------------------

    (5) Condition of property ordered. Orders authorized by DLA 
Disposition Services or GSA regional offices will be processed as 
expeditiously as possible and according to the Uniform Materiel Movement 
and Issue Priority System priority on the requisition.
    (i) DLA Disposition Services sites will determine the property 
requested is in as good a condition as it was during screening.
    (ii) If the ordered property has materially deteriorated from 
screening or receipt to inspection for shipment, the DLA Disposition 
Services site will advise the customer before shipment. The shipment 
will be suspended pending agreement by the customer that the property 
will be accepted in its present condition.
    (iii) Once ordered, and pending receipt of an approved transfer 
document or removal of the property, no parts may be removed without 
prior approval of DLA Disposition Services (for DoD orders) or GSA (for 
transfers and donations), and agreement by the customer that the 
property will be accepted in its altered condition.
    (6) Reimbursement requirements. (i) The generating activity will 
identify reimbursement requirements on the DTID when transferring 
property to the DLA Disposition Services site. Although not specifically 
a DLA Disposition Services responsibility, DLA Disposition Services 
sites may contact the generating activity when they suspect the 
generator may be eligible for reimbursement but has not noted it on the 
DTID.
    (ii) Issue of declared Military Department or Defense Agency FEPP, 
excess and surplus personal property to DoD users will be on a non-
reimbursable basis except when the customer is prohibited by law from 
acquiring FEPP, excess and surplus property without reimbursement or 
where reimbursement is required by annotations on the receipt DTID. 
Issues to the USPS require fair-market value reimbursement.
    (iii) The requester will transfer funds to the generating activity 
without DLA Disposition Services site involvement.
    (iv) The DLA Disposition Services site will provide the name of the 
property requiring reimbursement when it is requested by the DoD or an 
FCA. The requesting activity and the generating activity must agree on 
the appropriate amount of funds, and how they will be transferred. When 
this is accomplished, the generating activity must give the DLA 
Disposition Services site a letter indicating what property is to be 
transferred and to whom. The DLA Disposition Services site will file a 
copy of this letter with the issue document to create an audit trail.
    (v) Issues of DoD FEPP, excess, and surplus personal property, other 
than foreign purchased property and other property identified as 
reimbursable, will be at no cost to FCAs and to SASPs.
    (A) Property purchased with working capital funds is not eligible 
for reimbursement in the transfer or donation program. GSA may direct 
transfers be

[[Page 791]]

made with reimbursement at fair market value.
    (B) Public law may prohibit FCAs from obtaining certain property.
    (C) FCAs, for the purpose of issue of excess property, include 
federal executive agencies other than the DoD; wholly owned government 
corporations; the Senate; the House of Representatives; the Architect of 
the Capitol and any activities under their direction; the municipal 
government of the District of Columbia; or non-federal agencies for whom 
GSA procures.
    (vi) Foreign purchased property reimbursements will be at the 
acquisition value.
    (vii) For special programs and activities, DLA Disposition Services 
sales to special account fund citations may be required in accordance 
with Volume 11a, Chapter 5 of DoD 7000.14-R. For DLA Disposition 
Services to provide timely and accurate reimbursements, the 
transportation account code address in DLA Transaction Services must be 
correct and current.
    (A) In accordance with DoD 4160.28-M Volumes 1-3, all DoD MLI and 
Commerce Control List (CCL) personal property, whether located within or 
outside the United States, will be transferred in accordance with 22 CFR 
parts 120 through 130 and 15 CFR parts 730 through 774.
    (1) DoD MLI or CCL personal property will not be transferred to any 
foreign person or entity without DoS or DOC approval, authorization, 
license, license exception, exemption, or other authorization for the 
transfer.
    (2) Such property will not be transferred to prohibited or 
sanctioned entities identified by the Departments of State, Commerce, 
and Treasury. A consolidated list of prohibited entities by these 
Departments may be found at http://export.gov/ ecr/eg_main_ 023148.asp.
    (3) Property will not be transferred to persons or entities from 
countries proscribed from trade under regulations maintained by the 
Office of Foreign Assets Control. The agency (e.g., GSA or USAF CAP 
Program Manager) approving the transaction must determine recipient 
eligibility prior to issuing the requisition to DLA Disposition 
Services.
    (4) If the agency approving the requisition cannot determine that a 
U.S. person or entity is involved with the property transaction, the 
recipient must obtain and provide the appropriate license or approval to 
the agency approving the transaction.
    (5) Approving agencies must be involved in any subsequent re-
transfer requests by the recipient. The recipient must request the 
agency's permission prior to taking any disposition action. If the 
approving agency authorizes the potential transfer, the recipient must 
then comply with 22 CFR parts 120 through 130, also known as the 
International Traffic in Arms Regulations (ITAR), or 15 CFR parts 730 
through 780, also known as the Export Administration Regulations (EAR), 
as appropriate.
    (B) For USML and CCL property, DLA Disposition Services sites will 
require recipients to sign a statement acknowledging their 
responsibility to comply with U.S. export laws and regarding 
regulations. The statement must be signed prior to the release of the 
property according to the DEMIL procedures in DoD 4160.28-M Volumes 1-3. 
If property is destined for export, the recipient must get appropriate 
export authorizations from the DoS or DOC in accordance with DoD 
Instruction 2030.08.
    (C) DLA Disposition Services sites may issue DEMIL-required property 
to approved special programs or GSA eligibility-approved FCAs without 
DEMIL being accomplished.
    (1) Prior to release from DoD control, DLA Disposition Services 
sites must obtain a written agreement (see Appendixes 1 and 2 of this 
section) from the requesting special program or FCA.
    (2) This agreement acknowledges that the recipient will DEMIL the 
USML property in accordance with DoD 4160.28-M Volumes 1-3, when the 
property is no longer needed.
    (3) The agreement further states that if the property is to be re-
transferred, the recipient must obtain approval from its program manager 
(approving agency) and in coordination with the DoD DEMIL program 
manager prior to further disposition or before releasing

[[Page 792]]

the USML property outside their control. The representative of the 
recipient is required to sign the DEMIL agreement before release of any 
USML property.
    (4) If the recipient requests DLA Disposition Services to perform 
final disposition, an MOA must be executed or in place with DLA 
Disposition Services for such services.
    (5) The DLA Disposition Services site will provide a completed copy 
of the certification to the GSA and retain a copy with the issue 
documentation.
    (D) DLA Disposition Services sites may transfer CCL (DEMIL Code Q) 
and non-DEMIL-required USML (DEMIL Code B) property that may have import 
and export controls to approved special programs or FCAs. Prior to 
release of such CCL and non-DEMIL-required USML property, the requesting 
special program or FCA must provide written notification to the DLA 
Disposition Services site (see Appendixes 3 and 4 of this section). This 
notification confirms recipient's understanding that export or import of 
the CCL or non-DEMIL-required USML property is regulated by the USG and 
in many cases cannot be transferred (exported, imported, sold, etc.) to 
a foreign person, entity or foreign country without valid USG license or 
other authorization.
    (viii) GSA reviews and approves each order, each in its respective 
screening cycle (transfer or donation).
    (7) Shipment or pick-up elections by customers--(i) Criteria for 
non-RCP property. (A) DLA Disposition Services will make arrangements 
for shipment of non-RCP property from Military Department orders unless 
notified by the DoD Component of the intent to physically pick up the 
property. DLA Disposition Services has been authorized to use ground 
services for the movement of reutilization property. The DLA Disposition 
Services Transportation Office will notify DLA Disposition Services 
sites of the authorized carrier.
    (B) The DoD Component and special programs have 14 calendar days (15 
days from the date on the order) to remove the non-RCP property ordered 
during the DoD screening cycles.
    (C) Transfer (FCA) and donee (State agency) customers are always 
required to make their own pickup and shipment arrangements for non-RCP 
property orders and have 21 calendar days to remove non-RCP property 
ordered during the GSAXcess[supreg] screening cycle.
    (D) Standard transportation or preferred pick up of the property 
requested by DoD customers who are allocated property by GSA apply.
    (1) If DoD transfers customers order from the GSAXcess[supreg], they 
also have 21 days to remove the non-RCP property.
    (2) Customers required to pick up or arrange direct pickup must do 
so within the allotted standard removal time period unless it is 
extended by the DLA Disposition Services site chief. An example of 
justification for extended removal time would be as a result of a 
natural disaster (flood, snow, etc.). DLA Disposition Services site 
personnel may refuse MILSTRIPs or walk-in removals for customers who 
fail to pick up their property within the removal period and request 
cancellation of the order.
    (ii) Criteria for RCP property. (A) DLA Disposition Services will 
arrange for shipment of RCP property from Military Department and 
special program orders.
    (B) FCAs will designate the method of transportation for RCP 
property ordered using one of the following options:
    (1) The FCA arrange with carriers of their choice to remove the 
property from a designated staging area at the depot; or
    (2) The FCAs requests the DLA Disposition Services RCP Office to use 
an approved carrier under the DoD blanket purchase agreement awarded 
carrier for Domestic Express Small Package Service under the GSA 
Multiple Award Schedule for shipments of 150 pounds or less at http://
private.amc.af.mil/ a4/domexpress/ spsindex.html. Use of this option for 
the smaller shipments requires a one-time notification to DLA 
Disposition Services of the preferred carrier and account number in the 
format.
    (C) FCAs must arrange with the carriers of their choice for 
shipments in excess of 150 pounds.
    (D) Donee (State agency) customers are always required to make their 
own pickup or shipment arrangements for

[[Page 793]]

RCP property orders from designated staging areas.
    (8) Packing, crating, and handling. See Sec. 273.7.
    (9) Shipment and removals (transportation).--(i) DoD and designated 
DoD-supported customers. (A) Prudence in transportation services 
benefits the Military Departments, Defense Agencies, MARS, CAP, National 
Aeronautics and Space Administration (Space Shuttle Support), National 
Guard Units, Reserve Units, DoD contractor when approved by the CO, 
Senior ROTC, and MWRA/Services when ordered through the Military 
Department accountable officer and DLA Disposition Services.
    (B) In cases where the cost of the transportation exceeds the 
acquisition value of the property, DLA Disposition Services sites will 
evaluate the commodity and its actual value; make a judgment as to its 
true condition and the priority of the order.
    (1) The DLA Disposition Services site will contact the customer and 
provide the property's estimated value and transportation cost to ship 
the property.
    (2) If a lower cost transportation mode is available, meets the 
requirements of the order, and the customer and DLA Disposition Services 
site agree, the DLA Disposition Services site will arrange for the 
alternate shipment mode. If it would not be cost effective to ship the 
property as requested, the customer will be asked to cancel the order.
    (3) If the customer reconfirms the need for the property, the 
following certification information will be provided to a DLA 
Disposition Services site along with the customer reconfirmation 
statement found in Appendix 5 of this section. DoD activities must 
prepare, sign, and submit a justification statement for property where 
the transportation costs exceed 50 percent of the acquisition value of 
the property. The justification statement will be signed by the Property 
Book Officer or designated representative and will state:
    (i) The purpose for which the item is to be used and whether the 
item is mission-essential to the operation of the requestor's activity.
    (ii) Any additional information deemed necessary to show criticality 
of the requisition. The statement should be included with the DD Form 
1348. Failure to provide a statement may result in the requisition being 
canceled.
    (C) If the customer determines the shipment is not needed, the 
customer will initiate cancellation action according to the procedures 
in DLM 4000.25-1.
    (D) The shipper will finance parcel post shipments between DoD 
agencies without reimbursement.
    (ii) Other customers (excluding transfer and donation customers). 
(A) LEAs are responsible for removing or making arrangements for 
shipments.
    (B) MWRAs not ordering property through a military accountable 
supply officer, DoD museums, academic institutions, and non-profit 
organizations for educational purposes, Senior ROTC units and FCAs must 
pay for transportation costs and must provide a fund citation prior to 
shipment or pick up of the property.
    (C) Only one carrier is authorized per agency, and once the agency 
has designated a carrier, 30 days notice is required to change a 
carrier.
    (D) FMS customers are responsible for most transportation costs 
associated with the movement of ordered property.
    (1) The DLA Disposition Services FMS Office will identify exceptions 
to this rule. Transportation of sensitive and other critical FMS 
shipments will be coordinated between the DLA Disposition Services FMS 
Office, the purchasing country, and other DoD agencies, as required. For 
these shipments, the DLA Disposition Services FMS Office will provide 
separate instructions and fund citations.
    (2) Transportation arrangements will be made by the DLA Disposition 
Services site or by the supporting transportation office.
    (E) HAP orders are shipped by DLA Disposition Services by surface to 
the central point using the most cost-effective mode (and must remain 
within the assigned theater). At no time will HAP property be shipped by 
air unless directed by DLA Disposition Services.
    (10) Shipment or denial notifications. (i) DLA Disposition Services 
sites will use

[[Page 794]]

the guidance in DLM 4000.25-1 to prepare materiel release confirmations 
in response to MROs received from DLA Disposition Services.
    (ii) When shipments are complete, DLA Disposition Services sites 
will furnish a copy of the shipping document to the customer. This 
document confirms shipment. The customer will notify the DLA Disposition 
Services site if the property is not received within a reasonable period 
of time. FCAs will only be provided a copy of the SF 122, with 
annotation of the transportation data, when arrangements for DLA 
Disposition Services sites to ship the property have been made in 
advance.
    (iii) DLA Disposition Services sites will:
    (A) Advise the customer if the property requested is no longer 
available or of acceptable condition.
    (B) Document non-availability by a materiel release denial prepared 
in accordance with DLM 4000.25-1, if item(s) for an MRO are not 
available.
    (C) Issue a letter for all other non-availability notifications, 
with a copy to GSA if they approved the order. The letter will contain 
the following data at a minimum:
    (1) NSN.
    (2) Order number.
    (3) Quantity not available.
    (11) Customer removal of ordered property--(i) Identification 
requirements. When a customer (DoD election to pick up property ordered 
from the DLA Disposition Services site or an FCA or donee) makes removal 
arrangements, the individuals removing the property must be properly 
identified. Coordinate with DLA Disposition Services prior to arrival to 
complete and transmit documents for identification.
    (A) Upon arrival at the DLA Disposition Services site, the 
individuals will identify themselves, sign a DLA Disposition Services 
visitor and vehicle register and indicate on the register the DoDAAC 
represented (for DoD activities) or AAC represented (for non-DoD 
activities), and the purpose of the visit.
    (B) Visitor and vehicle registers will be readily accessible (see 
paragraph (c) of this section).
    (ii) Documentation requirements. (A) Customers will:
    (1) Present an approved and authenticated DD Form 1348-1A, SF 122, 
or 123 ``Transfer Order Surplus Personal Property,'' as appropriate, for 
specific property. The accountable officer or authorized individual(s) 
listed in the previously provided authentication letter must sign the DD 
Form 1348-1A, SF 122, or SF 123.
    (2) Provide designated carrier or removal agents with a copy of DD 
Form 1348-1A or SFs 122 or 123, as appropriate, indicating removal 
authority.
    (i) DoD customers must have a hard copy of the electronically 
transmitted letter of authorization prior to removal, and an email 
response from DLA Disposition Services with verification of personnel 
authorized to remove property.
    (ii) Transfer and donation customers must provide a completed letter 
of authorization to remove property to the DLA Disposition Services site 
prior to removal for verification purposes.
    (B) DLA Disposition Services sites will:
    (1) Ensure the visitor and vehicle register for each direct issue 
includes:
    (i) Name of the individual receiving the property.
    (ii) DoDAAC or AAC or physical location address.
    (iii) Activity of the individual receiving the property.
    (2) Ensure each customer is issued a badge when signing in.
    (3) Ensure that DD Form 1348-1A or SF 122 or 123 is complete 
according to MILSTRIP and disposal requirements and is signed by the 
applicable accountable officer or authorized representative.
    (4) For DoD walk-in customers, ensure a current letter is on file at 
the DLA Disposition Services site identifying the accountable officer 
and authorized individual(s) signing and approving the order.
    (5) Fill the order.
    (6) Provide any appropriate disclaimers or certifications of usage 
or disposal to the customer for signature prior to releasing the 
property.
    (7) Furnish a copy of the completed shipping document to the 
respective accountable officer (record positions 30-35 of DD Form 1348-
1A).

[[Page 795]]

    (8) If being removed by anyone other than the customer, verify that 
the carrier has valid documentation (a copy of DD Form 1348-1A or SFs 
122 or 123, as appropriate) indicating removal authority. Arrange for 
completion of any disclaimers or certifications of usage or disposal 
with the customer, prior to releasing the property to the carrier.
    (9) In case of doubt as to the validity of pickup representatives, 
DLA Disposition Services sites should contact the accountable officer 
who prepared the order for DoD activities, or DLA Disposition Services 
for activities authorized to order as DoD special programs, or the GSA 
regional office for other FCAs or donees.

[[Page 796]]

                       Appendix 1 to Sec. 273.15

DEMIL Agreement for DEMIL-Required USML Property to FCAs (DEMIL Codes C, 
                               D, E, OR F)
[GRAPHIC] [TIFF OMITTED] TR03NO15.235


[[Page 797]]


[GRAPHIC] [TIFF OMITTED] TR03NO15.236

                       Appendix 2 to Sec. 273.15

  DEMIL Agreement for DEMIL-Required USML Property to Special Programs 
                       (DEMIL Codes C, D, E, or F)
[GRAPHIC] [TIFF OMITTED] TR03NO15.237


[[Page 798]]


[GRAPHIC] [TIFF OMITTED] TR03NO15.238


[[Page 799]]



                       Appendix 3 to Sec. 273.15

Notification for CCL and Non-DEMIL-Required USML Property to FCAS (DEMIL 
                             Codes B and Q)
[GRAPHIC] [TIFF OMITTED] TR03NO15.239


[[Page 800]]


[GRAPHIC] [TIFF OMITTED] TR03NO15.240


[[Page 801]]



                       Appendix 4 to Sec. 273.15

  Notification for CCL and Non-DEMIL-Required USML Property to Special 
                     Programs (DEMIL Codes B and Q)
[GRAPHIC] [TIFF OMITTED] TR03NO15.241


[[Page 802]]


[GRAPHIC] [TIFF OMITTED] TR03NO15.242

                       Appendix 5 to Sec. 273.15

                         Customer Reconfirmation
[GRAPHIC] [TIFF OMITTED] TR03NO15.243


[[Page 803]]





PART 274_REGULATIONS GOVERNING COMPETITIVE BIDDING ON U.S.
GOVERNMENT GUARANTEED MILITARY EXPORT LOAN AGREEMENTS--Table of Contents



Sec.
274.1 Purpose.
274.2 Definitions.
274.3 Public notice.
274.4 U.S. guaranty.
274.5 Notice of intent to bid.
274.6 Submission of bids.
274.7 Acceptance of bids.
274.8 Bids-revocations-rejections-postponements.
274.9 Delegation of authority to the Secretary of the Treasury.
274.10 Reservations.

    Authority: Sec. 24, Foreign Military Sales Act (22 U.S.C. 2764) and 
Executive Order 11501 (34 FR 20169).

    Source: 38 FR 858, Jan. 5, 1973, unless otherwise noted.



Sec. 274.1  Purpose.

    The purpose of this memorandum is to prescribe regulations under 
which the Secretary of Defense or his designee may, from time to time, 
by public notice, offer financial institutions the opportunity to bid on 
the interest rates for the subject agreements. The bids made will be 
subject to the terms, conditions, and procedures herein set forth, 
except as they may be supplemented in the public notice or notices 
issued by the Secretary of Defense or his designee in connection with 
particular offerings.



Sec. 274.2  Definitions.

    (a) The terms public notice, notices, or announcement mean the 
public notice of invitation to bid and any supplementary or amendatory 
notices or announcements with respect thereto, including, but not 
limited to, any statement released to the press by the Secretary of 
Defense or his designee and notices sent to those who have filed notices 
of intent to bid or who have filed bids.
    (b) The term Loan Agreement means the proposed agreement between the 
foreign government and the private U.S. lender as described in the 
particular notice of Invitation to Bid.



Sec. 274.3  Public notice.

    (a) Bids hereunder will be invited through a public notice issued by 
the Secretary of Defense or his designee which will prescribe the amount 
of the loan for which bids are invited, the repayment schedule, the 
conditions under which bidders may specify the rate of interest, and the 
date and closing hour for receipt of bids.
    (b) Accompanying the notice will be the form of the Loan Agreement 
which the successful bidder must execute with the borrower, except for 
those terms which will be subject to bidding.



Sec. 274.4  U.S. guaranty.

    Under section 24 of the Foreign Military Sales Act (22 U.S.C. 2764), 
any individual, corporation, partnership, or other juridical entity 
(excluding U.S. Government agencies) will be guaranteed against 
political and credit risks of nonpayment arising out of their financing 
of credit sales of defense articles and defense services to friendly 
countries and international organizations. Section 24 explicitly 
provides that guarantees thereunder are backed by the full faith and 
credit of the United States. Fees in the amount of one-fourth of 1 
percent of the amount of credits agreed upon shall be charged for such 
guaranties.



Sec. 274.5  Notice of intent to bid.

    Any individual or organization, syndicates, or other group which 
intends to submit a bid, must, when required by the notice, give written 
notice of such intent on the appropriate form at the place and within 
the time specified in the public notice. Such notice, which shall be 
given to the Federal Reserve Bank of New York, 33 Liberty Street, New 
York, NY 10045, will not constitute a commitment to bid.



Sec. 274.6  Submission of bids.

    (a) General. Bids will be received only at the place specified and 
not later than the time designated in the public notice. Bids shall be 
irrevocable.
    (b) Interest rates. Bids must be expressed in terms of rates of 
interest not to exceed three decimals, for example, 5.125 percent.

[[Page 804]]

    (c) Group bids. A syndicate or other group submitting a bid must act 
through a representative who must be a member of the group. The 
representative must warrant to the Secretary of Defense or his designee, 
that he has all necessary power and authority to act for each member and 
to bind the members jointly and severally. In addition to whatever other 
data may be required by the Secretary of Defense or his designee, in the 
case of a syndicate, the representative must file, within 1 hour after 
the time for opening bids, at the place specified in the public notice 
for receipt of bids a final statement of the composition of the 
syndicate membership and the amount of each member's underwriting 
participation.



Sec. 274.7  Acceptance of bids.

    (a) Opening bids. Bids will be opened at the time and place 
specified in the public notice.
    (b) Acceptance of successful bid. The Secretary of Defense or his 
designee will notify any successful bidder of acceptance in the manner 
and form specified in the public notice.



Sec. 274.8  Bids-revocations-rejections-postponements.

    The Secretary of Defense or his designee in his discretion, may (a) 
revoke the public notice of invitation to bid at any time before opening 
bids, (b) return all bids unopened either at or prior to the time 
specified for their opening, (c) reject any or all bids, (d) postpone 
the time for presentation and opening of bids, and (e) waive any 
immaterial or obvious defect in any bid. Any action the Secretary of 
Defense or his designee may take in these respects shall be final. In 
the event of a postponement, known bidders will be advised thereof and 
their bids returned unopened.



Sec. 274.9  Delegation of authority to the Secretary of the Treasury.

    There is hereby delegated to the Secretary or Acting Secretary of 
the Treasury the authority, in the name of and title of the Secretary of 
the Treasury, to invite bids under this memorandum, to issue, modify and 
revoke public notices, notices, and announcements concerning such bids, 
to prescribe additional terms and conditions with respect thereto, 
consistent with this memorandum, to receive, return, open, reject, and 
accept bids, and to take such other actions as may be necessary and 
proper to execute this delegation of authority to implement this 
memorandum, excluding, however, the issuance of guaranties under Sec. 
274.4.



Sec. 274.10  Reservations.

    The Secretary of Defense reserves the right, at any time, or from 
time to time, to amend, repeal, supplement, revise or withdraw all or 
any of the provisions of this memorandum.



PART 275_RIGHT TO FINANCIAL PRIVACY ACT--Table of Contents



Sec.
275.1 Purpose.
275.2 Definitions.
275.3 Authorization.
275.4 Formal written request.
275.5 Certification.
275.6 Cost reimbursement.

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

    Source: 84 FR 24708, May 29, 2019, unless otherwise noted.



Sec. 275.1  Purpose.

    The purpose of this part is to authorize DoD Components to request 
financial records from a financial institution pursuant to the formal 
written request procedure authorized by section 1108 of the Act and to 
set forth the conditions under which such requests may be made.



Sec. 275.2  Definitions.

    The terms used in this part have the same meaning as similar terms 
used in the Right to Financial Privacy Act of 1978, Title XI of Public 
Law 95-630.
    Act means the Right to Financial Privacy Act of 1978.
    DoD Components means the law enforcement activities of the Office of 
the Secretary of Defense, the Military Departments, the Office of the 
Chairman of the Joint Chiefs of Staff, the Joint Staff, the Combatant 
Commands, the Office of the Inspector General of the Department of 
Defense, the Defense Agencies, the DoD Field Activities, and all other 
organizational entities in the

[[Page 805]]

Department of Defense (hereafter referred to as the ``DoD Components'').



Sec. 275.3  Authorization.

    The DoD Components are authorized to request financial records of 
any customer from a financial institution pursuant to a formal written 
request under the Act only if:
    (a) No administrative summons or subpoena authority reasonably 
appears to be available to the DoD Component to obtain financial records 
for the purpose for which the records are sought;
    (b) There is reason to believe that the records sought are relevant 
to a legitimate law enforcement inquiry and will further that inquiry;
    (c) The request is issued by a supervisory official of a grade 
designated by the head of the DoD Component. Officials so designated 
shall not delegate this authority to others;
    (d) The request adheres to the requirements set forth in Sec. 
275.4; and
    (e) The notice requirements required by section 1108(4) of the Act, 
or the requirements pertaining to the delay of notice in section 1109 of 
the Act, and described in paragraphs (e)(1) through (5) of this section 
are satisfied, except in situations (e.g., section 1113(g)) where no 
notice is required.
    (1) The notice requirements are satisfied when a copy of the request 
has been served on the customer or mailed to the customer's last known 
address on or before the date on which the request was made to the 
financial institution together with the following notice which shall 
state with reasonable specificity the nature of the law enforcement 
inquiry: ``Records or information concerning your transactions held by 
the financial institution named in the attached request are being sought 
by the Department of Defense [or the specific DoD Component] in 
accordance with the Right to Financial Privacy Act of 1978 for the 
following purpose:''
    (2)(i) Within ten days of service or within fourteen days of mailing 
of a subpoena, summons, or formal written request, a customer may file a 
motion to quash an administrative summons or judicial subpoena, or an 
application to enjoin a Government authority from obtaining financial 
records pursuant to a formal written request, with copies served upon 
the Government authority. A motion to quash a judicial subpoena shall be 
filed in the court that issued the subpoena. A motion to quash an 
administrative summons or an application to enjoin a Government 
authority from obtaining records pursuant to a formal written request 
shall be filed in the appropriate United States District Court. Such 
motion or application shall contain an affidavit or sworn statement 
stating:
    (A) That the applicant is a customer of the financial institution 
from which financial records pertaining to said customer have been 
sought; and
    (B) The applicant's reasons for believing that the financial records 
sought are not relevant to the legitimate law enforcement inquiry stated 
by the Government authority in its notice, or that there has not been 
substantial compliance within the provisions of the Act.
    (ii) Service shall be made upon a Government authority by delivering 
or mailing by registered or certified mail a copy of the papers to the 
person, office, or department specified in the notice which the customer 
has received a request.
    (3) If a customer desires that such records or information not be 
made available, the customer must:
    (i) Fill out the accompanying motion paper and sworn statement or 
write one of the customer's own, stating that he or she is the customer 
whose records are being requested by the Government and either giving 
the reasons the customer believes that the records are not relevant to 
the legitimate law enforcement inquiry stated in this notice or any 
other legal basis for objecting to the release of the records.
    (ii) File the motion and statement by mailing or delivering them to 
the clerk at an appropriate United States District Court.
    (iii) Serve the Government authority requesting the records by 
mailing or delivering a copy of the motion and statement to the 
Government authority.
    (iv) Be prepared to go to court and present the customer's position 
in further detail.

[[Page 806]]

    (v) The customer does not need to have a lawyer, although he or she 
may wish to employ a lawyer to represent the customer and protect the 
customer's rights.
    (4) If the customer does not follow the procedures in paragraphs 
(e)(2) and (3) of this section, upon the expiration of ten days from the 
date of service or fourteen days from the date of mailing of the notice, 
the records or information requested therein may be made available. The 
records may be transferred to other Government authorities for 
legitimate law enforcement inquiries, in which event the customer will 
be notified after the transfer.
    (5) Also, the records or information requested therein may be made 
available if ten days have expired from the date of service or fourteen 
days from the date of mailing of the notice and within such time period 
the customer has not filed a sworn statement and an application to 
enjoin the Government authority in an appropriate court, or the customer 
challenge provisions.



Sec. 275.4  Formal written request.

    (a) The formal written request must be in the form of a letter or 
memorandum to an appropriate official of the financial institution from 
which financial records are requested. The request shall be signed by 
the issuing official, and shall set forth that official's name, title, 
business address, and business phone number. The request shall also 
contain the following:
    (1) The identity of the customer or customers to whom the records 
pertain;
    (2) A reasonable description of the records sought; and
    (3) Such additional information which may be appropriate--e.g., the 
date when the opportunity for the customer to challenge the formal 
written request expires, the date on which the DoD Component expects to 
present a certificate of compliance with the applicable provisions of 
the Act, the name and title of the individual (if known) to whom 
disclosure is to be made.
    (b) In cases where customer notice is delayed by court order, a copy 
of the court order must be attached to the formal written request.



Sec. 275.5  Certification.

    Before obtaining the requested records pursuant to a formal written 
request described in Sec. 275.4, an official of a rank designated by 
the head of the requesting DoD Component shall certify in writing to the 
financial institution that the DoD Component has complied with the 
applicable provisions of the Act.



Sec. 275.6  Cost reimbursement.

    Cost reimbursement to financial institutions for providing financial 
records will be made consistent with 12 CFR part 219, subpart A.



PART 277_IMPLEMENTATION OF THE PROGRAM FRAUD CIVIL REMEDIES ACT--Table of Contents



Sec.
277.1 Purpose.
277.2 Applicability.
277.3 Policy.
277.4 Responsibilities.

Appendix to Part 277--Program Fraud Civil Remedies

    Authority: 31 U.S.C. 3807.

    Source: 53 FR 39262, Oct. 6, 1988, unless otherwise noted.



Sec. 277.1  Purpose.

    This part establishes uniform policies, assigns responsibilities, 
and prescribes procedures for implementation of Pub. L. 99-509.



Sec. 277.2  Applicability.

    This part applies to the Office of the Secretary of Defense (OSD); 
the Military Departments; the Office of the Inspector General, 
Department of Defense (OIG, DoD); the Defense Agencies; and the DoD 
Field Activities (hereafter referred to collectively as ``DoD 
Components'').



Sec. 277.3  Policy.

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

[[Page 807]]

only to the extent necessary to effectively carry out the requirements 
of this part.



Sec. 277.4  Responsibilities.

    (a) The Inspector General, Department of Defense (IG, DoD), shall 
establish procedures for carrying out the duties and responsibilities of 
the ``investigating official'' as outlined in the appendix of this part.
    (b) The General Counsel, Department of Defense (GC, DoD), shall:
    (1) Establish procedures for carrying out the duties and 
responsibilities of the authority head, Department of Defense, which 
have been delegated to the GC, DoD, as set forth in appendix of this 
part.
    (2) Establish procedures for carrying out the duties and 
responsibilities for appointment and support of presiding officers, as 
set forth in appendix of this part; and
    (3) Review and approve the regulations and instructions required by 
this section to be submitted for approval by the GC, DoD.
    (c) The Secretaries of the Military Departments shall:
    (1) Establish procedures for carrying out the duties and 
responsibilities of the ``authority head'' and of the ``reviewing 
officials'' for their respective Departments, and for obtaining and 
supporting presiding officers from other Agencies as specified in Office 
of Personnel Management (OPM) regulations; (see appendix of this part).
    (2) Make all regulations or instructions promulgated subject to the 
approval of the GC, DoD; and
    (3) Delegate duties as appropriate.
    (d) The General Counsel of the National Security Agency (GC, NSA) 
and the General Counsel of the Defense Logistics Agency (GC, DLA) shall 
be responsible for establishing procedures for carrying out the duties 
and responsibilities of the reviewing officials that have been delegated 
to them, as stated in appendix of this part. All Regulations or 
Instructions promulgated pursuant to this part shall be submitted to the 
GC, DoD.



         Sec. Appendix to Part 277--Program Fraud Civil Remedies

                          A. Scope and Purpose

    1. The Department of Defense has the authority to impose civil 
penalties and assessments against persons who make, submit or present, 
or cause to be made, submitted, or presented, false, fictitious, or 
fraudulent claims or written statements to authorities or to their 
agents.
    2. This appendix:
    a. Establishes administrative policies and procedures for imposing 
civil penalties and assessments against persons who make, submit, or 
present, or cause to be made, submitted, or presented, false, 
fictitious, or fraudulent claims or written statements to authorities or 
to their agents;
    b. Specifies the hearing and appeal rights of persons subject to 
allegations of liability for such penalties and assessments.
    3. The uniform policies and procedures established by this enclosure 
are binding on the authorities and authority heads in the Department of 
Defense and Military Departments. Additional administrative regulations 
necessary to carry out the requirements of the PFCRA and this part may 
be written by the authority heads. Any such regulations shall be 
consistent with the provisions of this appendix.

                             B. Definitions

                          1. Adequate Evidence

    Information sufficient to support the reasonable belief that a 
particular act or omission has occurred.

                              2. Authority

    a. The Department of Defense, which includes OSD, Organization of 
the Joint Chiefs of Staff (OJCS), Unified and Specified Commands, 
Defense Agencies, and DoD Field Activities.
    b. The Department of the Army.
    c. The Department of the Navy.
    d. The Department of the Air Force.

                            3. Authority Head

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

[[Page 808]]

                               4. Benefit

    In the context of statements, anything of value, including but not 
limited to any advantage, preference, privilege, license, permit, 
favorable decision, ruling status, or loan guarantee.

                                5. Claim

    Any request, demand, or submission made as follows:
    a. To the authority for property, services, or money (including 
money representing grants, loans, insurance, or benefits);
    b. To a recipient of property, services, or money from the authority 
or to a party to a contract with the authority:
    (1) For property or services if the United States:
    (a) Provided such property or services;
    (b) Provided any portion of the funds for the purchase of such 
property or services; or
    (c) Will reimburse such recipient or party for the purchase of such 
property or services; or
    (2) For the payment of money (including money representing grants, 
loans, insurance, or benefits) if the United States:
    (a) Provided any portion of the money requested or demanded; or
    (b) Will reimburse such recipient or party for any portion of the 
money paid on such request or demand; or
    (3) Made to the authority that has the effect of decreasing an 
obligation to pay or account for property, services, or money.

                              6. Complaint

    The administrative complaint served by the reviewing official on the 
defendant under section G., below.

                              7. Defendant

    Any person alleged in a complaint under section G., below, to be 
liable for a civil penalty or assessment under Section C., below.

               8. DoD Criminal Investigative Organizations

    The U.S. Army Criminal Investigative Command, Naval Security and 
Investigative Command, U.S. Air Force Office of Special Investigations, 
and the Defense Criminal Investigative Service.

                              9. Government

    The U.S. Government.

                             10. Individual

    A natural person.

                          11. Initial Decision

    The Written decision of the presiding officer required by section J. 
or KK., below. This includes a revised initial decision issued following 
a remand or a motion of reconsideration.

                       12. Investigating Official

    a. The IG, DoD; or
    b. An officer or employee of the OIG designated by the IG;
    c. Who, if a member of the Armed Forces of the United States on 
active duty, is serving in Grade 0-7 or above or, if a civilian 
employee, is serving in a position for which the rate of basic pay is 
not less than the minimum rate of basic pay for Grade GS-16 under the 
General Schedule.

                     13. Knows or Has Reason To Know

    A person who, with respect to a claim or statement:
    a. Has actual knowledge that the claim or statement is false, 
fictitious, or fraudulent;
    b. Acts in deliberate ignorance of the truth or falsity of the claim 
or statement; or
    c. Acts in reckless disregard of the truth or falsity of the claim 
or statement.

                                14. Makes

    Includes the terms presents, submits, and causes to be made, 
presented, or submitted. As the context requires, making or made shall 
likewise include the corresponding forms of such terms.

                               15. Person

    Any individual, partnership, corporation, association or private 
organization, and includes the plural of that term.

                    16. Preponderance of the Evidence

    The evidence necessary to support a presiding officer's decision 
that a violation of the PFCRA has occurred. Evidence that leads to the 
belief that what is sought to be proved is more likely true than not 
true.

                          17. Presiding Officer

    An officer or employee of the Department of Defense or an employee 
detailed to the Department of Defense from another agency who:
    a. Is selected under 5 U.S.C., chapter 33, pursuant to the 
competitive examination process applicable to administrative law judges;
    b. Is appointed by the authority head of DoD to conduct hearings 
under this part for cases arising in the Department of Defense or the 
Military Departments;
    c. Is assigned to cases in rotation so far as practicable;
    d. May not perform duties inconsistent with the duties and 
responsibilities of a presiding officer;
    e. Is entitled to pay prescribed by the Office of Personnel 
Management (OPM) independently of ratings and recommendations made by 
the authority and in accordance with 5 U.S.C., chapters 51 and 53, 
subchapter III;

[[Page 809]]

    f. Is not subject to a performance appraisal pursuant to 5 U.S.C., 
chapter 43; and
    g. May be removed, suspended, furloughed, or reduced in grade or pay 
only for good cause established and determined by the Merit Systems 
Protection Board (MSPB) on the record after opportunity for hearing by 
such Board.

                           18. Representative

    An Attorney-at-law duly licensed in any State, commonwealth, 
territory, the District of Columbia, or foreign country, who enters his 
or her appearance in writing to represent a party in a proceeding under 
this part, or an officer, director, or employee of a defendant or of its 
affiliate.

                         19. Reviewing Official

    a. In all cases arising in the Department of Defense and any of the 
Military Departments, the reviewing official shall be an officer or 
employee of an authority as follows:
    (1) Who is designated by the authority head to make the 
determination required under section E., below, of this enclosure;
    (2) Who, if a member of the Armed Forces of the United States on 
active duty, is serving in Grade 0-7 or above or, if a civilian 
employee, is serving in a position for which the rate of basic pay is 
not less than the minimum rate of basic pay for Grade GS-16 under the 
General Schedule; and
    (3) Who is as follows:
    (a) Not subject to supervision by, or required to report to, the 
investigating official;
    (b) Not employed in the organizational unit of the authority in 
which the investigating official is employed; and
    (c) Not an official designated to make suspension or debarment 
decisions.
    b. The General Counsel, Defense Logistics Agency (GC, DLA), shall be 
the reviewing official for all cases involving a claim or statement made 
to the DLA or any other part of the Department of Defense other than a 
Military Department or the National Security Agency (NSA). The General 
Counsel, National Security Agency (GC, NSA), shall be the reviewing 
official for all cases involving claims or statements made to that 
Agency. The General Counsel, Defense Logistics Agency (GC, DLA), and GC, 
NSA, may redelegate their authority to act as reviewing officials to any 
individual(s) meeting the criteria set out in subparagraph (1) of this 
section.
    c. The authority head of each Military Department shall select a 
reviewing official, who shall review all cases involving a claim or 
statement that was made to their Department.

                              20. Statement

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

              C. Basis for Civil Penalties and Assessments

                                1. Claims

    a. Any person who makes a claim that the person knows or has reason 
to know:
    (1) Is false, fictitious, or fraudulent;
    (2) Includes or is supported by a written statement that asserts a 
material fact that is false, fictitious, or fraudulent;
    (3) Includes or is supported by any written statement that:
    (a) Omits a material fact;
    (b) Is false, fictitious, or fraudulent as a result of such 
omission; and
    (c) Is a statement in which the person making such statement has a 
duty to include such material fact; or
    (4) Is for payment for the provision of property or services that 
the person had not provided as claimed, shall be subject, in addition to 
any other remedy that may be prescribed by law, to a civil penalty of 
not more than $5,000 for each such claim.
    b. Each voucher, invoice, claim form, or other individual request or 
demand for property, services, or money constitutes a separate claim.
    c. A claim shall be considered made to an authority, recipient, or 
party when such claim is received by an agent, fiscal intermediary, or 
other entity, including any State or political subdivision thereof, 
acting for or on behalf of such authority, recipient, or party.
    d. Each claim for property, services, or money is subject to a civil 
penalty regardless of whether such property, service, or money is 
actually delivered or paid.
    e. If the Government has made any payment (including transferred 
property or provided services) on a claim, a person subject to a civil 
penalty under subparagraph a.(1) of this section shall also be subject 
to an assessment of not more than twice the amount

[[Page 810]]

of such claim or that portion thereof that is determined to be in 
violation of subparagraph a.(1) of this section. Such assessment shall 
be in lieu of damages sustained by the Government because of such claim.

                              2. Statements

    a. Any person who makes a written statement that:
    (1) The person knows or has reason to know the following:
    (a) Asserts a material fact that is false, fictitious, or 
fraudulent; or
    (b) Is false, fictitious, or fraudulent because it omits a material 
fact that the person making the statement has a duty to include in such 
statement; and
    (2) Contains or is accompanied by an express certification or 
affirmation of the truthfulness and accuracy of the contents of the 
statement, shall be subject, in addition to any other remedy that may be 
prescribed by law, to a civil penalty of not more than $5,000 for each 
statement.
    b. Each written representation, certification, or affirmation 
constitutes a separate statement.
    c. A statement shall be considered made to an authority when such 
statement is received by an agent, fiscal intermediary, or other entity, 
including any State or political subdivision thereof, acting for or on 
behalf of such authority.
    3. No proof of specific intent to defraud is required to establish 
liability under this section.
    4. In any case in which it is determined that more than one person 
is liable for making a claim or statement under this section, each such 
person may be held jointly and severally liable for a civil penalty with 
respect to such claims or statements.
    5. In any case in which it is determined that more than one person 
is liable for making a claim under this section on which the Government 
has made payment (including transferred property or provided services) 
an assessment may be imposed against any such person or jointly and 
severally against any combination of such persons.

                            D. Investigation

    1. If the investigating official concludes that a subpoena pursuant 
to the authority conferred by 31 U.S.C. 3804(a) is warranted, then:
    a. The subpoena so issued shall notify the person to whom it is 
addressed of the authority under which the subpoena is issued and shall 
identify the records or documents sought;
    b. The investigating official may designate a person to act on his 
or her behalf to receive the documents sought; and
    c. The person receiving such subpoena shall be required to tender to 
the investigating official, or to the person designated to receive the 
documents, a certification that the documents sought have been produced, 
or that such documents are not available and the reasons therefor, or 
that such documents, suitably identified, have been withheld based upon 
the assertion of an identified privilege.
    2. If the investigating official concludes that an action under the 
PFCRA may be warranted, the investigating official shall submit a report 
containing the findings and conclusions of such investigation to the 
appropriate reviewing official(s). In instances where the false claim or 
false statement involves more than one authority within the Department 
of Defense, or where the investigating official finds that more than one 
case has arisen from the same set of facts, the investigating official 
may, at his or her sole discretion, refer the case(s) to the reviewing 
official of one of the affected authorities. That reviewing official 
shall consolidate the claims and statements and act for all. Nothing in 
this subsection confers any right in any party to the consolidation or 
severance of any case(s), although presiding officers may, at their sole 
discretion, entertain motions to consolidate or sever.
    3. Nothing in this section shall preclude or limit an investigating 
official's discretion to refer allegations directly to the Department of 
Justice for suit under 18 U.S.C. 287 or 31 U.S.C. 3729 and 3730, False 
Claims Act, or other civil relief, or to preclude or limit such 
official's discretion to defer or postpone a report or referral to the 
reviewing official to avoid interference with a criminal investigation 
or prosecution.
    4. Nothing in this section modifies any responsibility of an 
investigating official to report violations of criminal law to the 
Attorney General.
    5. Nothing in this section shall preclude or limit the investigating 
official's authority to obtain the assistance of any investigative units 
of the Department of Defense, including those of the Military 
Departments. In this regard, appropriate investigation may be conducted 
by the Defense criminal investigative organizations and other 
investigative elements of the Military Departments and Defense Agencies.

                   E. Review by the Reviewing Official

    1. If, based on the report of the investigating official under 
subsection D.2., above, the reviewing official determines that there is 
adequate evidence to believe that a person is liable under section C., 
above, the reviewing official shall transmit to the Attorney General or 
his or her designated point of coordination within the Department of 
Justice a written notice of the reviewing official's intention to issue 
a complaint under section G., below.
    2. Such notice shall include the following:

[[Page 811]]

    a. A statement of the reviewing official's reasons for issuing a 
complaint;
    b. A statement specifying the evidence that supports the allegations 
of liability;
    c. A description of the claims or statements upon which the 
allegations of liability are based;
    d. An estimate of the amount of money or the value of property, 
services, or other benefits requested or demanded in violation of 
section C., above.
    e. A statement of any exculpatory or mitigating circumstances that 
may relate to the claims or statements known by the reviewing official 
or the investigating official; and
    f. A statement that there is a reasonable prospect of collecting an 
appropriate amount of penalties and assessments.

                F. Prerequisites for Issuing a Complaint

    1. The reviewing official may issue a complaint under section G., 
below, only if:
    a. The Attorney General or an Assistant Attorney General designated 
by the Attorney General approves the issuance of a complaint in a 
written statement described in 31 U.S.C. 3803(b)(1); and
    b. In the case of allegations of liability under subsection C.1., 
above, with respect to a claim, the reviewing official determines that, 
with respect to such claim or a group of related claims submitted at the 
same time such claim is submitted (as defined in subsection 2. of this 
section), the amount of money or the value of property or services 
demanded or requested in violation of subsection C.1., above, does not 
exceed $150,000.00;
    2. For the purposes of this section, a related group of claims 
submitted at the same time shall include only those claims arising from 
the same transaction (e.g., grant, loan, application, or contract) that 
are submitted simultaneously as part of a single request, demand, or 
submission.
    3. Nothing in this section shall be construed to limit the reviewing 
official's authority to join in a single complaint against a person's 
claims that are unrelated or were not submitted simultaneously, 
regardless of the amount of money or the value of property or services 
demanded or requested.
    4. In any case that involves claims or statements made to more than 
one entity within the Department of Defense or the Military Departments, 
or the reviewing officials having responsibility for each such entity, 
as stated in subsection D.2., above, shall have concurrent jurisdiction 
to make the required determinations under this section. In any such 
case, the responsible reviewing officials shall coordinate with each 
other prior to making any determination under this section. Where more 
than one case arises from the same set of facts, such cases shall be 
consolidated to the degree practicable, although the reviewing official 
shall have absolute discretion to make such determination. The 
requirements of this paragraph do not confer any procedural or 
substantive rights upon individuals, associations, corporations, or 
other persons or entities who might become defendants under the PFCRA.

                              G. Complaint

    1. On or after the date the Attorney General or an Assistant 
Attorney General designated by the Attorney General approves the 
issuance of a complaint in accordance with 31 U.S.C. 3803(b)(1), the 
reviewing official may serve a complaint on the defendant, as provided 
in section H., below.
    2. The complaint shall state the following:
    a. The allegations of liability against the defendant, including the 
statutory basis for liability, an identification of the claims or 
statements that are the basis for the alleged liability, and the reasons 
why liability allegedly arises from such claims or statements;
    b. The maximum amount of penalties and assessments for which the 
defendant may be held liable;
    c. Instructions for filing an answer to a request including a 
specific statement of the defendant's right to request a hearing, by 
filing an answer and to be represented by a representative; and
    d. That failure to file an answer within 30 days of service of the 
complaint shall result in the imposition of penalties and assessments 
without right to appeal, consistent with the provisions of section J., 
below.
    3. At the same time the reviewing official serves the complaint, he 
or she shall notify the defendant with a copy of this part and any 
applicable implementing regulations.

                         H. Service of Complaint

    1. Service of a complaint must be made by certified or registered 
mail or by delivery in any manner authorized by Rule 4(d) of the Federal 
Rules of Civil Procedure. Service is complete upon receipt.
    2. Proof of service, stating the name and address of the person on 
whom the complaint was served, and the manner and date of service may be 
made by the following:
    a. Affidavit of the individual serving the complaint by delivery;
    b. A United States Postal Service return receipt card acknowledging 
receipt; or
    c. Written acknowledgement of receipt by the defendant or his or her 
representative.

                                I. Answer

    1. The defendant may request a hearing by filing an answer with the 
reviewing official within 30 days of service of the complaint. An answer 
shall be deemed to be a request for hearing.
    2. In the answer, the defendant:

[[Page 812]]

    a. Shall admit or deny each of the allegations of liability made in 
the complaint;
    b. Shall state any defense on which the defendant intends to rely;
    c. May state any reasons why the defendant contends that the 
penalties and assessments should be less than the statutory maximum; and
    d. Shall state the name, address, and telephone number of the person 
authorized by the defendant to act as defendant's representative, if 
any.
    3. If the defendant is unable to file an answer meeting the 
requirements of paragraph 2.b of this section within the time provided, 
the defendant may, before the expiration of 30 days from service of the 
complaint, file with the reviewing official a general answer denying 
liability and requesting a hearing, and a request for an extension of 
time within which to file an answer meeting the requirements of 
subsection 2. of this section. The reviewing official shall, in such 
event, file promptly with the presiding officer the complaint, the 
general answer denying liability, and the request for an extension of 
time as provided in section K., below. For good cause shown, the 
presiding officer may grant the defendant additional time within which 
to file an answer meeting the requirements of subsection 2. of this 
section.
    4. The 30-day limitation for filing an answer may be tolled for a 
reasonable period of time by written agreement of the parties and 
approval of the authority head to allow time for settlement.

                J. Default Upon Failure To File an Answer

    1. If the defendant does not file an answer within the time 
prescribed in subsection I.1., above, and there is no approved written 
agreement as in subsection I.4, above, tolling the time prescribed, the 
reviewing official may then refer the complaint to the presiding 
officer.
    2. Upon referral of the complaint pursuant to this section, the 
presiding officer shall promptly serve on defendant, in the manner 
prescribed in section H., above, a notice that an initial decision will 
be issued under this section.
    3. Upon referral of the complaint pursuant to this section, the 
presiding officer shall assume the facts alleged in the complaint to be 
true and, if such facts establish liability under section C., above, the 
presiding officer shall issue an initial decision imposing penalties and 
assessments under the statute.
    4. Except as otherwise provided in this section, by failing to file 
a timely answer, the defendant waives any right to further review of the 
penalties and assessments imposed under subsection 3. of this section, 
and the initial decision shall become final and binding upon the parties 
30 days after it is issued.
    5. If, before such an initial decision becomes final, the defendant 
files a motion with the presiding officer seeking to reopen on the 
grounds that good cause prevented the defendant from filing an answer, 
the initial decision shall be stayed pending the presiding officer's 
decision on the motion.
    6. If, on a motion brought under subsection J.5., above, the 
defendant can demonstrate good cause excusing the failure to file a 
timely answer, the presiding officer shall withdraw the initial decision 
in subsection 3. of this section if such a decision has been issued, and 
shall grant the defendant an opportunity to answer the complaint.
    7. A decision of the presiding officer denying a defendant's motion 
under subsections 5. and 6. of this section is not subject to 
reconsideration under section LL., below.
    8. The defendant may appeal to the authority head the decision 
denying a motion to reopen by filing a notice of appeal with the 
authority head within 15 days after the presiding officer denies the 
motion. The timely filing of a notice of appeal shall stay the initial 
decision until the authority head decides the issue.
    9. If the defendant files a timely notice of appeal with the 
authority head, the presiding officer shall forward the record of the 
proceeding to the authority head.
    10. The authority head shall decide expeditiously whether good cause 
excused the defendant's failure to file a timely answer based solely on 
the record before the presiding officer.
    11. If the authority head decides that good cause excused the 
defendant's failure to file a timely answer, the authority head shall 
remand the case to the presiding officer with instructions to grant the 
defendant an opportunity to answer.
    12. If the authority head decides that the defendant's failure to 
file a timely answer is not excused, the authority head shall approve 
the initial decision of the presiding officer, which shall become final 
and binding upon the parties 30 days after the authority head issues 
such decision.

      K. Referral of Complaint and Answer to the Presiding Officer

    1. Upon receipt of an answer, the reviewing official shall file the 
complaint and answer with the presiding officer.
    2. To allow time for settlement, referral of complaint and answer to 
the presiding officer may be delayed for a reasonable period of time if 
there is a written agreement of the parties, approved by the authority 
head, in favor of such delay.

                          L. Notice of Hearing

    1. When the presiding officer receives the complaint and answer, the 
presiding officer shall promptly serve a notice of hearing upon the 
defendant in the manner prescribed by section H., above. At the same 
time, the

[[Page 813]]

presiding officer shall send a copy of such notice to the representative 
for the Government.
    2. Such notice shall include:
    a. The tentative time and place, and the nature of the hearing;
    b. The legal authority and jurisdiction under which the hearing is 
to be held;
    c. The matters of fact and law to be asserted;
    d. A description of the procedures for the conduct of the hearing;
    e. The name, address, and telephone number of the representative of 
the Government, the defendant, and other parties, if any; and
    f. Such other matters as the presiding officer deems appropriate.

                        M. Parties to the Hearing

    The parties to the hearing shall be the defendant and the authority. 
The reviewing official of each authority shall, with the concurrence of 
the DoD Component head, designate attorneys within that authority to 
represent the authority in hearings conducted under this part. Attorneys 
appointed as authority representatives shall remain under the 
supervision of their DoD Component.

                       N. Separation of Functions

    1. The investigating official and the reviewing official, for any 
particular case or factually related case, may not do the following:
    a. Participate in the hearing as the presiding officer;
    b. Participate or advise in the initial decision or the review of 
the initial decision by the authority head, except as a witness or a 
representative in a public proceeding; or
    c. Make the collecting of penalties and assessments under 31 U.S.C. 
3806.
    2. The presiding officer shall not be responsible to, or subject to 
the supervision or direction of, the investigating official or the 
reviewing official.
    3. Except as provided in subsection 1. of this section, the 
representative for the Government may be employed anywhere in the 
authority, including in the offices of either the investigating official 
or the reviewing official.

                          O. Ex parte Contacts

    No party or person (except employees of the presiding officer's 
office) shall communicate in any way with the presiding officer on any 
matter at issue in a case unless on notice and there is an opportunity 
for all parties to participate. This provision does not prohibit a 
person or party from inquiring about the status of a case or asking 
routine questions concerning administrative functions or procedures.

     P. Disqualification of Presiding Officer and Reviewing Official

    1. A reviewing official or presiding officer in a particular case 
may disqualify himself or herself at any time.
    2. A party may file a motion for disqualification of the presiding 
officer or the reviewing official. Such motion, to be filed with the 
presiding officer, shall be accompanied by an affidavit alleging 
personal bias or other reason for disqualification.
    3. Such motion and affidavit shall be filed promptly upon the 
party's discovery of reasons requiring disqualification or such 
objections shall be deemed waived.
    4. Such affidavit shall state specific facts that support the 
party's belief that personal bias or other reason for disqualification 
exists and the time and circumstances of the party's discovery of such 
facts. It shall be accompanied by a certificate of the representative of 
record that it is made in good faith.
    5. Upon the filing of such a motion and affidavit, the presiding 
officer shall proceed no further in the case until he or she resolves 
the matter of disqualification by taking one of the following actions:
    a. If the presiding officer determines that a reviewing official is 
disqualified, the presiding officer shall dismiss the complaint without 
prejudice;
    b. If the presiding officer disqualifies himself or herself, the 
case shall be reassigned promptly to another presiding officer;
    c. The presiding officer may deny a motion to disqualify. In such 
event, the authority head may determine the matter only as part of his 
or her review of the initial decision upon appeal, if any.

                          Q. Rights of Parties

    Except as otherwise limited by this enclosure, all parties may:
    1. Be accompanied, represented, and advised by a representative;
    2. Participate in any conference held by the presiding officer;
    3. Conduct discovery;
    4. Agree to stipulations of fact or law, which shall be made part of 
the record;
    5. Present evidence relevant to the issues at the hearing;
    6. Present and cross-examine witnesses;
    7. Present oral arguments at the hearing, as permitted by the 
presiding officer; and
    8. Submit written briefs and proposed findings of fact and 
conclusions of law after the hearing.

                  R. Authority of the Presiding Officer

    1. The presiding officer shall conduct a fair and impartial hearing, 
avoid delay, maintain order, and assure that a record of the proceeding 
is made.
    2. The presiding officer has the authority to do the following:

[[Page 814]]

    a. Set and change the date, time, and place of the hearing upon 
reasonable notice to the parties;
    b. Continue or recess the hearing in whole or in part for a 
reasonable period of time;
    c. Hold conferences to identify or simplify the issues, or to 
consider other matters that may aid in the expeditious disposition of 
the proceeding;
    d. Administer oaths and affirmations;
    e. Issue subpoenas requiring the attendance of witnesses and the 
production of documents at depositions or at hearings;
    f. Rule on motions and other procedural matters;
    g. Regulate the scope and timing of discovery;
    h. Regulate the course of the hearing and the conduct of 
representatives and parties;
    i. Examine witnesses;
    j. Receive, rule on, exclude, or limit evidence;
    k. Upon motion of a party, take official notice of facts;
    l. Upon motion of a party, decide cases, in whole or in part by 
summary judgment where there is no disputed issue of material fact;
    m. Conduct any conference, argument, or hearing on motions in person 
or by telephone; and
    n. Exercise such other authority as is necessary to carry out the 
responsibilities of the presiding officer under this Directive.
    3. The presiding officer does not have the authority to find Federal 
statutes or regulations invalid.

                        S. Prehearing Conferences

    1. The presiding officer may schedule prehearing conferences as 
appropriate.
    2. Upon the motion of any party, the presiding officer shall 
schedule at least one prehearing conference at a reasonable time in 
advance of the hearing.
    3. The presiding officer may use prehearing conferences to discuss 
the following:
    a. Simplification of the issues;
    b. The necessity or desirability of amendments to the pleadings, 
including the need for a more definite statement;
    c. Stipulations and admissions of fact or as to the contents and 
authenticity of documents;
    d. Whether the parties can agree to submission of the case on a 
stipulated record;
    e. Whether a party chooses to waive appearance at an oral hearing 
and to submit only documentary evidence (subject to the objections of 
other parties) and written argument;
    f. Limitation of the number of witnesses;
    g. Scheduling dates for the exchange of witness lists and of 
proposed exhibits;
    h. Discovery;
    i. The time and place for the hearing; and
    j. Such other matters as may tend to expedite the fair and just 
disposition of the proceedings.
    4. The presiding officer may issue an order containing all matters 
agreed upon by the parties or ordered by the presiding officer at a 
prehearing conference.

                       T. Disclosure of Documents

    1. Upon written request to the reviewing official, the defendant may 
review any relevant and material documents, transcripts, records, and 
other materials that relate to the allegations set out in the complaint 
and upon which the findings and conclusions of the investigating 
official under subsection D.2., above, are based, unless such documents 
are subject to a privilege under Federal law. Upon payment of fees for 
duplication, the defendant may obtain copies of such documents.
    2. Upon written request to the reviewing official, the defendant 
also may obtain a copy of all exculpatory information in the possession 
of the reviewing official or investigating official relating to the 
allegations in the complaint, even if it is contained in a document that 
would otherwise be privileged. If the document would otherwise be 
privileged, only that portion containing exculpatory information must be 
disclosed, except if disclosure would violate Rule 6(e) of the Federal 
Rules of Criminal Procedure.
    3. The notice sent to the Attorney General from the reviewing 
official as described in section E., above, is not discoverable under 
any circumstances.
    4. The defendant may file a motion to compel disclosure of the 
documents subject to the provisions of this section at any time after 
service of the complaint.

                              U. Discovery

    1. The following types of discovery are authorized:
    a. Requests for production of documents for inspection and copying;
    b. Requests for admissions of the authenticity of any relevant 
document or of the truth of any relevant fact;
    c. Written interrogatories; and
    d. Depositions.
    2. For the purpose of this section and sections V. and W., below, 
the term ``documents'' includes information, documents, reports, 
answers, records, accounts, papers, and other data and documentary 
evidence contained in a form contemplated by the definition of 
``document'' set forth in the Federal Rules of Civil Procedure, Rule 34. 
Nothing contained herein shall be interpreted to require the creation of 
a document.
    3. Unless mutually agreed to by the parties, discovery is available 
only as ordered by the presiding officer. The presiding officer shall 
regulate the timing of discovery.

[[Page 815]]

    4. Motions for discovery may be filed with the presiding officer by 
the party seeking discovery.
    a. Such a motion shall be accompanied by a copy of the requested 
discovery, or in the case of depositions, a summary of the scope of the 
proposed deposition.
    b. Within 10 days of service, a party may file an opposition to the 
motion and/or a motion for protective order as provided in section X., 
below.
    c. The presiding officer may grant a motion of discovery only if he 
finds that the discovery sought:
    (1) Is necessary for the expeditious, fair, and reasonable 
consideration of the issue;
    (2) Is not unduly costly or burdensome;
    (3) Will not unduly delay the proceeding; and
    (4) Does not seek privileged information.
    d. The burden of showing that discovery should be allowed is on the 
party seeking discovery.
    e. The presiding officer may grant discovery subject to a protective 
order under section X., below.
    5. Depositions
    a. If a motion for deposition is granted, the presiding officer 
shall issue a subpoena for the deponent, which may require the deponent 
to produce documents. The subpoena shall specify the time and place at 
which the deposition will be held. The presiding officer may order that 
parties produce deponents and/or documents without the need for 
subpoena.
    b. The party seeking to depose shall serve the subpoena in the 
manner prescribed in section H., above.
    c. The deponent may file with the presiding officer a motion to 
quash the subpoena or a motion for a protective order within 10 days of 
service.
    d. The party seeking to depose shall provide for the taking of a 
verbatim transcript of the deposition, which it shall make available to 
all parties for inspection and copying.
    6. Each party shall bear its own costs of discovery.

         V. Exchange of Witness Lists, Statements, and Exhibits

    1. At least 15 days before the hearing or at such other time as may 
be ordered by the presiding officer, the parties shall exchange witness 
lists, copies of prior statements of proposed witnesses, and copies of 
proposed hearing exhibits, including copies of any written statements 
that the party intends to offer in lieu of live testimony in accordance 
with subsection GG.2., below. At the time the above documents are 
exchanged, any party that intends to rely upon the transcript of 
deposition testimony in lieu of live testimony at the hearing, if 
permitted by the presiding officer, shall provide each party with a copy 
of the specific pages of the transcript it intends to introduce into 
evidence.
    2. If a party objects, the presiding officer shall not admit into 
evidence the testimony of any witness whose name does not appear on the 
witness list or any exhibit not provided to the opposing party as 
provided above unless the presiding officer finds good cause for the 
failure or that there is no prejudice to the objecting party.
    3. Unless another party objects within the time set by the presiding 
officer, documents exchanged in accordance with subsection 1. of this 
section shall be admitted into evidence at the hearing. Later challenges 
to admissibility at the hearing shall be permitted only upon a showing 
of good cause for the lateness.

                 W. Subpoenas for Attendance at Hearing

    1. A party wishing to procure the appearance and testimony of any 
individual at the hearing may request that the presiding officer issue a 
subpoena.
    2. A subpoena requiring the attendance and testimony of an 
individual may also require the individual to produce documents at the 
hearing.
    3. A party seeking a subpoena shall file a written request therefor 
not less than 15 days before the date fixed for the hearing, unless 
otherwise allowed by the presiding officer for good cause shown. Such 
request shall specify any documents to be produced and shall designate 
the witnesses and describe the address and location thereof with 
sufficient particularity to permit such witnesses to be found.
    4. The subpoena shall specify the time and place at which the 
witness is to appear and any documents the witness is to produce.
    5. The party seeking the subpoena shall serve it in the manner 
prescribed in section H., above. A subpoena on a party or upon an 
individual under the control of a party may be served by first class 
mail.
    6. A party or a representative of the individual to whom the 
subpoena is directed may file with the presiding officer a motion to 
quash the subpoena with 10 days after service or on or before the time 
specified in the subpoena for compliance if it is less than 10 days 
after service.

                           X. Protective Order

    1. A party or a prospective witness or deponent may file a motion 
for a protective order with respect to discovery sought by an opposing 
party or with respect to the hearing, seeking to limit the availability 
or disclosure of evidence.
    2. In issuing a protective order, the presiding officer may make any 
order that justice requires to protect a party or person from annoyance, 
embarrassment, oppression,

[[Page 816]]

or undue burden or expense including one or more of the following:
    a. That the discovery not be had;
    b. That the discovery may be had only on specified terms and 
conditions, including a designation of the time or place;
    c. That the discovery may be had only through a method of discovery 
other than that requested;
    d. That classified information not be released unless prior notice 
and arrangements reasonably acceptable to the representative of the 
authority are made in coordination with the Defense Investigative 
Service, and the presiding officer agrees to the use;
    e. That certain matters not be inquired into or that the scope of 
discovery be limited to certain matters;
    f. That discovery be conducted with no person except persons 
designated by the presiding officer;
    g. That the contents of discovery or evidence be sealed;
    h. That the defendant comply with 32 CFR part 97 concerning official 
witnesses;
    i. That a deposition after being sealed be opened only upon order of 
the presiding officer;
    j. That a trade secret or other confidential research, development, 
commercial information, or facts pertaining to any criminal 
investigation, proceeding, or other administrative investigation not be 
disclosed or be disclosed only in a designated way; or
    k. That the parties simultaneously file specified documents of 
information enclosed in sealed envelopes to be opened as directed by the 
presiding officer.

                                 Y. Fees

    The party requesting a subpoena shall pay the cost of the witness 
fees and mileage of any witness subpoenaed in the amounts that would be 
payable to a witness in a proceeding in the United States District 
Court. A check for witness fees and mileage shall accompany the subpoena 
when served, except that when a subpoena is issued on behalf of the 
authority a check for witness fees and mileage need not accompany the 
subpoena.

                 Z. Form, Filing, and Service of Papers

    1. Form
    a. Documents filed with the presiding officer shall include an 
original and two copies.
    b. Every pleading and paper filed in the proceeding shall contain a 
caption setting forth the title of the action, the case number assigned 
by the presiding officer, and a designation of the paper (e.g., motion 
to quash subpoena).
    c. Every pleading and paper shall be signed by, and shall contain 
the address and telephone number of, the party or the person on whose 
behalf the paper was filed, or his or her representative.
    d. Papers are considered filed when they are mailed. Date of mailing 
may be established by a certificate from the party or its representative 
or by proof that the document was sent by certified or registered mail.
    2. Service. A party filing a document with the presiding officer 
shall, at the time of filing, serve a copy of such document on every 
other party. Service upon any party of any document other than those 
required to be served as prescribed in section H., above, shall be made 
by delivering a copy or by placing a copy of the document in the United 
States mail, postage prepaid and addressed to the party's last known 
address. When a party is represented by a representative, service shall 
be made upon such representative in lieu of the actual party.
    3. Proof of service. A certificate of the individual serving the 
document by personal delivery or by mail, setting forth the manner of 
service, shall be proof of service.

                         AA. Computation of Time

    1. In computing any period of time under this part or in an order 
issued thereunder, the time begins with the day following the act, 
event, or default, and includes the last day of the period, unless it is 
a Saturday, Sunday, or legal holiday observed by the Federal Government, 
in which event it includes the next business day.
    2. When the period of time allowed is less than 7 days, intermediate 
Saturdays, Sundays, and legal holidays observed by the Federal 
Government shall be excluded from the computation.
    3. Where a document has been served or issued by placing it in the 
mail, an additional 5 days will be added to the time permitted for any 
response.

                               BB. Motions

    1. Any application to the presiding officer for an order or ruling 
shall be by motion. Motions shall state the relief sought, the authority 
relied upon, the facts alleged, and shall be filed with the presiding 
officer and served on all other parties.
    2. Except for motions made during a prehearing conference or at the 
hearing, all motions shall be in writing. The presiding officer may 
require the oral motions be put in writing.
    3. Within 15 days after a written motion is served, or such other 
time as may be fixed by the presiding officer, any party may file a 
response to such motion.
    4. The presiding officer may not grant a written motion before the 
time for filing responses thereto has expired, except upon consent of 
the parties or following a hearing on the motion, but may overrule or 
deny such motion without awaiting a response.
    5. The presiding officer shall make a reasonable effort to dispose 
of all outstanding

[[Page 817]]

motions prior to the beginning of the hearing.
    6. Failure by a party to raise defenses or objections or to make 
requests that must be made prior to the beginning of the hearing shall 
constitute waiver thereof, but the presiding officer may grant relief 
from the waiver for good cause shown.

                              CC. Sanctions

    1. The presiding officer may sanction a person, including any party 
or representative, for the following:
    a. Failing to comply with an order, rule, or procedure governing the 
proceeding;
    b. Failing to prosecute or defend an action; or
    c. Engaging in other misconduct that interferes with the speedy, 
orderly, or fair conduct of the hearing.
    2. Any such sanction, including but not limited to those listed in 
subsections 3., 4., and 5. of this section, shall reasonably relate to 
the severity and nature of the failure or misconduct.
    3. When a party fails to comply with an order, including an order 
for taking a deposition, the production of evidence within the party's 
control, or a request for admission, the presiding officer may:
    a. Draw an inference in favor of the requesting party with regard to 
the information sought;
    b. In the case of requests for admission, deem each matter of which 
an admission is requested to be admitted;
    c. Prohibit the party failing to comply with such order from 
introducing evidence concerning, or otherwise relying upon, testimony 
relating to the information sought; and
    d. Strike any part of the pleadings or other submission of the party 
failing to comply with such request.
    4. If a party fails to prosecute or defend an action under this part 
commenced by service of a notice of hearing, the presiding officer may 
dismiss the action or may issue an initial decision imposing penalties 
and assessments.
    5. The presiding officer may refuse to consider any motion, request, 
response, brief, or other document that is not filed in a timely 
fashion.

                   DD. The Hearing and Burden of Proof

    1. The presiding officer shall conduct a hearing on the record in 
order to determine whether the defendant is liable for a civil penalty 
or assessment under section C., above, and, if so, the appropriate 
amount of any such civil penalty or assessment considering any 
aggravating or mitigating factors.
    2. The authority shall prove defendant's liability and any 
aggravating factors by a preponderance of the evidence.
    3. The defendant shall prove any affirmative defenses and any 
mitigating factors by a preponderance of the evidence.
    4. The hearing shall be open to the public unless otherwise ordered 
by the presiding officer for good cause shown.

         EE. Determining the Amount of Penalties and Assessments

    In determining an appropriate amount of civil penalties and 
assessments, the presiding officer and the authority head, upon appeal, 
should evaluate any circumstances that mitigate or aggravate the 
violation and should articulate in their opinions the reasons that 
support the penalties and assessments they impose.

                         FF. Location of Hearing

    1. The hearing may be held as follows:
    a. In any judicial district of the United States in which the 
defendant resides or transacts business;
    b. In any judicial district of the United States in which the claim 
or statement at issue was made; or
    c. In such other place, including foreign countries, as may be 
agreed upon by the defendant and the presiding officer.
    2. Each party shall have the opportunity to petition the presiding 
officer with respect to the location of the hearing.
    3. The hearing shall be held at the place and at the time ordered by 
the presiding officer.

                              GG. Witnesses

    1. Except as provided in subsection 2. of this section, testimony at 
the hearing shall be given orally by witnesses under oath or 
affirmation.
    2. At the discretion of the presiding officer, testimony may be 
admitted in the form of a written or videotaped statement or deposition. 
Any such written or videotaped statement must be provided to all other 
parties along with the last known address of such witness, in a manner 
which allows sufficient time for other parties to subpoena such witness 
for deposition or cross-examination at the hearing. Prior written or 
videotaped statements of witnesses proposed to testify at the hearings 
and deposition transcripts shall be exchanged as provided in subsection 
V.1., above.
    3. The presiding officer shall exercise reasonable control over the 
mode and order of interrogating witnesses and presenting evidence so as 
to:
    a. Make the interrogation and presentation effective for the 
ascertainment of the truth;
    b. Avoid needless consumption of time; and
    c. Protect witnesses from harassment or undue embarrassment.
    4. The presiding officer shall permit the parties to conduct such 
cross-examination as

[[Page 818]]

may be required for a full and true disclosure of the facts.
    5. At the discretion of the presiding officer, a witness may be 
cross-examined on matters relevant to the proceeding without regard to 
the scope of his or her direct examination.
    6. Upon motion of any party, the presiding officer shall order 
witnesses excluded so that they cannot hear the testimony of other 
witnesses. This rule does not authorize exclusion of the following:
    a. A party who is an individual;
    b. In the case of a party that is not an individual, an officer or 
employee of the party appearing for the party as its representative, or 
designated by the party's representative; or
    c. An individual whose presence is shown by a party to be essential 
to the presentation of its case, including an individual employed by the 
Government engaged in assisting the representative for the Government.

                              HH. Evidence

    1. The presiding officer shall determine the admissibility of 
evidence.
    2. Except as provided herein, the presiding officer shall not be 
bound by the Federal Rules of Evidence. However, the presiding officer 
may apply the Federal Rules of Evidence where appropriate; e.g., to 
exclude unreliable evidence.
    3. The presiding officer shall exclude irrelevant and immaterial 
evidence.
    4. Although relevant, evidence may be excluded if its probative 
value is substantially outweighed by the danger of unfair prejudice, 
confusion of the issues, or by consideration of undue delay or needless 
presentation of cumulative evidence.
    5. Evidence shall be excluded if it is privileged under Federal law 
and the holder of the privilege asserts it.
    6. Evidence concerning offers of compromise or settlement shall be 
inadmissible to the extent provided in Rule 408 of the Federal Rules of 
Evidence.
    7. The presiding officer shall permit the parties to introduce 
rebuttal witnesses and evidence.
    8. All documents and other evidence offered or taken for the record 
shall be open to examination by all parties, unless otherwise ordered by 
the presiding officer pursuant to section X., above.

                       II. The Record and Finding

    1. The hearing will be recorded and transcribed. Transcripts may be 
obtained following the hearing from the presiding officer at a cost not 
to exceed the actual cost of duplication.
    2. The transcript of testimony, exhibits, and other evidence 
admitted at the hearing, and all papers and requests filed in the 
proceeding constitute the record for the decision by the presiding 
officer and the authority head.
    3. The record may be inspected and copied (upon payment of a 
reasonable fee) by anyone, unless otherwise ordered by the presiding 
officer.
    4. Funding for the hearing and record, except for the cost of the 
presiding officer, shall be the responsibility of the authority in which 
the case arose.

                         JJ. Post-hearing Briefs

    The presiding officer may require or permit the parties to file 
post-hearing briefs. The presiding officer shall fix the time for filing 
any such briefs, not to exceed 60 days from the date the parties receive 
the transcript of the hearing or, if applicable, the stipulated record. 
Such briefs may be accompanied by proposed findings of fact and 
conclusions of law. The presiding officer may permit the parties to file 
reply briefs.

                          KK. Initial Decision

    1. The presiding officer shall issue an initial decision based only 
on the record that shall contain findings of fact, conclusions of law, 
and the amount of any penalties and assessments imposed.
    2. The findings of fact shall include a finding on each of the 
following issues:
    a. Whether the claims or statements identified in the complaint, or 
any portions thereof, violate section C., above; and
    b. If the person is liable for penalties or assessments, the 
appropriate amount of any such penalties or assessments.
    3. The presiding officer shall promptly serve the initial decision 
on all parties within 90 days after the time for submission of post-
hearing briefs and reply briefs (if permitted) has expired. The 
presiding officer shall at the same time serve all parties with a 
statement describing the right of any defendant determined to be liable 
for a civil penalty or assessment to file a motion for reconsideration 
with the presiding officer or a notice of appeal with the authority 
head. If the presiding officer fails to meet the deadline contained in 
this subsection, he or she shall notify the parties of the reason for 
the delay and shall set a new deadline.
    4. Unless the initial decision of the presiding officer is timely 
appealed to the authority head, or a motion for reconsideration of the 
initial decision is timely filed, the initial decision of the presiding 
officer shall be final and binding on the parties 30 days after it is 
issued by the presiding officer.

                 LL. Reconsideration of Initial Decision

    1. Except as provided in subsection 4. of this section, any party 
may file a motion for reconsideration of the initial decision within 20 
days of service of the initial decision in the manner set forth in 
section H., above, for

[[Page 819]]

service of the complaint. Service shall be proved in the manner provided 
in subsection H.2., above.
    2. Every such motion must set forth the matters claimed to have been 
erroneously decided and the nature of the alleged errors. Such motion 
shall be accompanied by a supporting brief.
    3. Responses to such motions shall be allowed only upon request of 
the presiding officer; however, the presiding officer shall not issue a 
revised initial determination without affording both parties an 
opportunity to be heard on the motion for reconsideration.
    4. No party may file a motion for reconsideration of an initial 
decision that has been revised in response to a previous motion for 
reconsideration.
    5. The presiding officer may dispose of a motion for reconsideration 
by denying it or by issuing a revised initial decision.
    6. If the presiding officer denies a motion for reconsideration, the 
initial decision shall constitute the final decision of the authority 
head and shall be final and binding on the parties 30 days after the 
presiding officer denies the motion, unless the initial decision is 
timely appealed to the authority head in accordance with section MM., 
below.
    7. If the presiding officer issues a revised initial decision, that 
decision shall constitute the final decision of the authority head and 
shall be final and binding on the parties 30 days after it is issued, 
unless it is timely appealed to the authority head in accordance with 
section MM., below.

                      MM. Appeal to Authority Head

    1. Any defendant who has filed a timely answer and who is determined 
in an initial decision to be liable for a civil penalty or assessment 
may appeal such decision to the authority head by filing a notice of 
appeal with the authority head in accordance with this section.
    2. A notice of appeal:
    a. May be filed at any time within 30 days after the presiding 
officer issues an initial or a revised initial decision. If another 
party files a motion for reconsideration under section LL., above, 
consideration of the appeal shall be stayed automatically pending 
resolution of the motion for reconsideration, until the time period for 
filing a motion for reconsideration under section LL., above, has 
expired or the motion is resolved;
    b. If a motion for reconsideration is timely filed, a notice of 
appeal may be filed within 30 days after the presiding officer denies 
the motion or issues a revised initial decision, whichever applies;
    c. The authority head may extend the initial 30-day period for an 
additional 30 days if the defendant files with the authority head a 
request for an extension within the initial 30-day period and shows good 
cause.
    3. If the defendant files a timely notice of appeal with the 
authority head, the presiding officer shall forward the record of the 
proceeding to the authority head when:
    a. The time for filing a motion for reconsideration expires without 
the filing of such a motion, or
    b. The motion for reconsideration is denied. Issuance of a revised 
initial decision upon motion for reconsideration shall require filing of 
a new notice of appeal.
    4. A notice of appeal shall be accompanied by a written brief 
specifying exceptions to the initial decision and reasons supporting the 
exceptions.
    5. The representative for the Government may file a brief in 
opposition to the exceptions within 30 days of receiving the notice of 
appeal and accompanying brief.
    6. There is no right to appear personally before the authority head, 
although the authority head may at his or her discretion require the 
parties to appear for an oral hearing on appeal.
    7. There is no right to appeal any interlocutory ruling by the 
presiding officer.
    8. In reviewing the initial decision, the authority head shall not 
consider any objection that was not raised before the presiding officer, 
unless a demonstration is made of extraordinary circumstances causing 
the failure to raise the objection.
    9. If any party demonstrates to the satisfaction of the authority 
head that additional evidence not presented at such hearing is material 
and that there were reasonable grounds for the failure to present such 
evidence at such hearing, the authority head shall remand the matter to 
the presiding officer for consideration of such additional evidence.
    10. The authority head may affirm, reduce, reverse, compromise, 
remand, or settle any penalty or assessment determined by the presiding 
officer in any initial decision.
    11. The authority head shall promptly serve each party to the appeal 
with a copy of the decision of the authority head and a statement 
describing the right of any person determined to be liable for a penalty 
or assessment to seek judicial review.
    12. Unless a petition for review is filed as provided in 32 U.S.C. 
3805 after a defendant has exhausted all administrative remedies under 
this part and within 60 days after the date on which the authority head 
serves the defendant with a copy of the authority head's decision, a 
determination that a defendant is liable under section C., above, is 
final and is not subject to judicial review.
    13. The authority heads (or their designees) may designate an 
officer or employee of the authority, who is serving in the grade of GS-
17 or above under the General Schedule, or in the Senior Executive 
Service, to carry out these appellate responsibilities; however, the

[[Page 820]]

authority to compromise, settle, or otherwise discretionarily dispose of 
the case on appeal provided pursuant to subsection MM.10, hereof, may 
not be so redelegated pursuant to this subsection.

             NN. Stays Ordered by the Department of Justice

    If at any time, the Attorney General or an Assistant Attorney 
General designated by the Attorney General transmits to the authority 
head a written finding that continuation of the administrative process 
described in this Directive with respect to a claim or statement may 
adversely affect any pending or potential criminal or civil action 
related to such claim or statement, the authority head shall stay the 
process immediately. The authority head may order the process resumed 
only upon receipt of the written authorization of the Attorney General.

                         OO. Stay Pending Appeal

    1. An initial decision is stayed automatically pending disposition 
of a motion for reconsideration or of an appeal to the authority head.
    2. No administrative stay is available following a final decision of 
the authority head.

                          PP. Judicial Review.

    31 U.S.C. 3805 authorizes judicial review by an appropriate United 
States District Court of a final decision of the authority head imposing 
penalties or assessment under this part and specifies the procedures for 
such review.

            QQ. Collection of Civil Penalties and Assessments

    31 U.S.C. 3806 and 3808(b) authorize actions for collection of civil 
penalties and assessments imposed under this part and specify the 
procedures for such actions.

                   RR. Right to Administrative Offset

    The amount of any penalty or assessment that has become final, or 
for which a judgment has been entered under section QQ., above, or any 
amount agreed upon in a compromise or settlement under section TT., 
below, may be collected by administrative offset under 31 U.S.C. 3716, 
except that an administrative offset may not be made under this section 
against a refund of an overpayment of Federal taxes then or later owing 
by the United States to the defendant.

                SS. Deposit in Treasury of United States

    All amounts collected pursuant to this part shall be deposited as 
miscellaneous receipts in the Treasury of the United States, except as 
provided in 31 U.S.C. 3806(g).

                      TT. Compromise or Settlement

    1. Parties may make offers of compromise or settlement at any time.
    2. The reviewing official has the exclusive authority to compromise 
or settle a case under this part at any time after the date on which the 
reviewing official is permitted to issue a complaint and before the date 
on which the presiding officer issues an initial decision.
    3. The authority head has exclusive authority to compromise or 
settle a case under this Directive at any time after the date on which 
the presiding officer issues an initial decision, except during the 
pendency of any review under section PP., above, or during the pendency 
of any action to collect penalties as assessments under section QQ., 
above.
    4. The Attorney General has exclusive authority to compromise or 
settle a case under this part during the pendency of any review under 
section PP., above, of any action to recover penalties and assessments 
under 31 U.S.C. 3806.
    5. The investigating official may recommend settlement terms to the 
reviewing official or the Attorney General, as appropriate. The 
reviewing official may recommend settlement terms to the Attorney 
General, as appropriate.
    6. Any compromise or settlement must be in writing.

                             UU. Limitations

    1. The notice of hearing with respect to a claim or settlement must 
be served in the manner specified in section H., above, within 6 years 
after the date on which such claim or statement is made.
    2. If the defendant fails to file a timely answer, service of a 
notice under subsection J.2., above, shall be deemed a notice of hearing 
for purposes of this section.
    3. If at any time during the course of proceedings brought pursuant 
to this section, the authority head receives or discovers any specific 
information concerning bribery, gratuities, conflict of interest, or 
other corruption or similar activity in relation to a false claim or 
statement, the authority head shall immediately report such information 
to the Attorney General and to the Inspector General, Department of 
Defense.

                             VV. Delegations

    The General Counsel for the Department of Defense is designated to 
carry out the responsibilities of the authority head of the Department 
of Defense for the issuance of additional implementing regulations that 
are necessary to implement PFCRA and this part to decide cases upon 
appeal, and to hire or designate employees of the Department of Defense 
to decide cases on appeal. The General Counsel, Department of Defense, 
is also

[[Page 821]]

designated to appoint presiding officers for the Department of Defense, 
and may assist in the appointment of presiding officers on detail from 
other Agencies for all authorities within the Department of Defense.



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



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

Appendix to Part 281--Claims Description.

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

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



Sec. 281.1  Purpose.

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



Sec. 281.2  Applicability and scope.

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



Sec. 281.3  Definitions.

    Armed Forces. The Army, the Navy, the Air Force, the Marine Corps, 
and the Coast Guard.
    Claim. A demand for money or property under 31 U.S.C. 3702; 10 
U.S.C. 2575, 2771, 4712, and 9712; 24 U.S.C. 420; 37 U.S.C. 554, and 32 
U.S.C. 714.
    Secretary concerned. The Secretary of the Army, addressing matters 
concerning the Army. The Secretary of the Navy, addressing matters 
concerning the Navy, the Marine Corps, and the Coast Guard when it is 
operating as a Service in the Navy. The Secretary of the Air Force, 
addressing matters concerning the Air Force. The Secretary of Homeland 
Security, addressing matters concerning the Coast Guard when it is not 
operating as a Service in the Navy. The Secretary of Health and Human 
Services, addressing matters concerning the PHS. The Secretary of 
Commerce, addressing matters concerning the NOAA.
    Settlement. A claim and the amount due that is administratively 
determined to be valid.
    Uniformed Services. The Army, the Navy, the Air Force, the Marine 
Corps, the Coast Guard, and the Commissioned Corps of the PHS and the 
NOAA.



Sec. 281.4  Policy.

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



Sec. 281.5  Responsibilities.

    (a) The General Counsel of the Department of Defense shall:
    (1) Settle claims that the Secretary of Defense is authorized to 
settle under 31 U.S.C. 3702; 10 U.S.C. 2575, 2771, 4712, and 9712; 24 
U.S.C. 420; 37 U.S.C. 554, and 32 U.S.C. 714.

[[Page 822]]

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



              Sec. Appendix to Part 281--Claims Description

    The Secretary of Defense is authorized to perform the claim 
settlement and advance decision functions for claims under the following 
statutes:
    (a) 31 U.S.C. 3702, concerning claims in general when there is no 
other settlement authority specifically provided for by law. \1\
---------------------------------------------------------------------------

    \1\ This includes claims involving Uniformed Services members' pay, 
allowances, travel, transportation, payment for unused accrued leave, 
retired pay, and survivor benefits, and claims for refunds by carriers 
for amounts collected from them for loss or damage to property they 
transported at Government expense; also included are other claims 
arising from the activity of a DoD Component. However, the Director of 
the Office of Personnel Management performs these functions for claims 
involving civilian employees' compensation and leave; and the 
Administrator of General Services performs these functions for claims 
involving civilian employees' travel, transportation, and relocation 
expenses.
---------------------------------------------------------------------------

    (b) 10 U.S.C. 2575, concerning the disposition of unclaimed personal 
property on a military installation.
    (c) 10 U.S.C. 2771, concerning the final settlement of accounts of 
deceased members of the armed forces (but not the National Guard). \2\
---------------------------------------------------------------------------

    \2\ Claims under this statute are actually settled under the 
authority in 31 U.S.C. 3702 because there is no specific settlement 
authority in the statute.
---------------------------------------------------------------------------

    (d) 24 U.S.C. 420, 10 U.S.C. 4712, and 10 U.S.C. 9712, concerning 
the disposition of the effects of a deceased person who was subject to 
military law at a place or command under the jurisdiction of the Army or 
Air Force or of deceased residents of the Armed Forces Retirement Home.
    (e) 37 U.S.C. 554, concerning the sale of personal property of 
members of the Uniformed Services who are in a missing status.
    (f) 32 U.S.C. 714, concerning the final settlement of accounts of 
deceased members of the National Guard. \2\



PART 282_PROCEDURES FOR SETTLING PERSONNEL AND GENERAL CLAIMS
AND PROCESSING ADVANCE DECISION REQUESTS--Table of Contents



Sec.
282.1 Purpose.
282.2 Applicability and scope.
282.3 Definitions.
282.4 Policy.
282.5 Responsibilities.

Appendix A to Part 282--Guidance
Appendix B to Part 282--Claims Description
Appendix C to Part 282--Submitting a Claim

[[Page 823]]

Appendix D to Part 282--Processing a Claim
Appendix E to Part 282--Appeals
Appendix F to Part 282--Requests for an Advance Decision

    Authority: 5 U.S.C. 552; 10 U.S.C. 2575; 10 U.S.C. 2771; 10 U.S.C. 
4712; 10 U.S.C. 9712; 24 U.S.C. 420; 31 U.S.C. 3529; 31 U.S.C. 3702; 32 
U.S.C. 714; and 37 U.S.C. 554.

    Source: 69 FR 38843, June 29, 2004, unless otherwise noted.



Sec. 282.1  Purpose.

    This part implements policy under 32 CFR part 281 and prescribes 
procedures for processing and settling personnel and general claims 
under 31 U.S.C. 3702, 10 U.S.C. 2575, 10 U.S.C. 2771, 24 U.S.C. 420, 10 
U.S.C. 4712, 10 U.S.C. 9712, 37 U.S.C. 554, 32 U.S.C. 714 and for 
processing requests for an advance decision under 31 U.S.C. 3529.



Sec. 282.2  Applicability and scope.

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



Sec. 282.3  Definitions.

    (a) Armed Forces. The Army, the Navy, the Air Force, the Marine 
Corps, and the Coast Guard.
    (b) Claim. A demand for money or property under one of the following 
statutes: 31 U.S.C. 3702, 10 U.S.C. 2575, 10 U.S.C. 2771, 24 U.S.C. 420, 
10 U.S.C. 4712, 10 U.S.C. 9712, 37 U.S.C. 554, or 32 U.S.C. 714.
    (c) Committee. The person or persons invested, by order of a proper 
court, with the guardianship of a minor or incompetent person and /or 
the estate of a minor or incompetent person.
    (d) Component Concerned. The agency/activity (as well as the 
official designated by the Head of the agency/activity) required to 
perform the function or take the action indicated or from whose activity 
a claim arose.
    (e) Final Action. A finding by the appropriate official under this 
part concerning a claim from which there is no right to appeal or 
request reconsideration, or concerning which the time limit prescribed 
in this part for submitting an appeal or request for reconsideration has 
expired without such a submission.
    (f) Member. A member or former member of the Uniformed Services.
    (g) Secretary Concerned. The Secretary of the Army, addressing 
matters concerning the Army. The Secretary of the Navy, addressing 
matters concerning the Navy, the Marine Corps, and the Coast Guard when 
it is operating as a Service in the Navy. The Secretary of the Air 
Force, addressing matters concerning the Air Force. The Secretary of 
Homeland Security, addressing matters concerning the Coast Guard when it 
is not operating as a Service in the Navy. The Secretary of Health and 
Human Services, addressing matters concerning the PHS. The Secretary of 
Commerce, addressing matters concerning the NOAA.
    (h) Settlement. A claim and the amount due that is administratively 
determined to be valid.
    (i) Uniformed Services. The Army, the Navy, the Air Force, the 
Marine Corps, the Coast Guard, and the Commissioned Corps of the PHS and 
the NOAA.



Sec. 282.4  Policy.

    It is DoD policy that:
    (a) Claims shall be settled and advance decisions rendered in 
accordance with all pertinent statutes and regulations, and after 
consideration of other relevant authorities.
    (b) This part applies to certain claim settlement and advance 
decision functions that, by statute or delegation,

[[Page 824]]

are vested in the Department of Defense or the Secretary of Defense. 
Appendix B to this part describes the claims included under these 
functional authorities.



Sec. 282.5  Responsibilities.

    (a) The General Counsel of the Department of Defense (GC, DoD), or 
designee, shall:
    (1) Upon the request of the Director, Defense Office of Hearings and 
Appeals (DOHA), consult on, or render legal opinions concerning, 
questions of law that arise in the course of the performance of the 
Director's responsibilities under paragraph (b) of this section.
    (2) Render advance decisions under 31 U.S.C. 3529 and oversee the 
submission of requests for an advance decision arising from the activity 
of a DoD Component that are addressed to the Director of the Office of 
Personnel Management or the Administrator General Services in accordance 
with this part.
    (b) The Director, Defense Office of Hearings and Appeals (DOHA), or 
designee, under the GC, DoD (as the Director, Defense Legal Services 
Agency), shall:
    (1) Consider, and grant or deny, a request by the Secretary 
concerned under 31 U.S.C. 3702(e) to waive the time limit for submitting 
certain claims in accordance with 32 CFR part 281 and this part.
    (2) Consider appeals from an initial determination, and affirm, 
modify, reverse, or remand the initial determination in accordance with 
32 CFR part 281, this part, and relevant DoD Office of General Counsel 
opinions.
    (c) The Heads of the DoD Components, or designees, shall:
    (1) Process claims under 31 U.S.C. 3702, 10 U.S.C. 2575, 10 U.S.C. 
2771, 24 U.S.C. 420, 10 U.S.C. 4712, 10 U.S.C. 9712, 37 U.S.C. 554, and 
32 U.S.C. 714 in accordance with this part.
    (2) Ensure that requests for an advance decision that originate in 
their organizations are prepared and submitted in accordance with this 
part.
    (3) Pay claims as provided in a final action in accordance with this 
part.
    (d) The Heads of the Non-DoD Components, or designees, shall:
    (1) Process claims under 31 U.S.C. 3702, 10 U.S.C. 2575, 10 U.S.C. 
2771, or 37 U.S.C. 554 in accordance with this part.
    (2) Ensure that requests for an advance decision that originate in 
their organizations are prepared and submitted in accordance with this 
part.
    (3) Pay claims as provided in a final action in accordance with this 
part.



                  Sec. Appendix A to Part 282--Guidance

    (a) Submitting a claim. The procedures a claimant must follow to 
submit a claim are at Appendix C to this part.
    (b) Processing a claim. The procedures a DoD Component must follow 
in processing a claim are at Appendix D to this part. \1\
---------------------------------------------------------------------------

    \1\ Contact the appropriate non-DoD Component for the procedures it 
follows in processing a claim.
---------------------------------------------------------------------------

    (c) Appeals. The procedures for appealing initial determinations are 
at Appendix E to this part.
    (d) Disposition of claims upon settlement in general. (1) The 
appropriate official for the Component concerned shall pay a claim in 
accordance with the final action concerning the claim.
    (2) Where state law requires, a committee must be appointed for a 
minor or incompetent person in accordance with State law before payment 
may be made.
    (e) Requests for an advance decision. Procedures for requesting an 
advance decision under 31 U.S.C. 3529 concerning the propriety of a 
payment or voucher certification related to claims addressed in this 
part are at Appendix F to this part.
    (f) Publication. In accordance with 5 U.S.C. 552, the Director, 
DOHA, or designee, shall make redacted copies of responses to requests 
for reconsideration and advance decisions by the GC, DoD, or designee, 
available for public inspection and copying at DOHA's public reading 
room and on the worldwide web.



             Sec. Appendix B to Part 282--Claims Description

    The Secretary of Defense is authorized to perform the claims 
settlement and advance decision functions for claims under the following 
statutes:
    (a) 31 U.S.C. 3702 concerning claims in general when there is no 
other settlement authority specifically provided for by law. \1\
---------------------------------------------------------------------------

    \1\ This includes claims involving Uniformed Services members' pay, 
allowances, travel, transportation, payment for unused accrued leave, 
retired pay, and survivor benefits, and claims for refund by carriers 
for amounts collected from them for loss or damage to property they 
transported at Government expense; also included are other claims 
arising from the activity of a DoD Component. However, the Director of 
the Office of Personnel Management performs these functions for claims 
involving civilian employees' compensation and leave; and the 
Administrator of General Services performs these functions for claims 
involving civilian employees' travel, transportation, and relocation 
expenses.

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

[[Page 825]]

    (b) 10 U.S.C. 2575 concerning the disposition of unclaimed personal 
property on a military installation.
    (c) 10 U.S.C. 2771 concerning the final settlement of accounts of 
deceased members of the Armed Forces (but not the National Guard). \2\
---------------------------------------------------------------------------

    \2\ Claims under this statute are actually settled under the 
authority in 31 U.S.C. 3702 because there is no specific settlement 
authority in the statute.
---------------------------------------------------------------------------

    (d) 24 U.S.C. 420, 10 U.S.C. 4712, and 10 U.S.C. 9712 concerning the 
disposition of the effects of a deceased person who was subject to 
military law at a place or Command under the jurisdiction of the Army or 
the Air Force or of a deceased resident of the Armed Forces Retirement 
Home.
    (e) 37 U.S.C. 554 concerning the sale of personal property of 
members of the Uniformed Services who are in a missing status.
    (f) 32 U.S.C. 714 concerning the final settlement of accounts of 
deceased members of the National Guard. \3\
---------------------------------------------------------------------------

    \3\ Claims under this statute are actually settled under the 
authority in 31 U.S.C. 3702 because there is no specific settlement 
authority in the statute.
---------------------------------------------------------------------------



             Sec. Appendix C to Part 282--Submitting a Claim

    (a) Who May Submit a Claim. Any person (``claimant'') may submit a 
claim who has a demand for money or property against the Government 
under 31 U.S.C. 3702, 10 U.S.C. 2575, 10 U.S.C. 2771, 24 U.S.C. 420, 10 
U.S.C. 4712, 10 U.S.C. 9712, 37 U.S.C. 554, or 32 U.S.C. 714.
    (b) Where to Submit a Claim. A claimant must submit a claim to the 
Component concerned in accordance with guidance provided by that 
Component. A claim that is submitted somewhere other than to the 
Component concerned does not stop the running of the time limit in 
paragraph (f) of this Appendix. It is the claimant's responsibility to 
submit a claim properly.
    (c) Format of a Claim. A claimant must submit a claim in the format 
prescribed by the Component concerned. It must be written and be signed 
by the claimant (in the case of a claim on behalf of a minor or 
incompetent person, there are additional requirements explained at 
paragraph (e) of this Appendix) or by the claimant's authorized agent or 
attorney (there are additional requirements explained at paragraph (d) 
of this Appendix). In addition, it should:
    (1) Provide the claimant's mailing address.
    (2) Provide the claimant's telephone number.
    (3) State the amount claimed.
    (4) State the reasons why the Government owes the claimant that 
amount.
    (5) Have attached copies of documents referred to in the claim.
    (6) Include or have attached statements (that are attested to be 
true and correct to the best of the individual's knowledge and belief) 
of the claimant or other persons in support of the claim.
    (d) Claim Submitted by Agent or Attorney. In addition to the 
requirements in paragraph (c) of this Appendix, a claim submitted by the 
claimant's agent or attorney must include or have attached a duly 
executed power of attorney or other documentary evidence of the agent's 
or attorney's right to act for the claimant.
    (e) Claim Submitted on Behalf of a Minor or Incompetent Person. In 
addition to the requirements in paragraph (c) of this Appendix:
    (1) If a guardian or committee has not been appointed, a claim 
submitted on behalf of a minor or incompetent person must:
    (i) State the claimant's relationship to the minor or incompetent 
person.
    (ii) Provide the name and address of the person having care and 
custody of the minor or incompetent person.
    (iii) Include an affirmation that any moneys received shall be 
applied to the use and benefit of the minor or incompetent person, and 
that the appointment of a guardian or committee is not contemplated.
    (2) If a guardian or committee has been appointed, a claim on behalf 
of a minor or incompetent person must include or have attached a 
certificate of the court showing the appointment and qualification of 
the guardian or committee.
    (f) When to Submit a Claim. A claimant must submit a claim so that 
it is received by the Component concerned within the time limit allowed 
by statute.
    (1) Claimants must submit claims within these statutory time limits: 
\1\
---------------------------------------------------------------------------

    \1\ Under Section 501 et seq. of title 50 Appendix, United States 
Code, periods of active military service are not included in calculating 
whether a claim has been received within these statutory time limits.
---------------------------------------------------------------------------

    (i) Claims on account of Treasury checks under 31 U.S.C. 3702(c) 
must be received within 1 year after the date of issuance.
    (ii) Claims under 31 U.S.C. 3702 (b), 10 U.S.C. 2771 and 32 U.S.C. 
714 must be received within 6 years of the date the claim accrued. (A 
claim accrues on the date when everything necessary to give rise to the 
claim has

[[Page 826]]

occurred.) The time limit for claims of members of the Armed Forces that 
accrue during war or within 5 years before war begins, is 6 years from 
the date the claim accrued or 5 years after peace is established, 
whichever is later.
    (iii) Claims under 10 U.S.C. 2575(d)(3) must be received within 5 
years after the date of the disposal of the property to which the claim 
relates.
    (iv) Claims under 24 U.S.C. 420(d)(1), 10 U.S.C. 4712, and 10 U.S.C. 
9712 must be received within 6 years after the death of the deceased 
resident.
    (v) Claims under 37 U.S.C. 554(h) must be received before the end of 
the 5-year period from the date the net proceeds from the sale of the 
missing person's personal property are covered into the Treasury.
    (2) The time limits set by statute may not be extended or waived. 
\2\ Although the issue of timeliness normally shall be raised upon 
initial submission (as explained at Appendix D to this part, paragraph 
(b)), the issue may be raised at any point during the claim settlement 
process.
---------------------------------------------------------------------------

    \2\ There is an exception for certain claims described in 31 U.S.C. 
3702(e). In those cases, the Secretary of Defense may waive the time 
limits in paragraph (f)(1)(ii) of this Appendix. Appendix D of this 
part, paragraph (d), explains which claims qualify and the procedures 
that apply.
---------------------------------------------------------------------------

    (g) Claimant Must Prove the Claim. The claimant must prove, by clear 
and convincing evidence, on the written record that the United States is 
liable to the claimant for the amount claimed. All relevant evidence to 
prove the claim should be presented when a claim is first submitted. In 
the absence of compelling circumstances, evidence that is presented at 
later stages of the administrative process will not be considered.



             Sec. Appendix D to Part 282--Processing a Claim

    (a) Initial Component Processing. Upon receipt of a claim, the 
Component concerned must:
    (1) Date stamp the claim on the date received.
    (2) Determine whether the claim was received within the required 
time limit (time limits are summarized at Appendix C to this part, 
paragraph (f)) and follow the procedures in paragraph (b) of this 
Appendix if the claim was not timely.
    (3) Investigate the claim.
    (4) Decide whether the claimant provided clear and convincing 
evidence that proves all or part of the claim.
    (5) Issue an initial determination that grants the claim to the 
extent proved or denies the claim, as appropriate. The initial 
determination must state how much of the claim is granted and how much 
is denied, and must explain the reasons for the determination.
    (6) Notify the claimant of the initial determination. The Component 
must send the claimant a copy of the initial determination and a notice 
that explains:
    (i) The action the Component shall take on the claim, if the initial 
determination is or becomes a final action (the finality of an initial 
determination is explained at paragraph (c) of this Appendix); and
    (ii) The procedures the claimant must follow to appeal an initial 
determination that denies all or part of the claim (those appeal 
procedures are explained at Appendix E to this part), if applicable.
    (b) Untimely Claims. When the Component concerned determines that a 
claim was not received within the statutory time limit, the Component 
must make an initial determination of untimely receipt. (The statutory 
time limits are explained in Appendix C to this part, paragraph (f).)
    (1) The initial determination must cite the applicable statute and 
explain the reasons for the finding of untimely receipt. The Component 
must send the initial determination to the claimant with a notice that:
    (i) States the claim was not received within the statutory time 
limit and, therefore, may not be considered, unless that finding is 
reversed on appeal, and explains how the claimant may appeal the finding 
(those appeal procedures are explained at Appendix E to this part); and 
either
    (ii) If the claim does not qualify under 31 U.S.C. 3702(e), states 
that the statutory time limit may not be extended or waived; or
    (iii) If the claim does qualify under 31 U.S.C. 3702(e), states that 
the claim may be further considered only if the time limit is waived, 
and explains how the claimant may apply for a waiver. (Paragraph (d) of 
this Appendix explains which claims qualify and the procedures for 
applying for a waiver).
    (2) Except in cases where a claimant has applied under paragraph (d) 
of this Appendix to request a waiver of the time limit, the Component 
must return the claim to the claimant when the initial determination 
becomes a final action with a notice that the finding in the initial 
determination is final and, therefore, the claim may not be considered. 
If the claim qualifies under 31 U.S.C. 3702(e), the notice must also 
state that the claimant may resubmit the claim with an application under 
paragraph (d) of this Appendix.
    (c) Finality of an Initial Determination. An initial determination 
that grants all of a claim is a final action when it is issued. 
Otherwise, an initial determination (including one of untimely receipt) 
is a final action if the Component concerned does not receive an appeal 
within 30 days of the date of the initial determination (plus any 
extension of

[[Page 827]]

up to 30 additional days granted by the Component concerned for good 
cause shown).
    (d) Waiver of Certain Time Limits. When the Component concerned 
determines that a claim was not received within the statutory time limit 
in 31 U.S.C. 3702(b) or (c), the claimant may request a waiver of the 
time limit. Waiver is permitted only for those claims that satisfy the 
requirements of 31 U.S.C. 3702(e). \1\ This provision confers no right 
or entitlement on a claimant. It is solely within the discretion of the 
Secretary of Defense whether to grant such a waiver in a particular 
case.
---------------------------------------------------------------------------

    \1\ When this part was issued, 31 U.S.C. 3702(e) allowed time limit 
waivers only for claims up to $25,000 for Uniformed Service member's 
pay, allowances, travel, transportation, payments for unused accrued 
leave, retired pay, and survivors benefits. Since 31 U.S.C. 3702(e) 
could be amended at any time to modify these restrictions, always 
consult the current provisions of that Section to determine which claims 
are included.
---------------------------------------------------------------------------

    (1) The claim must contain the information and documents that are 
generally required for claims (those requirements are explained at 
Appendix C to this part, paragraph (c)).
    (2) The Component concerned must investigate the claim and make an 
initial determination concerning the merits of the claim.
    (3) If the initial determination grants all or part of the claim, 
and if the Secretary concerned agrees with the determination, the 
Secretary may request or recommend that the time limit be waived. \2\ 
Requests and recommendations must be in writing and signed by the 
Secretary concerned. (This authority may not be delegated below the 
level of an Assistant Secretary.)
---------------------------------------------------------------------------

    \2\ 31 U.S.C. 3702(e) currently requires a Secretarial request only 
in the case of a claim by or with respect to a member of the Uniformed 
Services who is not under the jurisdiction of the Secretary of a 
Military Department. As a matter of policy, the Department of Defense 
currently requires a Secretarial recommendation in all other cases.
---------------------------------------------------------------------------

    (i) The Secretary concerned shall forward the request or 
recommendation to the following address: Defense Office of Hearings and 
Appeals, Claims Division, P.O. Box 3656, Arlington, VA 22203-1995.
    (ii) The entire record concerning the claim, including the initial 
determination, must be attached to the request.
    (4) The Director, DOHA, must review the request and the written 
record and must:
    (i) Grant the request and waive the statutory time limit, if the 
Director finds that all or part of the claim has been proven. The 
Director may also modify the finding concerning the amount of the claim 
that has been proven.
    (ii) Deny the request, if the Director finds that no part of the 
claim has been proven.
    (iii) Notify the Secretary concerned and the claimant of the 
decision and the reasons for the findings.
    (5) In the event the Director, DOHA, denies the request, or grants 
the request but modifies the finding concerning the amount of the claim 
proven, the Secretary concerned or the claimant may request 
reconsideration (the procedures are explained at Appendix E to this 
part). The Director's decision is a final action if the Director does 
not receive a request for reconsideration within 30 days of the date of 
the Director's decision (plus any extension of up to 30 additional days 
granted by the Director for good cause shown).



                  Sec. Appendix E to Part 282--Appeals

    (a) Who May Appeal. A claimant may appeal if an initial 
determination denies all or part of a claim or finds that the claim was 
not received by the Component concerned within the time limit required 
by statute; however, the decision of the Secretary concerned not to 
request or recommend waiver of the time limit is not appealable except 
to the Secretary concerned, if the Secretary as a matter of discretion 
provides for such appeals.
    (b) When and Where to Submit an Appeal. A claimant's appeal must be 
received by the Component concerned within 30 days of the date of the 
initial determination. The Component may extend this period for up to an 
additional 30 days for good cause shown. No appeal may be accepted after 
this time has expired. An appeal sent directly to the DOHA is not 
properly submitted.
    (c) Content of an Appeal. No specific format is required; however, 
the appeal must be written and be signed by the claimant, the claimant's 
authorized agent, or the claimant's attorney. It also should:
    (1) Provide the claimant's mailing address;
    (2) Provide the claimant's telephone number;
    (3) State the amount claimed on appeal, or that the appeal is from a 
finding of untimely receipt, whichever applies;
    (4) Identify specific:
    (i) Errors or omissions of material and relevant fact;
    (ii) Legal considerations that were overlooked or misapplied; and
    (iii) Conclusions that were arbitrary, capricious, or an abuse of 
discretion;
    (5) Present evidence of the correct or additional facts alleged;
    (6) Explain the reasons the findings or conclusions should be 
reversed or modified;
    (7) Have attached copies of documents referred to in the appeal; and
    (8) Include or have attached statements (that are attested to be 
true and correct to the best of the individual's knowledge and

[[Page 828]]

belief) by the claimant or other persons in support of the appeal.
    (d) Component's Review. The Component concerned must review a 
claimant's appeal, and affirm, modify, or reverse the initial 
determination.
    (1) If the appeal concerns the denial of all or part of the claim 
and the Component grants the entire claim, or grants the claim to the 
extent requested in the appeal, the Component must notify the claimant 
in writing and explain the action the Component shall take on the claim. 
This is a final action.
    (2) If the appeal concerns the untimely receipt of the claim and the 
Component determines that the claim was received within the time limit 
required by statute, the Component must notify the claimant in writing 
and process the claim on the merits.
    (3) In all other cases, the Component must forward the appeal to the 
DOHA in accordance with paragraph (e) of this Appendix. If the appeal 
concerns an initial determination of untimely receipt, the Component 
should not investigate, or issue an initial determination concerning, 
the merits of the claim before forwarding the appeal. The Component must 
prepare a recommendation and administrative report (as explained in 
paragraph (f) of this Appendix). The Component must send a copy of the 
administrative report to the claimant, with a notice that the claimant 
may submit a rebuttal to the Component (as explained in paragraph (g) of 
this Appendix).
    (e) Submission of Appeal to DOHA. No earlier than 31 days after the 
date of the administrative report, or the day after the claimant's 
rebuttal period, as extended, expires, the Component must send the 
entire record along with the recommendation and the administrative 
report required by paragraph (f) of this Appendix to the following 
address: Defense Office of Hearings and Appeals, Claims Division, P.O. 
Box 3656, Arlington, Virginia 22203-1995.
    The record sent to the DOHA shall include specific identification of 
any major policy issue(s) and a statement as to whether the amount in 
controversy exceeds $100,000 either in the instant claim or in the 
aggregate for directly related claims. If the amount in controversy 
exceeds $100,000, a full description of the financial impact shall be 
provided.
    (f) Recommendation and Administrative Report. The recommendation and 
administrative report required by paragraph (d) of this Appendix must 
include the following:
    (1) The name of the claimant;
    (2) The Component's file reference number;
    (3) The Component's recommendation (and the reasons for it) for the 
disposition of the claim;
    (4) Relevant and material documents (such as correspondence, 
business records, and witness statements), as attachments; and
    (5) Complete copies of regulations, instructions, memorandums of 
understanding, tariffs and/or tenders, solicitations, contracts, or 
rules cited by the claimant or the Component, if a copy has not been 
previously provided, or is not available readily via electronic means.
    (g) Claimant's Rebuttal. A claimant may submit a written rebuttal, 
signed by the claimant or the claimant's agent or attorney, in response 
to the recommendation and administrative report. The rebuttal must be 
submitted to the Component within 30 days of the date of the 
recommendation and administrative report. The Component may grant an 
extension of up to an additional 30 days for good cause shown. The 
rebuttal should include:
    (1) An explanation of the points and reasons for disagreeing with 
the report;
    (2) The Component's file reference number;
    (3) Any documents referred to in the rebuttal; and
    (4) Statements (that are attested to be true and correct to the best 
of the individual's knowledge and belief) by the claimant or other 
persons in support of the rebuttal.
    (h) Action by the Component. The Component must:
    (1) Date stamp the claimant's rebuttal on the date it is received;
    (2) Send the entire record to the DOHA, but no earlier than 31 days 
after the date of the report, or the day after the claimant's rebuttal 
period, as extended, expires (as explained in paragraph (e) of this 
Appendix).
    (i) DOHA Appeal Decision. Except as provided in paragraph (p) of 
this Appendix, the DOHA must base its decision on the written record, 
including the recommendation and administrative report and any rebuttal 
by the claimant. The DOHA shall coordinate its decision in advance with 
the GC, DoD when the appeal decision affects:
    (1) Major policy issues;
    (2) Involves a claim that is quasi-contractual in nature and arises 
from the activity of a DoD Component, but the claim was not settled 
under usual acquisition procedures; or
    (3) When the amounts in controversy exceed $100,000, either for the 
instant claim or in the aggregate for directly related claims. The 
written decision must:
    (i) Affirm, modify, reverse, or remand the Component's determination 
(and, if the issue is untimely receipt and there is a finding that the 
claim was timely received, may either consider and decide the claim on 
the merits or return the claim to the Component concerned for 
investigation and initial determination on the merits);
    (ii) State the amount of the claim that is granted and the amount 
that is denied and/or

[[Page 829]]

state that the claim was or was not received within the statutory time 
limit, as appropriate; and
    (iii) Explain the reasons for the decision.
    (j) Processing After the Appeal Decision. After issuing an appeal 
decision, the DOHA must:
    (1) Send the claimant the decision and notify the claimant of:
    (i) The appropriate Component action on the claim as a consequence 
of the decision, if it is or becomes a final action (as explained in 
paragraph (k) of this Appendix); and
    (ii) The procedures under this appendix to request reconsideration 
(as explained in paragraphs (l) through (n) of this Appendix), if the 
decision does not grant the claim to the extent requested, or does not 
contain a finding of timely receipt, as the case may be.
    (2) Notify the Component concerned of the decision, and of the 
appropriate Component action on the claim as a consequence of the 
decision.
    (k) Finality of a DOHA Appeal Decision. An appeal decision that 
finds that the claim was timely received is a final action when issued. 
Otherwise, an appeal decision is a final action if the DOHA does not 
receive a request for reconsideration within 30 days of the date of the 
appeal decision (plus any extension of up to 30 additional days granted 
by the DOHA for good cause shown).

    Note: In the case of a DOHA appeal decision issued before the 
effective date of this part that denied all or part of the claim, a 
request for reconsideration by the GC, DoD may be submitted within 60 
days of the effective date of this part. The GC, DoD shall consider such 
requests and affirm, modify, reverse, or remand the DOHA appeal 
decision. Requests for reconsideration by the GC, DoD received more than 
60 days after the effective date of this part shall not be accepted. 
Requests must be submitted to the address in paragraph (e) of this 
appendix. The provisions of paragraph (n) of this appendix apply.

    (l) Who May Request Reconsideration. A claimant or the Component 
concerned, or both, may request reconsideration of a DOHA appeal 
decision.
    (m) When and Where to Submit a Request for Reconsideration. The DOHA 
must receive a request for reconsideration within 30 days of the date of 
the appeal decision. \1\ The DOHA may extend this period for up to an 
additional 30 days for good cause shown. No request for reconsideration 
may be accepted after this time has expired. A request for 
reconsideration must be sent to the DOHA at the address in paragraph (e) 
of this Appendix.
---------------------------------------------------------------------------

    \1\ With respect to appeal decisions issued before the effective 
date of this part, the request for reconsideration by the GC, DoD must 
be received by the DOHA within 60 days of the effective date of this 
part as explained in paragraph (k) of this Appendix.
---------------------------------------------------------------------------

    (n) Content of a Request for Reconsideration. The requirements of 
paragraph (c) of this Appendix, concerning the contents of an appeal, 
apply to requests for reconsideration.
    (o) DOHA's Review of a Request for Reconsideration. (1) No earlier 
than 31 days after the date of the appeal decision, or the day after the 
last period for submitting a request, as extended, expires, the DOHA 
must:
    (i) Consider a request or requests for reconsideration;
    (ii) Affirm, modify, reverse, or remand the appeal decision (and, if 
the issue is untimely receipt and there is a finding that the claim was 
timely received, may either consider and decide the claim on the merits 
or return the claim to the Component concerned for investigation and 
initial determination on the merits);
    (iii) Prepare a response that explains the reasons for the finding; 
and
    (iv) Send the response to the claimant and the Component concerned 
and notify both of the appropriate action on the claim.
    (2) The response is a final action. It is precedent in the 
consideration of all claims covered by this part unless otherwise stated 
in the document.
    (p) Consideration of Appeals and Requests for Reconsideration. When 
considering an appeal or request for reconsideration, the DOHA may:
    (1) Take administrative notice of matters that are generally known 
or are capable of confirmation by resort to sources whose accuracy 
cannot reasonably be questioned.
    (2) Remand a matter to the Component with instructions to provide 
additional information.



      Sec. Appendix F to Part 282--Requests for an Advance Decision

    (a) Who May Request an Advance Decision. A disbursing or certifying 
official or the Head of a Component may request an advance decision on a 
question involving:
    (1) A payment the disbursing official or Head of the Component shall 
make; or
    (2) A voucher presented to a certifying official for certification.
    (b) Who May Render an Advance Decision. The following officials are 
authorized to render an advance decision concerning the matters 
indicated:
    (1) The Secretary of Defense for requests involving claims under:
    (i) 31 U.S.C. 3702 for Uniformed Services members' pay, allowances, 
travel, transportation, retired pay, and survivor benefits, and by 
carriers for amounts collected from them for loss or damage to property 
they transported at Government expense.

[[Page 830]]

    (ii) 31 U.S.C. 3702 that are not described in paragraph (b)(1)(i) of 
this Appendix and that arise from the activity of a DoD Component, when 
there is no other settlement authority specifically provided by law.
    (iii) 10 U.S.C. 2575, 10 U.S.C. 2771, 24 U.S.C. 420, 10 U.S.C. 4712, 
10 U.S.C. 9712, 37 U.S.C. 554, and 32 U.S.C. 714. Appendix B to this 
part describes these claims.
    (2) The Director of the Office of Personnel Management for requests 
involving claims for civilian employees' compensation and leave.
    (3) The Administrator of General Services for requests involving 
claims for civilian employees' travel, transportation, and relocation 
expenses.
    (c) Where to Submit a Request. All requests described in paragraph 
(b)(1) of this Appendix and all other requests arising from the activity 
of a DoD Component (even if addressed to an official outside the 
Department of Defense) must be sent through the General Counsel of the 
Component concerned to the following address: General Counsel, 
Department of Defense, 1600 Defense Pentagon, Washington, DC 20301-1600.
    (d) Content of a Request. Requests for an advance decision must:
    (1) Specifically request an advance decision pursuant to 31 U.S.C. 
3529;
    (2) Describe all the relevant facts;
    (3) Explain the reasons (both factual and legal) the requester 
considers the proposed payment to be questionable;
    (4) Have attached vouchers, if any, and copies of all other relevant 
documents relating to the proposed payment;
    (5) Have attached a legal memorandum from the General Counsel of the 
Component concerned that discusses the legality of the proposed payment 
under the circumstances presented in the request; and
    (6) Comply with any other requirements established by the Director 
of the Office of Personnel Management or the Administrator of General 
Services.
    (e) Advance Decisions. The GC, DoD must take action under paragraphs 
(e)(1), (e)(2), or (e)(3) of this Appendix, whichever applies.
    (1) If the request is described in paragraph (b)(1) of this 
Appendix, the GC, DoD must review the request and issue an advance 
decision, unless the GC, DoD elects to proceed under paragraph (e)(3) of 
this Appendix.
    (i) The GC, DoD must send the decision, through the General Counsel 
of the Component concerned, to the requester, and must send a copy of 
the decision to the Director, DOHA for publication according to Appendix 
A to this part, paragraph (f).
    (ii) The decision is controlling in the case; the reliance of 
certifying and disbursing officials on it in their disposition of the 
case is evidence that those officials have exercised due diligence in 
the performance of their duties.
    (iii) An advance decision is precedent in similar claims under this 
part unless otherwise stated in the decision.
    (2) If the request is not described in paragraph (b)(1) of this 
Appendix, the GC, DoD must review the request and either:
    (i) Forward the request to the appropriate advance decision 
authority and notify the requester of that action; or
    (ii) Return the request, through the General Counsel of the 
Component concerned, to the requester, with a memorandum explaining that 
under existing legal authorities a request for an advance decision is 
not necessary. After considering the memorandum, the requester may 
resubmit the request, through the General Counsel of the Component 
concerned, to the GC, DoD. The GC, DoD must forward the request to the 
appropriate advance decision authority, and notify the requester of that 
action.
    (3) If the request is described in paragraph (b)(1) of this 
Appendix, and the claim is for not more than $250, the GC, DoD may refer 
the request to the General Counsel, Defense Finance and Accounting 
Service (DFAS). The General Counsel, DFAS, shall review the request and 
issue an advance decision.
    (i) The General Counsel, DFAS, must send the decision, through the 
General Counsel of the Component concerned, to the requester, and must 
send a copy of the decision to the GC, DoD.
    (ii) The decision is controlling in the case; the reliance of 
certifying and disbursing officials on it in their disposition of the 
case is evidence that those officials have exercised due diligence in 
the performance of their duties.
    (iii) An advance decision issued by the General Counsel, DFAS, under 
this paragraph is not precedent in similar claims under this part.



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



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

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

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



Sec. 283.1  Purpose.

    This part establishes policy and assigns responsibilities for 
considering

[[Page 831]]

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



Sec. 283.2  Applicability and scope.

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



Sec. 283.3  Definitions.

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



Sec. 283.4  Policy.

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



Sec. 283.5  Responsibilities.

    (a) The General Counsel of the Department of Defense shall:
    (1) If the aggregate amount of the debt is more than $1,500, deny or 
grant all or part of a waiver application.
    (2) Decide appeals in accordance with procedures promulgated under 
paragraph (a)(3) of this section.
    (3) Develop overall waiver policies and promulgate procedures for 
considering waiver applications, including an initial determination 
process and a process to appeal an initial determination.
    (b) The Heads of the DoD Components shall:
    (1) Consistent with responsibilities promulgated under paragraph 
(a)(3) of this section, establish procedures within the DoD Component 
for the submission of waiver applications relating to debts resulting 
from the DoD Component's activity, which shall be referred to the 
appropriate official for consideration as set forth in paragraphs (a), 
(d), (e), or (f) of this section.
    (3) Ensure compliance with this part and policies and procedures 
promulgated under paragraph (a)(3) of this section.
    (c) The Heads of the Non-DoD Components concerning debts resulting 
from that Component's activity shall:
    (1) If the aggregate amount of the debt is $1,500 or less, deny or 
grant all or part of a waiver application pursuant to 10 U.S.C. 2774.
    (2) If the aggregate amount of the debt is more than $1,500:
    (i) Deny a waiver application in its entirety; or
    (ii) Refer a waiver application for consideration with a 
recommendation that all or part of the application be granted, in 
accordance with procedures

[[Page 832]]

promulgated under paragraph (a)(3) of this section.
    (d) The Under Secretary of Defense (Comptroller)/Chief Financial 
Officer concerning debts (except those described in paragraphs (e) and 
(f) of this section) resulting from DoD Component activity shall:
    (1) If the aggregate amount of the debt is $1,500 or less, deny or 
grant all or part of a waiver application pursuant to enclosure 2 of DoD 
Directive 5118.3. \1\
---------------------------------------------------------------------------

    \1\ Available at http://www.dtic.mil/ whs/directives/.
---------------------------------------------------------------------------

    (2) If the aggregate amount of the debt is more than $1,500:
    (i) Deny a waiver application in its entirety; or
    (ii) Refer a waiver application for consideration with a 
recommendation that all or part of the application be granted, in 
accordance with procedures promulgated under paragraph (a)(3) of this 
section.
    (e) The Director, Department of Defense Education Activity, under 
the Under Secretary of Defense for Personnel and Readiness concerning 
debts of civilian employees resulting from that Component's activity 
shall:
    (1) If the aggregate amount of the debt is $1,500 or less, deny or 
grant all or part of a waiver application pursuant to enclosure 2 of DoD 
Directive 1342.6. \2\
---------------------------------------------------------------------------

    \2\ Available at http://www.dtic.mil/ whs/directives/.
---------------------------------------------------------------------------

    (2) If the aggregate amount of the debt is more than $1,500:
    (i) Deny a waiver application in its entirety; or
    (ii) Refer a waiver application for consideration with a 
recommendation that all or part of the application be granted, in 
accordance with procedures promulgated under paragraph (a)(3) of this 
section.
    (f) The Director, National Security Agency, under the Under 
Secretary of Defense for Intelligence concerning debts resulting from 
that Component's activity shall:
    (1) If the aggregate amount of the debt is $1,500 or less, deny or 
grant all or part of a waiver application.
    (2) If the aggregate amount of the debt is more than $1,500:
    (i) Deny a waiver application in its entirety; or
    (ii) Refer a waiver application for consideration with a 
recommendation that all or part of the application be granted, in 
accordance with procedures promulgated under paragraph (a)(3) of this 
section.



PART 284_WAIVER PROCEDURES FOR DEBTS RESULTING FROM ERRONEOUS PAYMENTS
OF PAY AND ALLOWANCES--Table of Contents



Sec.
284.1 Purpose.
284.2 Applicability and scope.
284.3 Definitions.
284.4 Policy.
284.5 Responsibilities.

Appendix A to Part 284--Overview of Waiver Application Process.
Appendix B to Part 284--Standards for Waiver Determinations.
Appendix C to Part 284--Submitting a Waiver Application.
Appendix D to Part 284--Processing a Waiver Application When the Debt is 
          $1,500 or Less.
Appendix E to Part 284--Processing a Waiver Application When the Debt is 
          More than $1,500.
Appendix F to Part 284--Appeals.

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

    Source: 71 FR 59375, Oct. 10, 2006, unless otherwise noted.



Sec. 284.1  Purpose.

    This part implements policy under 32 CFR part 283 and prescribes 
procedures for considering waiver applications under 10 U.S.C. 2774, 32 
U.S.C. 716, and 5 U.S.C. 5584.



Sec. 284.2  Applicability and scope.

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

[[Page 833]]

    (b) The Coast Guard, when it is not operating as a Service in the 
Navy under agreement with the Department of Homeland Security, the 
Commissioned Corps of the Public Health Service (PHS) and the National 
Oceanic and Atmospheric Administration (NOAA) under agreements with the 
Departments of Health and Human Services and Commerce, respectively 
(hereafter referred to collectively as the ``non-DoD Components'').
    (c) Certain functions for considering waiver applications that, by 
statute or delegation, are vested in the Department of Defense or the 
Secretary of Defense.



Sec. 284.3  Definitions.

    Committee. The person or persons invested, by order of a proper 
court, with the guardianship of a minor or incompetent person and/or the 
estate of a minor or incompetent person.
    Component concerned. The agency/activity (as well as the official 
designated by the Head of the agency/activity) required to perform the 
function or take the action indicated or that notifies the individual of 
the debt that is the subject of a waiver application.
    Debt. An amount an individual owes the Government as the result of 
erroneous payments of pay and allowances (including travel and 
transportation allowances) to or on behalf of members of the Uniformed 
Services or civilian DoD employees.
    Employee. A person who is or was an officer or employee as defined 
in 5 U.S.C. 2104 and 2105.
    Erroneous payment. A payment that is not in compliance with 
applicable laws or regulations.
    Final action. A finding by the appropriate official under this part 
concerning a waiver application from which there is no right to appeal 
or request reconsideration, or for which the time limit prescribed in 
this part for submitting an appeal or request for reconsideration has 
expired without such a submission.
    Member. A member or former member of the Uniformed Services.
    Waiver application. A request that the United States relinquish its 
claim against an individual for a debt resulting from erroneous payments 
of pay or allowances (including travel and transportation allowances) 
under 10 U.S.C. 2774, 32 U.S.C. 716, and 5 U.S.C. 5584.



Sec. 284.4  Policy.

    It is DoD policy under 32 CFR part 283 that waiver applications for 
debts resulting from erroneous payments of pay and allowances (hereafter 
referred to as ``waiver applications'') be processed according to all 
pertinent statutes, regulations, and other relevant authorities.



Sec. 284.5  Responsibilities.

    (a) The General Counsel of the Department of Defense (GC, DoD) or 
designee shall consult on, or render opinions concerning, questions of 
law or equity that arise in the course of the performance of the 
Director, Defense Office of Hearings and Appeals' (DOHA) 
responsibilities under paragraph (b) of this section when requested by 
the Director.
    (b) The Director, Defense Office of Hearings and Appeals or 
designee, under the GC, DoD (as the Director, Defense Legal Services 
Agency), shall:
    (1) Deny or grant all or part of a waiver application, if the 
aggregate amount of the debt is more than $1,500.
    (2) Consider an appeal of an initial determination and affirm, 
modify, reverse, or remand the initial determination, according to this 
part and relevant GC, DoD opinions.
    (3) Process waiver applications and appeals according to this part.
    (c) The Heads of the DoD Components or designee shall process waiver 
applications according to this part.
    (d) The Heads of the Non-DoD Components or designee concerning debts 
of Uniformed Services personnel resulting from the Component's activity; 
the Director, Department of Defense Education Activity (DoDEA) or 
designee, concerning debts of civilian employees resulting from that 
Component's activity; the Director, National Security Agency (NSA) or 
designee, concerning debts resulting from that Component's activity; and 
the Director, Defense Finance and Accounting Service (DFAS) or designee, 
under the Under Secretary of Defense (Comptroller)/Chief Financial 
Officer (USD(C)/CFO), concerning debts

[[Page 834]]

resulting from all other DoD Components' activities shall:
    (1) Deny or grant all or part of a waiver application, if the 
aggregate amount of the debt is $1,500 or less.
    (2) If the aggregate amount of the debt is more than $1,500:
    (i) Deny a waiver application in its entirety, or
    (ii) Refer a waiver application for consideration with a 
recommendation that part or all of the application be granted, according 
to this part.
    (3) Process waiver applications, when the aggregate amount of the 
debt is more than $1,500, and appeals according to this part.
    (4) Resolve a debt according to the final action that results from 
the waiver application process provided for in this part.



   Sec. Appendix A to Part 284--Overview of Waiver Application Process

                 A. Standards for Waiver Determinations

    The standards that must be applied in determining whether all or 
part of a waiver application should be granted or denied are at Appendix 
B to this part.

                   B. Submitting a Waiver Application

    The DoD Components shall ensure, if applicable, the submission and 
filing of waiver applications/appeals satisfy the requirements of 5 
U.S.C. 552a. The procedures an applicant must follow to submit a waiver 
application are at Appendix C to this part.

   C. Processing A Waiver Application When The Debt Is $1,500 Or Less

    The procedures a DoD Component must follow in processing a waiver 
application when the debt is $1,500 or less are at Appendix D to this 
part. \1\
---------------------------------------------------------------------------

    \1\ Contact the appropriate non-DoD Component for the procedures it 
follows in processing a waiver application.
---------------------------------------------------------------------------

  D. Processing a Waiver Application When the Debt Is More Than $1,500

    The procedures a DoD Component must follow in processing a waiver 
application when the debt is more than $1,500 are at Appendix E to this 
part.

                               E. Appeals

    The DoD Components shall ensure, if applicable, the submission and 
filing of waiver applications/appeals satisfy the requirements of 5 
U.S.C. 552 and 552a. The procedures for appealing initial determinations 
are at Appendix F to this part.

         F. Refund of Repaid Debts That Are Subsequently Waived

    When a final action waives all or part of a debt that has been 
repaid, the waiver application shall be interpreted as an application 
for a refund and the Component concerned shall, to the extent of the 
waiver, refund the amount repaid.

                             G. Publication

    The Director, DOHA or designee shall make redacted copies of 
responses to requests for reconsideration available for public 
inspection and copying at the DOHA's public reading room and on the 
worldwide web according to 5 U.S.C. 552 and 552a.



    Sec. Appendix B to Part 284--Standards for Waiver Determinations

                              A. Standards

    1. Generally, persons who receive a payment erroneously from the 
Government acquire no right to the money. They are bound in equity and 
good conscience to make restitution. If a benefit is bestowed by 
mistake, no matter how careless the act of the Government may have been, 
the recipient must make restitution. In theory, restitution results in 
no loss to the recipient because the recipient received something for 
nothing. However, 10 U.S.C. 2774, 32 U.S.C. 716, and 5 U.S.C. 5584 
provide authority to waive, under certain conditions debts individuals 
owe the Government that are the result of erroneous payments of pay and 
allowances (including travel and transportation allowances). A waiver is 
not a matter of right. It is available to provide relief as a matter of 
equity, if the circumstances warrant.
    2. Debts may be waived only when collection would be against equity 
and good conscience and would not be in the best interests of the United 
States. There must be no indication the erroneous payment was solely or 
partially the result of the fraud, misrepresentation, fault, or lack of 
good faith of the applicant.
    3. The fact that an erroneous payment is solely the result of 
administrative error or mistake on the part of the Government is not 
sufficient basis in and of itself for granting a waiver.
    4. A waiver usually is not appropriate when a recipient knows, or 
reasonably should know, that a payment is erroneous. The recipient has a 
duty to notify an appropriate official and to set aside the funds for 
eventual repayment to the Government, even if the Government fails to 
act after such notification.
    5. A waiver generally is not appropriate when a recipient of a 
significant unexplained

[[Page 835]]

increase in pay or allowances, or of any other unexplained payment of 
pay or allowances, does not attempt to obtain a reasonable explanation 
from an appropriate official. The recipient has a duty to ascertain the 
reason for the payment and to set aside the funds in the event that 
repayment should be necessary.
    6. A waiver may be inappropriate in cases where a recipient 
questions a payment (which ultimately is determined to be erroneous) and 
is mistakenly advised by an appropriate official that the payment is 
proper, if under the circumstances the recipient knew or reasonably 
should have known that the advice was erroneous.
    7. Financial hardship is not a factor for consideration in 
determining whether a waiver is appropriate.
    8. Waiver determinations under these standards depend on the facts 
in each case.



      Sec. Appendix C to Part 284--Submitting a Waiver Application

                       A. Who May Apply for Waiver

    Any person (``applicant'') from whom collection is sought for a debt 
resulting from erroneous payments of pay or allowances (including travel 
and transportation allowances) may submit a waiver application under 10 
U.S.C. 2774, 32 U.S.C. 716, and 5 U.S.C. 5584. Additionally, an 
authorized official of the Component concerned, or the Director, DOHA or 
designee may initiate a waiver application during the processing of a 
claim under 32 CFR part 281.

                 B. Where To Submit A Waiver Application

    An applicant must submit a waiver application to the Component 
concerned according to the guidance provided by that Component. A waiver 
application submitted somewhere other than to the Component concerned 
does not stop the calculation of the time limit as discussed in 
paragraph F to this Appendix. It is the applicant's responsibility to 
submit the waiver application properly.

                    C. Format of a Waiver Application

    An applicant must submit a waiver application in the format 
prescribed by the Component concerned. It must be written and signed by 
the applicant (in the case of an application on behalf of a minor or 
incompetent person, there are additional requirements explained at 
paragraph E to this Appendix) or by the applicant's authorized agent or 
attorney (there are additional requirements explained at paragraph D to 
this Appendix). In addition, the waiver application should include:
    1. The applicant's mailing address.
    2. The applicant's telephone number.
    3. The applicant's social security number when required by the 
Component concerned.
    4. The amount for which waiver is requested.
    5. An explanation why a waiver should be granted under the standards 
explained at Appendix B to this part.
    6. Copies of documents referred to in the application.
    7. Statements (that are attested to be true and correct to the best 
of the individual's knowledge and belief) of the applicant or other 
persons in support of the application.

          D. Waiver Application Submitted by Agent or Attorney

    In addition to the requirements in paragraph C to this Appendix, a 
waiver application submitted by the applicant's agent or attorney must 
include or have attached a duly executed power of attorney or other 
documentary evidence of the agent's or attorney's right to act for the 
applicant.

  E. Waiver Application Submitted on Behalf of a Minor or Incompetent 
                                 Person

    In addition to the requirements in paragraph C to this Appendix:
    1. If a guardian or committee has not been appointed, a waiver 
application submitted on behalf of a minor or incompetent person must:
    i. State the applicant's relationship to the minor or incompetent 
person.
    ii. Provide the name and address of the person having care and 
custody of the minor or incompetent person.
    iii. Include an affirmation that any moneys received shall be 
applied to the use and benefit of the minor or incompetent person, and 
that the appointment of a guardian or committee is not contemplated.
    2. If a guardian or committee has been appointed, a waiver 
application on behalf of a minor or incompetent person must include or 
have attached a certificate of the court showing the appointment and 
qualification of the guardian or committee.

                 F. When To Submit a Waiver Application

    An applicant must submit a waiver application so that it is received 
by the Component concerned within three years after the erroneous 
payment is discovered. The date of discovery is the date it is 
definitely determined by an appropriate official that an erroneous 
payment has been made. The time limit is set by 10 U.S.C. 2774, 32 
U.S.C. 716, and 5 U.S.C. 5584, whichever applies. It may not be extended 
or waived. Although the issue of timeliness is usually raised on initial 
submission (as explained in paragraph B to Appendix D in this part), the 
issue may be raised at any point during the waiver application 
consideration process.

[[Page 836]]



 Sec. Appendix D to Part 284--Processing a Waiver Application When the 
                         Debt Is $1,500 or Less

                     A. Initial Component Processing

    Upon receipt of a waiver application, the Component concerned must:
    1. Date stamp the application on the date received.
    2. Determine whether the application was received within three years 
after the discovery of the erroneous payment. If the application was not 
timely, follow the procedures in paragraph B to this Appendix.
    3. Investigate the circumstances relating to the erroneous payment.
    4. Refer the application to the appropriate determining official 
(see paragraph C to this Appendix) for consideration and an initial 
determination.

                     B. Untimely Waiver Applications

    When the Component concerned determines that a waiver application 
was not received within three years after the erroneous payment was 
discovered, the Component must send the applicant a notice of untimely 
receipt.
    1. The notice must:
    i. Cite the applicable statute and explain the reasons for the 
finding of untimely receipt.
    ii. State that the application was not received within the statutory 
time limit and may not be considered unless that finding is reversed on 
appeal.
    iii. Explain that the applicant may submit a rebuttal to the finding 
of untimely receipt (as explained in paragraph B.2.).
    iv. State that the statutory time limit may not be extended or 
waived.
    2. An applicant may submit a written rebuttal, signed by the 
applicant or the applicant's agent or attorney, to a notice of untimely 
receipt. The Component concerned must receive the rebuttal within 30 
days of the date of the notice and may grant an extension of up to an 
additional 30 days for good cause shown. The rebuttal should:
    i. Explain the points of, and reasons for, disagreement with the 
notice.
    ii. Have any documents referred to in the rebuttal attached.
    iii. Include or have attached statements (that are attested to be 
true and correct to the best of the individual's knowledge and belief) 
by the applicant or other persons in support of the rebuttal.
    3. If the applicant does not submit a rebuttal within the time 
permitted, the notice of untimely receipt is a final action and the 
Component must return the application to the applicant with a notice 
that the finding is final and the application may not be considered.
    4. If the applicant submits a timely rebuttal, the Component must 
consider the rebuttal.
    i. If the Component finds that the application was received within 
the required time limit, the Component must reverse its finding of 
untimely receipt, notify the applicant in writing, and process the 
application on its merits.
    ii. If the Component does not reverse the finding of untimely 
receipt, the Component must forward the record, including the 
application, notice of untimely receipt, and rebuttal, to the 
appropriate determining official (see paragraph C.1. to this Appendix) 
for an initial determination on the issue of untimely receipt. The 
Component does not need to investigate the merits of the application 
before forwarding the record.
    5. After making an initial determination on the issue of untimely 
receipt, the determining official must follow the procedures in 
paragraph D to this Appendix. In addition, if the determining official 
finds that the application was timely, the official may:
    i. Return the application to the Component concerned for processing 
on its merits according to this part, or
    ii. Consider the application and make an initial determination on 
its merits according to paragraph C.2. to this Appendix.

                        C. Initial Determinations

    The standards in Appendix B to this part must be applied when 
considering the merits of a waiver application. After making an initial 
determination, the determining official must follow the procedures at 
paragraph D to this Appendix.
    1. The officials listed and referred to in this part as determining 
officials shall consider waiver applications and take the appropriate 
action described in paragraph C.2. to this Appendix. These officials are 
identified as follows:
    i. The Head of a non-DoD Component or designee for debts of 
Uniformed Services personnel resulting from that Component's activity.
    ii. The Director, DoDEA or designee for debts of civilian employees 
resulting from that Component's activity.
    iii. The Director, NSA or designee for debts resulting from that 
Component's activity.
    iv. The Director, DFAS or designee for debts resulting from the DoD 
Component activity not included in paragraphs C.1.ii. and C.1.iii. to 
this Appendix.
    2. The officials listed in paragraph C.1. to this Appendix may make 
an initial determination for the following:
    i. Whether or not a waiver application was received within three 
years after the discovery of the erroneous payment.
    ii. Deny a waiver application in its entirety.

[[Page 837]]

    iii. Grant all or part of a waiver application.

              D. Processing After An Initial Determination

    After making an initial determination, the determining official 
must:
    1. Notify the applicant. The notification must explain:
    i. The determination and the reasons for it.
    ii. The appropriate Component action to resolve the debt as a 
consequence of the determination if it is or becomes a final action (the 
finality of an initial determination is explained at paragraph E to this 
Appendix).
    iii. The appeal process (as explained in Appendix F to this part) if 
the determination does not grant the entire application or does not 
contain a finding of timely receipt.
    2. Notify the Component concerned if the determining official is not 
an official of the Component concerned when and if the determination is 
a final action. The notice must explain:
    i. The determination and its reasons.
    ii. The appropriate Component action to resolve the debt as a 
consequence of the determination.

                E. When an Initial Determination Is Final

    A final action is an initial determination that grants the entire 
waiver application or finds that the application was timely received. 
Also, an initial determination (including one of untimely receipt) is a 
final action if the determining official does not receive an appeal 
within 30 days of the date of the initial determination (plus any 
extension of up to 30 additional days granted by the determining 
official for good cause shown).



 Sec. Appendix E to Part 284--Processing a Waiver Application When the 
                        Debt Is More Than $1,500

                     A. Initial Component Processing

    Upon receipt of a waiver application, the Component concerned must:
    1. Date stamp the application on the date received.
    2. Determine whether the application was received within three years 
after the discovery of the erroneous payment. If the application was not 
timely, follow the procedures in paragraph B in this part.
    3. Investigate the circumstances relating to the erroneous payment.
    4. Refer the waiver application to the appropriate determining 
official (see paragraph C to this Appendix) who after applying the 
standards in Appendix B in this part may either:
    i. Deny the application in its entirety, if appropriate, and follow 
the procedures in Appendix D to this part, or
    ii. Refer the application with a recommendation that part or all of 
the application be granted to the DOHA for consideration and an initial 
determination under paragraph C to this Appendix. The determining 
official must send the entire record and prepare and submit a 
recommendation and administrative report (as explained in paragraphs D 
and E to this Appendix) with the application.

                     B. Untimely Waiver Applications

    When the Component concerned determines that a waiver application 
was not received within three years after the erroneous payment was 
discovered, the Component must send the applicant a notice of untimely 
receipt.
    1. The notice must:
    i. Cite the applicable statute and explain the reasons for the 
finding of untimely receipt.
    ii. State that the application was not received within the statutory 
time limit and may not be considered unless that finding is reversed on 
appeal.
    iii. Explain that the applicant may submit a rebuttal to the finding 
of untimely receipt (as explained in paragraph B.2. to this Appendix.).
    iv. State that the statutory time limit may not be extended or 
waived.
    2. An applicant may submit a written rebuttal, signed by the 
applicant or the applicant's agent or attorney, to a notice of untimely 
receipt. The Component concerned must receive the rebuttal within 30 
days of the date of the notice and may grant an extension of up to an 
additional 30 days for good cause shown. The rebuttal should:
    i. Explain the points of, and reasons for, disagreement with the 
notice.
    ii. Have any documents referred to in the rebuttal attached.
    iii. Include or have attached statements (that are attested to be 
true and correct to the best of the individual's knowledge and belief) 
by the applicant or other persons in support of the rebuttal.
    3. If the applicant does not submit a rebuttal within the time 
permitted, the notice of untimely receipt is a final action and the 
Component must return the application to the applicant with a notice 
that the finding is final and the application may not be considered.
    4. If the applicant submits a timely rebuttal, the Component must 
consider the rebuttal:
    i. If the Component finds that the application was received within 
the required time limit, the Component must reverse its finding of 
untimely receipt, notify the applicant in writing, and process the 
application on its merits.
    ii. If the Component does not reverse the finding of untimely 
receipt, the Component

[[Page 838]]

must forward the record, including the application, notice of untimely 
receipt, and rebuttal, to the appropriate determining official (see 
paragraph C.1. of Appendix D to this part) for an initial determination 
on the issue of untimely receipt. The Component does not need to 
investigate the merits of the application before forwarding the record.
    5. After making an initial determination on the issue of untimely 
receipt, the determining official must follow the procedures in Appendix 
D to this part. In addition, if the determining official finds that the 
application was timely, the official may:
    i. Return the application to the Component concerned for processing 
on the merits according to this part, or
    ii. Make a recommendation to the DOHA to grant all or part of the 
application as described in paragraph D to this Appendix.

                        C. Initial Determinations

    The standards in Appendix B to this part must be applied when 
considering the merits of a waiver application. After making an initial 
determination, the DOHA must follow the procedures at paragraph F to 
this Appendix and may take the following actions regarding waiver 
applications referred under paragraph A.4.ii. or B.5.ii. to this 
Appendix:
    1. Make an initial determination denying a waiver application in its 
entirety; or
    2. Make an initial determination granting all or part of a waiver 
application.

  D. Recommendation to the DOHA To Grant All or Part of an Application

    Referrals to the DOHA must include the entire record along with the 
recommendation and administrative report described in paragraph E to 
this Appendix. The record and the report must be sent to: Defense Office 
of Hearings and Appeals, Claims Division, P.O. Box 3656, Arlington, VA 
22203-1995.

               E. Recommendation and Administrative Report

    The recommendation and administrative report required by paragraph D 
to this Appendix must describe the recommended action (and its reasons) 
and the following:
    1. The names and mailing addresses of each employee, member, or 
other person from whom collection is sought, or a statement that the 
person cannot reasonably be located.
    2. The aggregate amount of the debt, including an itemization 
showing the elements of the aggregate amount.
    3. The date the erroneous payment was discovered.
    4. The date the recipient was notified of the error and a statement 
of the erroneous amounts paid before and after receipt of such notice.
    5. A summary of the facts and circumstances describing how the 
erroneous payment occurred; the recipient's knowledge of the erroneous 
nature of the payment; the steps taken by the recipient to bring the 
matter to the attention of the appropriate official; and the Component's 
response, if any.
    6. A finding of whether there is any indication of fraud, 
misrepresentation, fault, or lack of good faith on the part of the 
applicant and the reasons for such a finding.
    7. Legible copies or the originals of supporting documents, such as 
leave and earnings statements, notifications of personnel actions, 
travel authorizations and vouchers, and military orders.
    8. Statements (that are attested to be true and correct to the best 
of the individual's knowledge and belief) of the applicant or other 
persons in support of the application.

              F. Processing After an Initial Determination

    After making an initial determination, the DOHA must:
    1. Notify the applicant if all or part of the waiver application is 
denied. The notification must explain:
    i. The determination and the reasons for it.
    ii. The appropriate Component action to resolve the debt as a 
consequence of the determination if it is or becomes a final action (the 
finality of an initial determination is explained at paragraph G to this 
Appendix).
    iii. The appeal process (as explained in Appendix F to this part) if 
the determination does not grant the entire application or does not 
contain a finding of timely receipt.
    2. Notify the Component concerned when and if the determination is a 
final action. The notice must explain:
    i. The determination and its the reasons.
    ii. The appropriate Component action to resolve the debt as a 
consequence of the determination.

                G. When an Initial Determination Is Final

    A final action is an initial determination that grants the entire 
waiver application or finds that the application was timely received. 
Also, an initial determination (including one of untimely receipt) is a 
final action if the determining official does not receive an appeal 
within 30 days of the date of the initial determination (plus any 
extension of up to 30 additional days granted by the determining 
official for good cause shown).



                  Sec. Appendix F to Part 284--Appeals

                            A. Who May Appeal

    An applicant may appeal if an initial determination denies all or 
part of a waiver application or finds that the application was

[[Page 839]]

not received by the Component concerned within the time limit required 
by statute.

                  B. When and Where To Submit an Appeal

    1. When the determining official is not in the DOHA, the determining 
official must receive an applicant's appeal within 30 days of the date 
of the initial determination. The determining official may extend this 
period for up to an additional 30 days for good cause shown. No appeal 
may be accepted after this time has expired. The appeal shall be 
processed under the procedures in paragraphs C through K to this 
Appendix.
    2. When the determining official is in the DOHA, the DOHA must 
receive an applicant's appeal within 30 days of the date of the initial 
determination. The DOHA may extend this period for up to an additional 
30 days for good cause shown. No appeal may be accepted after this time 
has expired. The appeal shall be considered to be a request for 
reconsideration and shall be processed under the procedures in 
paragraphs L through Q of this Appendix.

                         C. Content of an Appeal

    No specific format for an appeal is required however it must be 
written and signed by the applicant, the applicant's authorized agent, 
or the applicant's attorney. In addition, it should:
    1. Provide the applicant's mailing address.
    2. Provide the applicant's telephone number.
    3. Provide the applicant's social security number when required by 
the Component concerned.
    4. Identify specific:
    i. Errors or omissions of material and relevant facts.
    ii. Legal or equitable (under the standards in Appendix B to this 
part) considerations that were overlooked or misapplied.
    iii. Conclusions that were arbitrary, capricious, or an abuse of 
discretion.
    5. Present evidence of the correct or additional facts alleged.
    6. Explain the reasons why the findings or conclusions should be 
reversed or modified.
    7. Have attached copies of documents referred to in the appeal.
    8. Include or have attached statements (that are attested to be true 
and correct to the best of the individual's knowledge and belief) by the 
applicant or other persons in support of the appeal.

                    D. Determining Official's Review

    The determining official must review an applicant's appeal, and 
affirm, modify, or reverse the initial determination.
    1. When the determining official grants the entire waiver appeal or 
grants the application to the extent requested in the appeal after 
review of an appeal in a case involving a debt in the aggregate amount 
of $1,500 or less, the determining official must notify the applicant in 
writing and the Component concerned if the determining official is not 
an official of the Component concerned. The notice must explain the 
appropriate action to resolve the debt. This is a final action.
    2. When the determining official finds that the application was 
received within the time limit required by statute after review of an 
appeal concerning the untimely receipt of the waiver application, the 
determining official must notify the applicant in writing and take the 
appropriate action under paragraph B.5. of Appendix D to this part or 
paragraph B.5. of Appendix E to this part, as appropriate.
    3. In all other cases, the determining official must forward the 
appeal to the DOHA according to paragraph E. of this Appendix. The 
determining official must prepare a recommendation and administrative 
report (as explained in paragraph F to this Appendix) and send a copy of 
the administrative report to the applicant with a notice that the 
applicant may submit a rebuttal to the determining official (as 
explained in paragraph G to this Appendix).
    4. The determining official must date stamp the applicant's rebuttal 
on the date it is received.

                   E. Submission of Appeal to the DOHA

    The determining official must send the entire record along with the 
recommendation and administrative report required by paragraph F to this 
Appendix no earlier than 31 days after the date of the administrative 
report or the day after the applicant's rebuttal period, as extended, 
expires, to the following address: Defense Office of Hearings and 
Appeals, Claims Division, P.O. Box 3656, Arlington, Virginia 22203-1995.

               F. Recommendation and Administrative Report

    The recommendation and administrative report required by paragraph 
D.3. to this Appendix must describe the recommended action (and its 
reasons) and include:
    1. The names and mailing addresses of each employee, member, or 
other person from whom collection is sought, or a statement that the 
person cannot reasonably be located.
    2. The aggregate amount of the debt, including an itemization 
showing the elements of the aggregate amount.
    3. The date the erroneous payment was discovered.
    4. The date the recipient was notified of the error and a statement 
of the erroneous amounts paid before and after receipt of such notice.
    5. A summary of the facts and circumstances describing how the 
erroneous

[[Page 840]]

payment occurred; the recipient's knowledge of the erroneous nature of 
the payment; the steps taken by the recipient to bring the matter to the 
attention of the appropriate official; and the Component's response;
    6. A finding of whether there is any indication of fraud, 
misrepresentation, fault, or lack of good faith on the part of the 
applicant and the reasons for such a finding.
    7. Legible copies or the originals of supporting documents, such as 
leave and earnings statements, notifications of personnel actions, 
travel authorizations and vouchers, and military orders.
    8. Statements (that are attested to be true and correct to the best 
of the individual's knowledge and belief) of the applicant or other 
persons in support of the application.

                         G. Applicant's Rebuttal

    An applicant may submit a written rebuttal, signed by the applicant 
or the applicant's agent or attorney, in response to the recommendation 
and administrative report. The rebuttal must be received by the 
determining official within 30 days of the date of the recommendation 
and administrative report. The determining official may grant an 
extension of up to an additional 30 days for good cause shown. The 
rebuttal should include:
    1. An explanation of the points and reasons for disagreeing with the 
report.
    2. The file reference number.
    3. Any documents referred to in the rebuttal.
    4. Statements (that are attested to be true and correct to the best 
of the individual's knowledge and belief) by the applicant or other 
persons in support of the rebuttal.

                         H. DOHA Appeal Decision

    Except as provided in paragraph P to this Appendix, the DOHA must 
base its decision on the written record, including the recommendation 
and administrative report and any rebuttal by the applicant. The written 
decision must:
    1. Affirm, modify, reverse, or remand the initial determination and 
decide the application on its merits or return the application to the 
Component concerned for investigation and processing for an initial 
determination on the merits according to Appendix D to this part.
    2. State the amount of the waiver application that is granted and 
the amount denied and/or that the application was or was not received 
within the statutory time limit, as appropriate.
    3. Explain the reasons for the decision.

                 I. Processing After the Appeal Decision

    After issuing an appeal decision, the DOHA must:
    1. Send the applicant the decision and notify the applicant of:
    i. The appropriate Component action to resolve the debt as a 
consequence of the decision if it is or becomes a final action (as 
explained in paragraph J to this Appendix).
    ii. The procedures under this Appendix to request reconsideration 
(as explained in paragraphs K through M to this Appendix), if the 
decision does not grant the waiver application to the extent requested, 
or does not contain a finding of timely receipt, when applicable.
    2. Notify the Component concerned of the decision and the 
appropriate Component action to resolve the debt as a consequence of the 
decision.

                  J. Finality of a DOHA Appeal Decision

    An appeal decision that grants the waiver application to the extent 
requested on appeal, or that finds that the application was timely 
received, when applicable, is a final action when issued. An appeal 
decision is a final action if the DOHA does not receive a request for 
reconsideration within 30 days of the date of the appeal decision (plus 
any extension of up to 30 additional days granted by the DOHA for good 
cause shown).

    Note: In the case of a DOHA appeal decision issued before the 
effective date of this part that denied all or part of the waiver 
application, a request for reconsideration by the GC, DoD may be 
submitted within 60 days of the effective date of this part. The GC DoD 
shall consider such requests and affirm, modify, reverse, or remand the 
DOHA appeal decision. Requests for reconsideration by the GC, DoD 
received more than 60 days after the effective date of this part shall 
not be accepted. Requests must be submitted to the address in paragraph 
E.5. to this appendix. The provisions of paragraph M to this appendix 
apply.

                   K. Who May Request Reconsideration

    An applicant may request reconsideration of a DOHA appeal decision.

        L. When and Where To Submit a Request for Reconsideration

    The DOHA must receive a request for reconsideration within 30 days 
of the date of the appeal decision. \2\ The DOHA may extend this period 
for up to an additional 30 days for good cause shown. No request for 
reconsideration may be accepted after this time has expired. A request 
for reconsideration must be

[[Page 841]]

sent to the DOHA at the address in paragraph E to this Appendix.
---------------------------------------------------------------------------

    \2\ Request for reconsideration by the GC, DoD must be received by 
the DOHA within 60 days of the effective date of this Instruction as 
explained in paragraph J of this appendix for appeal decisions issued 
before the effective date of this Instruction.
---------------------------------------------------------------------------

               M. Content of a Request for Reconsideration

    The requirements of paragraph C to this Appendix for the content of 
an appeal apply to a request for reconsideration.

            N. DOHA's Review of a Request for Reconsideration

    No earlier than 31 days after the date of the appeal decision or the 
day after the last period for submitting a request, as extended, 
expires, the DOHA must:
    1. Consider a request for reconsideration.
    2. Affirm, modify, or reverse the appeal decision.
    3. Prepare a response that explains the reasons for the finding.
    4. Send the response to the applicant and the Component concerned 
and notify them of the appropriate action on the debt.

             O. Finality of a DOHA Reconsideration Decision

    The response is a final action. It is precedent in the consideration 
of all waiver applications covered by this part unless otherwise stated 
in the document.

      P. Consideration of Appeals and Requests for Reconsideration

    When considering an appeal or request for reconsideration, the DOHA 
may:
    1. Take administrative notice of matters that are generally known or 
are capable of confirmation by resort to sources whose accuracy cannot 
reasonably be questioned.
    2. Remand a matter to the Component with instructions to provide 
additional information.

[[Page 842]]



             SUBCHAPTER N_FREEDOM OF INFORMATION ACT PROGRAM





PART 286_DOD FREEDOM OF INFORMATION ACT (FOIA) PROGRAM--Table of Contents



                      Subpart A_General Provisions

Sec.
286.1 Purpose.
286.2 Applicability.

                         Subpart B_FOIA Requests

286.3 General information.
286.4 FOIA Public Liaisons and the Office of Government Information 
          Services.
286.5 Description of records sought.
286.6 Preservation of records.

                    Subpart C_FOIA Request Processing

286.7 General provisions.
286.8 Timing of responses to requests.
286.9 Responses to requests.
286.10 Confidential Commercial Information.

                            Subpart D_Appeals

286.11 Processing of appeals.

                             Subpart E_Fees

286.12 Schedule of fees.
286.13 Fees for technical data.

    Authority: 5 U.S.C. 552.

    Source: 82 FR 1197, Jan. 5, 2017, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 286.1  Purpose.

    This part contains the rules that the public follows in requesting 
information from the Department of Defense (DoD) in accordance with the 
FOIA, as amended, 5 U.S.C. 552, and how those requests will be processed 
by the DoD. These rules should be read in conjunction with the text of 
the FOIA and the Uniform Freedom of Information Fee Schedule and 
Guidelines published by the Office of Management and Budget (``OMB 
Guidelines''). Requests made by individuals for records about themselves 
under the Privacy Act of 1974, as amended, 5 U.S.C. 552a, are processed 
in accordance with 32 Code of Federal Regulations (CFR) part 310. 
Additionally, the Directorate for Oversight and Compliance maintains a 
DoD FOIA Handbook for the public to use in obtaining information from 
the DoD. This handbook contains information about specific procedures 
particular to the DoD with respect to the public requesting DoD records. 
This handbook includes descriptions of DoD Components and the types of 
records maintained by different DoD Components. It is available at 
http://open.defense.gov/ Transparency/FOIA/ FOIAHandbook.aspx.



Sec. 286.2  Applicability.

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



                         Subpart B_FOIA Requests



Sec. 286.3  General information.

    (a) The DoD has a decentralized system for responding to FOIA 
requests, with each DoD Component designating at least one FOIA 
Requester Service Center (RSC) to process records from that component. 
All DoD RSCs have the capability to receive requests electronically 
either through email or a web portal. To make a request for records, a 
requester should write directly to the DoD Component that maintains the 
records being sought. A request will receive the quickest possible 
response if it is addressed to the RSC of the DoD Component that 
maintains the records sought. Addresses and contact information for the 
RSCs are available at http://www.foia.gov/ report-makerequest.html. This 
Web site has the contact information for the following DoD Components: 
The OSD and the Office of the Chairman of the Joint Chiefs

[[Page 843]]

of Staff and the Joint Staff, Department of the Army, Department of the 
Navy, Department of the Air Force, Armed Services Board of Contract 
Appeals, Defense Commissary Agency, Defense Contract Audit Agency, 
Defense Contract Management Agency, Defense Finance and Accounting 
Service, Defense Health Agency, Defense Information Systems Agency, 
Defense Intelligence Agency, Defense Logistics Agency, Defense Security 
Service, Defense Technical Information Center, Defense Threat Reduction 
Agency, Joint Personnel Recovery Agency, DoD Education Activity, 
National Geospatial-Intelligence Agency, National Guard Bureau, National 
Reconnaissance Office, National Security Agency/Central Security 
Service, Office of the Inspector General of the Department of Defense, 
United States Africa Command, United States Central Command, United 
States European Command, United States Northern Command, United States 
Pacific Command, United States Special Operations Command, United States 
Strategic Command, and United States Transportation Command.
    (b) The OSD/Joint Staff FOIA RSC also processes FOIA requests for 
the Criminal Investigation Task Force, Defense Acquisition University, 
Defense Advanced Research Projects Agency, Defense Equal Opportunity 
Management Institute, Defense Legal Services Agency, Defense 
Microelectronics Activity, Defense Media Activity, Defense POW/MIA 
Accounting Agency, Defense Security Cooperation Agency, Defense 
Technology Security Administration, Defense Travel Management Office, 
DoD Human Resources Activity, DoD Test Resource Management Center, Joint 
Improvised-Threat Defeat Agency, Missile Defense Agency, National 
Defense University, Office of Economic Adjustment, Pentagon Force 
Protection Agency, Uniform Services University of the Health Sciences, 
Washington Headquarters Services and White House Military Office.
    (c) A requester who is making a request for records about himself or 
herself, regardless of whether the records are in a Privacy Act system 
of records, must comply with the verification of identity requirements 
as determined by the DoD Component in accordance with 32 CFR part 310.



Sec. 286.4  FOIA Public Liaisons and the Office of Government Information Services.

    (a) Each DoD Component has at least one FOIA Public Liaison. FOIA 
Public Liaisons are responsible for working with requesters that have 
any concerns about the service received from a FOIA RSC, reducing delays 
in the processing of FOIA requests, increasing transparency and 
understanding of the status of requests, and assisting in the resolution 
of disputes. Contact information for DoD Component FOIA Public Liaisons 
is available at http://www.foia.gov/ report-makerequest.html.
    (b) Engaging in dispute resolution services provided by OGIS. 
Mediation is a voluntary process. If a requester seeks dispute 
resolution services from the Office of Government Information services 
(OGIS), the DoD will actively engage as a partner to the process in an 
attempt to resolve the dispute.



Sec. 286.5  Description of records sought.

    (a) Requesters must reasonably describe the records sought and 
provide sufficient detail to enable personnel to locate those records 
with a reasonable amount of effort. To the extent possible, requesters 
should include specific information that may assist personnel in 
identifying the requested records, such as the date, title or name, 
author, recipient, subject matter of the record, case number, file 
designation, or reference number. Before submitting their requests, 
requesters may contact the DoD Component's FOIA RSC or FOIA Public 
Liaison to discuss the records they are seeking and to receive 
assistance in describing the records. If after receiving a request the 
DoD Component determines that it does not reasonably describe the 
records sought, the DoD Component shall inform the requester what 
additional information is needed or why the request is otherwise 
insufficient. Requesters who are attempting to reformulate or modify 
such a request may discuss their request with the DoD Component's FOIA 
contact or FOIA Public Liaison. Requesters are encouraged to make every

[[Page 844]]

effort to reasonably describe the requested records in order to avoid 
any delays in the processing of their requests.
    (b) Requesters may specify the preferred form or format (including 
electronic formats) for the requested records. DoD Components will 
accommodate the request if the record is readily reproducible in that 
form or format.
    (c) Requesters must provide contact information, such as a telephone 
number, email address, and/or mailing address, to assist the DoD 
Component in communicating and providing released records.



Sec. 286.6  Preservation of records.

    Each DoD Component shall preserve all correspondence pertaining to 
the requests that it receives under this part, as well as copies of all 
requested records, until disposition or destruction is authorized 
pursuant to title 44 of the United States Code or the General Records 
Schedule 4.2 of the National Archives and Records Administration (NARA). 
Records shall not be disposed of or destroyed while they are the subject 
of a pending request, appeal, or lawsuit under the FOIA.



                    Subpart C_FOIA Request Processing



Sec. 286.7  General provisions.

    (a) Responsibilities. The DoD Component receiving a FOIA request for 
a record that it maintains is responsible for making a determination on 
the request and responding to the FOIA requester. In determining which 
records are responsive to a request, a DoD Component ordinarily will 
include only records in its possession as of the date that it begins its 
search. If any other date is used, the DoD Component shall inform the 
requester of that date. A record that is excluded from the requirements 
of the FOIA pursuant to 5 U.S.C. 552(c), is not considered responsive to 
a request.
    (b) Authority to deny requests. DoD Components will designate one or 
more Initial Denial Authorities (IDA) with the authority to deny any 
requests for records that are maintained by that agency.
    (c) Re-routing of misdirected requests. DoD Components receiving a 
misdirected FOIA request for records clearly originating with another 
DoD Component (e.g. the Air Force receives a FOIA request for a Navy 
contract) will route the FOIA request to the appropriate DoD Component 
and inform them of the date the FOIA request was initially received. 
Additionally, it will advise the FOIA requester of the routing of the 
request. This routing requirement only applies to those FOIA requests 
directed to a DoD Component that seek documents for which the DoD is 
responsible. If it is known that responsibility for the requested 
records rests with a non-DoD Federal agency (e.g., Department of State), 
then the DoD Component need only advise the FOIA requester to submit the 
FOIA request to the proper Federal agency. DoD Components will not route 
misdirected FOIA requests to a Defense Criminal Investigation 
Organization or Intelligence Community component without first 
contacting the other component or agency for guidance.
    (d) Consultation, referral, and coordination. When reviewing records 
located in response to a request, the DoD Component may determine that 
another DoD Component or Federal agency also should determine whether 
the record is exempt from disclosure under the FOIA. As to any such 
record, the DoD Component shall proceed in one of the following ways:
    (1) Consultation. When records originating with a DoD Component that 
is initially processing a request contain information of interest to 
another DoD Component or other Federal agency, the DoD Component 
initially processing the request should typically consult with all 
interested DoD Components or other Federal agencies prior to making a 
release determination. The DoD Component initially processing the 
request, under these circumstances, will ultimately respond to the 
requester and release any responsive material. The consulted DoD 
Component will notify the sending DoD Component or other Federal agency 
when the consultation is received and the consultation tracking number.
    (2) Referral. (i) When the DoD Component initially processing the 
request

[[Page 845]]

believes that a different DoD Component or other Federal agency is best 
able to determine whether to disclose the record, the DoD Component 
typically should refer the responsibility for responding to the request 
regarding that record to that agency. Ordinarily, the agency that 
originated the record will be presumed to be best able to make the 
disclosure determination. Under these circumstances, the DoD Component 
or other Federal agency receiving the referral will ultimately make a 
release determination on the records and respond to the requester.
    (ii) Whenever a DoD Component refers a record to another DoD 
Component or Federal agency, it will document the referral, refer a copy 
of the referred record, and notify the requester of the referral, 
informing the requester of the name and FOIA address of the DoD 
Component or Federal agency to which the record was referred.
    (3) Coordination. The standard referral procedure is not appropriate 
where disclosure of the identity of the DoD Component or agency to which 
the referral would be made could harm an interest protected by an 
applicable exemption, such as the exemptions that protect personal 
privacy or national security interests. Under these circumstances, the 
consultation process is the appropriate means for coordination. See 
Sec. 286.7(d)(1). 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 was 
not publicly known, then to disclose that law enforcement interest could 
cause an unwarranted invasion of the personal privacy of the third 
party. Similarly, if a DoD Component 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 cause national security harms. 
In such instances, in order to avoid harm to an interest protected by an 
applicable exemption, the DoD Component that received the request should 
coordinate with the originating DoD Component or agency to seek its 
views the disclosure of the record. The release determination for the 
record should then be conveyed to the requester by the DoD Component 
that originally received the request.
    (4) Timing of responses to consultations and referrals. All 
consultations and referrals received by the DoD Component will be 
processed according to the date that the FOIA request was initially 
received by a Federal agency.
    (5) Agreements regarding consultations and referrals. DoD Components 
may establish written agreements with other DoD Components or other 
Federal agencies to eliminate the need for consultations or referrals 
with respect to particular types of records, providing these agreements 
do not conflict with this rule, or another law, rule, or regulation.

[82 FR 1197, Jan. 5, 2017, as amended at 83 FR 5197, Feb. 6, 2018]



Sec. 286.8  Timing of responses to requests.

    (a) In general. DoD Components ordinarily will respond to requests 
on a first-in/first-out basis according to their order of receipt. In 
instances involving misdirected requests that are re-routed pursuant to 
Sec. 286.7(c), the response time will commence on the date that the 
request is received by the appropriate DoD Component's FOIA RSC, but in 
any event not later than 10 working days after the request is first 
received by any DoD Component's FOIA RSC that is designated to receive 
requests.
    (b) Multitrack processing. All DoD Components must designate a 
specific track for requests that are granted expedited processing in 
accordance with the standards set forth in the FOIA and paragraph (e) of 
this section. DoD Components may also designate additional processing 
tracks that distinguish between simple and more complex requests based 
on the estimated amount of work or time needed to process the request. 
Among the factors a DoD Component may consider are the number of records 
requested, the number of pages involved in processing the request and 
the need for consultations or

[[Page 846]]

referrals. DoD Components should advise requesters of the track into 
which their request falls and, when appropriate, shall offer the 
requesters an opportunity to narrow or modify their request so that it 
can be placed in a different processing track.
    (c) Unusual circumstances. Whenever the statutory time limit for 
processing a request cannot be met because of ``unusual circumstances,'' 
as defined in the FOIA, and the DoD Component extends the time limit on 
that basis, the DoD Component must, before expiration of the 20-day 
period to respond, notify the requester in writing of the unusual 
circumstances involved and of the date by which processing of the 
request can be expected to be completed. See 5 U.S.C. 552(a)(6)(B). 
Where the extension exceeds 10 working days, the DoD Component shall, in 
accordance with the FOIA, provide the requester with an opportunity to 
modify the request or arrange an alternative time period for processing 
the original or modified request. Furthermore, the requester will be 
advised that the DoD Component FOIA Public Liaison is available for this 
purpose and of their right to seek dispute resolution services from 
OGIS.
    (d) Aggregating requests. For the purposes of satisfying unusual 
circumstances under the FOIA, DoD Components may aggregate requests in 
cases where it reasonably appears that multiple requests, submitted 
either by a requester or by a group of requesters acting in concert, 
constitute a single request that would otherwise involve unusual 
circumstances. DoD Components will not aggregate multiple requests that 
involve unrelated matters.
    (e) Expedited processing. (1) The FOIA establishes two reasons for 
expediting the processing of initial FOIA requests: Compelling need and 
other cases determined by the agency. See 5 U.S.C. 552(a)(6)(E). 
Administrative appeals may be expedited for the same reasons. The DoD 
Components must make expedited processing determinations within 10 
calendar days after receipt of a request that meets the criterion of 
reasonably describing the requested records in Sec. 286.5(a). Once the 
DoD Component decides to grant expedited processing, the request is 
processed as soon as practicable. Adverse actions by DoD Components on 
requests for expedited processing, or a failure to respond to those 
requests in a timely manner, are subject to judicial review.
    (i) Compelling need. Expedited processing is granted to a requester 
upon a specific request for such and when the requester demonstrates a 
compelling need for the information. A compelling need exists when:
    (A) The failure to obtain requested records on an expedited basis 
could reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual, or
    (B) The information is urgently needed by an individual primarily 
engaged in disseminating information in order to inform the public 
concerning actual or alleged government activity.
    (ii) DoD additional expedited processing circumstances. If the DoD 
Component decides to expedite the request for either of the following 
reasons, the request will be processed in the expedited track behind 
those requests qualifying for expedited processing as a compelling need.
    (A) Imminent loss of due process rights. Expedited processing is 
granted to a requester if loss of substantial due process rights is 
imminent.
    (B) Humanitarian need. Expedited processing is granted when the 
failure to obtain the requested information on an expedited basis could 
reasonably be expected to harm substantial humanitarian interests.
    (2) A request for expedited processing may be made at any time. 
Requests for expedited processing must be submitted to the DoD Component 
that maintains the records. When making a request for expedited 
processing of an administrative appeal, the request should be submitted 
to the DoD Component's appellate authority.
    (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. For requesters 
seeking expedited processing under paragraph (e)(1)(i)(B) of this 
section, a requester who is not a full-time member of the news media 
must establish that the requester is a

[[Page 847]]

person whose primary professional activity or occupation is information 
dissemination, and not an incidental or secondary activity, though it 
need not be the requester's sole occupation. Such a requester also must 
establish a particular urgency to inform the public about the government 
activity involved in the request--one that extends beyond the public's 
right to know about government activity generally. The existence of 
numerous articles published on a given subject can be helpful in 
establishing the requirement that there be an ``urgency to inform'' the 
public on the topic. Requests for expedited processing under paragraph 
(e)(1)(ii)(A) of this section must include a description of the due 
process rights that would be lost. This statement must be with the 
request for expedited processing for it to be considered and responded 
to within the 10 calendar days required for decisions on expedited 
access.
    (4) A DoD Component shall notify the requester within 10 calendar 
days of the receipt of a request for expedited processing of its 
decision whether to grant or deny expedited processing. If expedited 
processing is granted, the request shall be placed in the processing 
track for expedited requests, and processed as soon as practicable. If a 
request for expedited processing is denied, any appeal of that decision 
shall be acted upon expeditiously.



Sec. 286.9  Responses to requests.

    (a) In general. DoD FOIA RSCs will, to the extent practicable, 
communicate with requesters having access to the Internet using 
electronic means, such as email or web portal.
    (b) Acknowledgments of requests. DoD Components will acknowledge 
requests in writing and assign individualized tracking numbers. DoD 
Components will include these tracking numbers and any tracking numbers 
used by FOIA requesters in all correspondence.
    (c) Estimated dates of completion and interim responses. Upon 
request, the DoD Component will provide an estimated date by which the 
DoD Component expects to provide a response to the requester. If a 
request involves a voluminous amount of material or searches in multiple 
locations, the DoD Component may provide interim responses, releasing 
the records on a rolling basis.
    (d) Grants of requests. Once a DoD Component makes a determination 
to grant a request in full or in part, it shall notify the requester in 
writing. The DoD Component also shall inform the requester:
    (1) Of any fees charged under Sec. 286.12; and
    (2) That they may contact the DoD Component FOIA Public Liaison for 
further assistance.
    (e) Adverse determinations of requests. A DoD Component making an 
adverse determination denying a request in any respect will notify the 
requester of that determination in writing. Adverse determinations, or 
denials of requests, include decisions that the requested record is 
exempt, in whole or in part; the request does not reasonably describe 
the records sought; 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. Adverse determinations also 
include denials involving fees or fee waiver matters or denials of 
requests for expedited processing.
    (f) Content of denial. The denial will include:
    (1) The name and title or position of the IDA;
    (2) A brief statement of the reasons for the denial, including any 
FOIA exemption applied by the DoD Component in denying the request;
    (3) An estimate of the volume of any records or information 
withheld, such as the number of pages or some 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;
    (4) For any information denied under Exemption 1, the applicable 
section or sections of the appropriate Executive order on classification 
that establishing continued classification of the information;

[[Page 848]]

    (5) For any information denied under Exemption 3, the specific 
statute relied upon to deny the information along with a short 
description of the statute;
    (6) A statement that the requester must appeal no later than 90 days 
after the date of the denial and along with instructions on how to 
appeal to the DoD Component appellate authority. The instructions will 
include the appellate authority's duty title, the mailing address for 
the appeal, and instructions on how the requester can appeal 
electronically; and
    (7) A statement advising the requester of their right to seek 
dispute resolution services from the DoD Component FOIA Public Liaison 
or OGIS.
    (g) Markings on released documents. Records disclosed in part will 
be marked clearly to show the amount of information deleted and the 
exemption under which the deletion was made unless doing so would harm 
an interest protected by an applicable exemption. The location of the 
information deleted also will be indicated on the record, if technically 
feasible.
    (h) Use of record exclusions. (1) In the event that a DoD Component 
identifies records that may be subject to exclusion from the 
requirements of the FOIA pursuant to 5 U.S.C. 552(c), the DoD Component 
should confer with the Directorate for Oversight and Compliance, which 
will confer with the Department of Justice, Office of Information Policy 
(OIP), to obtain approval to apply the exclusion.
    (2) A DoD Component invoking an exclusion shall maintain an 
administrative record of the process of invocation and approval of the 
exclusion by OIP.



Sec. 286.10  Confidential Commercial Information.

    (a) Definitions.
    (1) Confidential commercial information means commercial or 
financial information obtained by the DoD Component from a submitter 
that may be protected from disclosure under Exemption 4 of the FOIA, 5 
U.S.C. 552(b)(4).
    (2) Submitter means any person or entity, including a corporation, 
State, or foreign government, but not including another Federal 
Government entity, that provides confidential commercial information, 
either directly or indirectly to the Federal Government.
    (b) Designation of confidential commercial information. A submitter 
of confidential commercial information must use good faith efforts to 
designate by appropriate markings, at the time of submission, any 
portion of its submission that it considers to be protected from 
disclosure under Exemption 4. These designations shall expire 10 years 
after the date of submission unless the submitter requests and provides 
justification for a longer designation period.
    (c) When notice to submitters is required. (1) The DoD Component 
shall promptly provide written notice to the submitter of confidential 
commercial information whenever records containing such information are 
requested under the FOIA if the DoD Component determines that it may be 
required to disclose the records, provided:
    (i) The requested information has been designated in good faith by 
the submitter as information considered protected from disclosure under 
Exemption 4; or
    (ii) The DoD Component has a reason to believe that the requested 
information may be protected from disclosure under Exemption 4, but has 
not yet determined whether the information is protected from disclosure.
    (2) The notice shall include a copy of the requested records or 
portions of records containing the information. In cases involving a 
voluminous number of submitters, the DoD Component may post or publish a 
notice in a place or manner reasonably likely to inform the submitters 
of the proposed disclosure, instead of sending individual notifications.
    (d) Exceptions to submitter notice requirements. The notice 
requirements of this section shall not apply if:
    (1) The DoD Component determines that the information is exempt 
under the FOIA, and therefore will 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 a statute other 
than the

[[Page 849]]

FOIA or by a regulation issued in accordance with the requirements of 
Executive Order 12600 of June 23, 1987; or
    (4) The designation made by the submitter under paragraph (b) of 
this section appears obviously frivolous. In such case, the agency shall 
give the submitter written notice of any final decision to disclose the 
information within a reasonable number of days prior to a specified 
disclosure date.
    (e) Opportunity to object to disclosure. (1) The DoD Component shall 
specify a reasonable time period within which the submitter must respond 
to the notice referenced in paragraph (c) of this section.
    (2) If a submitter has any objections to disclosure, it should 
provide the DoD Component a detailed written statement that specifies 
all grounds for withholding the particular information under any 
exemption of the FOIA. In order to rely on Exemption 4 as basis for 
nondisclosure, the submitter must explain why the information 
constitutes a trade secret or commercial or financial information that 
is confidential.
    (3) A submitter who fails to respond within the time period 
specified in the notice shall be considered to have no objection to 
disclosure of the information. The DoD Component is not required to 
consider any information received after the date of any disclosure 
decision. Any information provided by a submitter under this section may 
itself be subject to disclosure under the FOIA.
    (f) Analysis of objections. The DoD Component shall consider a 
submitter's objections and specific grounds for nondisclosure in 
deciding whether to disclose the requested information.
    (g) Notice of intent to disclose. Whenever the DoD Component decides 
to disclose information over the objection of a submitter, the DoD 
Component shall provide the submitter written notice, which shall 
include:
    (1) A statement of the reasons why each of the submitter's 
disclosure objections was not sustained;
    (2) A description of the information to be disclosed or copies of 
the records as the DoD Component intends to release them; and
    (3) A specified disclosure date, which shall be a reasonable time 
after the notice.
    (h) Notice of FOIA lawsuit. Whenever a requester files a lawsuit 
seeking to compel the disclosure of confidential commercial information, 
the DoD Component shall promptly notify the submitter.
    (i) Requester notification. The DoD Component shall notify a 
requester whenever it provides the submitter with notice and an 
opportunity to object to disclosure; whenever it notifies the submitter 
of its intent to disclose the requested information over the submitter's 
objections; and whenever a submitter files a lawsuit to prevent the 
disclosure of the information.



                            Subpart D_Appeals



Sec. 286.11  Processing of appeals.

    (a) Requirements for making an appeal. A requester may appeal any 
adverse determinations to the DoD Component's appellate authority. 
Examples of adverse determinations are provided in Sec. 286.9(e). 
Appeals can be submitted by mail or online in accordance with the 
requirements provided in the DoD Component's final response. Requesters 
that are not provided with appeal requirements should contact the FOIA 
RSC processing their request to obtain the requirements. The requester 
must make the appeal in writing and to be considered timely it must be 
postmarked, or in the case of electronic submissions, transmitted, 
within 90 calendar days after the date of the response. The appeal 
should clearly identify the determination that is being appealed and the 
assigned request number. To facilitate handling, the requester should 
mark both the appeal letter and envelope, or subject line of the 
electronic transmission, ``Freedom of Information Act Appeal.''
    (b) Adjudication of appeals. (1) The Heads of the following DoD 
Components will serve as, or appoint an appropriate official to serve 
as, the component's appellate authority: Department of the Army, 
Department of the Navy, Department of the Air Force, Defense Commissary 
Agency, Defense

[[Page 850]]

Contract Audit Agency, Defense Contract Management Agency, Defense 
Finance and Accounting Service, Defense Health Agency, Defense 
Information Systems Agency, Defense Intelligence Agency, Defense 
Logistics Agency, Defense Security Service, Defense Threat Reduction 
Agency, National Geospatial-Intelligence Agency, National Reconnaissance 
Office, National Security Agency/Central Security Service, and the 
Office of the Inspector General of the Department of Defense.
    (2) The Deputy Chief Management Officer (DCMO) will serve as the 
appellate authority for the OSD and the Office of the Chairman of the 
Joint Chiefs of Staff and the Joint Staff, Armed Services of Contract 
Appeals, Defense Technical Information Center, Joint Personnel Recovery 
Agency, DoD Education Activity, National Guard Bureau, United States 
Africa Command, United States Central Command, United States European 
Command, United States Northern Command, United States Pacific Command, 
United States Special Operations Command, United States Strategic 
Command, and United States Transportation Command. The DCMO may delegate 
this authority to an appropriate official of the DCMO staff.
    (3) An appeal will normally not be adjudicated if the request 
becomes a matter of FOIA litigation. This decision should be made after 
consultation with the Department of Justice attorney responsible for the 
litigation.
    (c) Decisions on appeals. A decision on an appeal must be made in 
writing and signed by the appellate authority. A decision that upholds a 
DoD Component's determination in whole or in part will contain a 
statement that identifies the reasons for the affirmance, including any 
FOIA exemptions applied. The decision will provide the requester with 
notification of the statutory right to file a lawsuit. If a decision is 
remanded or modified on appeal, the requester will be notified of that 
determination in writing. The DoD Component will thereafter further 
process the request in accordance with that appeal determination and 
respond directly to the requester.
    (d) When an appeal is required. A requester generally must first 
submit a timely administrative appeal before seeking review by a court 
of a DoD Component's adverse determination.



                             Subpart E_Fees



Sec. 286.12  Schedule of fees.

    (a) In general. DoD Components shall charge for processing requests 
under the FOIA in accordance with the provisions of this section and 
with the OMB Guidelines. For purposes of assessing fees, the FOIA 
establishes three categories of requesters: Commercial; non-commercial 
scientific or educational institutions or news media; and all other 
requesters. Different fees are assessed depending on the category. 
Requesters may seek a fee waiver. DoD Components shall consider such 
requests in accordance with the requirements in paragraph (m) of this 
section. In order to resolve any fee issues that arise under this 
section, a DoD Component may contact a requester for additional 
information. DoD Components shall ensure that searches, review, and 
duplication are conducted in the most efficient and least expensive 
manner. Requesters must pay fees by check or money order made payable to 
the Treasury of the United States.
    (b) Definitions. For purposes of this section:
    (1) Commercial use request is a request that asks for information 
for a use or purpose that furthers a commercial, trade, or profit 
interest, which can include furthering those interests through 
litigation. A DoD Component's decision to place a requester in the 
commercial use category will be made on a case-by-case basis based on 
the requester's intended use of the information. DoD Components will 
notify requesters of their placement in this category.
    (2) Direct costs are those expenses that a DoD Component incurs in 
searching for and, in the case of commercial use requests, reviewing 
records in order to respond to a FOIA request. DoD direct costs for 
human activity are at Table 1.

[[Page 851]]



                  Table 1--FOIA Hourly Processing Fees
------------------------------------------------------------------------
              Type                        Grade             Hourly rate
------------------------------------------------------------------------
Administrative.................  E-9/GS-8 and below.....             $24
Professional...................  Contractor/O-1 to O-6/W-             48
                                  1 to W-5/GS-9 to GS-15.
Executive......................  O-7 and above and                   110
                                  Senior Executive
                                  Service.
------------------------------------------------------------------------

    (3) Duplication is reproducing a copy of a record, or of the 
information contained in it, necessary to respond to a FOIA request.
    (4) Educational institution is any school that operates a program of 
scholarly research. A requester in this fee category must show that the 
request is made in connection with his or her role at the educational 
institution. DoD Components may seek verification from the requester 
that the request is in furtherance of scholarly research and will advise 
requesters of their placement in this category.
    (5) Noncommercial scientific institution is an institution that is 
not operated on a ``commercial'' basis, as defined in paragraph (b)(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. A requester in this category 
must show that the request is authorized by and is made under the 
auspices of a qualifying institution and that the records are sought to 
further scientific research and are not for a commercial use. DoD 
Components will advise requesters of their placement in this category.
    (6) Representative of the news media is any person or entity that 
gathers information of potential interest to a segment of the public, 
uses its editorial skills to turn raw materials into a distinct work, 
and distributes that work to an audience. 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 that broadcast ``news'' to the public at 
large and publishers of periodicals that disseminate ``news'' and make 
their products available through a variety of means to the general 
public, including news organizations that disseminate solely on the 
Internet. A request for records supporting the news-dissemination 
function of the requester shall not be considered to be for a commercial 
use. ``Freelance'' journalists who demonstrate a solid basis for 
expecting publication through a news media entity shall be considered as 
a representative of the news media. A publishing contract would provide 
the clearest evidence that publication is expected; however, DoD 
Components shall also consider a requester's past publication record in 
making this determination. DoD Components will advise requesters of 
their placement in this category.
    (7) Review is the examination of a record located in response to a 
request in order to determine whether any portion of it is exempt from 
disclosure. Review time includes processing any record for disclosure, 
such as doing all that is necessary to prepare the record for 
disclosure, including the process of redacting the record and marking 
the appropriate exemptions. Review costs are properly charged even if a 
record ultimately is not disclosed. Review time also includes time spent 
both obtaining and considering any formal objection to disclosure made 
by a confidential commercial information submitter under Sec. 286.11, 
but it does not include time spent resolving general legal or policy 
issues regarding the application of exemptions.
    (8) Search is the process of looking for and retrieving records or 
information responsive to a request. Search time includes page-by-page 
or line-by-line identification of information within records and the 
reasonable efforts expended to locate and retrieve information from 
electronic records.
    (c) Fee category. Fees are assessed based on the category determined 
to be appropriate for the requester's category. The fee category of a 
requester that is an attorney or any other agent representing a client 
is determined by the fee category of the attorney's client. If the fee 
category of the client is

[[Page 852]]

not clear, then the DoD Components should ask the requester for 
clarification. If an attorney does not provide enough information to 
determine the fee category of the client, then the DoD Component may 
assign commercial fee category to the requester.
    (d) Charging fees. In responding to FOIA requests, DoD Components 
will charge the following fees unless a waiver or reduction of fees has 
been granted under paragraph (m) of this section. Because the fee 
amounts provided below already account for the direct costs associated 
with a given fee type, DoD Components should not add any additional 
costs to charges calculated under this section.
    (1) Search. (i) Requests made by educational institutions, 
noncommercial scientific institutions, or representatives of the news 
media are not subject to search fees. Search fees shall be charged for 
all other requesters, subject to the restrictions of paragraph (e) of 
this section. DoD Components may properly charge for time spent 
searching even if they do not locate any responsive records or if they 
determine that the records are entirely exempt from disclosure.
    (ii) For each quarter hour spent by personnel searching for 
requested records, including electronic searches that do not require new 
programming, the fees shall be charged as listed at Table 1.
    (iii) Requesters will be charged the direct costs associated with 
conducting any search that requires the creation of a new computer 
program to locate the requested records. These costs will not include 
the time it takes to run the program and extract data. Requesters will 
be notified of the costs associated with creating such a program and 
must agree to pay the associated costs before the costs may be incurred.
    (iv) For requests that require the retrieval of records stored by a 
DoD Component at a Federal records center operated by NARA, additional 
costs will be charged in accordance with the Transactional Billing Rate 
Schedule established by NARA.
    (2) Duplication. Duplication fees will be charged to all requesters, 
subject to the restrictions of paragraph (e) of this section. DoD 
Components will honor a requester's preference for receiving a record in 
a particular form or format where it is readily reproducible by the DoD 
Component in the form or format requested. Where photocopies are 
supplied, DoD Components will provide one copy per request at $.15 per 
page. For copies of records produced on tapes, disks, or other media, or 
other forms of duplication, DoD Components will charge the direct costs 
of producing the copy, including operator time in accordance with Table 
1. DoD Components will charge record reproduction fees at the hourly 
rates in Table 1 if the creation of the electronic copies requires 
unique security procedures incurring considerable operator time, costing 
more than printing paper copies.
    (3) Review. Review fees will be charged to requesters who make 
commercial use requests. Review fees shall be assessed in connection 
with the initial review of the record, i.e., the review conducted by a 
DoD Component to determine whether an exemption applies to a particular 
record or portion of a record. No charge will be made for review at the 
administrative appeal stage of exemptions applied at the initial review 
stage. However, if a particular exemption is deemed to no longer apply, 
any costs associated with a DoD Component's re-review of the records in 
order to consider the use of other exemptions may be assessed as review 
fees. Review fees will be charged at the same rates as those charged for 
a search under paragraph (d)(1)(ii) of this section.
    (e) Restrictions on charging fees. (1) When a DoD Component 
determines that a requester is an educational institution, non-
commercial scientific institution, or representative of the news media, 
and the records are not sought for commercial use, no search fees will 
be charged.
    (2) If a DoD Component fails to comply with the time limits in which 
to respond to a request it may not charge search fees, or, in the 
instances of requests from requesters described in paragraph (e)(1) of 
this section, may not charge duplication fees except as described in 
(e)(2)(i) through (iii).
    (i) When a DoD Component determines that unusual circumstances, as

[[Page 853]]

those terms are defined by the FOIA, apply to the processing of the 
request, and provides timely written notice to the requester, then the 
DoD Component is granted an additional ten days until the fee 
restriction in paragraph (e)(2) of this section applies.
    (ii) When a DoD Component determines that unusual circumstances 
apply and more than 5,000 pages are necessary to respond to the request, 
provides timely written notice to the requester, and has discussed with 
the requester (or made three good faith attempts to do so) on how the 
requester can effectively limit the scope of the request, the fee 
restriction in paragraph (e)(2) of this section does not apply.
    (iii) If a court has determined that exceptional circumstances 
exist, as defined by the FOIA, a failure to comply with the time limits 
shall be excused for the length of time provided by the court order.
    (3) No search or review fees will be charged for a quarter-hour 
period unless more than half of that period is required for search or 
review.
    (4) Except for requesters seeking records for a commercial use, DoD 
Components shall provide without charge:
    (i) The first 100 pages of duplication (or the cost equivalent for 
other media); and
    (ii) The first two hours of search.
    (5) No fee will be charged when the total fee, after deducting the 
100 free pages (or its cost equivalent) and the first two hours of 
search, is equal to or less than $25.
    (f) Notice of anticipated fees in excess of $25.00. (1) When a DoD 
Component determines or estimates that the fees to be assessed in 
accordance with this section will exceed $25.00, the DoD Component shall 
notify the requester of the actual or estimated amount of the fees, 
including a breakdown of the fees for search, review or duplication, 
unless the requester has indicated a willingness to pay fees as high as 
those anticipated. If only a portion of the fee can be estimated 
readily, the DoD Component will advise the requester accordingly. If the 
requester is a noncommercial use requester, the notice shall specify 
that the requester is entitled to the statutory entitlements of 100 
pages of duplication at no charge and, if the requester is charged 
search fees, two hours of search time at no charge, and will advise the 
requester whether those entitlements have been provided.
    (2) When a requester is notified that the actual or estimated fees 
are in excess of $25.00, the request will not be considered received and 
further work will not be completed until the requester commits in 
writing to pay the actual or estimated total fee, or designates some 
amount of fees the requester is willing to pay, or in the case of a 
noncommercial use requester who has not yet been provided with the 
requester's statutory entitlements, designates that the requester seeks 
only that which can be provided by the statutory entitlements. The 
requester must provide the commitment or designation in writing, and 
must, when applicable, designate an exact dollar amount the requester is 
willing to pay. DoD Components are not required to accept payments in 
installments.
    (3) If the requester has indicated a willingness to pay some 
designated amount of fees, but the DoD Component estimates that the 
total fee will exceed that amount, the DoD Component will toll the 
processing of the request when it notifies the requester of the 
estimated fees in excess of the amount the requester has indicated a 
willingness to pay. The DoD Component will inquire whether the requester 
wishes to revise the amount of fees the requester is willing to pay or 
modify the request. Once the requester responds, the time to respond 
will resume from where it was at the date of the notification.
    (4) DoD Components will make available their FOIA Public Liaison or 
other FOIA professional to assist any requester in reformulating a 
request to meet the requester's needs at a lower cost.
    (g) Charges for other services. Although not required to provide 
special services, if a DoD Component chooses to do so as a matter of 
administrative discretion, the direct costs of providing the service 
shall be charged. Examples of such services include certifying that 
records are true copies, providing multiple copies of the same document, 
or

[[Page 854]]

sending records by means other than first class mail.
    (h) Charging interest. DoD Components may charge interest on any 
unpaid bill starting on the 31st day following the date of billing the 
requester. Interest charges shall be assessed at the rate provided in 31 
U.S.C. 3717 and will accrue from the billing date until payment is 
received by the DoD Component. DoD Components shall follow the 
provisions of the Debt Collection Act of 1982 (Pub. L. 97-365, 96 Stat. 
1749), as amended, and its administrative procedures, including the use 
of consumer reporting agencies, collection agencies, and offset.
    (i) Aggregating requests. When a DoD Component reasonably believes 
that a requester or a group of requesters acting in concert is 
attempting to divide a single request into a series of requests for the 
purpose of avoiding fees, the DoD Component may aggregate those requests 
and charge accordingly. DoD Components may presume that multiple 
requests of this type made within a 30-day period have been made in 
order to avoid fees. For requests separated by a longer period, DoD 
Components will aggregate them only where there is a reasonable basis 
for determining that aggregation is warranted in view of all the 
circumstances involved. Multiple requests involving unrelated matters 
shall not be aggregated.
    (j) Advance payments. (1) For requests other than those described in 
paragraphs (k)(2) or (3) of this section, a DoD Component shall not 
require the requester to make an advance payment before work is 
commenced or continued on a request.
    (2) When a DoD Component determines or estimates that a total fee to 
be charged under this section will exceed $250.00, it may require that 
the requester make an advance payment up to the amount of the entire 
anticipated fee before beginning to process the request. A DoD Component 
may elect to process the request prior to collecting fees when it 
receives a satisfactory assurance of full payment from a requester with 
a history of prompt payment.
    (3) Where a requester has previously failed to pay a properly 
charged FOIA fee to any agency within 30 calendar days of the billing 
date, a DoD Component may require that the requester pay the full amount 
due, plus any applicable interest on that prior request, and the DoD 
Component may require that the requester make an advance payment of the 
full amount of any anticipated fee before the DoD Component begins to 
process a new request or continues to process a pending request or any 
pending appeal. Where a DoD Component has a reasonable basis to believe 
that a requester has misrepresented the requester's identity in order to 
avoid paying outstanding fees, it may require that the requester provide 
proof of identity.
    (4) In cases in which a DoD Component requires advance payment, the 
request shall not be considered received and further work will not be 
completed until the required payment is received. If the requester does 
not pay the advance payment within 30 calendar days after the date of 
the DoD Component's fee determination, the request will be closed.
    (k) Other statutes specifically providing for fees. The fee schedule 
of this section does not apply to fees charged under any statute that 
specifically requires an agency to set and collect fees for particular 
types of records. In instances where records responsive to a request are 
subject to a statutorily-based fee schedule program, the DoD Component 
shall inform the requester of the contact information for that program.
    (l) Requirements for waiver or reduction of fees. (1) Requesters may 
seek a waiver of fees by submitting a written application specifically 
demonstrating how disclosure of the requested information is in the 
public interest because it is likely to contribute significantly to 
public understanding of the operations or activities of the government 
and is not primarily in the commercial interest of the requester.
    (2) A DoD Component will furnish records responsive to a request 
without charge or at a reduced rate when it determines, based on all 
available information, that the following three factors are satisfied:

[[Page 855]]

    (i) Disclosure of the requested information would shed light on the 
operations or activities of the 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.
    (ii) Disclosure of the requested information would be likely to 
contribute significantly to public understanding of those operations or 
activities. This factor is satisfied when the following criteria are 
met:
    (A) Disclosure of the requested records must be meaningfully 
informative about government operations or activities. The disclosure of 
information that already is in the public domain, in either the same or 
a substantially identical form, would not be meaningfully informative if 
nothing new would be added to the public's understanding.
    (B) 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 shall be 
considered. DoD Components will presume that a representative of the 
news media satisfies this criterion.
    (iii) 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, DoD Components shall consider the following criteria:
    (A) DoD Components 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 will be given an opportunity to provide explanatory 
information regarding this consideration.
    (B) If there is an identified commercial interest, the DoD Component 
will determine whether that is the primary interest furthered by the 
request. A waiver or reduction of fees is justified when the 
requirements of paragraphs (m)(2)(i) and (ii) of this section are 
satisfied and any commercial interest is not the primary interest 
furthered by the request. DoD Components ordinarily will presume that 
when a news media requester has satisfied the factors in paragraphs 
(m)(2)(i) and (ii) of this section, the request is not primarily in the 
commercial interest of the requester. Disclosure to data brokers or 
others who merely compile and market government information for direct 
economic return shall not be presumed to primarily serve the public 
interest.
    (3) Where only some of the records to be released satisfy the 
requirements for a waiver of fees, a waiver shall be granted for those 
records.
    (4) Requests for a waiver or reduction of fees should be made when 
the request is first submitted to the DoD Component and should address 
the criteria referenced in paragraphs (l)(1) and (2) 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 is required to 
pay any costs incurred up to the date the fee waiver request was 
received.
    (m) Tracking of costs. DoD Components will track processing costs 
for each FOIA request on DD Form 2086, ``Record of Freedom of 
Information (FOI) Processing Cost,'' or by using DD Form 2086-2, 
``Freedom of Information (FOI) Consultation and Request Summary''.



Sec. 286.13  Fees for technical data.

    (a) Technical data shall be released to a requester after all 
reasonable costs of search, review, and duplication are paid by the 
requester as authorized by 10 U.S.C. 2328.
    (b) Technical data means information (regardless of the form or 
method of the recording) of a scientific or technical nature (including 
computer software documentation) relating to the supplies procured by 
the DoD. This includes information in the form of blueprints, drawings, 
photographs, plans, instructions or documentation. This

[[Page 856]]

term does not include computer software or financial, administrative, 
cost or pricing, or management data or other information incidental to 
contract administration. Examples of technical data include research and 
engineering data, engineering drawings, and associated lists, 
specifications, standards, process sheets, manuals, technical reports, 
catalog item identification, and computer software documentation.
    (1) All reasonable costs as used in this sense are the full costs to 
the Federal Government of rendering the service, or fair market value of 
the service, whichever is higher. Fair market value shall be determined 
in accordance with commercial rates in the local geographical area. In 
the absence of a known market value, charges shall be based on recovery 
of full costs to the Federal Government. The full costs shall include 
all direct and indirect costs to conduct the search and to duplicate the 
records responsive to the request. Costs will be tracked on DD Form 
2086-1, ``Record of Freedom of Information (FOI) Processing Cost for 
Technical Data'' (available at http://www.dtic.mil/ whs/directives/
infomgt/ forms/eforms/dd2086-1.pdf).
    (2) The DoD Components will retain the fees received by the release 
of technical data under the FOIA, and will merge it with and make it 
available for the same purpose and the same time period as the 
appropriation from which the costs were incurred in complying with the 
FOIA request.
    (3) Table 2 will be used to determine document production fees.

         Table 2--FOIA Document Production Fees--Technical Data
------------------------------------------------------------------------
                          Type                                 Cost
------------------------------------------------------------------------
Aerial Photographs, Specifications, Permits, Charts,               $2.50
 Diagrams, Technical Drawings, Blueprints, and Other
 Technical Documents (per page or copy).................
Engineering Data:
    Aperture Cards, per card............................            3.00
        Silver Duplicate Negative.......................            3.50
        When Keypunched and Verified....................            1.00
        Diazo Duplicate Negative........................            3.50
        When Keypunched and Verified....................            3.00
    35 mm Roll Film, per frame..........................            1.00
    16 mm Roll Film, per frame..........................            0.65
    Paper Prints (engineering drawings), each (per                  0.30
     square foot).......................................
    Paper Reprints of Microfilm Images, each............            0.10
Other Technical Data Records:
    Paper Copy (standard size paper up to 8\1/2\ x 14,              0.15
     photocopier or printer)............................
    CD/DVD..............................................            5.00
    Microfiche Produced, each...........................            3.50
    Certification and Validation with Seal, each                   50.00
     document...........................................
------------------------------------------------------------------------

    (c) The DoD Components will waive the payment of costs required in 
paragraph (a) of this section that are greater than the costs that would 
be required for release of this same information under Sec. 286.12 if:
    (1) The FOIA request is made by a U.S. citizen or a U.S. 
corporation, and such citizen or corporation certifies that the 
technical data requested is required to enable it to submit an offer, or 
to determine whether it is capable of submitting an offer, to provide 
the product to which the technical data relates to the United States or 
a U.S. contractor. However, the DoD Components may require the citizen 
or corporation to pay a deposit in an amount equal to but not more than 
the cost of complying with the FOIA request, which will be refunded upon 
submission of an offer by the citizen or corporation;
    (2) The release of technical data is requested in order to comply 
with the terms of an international agreement; or
    (3) The DoD Component determines, in accordance with paragraph (m) 
of Sec. 286.12, that such a waiver is in the interest of the United 
States.



PART 286h_RELEASE OF ACQUISITION-RELATED INFORMATION--Table of Contents



Sec.
286h.1 Purpose.
286h.2 Applicability and scope.
286h.3 Policy.
286h.4 Responsibilities.

    Authority: Pub. L. 101-189.

    Source: 55 FR 28614, July 12, 1990, unless otherwise noted.

[[Page 857]]



Sec. 286h.1  Purpose.

    This part sets forth Department of Defense (DoD) policy for the 
release of acquisition-related information.



Sec. 286h.2  Applicability and scope.

    (a) This part applies to the Office of the Secretary of Defense 
(OSD), the Military Departments, the Chairman, Joint Chiefs of Staff and 
Joint Staff (CJCS), the Unified and Specified Commands, and the Defense 
Agencies (hereafter referred to collectively as ``DoD Components'').
    (b) This part is issued pursuant to section 822 of Public Law 101-
189, which requires the Department of Defense to prescribe a single 
uniform regulation for dissemination of, and access to, acquisition 
information.



Sec. 286h.3  Policy.

    (a) General. It is the Department of Defense's policy to make the 
maximum amount of acquisition-related information available to the 
public, and to respond promptly to specific requests from the public for 
such information, except for the information identified in paragraph (b) 
of this section, for which release is restricted.
    (b) Information for which release is restricted. The information 
identified below may be released only as set forth herein.
    (1) Release subject to statutory restrictions. This information may 
be released only in accordance with the applicable statutory 
requirements. Once the statutory requirements have been satisfied, the 
information may be released unless it falls within one of the categories 
described in the following paragraphs, in which case the policies 
governing release of information within those categories shall be 
followed.
    (2) Classified information. (i) Any information or material, 
regardless of its physical form or characteristics, that is owned by, 
produced by or for, or under the control of the United States 
Government, and which, for national security purposes, must be protected 
against unauthorized disclosure and is so designated or marked with the 
appropriate classification.
    (ii) Release, access, and dissemination of classified information 
shall be made through existing security channels in accordance with DoD 
5220.22-R;\1\ DoD 5220.22-M;\2\ and DoD 5200.1-R, \3\ which are 
implementing publications for safeguarding classified information 
release, access, and dissemination to United States and foreign 
concerns.
---------------------------------------------------------------------------

    \1\ Copies may be obtained, at cost, from the National Technical 
Information Services, 5285 Port Royal Road, Springfield, VA 22161.
    \2\ Copies may be obtained, at cost, from the Government Printing 
Office, ATTN: Superintendent of Documents, Washington, DC 20402.
    \3\ See footnote 1 to Sec. 286h.3(b)(2)(ii).
---------------------------------------------------------------------------

    (3) Contractor bid or proposal information. (i) This is information 
prepared by or on behalf of an offeror and submitted to the Government 
as a part of or in support of the offeror's bid or proposal to enter 
into a contract with the Government, the disclosure of which would place 
the offeror at a competitive disadvantage or jeopardize the integrity or 
the successful completion of the procurement. Contractor bid or proposal 
information includes cost or pricing data, profit data, overhead and 
direct labor rates, and manufacturing processes and techniques. 
Contractor bid or proposal information does not include information that 
is available to the public.
    (ii)(A) Sealed bids. (1) Prior to bid opening, no release or 
disclosure of contractor bid information shall be made to anyone other 
than those who are involved in the evaluation of the bids or to other 
individuals authorized by the Head of the DoD Component, or his or her 
designee.
    (2) After contract award, contractor bid information may be released 
or disclosed by those authorized by the Head of the DoD Component, or 
his or her designee, to make such release or disclosure, if the 
information to be released or disclosed is not subject to a restrictive 
legend authorized by Federal Acquisition Regulation (FAR) 52.215-12 or 
release is not otherwise restricted by law.
    (3) Negotiated procurements. Prior to contract award, no release or 
disclosure of contractor proposal information shall be made to anyone 
other than those who are involved in the evaluation of the proposals or 
the source selection or to other individuals authorized by the Head of 
the DoD

[[Page 858]]

Component, or his or her designee. DoD Components shall adopt procedures 
in accordance with FAR 15.413 to protect against release or disclosure 
of contractor proposal information. After contract award, contractor 
proposal information may be released or disclosed by those authorized by 
the Head of the DoD Component, or his or her designee, to make such 
release or disclosure, if the information to be released or disclosed is 
not subject to a restrictive legend authorized by FAR 15.509 or FAR 
52.215-12 or release is not otherwise restricted by law.
    (4) Source selection information. (i) This is information prepared 
or developed for use by the Government in connection with the selection 
of a bid or proposal for the award of a contract. Only the following 
information, including copies or extracts thereof, is source selection 
information:
    (A) Bid prices submitted in response to a Government solicitation 
for sealed bids or lists of such bid prices (applicable prior to bid 
opening only);
    (B) Proposed costs or prices submitted in response to a Government 
solicitation prior to award of the contract, a list of proposed costs or 
prices;
    (C) Source selection plans;
    (D) Technical evaluation plans;
    (E) Technical evaluations of competing proposals;
    (F) Cost or price evaluations of competing proposals;
    (G) Competitive range determinations;
    (H) Rankings of competitors;
    (I) The reports and evaluations or source selection boards, advisory 
councils, or the source selection authority (SSA); and
    (J) Any other information which:
    (1) If disclosed, would give an offeror a competitive advantage or 
jeopardize the integrity or successful completion of the procurement; 
and
    (2) Is marked with the legend ``Source Selection Information.''
    (ii) Release of or access to source selection information (SSI)--(A) 
Access to SSI. The SSA (including the contracting officer when the 
contracting officer is the SSA) shall restrict access to source 
selection information to only those Government employees directly 
involved in the source selection process or to those individuals who 
have been authorized by the Head of the DoD Component, or his or her 
designee, to have access to such information. If the contracting officer 
or the SSA have not been appointed, the Head of the DoD Component, or 
his or her designee, shall assure access to such information is properly 
restricted. Employees supervising or managing employees directly 
involved in the source selection process are not themselves by virtue of 
their positions directly involved in the source selection process.
    (B) Release of SSI--(1) Prior to contract award. Source selection 
information shall not be released prior to contract award unless the 
Head of the DoD Component, or his or her designee, determines that 
release is in the public interest and would not jeopardize the integrity 
or successful completion of the procurement. The information to be 
released shall only be released by the contracting officer. The 
contracting officer shall make release in a manner that does not provide 
any potential offeror with a competitive advantage.
    (2) After contract award. The need to protect source selection 
information generally ends with contract award. The contracting officer 
may release, or authorize the release of, any source selection 
information related to that contract award except: Source selection 
information specifically developed or prepared for use with more than 
one solicitation when there is a continuing need to protect that 
information; unless otherwise permitted by law, source selection 
information containing contractor data or extracts thereof which are 
protected by law; information which would reveal the relative merits or 
technical standing of the competitors or the evaluation scoring; and any 
pre-decisional or other information not subject to release under the 
Freedom of Information Act. Debriefings to unsuccessful offerors shall 
be conducted in accordance with FAR 15.1003 and Defense Federal 
Acquisition Regulation Supplement (DFARS) 215.1003(a).
    (5) Planning, programming, and budgetary information. (i) Planning, 
Programming, and Budgeting System (PPBS) documents and supporting data 
bases are not to be disclosed outside the Department of Defense (DoD) 
and

[[Page 859]]

other governmental agencies directly involved in the defense planning 
and resource allocation process (e.g., the Office of Management and 
Budget). PPBS papers and associated data set forth the details of 
proposed programs and plans. Access to this material by those not 
directly involved in the PPBS process undermines the confidentiality 
necessary for the Secretary and Deputy Secretary to obtain candid advice 
on the content of the defense program. Also, access to PPBS information 
by private firms seeking contracts with the Department may pose ethical, 
even criminal, problems for those involved and reduce effective 
competition in the contract awards process.
    (ii)(A) Requests for exceptions to this limitation may be granted on 
a case-by-case basis to meet compelling needs, after coordination with 
the Office of General Counsel, by the Head of the OSD office responsible 
for the PPBS phase to which the document or data base pertains; the 
Under Secretary of Defense (Policy) for the planning phase; the 
Assistant Secretary of Defense (Program Analysis and Evaluation) for 
programming; and the Comptroller, DoD for budgeting. A list of the 
current major documents and data bases for each PPBS phase is in 
paragraph (B)(5)(11)(C) of this section; all other PPBS materials are 
also controlled under this policy.
    (B) Disclosure of PPBS information to Congress and the General 
Accounting Office (GAO) is covered by statute and other procedures.
    (C) Major PPBS Documents and Data Bases by Phase.

                             Planning Phase

    (1) Defense Planning Guidance.

                            Programming Phase

    (2) Fiscal Guidance (when separate from Defense Planning Guidance);
    (3) Program Objective Memoranda (POM);
    (4) POM Defense Program (formerly FYDP) documents (POM Defense 
Program, Procurement Annex, RDT&E Annex);
    (5) Program Review Proposals;
    (6) Issue Papers (aka, Major Issue Papers, Tier II Issue Papers, 
Cover Briefs);
    (7) Proposed Military Department Program Reductions (or Program 
Offsets);
    (8) Tentative Issue Decision Memoranda;
    (9) Program Decision Memoranda;

                             Budgeting Phase

    (10) Defense Program (formerly FYDP) documents for September and 
President's Budget Estimate submissions including Defense Program 
Procurement, RDT&E and Construction Annexes;
    (11) Classified P-1, R-1 and C-1;
    (12) Program Budget Decisions/Defense Management Review Decisions;
    (13) Reports Generated by the Automated Budget Review System (BRS);
    (14) DD Form 1414 Base for Programming;
    (15) DD Form 1416 Report of Programs;
    (16) Contract Award Reports;
    (17) Congressional Data Sheets.
    (iii) Contractor requests for information contained in the National 
Military Strategy Document (including annexes) and the Chairman's 
Program Assessment Document (including annexes and comments) shall be 
forwarded to the CJCS who shall determine on a case-by-case basis what 
information, if any, is releasable to the contractor.
    (6) Documents that disclose the Government's negotiating position. 
Documents that would disclose the government's negotiating position 
(such as pre-negotiation business clearances and positions and 
government cost estimates) or would adversely impact the government 
negotiating strategy shall not be released.
    (7) Drafts and working papers. Drafts and working papers that would 
otherwise be releasable under paragraph 286h.3(a) shall not be released 
where their release would inhibit the development of agency positions, 
jeopardize the free exchange of information that is part of the 
deliberative process, or compromise the decision-making process.
    (c) Freedom of Information Act. Where a request for information, the 
release of which is restricted under paragraph 286h.3(b) is made under 
the Freedom of Information Act, the request shall be forwarded to the 
appropriate official

[[Page 860]]

for disposition in accordance with DoD 5400.7-R. \4\ Requests for 
contractor bid or proposal information pursuant to the Freedom of 
Information Act shall be subject to subparagraph 5-207 a. of DoD 5400.7-
R, which requires notice to a non-United States Government source of a 
record.
---------------------------------------------------------------------------

    \4\ See footnote 1 to Sec. 286h.3(b)(2)(ii).
---------------------------------------------------------------------------



Sec. 286h.4  Responsibilities.

    (a) The Under Secretary of Defense (Acquisition) shall be 
responsible for establishing uniform policies and procedures for the 
release of acquisition-related information.
    (b) The Under Secretary of Defense (Policy), Assistant Secretary of 
Defense (Program Analysis and Evaluation) and Comptroller, DoD are 
responsible for adjudicating requests for access to Planning, 
Programming and Budgeting information pertaining to their respective 
phases of the PPB system.
    (c) The Head of each DoD Component shall assure that procedures for 
the release of acquisition-related information are consistent with the 
policy contained in this Directive and shall not impose any additional 
restrictions on release of such information. These procedures shall 
specifically identify the individuals authorized to release and transmit 
acquisition-related information.

[[Page 861]]



                      SUBCHAPTER O_PRIVACY PROGRAM





PART 310_PROTECTION OF PRIVACY AND ACCESS TO AND AMENDEMENT
OF INDIVIDUAL RECORDS UNDER THE PRIVACY ACT OF 1974--
Table of Contents



                      Subpart A_General Provisions

Sec.
310.1 Purpose.
310.2 Definitions.

         Subpart B_Requests for Access and Amendment to Records

310.3 Requesting access to records.
310.4 Access exemptions.
310.5 Responses to requests for access to records.
310.6 Appeals from denials of requests for access to records.
310.7 Requests for amendment or correction of records.
310.8 Civil remedies.
310.9 Requests for an accounting of record disclosures.
310.10 Fees.
310.11 Other rights and services.

                        Subpart C_Exemption Rules

310.12 Types of exemptions.
310.13 Exemptions for DoD-wide systems.
310.14 Department of the Air Force exemptions.
310.15 Department of the Army exemptions.
310.16 Department of the Navy exemptions.
310.17 [Reserved]
310.18 Defense Contract Audit Agency (DCAA) exemptions.
310.19 Defense Information Systems Agency (DISA) exemptions.
310.20 Defense Intelligence Agency (DIA) exemptions.
310.21 Defense Logistics Agency (DLA) exemptions.
310.22 Defense Security Service (DSS) exemptions.
310.23 Defense Threat Reduction Agency (DTRA) exemptions.
310.24 National Geospatial-Intelligence Agency (NGA) exemptions.
310.25 National Guard Bureau (NGB) exemptions.
310.26 National Reconnaissance Office (NRO) exemptions.
310.27 National Security Agency (NSA) exemptions.
310.28 Office of the Inspector General (OIG) exemptions.
310.29 Office of the Secretary of Defense (OSD) exemptions.

Appendix A to Part 310--DOD Blanket Routine Uses

    Authority: 5 U.S.C. 552a.

    Source: 84 FR 14730, Apr. 11, 2019, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 310.1  Purpose.

    This part contains the rules that the Department of Defense 
(Department or DoD) follows under the Privacy Act of 1974, 5 U.S.C. 
552a. These rules should be read together with the Privacy Act. The 
rules in this part apply to all records in Privacy Act systems of 
records maintained by the Department. They describe the procedures by 
which individuals may request access to records about themselves, 
request amendment or correction of those records, and request an 
accounting of disclosures of those records by the Department to other 
entities outside the Department. In addition, the Department processes 
all Privacy Act requests for access to records under the Freedom of 
Information Act (FOIA), 5 U.S.C. 552, following the rules contained in 
32 CFR part 286, giving individuals the benefit of both statutes.



Sec. 310.2  Definitions.

    DoD Components means the Office the Office of the Secretary of 
Defense (OSD), the Military Departments, the Office of the Chairman of 
the Joint Chiefs of Staff and the Joint Staff, the Combatant Commands, 
the Office of the Inspector General of the Department of Defense, the 
Defense Agencies, the DoD Field Activities, and all other organizational 
entities within the DoD (referred to collectively in this part as the 
``DoD Components'').
    Individual means a citizen of the United States or an alien lawfully 
admitted for permanent residence, as defined in the Privacy Act.
    Maintain includes maintain, collect, use or disseminate, as defined 
in the Privacy Act.

[[Page 862]]

    Record means any item, collection, or grouping of information about 
an individual that is maintained by an agency, including, but not 
limited to, his education, financial transactions, medical history, and 
criminal or employment history and that contains his name, or the 
identifying number, or symbol, or other identifying particular assigned 
to the individual, such as a finger or voice print or a photograph, as 
defined in the Privacy Act.
    Request for access to a record means a request made under subsection 
(d)(1) of the Privacy Act.
    Request for amendment or correction of a record means a request made 
under subsection (d)(2) of the Privacy Act.
    Request for an accounting means a request made under subsection 
(c)(3) of the Privacy Act.
    Requester means an individual who makes a request for access, a 
request for amendment or correction, or a request for an accounting 
under the Privacy Act.
    System of records means any group of records under the control of 
the Department of Defense from which information is retrieved by the 
name of the individual or by some other identifying number, symbol, or 
other identifying particular assigned to the individual as defined in 
the Privacy Act.



         Subpart B_Requests for Access and Amendment to Records



Sec. 310.3  Requesting access to records.

    (a) Individuals may request access to records in a system of records 
or request to be notified if a system of records contains records 
pertaining to them by writing to or appearing in person before the DoD 
Component that maintains the record. Written requests should be sent to 
the address listed in the record access procedures of the system of 
records notice (SORN) containing the record requested. If the name of 
the system of records or the address for the DoD Component that has the 
record is unknown, the individual may look up the SORN or the contact 
information for the DoD Component Privacy Office at http://
www.defense.gov/ privacy.
    (b) For access to the Official Personnel Files of federal civilian 
employees, which are maintained in the custody of the Department under 
the authority of the Office of Personnel Management (OPM) SORN OPM/GOVT-
1, individuals must contact their DoD Component FOIA Requester Service 
Center. Contact information for DoD Component FOIA Requester Service 
Centers can be found at https://www.foia.gov/ report-makerequest.html.
    (c) Requesters should provide their full name, current address and 
email address, and when requested in the access procedures of the 
applicable SORN, date of birth, place of birth, and telephone number, to 
assist the DoD Component in responding to the request and providing 
released records to the requester. The requester must sign the request 
and have it notarized or submit the request under 28 U.S.C. 1746, a law 
that permits unsworn statements to be made under penalty of perjury as a 
substitute for notarization. To assist with the identification and 
location of requested records, when requested in the access procedures 
of the applicable SORN, the requester may also, at his or her option, 
include his or her DoD Identification Number (DoD ID Number) or Social 
Security Number (SSN). Providing a DoD ID Number or SSN should be 
appropriate for the type of record being sought.
    (d) When making a request for access to records as the parent or 
guardian for an individual who is a minor or for an individual who is 
determined by a court to be incompetent, the parent/guardian must 
establish:
    (1) The identity of the individual who is the subject of the record;
    (2) The parent/guardian's own identity;
    (3) That the requester is the parent or guardian of that individual, 
which may be proven by providing a copy of the individual's birth 
certificate showing parentage or a court order establishing the 
guardianship; and
    (4) That the parent or guardian is acting on behalf of the 
individual in making the request.
    (e) Members of the Military Services and married persons are not 
considered minors, regardless of age.

[[Page 863]]



Sec. 310.4  Access exemptions.

    DoD may deny an individual access to certain information about the 
individual that resides in a DoD Component's system of records when an 
exemption from the Privacy Act is claimed for the system of records and 
codified in the Code of Federal Regulations as described in Sec. 
310.12. When an exemption pursuant to subsection (j) or (k) of the 
Privacy Act exists, it will be listed in the SORN for the particular 
system in which the individual's information is located. Records 
compiled in reasonable anticipation of a civil action or proceeding may 
be withheld pursuant to subsection (d)(5) of the Privacy Act.



Sec. 310.5  Responses to requests for access to records.

    (a) Upon receipt of a request, a component will send an 
acknowledgment letter to the requester within 10 days (excluding 
Saturdays, Sundays, and legal public holidays) which shall confirm the 
requester's agreement to pay duplication fees, if any, and provide an 
assigned case file number for reference purposes.
    (b) In some cases, the DoD Component initially receiving the request 
may refer the request to another DoD Component or agency. The DoD 
Component that initially received the request will send the requester a 
notice of referral that will identify each DoD Component or agency to 
which the request has been referred, as well as which part of the 
request has been referred.
    (c) Access to protected health information, including medical 
records, is governed by the Privacy Act and DoD 6025.18-R, ``DoD Health 
Information Privacy Regulation'' (available at http://www.esd.whs.mil/ 
Portals/54/ Documents/DD/ issuances/dodm/ 602518r.pdf).
    (d) When a DoD Component makes a determination to grant a request 
for access in whole or in part, the DoD Component shall notify the 
requester in writing or simply provide the requested record. The 
response to the request may be made in lieu of the acknowledgment of 
receipt provided the response will be made within 10 days (excluding 
Saturdays, Sundays, and legal public holidays). The DoD Component shall 
inform the requester of any fee charged for duplication of the 
record(s). If the request is made in person, the individual may receive 
the records directly in a manner not unreasonably disruptive of the DoD 
Component's operations, upon payment of any applicable fee. If the 
individual is accompanied by another person, the individual may be 
required to authorize in writing any discussion of the records in the 
presence of the other person.
    (e) A DoD Component denying a request for access in any respect 
shall notify the requester of that determination in writing.
    (1) The notice of denial consists of:
    (i) A determination to withhold any requested record in whole or in 
part;
    (ii) A determination that a requested record does not exist or 
cannot be located; or
    (iii) A determination that what has been requested is not a record 
subject to the Privacy Act.
    (2) The denial notification letter shall be signed by the head of 
the DoD Component, or the DoD Component head's designee, and shall 
include:
    (i) The date of the denial;
    (ii) A brief statement of the reason(s) for the denial, including 
any Privacy Act exemption(s) applied by the DoD Component in denying the 
request; and
    (iii) A statement that the denial can be appealed within 60 calendar 
days in accordance with Sec. 310.6. The statement will include the 
position title and the address of the appellate authority.



Sec. 310.6  Appeals from denials of requests for access to records.

    (a) If the requester is dissatisfied with a DoD Component's 
response, the requester can appeal an adverse determination denying the 
request to the appellate authority listed in the notification of denial 
letter. The appeal must be made in writing, and it must be postmarked 
within 60 calendar days of the date of the letter denying the initial 
request for records. The letter of appeal should include a copy of the 
DoD Component's determination (including the assigned request number, if 
known). For the quickest possible handling, the appeal letter and the 
envelope should be marked: ``Privacy Act Appeal.''

[[Page 864]]

    (b) The appellant will be notified of the decision on his or her 
appeal in writing. If the decision affirms the adverse determination in 
whole or in part, the notification will include a brief statement of the 
reason(s) for the affirmation, including any exemptions applied, and 
will inform the appellant of the Privacy Act provisions for judicial 
review of the appellate authority's decision. If the adverse 
determination is reversed or modified, in whole or in part, the 
appellant will be notified in writing of this decision and the request 
will be reprocessed in accordance with that appeal decision.
    (c) In order to seek a judicial review of a denial of a request for 
access to records, a requester must first file an appeal under this 
section.
    (d) An appeal ordinarily will not be acted on if the request becomes 
a matter of litigation.



Sec. 310.7  Requests for amendment or correction of records.

    (a) If the record is not subject to amendment and correction as 
stated in paragraph (b) of this section, an individual may make a 
request for amendment or correction of a DoD Component's record about 
that individual by writing directly to the DoD Component that maintains 
the record as identified in the published SORN applicable to the record. 
The request should identify each particular record in question, state 
the amendment or correction that is sought, and state why the record is 
not accurate, relevant, timely, or complete without the correction. The 
individual will also need to verify identity in the same manner as 
described in Sec. Sec. 310.3(c) through (d). Factual documentation that 
is helpful to the DoD Component privacy officials should be submitted 
with the request. If it is believed that the same record exists in more 
than one system of records, this should be stated in the request, and 
the request should be addressed to each DoD Component that maintains a 
system of records containing the record as noted in this paragraph.
    (b) Certain records are not subject to amendment or correction under 
the Privacy Act:
    (1) Proceedings and determinations of courts-martial, military 
tribunal, or Military Boards of Correction are not generally subject to 
amendment or correction under the Privacy Act.
    (2) Records in systems of records that have been exempted from 
amendment and correction under the Privacy Act, 5 U.S.C. 552a(j) or (k) 
are not subject to amendment or correction.
    (3) The amendment process is not intended to permit the alteration 
of records presented in the course of judicial or quasi-judicial 
proceedings such as the adjudication process for personnel security 
clearances or contesting grades in academic records. Any amendments or 
changes to these records normally are made through the specific 
procedures established for the amendment of such records.
    (4) Nothing in the amendment process is intended or designed to 
permit a collateral attack upon what has already been the subject of a 
judicial or quasi-judicial determination. However, while the individual 
may not attack the accuracy of the judicial or quasi-judicial 
determination under this part, he or she may challenge the accuracy of 
the recording of that action.
    (c) An individual requesting amendment or correction of records will 
receive a written acknowledgment of receipt of the request within 10 
days (excluding Saturdays, Sundays, and legal public holidays), as 
required by the Privacy Act. The response to the request may be made in 
lieu of the acknowledgment of receipt provided the response is made 
within 10 days (excluding Saturdays, Sundays, and legal public 
holidays). The response to the request must be made promptly and 
indicate whether the request is granted or denied.
    (d) If the request for amendment or correction is granted in whole 
or in part, the response to the individual will receive a description or 
copy of the amendment or correction made and, if a copy of the amended 
or corrected record is not included in the response, notification of the 
right to obtain a copy of the corrected or amended record in disclosable 
form.
    (e) If the request for amendment or correction is denied in whole or 
in part,

[[Page 865]]

the response to the individual will include a signed letter stating:
    (1) The reason(s) for the denial; and
    (2) The procedure for appeal of the denial under paragraph (f) of 
this section, including the name, position title and business address of 
the official who will act on the appeal.
    (f) An individual may appeal the denial of a request for amendment 
or correction to the individual's record to the appellate authority at 
the address listed in the notification of denial letter, in the same 
manner as for a denial of a request for access to records (see Sec. 
310.6). The appeal determination shall be made within 30 working days 
(excluding Saturdays, Sundays, and legal public holidays) from the date 
of the appeal, unless the period is extended for good cause. If the 
appeal is denied in whole or in part, the individual will be advised of 
the right to file a Statement of Disagreement as described in paragraph 
(g) of this section, and of the right under the Privacy Act for judicial 
review of the decision.
    (g) If an appeal under this section is denied in whole or in part, 
the individual has the right to file a Statement of Disagreement that 
states the reason(s) for disagreeing with the DoD Component's denial of 
the request for amendment or correction. Statements of Disagreement must 
be concise, must clearly identify each part of any record that is 
disputed, and should generally be no longer than one typed page. The 
Statement of Disagreement must be sent to the DoD Component holding the 
respective record. The Statement of Disagreement will be filed or 
notated in the system of records, and an annotation to the record itself 
will indicate the existence and location of the Statement of 
Disagreement.
    (h) Notifications of amendment/correction or statements of 
disagreement will be made to all persons, organizations, and agencies to 
which the record was previously disclosed if an accounting of that 
disclosure was made in accordance with subsection (c) of the Privacy Act 
and Sec. 310.9. If an individual has filed a Statement of Disagreement, 
a copy of the statement will be appended to the disputed record whenever 
the record is disclosed, and a concise statement of the reason(s) for 
denying the request to amend or correct the record may also be appended.



Sec. 310.8  Civil remedies.

    In addition to the right to judicial review after a denied appeal 
for access to or amendment of a record, the requester has the right to 
bring a civil action against the Department if the Department:
    (a) Fails to maintain a record concerning the individual with such 
accuracy, relevance, timeliness and completeness as is necessary to 
assure fairness in any determination relating to the qualifications, 
character, rights, opportunities of, or benefits to the individual that 
may be made on the basis of such record, and consequently a 
determination is made which is adverse to the individual; or
    (b) Fails to comply with any other provision of the Privacy Act or 
this rule, in such a way as to have an adverse effect on the individual.



Sec. 310.9  Requests for an accounting of record disclosures.

    (a) An individual may make a request for an accounting of any 
disclosure that has been made by the Department to another person, 
organization, or agency of any record about the individual maintained in 
a system of records.
    (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. Records of disclosure 
accountings are maintained for five years after the disclosure or for 
the life of the record, whichever is longer.
    (c) The request for an accounting should identify each particular 
record in question and should be made by writing directly to the DoD 
Component that maintains the record, following the procedures in Sec. 
310.3.
    (d) DoD Components are not required to provide disclosure 
accountings when related to:
    (1) Disclosures for which accountings are not required to be kept--
in other words, disclosures that are made to employees within the 
Department who

[[Page 866]]

have a need for the record in the performance of their duties and 
disclosures that are made under the Freedom of Information Act;
    (2) Disclosures made to law enforcement agencies for authorized law 
enforcement activities in response to written request from the head of 
the agency or instrumentality of those law enforcement agencies 
specifying the law enforcement activities for which the disclosures are 
sought; or
    (3) Disclosures made from systems of records that have been exempted 
from accounting requirements.
    (e) An individual may appeal a denial of a request for a disclosure 
accounting to the address listed in the notification of denial letter, 
in the same manner as a denial of a request for access to records, 
following the procedures in Sec. 310.6.



Sec. 310.10  Fees.

    (a) When an individual makes a Privacy Act request for a copy of a 
record in a system of records, the request shall be considered an 
agreement to pay all applicable fees.
    (b) There is no minimum fee for duplication, and there is no 
automatic charge for processing a request. Fees for duplication of 
records will be charged in the same manner as requests for records under 
the Freedom of Information Act.
    (c) Normally, fees are waived automatically if the direct costs of a 
given request are less than the cost of processing the fee. Decisions to 
waive or reduce fees that exceed the waiver threshold are made on a 
case-by-case basis.



Sec. 310.11  Other rights and services.

    Nothing in this part shall be construed to entitle any person, as of 
right, to any service or to the disclosure of any record to which such 
person is not entitled under the Privacy Act.



                        Subpart C_Exemption Rules



Sec. 310.12  Types of exemptions.

    (a) Exemptions. There are three types of exemptions permitted by the 
Privacy Act:
    (1) An access exemption that exempts records complied in reasonable 
anticipation of a civil action or proceeding from the access provisions 
of the Act, pursuant to subsection (d)(5) of the Privacy Act;
    (2) General exemptions that authorize the exemption of a system of 
records from all but certain specifically identified provisions of the 
Act, pursuant to subsection (j) of the Privacy Act; and
    (3) Specific exemptions that allow a system of records to be 
exempted only from certain designated provisions of the Act, pursuant to 
subsection (k) of the Privacy Act. Nothing in the Privacy Act permits 
exemption of any system of records from all provisions of the Act.
    (b) Civil Action or Proceeding. In accordance with 5 U.S.C. 
552a(d)(5), an individual is not entitled to access information that is 
compiled in reasonable anticipation of a civil action or proceeding. The 
term ``civil action or proceeding'' is intended to include court 
proceedings, preliminary judicial steps, and quasi-judicial 
administrative hearings or proceedings (i.e., adversarial proceedings 
that are subject to rules of evidence). Any information prepared in 
anticipation of such actions or proceedings, including information 
prepared to advise DoD officials of the possible legal or other 
consequences of a given course of action, is protected. The exemption is 
similar to the attorney work-product privilege except that it applies 
even when the information is prepared by non-attorneys. The exemption 
does not apply to information compiled in anticipation of criminal 
actions or proceedings.
    (c) Exempt Records Systems. Pursuant to 5 U.S.C. 552a(k)(1), all 
systems of records maintained by DoD will be exempt from the access 
provisions of 5 U.S.C. 552a(d) and the notification of access procedures 
of 5 U.S.C. 522a(e)(4)(H) to the extent that the system contains any 
information properly classified under Executive Order 13526, and is 
required by the Executive Order to be kept secret in the interest of 
national defense or foreign policy. This exemption, which may be 
applicable to parts of all DoD systems of records, is necessary because 
certain record systems not otherwise specifically designated for 
exemptions herein may

[[Page 867]]

contain isolated items of information which have been properly 
classified.
    (d) Exempt records in non-exempt systems. Exempt records temporarily 
in the custody of another DoD Component are considered the property of 
the originating DoD Component. Access to these records is controlled by 
the system notices and rules of the originating DoD Component. Exempt 
records that have been incorporated into a nonexempt system of records 
are still exempt but only to the extent to which the provisions of the 
Act for which an exemption has been claimed are identified. An exemption 
claimed for the system of records from which the record is obtained 
remains in effect when the purposes underlying the exemption for the 
record are still valid and necessary to protect the contents of the 
record. If a record is accidentally misfiled into a system of records, 
the system notice and rules for the system in which it should actually 
be filed shall govern.



Sec. 310.13  Exemptions for DoD-wide systems.

    (a) Use of DoD-wide exemptions. DoD-wide exemptions for DoD-wide 
systems of records are established pursuant to 5 U.S.C. 552a(j) and (k) 
of the Privacy Act.
    (b) Promises of confidentiality. (1) Only the identity of and 
information furnished by sources that have been given an express promise 
of confidentiality may be protected from disclosure under this section, 
consistent with (k)(2), (k)(5), and (k)(7) of the Privacy Act, as 
applicable. However, the identity of sources who were given implied 
promises of confidentiality in inquiries conducted before September 27, 
1975, also may be protected from disclosure.
    (2) Ensure promises of confidentiality are not automatically given 
but are used sparingly. Establish appropriate procedures and identify 
fully categories of individuals who may make such promises. Promises of 
confidentiality shall be made only when they are essential to obtain the 
information sought (see 5 CFR part 736).
    (c) Access to records for which DOD-wide exemptions are claimed. 
Deny the individual access only to those portions of the records for 
which the claimed exemption applies.
    (d) Exempt records. Records are only exempt from pertinent 
provisions of 5 U.S.C. 552a to the extent that such provisions have been 
identified and an exemption claimed for the record and the purposes 
underlying the exemption for the record pertain to the record.
    (e) DoD-wide exemptions. The following exemptions are applicable to 
all components of the Department of Defense for the following system(s) 
of records:
    (1) System identifier and name. DUSDI 01-DoD ``Department of Defense 
(DoD) Insider Threat Management and Analysis Center (DITMAC) and DoD 
Component Insider Threat Records System.''
    (i) Exemption. This system of records is exempted from subsections 
(c)(3) and (4); (d)(1), (2), (3) and (4); (e)(1), (2), (3), (4)(G)(H) 
and (I), (5) and (8); and (g) of the Privacy Act.
    (ii) Authority. 5 U.S.C. 552a(j)(2) and (k)(1), (2), (4), (5), (6), 
and (7).
    (iii) Exemption from the particular subsections. Exemption from the 
particular subsections is justified for the following reasons:
    (A) Subsection (c)(3). To provide the subject with an accounting of 
disclosures of records in this system could inform that individual of 
the existence, nature, or scope of an actual or potential law 
enforcement or counterintelligence investigation, and thereby seriously 
impede law enforcement or counterintelligence efforts by permitting the 
record subject and other persons to whom he might disclose the records 
to avoid criminal penalties, civil remedies, or counterintelligence 
measures. Access to the accounting of disclosures could also interfere 
with a civil or administrative action or investigation which may impede 
those actions or investigations. Access also could reveal the identity 
of confidential sources incident to Federal employment, military 
service, contract, and security clearance determinations.
    (B) Subsection (c)(4). This subsection is inapplicable to the extent 
that an exemption is being claimed for subsection (d).
    (C) Subsection (d)(1). Disclosure of records in the system could 
reveal the

[[Page 868]]

identity of confidential sources and result in an unwarranted invasion 
of the privacy of others. Disclosure may also reveal information 
relating to actual or potential criminal investigations. Disclosure of 
classified national security information would cause damage to the 
national security of the United States. Disclosure could also interfere 
with a civil or administrative action or investigation; reveal the 
identity of confidential sources incident to Federal employment, 
military service, contract, and security clearance determinations; and 
reveal the confidentiality and integrity of Federal testing materials 
and evaluation materials used for military promotions when furnished by 
a confidential source.
    (D) Subsection (d)(2). Amendment of the records could interfere with 
ongoing criminal or civil law enforcement proceedings and impose an 
impossible administrative burden by requiring investigations to be 
continuously reinvestigated.
    (E) Subsections (d)(3) and (4). These subsections are inapplicable 
to the extent exemption is claimed from subsections (d)(1) and (2).
    (F) Subsection (e)(1). It is often impossible to determine in 
advance if investigatory records contained in this system are accurate, 
relevant, timely and complete, but, in the interests of effective law 
enforcement and counterintelligence, it is necessary to retain this 
information to aid in establishing patterns of activity and provide 
investigative leads.
    (G) Subsection (e)(2). To collect information from the subject 
individual could serve notice that he or she is the subject of a 
criminal investigation and thereby present a serious impediment to such 
investigations.
    (H) Subsection (e)(3). To inform individuals as required by this 
subsection could reveal the existence of a criminal investigation and 
compromise investigative efforts.
    (I) Subsection (e)(4)(G), (H), and (I). These subsections are 
inapplicable to the extent exemption is claimed from subsections (d)(1) 
and (2).
    (J) Subsection (e)(5). It is often impossible to determine in 
advance if investigatory records contained in this system are accurate, 
relevant, timely and complete, but, in the interests of effective law 
enforcement, it is necessary to retain this information to aid in 
establishing patterns of activity and provide investigative leads.
    (K) Subsection (e)(8). To serve notice could give persons sufficient 
warning to evade investigative efforts.
    (L) Subsection (g). This subsection is inapplicable to the extent 
that the system is exempt from other specific subsections of the Privacy 
Act.
    (iv) Exempt records from other systems. In addition, in the course 
of carrying out analysis for insider threats, exempt records from other 
systems of records may in turn become part of the case records 
maintained in this system. To the extent that copies of exempt records 
from those other systems of records are maintained into this system, the 
DoD claims the same exemptions for the records from those other systems 
that are entered into this system, as claimed for the original primary 
system of which they are a part.
    (2) System identifier and name. DUSDI 02-DoD ``Personnel Vetting 
Records System.''
    (i) Exemption. This system of records is exempted from subsections 5 
U.S.C. 552a(c)(3), (d)(1), (d)(2), (d)(3), (d)(4), and (e)(1) of the 
Privacy Act.
    (ii) Authority. 5 U.S.C. 552a(k)(1), (k)(2), (k)(3), (k)(5), (k)(6), 
and (k)(7).
    (iii) Exemption from the particular subsections. Exemption from the 
particular subsections is justified for the following reasons:
    (A) Subsections (c)(3), (d)(1), and (d)(2)--(1) Exemption (k)(1). 
Personnel investigations and vetting records may contain information 
properly classified pursuant to Executive Order. Application of 
exemption (k)(1) for such records may be necessary because access to, 
amendment of, or release of the accounting of disclosures of such 
records could disclose classified information that could be detrimental 
to national security.
    (2) Exemption (k)(2). Personnel investigations and vetting records 
may contain investigatory material compiled for law enforcement purposes 
other than material within the scope of 5 U.S.C. 552a(j)(2). Application 
of exemption (k)(2) for such records may be necessary because access to, 
amendment

[[Page 869]]

of, or release of the accounting of disclosures of such records could: 
Inform the record subject of an investigation of the existence, nature, 
or scope of an actual or potential law enforcement or 
counterintelligence investigation, and thereby seriously impede law 
enforcement or counterintelligence efforts by permitting the record 
subject and other persons to whom he might disclose the records to avoid 
criminal penalties, civil remedies, or counterintelligence measures; 
interfere with a civil or administrative action or investigation which 
may impede those actions or investigations; and result in an unwarranted 
invasion of the privacy of others. Amendment of such records could also 
impose a highly impracticable administrative burden by requiring 
investigations to be continuously reinvestigated.
    (3) Exemption (k)(3). Personnel investigations and vetting records 
may contain information pertaining to providing protective services to 
the President of the United States or other individuals pursuant to 18 
U.S.C. 3056. Application of exemption (k)(3) for such records may be 
necessary because access to, amendment of, or release of the accounting 
of disclosures of such records could compromise the safety of the 
individuals protected pursuant to 18 U.S.C. 3056 and compromise 
protective services provided to the President and other individuals. 
Amendment of such records could also impose a highly impracticable 
administrative burden by requiring investigations to be continuously 
reinvestigated.
    (4) Exemption (k)(5). Personnel investigations and vetting records 
may contain investigatory material compiled solely for determining 
suitability, eligibility, and qualifications for Federal civilian 
employment, military service, Federal contracts, or access to classified 
information. In some cases, such records may contain information 
pertaining to the identity of a source who furnished information to the 
Government under an express promise that the source's identity would be 
held in confidence (or prior to the effective date of the Privacy Act, 
under an implied promise). Application of exemption (k)(5) for such 
records may be necessary because access to, amendment of, or release of 
the accounting of disclosures of such records could identify these 
confidential sources who might not have otherwise come forward to assist 
the Government, could hinder the Government's ability to obtain 
information from future confidential sources, and result in an 
unwarranted invasion of the privacy of others. Amendment of such records 
could also impose a highly impracticable administrative burden by 
requiring investigations to be continuously reinvestigated.
    (5) Exemption (k)(6). Personnel investigations and vetting records 
may contain information relating to testing or examination material used 
solely to determine individual qualifications for appointment or 
promotion in the Federal service. Application of exemption (k)(6) for 
such records may be necessary because access to, amendment of, or 
release of the accounting of disclosures of such records could 
compromise the objectivity and fairness of the testing or examination 
process. Amendment of such records could also impose a highly 
impracticable administrative burden by requiring investigations to be 
continuously reinvestigated.
    (6) Exemption (k)(7). Personnel investigations and vetting records 
may contain evaluation material used to determine potential for 
promotion in the armed services. In some cases, such records may contain 
information pertaining to the identity of a source who furnished 
information to the Government under an express promise that the source's 
identity would be held in confidence (or prior to the effective date of 
the Privacy Act, under an implied promise). Application of exemption 
(k)(7) for such records may be necessary because access to, amendment 
of, or release of the accounting of disclosures of such records could 
identify these confidential sources who might not have otherwise come 
forward to assist the Government, hinder the Government's ability to 
obtain information from future confidential sources, and result in an 
unwarranted invasion of the privacy of others. Amendment of such records 
could also impose a highly impracticable administrative burden

[[Page 870]]

by requiring investigations to be continuously reinvestigated.
    (B) Subsections (d)(3) and (4). These subsections are inapplicable 
to the extent an exemption is claimed from (d)(1) and (2). Moreover, 
applying the amendment appeal procedures toward background investigation 
and vetting records could impose a highly impracticable administrative 
burden by requiring investigations to be continuously reinvestigated.
    (C) Subsection (e)(1). In the collection of information for 
authorized vetting purposes, it is not always possible to conclusively 
determine the relevance and necessity of particular information in the 
early stages of the investigation or adjudication. In some instances, it 
will be only after the collected information is evaluated in light of 
other information that its relevance and necessity for effective 
investigation and adjudication can be assessed. Collection of such 
information permits more informed decision-making by the Department when 
making required suitability, eligibility, fitness, and credentialing 
determinations. Accordingly, application of exemptions (k)(1), 
(k)(2),(k)(3), (k)(5), (k)(6), and (k)(7) may be necessary.
    (iv) Exempt records from other systems. In addition, in the course 
of carrying out personnel vetting, including records checks for 
continuous vetting, exempt records from other systems of records may in 
turn become part of the records maintained in this system. To the extent 
that copies of exempt records from those other systems of records are 
maintained into this system, the DoD claims the same exemptions for the 
records from those other systems that are entered into this system, as 
claimed for the original primary system of which they are a part.
    (3) System identifier and name. DoD-0004, ``Defense Repository for 
Common Enterprise Data (DRCED).''
    (i) Exemptions. This system of records is exempt from subsections 5 
U.S.C. 552a(c)(3), (d)(1), (d)(2), (d)(3), and (d)(4) of the Privacy 
Act.
    (ii) Authority. 5 U.S.C. 552a(k)(1).
    (iii) Exemption from the particular subsections. Exemption from the 
particular subsections is justified for the following reasons:
    (A) Subsection (c)(3) (accounting of disclosures). Because common 
enterprise records may contain information properly classified pursuant 
to executive order, the disclosure accountings of such records may also 
contain information properly classified pursuant to executive order, the 
disclosure of which may cause damage to national security.
    (B) Subsections (d)(1), (2), (3), and (4) (record subject's right to 
access and amend records). Access to and amendment of records by the 
record subject could disclose information properly classified pursuant 
to executive order. Disclosure of classified records to an individual 
may cause damage to national security.
    (iv) Exempt records from other systems. In addition, in the course 
of carrying out the overall purpose for this system, exempt records from 
other system of records may in turn become part of the records 
maintained in this system. To the extent that copies of exempt records 
from those other systems of records are maintained in this system, the 
DoD claims the same exemptions for the records from those other systems 
that are entered into this system, as claimed for the prior system(s) of 
which they are a part, provided the reason for the exemption remains 
valid and necessary.
    (4) System identifier and name. DoD-0005, ``Defense Training 
Records.''
    (i) Exemptions. This system of records is exempt from 5 U.S.C. 
552a(c)(3) and (d)(1), (2), (3), and (4).
    (ii) Authority. 5 U.S.C. 552a(k)(1) and (6).
    (iii) Exemption from the particular subsections. Exemption from the 
particular subsections is justified for the following reasons:
    (A) Subsections (c)(3), (d)(1), and (d)(2)--(1) Exemption (k)(1). 
Training records in this system of records may contain information 
concerning DoD personnel or training materials that is properly 
classified pursuant to executive order. Application of exemption (k)(1) 
for such records may be necessary because access to and amendment of the 
records, or release of the accounting of disclosures for such records, 
could reveal classified information. Disclosure of classified records

[[Page 871]]

to an individual may cause damage to national security.
    (2) Exemption (k)(6). Training records in this system of records may 
contain information relating to testing or examination material used 
solely to determine individual qualifications for appointment or 
promotion in the Federal service. Application of exemption (k)(6) for 
such records may be necessary when access to and amendment of the 
records, or release of the accounting of disclosure for such records, 
may compromise the objectivity and fairness of the testing or 
examination process. Amendment of such records could also impose a 
highly impracticable administrative burden by requiring testing and 
examinations to be continuously re-administered.
    (B) Subsections (d)(3) and (4). These subsections are inapplicable 
to the extent an exemption is claimed from subsection (d)(2). Moreover, 
applying the amendment appeal procedures to training and examination 
materials could impose a highly impractical administrative burden by 
requiring testing and examinations to be continuously re-administered.
    (iv) Exempt records from other systems. In the course of carrying 
out the overall purpose for this system, exempt records from other 
systems of records may in turn become part of the records maintained in 
this system. To the extent that copies of exempt records from those 
other systems of records are maintained in this system, the DoD claims 
the same exemptions for the records from those other systems that are 
entered into this system, as claimed for the prior system(s) of which 
they are a part, provided the reason for the exemption remains valid and 
necessary.
    (5) System identifier and name. DoD-0006, ``Military Justice and 
Civilian Criminal Case Records.''
    (i) Exemptions. This system of records is exempt from 5 U.S.C. 
552a(c)(3) and (4); (d)(1), (2), (3), and (4); (e)(1); (e)(2); (e)(3); 
(e)(4)(G), (H), and (I); (e)(5); (e)(8); (f); and (g) of the Privacy Act 
to the extent the records are subject to exemption pursuant to 5 U.S.C. 
552a(j)(2). This system of records is exempt from 5 U.S.C. 552a(c)(3); 
(d)(1), (2), (3), and (4); (e)(1); (e)(4)(G), (H), and (I); and (f) of 
the Privacy Act to the extent the records are subject to exemption 
pursuant to 5 U.S.C. 552a(k)(1) and (k)(2).
    (ii) Authority. 5 U.S.C. 552a(j)(2), (k)(1), and (k)(2).
    (iii) Exemption from the particular subsections. Exemption from the 
particular subsections is justified for the following reasons:
    (A) Subsection (c)(3), (d)(1), and (d)(2)--(1) Exemption (j)(2). 
Records in this system of records may contain investigatory material 
compiled for criminal law enforcement purposes to include information 
identifying criminal offenders and alleged offenders, information 
compiled for the purpose of criminal investigation, or reports compiled 
during criminal law enforcement proceedings. Application of exemption 
(j)(2) may be necessary because access to, amendment of, or release of 
the accounting of disclosures of such records could inform the record 
subject of an investigation of the existence, nature, or scope of an 
actual or potential law enforcement or disciplinary investigation, and 
thereby seriously impede law enforcement or prosecutorial efforts by 
permitting the record subject and other persons to whom he might 
disclose the records to avoid criminal penalties or disciplinary 
measures; reveal confidential sources who might not have otherwise come 
forward to assist in an investigation and thereby hinder DoD's ability 
to obtain information from future confidential sources and result in an 
unwarranted invasion of the privacy of others.
    (2) Exemption (k)(1). Records in this system of records may contain 
information that is properly classified pursuant to executive order. 
Application of exemption (k)(1) may be necessary because access to and 
amendment of the records, or release of the accounting of disclosures 
for such records, could reveal classified information. Disclosure of 
classified records to an individual may cause damage to national 
security.
    (3) Exemption (k)(2). Records in this system of records may contain 
investigatory material compiled for law enforcement purposes other than 
material within the scope of 5 U.S.C. 552a(j)(2). Application of 
exemption (k)(2) may be necessary because access

[[Page 872]]

to, amendment of, or release of the accounting of disclosures of such 
records could inform the record subject of an investigation of the 
existence, nature, or scope of an actual or potential law enforcement or 
disciplinary investigation, and thereby seriously impede law enforcement 
or prosecutorial efforts by permitting the record subject and other 
persons to whom he might disclose the records or the accounting of 
records to avoid criminal penalties, civil remedies, or disciplinary 
measures; interfere with a civil or administrative action or 
investigation which may impede those actions or investigations; reveal 
confidential sources who might not have otherwise come forward to assist 
in an investigation and thereby hinder DoD's ability to obtain 
information from future confidential sources; and result in an 
unwarranted invasion of the privacy of others.
    (B) Subsection (c)(4), (d)(3) and (4). These subsections are 
inapplicable to the extent that an exemption is being claimed from 
subsections (d)(1) and (2).
    (C) Subsection (e)(1). In the collection of information for 
investigatory or law enforcement purposes, it is not always possible to 
conclusively determine the relevance and necessity of particular 
information in the early stages of the investigation or adjudication. In 
some instances, it will be only after the collected information is 
evaluated in light of other information that its relevance and necessity 
for effective investigation and adjudication can be assessed. Collection 
of such information permits more informed decision-making by the 
Department when making required disciplinary and prosecutorial 
determinations. Additionally, records within this system may be properly 
classified pursuant to executive order. Accordingly, application of 
exemptions (j)(2), (k)(1) and (k)(2) may be necessary.
    (D) Subsection (e)(2). To collect information from the subject 
individual could serve notice that he or she is the subject of a 
criminal investigation and thereby present a serious impediment to such 
investigations. Collection of information only from the individual 
accused of criminal activity or misconduct could also subvert discovery 
of relevant evidence and subvert the course of justice. Accordingly, 
application of exemption (j)(2) may be necessary.
    (E) Subsection (e)(3). To inform individuals as required by this 
subsection could reveal the existence of a criminal investigation and 
compromise investigative efforts. Accordingly, application of exemption 
(j)(2) may be necessary.
    (F) Subsections (e)(4)(G) and (H). These subsections are 
inapplicable to the extent an exemption is claimed from subsections 
(d)(1) and (2).
    (G) Subsection (e)(4)(I). To the extent that this provision is 
construed to require more detailed disclosure than the broad, generic 
information currently published in the system notice, an exemption from 
this provision is necessary to protect the confidentiality of sources of 
information and to protect the privacy and physical safety of witnesses 
and informants. Accordingly, application of exemptions (j)(2), (k)(1), 
and (k)(2) may be necessary.
    (H) Subsection (e)(5). It is often impossible to determine in 
advance if investigatory records contained in this system are accurate, 
relevant, timely and complete, but, in the interests of effective law 
enforcement, it is necessary to retain this information to maintain an 
accurate record of the investigatory activity to preserve the integrity 
of the investigation and satisfy various Constitutional and evidentiary 
requirements, such as mandatory disclosure of potentially exculpatory 
information in the investigative file to a defendant. It is also 
necessary to retain this information to aid in establishing patterns of 
activity and provide investigative leads. With the passage of time, 
seemingly irrelevant or untimely information may acquire new 
significance as further investigation brings new details to light and 
the accuracy of such information can only be determined through judicial 
processes. Accordingly, application of exemption (j)(2) may be 
necessary.
    (I) Subsection (e)(8). To serve notice could give persons sufficient 
warning to evade investigative efforts. Accordingly, application of 
exemption (j)(2) may be necessary.
    (J) Subsection (f). The agency's rules are inapplicable to those 
portions of

[[Page 873]]

the system that are exempt. Accordingly, application of exemptions 
(j)(2), (k)(1), and (k)(2) may be necessary.
    (K) Subsection (g). This subsection is inapplicable to the extent 
that the system is exempt from other specific subsections of the Privacy 
Act.
    (iv) Exempt records from other systems. In the course of carrying 
out the overall purpose for this system, exempt records from other 
systems of records may in turn become part of the records maintained in 
this system. To the extent that copies of exempt records from those 
other systems of records are maintained in this system, the DoD claims 
the same exemptions for the records from those other systems that are 
entered into this system, as claimed for the prior system(s) of which 
they are a part, provided the reason for the exemption remains valid and 
necessary.
    (6) System identifier and name. DoD 0007, ``Defense Reasonable 
Accommodation and Assistive Technology Records.''
    (i) Exemptions. This system of records is exempt from 5 U.S.C. 
552a(c)(3) and (4); (d)(1), (2), (3), and (4); (e)(4)(G), (H), and (I); 
and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(1).
    (iii) Exemption from the particular subsections. Exemption from the 
particular subsections pursuant to exemption (k)(1) is justified for the 
following reasons:
    (A) Subsections (c)(3), (c)(4), (d)(1), and (d)(2). Records in this 
system of records may contain information concerning individuals that is 
properly classified pursuant to executive order. Application of 
exemption (k)(1) for such records may be necessary because access to and 
amendment of the records, or release of the accounting of disclosures 
for such records, could reveal classified information. Disclosure of 
classified records to an individual may cause damage to national 
security. Accordingly, application of exemption (k)(1) may be necessary.
    (B) Subsections (d)(3) and (4). Subsections (d)(3) and (4) are 
inapplicable to the extent an exemption is claimed from (d)(2).
    (C) Subsections (e)(4)(G) and (H) and Subsection (f). Subsections 
(e)(4)(G) and (H) and subsection (f) are inapplicable to the extent 
exemption is claimed from the access and amendment provisions of 
subsection (d). Because portions of this system are exempt from the 
individual access and amendment provisions of subsection (d) for the 
reasons noted in paragraphs (e)(6)(iii)(A) and (B) of this section, DoD 
is not required to establish requirements, rules, or procedures with 
respect to such access or amendment provisions. Providing notice to 
individuals with respect to the existence of records pertaining to them 
in the system of records or otherwise setting up procedures pursuant to 
which individuals may access, view, and seek to amend records pertaining 
to themselves in the system would potentially undermine national 
security and the confidentiality of classified information. Accordingly, 
application of exemption (k)(1) may be necessary.
    (D) Subsection (e)(4)(I). To the extent that subsection (e)(4)(I) is 
construed to require more detailed disclosure than the broad information 
currently published in the system notice concerning categories of 
sources of records in the system, an exemption from this provision is 
necessary to protect national security and the confidentiality of 
sources and methods, and other classified information.
    (iv) Exempt records from other systems. In the course of carrying 
out the overall purpose for this system, exempt records from other 
systems of records may in turn become part of the records maintained in 
this system. To the extent that copies of exempt records from those 
other systems of records are maintained in this system, the DoD claims 
the same exemptions for the records from those other systems that are 
entered into this system, as claimed for the prior system(s) of which 
they are a part, provided the reason for the exemption remains valid and 
necessary.
    (7) System identifier and name: DoD-0008, ``Freedom of Information 
Act and Privacy Act Records''
    (i) Exemptions. This system of records is exempt from 5 U.S.C. 
552a(c)(3) and (4); (d)(1), (2), (3), and (4); (e)(1); (e)(2); (e)(3); 
(e)(4)(G), (H), and(I); (e)(5); (e)(8); (f) and (g).

[[Page 874]]

    (ii) Authority: 5 U.S.C. 552a(j)(2), (k)(1), (k)(2), (k)(3), (k)(5), 
(k)(6), and (k)(7).
    (iii) Exemption from the particular subsections. Exemption from the 
particular subsections is justified for the following reasons:
    (A) Subsection (c)(3), (d)(1), and (d)(2)--(1) Exemption (j)(2). 
Records in this system of records may contain information recompiled 
from other systems of records maintained by a DoD component or other 
agency which performs as its principal function activities pertaining to 
the enforcement of criminal laws and contain investigatory material 
compiled for criminal law enforcement purposes, including information 
identifying criminal offenders and alleged offenders, information 
compiled for the purpose of criminal investigation, or reports compiled 
during criminal law enforcement proceedings. Application of exemption 
(j)(2) may be necessary because access to, amendment of, or release of 
the accounting of disclosures of such records could inform the record 
subject of an investigation of the existence, nature, or scope of an 
actual or potential law enforcement or disciplinary investigation, and 
thereby seriously impede law enforcement or prosecutorial efforts by 
permitting the record subject and other persons to whom he might 
disclose the records to avoid criminal penalties or disciplinary 
measures; reveal confidential sources who might not have otherwise come 
forward to assist in an investigation and thereby hinder DoD or the 
other agency's ability to obtain information from future confidential 
sources and result in an unwarranted invasion of the privacy of others. 
Amendment of such records could also impose a highly impracticable 
administrative burden by requiring investigations to be continuously 
reinvestigated.
    (2) Exemption (k)(1). Records in this system of records may contain 
information that is properly classified pursuant to executive order. 
Application of exemption (k)(1) may be necessary because access to and 
amendment of the records, or release of the accounting of disclosures 
for such records, could reveal classified information. Disclosure of 
classified records to an individual may cause damage to national 
security.
    (3) Exemption (k)(2). Records in this system of records may contain 
information recompiled from other systems of records pertaining to 
investigatory material compiled for law enforcement purposes other than 
material within the scope of 5 U.S.C. 552a(j)(2). Application of 
exemption (k)(2) may be necessary because access to, amendment of, or 
release of the accounting of disclosures of such records could: inform 
the record subject of an investigation of the existence, nature, or 
scope of an actual or potential law enforcement or disciplinary 
investigation, and thereby seriously impede law enforcement or 
prosecutorial efforts by permitting the record subject and other persons 
to whom he might disclose the records or the accounting of records to 
avoid criminal penalties, civil remedies, or disciplinary measures; 
interfere with a civil or administrative action or investigation by 
allowing the subject to tamper with witnesses or evidence, and to avoid 
detection or apprehension, which may undermine the entire investigatory 
process; reveal confidential sources who might not have otherwise come 
forward to assist in an investigation and thereby hinder DoD's ability 
to obtain information from future confidential sources; and result in an 
unwarranted invasion of the privacy of others. Amendment of such records 
could also impose a highly impracticable administrative burden by 
requiring investigations to be continuously reinvestigated.
    (4) Exemption (k)(3). Records in this system of records may contain 
information recompiled from other systems of records pertaining to 
providing protective services to the President of the United States or 
other individuals pursuant to 18 U.S.C. 3056. Application of exemption 
(k)(3) for such records may be necessary because access to, amendment 
of, or release of the accounting of disclosures of such records could 
compromise the effectiveness of protective services, the safety of the 
individuals protected pursuant to 18 U.S.C. 3056, and the safety of the 
personnel providing protective services.

[[Page 875]]

    (5) Exemption (k)(5). Records in this system of records may contain 
information recompiled from other systems of records concerning 
investigatory material compiled solely for determining suitability, 
eligibility, and qualifications for Federal civilian employment, 
military service, Federal contracts, or access to classified 
information. In some cases, such records may contain information 
pertaining to the identity of a source who furnished information to the 
Government under an express promise that the source's identity would be 
held in confidence (or prior to the effective date of the Privacy Act, 
under an implied promise). Application of exemption (k)(5) may be 
necessary because access to, amendment of, or release of the accounting 
of disclosures of such records could identify these confidential sources 
who might not have otherwise come forward to assist the Government; 
hinder the Government's ability to obtain information from future 
confidential sources; and result in an unwarranted invasion of the 
privacy of others. Amendment of such records could also impose a highly 
impracticable administrative burden by requiring investigations to be 
continuously reinvestigated.
    (6) Exemption (k)(6). Records in this system of records may contain 
information recompiled from other systems of records relating to testing 
or examination material used solely to determine individual 
qualifications for appointment or promotion in the Federal service. 
Application of exemption (k)(6) may be necessary when access to and 
amendment of the records, or release of the accounting of disclosure for 
such records, may compromise the objectivity and fairness of the testing 
or examination process. Amendment of such records could also impose a 
highly impracticable administrative burden by requiring testing and 
examinations to be continuously re-administered.
    (7) Exemption (k)(7). Records in this system of records may contain 
evaluation material recompiled from other systems of records used to 
determine potential for promotion in the Armed Forces of the United 
States. In some cases, such records may contain information pertaining 
to the identity of a source who furnished information to the Government 
under an express promise that the source's identity would be held in 
confidence (or prior to the effective date of the Privacy Act, under an 
implied promise). Application of exemption (k)(7) may be necessary 
because access to, amendment of, or release of the accounting of 
disclosures of such records could identify these confidential sources 
who might not have otherwise come forward to assist the Government; 
hinder the Government's ability to obtain information from future 
confidential sources; and result in an unwarranted invasion of the 
privacy of others.
    (B) Subsection (c)(4), (d)(3) and (4). These subsections are 
inapplicable to the extent that an exemption is being claimed from 
subsections (d)(1) and (2).
    (C) Subsection (e)(1). In the collection of information for 
investigatory or law enforcement purposes, it is not always possible to 
conclusively determine the relevance and necessity of particular 
information in the early stages of the investigation or adjudication. In 
some instances, it will be only after the collected information is 
evaluated in light of other information that its relevance and necessity 
for effective investigation and adjudication can be assessed. Collection 
of such information permits more informed decision-making by the 
Department when making required disciplinary and prosecutorial 
determinations. Additionally, records within this system may be properly 
classified pursuant to executive order. Further, it is not always 
possible to determine relevancy or necessity of specific information in 
the earlier stages of responding to a FOIA or Privacy Act request or in 
litigation case development, including with respect to records 
pertaining to suitability determinations or armed services promotion 
evaluations that contain information about sources who were granted an 
express promise of confidentiality, or pertaining to 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. Such information may later be deemed unnecessary 
upon

[[Page 876]]

further assessment. Accordingly, application of exemptions (j)(2), 
(k)(1), (k)(2), (k)(3), (k)(5), (k)(6), or (k)(7) may be necessary.
    (D) Subsection (e)(2). To collect information from the subject 
individual could serve notice that he or she is the subject of a 
criminal investigation and thereby present a serious impediment to such 
investigations. Collection of information only from the individual 
accused of criminal activity or misconduct could also subvert discovery 
of relevant evidence and subvert the course of justice. Accordingly, 
application of exemption (j)(2) may be necessary.
    (E) Subsection (e)(3). To inform individuals as required by this 
subsection could reveal the existence of a criminal investigation and 
compromise investigative efforts. Accordingly, application of exemption 
(j)(2) may be necessary.
    (F) Subsections (e)(4)(G) and (H). These subsections are 
inapplicable to the extent an exemption is claimed from subsections 
(d)(1) and (2).
    (G) Subsection (e)(4)(I). To the extent that this provision is 
construed to require more detailed disclosure than the broad information 
currently published in the system notice concerning categories of 
sources of records in the system, an exemption from this provision is 
necessary to protect the confidentiality of sources of information, the 
privacy and physical safety of witnesses and informants, and testing or 
examination material used solely to determine individual qualifications 
for appointment of promotion in the Federal service. Accordingly, 
application of exemptions (j)(2), (k)(1), (k)(2), (k)(5), (k)(6), and 
(k)(7) may be necessary.
    (H) Subsection (e)(5). It is often impossible to determine in 
advance if investigatory records contained in this system are accurate, 
relevant, timely and complete, but, in the interests of effective law 
enforcement, it is necessary to retain this information to maintain an 
accurate record of the investigatory activity to preserve the integrity 
of the investigation and satisfy various Constitutional and evidentiary 
requirements, such as mandatory disclosure of potentially exculpatory 
information in the investigative file to a defendant. It is also 
necessary to retain this information to aid in establishing patterns of 
activity and provide investigative leads. With the passage of time, 
seemingly irrelevant or untimely information may acquire new 
significance as further investigation brings new details to light and 
the accuracy of such information can only be determined through judicial 
processes. Accordingly, application of exemption (j)(2) may be 
necessary.
    (I) Subsection (e)(8). To serve notice could give persons sufficient 
warning to evade investigative efforts. Accordingly, application of 
exemption (j)(2) may be necessary.
    (J) Subsection (f). To the extent that portions of the system are 
exempt from the provisions of the Privacy Act concerning individual 
access and amendment of records, DoD is not required to establish rules 
concerning procedures and requirements relating to such provisions. 
Accordingly, application of exemptions (j)(2), (k)(1), (k)(2), (k)(5), 
(k)(6), and (k)(7) may be necessary.
    (K) Subsection (g). This subsection is inapplicable to the extent 
that the system is exempt from other specific subsections of the Privacy 
Act to which the civil remedies provisions pertain.
    (iv) Exempt records from other systems. In the course of carrying 
out the overall purpose for this system, exempt records from other 
systems of records may in turn become part of the records maintained in 
this system. To the extent that copies of exempt records from those 
other systems of records are maintained in this system, the DoD claims 
the same exemptions for the records from those other systems that are 
entered into this system, as claimed for the prior system(s) of which 
they are a part, provided the reason for the exemption remains valid and 
necessary.
    (8) System identifier and name. DoD-0010, ``Counterintelligence 
Functional Services''
    (i) Exemptions. This system of records is exempt from 5 U.S.C. 
552a(c)(3); (d)(1), (2), (3), and (4); (e)(1); (e)(4)(G), (H), and (I); 
and (f) of the Privacy Act.
    (ii) Authority. 5 U.S.C. 552a(k)(1), (k)(2), and (k)(5).
    (iii) Exemption from the particular subsections. Exemption from the 
particular

[[Page 877]]

subsections is justified for the following reasons:
    (A) Subsections (c)(3), (d)(1), and (d)(2)--(1) Exemption (k)(1). 
Records in this system of records may contain information concerning 
individuals that is properly classified pursuant to executive order. 
Application of exemption (k)(1) for such records may be necessary 
because access to and amendment of the records, or release of the 
accounting of disclosures for such records, could reveal classified 
information. Disclosure of classified records to an individual may cause 
damage to national security.
    (2) Exemption (k)(2). Records in this system of records may contain 
investigatory material compiled for law enforcement purposes other than 
material within the scope of 5 U.S.C. 552a(j)(2). Application of 
exemption (k)(2) may be necessary because access to, amendment of, or 
release of the accounting of disclosures of such records could: inform 
the record subject of an investigation of the existence, nature, or 
scope of an actual or potential law enforcement or disciplinary 
investigation, and thereby seriously impede law enforcement or 
prosecutorial efforts by permitting the record subject and other persons 
to whom he might disclose the records or the accounting of records to 
avoid criminal penalties, civil remedies, or disciplinary measures; 
interfere with a civil or administrative action or investigation by 
allowing the subject to tamper with witnesses or evidence, and to avoid 
detection or apprehension, which may undermine the entire investigatory 
process; reveal confidential sources who might not have otherwise come 
forward to assist in an investigation and thereby hinder DoD's ability 
to obtain information from future confidential sources; and result in an 
unwarranted invasion of the privacy of others. Amendment of such records 
could also impose a highly impracticable administrative burden by 
requiring investigations to be continuously reinvestigated.
    (3) Exemption (k)(5). Records in this system of records may contain 
information concerning investigatory material compiled solely for 
determining suitability, eligibility, and qualifications for Federal 
civilian employment, military service, Federal contracts, or access to 
classified information. In some cases, such records may contain 
information pertaining to the identity of a source who furnished 
information to the Government under an express promise the source's 
identity would be held in confidence (or prior to the effective date of 
the Privacy Act, under an implied promise). Application of exemption 
(k)(5) may be necessary because access to, amendment of, or release of 
the accounting of disclosures of such records could identify these 
confidential sources who might not have otherwise come forward to assist 
the Government; hinder the Government's ability to obtain information 
from future confidential sources; and result in an unwarranted invasion 
of the privacy of others. Amendment of such records could also impose a 
highly impracticable administrative burden by requiring investigations 
to be continuously reinvestigated.
    (B) Subsections (d)(3) and (4). These subsections are inapplicable 
to the extent an exemption is claimed from subsections (d)(1) and (2).
    (C) Subsection (e)(1). In the collection of information for 
investigatory or law enforcement purposes, it is not always possible to 
conclusively determine the relevance and necessity of particular 
information in the early stages of the investigation or adjudication. In 
some instances, it will be only after the collected information is 
evaluated in light of other information that its relevance and necessity 
for effective investigation and adjudication can be assessed. Collection 
of such information permits more informed decision-making by the 
Department when making required suitability, eligibility, fitness, and 
credentialing determinations. Accordingly, application of exemptions 
(k)(1), (k)(2), and (k)(5) may be necessary.
    (D) Subsections (e)(4)(G) and (H). These subsections are 
inapplicable to the extent exemption is claimed from subsections (d)(1) 
and (2). Because portions of this system are exempt from the individual 
access and amendment provisions of subsection (d) forthe reasons noted 
above, DoD is not required to establish requirements, rules, or 
procedures with respect to such access

[[Page 878]]

or amendment provisions. Providing notice to individuals with respect to 
the existence of records pertaining to them in the system of records or 
otherwise setting up procedures pursuant to which individuals may 
access,view, and seek to amend records pertaining to themselves in the 
system would potentially reveal classified information, undermine 
investigative efforts, reveal the identities of witnesses, potential 
witnesses, and confidential informants, and impose an undue 
administrative burden by requiring investigations to be continually 
reinvestigated. Accordingly, application of exemptions (k)(1), (k)(2), 
and (k)(5) may be necessary.
    (E) Subsection (e)(4)(I). To the extent that this provision is 
construed to require more detailed disclosure than the broad, general 
information currently published in the system notice concerning the 
categories of sources of the records in the system, an exemption from 
this provision is necessary to protect classified information, other 
national security information, and the confidentiality of national 
security, law enforcement, and investigatory sources of information, and 
to protect the privacy and physical safety of witnesses and informants. 
Accordingly, application of exemptions (k)(1), (k)(2) and (k)(5) may be 
necessary.
    (F) Subsection (f). The agency's rules are inapplicable to those 
portions of the system that are exempt. Accordingly, application of 
exemptions (k)(1), (k)(2), and (k)(5) may be necessary.
    (iv) Exempt records from other systems. In the course of carrying 
out the overall purpose for this system, exempt records from other 
systems of records may in turn become part of the records maintained in 
this system. To the extent that copies of exempt records from those 
other systems of records are maintained in this system, the DoD claims 
the same exemptions for the records from those other systems that are 
entered into this system, as claimed for the prior system(s) of which 
they are a part, provided the reason for the exemption remains valid and 
necessary.
    (9) System identifier and name. DoD-0003, ``Mobilization Deployment 
Management Information System (MDMIS).''
    (i) Exemptions. This system of records is exempt from subsections 5 
U.S.C. 552a(c)(3), (d)(1), (d)(2), (d)(3), and (d)(4) of the Privacy 
Act.
    (ii) Authority. 5 U.S.C. 552a(k)(1).
    (iii) Exemption from the particular subsections. Exemption from the 
particular subsections is justified for the following reasons:
    (A) Subsection (c)(3) (accounting of disclosures). Because records 
in this system may contain information properly classified pursuant to 
executive order, the disclosure accountings of such records may also 
contain information properly classified pursuant to executive order, the 
disclosure of which may cause damage to national security.
    (B) Subsections (d)(1), (2), (3), and (4) (record subject's right to 
access and amend records). Access to and amendment of records by the 
record subject could disclose information properly classified pursuant 
to executive order. Disclosure of classified records to an individual 
may cause damage to national security.
    (iv) Exempt records from other systems. In addition, in the course 
of carrying out the overall purpose for this system, exempt records from 
other system of records may in turn become part of the records 
maintained in this system. To the extent that copies of exempt records 
from those other systems of records are maintained in this system, the 
DoD claims the same exemptions for the records from those other systems 
that are entered into this system, as claimed for the prior system(s) of 
which they are a part, provided the reason for the exemption remains 
valid and necessary.
    (10) System identifier and name. DoD-0012, ``Defense Accountability 
and Assessment Records''
    (i) Exemptions. This system of records is exempt from 5 U.S.C. 
552a(c)(3); (d)(1), (2), (3), and (4); (e)(1); (e)(4)(G), (H), and (I); 
and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(1).
    (iii) Exemption from the particular subsections. Exemption from the 
particular subsections of the Privacy Act of 1974, as amended, pursuant 
to exemption (k)(1) is justified for the following reasons:
    (A) Subsections (c)(3), (d)(1), and (d)(2). Records in this system 
of records may

[[Page 879]]

contain information concerning individuals that is properly classified 
pursuant to executive order. Application of exemption (k)(1) for such 
records may be necessary because access to and amendment of the records, 
or release of the accounting of disclosures for such records, could 
reveal classified information. Disclosure of classified records to an 
individual may cause damage to national security. Accordingly, 
application of exemption (k)(1) may be necessary.
    (B) Subsections (d)(3) and (4). These subsections are inapplicable 
to the extent an exemption is claimed from (d)(2).
    (C) Subsection (e)(1). Records within this system may be properly 
classified pursuant to executive order. In the collection of information 
to respond to natural or man-made disasters, public health emergencies, 
and other crises or events of concern, it is not always possible to 
conclusively determine the relevance and necessity of particular 
information in the early stages of these types of occurrences. 
Additionally, disclosure of classified records to an individual may 
cause damage to national security. Accordingly, application of exemption 
(k)(1) may be necessary.
    (D) Subsections (e)(4)(G) and (H) and Subsection (f). These 
subsections are inapplicable to the extent exemption is claimed from the 
access and amendment provisions of subsection (d). Because portions of 
this system are exempt from the individual access and amendment 
provisions of subsection (d) for the reasons noted above, DoD is not 
required to establish requirements, rules, or procedures with respect to 
such access or amendment provisions. Providing notice to individuals 
with respect to the existence of records pertaining to them in the 
system of records or otherwise setting up procedures pursuant to which 
individuals may access, view, and seek to amend records pertaining to 
themselves in the system would potentially undermine national security 
and the confidentiality of classified information. Accordingly, 
application of exemption (k)(1) may be necessary.
    (E) Subsection (e)(4)(I). To the extent that this provision is 
construed to require more detailed disclosure than the broad information 
currently published in the system notice concerning categories of 
sources of records in the system, an exemption from this provision is 
necessary to protect national security and the confidentiality of 
sources and methods, and other classified information.
    (iv) Exempt records from other systems. In the course of carrying 
out the overall purpose for this system, exempt records from other 
systems of records may in turn become part of the records maintained in 
this system. To the extent that copies of exempt records from those 
other systems of records are maintained in this system, the DoD claims 
the same exemptions for the records from those other systems that are 
entered into this system, as claimed for the prior system(s) of which 
they are a part, provided the reason for the exemption remains valid and 
necessary.
    (11) System identifier and name. DoD-0014, ``DoD Historical 
Records.''
    (i) Exemptions. This system of records is exempt from 5 U.S.C. 
552a(c)(3); (d)(1), (2), (3), and (4); (e)(1), (e)(4)(G), (H), and (I); 
and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(1).
    (iii) Exemption from the particular subsections. Exemption from the 
particular subsections of the Privacy Act of 1974, as amended, pursuant 
to exemption (k)(1) is justified for the following reasons:
    (A) Subsections (c)(3), (d)(1), and (d)(2). Records in this system 
of records may contain information concerning individuals that is 
properly classified pursuant to Executive order. Application of 
exemption (k)(1) for such records may be necessary because access to and 
amendment of the records, or release of the accounting of disclosures 
for such records, could reveal classified information. Disclosure of 
classified records to an individual may cause damage to national 
security. Accordingly, application of exemption (k)(1) may be necessary.
    (B) Subsections (d)(3) and (4). Subsections (d)(3) and (4) are 
inapplicable to the extent an exemption is claimed from subsection 
(d)(2).
    (C) Subsection (e)(1). Records within this system may be properly 
classified pursuant to Executive order. In the

[[Page 880]]

collection of information for historical activities, it is not always 
possible to conclusively determine the relevance and necessity of 
particular information in the early stages of these types of activities. 
Additionally, disclosure of classified records to an individual may 
cause damage to national security. Accordingly, application of exemption 
(k)(1) may be necessary.
    (D) Subsections (e)(4)(G) and (H) and subsection (f). Subsections 
(e)(4)(G) and (H) and subsection (f) are inapplicable to the extent 
exemption is claimed from the access and amendment provisions of 
subsection (d). Because portions of this system are exempt from the 
individual access and amendment provisions of subsection (d) for the 
reasons noted in the preceding sentence, DoD is not required to 
establish requirements, rules, or procedures with respect to such access 
or amendment provisions. Providing notice to individuals with respect to 
the existence of records pertaining to them in the system of records or 
otherwise setting up procedures pursuant to which individuals may 
access, view, and seek to amend records pertaining to themselves in the 
system would potentially undermine national security and the 
confidentiality of classified information. Accordingly, application of 
exemption (k)(1) may be necessary.
    (E) Subsection (e)(4)(I). To the extent that subsection (e)(4)(I) is 
construed to require more detailed disclosure than the broad information 
currently published in the system notice concerning categories of 
sources of records in the system, an exemption from subsection (e)(4)(I) 
is necessary to protect national security and the confidentiality of 
sources and methods, and other classified information.
    (iv) Exempt records from other systems. In the course of carrying 
out the overall purpose for this system, exempt records from other 
systems of records may in turn become part of the records maintained in 
this system. To the extent that copies of exempt records from those 
other systems of records are maintained in this system, the DoD claims 
the same exemptions for the records from those other systems that are 
entered into this system, as claimed for the prior system(s) of which 
they are a part, provided the reason for the exemption remains valid and 
necessary.
    (12) System identifier and name. DoD-0013, ``Declared Public Health 
Emergency Exposure Records''
    (i) Exemptions. This system of records is exempt from 5 U.S.C. 
552a(c)(3); (d)(1), (2), (3), and (4); (e)(1); (e)(4)(G), (H), and (I); 
and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(1).
    (iii) Exemption from the particular subsections. Exemption from the 
particular subsections of the Privacy Act of 1974, as amended, pursuant 
to exemption (k)(1) is justified for the following reasons:
    (A) Subsections (c)(3), (d)(1), and (d)(2). Records in this system 
of records may contain information concerning individuals that is 
properly classified pursuant to executive order. Application of 
exemption (k)(1) for such records may be necessary because access to and 
amendment of the records, or release of the accounting of disclosures 
for such records, could reveal classified information. Disclosure of 
classified records to an individual may cause damage to national 
security. Accordingly, application of exemption (k)(1) may be necessary.
    (B) Subsections (d)(3) and (4). These subsections are inapplicable 
to the extent an exemption is claimed from (d)(2).
    (C) Subsection (e)(1). Records within this system may be properly 
classified pursuant to executive order. In the collection of information 
for historical activities, it is not always possible to conclusively 
determine the relevance and necessity of particular information in the 
early stages of these types of activities. Additionally, disclosure of 
classified records to an individual may cause damage to national 
security. Accordingly, application of exemption (k)(1) may be necessary.
    (D) Subsections (e)(4)(G) and (H) and Subsection (f). These 
subsections are inapplicable to the extent exemption is claimed from the 
access and amendment provisions of subsection (d). Because portions of 
this system are exempt from the individual access and amendment 
provisions of subsection (d) for the reasons noted above, DoD is not 
required to establish requirements,

[[Page 881]]

rules, or procedures with respect to such access or amendment 
provisions. Providing notice to individuals with respect to the 
existence of records pertaining to them in the system of records or 
otherwise setting up procedures pursuant to which individuals may 
access, view, and seek to amend records pertaining to themselves in the 
system would potentially undermine national security and the 
confidentiality of classified information. Accordingly, application of 
exemption (k)(1) may be necessary.
    (E) Subsection (e)(4)(I). To the extent that this provision is 
construed to require more detailed disclosure than the broad information 
currently published in the system notice concerning categories of 
sources of records in the system, an exemption from this provision is 
necessary to protect national security and the confidentiality of 
sources and methods, and other classified information.
    (iv) Exempt records from other systems. In the course of carrying 
out the overall purpose for this system, exempt records from other 
systems of records may in turn become part of the records maintained in 
this system. To the extent that copies of exempt records from those 
other systems of records are maintained in this system, the DoD claims 
the same exemptions for the records from those other systems that are 
entered into this system, as claimed for the prior system(s) of which 
they are a part, provided the reason for the exemption remains valid and 
necessary.
    (13) System identifier and name. DoD-0017, ``Privacy and Civil 
Liberties Complaints and Correspondence.''
    (i) Exemptions. This system of records is exempt from 5 U.S.C. 
552a(c)(3); (d)(1), (2), (3), and (4); (e)(1); (e)(4)(G), (H), and (I); 
and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(1).
    (iii) Exemption from the particular subsections. Exemption from the 
particular subsections of the Privacy Act of 1974, as amended, pursuant 
to exemption (k)(1) is justified for the following reasons:
    (A) Subsections (c)(3), (d)(1), and (d)(2). Records in this system 
of records may contain information concerning individuals that is 
properly classified pursuant to executive order. Application of 
exemption (k)(1) for such records may be necessary because access to and 
amendment of the records, or release of the accounting of disclosures 
for such records, could reveal classified information. Disclosure of 
classified records to an individual may cause damage to national 
security. Accordingly, application of exemption (k)(1) may be necessary.
    (B) Subsections (d)(3) and (4). These subsections are inapplicable 
to the extent an exemption is claimed from (d)(1) and (d)(2).
    (C) Subsection (e)(1). Records within this system may be properly 
classified pursuant to executive order. In the collection of information 
for privacy and civil liberties complaints or correspondence, it is not 
always possible to conclusively determine the relevance and necessity of 
particular information in the early stages of gathering information to 
respond to the correspondence or complaint. Additionally, disclosure of 
classified records to an individual may cause damage to national 
security. Accordingly, application of exemption (k)(1) may be necessary.
    (D) Subsections (e)(4)(G) and (H) and Subsection (f). These 
subsections are inapplicable to the extent exemption is claimed from the 
access and amendment provisions of subsection (d). Because portions of 
this system are exempt from the individual access and amendment 
provisions of subsection (d) for the reasons noted above, DoD is not 
required to establish requirements, rules, or procedures with respect to 
such access or amendment provisions. Providing notice to individuals 
with respect to the existence of records pertaining to them in the 
system of records or otherwise setting up procedures pursuant to which 
individuals may access, view, and seek to amend records pertaining to 
themselves in the system would potentially undermine national security 
and the confidentiality of classified information. Accordingly, 
application of exemption (k)(1) may be necessary.
    (E) Subsection (e)(4)(I). To the extent that this provision is 
construed to require more detailed disclosure than the broad information 
currently published

[[Page 882]]

in the system notice concerning categories of sources of records in the 
system, an exemption from this provision is necessary to protect 
national security and the confidentiality of sources and methods, and 
other classified information.
    (iv) Exempt records from other systems. In the course of carrying 
out the overall purpose for this system, exempt records from other 
systems of records may in turn become part of the records maintained in 
this system. To the extent that copies of exempt records from those 
other systems of records are maintained in this system, the DoD claims 
the same exemptions for the records from those other systems that are 
entered into this system, as claimed for the prior system(s) of which 
they are a part, provided the reason for the exemption remains valid and 
necessary.

[84 FR 14730, Apr. 11, 2019, as amended at 86 FR 38561, July 22, 2021; 
86 FR 52072, Sept. 20, 2021; 86 FR 72524, Dec. 22, 2021; 87 FR 28775, 
May 11, 2022; 87 FR 30417, May 19, 2022; 87 FR 51612, Aug. 23, 2022; 87 
FR 54153, Sept. 2, 2022; 87 FR 76934, Dec. 16, 2022; 88 FR 11396, Feb. 
23, 2023; 88 FR 24479, Apr. 21, 2023]



Sec. 310.14  Department of the Air Force exemptions.

    (a) All systems of records maintained by the Department of the Air 
Force shall be exempt from the requirements of 5 U.S.C. 552a(d) pursuant 
to 5 U.S.C. 552a(k)(1) to the extent that the system contains any 
information properly classified under Executive Order 12958 and that is 
required by Executive Order to be kept classified in the interest of 
national defense or foreign policy. This exemption is applicable to 
parts of all systems of records including those not otherwise 
specifically designated for exemptions herein, which contain isolated 
items of properly classified information.
    (b) An individual is not entitled to have access to any information 
compiled in reasonable anticipation of a civil action or proceeding (5 
U.S.C. 552a(d)(5)).
    (c) No system of records within Department of the Air Force shall be 
considered exempt under subsection (j) or (k) of the Privacy Act until 
the exemption rule for the system of records has been published as a 
final rule in the Federal Register.
    (d) Consistent with the legislative purpose of the Privacy Act of 
1974, the Department of the Air Force will grant access to non-exempt 
material in the records being maintained. Disclosure will be governed by 
the Department of the Air Force's Privacy Instruction, but will be 
limited to the extent that identity of confidential sources will not be 
compromised; subjects of an investigation of an actual or potential 
violation will not be alerted to the investigation; the physical safety 
of witnesses, informants and law enforcement personnel will not be 
endangered, the privacy of third parties will not be violated; and that 
the disclosure would not otherwise impede effective law enforcement. 
Whenever possible, information of the above nature will be deleted from 
the requested documents and the balance made available. The controlling 
principle behind this limited access is to allow disclosures except 
those indicated above. The decisions to release information from these 
systems will be made on a case-by-case basis.
    (e) General exemptions. The following systems of records claim an 
exemption under 5 U.S.C. 552a(j)(2), with the exception of F090 AF IG B, 
Inspector General Records and F051 AF JA F, Courts-Martial and Article 
15 Records. They claim both the (j)(2) and (k)(2) exemption, and are 
listed under this part:
    (1) System identifier and name. F071 AF OSI A, Counter Intelligence 
Operations and Collection Records.
    (2) System identifier and name. F071 AF OSI C, Criminal Records.
    (3) System identifier and name. F071 AF OSI D, Investigative Support 
Records.
    (4) System identifier and name. F031 AF SP E, Security Forces 
Management Information System (SFMIS).
    (i) Exemption. Parts of this system may be exempt pursuant to 5 
U.S.C. 552a(j)(2) if information is compiled and maintained by a 
component of the agency which performs as its principle function any 
activity pertaining to the enforcement of criminal laws. Therefore, 
portions of this system of records may be exempt pursuant to 5 U.S.C. 
552a(j)(2) from the following subsections of 5 U.S.C. 552a(c)(3), 
(c)(4), (d),

[[Page 883]]

(e)(1), (e)(2), (e)(3), (e)(4)(G), and (I), (e)(5), (e)(8), (f), and 
(g).
    (ii) Authority. 5 U.S.C. 552a(j)(2).
    (iii) Reasons. (A) To protect ongoing investigations and to protect 
from access criminal investigation information contained in this record 
system, so as not to jeopardize any subsequent judicial or 
administrative process taken as a result of information contained in the 
file.
    (B) From subsection (c)(3) because the release of the disclosure 
accounting, for disclosures pursuant to the routine uses published for 
this system, would permit the subject criminal investigation or matter 
under investigation to obtain valuable information concerning the nature 
of that investigation which will present a serious impediment to law 
enforcement.
    (C) From subsection (c)(4) because an exemption is being claimed for 
subsection this subsection will not be applicable.
    (D) From subsection (d) because access the records contained in this 
system would inform the subject of an investigation of existence of that 
investigation, provide subject of the investigation with information 
that might enable him to avoid detection, and would present a serious 
impediment to law enforcement.
    (E) From subsection (e)(4)(H) because system of records is exempt 
from individual access pursuant to subsection (j) of the Privacy Act of 
1974.
    (F) From subsection (f) because this system of records has been 
exempted from access provisions of subsection (d).
    (5) System identifier and name. F031 AF SF A, Correction and 
Rehabilitation Records.
    (i) Exemption. Parts of this system may be exempt pursuant to 5 
U.S.C. 552a(j)(2) if information is compiled and maintained by a 
component of the agency which performs as its principle function any 
activity pertaining to the enforcement of criminal laws. Portions of 
this system of records may be exempt pursuant to 5 U.S.C. 552a(j)(2) 
from the following subsections of 5 U.S.C. 552a(c)(3), (c)(4), (d), 
(e)(3), (e)(4)(G), (H) and (I), (e)(5), (e)(8), (f), and (g).
    (ii) Authority. 5 U.S.C. 552a(j)(2).
    (iii) Reasons. (A) From subsection (c)(3) because the release of the 
disclosure accounting, for disclosures pursuant to the routine uses 
published for this system, would permit the subject of a criminal 
investigation or matter under investigation to obtain valuable 
information concerning the nature of that investigation which will 
present a serious impediment to law enforcement.
    (B) From subsection (c)(4) because an exemption is being claimed for 
subsection (d), this subsection will not be applicable.
    (C) From subsection (d) because access to the records contained in 
this system would inform the subject of a criminal investigation of the 
existence of that investigation, provide the subject of the 
investigation with information that might enable him to avoid detection 
or apprehension, and would present a serious impediment to law 
enforcement.
    (D) From subsection (e)(3) would constitute a serious impediment to 
law enforcement in that it could compromise the existence of a 
confidential investigation, reveal the identity of confidential sources 
of information and endanger the life and physical safety of confidential 
informants.
    (E) From subsections (e)(4)(G) and (H) because this system of 
records is exempt from individual access pursuant to subsections (j)(2) 
of the Privacy Act of 1974.
    (F) From subsection (e)(4)(I) because the identity of specific 
sources must be withheld in order to protect the confidentiality of the 
sources of criminal and other law enforcement information. This 
exemption is further necessary to protect the privacy and physical 
safety of witnesses and informants.
    (G) From subsection (e)(5) because in the collection of information 
for law enforcement purposes it is impossible to determine in advance 
what information is accurate, relevant, timely, and complete. With the 
passage of time, seemingly irrelevant or untimely information may 
acquire new significance as further investigation brings new details to 
light and the accuracy of such information can only be determined in a 
court of law. The restrictions of subsection (e)(5) would restrict the 
ability

[[Page 884]]

of trained investigators and intelligence analysts to exercise their 
judgment reporting on investigations and impede the development of 
intelligence necessary for effective law enforcement.
    (H) From subsection (e)(8) because the individual notice 
requirements of subsection (e)(8) could present a serious impediment to 
law enforcement as this could interfere with the ability to issue search 
authorizations and could reveal investigative techniques and procedures.
    (I) From subsection (f) because this system of records has been 
exempted from the access provisions of subsection (d).
    (J) From subsection (g) because this system of records compiled for 
law enforcement purposes and has been exempted from the access 
provisions of subsections (d) and (f).
    (6) System identifier and name. F090 AF IG B, Inspector General 
Records.
    (i) Exemption. (A) Parts of this system of records may be exempt 
pursuant to 5 U.S.C. 552a(j)(2) if the information is compiled and 
maintained by a component of the agency which performs as its principle 
function any activity pertaining to the enforcement of criminal laws. 
Therefore, portions of this system of records may be exempt pursuant to 
5 U.S.C. 552a(j)(2) from the following subsections of 5 U.S.C. 
552a(c)(3), (c)(4), (d), (e)(1), (e)(2), (e)(3), (e)(4)(G), (H), and 
(I), (e)(5), (e)(8), (f), and (g).
    (B) Investigative material compiled for law enforcement purposes, 
other than material within the scope of subsection 5 U.S.C. 552a(j)(2), 
may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an individual 
is denied any right, privilege, or benefit for which he would otherwise 
be entitled by Federal law or for which he would otherwise be eligible, 
as a result of the maintenance of the information, the individual will 
be provided access to the information exempt to the extent that 
disclosure would reveal the identity of a confidential source.

    Note 1 to paragraph (e)(6)(i)(B). When claimed, this exemption 
allows limited protection of investigative reports maintained in a 
system of records used in personnel or administrative actions. 
Therefore, portions of this system of records may be exempt pursuant to 
5 U.S.C. 552a(k)(2) from the following subsections of 5 U.S.C. 
552a(c)(3), (d), (e)(1), (e)(4)(G), (H) and (I), and (f).

    (ii) Authority. 5 U.S.C. 552a(j)(2) and (k)(2).
    (iii) Reasons. (A) From subsection (c)(3) because the release of 
accounting of disclosure would inform a subject that he or she is under 
investigation. This information would provide considerable advantage to 
the subject in providing him or her with knowledge concerning the nature 
of the investigation and the coordinated investigative efforts and 
techniques employed by the cooperating agencies. This would greatly 
impede the Air Force IG's criminal law enforcement.
    (B) From subsection (c)(4) and (d), because notification would alert 
a subject to the fact that an open investigation on that individual is 
taking place, and might weaken the ongoing investigation, reveal 
investigative techniques, and place confidential informants in jeopardy.
    (C) From subsection (e)(1) because the nature of the criminal and/or 
civil investigative function creates unique problems in prescribing a 
specific parameter in a particular case with respect to what information 
is relevant or necessary. Also, information may be received which may 
relate to a case under the investigative jurisdiction of another agency. 
The maintenance of this information may be necessary to provide leads 
for appropriate law enforcement purposes and to establish patterns of 
activity that may relate to the jurisdiction of other cooperating 
agencies.
    (D) From subsection (e)(2) because collecting information to the 
fullest extent possible directly from the subject individual may or may 
not be practical in a criminal and/or civil investigation.
    (E) From subsection (e)(3) because supplying an individual with a 
form containing a Privacy Act Statement would tend to inhibit 
cooperation by many individuals involved in a criminal and/or civil 
investigation. The effect would be somewhat adverse to established 
investigative methods and techniques.
    (F) From subsections (e)(4)(G), (H), and (I) because this system of 
records

[[Page 885]]

is exempt from the access provisions of subsection (d) and (f).
    (G) From subsection (e)(5) because the requirement that records be 
maintained with attention to accuracy, relevance, timeliness, and 
completeness would unfairly hamper the investigative process. It is the 
nature of law enforcement for investigations to uncover the commission 
of illegal acts at diverse stages. It is frequently impossible to 
determine initially what information is accurate, relevant, timely, and 
least of all complete. With the passage of time, seemingly irrelevant or 
untimely information may acquire new significance as further 
investigation brings new details to light.
    (H) From subsection (e)(8) because the notice requirements of this 
provision could present a serious impediment to law enforcement by 
revealing investigative techniques, procedures, and existence of 
confidential investigations.
    (I) From subsection (f) because the agency's rules are inapplicable 
to those portions of the system that are exempt and would place the 
burden on the agency of either confirming or denying the existence of a 
record pertaining to a requesting individual might in itself provide an 
answer to that individual relating to an ongoing investigation. The 
conduct of a successful investigation leading to the indictment of a 
criminal offender precludes the applicability of established agency 
rules relating to verification of record, disclosure of the record to 
that individual, and record amendment procedures for this record system.
    (J) From subsection (g) because this system of records should be 
exempt to the extent that the civil remedies relate to provisions of 5 
U.S.C. 552a from which this rule exempts the system.
    (7) System identifier and name. F051 AF JA F, Courts-Martial and 
Article 15 Records.
    (i) Exemption. (A) Parts of this system may be exempt pursuant to 5 
U.S.C. 552a(j)(2) if the information is compiled and maintained by a 
component of the agency which performs as its principle function any 
activity pertaining to the enforcement of criminal laws. Therefore, 
portions of this system of records may be exempt pursuant to 5 U.S.C. 
552a(j)(2) from the following subsection of 5 U.S.C. 552a(c)(3), (c)(4), 
(d), (e)(1), (e)(2), (e)(3), (e)(4)(G), (H) and (I), (e)(5), (e)(8), 
(f), and (g).
    (B) Investigatory material compiled for law enforcement purposes, 
other than material within the scope of subsection 5 U.S.C. 552a(j)(2), 
may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an individual 
is denied any right, privilege, or benefit for which he would otherwise 
be entitled by Federal law or for which he would otherwise be eligible, 
as a result of the maintenance of the information, the individual will 
be provided access to the information exempt to the extent that 
disclosure would reveal the identity of a confidential source.

    Note 1 to paragraph (e)(7)(i)(B). When claimed, this exemption 
allows limited protection of investigative reports maintained in a 
system of records used in personnel or administrative actions. 
Therefore, portions of this system of records may be exempt pursuant to 
5 U.S.C. 552a(k)(2) from the following subsections of 5 U.S.C. 
552a(c)(3), (d), (e)(1), (e)(4)(G), (H) and (I), and (f).

    (ii) Authority. 5 U.S.C. 552a(j)(2) and (k)(2).
    (iii) Reasons. (A) From subsection (c)(3) because the release of the 
disclosure accounting, for disclosures pursuant to the routine uses 
published for this system, would permit the subject of a criminal 
investigation or matter under investigation to obtain valuable 
information concerning the nature of that investigation which will 
present a serious impediment to law enforcement.
    (B) From subsection (c)(4) because an exemption is being claimed for 
subsection (d), this subsection will not be applicable.
    (C) From subsection (d) because access to the records contained in 
this system would inform the subject of a criminal investigation of the 
existence of that investigation, provide the subject of the 
investigation with information that might enable him to avoid detection 
or apprehension, and would present a serious impediment to law 
enforcement.
    (D) From subsection (e)(1) because in the course of criminal 
investigations information is often obtained concerning the violation of 
laws or civil

[[Page 886]]

obligations of others not relating to an active case or matter. In the 
interests of effective law enforcement, it is necessary that this 
information be retained since it can aid in establishing patterns of 
activity and provide valuable leads for other agencies and future cases 
that may be brought.
    (E) From subsection (e)(2) because in a criminal investigation the 
requirement that information be collected to the greatest extent 
possible from the subject individual would present a serious impediment 
to law enforcement in that the subject of the investigation would be 
placed on notice of the existence of the investigation and would 
therefore be able to avoid detection.
    (F) From subsection (e)(3) because the requirement that individuals 
supplying information be provided with a form stating the requirements 
of subsection (e)(3) would constitute a serious impediment to law 
enforcement in that it could compromise the existence of a confidential 
investigation, reveal the identity of confidential sources of 
information and endanger the life and physical safety of confidential 
informants.
    (G) From subsections (e)(4)(G) and (H) because this system of 
records is exempt from individual access pursuant to subsections (j) and 
(k) of the Privacy Act of 1974.
    (H) From subsection (e)(4)(I) because the identity of specific 
sources must be withheld in order to protect the confidentiality of the 
sources of criminal and other law enforcement information. This 
exemption is further necessary to protect the privacy and physical 
safety of witnesses and informants.
    (I) From subsection (e)(5) because in the collection of information 
for law enforcement purposes it is impossible to determine in advance 
what information is accurate, relevant, timely, and complete. With the 
passage of time, seemingly irrelevant or untimely information may 
acquire new significance as further investigation brings new details to 
light and the accuracy of such information can only be determined in a 
court of law. The restrictions of subsection (e)(5) would restrict the 
ability of trained investigators and intelligence analysts to exercise 
their judgment in reporting on investigations and impede the development 
of intelligence necessary for effective law enforcement.
    (J) From subsection (e)(8) because the individual notice 
requirements of subsection (e)(8) could present a serious impediment to 
law enforcement as this could interfere with the ability to issue search 
authorizations and could reveal investigative techniques and procedures.
    (K) From subsection (f) because this system of records has been 
exempted from the access provisions of subsection (d).
    (L) From subsection (g) because this system of records is compiled 
for law enforcement purposes and has been exempted from the access 
provisions of subsections (d) and (f).
    (8) System identifier and name. F071 JTF A, Computer Network Crime 
Case System.
    (i) Exemption. (A) Parts of this system may be exempt pursuant to 5 
U.S.C. 552a(j)(2) if the information is compiled and maintained by a 
component of the agency, which performs as its principle function any 
activity pertaining to the enforcement of criminal laws. Any portion of 
this system of records which falls within the provisions of 5 U.S.C. 
552a(j)(2) may be exempt from the following subsections of 5 U.S.C. 
552a(c)(3), (c)(4), (d), (e)(1), (e)(2), (e)(3), (e)(4)(G), (H), and 
(I), (e)(5), (e)(8), (f), and (g).
    (B) Investigatory material compiled for law enforcement purposes, 
other than material within the scope of subsection 5 U.S.C. 552a(j)(2), 
may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an individual 
is denied any right, privilege, or benefit for which he would otherwise 
be entitled by Federal law or for which he would otherwise be eligible, 
as a result of the maintenance of the information, the individual will 
be provided access to the information exempt to the extent that 
disclosure would reveal the identity of a confidential source.

    Note 1 to paragraph (e)(8)(i)(B). When claimed, this exemption 
allows limited protection of investigative reports maintained in a 
system of records used in personnel or administrative actions. Any 
portion of this system of records which falls within the provisions of 5 
U.S.C. 552a(k)(2) may be exempt from the following subsections of 5 
U.S.C.

[[Page 887]]

552a(c)(3), (d), (e)(1), (e)(4)(G), (H) and (I), and (f).

    (ii) Authority. 5 U.S.C. 552a(j)(2) and (k)(2).
    (iii) Reasons. (A) From subsection (c)(3) because the release of 
accounting of disclosure would inform a subject that he or she is under 
investigation. This information would provide considerable advantage to 
the subject in providing him or her with knowledge concerning the nature 
of the investigation and the coordinated investigative efforts and 
techniques employed by the cooperating agencies. This would greatly 
impede criminal law enforcement.
    (B) From subsection (c)(4) and (d), because notification would alert 
a subject to the fact that an open investigation on that individual is 
taking place, and might weaken the ongoing investigation, reveal 
investigative techniques, and place confidential informants in jeopardy.
    (C) From subsection (e)(1) because the nature of the criminal and/or 
civil investigative function creates unique problems in prescribing a 
specific parameter in a particular case with respect to what information 
is relevant or necessary. Also, information may be received which may 
relate to a case under the investigative jurisdiction of another agency. 
The maintenance of this information may be necessary to provide leads 
for appropriate law enforcement purposes and to establish patterns of 
activity that may relate to the jurisdiction of other cooperating 
agencies.
    (D) From subsection (e)(2) because collecting information to the 
fullest extent possible directly from the subject individual may or may 
not be practical in a criminal and/or civil investigation.
    (E) From subsection (e)(3) because supplying an individual with a 
form containing a Privacy Act Statement would tend to inhibit 
cooperation by many individuals involved in a criminal and/or civil 
investigation. The effect would be somewhat adverse to established 
investigative methods and techniques.
    (F) From subsections (e)(4)(G), (H), and (I) because this system of 
records is exempt from the access provisions of subsection (d).
    (G) From subsection (e)(5) because the requirement that records be 
maintained with attention to accuracy, relevance, timeliness, and 
completeness would unfairly hamper the investigative process. It is the 
nature of law enforcement for investigations to uncover the commission 
of illegal acts at diverse stages. It is frequently impossible to 
determine initially what information is accurate, relevant, timely, and 
least of all complete. With the passage of time, seemingly irrelevant or 
untimely information may acquire new significance as further 
investigation brings new details to light.
    (H) From subsection (e)(8) because the notice requirements of this 
provision could present a serious impediment to law enforcement by 
revealing investigative techniques, procedures, and existence of 
confidential investigations.
    (I) From subsection (f) because the agency's rules are inapplicable 
to those portions of the system that are exempt and would place the 
burden on the agency of either confirming or denying the existence of a 
record pertaining to a requesting individual might in itself provide an 
answer to that individual relating to an on-going investigation. The 
conduct of a successful investigation leading to the indictment of a 
criminal offender precludes the applicability of established agency 
rules relating to verification of record, disclosure of the record to 
that individual, and record amendment procedures for this record system.
    (J) From subsection (g) because this system of records should be 
exempt to the extent that the civil remedies relate to provisions of 5 
U.S.C. 552a from which this rule exempts the system.
    (f) Specific exemptions. The following systems of records are 
subject to the specific exemptions shown:
    (1) System identifier and name. F036 USAFA K, Admissions Records.
    (i) Exemption. Evaluation material used to determine potential for 
promotion in the Military Services may be exempt pursuant to 5 U.S.C. 
552a(k)(7), but only to the extent that the disclosure of such material 
would reveal the identity of a confidential source.

[[Page 888]]

Therefore, portions of this system of records (Liaison Officer 
Evaluation and Selection Panel Candidate Evaluation) may be exempt 
pursuant to 5 U.S.C. 552a(k)(7) from the following subsections of 5 
U.S.C. 552a(d), (e)(4)(H), and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(7).
    (iii) Reasons. To ensure the frankness of information used to 
determine whether cadets are qualified for graduation and commissioning 
as officers in the Air Force.
    (2) System identifier and name. F036 AFPC N, Air Force Personnel 
Test 851, Test Answer Sheets.
    (i) Exemption. Testing or examination material used solely to 
determine individual qualifications for appointment or promotion in the 
federal or military service may be exempt pursuant to 5 U.S.C. 
552a(k)(6), if the disclosure would compromise the objectivity or 
fairness of the test or examination process. Therefore, portions of this 
system of records may be exempt pursuant to 5 U.S.C. 552a(k)(6) from the 
following subsections of 5 U.S.C. 552a(c)(3); (d); (e)(4)(G), (H), and 
(I); and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(6).
    (iii) Reasons. To protect the objectivity of the promotion testing 
system by keeping the test questions and answers in confidence.
    (3) System identifier and name. F036 USAFA A, Cadet Personnel 
Management System.
    (i) Exemption. Evaluation material used to determine potential for 
promotion in the Military Services may be exempt pursuant to 5 U.S.C. 
552a(k)(7), but only to the extent that the disclosure of such material 
would reveal the identity of a confidential source. Therefore, portions 
of this system of records may be exempt pursuant to 5 U.S.C. 552a(k)(7) 
from the following subsections of 5 U.S.C. 552a(d), (e)(4)(H), and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(7).
    (iii) Reasons. To maintain the candor and integrity of comments 
needed to evaluate an Air Force Academy cadet for commissioning in the 
Air Force.
    (4) System identifier and name. F036 AETC I, Cadet Records.
    (i) Exemption. Investigatory material compiled solely for the 
purpose of determining suitability, eligibility, or qualifications for 
federal civilian employment, military service, federal contracts, or 
access to classified information may be exempt pursuant to 5 U.S.C. 
552a(k)(5), but only to the extent that such material would reveal the 
identity of a confidential source. Therefore, portions of this system of 
records may be exempt pursuant to 5 U.S.C. 552a(k)(5) (Detachment 
Professional Officer Course Selection Rating Sheets; Air Force Reserve 
Officer Training Corps Form 0-24--Disenrollment Review; Memoranda for 
Record and Staff Papers with Staff Advice, Opinions, or Suggestions) may 
be exempt from the following subsections of 5 U.S.C. 552a(c)(3), (d), 
(e)(4)(G) and (H), and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(5).
    (iii) Reasons. To protect the identity of a confidential source who 
furnishes information necessary to make determinations about the 
qualifications, eligibility, and suitability of cadets for graduation 
and commissioning in the Air Force.
    (5) System identifier and name. F044 AF SG Q, Family Advocacy 
Program Records.
    (i) Exemption. (A) Investigative material compiled for law 
enforcement purposes, other than material within the scope of subsection 
5 U.S.C. 552a(j)(2), may be exempt pursuant to 5 U.S.C. 552a(k)(2). 
However, if an individual is denied any right, privilege, or benefit for 
which he would otherwise be entitled by Federal law or for which he 
would otherwise be eligible, as a result of the maintenance of the 
information, the individual will be provided access to the information 
exempt to the extent that disclosure would reveal the identity of a 
confidential source.

    Note 1 to paragraph (f)(5)(i)(A). When claimed, this exemption 
allows limited protection of investigative reports maintained in a 
system of records used in personnel or administrative actions.

    (B) Investigative material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5),

[[Page 889]]

but only to the extent that such material would reveal the identity of a 
confidential source.
    (C) Therefore, portions of this system of records may be exempt 
pursuant to 5 U.S.C. 552a(k)(2) and (k)(5) from the following 
subsections of 5 U.S.C. 552a(c)(3) and (d).
    (ii) Authority. 5 U.S.C. 552a(k)(2) and (k)(5).
    (iii) Reasons. From subsections (c)(3) and (d) because the exemption 
is needed to encourage those who know of exceptional medical or 
educational conditions or family maltreatments to come forward by 
protecting their identities and to protect such sources from 
embarrassment or recriminations, as well as to protect their right to 
privacy. It is essential that the identities of all individuals who 
furnish information under an express promise of confidentiality be 
protected. Granting individuals access to information relating to 
criminal and civil law enforcement, as well as the release of certain 
disclosure accounting, could interfere with ongoing investigations and 
the orderly administration of justice, in that it could result in the 
concealment, alteration, destruction, or fabrication of information; 
could hamper the identification of offenders or alleged offenders and 
the disposition of charges; and could jeopardize the safety and well 
being of parents and their children. Exempted portions of this system 
also contain information considered relevant and necessary to make a 
determination as to qualifications, eligibility, or suitability for 
Federal employment and Federal contracts, and that was obtained by 
providing an express or implied promise to the source that his or her 
identity would not be revealed to the subject of the record.
    (6) System identifier and name. F036 AF PC A, Effectiveness/
Performance Reporting System.
    (i) Exemption. Evaluation material used to determine potential for 
promotion in the Military Services (Brigadier General Selectee 
Effectiveness Reports and Colonel and Lieutenant Colonel Promotion 
Recommendations with close out dates on or before January 31, 1991) may 
be exempt pursuant to 5 U.S.C. 552a(k)(7), but only to the extent that 
the disclosure of such material would reveal the identity of a 
confidential source. Therefore, portions of this system of records may 
be exempt pursuant to 5 U.S.C. 552a(k)(7) from the following subsections 
of 5 U.S.C. 552a(c)(3), (d), (e)(4)(H), and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(7).
    (iii) Reasons. (A) From subsection (c)(3) because making the 
disclosure accounting available to the individual may compromise express 
promises of confidentiality by revealing details about the report and 
identify other record sources, which may result in circumvention of the 
access exemption.
    (B) From subsection (d) because individual disclosure compromises 
express promises of confidentiality conferred to protect the integrity 
of the promotion rating system.
    (C) From subsection (e)(4)(H) because of and to the extent that 
portions of this record system are exempt from the individual access 
provisions of subsection (d).
    (D) From subsection (f) because of and to the extent that portions 
of this record system are exempt from the individual access provisions 
of subsection (d).
    (7) System identifier and name. F036 AFDP A, Files on General 
Officers and Colonels Assigned to General Officer Positions.
    (i) Exemption. Evaluation material used to determine potential for 
promotion in the Military Services may be exempt pursuant to 5 U.S.C. 
552a(k)(7), but only to the extent that the disclosure of such material 
would reveal the identity of a confidential source. Therefore, portions 
of this system of records may be exempt pursuant to 5 U.S.C. 552a(k)(7) 
from the following subsections of 5 U.S.C. 552a(c)(3), (d), (e)(4)(G), 
(H), and (I); and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(7).
    (iii) Reasons. To protect the integrity of information used in the 
Reserve Initial Brigadier General Screening Board, the release of which 
would compromise the selection process.
    (8) System identification and name. F036 AF PC O, General Officer 
Personnel Data System.
    (i) Exemption. Evaluation material used to determine potential for 
promotion in the Military Services may be exempt pursuant to 5 U.S.C. 
552a(k)(7),

[[Page 890]]

but only to the extent that the disclosure of such material would reveal 
the identity of a confidential source. Therefore, portions of this 
system of records (Air Force General Officer Promotion and Effectiveness 
Reports with close out dates on or before January 31, 1991) may be 
exempt pursuant to 5 U.S.C. 552a(k)(7) may be exempt from following 
subsections of 5 U.S.C. 552a(c)(3), (d), (e)(4)(H), and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(7).
    (iii) Reasons. (A) From subsection (c)(3) because making the 
disclosure accounting available to the individual may compromise express 
promises of confidentiality by revealing details about the report and 
identify other record sources, which may result in circumvention of the 
access exemption.
    (B) From subsection (d) because individual disclosure compromises 
express promises of confidentiality conferred to protect the integrity 
of the promotion rating system.
    (C) From subsection (e)(4)(H) because of and to the extent that 
portions of this record system are exempt from the individual access 
provisions of subsection (d).
    (D) From subsection (f) because of and to the extent that portions 
of this record system are exempt from the individual access provisions 
of subsection (d).
    (9) System identifier and name. F036 AFPC K, Historical Airman 
Promotion Master Test File.
    (i) Exemption. Testing or examination material used solely to 
determine individual qualifications for appointment or promotion in the 
federal or military service, if the disclosure would compromise the 
objectivity or fairness of the test or examination process may be exempt 
pursuant to 5 U.S.C. 552a(k)(6), if the disclosure would compromise the 
objectivity or fairness of the test or examination process. Therefore, 
portions of this system of records may be exempt pursuant to 5 U.S.C. 
552a(k)(6) from the following subsections of 5 U.S.C. 552a(c)(3), (d), 
(e)(4)(G), (H), and (I), and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(6).
    (iii) Reasons. To protect the integrity, objectivity, and equity of 
the promotion testing system by keeping test questions and answers in 
confidence.
    (iv) [Reserved]
    (10) System identifier and name. F071 AF OSI F, Investigative 
Applicant Processing Records.
    (i) Exemption. Investigatory material compiled solely for the 
purpose of determining suitability, eligibility, or qualifications for 
federal civilian employment, military service, federal contracts, or 
access to classified information may be exempt pursuant to 5 U.S.C. 
552a(k)(5), but only to the extent that such material would reveal the 
identity of a confidential source. Therefore, portions of this system of 
records may be exempt pursuant to 5 U.S.C. 552a(k)(5) from the following 
subsections of 5 U.S.C. 552a(c)(3), (d), (e)(4)(G), (H), and (I), and 
(f).
    (ii) Authority. 5 U.S.C. 552a(k)(5).
    (iii) Reasons. To protect those who gave information in confidence 
during Air Force Office of Special Investigations applicant inquiries. 
Fear of harassment could cause sources not to make frank and open 
responses about applicant qualifications. This could compromise the 
integrity of the Air Force Office of Special Investigations personnel 
program that relies on selecting only qualified people.
    (11) System identifier and name. F036 USAFA B, Master Cadet 
Personnel Record (Active/Historical).
    (i) Exemption. Evaluation material used to determine potential for 
promotion in the Military Services may be exempt pursuant to 5 U.S.C. 
552a(k)(7), but only to the extent that the disclosure of such material 
would reveal the identity of a confidential source. Therefore, portions 
of this system of records may be exempt pursuant to 5 U.S.C. 552a(k)(7) 
from the following subsections of 5 U.S.C. 552a(d), (e)(4)(H), and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(7).
    (iii) Reasons. To maintain the candor and integrity of comments 
needed to evaluate a cadet for commissioning in the Air Force.
    (12) [Reserved]
    (13) System identifier and name. F071 AF OSI B, Security and Related 
Investigative Records.
    (i) Exemption. Investigatory material compiled solely for the 
purpose of determining suitability, eligibility, or

[[Page 891]]

qualifications for federal civilian employment, military service, 
federal contracts, or access to classified information may be exempt 
pursuant to 5 U.S.C. 552a(k)(5), but only to the extent that such 
material would reveal the identity of a confidential source. Therefore, 
portions of this system of records may be exempt pursuant to 5 U.S.C. 
552a(k)(5) from the following subsections of 5 U.S.C. 552a(c)(3), (d), 
(e)(4)(G), (H), and (I), and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(5).
    (iii) Reasons. To protect the identity of those who give information 
in confidence for personnel security and related investigations. Fear of 
harassment could cause sources to refuse to give this information in the 
frank and open way needed to pinpoint those areas in an investigation 
that should be expanded to resolve charges of questionable conduct.
    (14)-(15) [Reserved]
    (16) System identifier and name. F036 AF PC P, Applications for 
Appointment and Extended Active Duty Files.
    (i) Exemption. Investigatory material compiled solely for the 
purpose of determining suitability, eligibility, or qualifications for 
federal civilian employment, military service, federal contracts, or 
access to classified information may be exempt pursuant to 5 U.S.C. 
552a(k)(5), but only to the extent that such material would reveal the 
identity of a confidential source. Therefore, portions of this system of 
records may be exempt pursuant to 5 U.S.C. 552a(k)(5) from the following 
subsection of 5 U.S.C. 552a(d).
    (ii) Authority. 5 U.S.C. 552a(k)(5).
    (iii) Reasons. To protect the identity of confidential sources who 
furnish information necessary to make determinations about the 
qualifications, eligibility, and suitability of health care 
professionals who apply for Reserve of the Air Force appointment or 
inter-service transfer to the Air Force.
    (17) System identifier and name. F036 AF DPG, Military Equal 
Opportunity and Treatment.
    (i) Exemption. Investigative material compiled for law enforcement 
purposes, other than material within the scope of subsection 5 U.S.C. 
552a(j)(2), may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if 
an individual is denied any right, privilege, or benefit for which he 
would otherwise be entitled by Federal law or for which he would 
otherwise be eligible, as a result of the maintenance of the 
information, the individual will be provided access to the information 
exempt to the extent that disclosure would reveal the identity of a 
confidential source.

    Note 1 to paragraph (f)(17)(i). When claimed, this exemption allows 
limited protection of investigative reports maintained in a system of 
records used in personnel or administrative actions. Therefore, portions 
of this system of records may be exempt pursuant to 5 U.S.C. 522a(k)(2) 
from the following subsections of 5 U.S.C. 552a(d), (e)(4)(H), and (f).

    (ii) Authority. 5 U.S.C. 552a(k)(2).
    (iii) Reasons. (A) From subsection (d) because access to the records 
contained in this system would inform the subject of an investigation of 
the existence of that investigation, provide the subject of the 
investigation with information that might enable him to avoid detection, 
and would present a serious impediment to law enforcement. In addition, 
granting individuals access to information collected while an Equal 
Opportunity and Treatment clarification/investigation is in progress 
conflicts with the just, thorough, and timely completion of the 
complaint, and could possibly enable individuals to interfere, obstruct, 
or mislead those clarifying/investigating the complaint.
    (B) From subsection (e)(4)(H) because this system of records is 
exempt from individual access pursuant to subsection (k) of the Privacy 
Act of 1974.
    (C) From subsection (f) because this system of records has been 
exempted from the access provisions of subsection (d).
    (18) System identifier and name. F051 AF JA I, Commander Directed 
Inquiries.
    (i) Exemption. Investigatory material compiled for law enforcement 
purposes, other than material within the scope of subsection 5 U.S.C. 
552a(j)(2), may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if 
an individual is denied any right, privilege, or benefit for which he 
would otherwise be entitled by Federal law or for which he would 
otherwise be eligible, as a result of the maintenance of the 
information, the individual will

[[Page 892]]

be provided access to the information except to the extent that 
disclosure would reveal the identity of a confidential source.

    Note 1 to paragraph (f)(18)(i). When claimed, this exemption allows 
limited protection of investigative reports maintained in a system of 
records used in personnel or administrative actions. Any portion of this 
system of records which falls within the provisions of 5 U.S.C. 
552a(k)(2) may be exempt from the following subsections of 5 U.S.C. 
552a(c)(3), (d), (e)(1), (e)(4)(G), (H), and (I), and (f).

    (ii) Authority. 5 U.S.C. 552a(k)(2).
    (iii) Reasons. (A) From subsection (c)(3) because to grant access to 
the accounting for each disclosure as required by the Privacy Act, 
including the date, nature, and purpose of each disclosure and the 
identity of the recipient, could alert the subject to the existence of 
the investigation. This could seriously compromise case preparation by 
prematurely revealing its existence and nature; compromise or interfere 
with witnesses or make witnesses reluctant to cooperate; and lead to 
suppression, alteration, or destruction of evidence.
    (B) From subsections (d) and (f) because providing access to 
investigative records and the right to contest the contents of those 
records and force changes to be made to the information contained 
therein would seriously interfere with and thwart the orderly and 
unbiased conduct of the investigation and impede case preparation. 
Providing access rights normally afforded under the Privacy Act would 
provide the subject with valuable information that would allow 
interference with or compromise of witnesses or render witnesses 
reluctant to cooperate; lead to suppression, alteration, or destruction 
of evidence; enable individuals to conceal their wrongdoing or mislead 
the course of the investigation; and result in the secreting of or other 
disposition of assets that would make them difficult or impossible to 
reach in order to satisfy any Government claim growing out of the 
investigation or proceeding.
    (C) From subsection (e)(1) because it is not always possible to 
detect the relevance or necessity of each piece of information in the 
early stages of an investigation. In some cases, it is only after the 
information is evaluated in light of other evidence that its relevance 
and necessity will be clear.
    (D) From subsections (e)(4)(G) and (H) because this system of 
records is compiled for investigative purposes and is exempt from the 
access provisions of subsections (d) and (f).
    (E) From subsection (e)(4)(I) because to the extent that this 
provision is construed to require more detailed disclosure than the 
broad, generic information currently published in the system notice, an 
exemption from this provision is necessary to protect the 
confidentiality of sources of information and to protect privacy and 
physical safety of witnesses and informants.
    (19) [Reserved]
    (20) System identifier and name. F033 AF A, Information Requests--
Freedom of Information Act.
    (i) Exemption. During the processing of a Freedom of Information Act 
request, exempt materials from `other' systems of records may in turn 
become part of the case record in this system. To the extent that copies 
of exempt records from those other systems of records are entered into 
this system, the Department of the Air Force hereby claims the same 
exemptions for the records from those `other' systems that are entered 
into this system, as claimed for the original primary system of which 
they are a part.
    (ii) Authority. 5 U.S.C. 552a(j)(2), (k)(1), (k)(2), (k)(3), (k)(4), 
(k)(5), (k)(6), and (k)(7).
    (iii) Reasons. Records are only exempt from pertinent provisions of 
5 U.S.C. 552a to the extent such provisions have been identified and an 
exemption claimed for the original record, and the purposes underlying 
the exemption for the original record still pertain to the record which 
is now contained in this system of records. In general, the exemptions 
were claimed in order to protect properly classified information 
relating to national defense and foreign policy, to avoid interference 
during the conduct of criminal, civil, or administrative actions or 
investigations, to ensure protective services provided the President and 
others are not compromised, to protect the identity of confidential 
sources incident to Federal employment, military

[[Page 893]]

service, contract, and security clearance determinations, and to 
preserve the confidentiality and integrity of Federal evaluation 
materials. The exemption rule for the original records will identify the 
specific reasons why the records are exempt from specific provisions of 
5 U.S.C. 552a.
    (21) System identifier and name. F033 AF B, Privacy Act Request 
Files.
    (i) Exemption. During the processing of a Privacy Act request, 
exempt materials from other systems of records may in turn become part 
of the case record in this system. To the extent that copies of exempt 
records from those `other' systems of records are entered into this 
system, the Department of the Air Force hereby claims the same 
exemptions for the records from those `other' systems that are entered 
into this system, as claimed for the original primary system of which 
they are a part.
    (ii) Authority. 5 U.S.C. 552a(j)(2), (k)(1), (k)(2), (k)(3), (k)(4), 
(k)(5), (k)(6), and (k)(7).
    (iii) Reasons. Records are only exempt from pertinent provisions of 
5 U.S.C. 552a to the extent such provisions have been identified and an 
exemption claimed for the original record, and the purposes underlying 
the exemption for the original record still pertain to the record which 
is now contained in this system of records. In general, the exemptions 
were claimed in order to protect properly classified information 
relating to national defense and foreign policy, to avoid interference 
during the conduct of criminal, civil, or administrative actions or 
investigations, to ensure protective services provided the President and 
others are not compromised, to protect the identity of confidential 
sources incident to Federal employment, military service, contract, and 
security clearance determinations, and to preserve the confidentiality 
and integrity of Federal evaluation materials. The exemption rule for 
the original records will identify the specific reasons why the records 
are exempt from specific provisions of 5 U.S.C. 552a.
    (22) System identifier and name. F051 AFJA E, Judge Advocate 
General's Professional Conduct Files.
    (i) Exemption. Investigatory material compiled for law enforcement 
purposes, other than material within the scope of subsection 5 U.S.C. 
552a(j)(2), may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if 
an individual is denied any right, privilege, or benefit for which he 
would otherwise be entitled by Federal law, as a result of the 
maintenance of the information, the individual will be provided access 
to the information except to the extent that disclosure would reveal the 
identity of a confidential source.

    Note 1 to paragraph (f)(22)(i). When claimed, this exemption allows 
limited protection of investigative reports maintained in a system of 
records used in personnel or administrative actions. Any portion of this 
system of records which falls within the provisions of 5 U.S.C. 
552a(k)(2) may be exempt from the following subsections of 5 U.S.C. 
552a(c)(3), (d), (e)(1), (e)(4)(G), (H), and (I), and (f).

    (ii) Authority. 5 U.S.C. 552a(k)(2).
    (iii) Reasons. (A) From subsection (c)(3) because to grant access to 
the accounting for each disclosure as required by the Privacy Act, 
including the date, nature, and purpose of each disclosure and the 
identity of the recipient, could alert the subject to the existence of 
the investigation. This could seriously compromise case preparation by 
prematurely revealing its existence and nature; compromise or interfere 
with witnesses or make witnesses reluctant to cooperate; and lead to 
suppression, alteration, or destruction of evidence.
    (B) From subsections (d) and (f) because providing access to 
investigative records and the right to contest the contents of those 
records and force changes to be made to the information contained 
therein would seriously interfere with and thwart the orderly and 
unbiased conduct of the investigation and impede case preparation. 
Providing access rights normally afforded under the Privacy Act would 
provide the subject with valuable information that would allow 
interference with or compromise of witnesses or render witnesses 
reluctant to cooperate; lead to suppression, alteration, or destruction 
of evidence; enable individuals to conceal their wrongdoing or mislead 
the course of the investigation; and result

[[Page 894]]

in the secreting of or other disposition of assets that would make them 
difficult or impossible to reach in order to satisfy any Government 
claim growing out of the investigation or proceeding.
    (C) From subsection (e)(1) because it is not always possible to 
detect the relevance or necessity of each piece of information in the 
early stages of an investigation. In some cases, it is only after the 
information is evaluated in light of other evidence that its relevance 
and necessity will be clear.
    (D) From subsections (e)(4)(G) and (H) because this system of 
records is compiled for investigative purposes and is exempt from the 
access provisions of subsections (d) and (f).
    (E) From subsection (e)(4)(I) because to the extent that this 
provision is construed to require more detailed disclosure than the 
broad, generic information currently published in the system notice, an 
exemption from this provision is necessary to protect the 
confidentiality of sources of information and to protect privacy and 
physical safety of witnesses and informants.
    (23) System identifier and name. F033 USSC A, Information Technology 
and Control Records.
    (i) Exemption. Investigatory material compiled for law enforcement 
purposes, other than material within the scope of subsection 5 U.S.C. 
552a(j)(2), may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if 
an individual is denied any right, privilege, or benefit for which he 
would otherwise be entitled by Federal law, as a result of the 
maintenance of the information, the individual will be provided access 
to the information except to the extent that disclosure would reveal the 
identity of a confidential source.

    Note 1 to paragraph (f)(23)(i). When claimed, this exemption allows 
limited protection of investigative reports maintained in a system of 
records used in personnel or administrative actions. Any portion of this 
system of records which falls within the provisions of 5 U.S.C. 
552a(k)(2) may be exempt from the following subsections of 5 U.S.C. 
552a(c)(3), (d), (e)(1), (e)(4)(G), (H), and (I), and (f).

    (ii) Authority. 5 U.S.C. 552a(k)(2).
    (iii) Reasons. (A) From subsection (c)(3) because to grant access to 
the accounting for each disclosure as required by the Privacy Act, 
including the date, nature, and purpose of each disclosure and the 
identity of the recipient, could alert the subject to the existence of 
the investigation. This could seriously compromise case preparation by 
prematurely revealing its existence and nature; compromise or interfere 
with witnesses or make witnesses reluctant to cooperate; and lead to 
suppression, alteration, or destruction of evidence.
    (B) From subsections (d) and (f) because providing access to 
investigative records and the right to contest the contents of those 
records and force changes to be made to the information contained 
therein would seriously interfere with and thwart the orderly and 
unbiased conduct of the investigation and impede case preparation. 
Providing access rights normally afforded under the Privacy Act would 
provide the subject with valuable information that would allow 
interference with or compromise of witnesses or render witnesses 
reluctant to cooperate; lead to suppression, alteration, or destruction 
of evidence; enable individuals to conceal their wrongdoing or mislead 
the course of the investigation; and result in the secreting of or other 
disposition of assets that would make them difficult or impossible to 
reach in order to satisfy any Government claim growing out of the 
investigation or proceeding.
    (C) From subsection (e)(1) because it is not always possible to 
detect the relevance or necessity of each piece of information in the 
early stages of an investigation. In some cases, it is only after the 
information is evaluated in light of other evidence that its relevance 
and necessity will be clear.
    (D) From subsections (e)(4)(G) and (H) because this system of 
records is compiled for investigative purposes and is exempt from the 
access provisions of subsections (d) and (f).
    (E) From subsection (e)(4)(I) because to the extent that this 
provision is construed to require more detailed disclosure than the 
broad, generic information currently published in the system notice, an 
exemption from this provision is necessary to protect the 
confidentiality of sources of information and to protect privacy and 
physical safety of witnesses and informants.

[[Page 895]]

    (24) System identifier and name. F036 AETC X, College Scholarship 
Program.
    (i) Exemption. Investigatory material compiled solely for the 
purpose of determining suitability but only to the extent that 
disclosure would reveal the identity of a confidential source. 
Therefore, portions of this system may be exempt pursuant to 5 U.S.C. 
552a(k)(5) from the following subsections of 5 U.S.C. 552a(c)(3), (d), 
and (e)(1).
    (ii) Authority. 5 U.S.C. 552a(k)(5).
    (iii) Reasons. (A) From subsection (c)(3) and (d) and when access to 
accounting disclosures and access to or amendment of records would cause 
the identity of a confidential sources to be revealed. Disclosure of the 
source's identity not only will result in the Department breaching the 
promise of confidentiality made to the source but it will impair the 
Department's future ability to compile investigatory material for the 
purpose of determining suitability, eligibility, or qualifications for 
Federal civilian employment, Federal contracts, or access to classified 
information. Unless sources can be assured that a promise of 
confidentiality will be honored, they will be less likely to provide 
information considered essential to the Department in making the 
required determinations.
    (B) From (e)(1) because in the collection of information for 
investigatory purposes, it is not always possible to determine the 
relevance and necessity of particular information in the early stages of 
the investigation. In some cases, it is only after the information is 
evaluated in light of other information that its relevance and necessity 
becomes clear. Such information permits more informed decision-making by 
the Department when making required suitability, eligibility, and 
qualification determinations.
    (25) System identifier and name. F032 AFCESA C, Civil Engineer 
System-Explosive Ordnance Records.
    (i) Exemption. Records maintained in connection with providing 
protective services to the President and other individuals under 18 
U.S.C. 3056, may be exempt pursuant to 5 U.S.C. 552a(k)(3) may be exempt 
from the following subsections of 5 U.S.C. 552a(c)(3), (d), (e)(1), 
(e)(4)(G), (H), and (I), and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(3).
    (iii) Reasons. (A) From subsection (c)(3) because to grant access to 
the accounting for each disclosure as required by the Privacy Act, 
including the date, nature, and purpose of each disclosure and the 
identity of the recipient, could alert the subject to the existence of 
the investigation. This could seriously compromise case preparation by 
prematurely revealing its existence and nature; compromise or interfere 
with witnesses or make witnesses reluctant to cooperate; and lead to 
suppression, alteration, or destruction of evidence.
    (B) From subsections (d) and (f) because providing access to 
investigative records and the right to contest the contents of those 
records and force changes to be made to the information contained 
therein would seriously interfere with and thwart the orderly and 
unbiased conduct of the investigation and impede case preparation. 
Providing access rights normally afforded under the Privacy Act would 
provide the subject with valuable information that would allow 
interference with or compromise of witnesses or render witnesses 
reluctant to cooperate; lead to suppression, alteration, or destruction 
of evidence; enable individuals to conceal their wrongdoing or mislead 
the course of the investigation; and result in the secreting of or other 
disposition of assets that would make them difficult or impossible to 
reach in order to satisfy any Government claim growing out of the 
investigation or proceeding.
    (C) From subsection (e)(1) because it is not always possible to 
detect the relevance or necessity of each piece of information in the 
early stages of an investigation. In some cases, it is only after the 
information is evaluated in light of other evidence that its relevance 
and necessity will be clear.
    (D) From subsections (e)(4)(G) and (H) because this system of 
records is compiled for investigative purposes and is exempt from the 
access provisions of subsections (d) and (f).
    (E) From subsection (e)(4)(I) because to the extent that this 
provision is construed to require more detailed disclosure than the 
broad, generic information currently published in the system

[[Page 896]]

notice, an exemption from this provision is necessary to protect the 
confidentiality of sources of information and to protect privacy and 
physical safety of witnesses and informants.
    (26) System identifier and name. F051 AF JAA, Freedom of Information 
Appeal Records.
    (i) Exemption. During the processing of a Privacy Act request, 
exempt materials from other systems of records may in turn become part 
of the case record in this system. To the extent that copies of exempt 
records from those `other' systems of records are entered into this 
system, the Department of the Air Force hereby claims the same 
exemptions for the records from those `other' systems that are entered 
into this system, as claimed for the original primary system of which 
they are a part.
    (ii) Authority. 5 U.S.C. 552a(j)(2), (k)(1), (k)(2), (k)(3), (k)(4), 
(k)(5), (k)(6), and (k)(7).
    (iii) Reasons. Records are only exempt from pertinent provisions of 
5 U.S.C. 552a to the extent such provisions have been identified and an 
exemption claimed for the original record, and the purposes underlying 
the exemption for the original record still pertain to the record which 
is now contained in this system of records. In general, the exemptions 
were claimed in order to protect properly classified information 
relating to national defense and foreign policy, to avoid interference 
during the conduct of criminal, civil, or administrative actions or 
investigations, to ensure protective services provided the President and 
others are not compromised, to protect the identity of confidential 
sources incident to Federal employment, military service, contract, and 
security clearance determinations, and to preserve the confidentiality 
and integrity of Federal evaluation materials. The exemption rule for 
the original records will identify the specific reasons why the records 
are exempt from specific provisions of 5 U.S.C. 552a.

[84 FR 14730, Apr. 11, 2019, as amended at 87 FR 37999, June 27, 2022]

    Effective Date Note: At 88 FR 42236, June 30, 2023, Sec. 310.14 was 
amended by removing and reserving paragraphs (e)(7) and (f)(20) and 
(21), effective Sept. 8, 2023.



Sec. 310.15  Department of the Army exemptions.

    (a) Special exemption. 5 U.S.C. 552a(d)(5)--Denies individual access 
to any information compiled in reasonable anticipation of a civil action 
or proceeding.
    (b) General and specific exemptions. The Secretary of the Army may 
exempt Army systems of records from certain requirements of the Privacy 
Act of 1974. The two kinds of exemptions that require Secretary of the 
Army enactment are general and specific exemptions. The general 
exemption authorizes the exemption of a system of records from most 
requirements of the Act; the specific exemptions authorize the exemption 
of a system of record from only a few.
    (c) General exemptions. Only Army activities actually engaged in the 
enforcement of criminal laws as their principal function may claim the 
general exemption. See 5 U.S.C. 552a(j)(2). To qualify for this 
exemption, a system must consist of:
    (1) Information compiled to identify individual criminal offenders 
and alleged offenders, which consists only of identifying data and 
arrest records; type and disposition of charges; sentencing, 
confinement, and release records; and parole and probation status;
    (2) Information compiled for the purpose of criminal investigation 
including reports of informants and investigators, and associated with 
an identifiable individual; or
    (3) Reports identifiable to an individual, compiled at any stage of 
the process of enforcement of the criminal laws, from arrest or 
indictment through release from supervision.
    (d) Specific exemptions. The Secretary of the Army has exempted all 
properly classified information and systems of records that have the 
following kinds of information listed in this section, from certain 
parts of the Privacy Act. The Privacy Act exemption reference appears in 
parentheses after each category.
    (1) Classified information in every Army system of records. Before 
denying any individual access to classified information, the Access and 
Amendment Refusal Authority must make

[[Page 897]]

sure that it was properly classified under the standards of Executive 
Orders 11652, 12065, or 12958 and that it must remain so in the interest 
of national defense of foreign policy (5 U.S.C. 552a(k)(1)).
    (2) Investigatory material compiled for law enforcement purposes 
(other than material within the scope of subsection 5 U.S.C. 552a(j)(2), 
may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if this 
information has been used to deny someone a right, privilege or benefit 
to which the individual is entitled by Federal law, or for which an 
individual would otherwise be eligible as a result of the maintenance of 
the information, it must be released, unless doing so would reveal the 
identity of a confidential source.

    Note 1 to paragraph (d)(2). When claimed, this exemption allows 
limited protection of investigative reports maintained in a system of 
records used in personnel or administrative actions.

    (3) Records maintained in connection with providing protective 
services to the President of the United States or other individuals 
protected pursuant to Title 18 U.S.C., section 3056 (5 U.S.C. 
552a(k)(3)).
    (4) Records maintained solely for statistical research or program 
evaluation purposes and which are not used to make decisions on the 
rights, benefits, or entitlements of individuals, except for census 
records which may be disclosed under Title 13 U.S.C., section 8 (5 
U.S.C. 552a(k)(4)).
    (5) Investigatory material compiled solely to determine suitability, 
eligibility, or qualifications for Federal service, Federal contracts, 
or access to classified information. This information may be withheld 
only to the extent that disclosure would reveal the identity of a 
confidential source (5 U.S.C. 552a(k)(5)).
    (6) Testing or examination material used solely to determine if a 
person is qualified for appointment or promotion in the Federal service. 
This information may be withheld only if disclosure would compromise the 
objectivity or fairness of the examination process (5 U.S.C. 
552a(k)(6)).
    (7) Evaluation material used solely to determine promotion potential 
in the Armed Forces. Information may be withheld, but only to the extent 
that disclosure would reveal the identity of a confidential source (5 
U.S.C. 552a(k)(7)).
    (e) Procedures. When a system manager seeks an exemption for a 
system of records, the following information will be furnished to the 
Chief Information Officer, 107 Army Pentagon, Room 3E608, Washington, DC 
20310-0107; applicable system notice, exemptions sought, and 
justification. After appropriate staffing and approval by the Secretary 
of the Army, a proposed rule will be published in the Federal Register, 
followed by a final rule 60 days later. No exemption may be invoked 
until these steps have been completed.
    (f) The Army system of records notices for a particular type of 
record will state whether the Secretary of the Army has authorized a 
particular general and specific exemption to a certain type of record. 
The Army system of records notices are published on the Defense Privacy 
and Civil Liberties Division's website: http://dpcld.defense.gov/ 
Privacy/DODComponentArticleList/ tabid/6799/Category/ 278/department-of-
the-army.aspx.
    (g) Exempt Army records. The following records may be exempt from 
certain parts of the Privacy Act:
    (1) System identifier and name. A0020-1 SAIG, Inspector General 
Records.
    (i) Exemption. (A) Investigatory material compiled for law 
enforcement purposes, other than material within the scope of subsection 
5 U.S.C. 552a(j)(2), may be exempt pursuant to 5 U.S.C. 552a(k)(2). 
However, if an individual is denied any right, privilege, or benefit for 
which he would otherwise be entitled by Federal law or for which he 
would otherwise be eligible, as a result of the maintenance of such 
information, the individual will be provided access to such information 
except to the extent that disclosure would reveal the identity of a 
confidential source.
    (B) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5),

[[Page 898]]

but only to the extent that such material would reveal the identity of a 
confidential source.
    (C) Therefore, portions of this system of records may be exempt 
pursuant to 5 U.S.C. 552a(k)(2) and (k)(5) from subsections 5 U.S.C. 
552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(2) and (k)(5).
    (iii) Reasons. (A) From subsection (c)(3) because the release of the 
disclosure accounting would permit the subject of a criminal 
investigation or matter under investigation to obtain valuable 
information concerning the nature of that investigation which will 
present a serious impediment to law enforcement.
    (B) From subsection (d) because access to such records contained in 
this system would inform the subject of a criminal investigation of the 
existence of that investigation, provide the subject of the 
investigation with information that might enable him to avoid detection 
or apprehension, and would present a serious impediment to law 
enforcement.
    (C) From subsection (e)(1) because in the course of criminal 
investigations, information is often obtained concerning the violations 
of laws or civil obligations of others not relating to an active case or 
matter. In the interests of effective law enforcement, it is necessary 
that this valuable information is retained since it can aid in 
establishing patterns of activity and provide valuable leads for other 
agencies and future cases that may be brought.
    (D) From subsections (e)(4)(G) and (e)(4)(H) because portions of 
this system of records have been exempted from the access provisions of 
subsection (d), making these subsections not applicable.
    (E) From subsection (e)(4)(I) because the identity of specific 
sources must be withheld in order to protect the confidentiality of the 
sources of criminal and other law enforcement information. This 
exemption is further necessary to protect the privacy and physical 
safety of witnesses and informants.
    (F) From subsection (f) because portions of this system of records 
have been exempted from the access provisions of subsection (d).
    (2) System identifier and name. A0 025-400-2 0AA, Army Records 
Information Management System (ARIMS).
    (i) Exemption. During the course of records management, 
declassification and claims research, exempt materials from other 
systems of records may in turn become part of the case record in this 
system. To the extent that copies of exempt records from those ``other'' 
systems of records are entered into this system, the Department of the 
Army hereby claims the same exemptions for the records from those 
``other'' systems.
    (ii) Authority. 5 U.S.C. 552a (j)(2) and (k)(1) through (k)(7).
    (iii) Reasons. Records are only exempt from pertinent provisions of 
5 U.S.C. 552a to the extent such provisions have been identified and an 
exemption claimed for the original record and the purposes underlying 
the exemption for the original record still pertain to the record which 
is now contained in this system of records. In general, the exemptions 
were claimed in order to protect properly classified information 
relating to national defense and foreign policy, to avoid interference 
during the conduct of criminal, civil, or administrative actions or 
investigations, to ensure protective services provided to the President 
and others are not compromised, to protect records used solely as 
statistical records, to protect the identity of confidential sources 
incident to Federal employment, military service, contract, and security 
clearance determinations, to preserve the confidentiality and integrity 
of Federal testing materials, and to safeguard evaluation materials used 
for military promotions when furnished by a confidential source. The 
exemption rule for the original records will identify the specific 
reasons why the records may be exempt from specific provisions of 5 
U.S.C. 552a.
    (3) System identifier and name. A0025-55 OAA, Freedom of Information 
Act Program Files.
    (i) Exemption. During the processing of Freedom of Information Act 
(FOIA) requests, exempt materials from other systems of records may in 
turn become part of the case record in this system. To the extent that 
copies of exempt

[[Page 899]]

records from those ``other'' systems of records are entered into this 
system, the Department of the Army claims the same exemptions for the 
records from those ``other'' systems.
    (ii) Authority. 5 U.S.C. 552a(j)(2) and (k)(1) through (k)(7).
    (iii) Reasons. Records are only exempt from pertinent provisions of 
5 U.S.C. 552a to the extent such provisions have been identified and an 
exemption claimed for the original record and the purposes underlying 
the exemption for the original record still pertain to the record which 
is now contained in this system of records. In general, the exemptions 
were claimed in order to protect properly classified information 
relating to national defense and foreign policy, to avoid interference 
during the conduct of criminal, civil, or administrative actions or 
investigations, to ensure protective services provided to the President 
and others are not compromised, to protect records used solely as 
statistical records, to protect the identity of confidential sources 
incident to Federal employment, military service, contract, and security 
clearance determinations, to preserve the confidentiality and integrity 
of Federal testing materials, and to safeguard evaluation materials used 
for military promotions when furnished by a confidential source. The 
exemption rule for the original records will identify the specific 
reasons why the records may be exempt from specific provisions of 5 
U.S.C. 552a.
    (4) System identifier and name. A0027-1 DAJA, General Legal Files.
    (i) Exemption. (A) Information specifically authorized to be 
classified under E.O. 12958, as implemented by DoD 5200.1-R, may be 
exempt pursuant to 5 U.S.C. 552a(k)(1).
    (B) Investigatory material compiled for law enforcement purposes, 
other than material within the scope of subsection 5 U.S.C. 552a(j)(2), 
may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an individual 
is denied any right, privilege, or benefit for which he would otherwise 
be entitled by Federal law or for which he would otherwise be eligible, 
as a result of the maintenance of such information, the individual will 
be provided access to such information except to the extent that 
disclosure would reveal the identity of a confidential source.
    (C) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (D) Testing or examination material used solely to determine 
individual qualifications for appointment or promotion in the Federal 
service may be exempt pursuant to 5 U.S.C. 552a(k)(6), if the disclosure 
would compromise the objectivity or fairness of the test or examination 
process.
    (E) Evaluation material used to determine potential for promotion in 
the Military Services may be exempt pursuant to 5 U.S.C. 552a(k)(7), but 
only to the extent that the disclosure of such material would reveal the 
identity of a confidential source.
    (F) Therefore, portions of this system of records may be exempt 
pursuant to 5 U.S.C. 552a(k)(1) through (k)(7) from subsections 5 U.S.C. 
552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(1), (k)(2), (k)(5), (k)(6), and 
(k)(7).
    (iii) Reasons. (A) From subsection (c)(3) because the release of the 
disclosure accounting would permit the subject of a criminal 
investigation or matter under investigation to obtain valuable 
information concerning the nature of that investigation which will 
present a serious impediment to law enforcement.
    (B) From subsection (d) because access to such records contained in 
this system would inform the subject of a criminal investigation of the 
existence of that investigation, provide the subject of the 
investigation with information that might enable him to avoid detection 
or apprehension, and would present a serious impediment to law 
enforcement.
    (C) From subsection (e)(1) because in the course of criminal 
investigations, information is often obtained concerning the violations 
of laws or civil

[[Page 900]]

obligations of others not relating to an active case or matter. In the 
interests of effective law enforcement, it is necessary that this 
valuable information is retained since it can aid in establishing 
patterns of activity and provide valuable leads for other agencies and 
future cases that may be brought.
    (D) From subsections (e)(4)(G) and (e)(4)(H) because portions of 
this system of records have been exempted from the access provisions of 
subsection (d), making these subsections not applicable.
    (E) From subsection (e)(4)(I) because the identity of specific 
sources must be withheld in order to protect the confidentiality of the 
sources of criminal and other law enforcement information. This 
exemption is further necessary to protect the privacy and physical 
safety of witnesses and informants.
    (F) From subsection (f) because portions of this system of records 
have been exempted from the access provisions of subsection (d).
    (5) System identifier and name. A0027-10a DAJA, Military Justice 
Files.
    (i) Exemption. Parts of this system may be exempt pursuant to 5 
U.S.C. 552a(j)(2) if the information is compiled and maintained by a 
component of the agency which performs as its principal function any 
activity pertaining to the enforcement of criminal laws. Therefore, 
portions of this system of records may be exempt pursuant to 5 U.S.C. 
552a(j)(2) from subsections 5 U.S.C. 552a(c)(3), (c)(4), (d), (e)(1), 
(e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8), (f), 
and (g).
    (ii) Authority. 5 U.S.C. 552a(j)(2).
    (iii) Reasons. (A) From subsection (c)(3) because the release of the 
disclosure accounting would permit the subject of a criminal 
investigation or matter under investigation to obtain valuable 
information concerning the nature of that investigation which will 
present a serious impediment to law enforcement.
    (B) From subsection (c)(4) because an exemption is being claimed for 
subsection (d), making this subsection not applicable.
    (C) From subsection (d) because access to the records contained in 
this system would inform the subject of a criminal investigation of the 
existence of that investigation, provide the subject of the 
investigation with information that might enable him to avoid detection 
or apprehension, and would present a serious impediment to law 
enforcement.
    (D) From subsection (e)(1) because in the course of criminal 
investigations, information is often obtained concerning the violation 
of laws or civil obligations of others not relating to an active case or 
matter. In the interests of effective law enforcement, it is necessary 
that this information be retained since it can aid in establishing 
patterns of activity and provide valuable leads for other agencies and 
future cases that may be brought.
    (E) From subsection (e)(2) because in a criminal investigation the 
requirement that information be collected to the greatest extent 
possible from the subject individual would present a serious impediment 
to law enforcement in that the subject of the investigation would be 
placed on notice of the existence of the investigation and would 
therefore be able to avoid detection.
    (F) From subsection (e)(3) because the requirement that individuals 
supplying information be provided with a form stating the requirements 
of subsection (e)(3) would constitute a serious impediment to law 
enforcement in that it could compromise the existence of a confidential 
investigation, reveal the identity of confidential sources of 
information and endanger the life and physical safety of confidential 
informants.
    (G) From subsections (e)(4)(G) and (e)(4)(H) because portions of 
this system of records have been exempted from the access provisions of 
subsection (d), making these subsections not applicable.
    (H) From subsection (e)(4)(I) because the identity of specific 
sources must be withheld in order to protect the confidentiality of the 
sources of criminal and other law enforcement information. This 
exemption is further necessary to protect the privacy and physical 
safety of witnesses and informants.
    (I) From subsection (e)(5) because in the collection of information 
for law enforcement purposes it is impossible to determine in advance 
what information is accurate, relevant, timely, and

[[Page 901]]

complete. With the passage of time, seemingly irrelevant or untimely 
information may acquire new significance as further investigation brings 
new details to light and the accuracy of such information can only be 
determined in a court of law. The restrictions of subsection (e)(5) 
would restrict the ability of trained investigators and intelligence 
analysts to exercise their judgment in reporting on investigations and 
impede the development of intelligence necessary for effective law 
enforcement.
    (J) From subsection (e)(8) because the individual notice 
requirements of subsection (e)(8) could present a serious impediment to 
law enforcement as this could interfere with the ability to issue search 
authorizations and could reveal investigative techniques and procedures.
    (K) From subsection (f) because portions of this system of records 
have been exempted from the access provisions of subsection (d).
    (L) From subsection (g) because portions of this system of records 
are compiled for law enforcement purposes and have been exempted from 
the access provisions of subsections (d) and (f).
    (6) System identifier and name. A0027-10b DAJA, Courts-Martial 
Records and Reviews.
    (i) Exemption. Parts of this system may be exempt pursuant to 5 
U.S.C. 552a(j)(2) if the information is compiled and maintained by a 
component of the agency which performs as its principal function any 
activity pertaining to the enforcement of criminal laws. Therefore, 
portions of this system of records may be exempt pursuant to 5 U.S.C. 
552a(j)(2) from subsections 5 U.S.C. 552a(c)(3), (c)(4), (d), (e)(1), 
(e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8), (f), 
and (g).
    (ii) Authority. 5 U.S.C. 552a(j)(2).
    (iii) Reasons. (A) From subsection (c)(3) because the release of the 
disclosure accounting would permit the subject of a criminal 
investigation or matter under investigation to obtain valuable 
information concerning the nature of that investigation which will 
present a serious impediment to law enforcement.
    (B) From subsection (c)(4) because an exemption is being claimed for 
subsection (d), making this subsection not applicable.
    (C) From subsection (d) because access to the records contained in 
this system would inform the subject of a criminal investigation of the 
existence of that investigation, provide the subject of the 
investigation with information that might enable him to avoid detection 
or apprehension, and would present a serious impediment to law 
enforcement.
    (D) From subsection (e)(1) because in the course of criminal 
investigations, information is often obtained concerning the violation 
of laws or civil obligations of others not relating to an active case or 
matter. In the interests of effective law enforcement, it is necessary 
that this information be retained since it can aid in establishing 
patterns of activity and provide valuable leads for other agencies and 
future cases that may be brought.
    (E) From subsection (e)(2) because in a criminal investigation, the 
requirement that information be collected to the greatest extent 
possible from the subject individual would present a serious impediment 
to law enforcement in that the subject of the investigation would be 
placed on notice of the existence of the investigation and would 
therefore be able to avoid detection.
    (F) From subsection (e)(3) because the requirement that individuals 
supplying information be provided with a form stating the requirements 
of subsection (e)(3) would constitute a serious impediment to law 
enforcement in that it could compromise the existence of a confidential 
investigation, reveal the identity of confidential sources of 
information and endanger the life and physical safety of confidential 
informants.
    (G) From subsections (e)(4)(G) and (e)(4)(H) because portions of 
this system of records have been exempted from the access provisions of 
subsection (d), making these subsections not applicable.
    (H) From subsection (e)(4)(I) because the identity of specific 
sources must be withheld in order to protect the confidentiality of the 
sources of criminal

[[Page 902]]

and other law enforcement information. This exemption is further 
necessary to protect the privacy and physical safety of witnesses and 
informants.
    (I) From subsection (e)(5) because in the collection of information 
for law enforcement purposes it is impossible to determine in advance 
what information is accurate, relevant, timely, and complete. With the 
passage of time, seemingly irrelevant or untimely information may 
acquire new significance as further investigation brings new details to 
light and the accuracy of such information can only be determined in a 
court of law. The restrictions of subsection (e)(5) would restrict the 
ability of trained investigators and intelligence analysts to exercise 
their judgment in reporting on investigations and impede the development 
of intelligence necessary for effective law enforcement.
    (J) From subsection (e)(8) because the individual notice 
requirements of subsection (e)(8) could present a serious impediment to 
law enforcement as this could interfere with the ability to issue search 
authorizations and could reveal investigative techniques and procedures.
    (K) From subsection (f) because portions of this system of records 
have been exempted from the access provisions of subsection (d).
    (L) From subsection (g) because portions of this system of records 
are compiled for law enforcement purposes and have been exempted from 
the access provisions of subsections (d) and (f).
    (7) System identifier and name. A0040-5b DASG, Army Public Health 
Data Repository (APHDR).
    (i) Exemption. (A) Investigatory material compiled for law 
enforcement purposes, other than material within the scope of subsection 
5 U.S.C. 552a(j)(2), may be exempt pursuant to 5 U.S.C. 552a(k)(2). 
However, if an individual is denied any right, privilege, or benefit for 
which he would otherwise be entitled by Federal law or for which he 
would otherwise be eligible, as a result of the maintenance of such 
information, the individual will be provided access to such information 
except to the extent that disclosure would reveal the identity of a 
confidential source.
    (B) Records maintained solely for statistical research or program 
evaluation purposes and which are not used to make decisions on the 
rights, benefits, or entitlement of an individual except for census 
records which may be disclosed under 13 U.S.C. 8, may be exempt pursuant 
to 5 U.S.C. 552a(k)(4).
    (C) Therefore, portions of this system of records may be exempt 
pursuant to 5 U.S.C. 552a(k)(2) and (k)(4) from subsections 5 U.S.C. 
552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(2) and (k)(4).
    (iii) Reasons. (A) From subsection (c)(3) because the release of the 
disclosure accounting would permit the subject of a criminal 
investigation or matter under investigation to obtain valuable 
information concerning the nature of that investigation which will 
present a serious impediment to law enforcement.
    (B) From subsection (d) because access to the records contained in 
this system would inform the subject of a criminal investigation of the 
existence of that investigation, provide the subject of the 
investigation with information that might enable him to avoid detection 
or apprehension, and would present a serious impediment to law 
enforcement.
    (C) From subsection (e)(1) because in the course of criminal 
investigations, information is often obtained concerning the violations 
of laws or civil obligations of others not relating to an active case or 
matter. In the interests of effective law enforcement, it is necessary 
that this valuable information is retained since it can aid in 
establishing patterns of activity and provide valuable leads for other 
agencies and future cases that may be brought.
    (D) From subsections (e)(4)(G) and (e)(4)(H) because portions of 
this system of records have been exempted from the access provisions of 
subsection (d), making these subsections not applicable.
    (E) From subsection (e)(4)(I) because the identity of specific 
sources must be withheld in order to protect the confidentiality of the 
sources of criminal

[[Page 903]]

and other law enforcement information. This exemption is further 
necessary to protect the privacy and physical safety of witnesses and 
informants.
    (F) From subsection (f) because portions of this system of records 
have been exempted from the access provisions of subsection (d).
    (8) System identifier and name. A0190-5 OPMG, Vehicle Registration 
System.
    (i) Exemption. Parts of this system of records may be exempt 
pursuant to 5 U.S.C. 552a(j)(2) if the information is compiled and 
maintained by a component of the agency which performs as its primary 
function any activity pertaining to the enforcement of criminal laws. 
Therefore, portions of this system of records may be exempt pursuant to 
5 U.S.C. 552a(j)(2) from subsections 5 U.S.C. 552a(c)(3), (c)(4), (d), 
(e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(8), (f), 
and (g).
    (ii) Authority. 5 U.S.C. 552a(j)(2).
    (iii) Reasons. (A) From subsection (c)(3) because the release of the 
disclosure accounting would permit the subject of a criminal 
investigation or matter under investigation to obtain valuable 
information concerning the nature of that investigation which will 
present a serious impediment to law enforcement.
    (B) From subsection (c)(4) because an exemption is being claimed for 
subsection (d) making this subsection not applicable.
    (C) From subsection (d) because access to the records contained in 
this system would inform the subject of a criminal investigation of the 
existence of that investigation, provide the subject of the 
investigation with information that might enable him to avoid detection 
or apprehension, and would present a serious impediment to law 
enforcement.
    (D) From subsection (e)(1) because in the course of criminal 
investigations, information is often obtained concerning the violation 
of laws or civil obligations of others not relating to an active case or 
matter. In the interests of effective law enforcement, it is necessary 
that this valuable information be retained since it can aid in 
establishing patterns of activity and provide valuable leads for other 
agencies and future cases that may be brought.
    (E) From subsection (e)(2) because in a criminal investigation, the 
requirement that information be collected to the greatest extent 
possible from the subject individual would present a serious impediment 
to law enforcement in that the subject of the investigation would be 
placed on notice of the existence of the investigation and would 
therefore be able to avoid detection.
    (F) From subsection (e)(3) because the requirement that individuals 
supplying information be provided with a form stating the requirements 
of subsection (e)(3) would constitute a serious impediment to law 
enforcement in that it could compromise the existence of a confidential 
investigation, reveal the identity of confidential sources of 
information and endanger the life and physical safety of confidential 
informants.
    (G) From subsections (e)(4)(G) and (e)(4)(H) because portions of 
this system of records have been exempted from access provisions of 
subsection (d) making these subsections not applicable.
    (H) From subsection (e)(4)(I) because the identity of specific 
sources must be withheld in order to protect the confidentiality of the 
sources of criminal and other law enforcement information. This 
exemption is further necessary to protect the privacy and physical 
safety of witnesses and informants.
    (I) From subsection (e)(5) because in the collection of information 
for law enforcement purposes it is impossible to determine in advance 
what information is accurate, relevant, timely, and complete. With the 
passage of time, seemingly irrelevant or untimely information may 
acquire new significance as further investigation brings new details to 
light and the accuracy of such information can only be determined in a 
court of law. The restrictions of subsection (e)(5) would restrict the 
ability of trained investigators and intelligence analysts to exercise 
their judgment reporting on investigations and impede the development of 
intelligence necessary for effective law enforcement.
    (J) From subsection (e)(8) because the individual notice 
requirements of subsection (e)(8) could present a serious impediment to 
law enforcement as this

[[Page 904]]

could interfere with the ability to issue search authorizations and 
could reveal investigative techniques and procedures.
    (K) From subsection (f) because portions of this system of records 
have been exempted from the access provisions of subsection (d).
    (L) From subsection (g) because portions of this system of records 
are compiled for law enforcement purposes and have been exempted from 
the access provisions of subsections (d) and (f).
    (9) System identifier and name. A0190-9 OPMG, Absentee Case Files.
    (i) Exemption. Parts of this system of records may be exempt 
pursuant to 5 U.S.C. 552a(j)(2) if the information is compiled and 
maintained by a component of the agency which performs as its principal 
function any activity pertaining to the enforcement of criminal laws. 
Therefore, portions of this system of records may be exempt pursuant to 
5 U.S.C. 552a(j)(2) from subsections 5 U.S.C. 552a(c)(3), (c)(4), (d), 
(e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(8), (f), 
and (g).
    (ii) Authority. 5 U.S.C. 552a(j)(2).
    (iii) Reasons. (A) From subsection (c)(3) because the release of the 
disclosure accounting would permit the subject of a criminal 
investigation or matter under investigation to obtain valuable 
information concerning the nature of that investigation which will 
present a serious impediment to law enforcement.
    (B) From subsection (c)(4) because an exemption is being claimed for 
subsection (d), making this subsection not applicable.
    (C) From subsection (d) because access to the records contained in 
this system would inform the subject of a criminal investigation of the 
existence of that investigation, provide the subject of the 
investigation with information that might enable him to avoid detection 
or apprehension, and would present a serious impediment to law 
enforcement.
    (D) From subsection (e)(1) because in the course of criminal 
investigations, information is often obtained concerning the violation 
of laws or civil obligations of others not relating to an active case or 
matter. In the interests of effective law enforcement, it is necessary 
that this valuable information be retained since it can aid in 
establishing patterns of activity and provide valuable leads for other 
agencies and future cases that may be brought.
    (E) From subsection (e)(2) because in a criminal investigation, the 
requirement that information be collected to the greatest extent 
possible from the subject individual would present a serious impediment 
to law enforcement in that the subject of the investigation would be 
placed on notice of the existence of the investigation and would 
therefore be able to avoid detection.
    (F) From subsection (e)(3) because the requirement that individuals 
supplying information be provided with a form stating the requirements 
of subsection (e)(3) would constitute a serious impediment to law 
enforcement in that it could compromise the existence of a confidential 
investigation, reveal the identity of confidential sources of 
information and endanger the life and physical safety of confidential 
informants.
    (G) From subsections (e)(4)(G) and (e)(4)(H) because portions of 
this system of records have been exempted from access provisions of 
subsection (d), making these subsections not applicable.
    (H) From subsection (e)(4)(I) because the identity of specific 
sources must be withheld in order to protect the confidentiality of the 
sources of criminal and other law enforcement information. This 
exemption is further necessary to protect the privacy and physical 
safety of witnesses and informants.
    (I) From subsection (e)(5) because in the collection of information 
for law enforcement purposes it is impossible to determine in advance 
what information is accurate, relevant, timely, and complete. With the 
passage of time, seemingly irrelevant or untimely information may 
acquire new significance as further investigation brings new details to 
light and the accuracy of such information can only be determined in a 
court of law. The restrictions of subsection (e)(5) would restrict the 
ability of trained investigators and intelligence analysts to exercise 
their judgment reporting on investigations and impede the development of 
intelligence

[[Page 905]]

necessary for effective law enforcement.
    (J) From subsection (e)(8) because the individual notice 
requirements of subsection (e)(8) could present a serious impediment to 
law enforcement as this could interfere with the ability to issue search 
authorizations and could reveal investigative techniques and procedures.
    (K) From subsection (f) because portions of this system of records 
have been exempted from the access provisions of subsection (d).
    (L) From subsection (g) because portions of this system of records 
are compiled for law enforcement purposes and have been exempted from 
the access provisions of subsections (d) and (f).
    (10) System identifier and name. A0190-14 OPMG, Registration and 
Permit Files.
    (i) Exemption. Investigatory material compiled for law enforcement 
purposes, other than material within the scope of subsection 5 U.S.C. 
552a(j)(2), is exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an 
individual is denied any right, privilege, or benefit for which he would 
otherwise be entitled by Federal law or for which he would otherwise be 
eligible, as a result of the maintenance of such information, the 
individual will be provided access to such information except to the 
extent that disclosure would reveal the identity of a confidential 
source. Therefore, portions of this system of records may be exempt 
pursuant to 5 U.S.C. 552a(k)(2) from subsections 5 U.S.C. 552a(c)(3), 
(d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(2).
    (iii) Reasons. (A) From subsection (c)(3) because the release of the 
disclosure accounting would permit the subject of a criminal 
investigation or matter under investigation to obtain valuable 
information concerning the nature of that investigation which will 
present a serious impediment to law enforcement.
    (B) From subsection (d) because access to the records contained in 
this system would inform the subject of a criminal investigation of the 
existence of that investigation, provide the subject of the 
investigation with information that might enable him to avoid detection 
or apprehension, and would present a serious impediment to law 
enforcement.
    (C) From subsection (e)(1) because in the course of criminal 
investigations, information is often obtained concerning the violations 
of laws or civil obligations of others not relating to an active case or 
matter. In the interests of effective law enforcement, it is necessary 
that this valuable information is retained since it can aid in 
establishing patterns of activity and provide valuable leads for other 
agencies and future cases that may be brought.
    (D) From subsections (e)(4)(G) and (e)(4)(H) because portions of 
this system of records have been exempted from the access provisions of 
subsection (d), making these subsections not applicable.
    (E) From subsection (e)(4)(I) because the identity of specific 
sources must be withheld in order to protect the confidentiality of the 
sources of criminal and other law enforcement information. This 
exemption is further necessary to protect the privacy and physical 
safety of witnesses and informants.
    (F) From subsection (f) because portions of this system of records 
have been exempted from the access provisions of subsection (d).
    (11) System identifier and name. A0190-45 OPMG, Military Police 
Reporting Program Records (MPRP).
    (i) Exemption. Parts of this system may be exempt pursuant to 5 
U.S.C. 552a(j)(2) if the information is compiled and maintained by a 
component of the agency which performs as its principal function any 
activity pertaining to the enforcement of criminal laws. Therefore, 
portions of the system may be exempt pursuant to 5 U.S.C. 552a(j)(2) 
from subsections 5 U.S.C. 552a(c)(3), (c)(4), (d), (e)(1), (e)(2), 
(e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8), (f), and (g).
    (ii) Authority. 5 U.S.C. 552a(j)(2).
    (iii) Reasons. (A) From subsection (c)(3) because the release of the 
disclosure accounting would permit the subject of a criminal 
investigation or matter under investigation to obtain valuable 
information concerning the nature of that investigation which will 
present a serious impediment to law enforcement.

[[Page 906]]

    (B) From subsection (c)(4) because an exemption is being claimed for 
subsection (d), making this subsection not applicable.
    (C) From subsection (d) because access to the records contained in 
this system would inform the subject of a criminal investigation of the 
existence of that investigation, provide the subject of the 
investigation with information that might enable him to avoid detection 
or apprehension, and would present a serious impediment to law 
enforcement.
    (D) From subsection (e)(1) because in the course of criminal 
investigations, information is often obtained concerning the violation 
of laws or civil obligations of others not relating to an active case or 
matter. In the interests of effective law enforcement, it is necessary 
that this valuable information be retained since it can aid in 
establishing patterns of activity and provide valuable leads for other 
agencies and future cases that may be brought.
    (E) From subsection (e)(2) because in a criminal investigation, the 
requirement that information be collected to the greatest extent 
possible from the subject individual would present a serious impediment 
to law enforcement in that the subject of the investigation would be 
placed on notice of the existence of the investigation and would 
therefore be able to avoid detection.
    (F) From subsection (e)(3) because the requirement that individuals 
supplying information be provided with a form stating the requirements 
of subsection (e)(3) would constitute a serious impediment to law 
enforcement in that it could compromise the existence of a confidential 
investigation, reveal the identity of confidential sources of 
information and endanger the life and physical safety of confidential 
informants.
    (G) From subsections (e)(4)(G) and (e)(4)(H) because portions of 
this system of records have been exempted from access provisions of 
subsection (d), making these subsections not applicable.
    (H) From subsection (e)(4)(I) because the identity of specific 
sources must be withheld in order to protect the confidentiality of the 
sources of criminal and other law enforcement information. This 
exemption is further necessary to protect the privacy and physical 
safety of witnesses and informants.
    (I) From subsection (e)(5) because in the collection of information 
for law enforcement purposes it is impossible to determine in advance 
what information is accurate, relevant, timely, and complete. With the 
passage of time, seemingly irrelevant or untimely information may 
acquire new significance as further investigation brings new details to 
light and the accuracy of such information can only be determined in a 
court of law. The restrictions of subsection (e)(5) would restrict the 
ability of trained investigators and intelligence analysts to exercise 
their judgment reporting on investigations and impede the development of 
intelligence necessary for effective law enforcement.
    (J) From subsection (e)(8) because the individual notice 
requirements of subsection (e)(8) could present a serious impediment to 
law enforcement as this could interfere with the ability to issue search 
authorizations and could reveal investigative techniques and procedures.
    (K) From subsection (f) because portions of this system of records 
have been exempted from the access provisions of subsection (d).
    (L) From subsection (g) because portions of this system of records 
are compiled for law enforcement purposes and have been exempted from 
the access provisions of subsections (d) and (f).
    (12) System identifier and name. A0190-45a OPMG, Local Criminal 
Intelligence Files.
    (i) Exemption. Parts of this system may be exempt pursuant to 5 
U.S.C. 552a(j)(2) if the information is compiled and maintained by a 
component of the agency which performs as its principal function any 
activity pertaining to the enforcement of criminal laws. Therefore, 
portions of the system of records may be exempt pursuant to 5 U.S.C. 
552a(j)(2) from subsections 5 U.S.C. 552a(c)(3), (c)(4), (d), (e)(1), 
(e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(8), (f), and (g).
    (ii) Authority. 5 U.S.C. 552a(j)(2).

[[Page 907]]

    (iii) Reasons. (A) From subsection (c)(3) because the release of the 
disclosure accounting would permit the subject of a criminal 
investigation or matter under investigation to obtain valuable 
information concerning the nature of that investigation which will 
present a serious impediment to law enforcement.
    (B) From subsection (c)(4) because an exemption is being claimed for 
subsection (d), making this subsection not applicable.
    (C) From subsection (d) because access to the records contained in 
this system would inform the subject of a criminal investigation of the 
existence of that investigation, provide the subject of the 
investigation with information that might enable him to avoid detection 
or apprehension, and would present a serious impediment to law 
enforcement.
    (D) From subsection (e)(1) because in the course of criminal 
investigations, information is often obtained concerning the violation 
of laws or civil obligations of others not relating to an active case or 
matter. In the interests of effective law enforcement, it is necessary 
that this valuable information be retained since it can aid in 
establishing patterns of activity and provide valuable leads for other 
agencies and future cases that may be brought.
    (E) From subsection (e)(2) because in a criminal investigation, the 
requirement that information be collected to the greatest extent 
possible from the subject individual would present a serious impediment 
to law enforcement in that the subject of the investigation would be 
placed on notice of the existence of the investigation and would 
therefore be able to avoid detection.
    (F) From subsection (e)(3) because the requirement that individuals 
supplying information be provided with a form stating the requirements 
of subsection (e)(3) would constitute a serious impediment to law 
enforcement in that it could compromise the existence of a confidential 
investigation, reveal the identity of confidential sources of 
information and endanger the life and physical safety of confidential 
informants.
    (G) From subsections (e)(4)(G) and (e)(4)(H) because portions of 
this system of records have been exempted from access provisions of 
subsection (d), making these subsections not applicable.
    (H) From subsection (e)(4)(I) because the identity of specific 
sources must be withheld in order to protect the confidentiality of the 
sources of criminal and other law enforcement information. This 
exemption is further necessary to protect the privacy and physical 
safety of witnesses and informants.
    (I) From subsection (e)(5) because in the collection of information 
for law enforcement purposes it is impossible to determine in advance 
what information is accurate, relevant, timely, and complete. With the 
passage of time, seemingly irrelevant or untimely information may 
acquire new significance as further investigation brings new details to 
light and the accuracy of such information can only be determined in a 
court of law. The restrictions of subsection (e)(5) would restrict the 
ability of trained investigators and intelligence analysts to exercise 
their judgment reporting on investigations and impede the development of 
intelligence necessary for effective law enforcement.
    (J) From subsection (e)(8) because the individual notice 
requirements of subsection (e)(8) could present a serious impediment to 
law enforcement as this could interfere with the ability to issue search 
authorizations and could reveal investigative techniques and procedures.
    (K) From subsection (f) because portions of this system of records 
have been exempted from the access provisions of subsection (d).
    (L) From subsection (g) because portions of this system of records 
are compiled for law enforcement purposes and have been exempted from 
the access provisions of subsections (d) and (f).
    (13) System identifier and name. A0190-45b OPMG, Serious Incident 
Reporting Files.
    (i) Exemption. Parts of this system may be exempt pursuant to 5 
U.S.C. 552a(j)(2) if the information is compiled and maintained by a 
component of the agency which performs as its principal function any 
activity pertaining to the enforcement of criminal laws. Therefore, 
portions of the system of records

[[Page 908]]

may be exempt pursuant to 5 U.S.C. 552a(j)(2) from subsections 5 U.S.C. 
552a(c)(3), (c)(4), (d), (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), 
(e)(4)(I), (e)(8), (f), and (g).
    (ii) Authority. 5 U.S.C. 552a(j)(2).
    (iii) Reasons. (A) From subsection (c)(3) because the release of the 
disclosure accounting would permit the subject of a criminal 
investigation or matter under investigation to obtain valuable 
information concerning the nature of that investigation which will 
present a serious impediment to law enforcement.
    (B) From subsection (c)(4) because an exemption is being claimed for 
subsection (d), making this subsection not applicable.
    (C) From subsection (d) because access to the records contained in 
this system would inform the subject of a criminal investigation of the 
existence of that investigation, provide the subject of the 
investigation with information that might enable him to avoid detection 
or apprehension, and would present a serious impediment to law 
enforcement.
    (D) From subsection (e)(1) because in the course of criminal 
investigations, information is often obtained concerning the violation 
of laws or civil obligations of others not relating to an active case or 
matter. In the interests of effective law enforcement, it is necessary 
that this valuable information be retained since it can aid in 
establishing patterns of activity and provide valuable leads for other 
agencies and future cases that may be brought.
    (E) From subsection (e)(2) because in a criminal investigation, the 
requirement that information be collected to the greatest extent 
possible from the subject individual would present a serious impediment 
to law enforcement in that the subject of the investigation would be 
placed on notice of the existence of the investigation and would 
therefore be able to avoid detection.
    (F) From subsection (e)(3) because the requirement that individuals 
supplying information be provided with a form stating the requirements 
of subsection (e)(3) would constitute a serious impediment to law 
enforcement in that it could compromise the existence of a confidential 
investigation, reveal the identity of confidential sources of 
information and endanger the life and physical safety of confidential 
informants.
    (G) From subsections (e)(4)(G) and (e)(4)(H) because portions of 
this system of records have been exempted from access provisions of 
subsection (d), making these subsections not applicable.
    (H) From subsection (e)(4)(I) because the identity of specific 
sources must be withheld in order to protect the confidentiality of the 
sources of criminal and other law enforcement information. This 
exemption is further necessary to protect the privacy and physical 
safety of witnesses and informants.
    (I) From subsection (e)(5) because in the collection of information 
for law enforcement purposes it is impossible to determine in advance 
what information is accurate, relevant, timely, and complete. With the 
passage of time, seemingly irrelevant or untimely information may 
acquire new significance as further investigation brings new details to 
light and the accuracy of such information can only be determined in a 
court of law. The restrictions of subsection (e)(5) would restrict the 
ability of trained investigators and intelligence analysts to exercise 
their judgment reporting on investigations and impede the development of 
intelligence necessary for effective law enforcement.
    (J) From subsection (e)(8) because the individual notice 
requirements of subsection (e)(8) could present a serious impediment to 
law enforcement as this could interfere with the ability to issue search 
authorizations and could reveal investigative techniques and procedures.
    (K) From subsection (f) because portions of this system of records 
have been exempted from the access provisions of subsection (d).
    (L) From subsection (g) because portions of this system of records 
are compiled for law enforcement purposes and have been exempted from 
the access provisions of subsections (d) and (f).
    (14) System identifier and name. A0190-47 DAPM-ACC, Army Corrections 
System and Parole Board Records.
    (i) Exemption. Parts of this system may be exempt pursuant to 5 
U.S.C.

[[Page 909]]

552a(j)(2) if the information is compiled and maintained by a component 
of the agency which performs as its principal function any activity 
pertaining to the enforcement of criminal laws. Therefore, portions of 
the system of records may be exempt pursuant to 5 U.S.C. 552a(j)(2) from 
subsections 5 U.S.C. 552a(c)(3), (c)(4), (d), (e)(1), (e)(2), (e)(3), 
(e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8), (f), and (g).
    (ii) Authority. 5 U.S.C. 552a(j)(2).
    (iii) Reasons. (A) From subsection (c)(3) because the release of the 
disclosure accounting would permit the subject of a criminal 
investigation or matter under investigation to obtain valuable 
information concerning the nature of that investigation which will 
present a serious impediment to law enforcement.
    (B) From subsection (c)(4) because an exemption is being claimed for 
subsection (d), making this subsection not applicable.
    (C) From subsection (d) because access to the records contained in 
this system would inform the subject of a criminal investigation of the 
existence of that investigation, provide the subject of the 
investigation with information that might enable him to avoid detection 
or apprehension, and would present a serious impediment to law 
enforcement.
    (D) From subsection (e)(1) because in the course of criminal 
investigations, information is often obtained concerning the violation 
of laws or civil obligations of others not relating to an active case or 
matter. In the interests of effective law enforcement, it is necessary 
that this valuable information be retained since it can aid in 
establishing patterns of activity and provide valuable leads for other 
agencies and future cases that may be brought.
    (E) From subsection (e)(2) because in a criminal or other law 
enforcement investigation, the requirement that information be collected 
to the greatest extent possible from the subject individual would alert 
the subject as to the nature or existence of the investigation and 
thereby present a serious impediment to effective law enforcement.
    (F) From subsection (e)(3) because the requirement that individuals 
supplying information be provided with a form stating the requirements 
of subsection (e)(3) would constitute a serious impediment to law 
enforcement in that it could compromise the existence of a confidential 
investigation, reveal the identity of confidential sources of 
information and endanger the life and physical safety of confidential 
informants.
    (G) From subsections (e)(4)(G) and (e)(4)(H) because an exemption is 
being claimed for subsection (d), making these subsections not 
applicable.
    (H) From subsection (e)(4)(I) because the identity of specific 
sources must be withheld in order to protect the confidentiality of the 
sources of criminal and other law enforcement information. This 
exemption is further necessary to protect the privacy and physical 
safety of witnesses and informants.
    (I) From subsection (e)(5) because in the collection of information 
for law enforcement purposes it is impossible to determine in advance 
what information is accurate, relevant, timely, and complete. With the 
passage of time, seemingly irrelevant or untimely information may 
acquire new significance as further investigation brings new details to 
light and the accuracy of such information can only be determined in a 
court of law. The restrictions of subsection (e)(5) would restrict the 
ability of trained investigators and intelligence analysts to exercise 
their judgment reporting on investigations and impede the development of 
intelligence necessary for effective law enforcement.
    (J) From subsection (e)(8) because the individual notice 
requirements of subsection (e)(8) could present a serious impediment to 
law enforcement as this could interfere with the ability to issue search 
authorizations and could reveal investigative techniques and procedures.
    (K) From subsection (f) because portions of this system of records 
have been exempted from the access provisions of subsection (d).
    (L) From subsection (g) because portions of this system of records 
are compiled for law enforcement purposes and have been exempted from 
the access provisions of subsections (d) and (f).
    (15) System identifier and name. A0195-2a USACIDC, Source Register.

[[Page 910]]

    (i) Exemption. Parts of this system may be exempt pursuant to 5 
U.S.C. 552a(j)(2) if the information is compiled and maintained by a 
component of the agency which performs as its principal function any 
activity pertaining to the enforcement of criminal laws. Therefore, 
portions of this system of records may be exempt pursuant to 5 U.S.C. 
552a(j)(2) from subsections 5 U.S.C. 552a(c)(3), (c)(4), (d), (e)(1), 
(e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8), (f), 
and (g).
    (ii) Authority. 5 U.S.C. 552a(j)(2).
    (iii) Reasons. (A) From subsection (c)(3) because the release of the 
disclosure accounting would permit the subject of a criminal 
investigation or matter under investigation to obtain valuable 
information concerning the nature of that investigation which will 
present a serious impediment to law enforcement.
    (B) From subsection (c)(4) because an exemption is being claimed for 
subsection (d), making this subsection not applicable.
    (C) From subsection (d) because access to the records contained in 
this system would inform the subject of a criminal investigation of the 
existence of that investigation, provide the subject of the 
investigation with information that might enable him to avoid detection 
or apprehension, and would present a serious impediment to law 
enforcement.
    (D) From subsection (e)(1) because in the course of criminal 
investigations, information is often obtained concerning the violation 
of laws or civil obligations of others not relating to an active case or 
matter. In the interests of effective law enforcement, it is necessary 
that this valuable information be retained since it can aid in 
establishing patterns of activity and provide valuable leads for other 
agencies and future cases that may be brought.
    (E) From subsection (e)(2) because in a criminal investigation, the 
requirement that information be collected to the greatest extent 
possible from the subject individual would present a serious impediment 
to law enforcement in that the subject of the investigation would be 
placed on notice of the existence of the investigation and would 
therefore be able to avoid detection.
    (F) From subsection (e)(3) because the requirement that individuals 
supplying information be provided with a form stating the requirements 
of subsection (e)(3) would constitute a serious impediment to law 
enforcement in that it could compromise the existence of a confidential 
investigation, reveal the identity of confidential sources of 
information and endanger the life and physical safety of confidential 
informants.
    (G) From subsections (e)(4)(G) and (e)(4)(H) because portions of 
this system of records have been exempted from access provisions of 
subsection (d), making these subsections not applicable.
    (H) From subsection (e)(4)(I) because the identity of specific 
sources must be withheld in order to protect the confidentiality of the 
sources of criminal and other law enforcement information. This 
exemption is further necessary to protect the privacy and physical 
safety of witnesses and informants.
    (I) From subsection (e)(5) because in the collection of information 
for law enforcement purposes it is impossible to determine in advance 
what information is accurate, relevant, timely, and complete. With the 
passage of time, seemingly irrelevant or untimely information may 
acquire new significance as further investigation brings new details to 
light and the accuracy of such information can only be determined in a 
court of law. The restrictions of subsection (e)(5) would restrict the 
ability of trained investigators and intelligence analysts to exercise 
their judgment reporting on investigations and impede the development of 
intelligence necessary for effective law enforcement.
    (J) From subsection (e)(8) because the individual notice 
requirements of subsection (e)(8) could present a serious impediment to 
law enforcement as this could interfere with the ability to issue search 
authorizations and could reveal investigative techniques and procedures.
    (K) From subsection (f) because portions of this system of records 
have been exempted from the access provisions of subsection (d).

[[Page 911]]

    (L) From subsection (g) because portions of this system of records 
are compiled for law enforcement purposes and have been exempted from 
the access provisions of subsections (d) and (f).
    (16) System identifier and name. A0195-2b USACIDC, Criminal 
Investigation and Crime Laboratory Files.
    (i) Exemption. Parts of this system may be exempt pursuant to 5 
U.S.C. 552a(j)(2) if the information is compiled and maintained by a 
component of the agency which performs as its principal function any 
activity pertaining to the enforcement of criminal laws. Therefore, 
portions of this system of records may be exempt pursuant to 5 U.S.C. 
552a(j)(2) from subsections 5 U.S.C. 552a(c)(3), (c)(4), (d), (e)(1), 
(e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8), (f), 
and (g).
    (ii) Authority. 5 U.S.C. 552a(j)(2).
    (iii) Reasons. (A) From subsection (c)(3) because the release of the 
disclosure accounting would permit the subject of a criminal 
investigation or matter under investigation to obtain valuable 
information concerning the nature of that investigation which will 
present a serious impediment to law enforcement.
    (B) From subsections (c)(4) because an exemption is being claimed 
for subsection (d), making this subsection not applicable.
    (C) From subsection (d) because access to the records contained in 
this system would inform the subject of a criminal investigation of the 
existence of that investigation, provide the subject of the 
investigation with information that might enable him to avoid detection 
or apprehension, and would present a serious impediment to law 
enforcement.
    (D) From subsection (e)(1) because in the course of criminal 
investigations, information is often obtained concerning the violation 
of laws or civil obligations of others not relating to an active case or 
matter. In the interests of effective law enforcement, it is necessary 
that this information be retained since it can aid in establishing 
patterns of activity and provide valuable leads for other agencies and 
future cases that may be brought.
    (E) From subsection (e)(2) because in a criminal or other law 
enforcement investigation, the requirement that information be collected 
to the greatest extent possible from the subject individual would alert 
the subject as to the nature or existence of the investigation and 
thereby present a serious impediment to effective law enforcement.
    (F) From subsection (e)(3) because the requirement that individuals 
supplying information be provided with a form stating the requirements 
of subsection (e)(3) would constitute a serious impediment to law 
enforcement in that it could compromise the existence of a confidential 
investigation, reveal the identity of confidential sources of 
information and endanger the life and physical safety of confidential 
informants.
    (G) From subsections (e)(4)(G) and (e)(4)(H) because portions of 
this system of records have been exempted from access provisions of 
subsection (d), making these subsections not applicable.
    (H) From subsections (e)(4)(I) because the identity of specific 
sources must be withheld in order to protect the confidentiality of the 
sources of criminal and other law enforcement information. This 
exemption is further necessary to protect the privacy and physical 
safety of witnesses and informants.
    (I) From subsection (e)(5) because the requirement that records be 
maintained with attention to accuracy, relevance, timeliness, and 
completeness would unfairly hamper the investigative process. It is the 
nature of law enforcement for investigations to uncover the commission 
of illegal acts at diverse stages. It is frequently impossible to 
determine initially what information is accurate, relevant, timely, and 
least of all complete. With the passage of time, seemingly irrelevant or 
untimely information may acquire new significance as further 
investigation brings new details to light.
    (J) From subsection (e)(8) because the notice requirements of this 
provision could present a serious impediment to criminal law enforcement 
by revealing investigative techniques, procedures, and the existence of 
confidential investigations.
    (K) From subsection (f) because portions of this system of records 
have

[[Page 912]]

been exempted from the access provisions of subsection (d).
    (L) From subsection (g) because portions of this system of records 
are compiled for law enforcement purposes and have been exempted from 
the access provisions of subsections (d) and (f).
    (17) System identifier and name. A0195-2c USACIDC DoD, DoD Criminal 
Investigation Task Force (CITF) Files.
    (i) Exemption. Parts of this system may be exempt pursuant to 5 
U.S.C. 552a(j)(2) if the information is compiled and maintained by a 
component of the agency, which performs as its principal function any 
activity pertaining to the enforcement of criminal laws. Therefore, 
portions of this system of records may be exempt pursuant to 5 U.S.C. 
552a(j)(2) from subsections 5 U.S.C. 552a(c)(3), (c)(4), (d), (e)(1), 
(e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8), (f), 
and (g).
    (ii) Authority. 5 U.S.C. 552a(j)(2).
    (iii) Reasons. (A) From subsection (c)(3) because the release of the 
disclosure accounting would permit the subject of a criminal 
investigation or matter under investigation to obtain valuable 
information concerning the nature of that investigation which will 
present a serious impediment to law enforcement.
    (B) From subsection (c)(4) because an exemption is being claimed for 
subsection (d), making this subsection not applicable.
    (C) From subsection (d) because access to the records contained in 
this system would inform the subject of a criminal investigation of the 
existence of that investigation, provide the subject of the 
investigation with information that might enable him to avoid detection 
or apprehension, and would present a serious impediment to law 
enforcement.
    (D) From subsection (e)(1) because in the course of criminal 
investigations, information is often obtained concerning the violation 
of laws or civil obligations of others not relating to an active case or 
matter. In the interests of effective law enforcement, it is necessary 
that this information be retained since it can aid in establishing 
patterns of activity and provide valuable leads for other agencies and 
future cases that may be brought.
    (E) From subsection (e)(2) because in a criminal or other law 
enforcement investigation, the requirement that information be collected 
to the greatest extent possible from the subject individual would alert 
the subject as to the nature or existence of the investigation and 
thereby present a serious impediment to effective law enforcement.
    (F) From subsection (e)(3) because the requirement that individuals 
supplying information be provided with a form stating the requirements 
of subsection (e)(3) would constitute a serious impediment to law 
enforcement in that it could compromise the existence of a confidential 
investigation, reveal the identity of confidential sources of 
information and endanger the life and physical safety of confidential 
informants.
    (G) From subsections (e)(4)(G) and (e)(4)(H) because portions of 
this system of records have been exempted from access provisions of 
subsection (d), making these subsections not applicable.
    (H) From subsection (e)(4)(I) because the identity of specific 
sources must be withheld in order to protect the confidentiality of the 
sources of criminal and other law enforcement information. This 
exemption is further necessary to protect the privacy and physical 
safety of witnesses and informants.
    (I) From subsection (e)(5) because the requirement that records be 
maintained with attention to accuracy, relevance, timeliness, and 
completeness would unfairly hamper the investigative process. It is the 
nature of law enforcement for investigations to uncover the commission 
of illegal acts at diverse stages. It is frequently impossible to 
determine initially what information is accurate, relevant, timely, and 
least of all complete. With the passage of time, seemingly irrelevant or 
untimely information may acquire new significance as further 
investigation brings new details to light.
    (J) From subsection (e)(8) because the notice requirements of this 
provision could present a serious impediment to criminal law enforcement 
by revealing investigative techniques, procedures, and the existence of 
confidential investigations.

[[Page 913]]

    (K) From subsection (f) because portions of this system of records 
have been exempted from the access provisions of subsection (d).
    (L) From subsection (g) because portions of this system of records 
are compiled for law enforcement purposes and have been exempted from 
the access provisions of subsections (d) and (f).
    (18) System identifier and name. A0195-2d USACIDC DoD, Defense 
Criminal Investigation DNA Database and Sample Repository; CODIS 
Records.
    (i) Exemption. Parts of this system may be exempt pursuant to 5 
U.S.C. 552a(j)(2) if the information is compiled and maintained by a 
component of the agency that performs as its principal function any 
activity pertaining to the enforcement of criminal laws. Therefore, 
portions of this system of records may be exempt pursuant to 5 U.S.C. 
552a(j)(2) from subsections 5 U.S.C. 552a(c)(3), (c)(4), (d), (e)(1), 
(e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8), (f), 
and (g).
    (ii) Authority. 5 U.S.C. 552a(j)(2).
    (iii) Reasons. (A) From subsection (c)(3) because the release of the 
disclosure accounting would permit the subject of a criminal 
investigation or matter under investigation to obtain valuable 
information concerning the nature of that investigation which will 
present a serious impediment to law enforcement.
    (B) From subsection (c)(4) because an exemption is being claimed for 
subsection (d), making this subsection not applicable.
    (C) From subsection (d) because access to the records contained in 
this system would inform the subject of a criminal investigation of the 
existence of that investigation, provide the subject of the 
investigation with information that might enable him to avoid detection 
or apprehension, and would present a serious impediment to law 
enforcement.
    (D) From subsection (e)(1) because in the course of criminal 
investigations, information is often obtained concerning the violation 
of laws or civil obligations of others not relating to an active case or 
matter. In the interests of effective law enforcement, it is necessary 
that this valuable information be retained since it can aid in 
establishing patterns of activity and provide valuable leads for other 
agencies and future cases that may be brought.
    (E) From subsection (e)(2) because in a criminal investigation, the 
requirement that information be collected to the greatest extent 
possible from the subject individual would present a serious impediment 
to law enforcement in that the subject of the investigation would be 
placed on notice of the existence of the investigation and would 
therefore be able to avoid detection.
    (F) From subsection (e)(3) because the requirement that individuals 
supplying information be provided with a form stating the requirements 
of subsection (e)(3) would constitute a serious impediment to law 
enforcement in that it could compromise the existence of a confidential 
investigation, reveal the identity of confidential sources of 
information and endanger the life and physical safety of confidential 
informants.
    (G) From subsections (e)(4)(G) and (e)(4)(H) because portions of 
this system of records have been exempted from the access provisions of 
subsection (d), making these subsections not applicable.
    (H) From subsection (e)(4)(I) because the identity of specific 
sources must be withheld in order to protect the confidentiality of the 
sources of criminal and other law enforcement information. This 
exemption is further necessary to protect the privacy and physical 
safety of witnesses and informants.
    (I) From subsection (e)(5) because in the collection of information 
for law enforcement purposes it is impossible to determine in advance 
what information is accurate, relevant, timely, and complete. With the 
passage of time, seemingly irrelevant or untimely information may 
acquire new significance as further investigation brings new details to 
light and the accuracy of such information can only be determined in a 
court of law. The restrictions of subsection (e)(5) would restrict the 
ability of trained investigators and intelligence analysts to exercise 
their judgment reporting on investigations and impede the development of 
intelligence necessary for effective law enforcement.

[[Page 914]]

    (J) From subsection (e)(8) because the individual notice 
requirements of subsection (e)(8) could present a serious impediment to 
law enforcement as this could interfere with the ability to issue search 
authorizations and could reveal investigative techniques and procedures.
    (K) From subsection (f) because portions of this system of records 
have been exempted from the access provisions of subsection (d).
    (L) From subsection (g) because portions of this system of records 
are compiled for law enforcement purposes and have been exempted from 
the access provisions of subsections (d) and (f).
    (19) System identifier and name. A0195-6 USACIDC, Criminal 
Investigation Accreditation and Polygraph Examiner Evaluation Files.
    (i) Exemption. (A) Investigatory material compiled for law 
enforcement purposes, other than material within the scope of subsection 
5 U.S.C. 552a(j)(2), may be exempt pursuant to 5 U.S.C. 552a(k)(2). 
However, if an individual is denied any right, privilege, or benefit for 
which he would otherwise be entitled by Federal law or for which he 
would otherwise be eligible, as a result of the maintenance of such 
information, the individual will be provided access to such information 
except to the extent that disclosure would reveal the identity of a 
confidential source.
    (B) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (C) Evaluation material used to determine potential for promotion in 
the Military Services may be exempt pursuant to 5 U.S.C. 552a(k)(7), but 
only to the extent that the disclosure of such material would reveal the 
identity of a confidential source.
    (D) Therefore, portions of this system of records may be exempt 
pursuant to 5 U.S.C. 552a(k)(2), (k)(5), or (k)(7) from subsections 5 
U.S.C. 552a (c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(2), (k)(5), and (k)(7).
    (iii) Reasons. (A) From subsections (c)(3) because the release of 
the disclosure accounting would permit the subject of a criminal 
investigation or matter under investigation to obtain valuable 
information concerning the nature of that investigation which will 
present a serious impediment to law enforcement.
    (B) From subsection (d), because access to the records contained in 
this system would inform the subject of a criminal investigation of the 
existence of that investigation, provide the subject of the 
investigation with information that might enable him to avoid detection 
or apprehension, and would present a serious impediment to law 
enforcement.
    (C) From subsection (e)(1) because in the course of criminal 
investigations, information is often obtained concerning the violation 
of laws or civil obligations of others not relating to an active case or 
matter. In the interests of effective law enforcement, it is necessary 
that this valuable information be retained since it can aid in 
establishing patterns of activity and provide valuable leads for other 
agencies and future cases that may be brought.
    (D) From subsections (e)(4)(G) and (e)(4)(H) because portions of 
this system of records have been exempted from the access provisions of 
subsection (d), making these subsections not applicable.
    (E) From subsection (e)(4)(I) because the identity of specific 
sources must be withheld in order to protect the confidentiality of the 
sources of criminal and other law enforcement information. This 
exemption is further necessary to protect the privacy and physical 
safety of witnesses and informants.
    (F) From subsection (f) because portions of this system of records 
have been exempted from the access provisions of subsection (d).
    (20) System identifier and name. A02107 DAMO, Expelled or Barred 
Person Files.
    (i) Exemption. Parts of this system may be exempt pursuant to 5 
U.S.C. 552a(j)(2) if the information is compiled and maintained by a 
component of the agency, which performs as its principal

[[Page 915]]

function any activity pertaining to the enforcement of criminal laws. 
Therefore, portions of this system of records may be exempt pursuant to 
5 U.S.C. 552a(j)(2) from subsections 5 U.S.C. 552a(c)(3), (c)(4), (d), 
(e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(8), (f) and 
(g).
    (ii) Authority. 5 U.S.C. 552a(j)(2).
    (iii) Reasons. (A) From subsection (c)(3) because the release of the 
disclosure accounting would permit the subject of a criminal 
investigation or matter under investigation to obtain valuable 
information concerning the nature of that investigation which will 
present a serious impediment to law enforcement.
    (B) From subsection (c)(4) because an exemption is being claimed for 
subsection (d), making this subsection not applicable.
    (C) From subsection (d) because access to the records contained in 
this system would inform the subject of a criminal investigation of the 
existence of that investigation, provide the subject of the 
investigation with information that might enable him to avoid detection 
or apprehension, and would present a serious impediment to law 
enforcement.
    (D) From subsection (e)(1) because in the course of criminal 
investigations, information is often obtained concerning the violation 
of laws or civil obligations of others not relating to an active case or 
matter. In the interests of effective law enforcement, it is necessary 
that this valuable information be retained since it can aid in 
establishing patterns of activity and provide valuable leads for other 
agencies and future cases that may be brought.
    (E) From subsection (e)(2) because in a criminal investigation, the 
requirement that information be collected to the greatest extent 
possible from the subject individual would present a serious impediment 
to law enforcement in that the subject of the investigation would be 
placed on notice of the existence of the investigation and would 
therefore be able to avoid detection.
    (F) From subsection (e)(3) because the requirement that individuals 
supplying information be provided with a form stating the requirements 
of subsection (e)(3) would constitute a serious impediment to law 
enforcement in that it could compromise the existence of a confidential 
investigation, reveal the identity of confidential sources of 
information and endanger the life and physical safety of confidential 
informants.
    (G) From subsections (e)(4)(G) and (e)(4)(H) because portions of 
this system of records have been exempted from the access provisions of 
subsection (d), making these subsections not applicable.
    (H) From subsection (e)(4)(I) because the identity of specific 
sources must be withheld in order to protect the confidentiality of the 
sources of criminal and other law enforcement information. This 
exemption is further necessary to protect the privacy and physical 
safety of witnesses and informants.
    (I) From subsection (e)(8) because the individual notice 
requirements of subsection (e)(8) could present a serious impediment to 
law enforcement as this could interfere with the ability to issue search 
authorizations and could reveal investigative techniques and procedures.
    (J) From subsection (f) because portions of this system of records 
have been exempted from the access provisions of subsection (d).
    (K) From subsection (g) because portions of this system of records 
are compiled for law enforcement purposes and have been exempted from 
the access provisions of subsections (d) and (f).
    (21) System identifier and name. A0340-21 OAA, Privacy Case Files.
    (i) Exemption. During the processing of a Privacy Act request (which 
may include access requests, amendment requests, and requests for review 
for initial denials of such requests), exempt materials from other 
systems of records may in turn become part of the case record in this 
system. To the extent that copies of exempt records from those `other' 
systems of records are entered into this system, the Department of the 
Army hereby claims the same exemptions.
    (ii) Authority. 5 U.S.C. 552a(j)(2), and (k)(1) through (k)(7).
    (iii) Reasons. Records are only exempt from pertinent provisions of 
5

[[Page 916]]

U.S.C. 552a to the extent such provisions have been identified and an 
exemption claimed for the original record and the purposes underlying 
the exemption for the original record still pertain to the record which 
is now contained in this system of records. In general, the exemptions 
were claimed in order to protect properly classified information 
relating to national defense and foreign policy, to avoid interference 
during the conduct of criminal, civil, or administrative actions or 
investigations, to ensure protective services provided to the President 
and others are not compromised, to protect records used solely as 
statistical records, to protect the identity of confidential sources 
incident to Federal employment, military service, contract, and security 
clearance determinations, and to preserve the confidentiality and 
integrity of Federal evaluation materials. The exemption rule for the 
original records will identify the specific reasons why the records may 
be exempt from specific provisions of 5 U.S.C. 552a.
    (22) System identifier and name. A0351-12 DAPE, Applicants/Students, 
U.S. Military Academy Prep School.
    (i) Exemption. (A) Investigatory material compiled solely for the 
purpose of determining suitability, eligibility, or qualifications for 
federal civilian employment, military service, federal contracts, or 
access to classified information may be exempt pursuant to 5 U.S.C. 
552a(k)(5), but only to the extent that such material would reveal the 
identity of a confidential source.
    (B) Evaluation material used to determine potential for promotion in 
the Military Services may be exempt pursuant to 5 U.S.C. 552a(k)(7), but 
only to the extent that the disclosure of such material would reveal the 
identity of a confidential source.
    (C) It is imperative that the confidential nature of evaluation 
material on individuals, furnished to the U.S. Military Academy 
Preparatory School under an express promise of confidentiality, be 
maintained to ensure the candid presentation of information necessary in 
determinations involving admission to or retention at the United States 
Military Academy and suitability for commissioned military service.
    (D) Therefore, portions of this system of records may be exempt 
pursuant to 5 U.S.C. 552a(k)(5) and (k)(7) subsections 5 U.S.C. 
552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(5) and (k)(7).
    (iii) Reasons. (A) From subsections (c)(3) because the release of 
the disclosure accounting would permit the subject of a criminal 
investigation or matter under investigation to obtain valuable 
information concerning the nature of that investigation which will 
present a serious impediment to law enforcement.
    (B) From subsection (d), because access to the records contained in 
this system would inform the subject of a criminal investigation of the 
existence of that investigation, provide the subject of the 
investigation with information that might enable him to avoid detection 
or apprehension, and would present a serious impediment to law 
enforcement.
    (C) From subsection (e)(1) because in the course of criminal 
investigations, information is often obtained concerning the violation 
of laws or civil obligations of others not relating to an active case or 
matter. In the interests of effective law enforcement, it is necessary 
that this valuable information be retained since it can aid in 
establishing patterns of activity and provide valuable leads for other 
agencies and future cases that may be brought.
    (D) From subsections (e)(4)(G) and (e)(4)(H) because portions of 
this system of records have been exempted from the access provisions of 
subsection (d), making these subsections not applicable.
    (E) From subsection (e)(4)(I) because the identity of specific 
sources must be withheld in order to protect the confidentiality of the 
sources of criminal and other law enforcement information. This 
exemption is further necessary to protect the privacy and physical 
safety of witnesses and informants.
    (F) From subsection (f) because portions of this system of records 
have been exempted from the access provisions of subsection (d).

[[Page 917]]

    (23) System identifier and name. A0351-17a USMA, U.S. Military 
Academy Candidate Files.
    (i) Exemption. (A) Investigatory material compiled solely for the 
purpose of determining suitability, eligibility, or qualifications for 
federal civilian employment, military service, federal contracts, or 
access to classified information may be exempt pursuant to 5 U.S.C. 
552a(k)(5), but only to the extent that such material would reveal the 
identity of a confidential source.
    (B) Testing or examination material used solely to determine 
individual qualifications for appointment or promotion in the Federal 
service may be exempt pursuant to 5 U.S.C. 552a(k)(6), if the disclosure 
would compromise the objectivity or fairness of the test or examination 
process.
    (C) Evaluation material used to determine potential for promotion in 
the Military Services may be exempt pursuant to 5 U.S.C. 552a(k)(7), but 
only to the extent that the disclosure of such material would reveal the 
identity of a confidential source.
    (D) Therefore, portions of this system of records may be exempt 
pursuant to 5 U.S.C. 552a(k)(5), (k)(6) or (k)(7) from subsections 5 
U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), and 
(f).
    (ii) Authority. 5 U.S.C. 552a(k)(5), (k)(6) and (k)(7).
    (iii) Reasons. (A) From subsections (c)(3) because the release of 
the disclosure accounting would permit the subject of a criminal 
investigation or matter under investigation to obtain valuable 
information concerning the nature of that investigation which will 
present a serious impediment to law enforcement.
    (B) From subsection (d), because access to the records contained in 
this system would inform the subject of a criminal investigation of the 
existence of that investigation, provide the subject of the 
investigation with information that might enable him to avoid detection 
or apprehension, and would present a serious impediment to law 
enforcement.
    (C) From subsection (e)(1) because in the course of criminal 
investigations, information is often obtained concerning the violation 
of laws or civil obligations of others not relating to an active case or 
matter. In the interests of effective law enforcement, it is necessary 
that this valuable information be retained since it can aid in 
establishing patterns of activity and provide valuable leads for other 
agencies and future cases that may be brought.
    (D) From subsections (e)(4)(G) and (e)(4)(H) because portions of 
this system of records have been exempted from the access provisions of 
subsection (d), making these subsections not applicable.
    (E) From subsection (e)(4)(I) because the identity of specific 
sources must be withheld in order to protect the confidentiality of the 
sources of criminal and other law enforcement information. This 
exemption is further necessary to protect the privacy and physical 
safety of witnesses and informants.
    (F) From subsection (f) because portions of this system of records 
have been exempted from the access provisions of subsection (d).
    (24) System identifier and name. A0351-17b USMA, U.S. Military 
Academy Management System Records.
    (i) Exemption. (A) Investigatory material compiled solely for the 
purpose of determining suitability, eligibility, or qualifications for 
federal civilian employment, military service, federal contracts, or 
access to classified information may be exempt pursuant to 5 U.S.C. 
552a(k)(5), but only to the extent that such material would reveal the 
identity of a confidential source.
    (B) Evaluation material used to determine potential for promotion in 
the Military Services may be exempt pursuant to 5 U.S.C. 552a(k)(7), but 
only to the extent that the disclosure of such material would reveal the 
identity of a confidential source.
    (C) It is imperative that the confidential nature of evaluation and 
investigatory material on candidates, cadets, and graduates, furnished 
to the United States Military Academy under a promise of confidentiality 
be maintained to ensure the candid presentation of information necessary 
in determinations involving admissions to the Military Academy and 
suitability for commissioned service and future promotion.

[[Page 918]]

    (D) Therefore, portions of this system of records may be exempt 
pursuant to 5 U.S.C. 552a(k)(5) or (k)(7) from subsections 5 U.S.C. 
552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(5) and (k)(7).
    (iii) Reasons. (A) From subsections (c)(3) because the release of 
the disclosure accounting would permit the subject of a criminal 
investigation or matter under investigation to obtain valuable 
information concerning the nature of that investigation which will 
present a serious impediment to law enforcement.
    (B) From subsection (d), because access to the records contained in 
this system would inform the subject of a criminal investigation of the 
existence of that investigation, provide the subject of the 
investigation with information that might enable him to avoid detection 
or apprehension, and would present a serious impediment to law 
enforcement.
    (C) From subsection (e)(1) because in the course of criminal 
investigations, information is often obtained concerning the violation 
of laws or civil obligations of others not relating to an active case or 
matter. In the interests of effective law enforcement, it is necessary 
that this valuable information be retained since it can aid in 
establishing patterns of activity and provide valuable leads for other 
agencies and future cases that may be brought.
    (D) From subsections (e)(4)(G) and (e)(4)(H) because portions of 
this system of records have been exempted from the access provisions of 
subsection (d), making these subsections not applicable.
    (E) From subsection (e)(4)(I) because the identity of specific 
sources must be withheld in order to protect the confidentiality of the 
sources of criminal and other law enforcement information. This 
exemption is further necessary to protect the privacy and physical 
safety of witnesses and informants.
    (F) From subsection (f) because portions of this system of records 
have been exempted from the access provisions of subsection (d).
    (25) System identifier and name. A0380-67 DAMI, Personnel Security 
Clearance Information Files.
    (i) Exemption. (A) Information specifically authorized to be 
classified under E.O. 12958, as implemented by DoD 5200.1-R, may be 
exempt pursuant to 5 U.S.C. 552a(k)(1).
    (B) Investigatory material compiled for law enforcement purposes, 
other than material within the scope of subsection 5 U.S.C. 552a(j)(2), 
may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an individual 
is denied any right, privilege, or benefit for which he would otherwise 
be entitled by Federal law or for which he would otherwise be eligible, 
as a result of the maintenance of such information, the individual will 
be provided access to such information except to the extent that 
disclosure would reveal the identity of a confidential source.
    (C) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (D) Therefore, portions of this system of records may be exempt 
pursuant to 5 U.S.C. 552a(k)(1), (k)(2), or (k)(5) from subsections 5 
U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I) and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(1), (k)(2), or (k)(5).
    (iii) Reasons. (A) From subsection (c)(3) because the release of the 
disclosure accounting would permit the subject of a criminal 
investigation or matter under investigation to obtain valuable 
information concerning the nature of that investigation which will 
present a serious impediment to law enforcement.
    (B) From subsection (d), because access to the records contained in 
this system would inform the subject of a criminal investigation of the 
existence of that investigation, provide the subject of the 
investigation with information that might enable him to avoid detection 
or apprehension, and would present a serious impediment to law 
enforcement.
    (C) From subsection (e)(1) because in the course of criminal 
investigations,

[[Page 919]]

information is often obtained concerning the violation of laws or civil 
obligations of others not relating to an active case or matter. In the 
interests of effective law enforcement, it is necessary that this 
valuable information be retained since it can aid in establishing 
patterns of activity and provide valuable leads for other agencies and 
future cases that may be brought.
    (D) From subsections (e)(4)(G) and (e)(4)(H) because portions of 
this system of records have been exempted from the access provisions of 
subsection (d), making these subsections not applicable.
    (E) From subsection (e)(4)(I) because the identity of specific 
sources must be withheld in order to protect the confidentiality of the 
sources of criminal and other law enforcement information. This 
exemption is further necessary to protect the privacy and physical 
safety of witnesses and informants.
    (F) From subsection (f) because portions of this system of records 
have been exempted from the access provisions of subsection (d).
    (26) System identifier and name. A0381-20b DAMI, Foreign 
Intelligence/Counterintelligence/Information Operations/Security Files.
    (i) Exemption. (A) Information specifically authorized to be 
classified under E.O. 12958, as implemented by DoD 5200.1-R, may be 
exempt pursuant to 5 U.S.C. 552a(k)(1).
    (B) Investigatory material compiled for law enforcement purposes, 
other than material within the scope of subsection 5 U.S.C. 552a(j)(2), 
may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an individual 
is denied any right, privilege, or benefit for which he would otherwise 
be entitled by Federal law or for which he would otherwise be eligible, 
as a result of the maintenance of such information, the individual will 
be provided access to such information except to the extent that 
disclosure would reveal the identity of a confidential source.
    (C) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (D) Therefore, portions of this system of records may be exempt 
pursuant to 5 U.S.C. 552a(k)(1), (k)(2) and (k)(5) from subsections 5 
U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), and 
(f).
    (E) To the extent that copies of exempt records from external 
systems of records are entered into A0381-10b DAMI, the Army hereby 
claims the same exemptions for those records as claimed for the original 
primary system of which they are a part.
    (ii) Authority. 5 U.S.C. 552a(j)(2), and (k)(1) through (k)(7).
    (iii) Reasons. (A) From subsection (c)(3) because the release of the 
disclosure accounting would permit the subject of a criminal 
investigation or matter under investigation to obtain valuable 
information concerning the nature of that investigation which will 
present a serious impediment to law enforcement.
    (B) From subsection (d), because access to the records contained in 
this system would inform the subject of a criminal investigation of the 
existence of that investigation, provide the subject of the 
investigation with information that might enable him to avoid detection 
or apprehension, and would present a serious impediment to law 
enforcement.
    (C) From subsection (e)(1) because in the course of criminal 
investigations, information is often obtained concerning the violation 
of laws or civil obligations of others not relating to an active case or 
matter. In the interests of effective law enforcement, it is necessary 
that this valuable information be retained since it can aid in 
establishing patterns of activity and provide valuable leads for other 
agencies and future cases that may be brought.
    (D) From subsections (e)(4)(G) and (e)(4)(H) because portions of 
this system of records have been exempted from the access provisions of 
subsection (d), making these subsections not applicable.
    (E) From subsection (e)(4)(I) because the identity of specific 
sources must be withheld in order to protect the confidentiality of the 
sources of criminal

[[Page 920]]

and other law enforcement information. This exemption is further 
necessary to protect the privacy and physical safety of witnesses and 
informants.
    (F) From subsection (f) because portions of this system of records 
have been exempted from the access provisions of subsection (d).
    (G) For records that are copies of exempt records from external 
systems of records, such records are only exempt from pertinent 
provisions of 5 U.S.C. 552a to the extent such provisions have been 
identified and an exemption claimed for the original record and the 
purposes underlying the exemption for the original record still pertain 
to the record which is now contained in this system of records. In 
general, the exemptions were claimed in order to protect properly 
classified information relating to national defense and foreign policy, 
to avoid interference during the conduct of criminal, civil, or 
administrative actions or investigations, to ensure protective services 
provided to the President and others are not compromised, to protect 
records used solely as statistical records, to protect the identity of 
confidential sources incident to Federal employment, military service, 
contract, and security clearance determinations, to preserve the 
confidentiality and integrity of Federal testing materials, and to 
safeguard evaluation materials used for military promotions when 
furnished by a confidential source. The exemption rule for the original 
records will identify the specific reasons why the records are exempt 
from specific provisions of 5 U.S.C. 552a.
    (27) System identifier and name. A0381-100a DAMI, Intelligence/
Counterintelligence Source Files.
    (i) Exemption. (A) Information specifically authorized to be 
classified under E.O. 12958, as implemented by DoD 5200.1-R, may be 
exempt pursuant to 5 U.S.C. 552a(k)(1).
    (B) Investigatory material compiled for law enforcement purposes, 
other than material within the scope of subsection 5 U.S.C. 552a(j)(2), 
may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an individual 
is denied any right, privilege, or benefit for which he would otherwise 
be entitled by Federal law or for which he would otherwise be eligible, 
as a result of the maintenance of such information, the individual will 
be provided access to such information except to the extent that 
disclosure would reveal the identity of a confidential source.
    (C) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (D) Therefore, portions of this system of records may be exempt 
pursuant to 5 U.S.C. 552a(k)(1), (k)(2), or (k)(5) from subsections 5 
U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), and 
(f).
    (ii) Authority. 5 U.S.C. 552a(k)(1), (k)(2), and (k)(5).
    (iii) Reasons. (A) From subsection (c)(3) because the release of the 
disclosure accounting would permit the subject of a criminal 
investigation or matter under investigation to obtain valuable 
information concerning the nature of that investigation which will 
present a serious impediment to law enforcement.
    (B) From subsection (d), because access to the records contained in 
this system would inform the subject of a criminal investigation of the 
existence of that investigation, provide the subject of the 
investigation with information that might enable him to avoid detection 
or apprehension, and would present a serious impediment to law 
enforcement.
    (C) From subsection (e)(1) because in the course of criminal 
investigations, information is often obtained concerning the violation 
of laws or civil obligations of others not relating to an active case or 
matter. In the interests of effective law enforcement, it is necessary 
that this valuable information be retained since it can aid in 
establishing patterns of activity and provide valuable leads for other 
agencies and future cases that may be brought.
    (D) From subsections (e)(4)(G) and (e)(4)(H) because portions of 
this system of records have been exempted

[[Page 921]]

from the access provisions of subsection (d), making these subsections 
not applicable.
    (E) From subsection (e)(4)(I) because the identity of specific 
sources must be withheld in order to protect the confidentiality of the 
sources of criminal and other law enforcement information. This 
exemption is further necessary to protect the privacy and physical 
safety of witnesses and informants.
    (F) From subsection (f) because portions of this system of records 
have been exempted from the access provisions of subsection (d).
    (28) System identifier and name. A0381-100b DAMI, Technical 
Surveillance Index.
    (i) Exemption. (A) Information specifically authorized to be 
classified under E.O. 12958, as implemented by DoD 5200.1-R, may be 
exempt pursuant to 5 U.S.C. 552a(k)(1).
    (B) Investigatory material compiled for law enforcement purposes, 
other than material within the scope of subsection 5 U.S.C. 552a(j)(2), 
may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an individual 
is denied any right, privilege, or benefit for which he would otherwise 
be entitled by Federal law or for which he would otherwise be eligible, 
as a result of the maintenance of such information, the individual will 
be provided access to such information except to the extent that 
disclosure would reveal the identity of a confidential source.
    (C) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (D) Therefore, portions of this system of records may be exempt 
pursuant to 5 U.S.C. 552a(k)(1), (k)(2), or (k)(5) from subsections 5 
U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), and 
(f).
    (ii) Authority. 5 U.S.C. 552a(k)(1), (k)(2) or (k)(5).
    (iii) Reasons. (A) From subsection (c)(3) because the release of the 
disclosure accounting would permit the subject of a criminal 
investigation or matter under investigation to obtain valuable 
information concerning the nature of that investigation which will 
present a serious impediment to law enforcement.
    (B) From subsection (d), because access to the records contained in 
this system would inform the subject of a criminal investigation of the 
existence of that investigation, provide the subject of the 
investigation with information that might enable him to avoid detection 
or apprehension, and would present a serious impediment to law 
enforcement.
    (C) From subsection (e)(1) because in the course of criminal 
investigations, information is often obtained concerning the violation 
of laws or civil obligations of others not relating to an active case or 
matter. In the interests of effective law enforcement, it is necessary 
that this valuable information be retained since it can aid in 
establishing patterns of activity and provide valuable leads for other 
agencies and future cases that may be brought.
    (D) From subsections (e)(4)(G) and (e)(4)(H) because portions of 
this system of records have been exempted from the access provisions of 
subsection (d), making these subsections not applicable.
    (E) From subsection (e)(4)(I) because the identity of specific 
sources must be withheld in order to protect the confidentiality of the 
sources of criminal and other law enforcement information. This 
exemption is further necessary to protect the privacy and physical 
safety of witnesses and informants.
    (F) From subsection (f) because portions of this system of records 
have been exempted from the access provisions of subsection (d).
    (29) System identifier and name. A0600-20 DCSG-1, Sexual Assault 
(SADMS) and Sexual Harassment (SHARP) Program Records.
    (i) Exemption. This system of records is a compilation of 
information from other Department of Defense/Army systems of records. To 
the extent that copies of exempt records from those other systems of 
records are entered into this system of records, the Army G-1 hereby 
claims the same exemptions

[[Page 922]]

for the records from those other systems.
    (ii) Authority. 5 U.S.C. 552a(j)(2), and (k)(1) through (k)(7).
    (iii) Reasons. Records are only exempt from pertinent provisions of 
5 U.S.C. 552a to the extent such provisions have been identified and an 
exemption claimed for the original record and the purposes underlying 
the exemption for the original record still pertain to the record which 
is now contained in this system of records. In general, the exemptions 
were claimed in order to protect properly classified information 
relating to national defense and foreign policy, to avoid interference 
during the conduct of criminal, civil, or administrative actions or 
investigations, to ensure protective services provided to the President 
and others are not compromised, to protect records used solely as 
statistical records, to protect the identity of confidential sources 
incident to Federal employment, military service, contract, and security 
clearance determinations, to preserve the confidentiality and integrity 
of Federal testing materials, and to safeguard evaluation materials used 
for military promotions when furnished by a confidential source. The 
exemption rule for the original records will identify the specific 
reasons why the records may be exempt from specific provisions of 5 
U.S.C. 552a.
    (30) System identifier and name. A0601-141 DASG, Applications for 
Appointment to Army Medical Department.
    (i) Exemption. Investigatory material compiled solely for the 
purpose of determining suitability, eligibility, or qualifications for 
federal civilian employment, military service, federal contracts, or 
access to classified information may be exempt pursuant to 5 U.S.C. 
552a(k)(5), but only to the extent that such material would reveal the 
identity of a confidential source. Therefore, portions of the system of 
records may be exempt pursuant to 5 U.S.C. 552(a)(k)(5) from subsections 
5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), and 
(f).
    (ii) Authority. 5 U.S.C. 552a(k)(5).
    (iii) Reasons. (A) From subsection (c)(3) because the release of the 
disclosure accounting would permit the subject of a criminal 
investigation or matter under investigation to obtain valuable 
information concerning the nature of that investigation which will 
present a serious impediment to law enforcement.
    (B) From subsection (d), because access to the records contained in 
this system would inform the subject of a criminal investigation of the 
existence of that investigation, provide the subject of the 
investigation with information that might enable him to avoid detection 
or apprehension, and would present a serious impediment to law 
enforcement.
    (C) From subsection (e)(1) because in the course of criminal 
investigations, information is often obtained concerning the violation 
of laws or civil obligations of others not relating to an active case or 
matter. In the interests of effective law enforcement, it is necessary 
that this valuable information be retained since it can aid in 
establishing patterns of activity and provide valuable leads for other 
agencies and future cases that may be brought.
    (D) From subsections (e)(4)(G) and (e)(4)(H) because portions of 
this system of records have been exempted from the access provisions of 
subsection (d), making these subsections not applicable.
    (E) From subsection (e)(4)(I) because the identity of specific 
sources must be withheld in order to protect the confidentiality of the 
sources of criminal and other law enforcement information. This 
exemption is further necessary to protect the privacy and physical 
safety of witnesses and informants.
    (F) From subsection (f) because portions of this system of records 
have been exempted from the access provisions of subsection (d).
    (31) System identifier and name. A0601-210a USAREC, Enlisted 
Eligibility Files.
    (i) Exemption. Investigatory material compiled solely for the 
purpose of determining suitability, eligibility, or qualifications for 
federal civilian employment, military service, federal contracts, or 
access to classified information may be exempt pursuant to 5 U.S.C. 
552a(k)(5), but only to the extent that such material would reveal the 
identity of a confidential source.

[[Page 923]]

Therefore, portions of this system of records may be exempt pursuant to 
5 U.S.C. 552a(k)(5) from subsections 5 U.S.C. 552a(c)(3), (d), (e)(1), 
(e)(4)(G), (e)(4)(H), (e)(4)(I), and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(5).
    (iii) Reasons. (A) From subsection (c)(3) because the release of the 
disclosure accounting would permit the subject of a criminal 
investigation or matter under investigation to obtain valuable 
information concerning the nature of that investigation which will 
present a serious impediment to law enforcement.
    (B) From subsection (d), because access to the records contained in 
this system would inform the subject of a criminal investigation of the 
existence of that investigation, provide the subject of the 
investigation with information that might enable him to avoid detection 
or apprehension, and would present a serious impediment to law 
enforcement.
    (C) From subsection (e)(1) because in the course of criminal 
investigations, information is often obtained concerning the violation 
of laws or civil obligations of others not relating to an active case or 
matter. In the interests of effective law enforcement, it is necessary 
that this valuable information be retained since it can aid in 
establishing patterns of activity and provide valuable leads for other 
agencies and future cases that may be brought.
    (D) From subsections (e)(4)(G) and (e)(4)(H) because portions of 
this system of records have been exempted from the access provisions of 
subsection (d), making these subsections not applicable.
    (E) From subsection (e)(4)(I) because the identity of specific 
sources must be withheld in order to protect the confidentiality of the 
sources of criminal and other law enforcement information. This 
exemption is further necessary to protect the privacy and physical 
safety of witnesses and informants.
    (F) From subsection (f) because portions of this system of records 
have been exempted from the access provisions of subsection (d).
    (32) System identifier and name. A0608-18 DASG, Army Family Advocacy 
Program Files.
    (i) Exemption. (A) Investigatory material compiled for law 
enforcement purposes, other than material within the scope of subsection 
5 U.S.C. 552a(j)(2), may be exempt pursuant to 5 U.S.C. 552a(k)(2). 
However, if an individual is denied any right, privilege, or benefit for 
which he would otherwise be entitled by Federal law or for which he 
would otherwise be eligible, as a result of the maintenance of such 
information, the individual will be provided access to such information 
except to the extent that disclosure would reveal the identity of a 
confidential source.
    (B) Investigative material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (C) Therefore, portions of the system of records may be exempt 
pursuant to 5 U.S.C. 552a(k)(2) or (k)(5) from subsections 5 U.S.C. 
552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I) and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(2) and (k)(5).
    (iii) Reasons. (A) From subsection (c)(3) because the release of the 
disclosure accounting would permit the subject of a criminal 
investigation or matter under investigation to obtain valuable 
information concerning the nature of that investigation which will 
present a serious impediment to law enforcement.
    (B) From subsection (d) because access to the records contained in 
this system would inform the subject of a criminal investigation of the 
existence of that investigation, provide the subject of the 
investigation with information that might enable him to avoid detection 
or apprehension, and would present a serious impediment to law 
enforcement.
    (C) From subsection (e)(1) because in the course of criminal 
investigations, information is often obtained concerning the violation 
of laws or civil obligations of others not relating to an active case or 
matter. In the interests of effective law enforcement, it is necessary 
that this valuable information

[[Page 924]]

be retained since it can aid in establishing patterns of activity and 
provide valuable leads for other agencies and future cases that may be 
brought.
    (D) From subsections (e)(4)(G) and (e)(4)(H) because the 
requirements in those subsections are inapplicable to the extent that 
portions of this system of records may be exempt from subsection (d), 
concerning individual access.
    (E) From subsection (e)(4)(I) because the identity of specific 
sources must be withheld in order to protect the confidentiality of the 
sources of criminal and other law enforcement information. This 
exemption is further necessary to protect the privacy and physical 
safety of witnesses and informants.
    (F) From subsection (f) because portions of this system of records 
have been exempted from the access provisions of subsection (d).
    (33) System identifier and name. A0614-115 DAMI, Department of the 
Army Operational Support Activities.
    (i) Exemption. (A) Information specifically authorized to be 
classified under E.O. 12958, as implemented by DoD 5200.1-R, may be 
exempt pursuant to 5 U.S.C. 552a(k)(1).
    (B) Investigatory material compiled for law enforcement purposes, 
other than material within the scope of subsection 5 U.S.C. 552a(j)(2), 
may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an individual 
is denied any right, privilege, or benefit for which he would otherwise 
be entitled by Federal law or for which he would otherwise be eligible, 
as a result of the maintenance of such information, the individual will 
be provided access to such information except to the extent that 
disclosure would reveal the identity of a confidential source.
    (C) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (D) Therefore, portions of this system of records may be exempt 
pursuant to 5 U.S.C. 552a(k)(1), (k)(2), or (k)(5) from subsections 5 
U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I) and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(1), (k)(2), and (k)(5).
    (iii) Reasons. (A) From subsection (c)(3) because the release of the 
disclosure accounting would permit the subject of a criminal 
investigation or matter under investigation to obtain valuable 
information concerning the nature of that investigation which will 
present a serious impediment to law enforcement.
    (B) From subsection (d), because access to the records contained in 
this system would inform the subject of a criminal investigation of the 
existence of that investigation, provide the subject of the 
investigation with information that might enable him to avoid detection 
or apprehension, and would present a serious impediment to law 
enforcement.
    (C) From subsection (e)(1) because in the course of criminal 
investigations, information is often obtained concerning the violation 
of laws or civil obligations of others not relating to an active case or 
matter. In the interests of effective law enforcement, it is necessary 
that this valuable information be retained since it can aid in 
establishing patterns of activity and provide valuable leads for other 
agencies and future cases that may be brought.
    (D) From subsections (e)(4)(G) and (e)(4)(H) because portions of 
this system of records have been exempted from the access provisions of 
subsection (d), making these subsections not applicable.
    (E) From subsection (e)(4)(I) because the identity of specific 
sources must be withheld in order to protect the confidentiality of the 
sources of criminal and other law enforcement information. This 
exemption is further necessary to protect the privacy and physical 
safety of witnesses and informants.
    (F) From subsection (f) because portions of this system of records 
have been exempted from the access provisions of subsection (d).
    (34) System identifier and name. A0025-2 PMG (DFBA) DoD, Defense 
Biometrics Identification Records System.

[[Page 925]]

    (i) Exemption. (A) Investigatory material compiled for law 
enforcement purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2). 
However, if an individual is denied any right, privilege, or benefit for 
which he would otherwise be entitled by Federal law or for which he 
would otherwise be eligible, as a result of the maintenance of such 
information, the individual will be provided access to such information 
except to the extent that disclosure would reveal the identity of a 
confidential source.
    (B) Exempt materials from other sources listed above may become part 
of the case records in this system of records. To the extent that copies 
of exempt records from other sources listed above are entered into these 
case records, the Department of the Army hereby claims the same 
exemptions, (j)(2) and (k)(2), for the records as claimed by the source 
systems, specifically to the extent that copies of exempt records may 
become part of these records from JUSTICE/FBI-019 Terrorist Screening 
Records System, the Department of the Army hereby claims the same 
exemptions for the records as claimed at their source (JUSTICE/FBI-019, 
Terrorist Screening Records System).
    (C) Therefore, portions of this system of records may be exempt 
pursuant to 5 U.S.C. 552a(j)(2) and (k)(2) from subsections 5 U.S.C. 
552a(c)(3), (c)(4), (d), (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), 
(e)(4)(I), (e)(5), (e)(8), (f), and (g).
    (ii) Authority. 5 U.S.C. 552a(j)(2) and(k)(2).
    (iii) Reasons. (A) From subsection (c)(3) because the release of the 
disclosure accounting would permit the subject of a criminal 
investigation or matter under investigation to obtain valuable 
information concerning the nature of that investigation which will 
present a serious impediment to law enforcement.
    (B) From subsection (c)(4) because an exemption is being claimed for 
subsection (d), making this subsection not applicable.
    (C) From subsection (d) because access to such records contained in 
this system would inform the subject of a criminal investigation of the 
existence of that investigation, provide the subject of the 
investigation with information that might enable him to avoid detection 
or apprehension, and would present a serious impediment to law 
enforcement.
    (D) From subsection (e)(1) because the nature of the criminal and/or 
civil investigative function creates unique problems in prescribing a 
specific parameter in a particular case with respect to what information 
is relevant or necessary. Also, information may be received which may 
relate to a case under the investigative jurisdiction of another agency. 
The maintenance of this information may be necessary to provide leads 
for appropriate law enforcement purposes and to establish patterns of 
activity that may relate to the jurisdiction of other cooperating 
agencies.
    (E) From subsection (e)(2) because in a criminal investigation, the 
requirement that information be collected to the greatest extent 
possible from the subject individual would present a serious impediment 
to law enforcement in that the subject of the investigation would be 
placed on notice of the existence of the investigation and would 
therefore be able to avoid detection.
    (F) From subsection (e)(3) because the requirement that individuals 
supplying information be provided with a form stating the requirements 
of subsection (e)(3) would constitute a serious impediment to law 
enforcement in that it could compromise the existence of a confidential 
investigation, reveal the identity of confidential sources of 
information and endanger the life and physical safety of confidential 
informants.
    (G) From subsections (e)(4)(G) and (e)(4)(H) because the 
requirements in those subsections are inapplicable to the extent that 
portions of this system of records may be exempt from subsection (d), 
concerning individual access.
    (H) From subsection (e)(4)(I) because the identity of specific 
sources must be withheld in order to protect the confidentiality of the 
sources of criminal and other law enforcement information. This 
exemption is further necessary to protect the privacy and physical 
safety of witnesses and informants.
    (I) From subsection (e)(5) because in the collection of information 
for law

[[Page 926]]

enforcement purposes, it is impossible to determine in advance what 
information is accurate, relevant, timely, and complete. With the 
passage of time, seemingly irrelevant or untimely information may 
acquire new significance as further investigation brings new details to 
light and the accuracy of such information can only be determined in a 
court of law. The restrictions of subsection (e)(5) would restrict the 
ability of trained investigators and intelligence analysts to exercise 
their judgment in reporting on investigations and impede the development 
of intelligence necessary for effective law enforcement.
    (J) From subsection (e)(8) because the individual notice 
requirements of subsection (e)(8) could present a serious impediment to 
law enforcement as this could interfere with the ability to issue search 
authorizations and could reveal investigative techniques and procedures.
    (K) From subsection (f) because portions of this system of records 
have been exempted from the access provisions of subsection (d).
    (L) From subsection (g) because portions of this system of records 
are compiled for law enforcement purposes and have been exempted from 
the access provisions of subsections (d) and (f).
    (35) System identifier and name. A0600-20 SAMR, Soldiers Equal 
Opportunity Investigative Files.
    (i) Exemption. Investigatory material compiled for law enforcement 
purposes, other than material within the scope of subsection 5 U.S.C. 
552a(j)(2), is exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an 
individual is denied any right, privilege, or benefit for which he would 
otherwise be entitled by Federal law or for which he would otherwise be 
eligible, as a result of the maintenance of such information, such 
material shall be provided to the individual, except to the extent that 
disclosure would reveal the identity of a confidential source. 
Therefore, portions of this system of records may be exempt pursuant to 
5 U.S.C. 552a(k)(2) from subsections 5 U.S.C. 552a(c)(3), (d), (e)(1), 
(e)(4)(G), (e)(4)(H), (e)(4)(I), and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(2).
    (iii) Reasons. (A) From subsection (c)(3) because the release of the 
disclosure accounting would permit the subject of a criminal 
investigation or other investigation conducted for law enforcement 
purposes to obtain valuable information concerning the nature of that 
investigation which will present a serious impediment to law 
enforcement.
    (B) From subsection (d) because access to such records contained in 
this system would inform the subject of a criminal investigation or 
other investigation conducted for law enforcement purposes, of the 
existence of that investigation, provide the subject of the 
investigation with information that might enable him to avoid detection 
or apprehension, and would present a serious impediment to law 
enforcement.
    (C) From subsection (e)(1) because in the course of criminal 
investigations or other law enforcement investigations, information is 
often obtained concerning the violations of laws or civil obligations of 
others not relating to an active case or matter. In the interests of 
effective law enforcement, it is necessary that this valuable 
information is retained because it can aid in establishing patterns of 
activity and provide valuable leads for other agencies and future cases 
that may be brought.
    (D) From subsections (e)(4)(G) and (e)(4)(H) because the 
requirements in those subsections are inapplicable to the extent that 
portions of this system of records may be exempted from subsection (d), 
concerning individual access.
    (E) From subsection (e)(4)(I) because the identity of specific 
sources must be withheld to protect the confidentiality of the sources 
of criminal and other law enforcement information. This exemption is 
further necessary to protect the privacy and physical safety of 
witnesses and informants.
    (F) From subsection (f) because portions of this system of records 
have been exempted from the access provisions of subsections (d).
    (G) For records that are copies of exempt records from external 
systems of records, such records are only exempt from pertinent 
provisions of 5 U.S.C. 552a to the extent such provisions have been 
identified and an exemption claimed for the original record and the 
purposes underlying the exemption for

[[Page 927]]

the original record still pertain to the record that is now contained in 
this system of records. In general, the exemptions were claimed to 
properly protect classified information relating to national defense and 
foreign policy; to avoid interference during the conduct of criminal, 
civil, or administrative actions or investigations; to ensure protective 
services provided to the President and others are not compromised; to 
protect records used solely as statistical records; to protect the 
identity of confidential sources incident to Federal employment, 
military service, contract, and security clearance determinations; to 
preserve the confidentiality and integrity of Federal testing materials; 
and to safeguard evaluation materials used for military promotions when 
provided by a confidential source. The exemption rule for the original 
records will identify the specific reasons the records are exempt from 
specific provisions of 5 U.S.C. 552a.
    (h) Exempt OPM records. Three Office of Personnel Management systems 
of records apply to Army employees, except for non-appropriated fund 
employees. These systems, the specific exemptions determined to be 
necessary and proper, the records exempted, provisions of the Privacy 
Act from which exempt, and justification are set forth below:
    (1) Personnel Investigations Records (OPM/CENTRAL-9).
    (i) Exemption. (A) Information specifically authorized to be 
classified under E.O. 12958, as implemented by DoD 5200.1-R, may be 
exempt pursuant to 5 U.S.C. 552a(k)(1).
    (B) Investigatory material compiled for law enforcement purposes, 
other than material within the scope of subsection 5 U.S.C. 552a(j)(2), 
may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an individual 
is denied any right, privilege, or benefit for which he would otherwise 
be entitled by Federal law or for which he would otherwise be eligible, 
as a result of the maintenance of such information, the individual will 
be provided access to such information except to the extent that 
disclosure would reveal the identity of a confidential source.
    (C) Records maintained in connection with providing protective 
services to the President of the United States or other individuals 
pursuant to Title 18 U.S.C. 3056 may be exempt pursuant to 5 U.S.C. 
552a(k)(3).
    (D) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (E) Testing or examination material used solely to determine 
individual qualifications for appointment or promotion in the Federal 
service may be exempt pursuant to 5 U.S.C. 552a(k)(6), if the disclosure 
would compromise the objectivity or fairness of the test or examination 
process.
    (F) Evaluation material used to determine potential for promotion in 
the Military Services may be exempt pursuant to 5 U.S.C. 552a(k)(7), but 
only to the extent that the disclosure of such material would reveal the 
identity of a confidential source.
    (G) Therefore, portions of this system of records may be exempt 
pursuant to 5 U.S.C. 552a(k)(1), (k)(2), (k)(3), (k)(5), (k)(6), or 
(k)(7) from subsections 5 U.S.C. 552a(c)(3) and (d).
    (ii) Reasons. (A) Personnel investigations may obtain from another 
Federal agency, properly classified information which pertains to 
national defense and foreign policy. Application of exemption (k)(1) may 
be necessary to preclude the data subject's access to an amendment of 
such classified information under 5 U.S.C. 552a(d) in order to protect 
such information.
    (B) Personnel investigations may contain investigatory material 
compiled for law enforcement purposes other than material within the 
scope of 5 U.S.C. 552a(j)(2), e.g., investigations into the 
administration of the merit system. Application of exemption (k)(2) may 
be necessary to preclude the data subject's access to or amendment of 
such records, under 552a(c)(3) and (d) because otherwise, it would 
inform the subject of a criminal investigation of the existence of that 
investigation, provide the subject of the investigation with information 
that might enable

[[Page 928]]

him to avoid detection or apprehension, and would present a serious 
impediment to law enforcement.
    (C) Personnel investigations may obtain from another Federal agency, 
information that relates to providing protective services to the 
President of the United States or other individuals pursuant to section 
3056 of title 18. Application of exemption (k)(3) may be necessary to 
preclude the data subject's access to or amendment of such records under 
5 U.S.C. 552a(d) to ensure protective services provided to the President 
and others are not compromised.
    (D) All information about individuals in these records that meets 
the criteria stated in 5 U.S.C. 552a(k)(5) is exempt from the 
requirements of 5 U.S.C. 552a(c)(3) and (d) in order to protect the 
identity of confidential sources incident to determinations of 
suitability, eligibility, or qualifications for Federal employment, 
military service, contract, and security clearance determinations.
    (E) All material and information in the records that meets the 
criteria stated in 5 U.S.C. 552a(k)(6) is exempt from the requirements 
of 5 U.S.C. 552a(d), relating to access to and amendment of records by 
the data subject in order to preserve the confidentiality and integrity 
of Federal testing materials.
    (F) All material and information in the records that meets the 
criteria stated in 5 U.S.C. 552a(k)(7) is exempt from the requirements 
of 5 U.S.C. 552a(d), relating to access to and amendment of records by 
the data subject in order to safeguard evaluation materials used for 
military promotions when furnished by a confidential source.
    (2) Recruiting, Examining, and Placement Records (OPM/GOVT-5).
    (i) Exemption. (A) Investigatory material compiled solely for the 
purpose of determining suitability, eligibility, or qualifications for 
federal civilian employment, military service, federal contracts, or 
access to classified information may be exempt pursuant to 5 U.S.C. 
552a(k)(5), but only to the extent that such material would reveal the 
identity of a confidential source.
    (B) Testing or examination material used solely to determine 
individual qualifications for appointment or promotion in the Federal 
service may be exempt pursuant to 5 U.S.C. 552a(k)(6), if the disclosure 
would compromise the objectivity or fairness of the test or examination 
process.
    (C) Therefore, portions of this system of records may be exempt 
pursuant to 5 U.S.C. 552a(k)(5), or (k)(6) from subsections 5 U.S.C. 
552a(c)(3) and (d).
    (ii) Reasons. (A) All information about individuals in these records 
that meets the criteria stated in 5 U.S.C. 552a(k)(5) is exempt from the 
requirements of 5 U.S.C. 552a(c)(3) and (d) in order to protect the 
identity of confidential sources incident to determinations of 
suitability, eligibility, or qualifications for Federal employment, 
military service, contract, and security clearance determinations. These 
exemptions are also claimed because this system contains investigative 
material compiled solely for the purpose of determining the 
appropriateness of a request for approval of an objection to an eligible 
individual's qualification for employment in the Federal service.
    (B) All material and information in these records that meets the 
criteria stated in 5 U.S.C. 552a(k)(6) are exempt from the requirements 
of 5 U.S.C. 552a(d), relating to access and amendment of records by the 
subject, in order to preserve the confidentiality and integrity of 
Federal testing materials.
    (3) Personnel Research Test Validation Records (OPM/GOVT-6).
    (i) Exemption. Testing or examination material used solely to 
determine individual qualifications for appointment or promotion in the 
Federal service may be exempt pursuant to 5 U.S.C. 552a(k)(6), if the 
disclosure would compromise the objectivity or fairness of the test or 
examination process. Therefore, portions of this system of records may 
be exempt pursuant to 5 U.S.C. 552a(k)(6) from subsections 5 U.S.C. 
552a(d).
    (ii) Reasons. All material and information in these records that 
meets the criteria stated in 5 U.S.C. 552a(k)(6) is exempt from the 
requirements of 5 U.S.C. 552a(d), relating to access to an amendment of 
the records by the data

[[Page 929]]

subject, in order to preserve the confidentiality and integrity of 
Federal testing materials.
    (iii) Twelve Exceptions to the ``No Disclosure without Consent'' 
rule of the Privacy Act.
    (A) 5 U.S.C. 552a(b)(1)--To DoD officers and employees who have a 
need for the record in the performance of their official duties. This is 
the ``official need to know'' concept.
    (B) 5 U.S.C. 552a(b)(2)--FOIA requires release of the information 
pursuant to 5 U.S.C. 552.
    (C) 5 U.S.C. 552a(b)(3)--For an authorized Routine Use, i.e. the 
``Routine Use Exception.'' The Routine Use must be listed in the 
applicable system of records notice published in the Federal Register 
and the purpose of the disclosure must be compatible with the purpose 
for the published Routine Use.
    (D) 5 U.S.C. 552a(b)(4)--To the Bureau of the Census to plan or 
carry out a census or survey, or related activity pursuant to Title 13 
of the U.S. Code.
    (E) 5 U.S.C. 552a(b)(5)--To a recipient who has provided the 
Department of the Army or DoD 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) 5 U.S.C. 552a(b)(6)--To the National Archives and Records 
Administration as a record that has sufficient historical or other value 
to warrant its continued preservation by the U.S. Government, or for 
evaluation by the Archivist of the United States or the designee of the 
Archivist to determine whether the record has such value.

    Note 1 to paragraph (h)(3)(iii)(F). Records transferred to the 
Federal Records Centers for storage remain under the control of the 
Department of the Army and no accounting for disclosure is required 
under the Privacy Act.

    (G) 5 U.S.C. 552a(b)(7)--To another agency or instrumentality of any 
governmental jurisdiction within or under the control of the United 
States for a civil or criminal law enforcement activity, if the activity 
is authorized by law, and if the head of the agency or instrumentality 
has made a written request to the Department of the Army or DoD 
specifying the particular portion desired and the law enforcement 
activity for which the record is sought.
    (H) 5 U.S.C. 552a(b)(8)--To a person pursuant to a showing of 
compelling circumstances affecting the health or safety of an individual 
if upon such disclosure, notification is transmitted to the last known 
address of such individual.
    (I) 5 U.S.C. 552a(b)(9)--To either House of Congress, or, to the 
extent the matter is within its jurisdiction, any committee or 
subcommittee thereof, or any joint committee of Congress or subcommittee 
of any such joint committee. Requests from a Congressional member acting 
on behalf of a constituent are not included in this exception, but may 
be covered by a routine use exception to the Privacy Act (See applicable 
Army system of records notice).
    (J) 5 U.S.C. 552a(b)(10)--To the Comptroller General or authorized 
representatives, in the course of the performance of the duties of the 
Government Accountability Office.
    (K) 5 U.S.C. 552a(b)(11)--Pursuant to the order of a court of 
competent jurisdiction. The order must be signed by a judge.
    (L) 5 U.S.C. 552a(b)(12)--To a consumer reporting agency in 
accordance with section 3711(e) of Title 31 of the U.S. Code. The name, 
address, SSN, and other information identifying the individual; amount, 
status, and history of the claim; and the agency or program under which 
the case arose may be disclosed. However, before doing so, agencies must 
complete a series of steps designed to validate the debt and to offer 
the individual an opportunity to repay it.

    Effective Date Note: At 88 FR 42236, June 30, 2023, Sec. 310.15 was 
amended by removing and reserving paragraph (g)(21), effective Sept. 8, 
2023.



Sec. 310.16  Department of the Navy exemptions.

    (a) All systems of records maintained by the DON shall be exempt 
from the requirements of the access provision of the Privacy Act (5 
U.S.C. 552a(d)) under the (k)(1) exemption, to the extent that the 
system contains information properly classified under E.O. 12958 and 
that

[[Page 930]]

is required by that E.O. to be kept secret in the interest of national 
defense or foreign policy. This exemption is applicable to parts of all 
systems of records including those not otherwise specifically designated 
for exemptions herein that contain isolated items of properly classified 
information.
    (1) System identifier and name. N01070-9, White House Support 
Program.
    (i) Exemption. (A) Information specifically authorized to be 
classified under E.O. 12958, as implemented by DOD 5200.1-R, may be 
exempt pursuant to 5 U.S.C. 552a(k)(1).
    (B) Investigatory material compiled for law enforcement purposes may 
be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an individual is 
denied any right, privilege, or benefit for which he would otherwise be 
entitled by Federal law or for which he would otherwise be eligible, as 
a result of the maintenance of such information, the individual will be 
provided access to such information except to the extent that disclosure 
would reveal the identity of a confidential source.
    (C) Records maintained in connection with providing protective 
services to the President and other individuals under 18 U.S.C. 3506, 
may be exempt pursuant to 5 U.S.C. 552a(k)(3).
    (D) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (E) Portions of this system of records are exempt from the following 
subsections of the Privacy Act: (c)(3), (d), (e)(1), (e)(4)(G) through 
(I), and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(1), (k)(2), (k)(3), and (k)(5).
    (iii) Reasons. Exempted portions of this system contain information 
that has been properly classified under E.O. 12958, and which is 
required to be kept secret in the interest of national defense or 
foreign policy. Exempted portions of this system may also contain 
information considered relevant and necessary to make a determination as 
to qualifications, eligibility, or suitability for access to classified 
information, and which was obtained by providing an express or implied 
promise to the source that his or her identity would not be revealed to 
the subject of the record. Exempted portions of this system may also 
contain information collected and maintained in connection with 
providing protective services to the President and other individuals 
protected pursuant to 18 U.S.C. 3056. Exempted portions of this system 
may also contain investigative records compiled for law enforcement 
purposes, the disclosure of which could reveal the identity of sources 
who provide information under an express or implied promise of 
confidentiality, compromise investigative techniques and procedures, 
jeopardize the life or physical safety of law-enforcement personnel, or 
otherwise interfere with enforcement proceedings or adjudications.
    (2) System identifier and name. N01131-1, Officer Selection and 
Appointment System.
    (i) Exemption. (A) Information specifically authorized to be 
classified under E.O. 12958, as implemented by DOD 5200.1-R, may be 
exempt pursuant to 5 U.S.C. 552a(k)(1).
    (B) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (C) Testing or examination material used solely to determine 
individual qualifications for appointment or promotion in the Federal 
service may be exempt pursuant to 5 U.S.C. 552a(k)(6), if the disclosure 
would compromise the objectivity or fairness of the test or examination 
process.
    (D) Evaluation material used to determine potential for promotion in 
the Military Services may be exempt pursuant to 5 U.S.C. 552a(k)(7), but 
only to the extent that the disclosure of such material would reveal the 
identity of a confidential source.

[[Page 931]]

    (E) Portions of this system of records are exempt from the following 
subsections of the Privacy Act: (c)(3), (d), (e)(1), (e)(4)(G) through 
(I), and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(1), (k)(5), (k)(6), and (k)(7).
    (iii) Reasons. Granting individuals access to portions of this 
system of records could result in the disclosure of classified material, 
or the identification of sources who provided information to the 
government under an express or implied promise of confidentiality. 
Material will be screened to permit access to unclassified material and 
to information that does not disclose the identity of a confidential 
source.
    (3) System identifier and name. N01133-2, Recruiting Enlisted 
Selection System.
    (i) Exemption. (A) Information specifically authorized to be 
classified under E.O. 12958, as implemented by DOD 5200.1-R, may be 
exempt pursuant to 5 U.S.C. 552a(k)(1).
    (B) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (C) Testing or examination material used solely to determine 
individual qualifications for appointment or promotion in the Federal 
service may be exempt pursuant to 5 U.S.C. 552a(k)(6), if the disclosure 
would compromise the objectivity or fairness of the test or examination 
process.
    (D) Evaluation material used to determine potential for promotion in 
the Military Services may be exempt pursuant to 5 U.S.C. 552a(k)(7), but 
only to the extent that the disclosure of such material would reveal the 
identity of a confidential source.
    (E) Portions of this system of records are exempt from the following 
subsections of the Privacy Act: (c)(3), (d), (e)(1), (e)(4)(G) through 
(I), and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(1), (k)(5), (k)(6), and (k)(7).
    (iii) Reasons. Granting individuals access to portions of this 
system of records could result in the disclosure of classified material, 
or the identification of sources who provided information to the 
government under an express or implied promise of confidentiality. 
Material will be screened to permit access to unclassified material and 
to information that does not disclose the identity of a confidential 
source.
    (4) System identifier and name. N01640-1, Individual Correctional 
Records.
    (i) Exemption. (A) Parts of this system may be exempt pursuant to 5 
U.S.C. 552a(j)(2) if the information is compiled and maintained by a 
component of the agency which performs as its principle function any 
activity pertaining to the enforcement of criminal laws.
    (B) Portions of this system of records are exempt from the following 
subsections of the Privacy Act: (c)(3), (c)(4), (d), (e)(2), (e)(3), 
(e)(4)(G) through (I), (e)(5), (e)(8), (f), and (g).
    (ii) Authority. 5 U.S.C. 552a(j)(2).
    (iii) Reason. (A) Granting individuals access to portions of these 
records pertaining to or consisting of, but not limited to, disciplinary 
reports, criminal investigations, and related statements of witnesses, 
and such other related matter in conjunction with the enforcement of 
criminal laws, could interfere with the orderly investigations, with the 
orderly administration of justice, and possibly enable suspects to avoid 
detection or apprehension. Disclosure of this information could result 
in the concealment, destruction, or fabrication of evidence, and 
jeopardize the safety and well-being of informants, witnesses and their 
families, and law enforcement personnel and their families. Disclosure 
of this information could also reveal and render ineffectual 
investigative techniques, sources, and methods used by these components 
and could result in the invasion of the privacy of individuals only 
incidentally related to an investigation. The exemption of the 
individual's right of access to portions of these records, and the 
reasons therefore, necessitate the exemption of this system of records 
from the requirement of the other cited provisions.
    (B) [Reserved]

[[Page 932]]

    (5) System identifier and name. N01754-3, Navy Child Development 
Services Program.
    (i) Exemption. (A) Investigatory material compiled for law 
enforcement purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2). 
However, if an individual is denied any right, privilege, or benefit for 
which he would otherwise be entitled by Federal law or for which he 
would otherwise be eligible, as a result of the maintenance of such 
information, the individual will be provided access to such information 
except to the extent that disclosure would reveal the identity of a 
confidential source.
    (B) Portions of this system of records are exempt from the following 
subsections of the Privacy Act: (c)(3) and (d).
    (ii) Authority. 5 U.S.C. 552a(k)(2).
    (iii) Reasons. (A) Exemption is needed in order to encourage persons 
having knowledge of abusive or neglectful acts toward children to report 
such information, and to protect such sources from embarrassment or 
recrimination, as well as to protect their right to privacy. It is 
essential that the identities of all individuals who furnish information 
under an express promise of confidentiality be protected. Additionally, 
granting individuals access to information relating to criminal and 
civil law enforcement, as well as the release of certain disclosure 
accountings, could interfere with ongoing investigations and the orderly 
administration of justice, in that it could result in the concealment, 
alteration, destruction, or fabrication of information; could hamper the 
identification of offenders and the disposition of charges; and could 
jeopardize the safety and well being of parents and their children.
    (B) [Reserved]
    (6) System identifier and name. N03834-1, Special Intelligence 
Personnel Access File.
    (i) Exemption. (A) Information specifically authorized to be 
classified under E.O. 12958, as implemented by DOD 5200.1-R, may be 
exempt pursuant to 5 U.S.C. 552a(k)(1).
    (B) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for Federal 
civilian employment, military service, Federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (C) Portions of this system of records are exempt from the following 
subsections of the Privacy Act: (c)(3), (d), (e)(1), (e)(4) (G) through 
(I), and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(1) and (k)(5).
    (iii) Reasons. (A) Exempted portions of this system contain 
information that has been properly classified under E.O. 12356, and that 
is required to be kept secret in the interest of national defense or 
foreign policy.
    (B) Exempted portions of this system also contain information 
considered relevant and necessary to make a determination as to 
qualifications, eligibility, or suitability for access to classified 
information and was obtained by providing an express or implied 
assurance to the source that his or her identity would not be revealed 
to the subject of the record.
    (7) System identifier and name. N04060-1, Navy and Marine Corps 
Exchange Sales and Security Files.
    (i) Exemption. (A) Investigatory material compiled for law 
enforcement purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2). 
However, if an individual is denied any right, privilege, or benefit for 
which he would otherwise be entitled by Federal law or for which he 
would otherwise be eligible, as a result of the maintenance of such 
information, the individual will be provided access to such information 
except to the extent that disclosure would reveal the identity of a 
confidential source.
    (B) Portions of this system of records are exempt from the following 
subsections of the Privacy Act: (c)(3), (d), (e)(4)(G) through (I), and 
(f).
    (ii) Authority. 5 U.S.C. 552a(k)(2).
    (iii) Reasons. Granting individuals access to information collected 
and maintained by these activities relating to the enforcement of 
criminal laws could interfere with orderly investigations, with orderly 
administration of justice, and possibly enable suspects to avoid 
detection or apprehension. Disclosure of this information could result 
in the concealment, destruction, or fabrication of evidence, and could 
also

[[Page 933]]

reveal and render ineffectual investigative techniques, sources, and 
methods used by these activities.
    (8) [Reserved]
    (9) System identifier and name. N05041-1, Inspector General (IG) 
Records.
    (i) Exemption. (A) Information specifically authorized to be 
classified under E.O. 12958, as implemented by DOD 5200.1-R, may be 
exempt pursuant to 5 U.S.C. 552a(k)(1).
    (B) Investigatory material compiled for law enforcement purposes may 
be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an individual is 
denied any right, privilege, or benefit for which he would otherwise be 
entitled by Federal law or for which he would otherwise be eligible, as 
a result of the maintenance of such information, the individual will be 
provided access to such information except to the extent that disclosure 
would reveal the identity of a confidential source.
    (C) Portions of this system of records may be exempt from the 
provisions of 5 U.S.C. 552a(c)(3); (d); (e)(1); (e)(4)(G), (H), and (I); 
and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(1) and (k)(2).
    (iii) Reasons. (A) From subsection (c)(3) because the release of the 
disclosure accounting would permit individuals to obtain valuable 
information concerning the nature of the investigation and would present 
a serious impediment to the orderly conduct of any investigative 
activities. Such accounting could result in the release of properly 
classified information which would compromise the national defense or 
disrupt foreign policy.
    (B) From subsections (d) and (f) because access to the records would 
inform individuals of the existence and nature of the investigation; 
provide information that might result in the concealment, destruction, 
or fabrication of evidence; possibly jeopardize the safety and well-
being of informants, witnesses and their families; likely reveal and 
render ineffectual investigatory techniques and methods and sources of 
information; and possibly result in the invasion of the personal privacy 
of third parties. Access could result in the release of properly 
classified information which could compromise the national defense or 
disrupt foreign policy. Amendment of the records would interfere with 
the ongoing investigation and impose an impossible administrative burden 
by requiring investigations to be continually reinvestigated.
    (C) From subsection (e)(1) because in the course of the 
investigation it is not always possible, at least in the early stages of 
the inquiry, to determine relevance and or necessity as such 
determinations may only occur after the information has been evaluated. 
Information may be obtained concerning the actual or potential violation 
of laws or regulations other than those relating to the ongoing 
investigation. Such information should be retained as it can aid in 
establishing patterns of improper activity and can provide valuable 
leads in the conduct of other investigations.
    (D) From subsection (e)(4)(G) and (H) because this system of records 
is exempt from individual access pursuant to subsections (k)(1) and 
(k)(2) of the Privacy Act of 1974.
    (E) From subsection (e)(4)(I) because it is necessary to protect the 
confidentiality of sources and to protect the privacy and physical 
safety of witnesses. Although the system is exempt from this 
requirement, the DON has published a notice in broad, generic terms in 
the belief that this is all that subsection (e)(4)(I) of the Act 
requires.
    (10) System identifier and name. N05300-3, Faculty Professional 
Files.
    (i) Exemptions. (A) Investigatory material compiled solely for the 
purpose of determining suitability, eligibility, or qualifications for 
Federal civilian employment, military service, Federal contracts, or 
access to classified information may be exempt pursuant to 5 U.S.C. 
552a(k)(5), but only to the extent that such material would reveal the 
identity of a confidential source.
    (B) Portions of this system of records are exempt from the following 
subsections of the Privacy Act: (c)(3), (d), (e)(4)(G) and (H), and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(5).
    (iii) Reasons. Exempted portions of this system contain information 
considered relevant and necessary to make a release determination as to 
qualifications, eligibility, or suitability for Federal employment, and 
was obtained by

[[Page 934]]

providing an express or implied promise to the source that his or her 
identity would not be revealed to the subject of the record.
    (11) System identifier and name. N05354-1, Equal Opportunity 
Information Management System.
    (i) Exemptions. (A) Information specifically authorized to be 
classified under E.O. 12958, as implemented by DOD 5200.1-R, may be 
exempt pursuant to 5 U.S.C. 552a(k)(1).
    (B) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for Federal 
civilian employment, military service, Federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (C) Portions of this system of records are exempt from the following 
subsections of the Privacy Act: (c)(3), (d), (e)(4)(G) through (I), and 
(f).
    (ii) Authority. 5 U.S.C. 552a(k)(1) and (k)(5).
    (iii) Reasons. Granting access to information in this system of 
records could result in the disclosure of classified material, or reveal 
the identity of a source who furnished information to the Government 
under an express or implied promise of confidentiality. Material will be 
screened to permit access to unclassified material and to information 
that will not disclose the identity of a confidential source.
    (12) [Reserved]
    (13) System identifier and name. N05520-4, NCIS Investigative Files 
System.
    (i) Exemptions. (A) Parts of this system may be exempt pursuant to 5 
U.S.C. 552a(j)(2) if the information is compiled and maintained by a 
component of the agency which performs as its principal function any 
activity pertaining to the enforcement of criminal laws.
    (B) Portions of this system of records are exempt from the following 
subsections of the Privacy Act: (c)(3), (c)(4), (d), (e)(2), (e)(3), 
(e)(4)(G) through (I), (e)(5), (e)(8), (f), and (g).
    (ii) Authority. 5 U.S.C. 552a(j)(2).
    (iii) Reasons. (A) Granting individuals access to information 
collected and maintained by this activity relating to the enforcement of 
criminal laws could interfere with the orderly investigations, with the 
orderly administration of justice, and possibly enable suspects to avoid 
detection or apprehension. Disclosure of this information could result 
in the concealment, destruction, or fabrication of evidence, and 
jeopardize the safety and well-being of informants, witnesses and their 
families, and law enforcement personnel and their families. Disclosure 
of this information could also reveal and render ineffectual 
investigative techniques, sources, and methods used by these components 
and could result in the invasion of the privacy of individuals only 
incidentally related to an investigation. The exemption of the 
individual's right of access to portions of these records, and the 
reasons therefore, necessitate the exemption of this system of records 
from the requirement of the other cited provisions.
    (B) [Reserved]
    (iv) Exemptions. (A) Information specifically authorized to be 
classified under E.O. 12958, as implemented by DOD 5200.1-R, may be 
exempt pursuant to 5 U.S.C. 552a(k)(1).
    (B) Records maintained in connection with providing protective 
services to the President and other individuals under 18 U.S.C. 3506, 
may be exempt pursuant to 5 U.S.C. 552a(k)(3).
    (C) Records maintained solely for statistical research or program 
evaluation purposes and which are not used to make decisions on the 
rights, benefits, or entitlement of an individual except for census 
records which may be disclosed under 13 U.S.C. 8, may be exempt pursuant 
to 5 U.S.C. 552a(k)(4).
    (D) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for Federal 
civilian employment, military service, Federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (E) Testing or examination material used solely to determine 
individual qualifications for appointment or promotion in the Federal 
service may be exempt pursuant to 5 U.S.C. 552a(k)(6),

[[Page 935]]

if the disclosure would compromise the objectivity or fairness of the 
test or examination process.
    (F) Portions of this system of records are exempt from the following 
subsections of the Privacy Act: (c)(3), (d), (e)(1), (e)(4)(G) through 
(I), and (f).
    (v) Authority. 5 U.S.C. 552a(k)(1), (k)(3), (k)(4), (k)(5) and 
(k)(6).
    (vi) Reasons. (A) The release of disclosure accountings would permit 
the subject of an investigation to obtain valuable information 
concerning the nature of that investigation, and the information 
contained, or the identity of witnesses or informants, would therefore 
present a serious impediment to law enforcement. In addition, disclosure 
of the accounting would amount to notice to the individual of the 
existence of a record.
    (B) Access to the records contained in this system would inform the 
subject of the existence of material compiled for law enforcement 
purposes, the premature release of which could prevent the successful 
completion of investigation, and lead to the improper influencing of 
witnesses, the destruction of records, or the fabrication of testimony. 
Exempt portions of this system also contain information that has been 
properly classified under E.O. 12958, and that is required to be kept 
secret in the interest of national defense or foreign policy.
    (C) Exempt portions of this system also contain information 
considered relevant and necessary to make a determination as to 
qualifications, eligibility, or suitability for Federal civilian 
employment, military service, Federal contracts, or access to classified 
information, and was obtained by providing an express or implied 
assurance to the source that his or her identity would not be revealed 
to the subject of the record.
    (D) The notice of this system of records published in the Federal 
Register sets forth the basic statutory or related authority for 
maintenance of the system.
    (E) The categories of sources of records in this system have been 
published in the Federal Register in broad generic terms. The identity 
of specific sources, however, must be withheld in order to protect the 
confidentiality of the source, of criminal and other law enforcement 
information. This exemption is further necessary to protect the privacy 
and physical safety of witnesses and informants.
    (F) This system of records is exempted from procedures for notice to 
an individual as to the existence of records pertaining to him/her 
dealing with an actual or potential civil or regulatory investigation, 
because such notice to an individual would be detrimental to the 
successful conduct and/or completion of an investigation, pending or 
future. Mere notice of the fact of an investigation could inform the 
subject or others that their activities are under, or may become the 
subject of, an investigation. This could enable the subjects to avoid 
detection, to influence witnesses improperly, to destroy records, or to 
fabricate testimony.
    (G) Exempt portions of this system containing screening board 
reports.
    (H) Screening board reports set forth the results of oral 
examination of applicants for a position as a special agent with the 
Naval Investigation Service Command. Disclosure of these records would 
reveal the areas pursued in the course of the examination and thus 
adversely affect the result of the selection process. Equally important, 
the records contain the candid views of the members composing the board. 
Release of the records could affect the willingness of the members to 
provide candid opinions and thus diminish the effectiveness of a program 
which is essential to maintaining the high standards of the Special 
Agent Corps., i.e., those records constituting examination material used 
solely to determine individual qualifications for appointment in the 
Federal Service.
    (14) System identifier and name. N05520-5, Personnel Security 
Program Management Records System.
    (i) Exemptions. (A) Information specifically authorized to be 
classified under E.O. 12958, as implemented by DOD 5200.1-R, may be 
exempt pursuant to 5 U.S.C. 552a(k)(1).
    (B) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for Federal 
civilian employment, military service, Federal contracts, or access to 
classified information may be

[[Page 936]]

exempt pursuant to 5 U.S.C. 552a(k)(5), but only to the extent that such 
material would reveal the identity of a confidential source.
    (C) Portions of this system of records are exempt from the following 
subsections of 5 U.S.C. 552a: (d)(1-5).
    (ii) Authority. 5 U.S.C. 552a(k)(1) and (k)(5).
    (iii) Reasons. (A) Granting individuals access to information 
collected and maintained in this system of records could result in the 
disclosure of classified material; and jeopardize the safety of 
informants, and their families. Further, the integrity of the system 
must be ensured so that complete and accurate records of all 
adjudications are maintained. Amendment could cause alteration of the 
record of adjudication.
    (B) [Reserved]
    (15) System identifier and name. N05580-1, Security Incident System.
    (i) Exemption. (A) Parts of this system may be exempt pursuant to 5 
U.S.C. 552a(j)(2) if the information is compiled and maintained by a 
component of the agency which performs as its principal function any 
activity pertaining to the enforcement of criminal laws.
    (B) Portions of this system of records are exempt from the following 
subsections of the Privacy Act: (c)(3), (c)(4), (d), (e)(2), and 
(e)(4)(G) through (I), (e)(5), (e)(8), (f) and (g).
    (ii) Authority. 5 U.S.C. 552a(j)(2).
    (iii) Reasons. (A) Granting individuals access to information 
collected and maintained by this component relating to the enforcement 
of criminal laws could interfere with orderly administration of justice, 
and possibly enable suspects to avoid detection or apprehension. 
Disclosure of this information could result in concealment, destruction, 
or fabrication of evidence, and jeopardize the safety and well being of 
informants, witnesses and their families, and of law enforcement 
personnel and their families. Disclosure of this information could also 
reveal and render ineffectual investigative techniques, sources, and 
methods used by this component, and could result in the invasion of 
privacy of individuals only incidentally related to an investigation. 
The exemption of the individual's right of access to his or her records, 
and the reason therefore, necessitate the exemption of this system of 
records from the requirements of other cited provisions.
    (B) [Reserved]
    (16) [Reserved]
    (17) System identifier and name. N05800-1, Legal Office Litigation/
Correspondence Files.
    (i) Exemptions. (A) Information specifically authorized to be 
classified under E.O. 12958, as implemented by DOD 5200.1-R, may be 
exempt pursuant to 5 U.S.C. 552a(k)(1).
    (B) Investigatory material compiled for law enforcement purposes may 
be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an individual is 
denied any right, privilege, or benefit for which he would otherwise be 
entitled by Federal law or for which he would otherwise be eligible, as 
a result of the maintenance of such information, the individual will be 
provided access to such information except to the extent that disclosure 
would reveal the identity of a confidential source.
    (C) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for Federal 
civilian employment, military service, Federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (D) Testing or examination material used solely to determine 
individual qualifications for appointment or promotion in the Federal 
service may be exempt pursuant to 5 U.S.C. 552a(k)(6), if the disclosure 
would compromise the objectivity or fairness of the test or examination 
process.
    (E) Evaluation material used to determine potential for promotion in 
the Military Services may be exempt pursuant to 5 U.S.C. 552a(k)(7), but 
only to the extent that the disclosure of such material would reveal the 
identity of a confidential source.
    (F) Portions of this system of records are exempt from the following 
subsections of the Privacy Act: (d), (e)(1), and (f)(2), (3), and (4).
    (ii) Authority. 5 U.S.C. 552a(k)(1), (k)(2), (k)(5), (k)(6), and 
(k)(7).

[[Page 937]]

    (iii) Reasons. (A) Subsection (d) because granting individuals 
access to information relating to the preparation and conduct of 
litigation would impair the development and implementation of legal 
strategy. Accordingly, such records are exempt under the attorney-client 
privilege. Disclosure might also compromise on-going investigations and 
reveal confidential informants. Additionally, granting access to the 
record subject would seriously impair the Navy's ability to negotiate 
settlements or pursue other civil remedies. Amendment is inappropriate 
because the litigation files contain official records including 
transcripts, court orders, investigatory materials, evidentiary 
materials such as exhibits, decisional memorandum and other case-related 
papers. Administrative due process could not be achieved by the ``ex 
parte'' correction of such materials.
    (B) Subsection (e)(1) because it is not possible in all instances to 
determine relevancy or necessity of specific information in the early 
stages of case development. What appeared relevant and necessary when 
collected, ultimately may be deemed unnecessary upon assessment in the 
context of devising legal strategy. Information collected during civil 
litigation investigations which is not used during subject case is often 
retained to provide leads in other cases or to establish patterns of 
activity.
    (C) Subsections (f)(2), (3), and (4) because this record system is 
exempt from the individual access provisions of subsection (d).
    (18) System identifier and name. N01000-5, Naval Clemency and Parole 
Board Files.
    (i) Exemption. (A) Parts of this system may be exempt pursuant to 5 
U.S.C. 552a(j)(2) if the information is compiled and maintained by a 
component of the agency which performs as its principal function any 
activity pertaining to the enforcement of criminal laws.
    (B) Portions of this system of records are exempt from the following 
subsections of the Privacy Act: (c)(4), (d), (e)(4)(G), and (f).
    (ii) Authority. 5 U.S.C. 552a(j)(2).
    (iii) Reasons. (A) Granting individuals access to records maintained 
by this Board could interfere with internal processes by which Board 
personnel are able to formulate decisions and policies with regard to 
clemency and parole in cases involving naval prisoners and other persons 
under the jurisdiction of the Board. Material will be screened to permit 
access to all material except such records or documents as reflecting 
items of opinion, conclusion, or recommendation expressed by individual 
board members or by the board as a whole.
    (B) The exemption of the individual's right to access to portions of 
these records, and the reasons therefore, necessitate the partial 
exemption of this system of records from the requirements of the other 
cited provisions.
    (19) System identifier and name. N01752-1, Family Advocacy Program 
System.
    (i) Exemptions. (A) Investigatory material compiled for law 
enforcement purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2). 
However, if an individual is denied any right, privilege, or benefit for 
which he would otherwise be entitled by Federal law or for which he 
would otherwise be eligible, as a result of the maintenance of such 
information, the individual will be provided access to such information 
except to the extent that disclosure would reveal the identity of a 
confidential source.
    (B) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for Federal 
civilian employment, military service, Federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (C) Portions of this system of records are exempt from the following 
subsections of the Privacy Act: (c)(3) and (d).
    (ii) Authority. 5 U.S.C. 552a(k)(2) and (k)(5).
    (iii) Reasons. (A) Exemption is needed in order to encourage persons 
having knowledge of abusive or neglectful acts toward children to report 
such information, and to protect such sources

[[Page 938]]

from embarrassment or recriminations, as well as to protect their right 
to privacy. It is essential that the identities of all individuals who 
furnish information under an express promise of confidentiality be 
protected. Additionally, granting individuals access to information 
relating to criminal and civil law enforcement, as well as the release 
of certain disclosure accounting, could interfere with ongoing 
investigations and the orderly administration of justice, in that it 
could result in the concealment, alteration, destruction, or fabrication 
of information; could hamper the identification of offenders or alleged 
offenders and the disposition of charges; and could jeopardize the 
safety and well-being of parents and their children.
    (B) Exempted portions of this system also contain information 
considered relevant and necessary to make a determination as to 
qualifications, eligibility, or suitability for Federal employment and 
Federal contracts, and that was obtained by providing an express or 
implied promise to the source that his or her identity would not be 
revealed to the subject of the record.
    (20) System identifier and name. N12930-1, Human Resources Group 
Personnel Records.
    (i) Exemptions. (A) Investigatory material compiled solely for the 
purpose of determining suitability, eligibility, or qualifications for 
Federal civilian employment, military service, Federal contracts, or 
access to classified information may be exempt pursuant to 5 U.S.C. 
552a(k)(5), but only to the extent that such material would reveal the 
identity of a confidential source.
    (B) Testing or examination material used solely to determine 
individual qualifications for appointment or promotion in the Federal 
service may be exempt pursuant to 5 U.S.C. 552a(k)(6), if the disclosure 
would compromise the objectivity or fairness of the test or examination 
process.
    (C) Portions of this system of records are exempt from the following 
subsections of the Privacy Act: (d), (e)(4)(G) and (H), and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(5) and (k)(6).
    (iii) Reasons. (A) Exempted portions of this system contain 
information considered relevant and necessary to make a determination as 
to qualifications, eligibility, or suitability for Federal employment, 
and was obtained by providing express or implied promise to the source 
that his or her identity would not be revealed to the subject of the 
record.
    (B) Exempted portions of this system also contain test or 
examination material used solely to determine individual qualifications 
for appointment or promotion in the Federal Service, the disclosure of 
which would comprise the objectivity or fairness of the testing or 
examination process.
    (21) System identifier and name. N05813-4, Trial/Government Counsel 
Files.
    (i) Exemption. Parts of this system may be exempt pursuant to 5 
U.S.C. 552a(j)(2) if the information is compiled and maintained by a 
component of the agency which performs as its principle function any 
activity pertaining to the enforcement of criminal laws. Portions of 
this system of records that may be exempt pursuant to subsection 5 
U.S.C. 552a(j)(2) are (c)(3), (c)(4), (d), (e)(1), (e)(2), (e)(3), 
(e)(5), (e)(4)(G), (H), and (I), (e)(8), (f), and (g).
    (ii) Exemption. Information specifically authorized to be classified 
under E.O. 12958, as implemented by DOD 5200.1-R, may be exempt pursuant 
to 5 U.S.C. 552a(k)(1).
    (iii) Exemption. Investigatory material compiled for law enforcement 
purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an 
individual is denied any right, privilege, or benefit for which he would 
otherwise be entitled by Federal law or for which he would otherwise be 
eligible, as a result of the maintenance of such information, the 
individual will be provided access to such information except to the 
extent that disclosure would reveal the identity of a confidential 
source. Portions of this system of records that may be exempt pursuant 
to subsections 5 U.S.C. 552a(k)(1) and (k)(2) are (c)(3), (d), (e)(1), 
(e)(4)(G), (H), and (I), and (f).
    (iv) Authority. 5 U.S.C. 552a(j)(2), (k)(1), and (k)(2).
    (v) Reasons. (A) From subsection (c)(3) because release of 
accounting of disclosure could place the subject of an investigation on 
notice that he/she is

[[Page 939]]

under investigation and provide him/her with significant information 
concerning the nature of the investigation, resulting in a serious 
impediment to law enforcement investigations.
    (B) From subsections (c)(4), (d), (e)(4)(G), and (e)(4)(H) because 
granting individuals access to information collected and maintained for 
purposes relating to the enforcement of laws could interfere with proper 
investigations and orderly administration of justice. Granting 
individuals access to information relating to the preparation and 
conduct of criminal prosecution would impair the development and 
implementation of legal strategy. Amendment is inappropriate because the 
trial/Government counsel files contain official records including 
transcripts, court orders, and investigatory materials such as exhibits, 
decisional memorandum and other case-related papers. Disclosure of this 
information could result in the concealment, alteration or destruction 
of evidence, the identification of offenders or alleged offenders, 
nature and disposition of charges; and jeopardize the safety and well-
being of informants, witnesses and their families, and law enforcement 
personnel and their families. Disclosure of this information could also 
reveal and render in effective investigation techniques, sources, and 
methods used by law enforcement personnel, and could result in the 
invasion of privacy of individuals only incidentally related to an 
investigation.
    (C) From subsection (e)(1) because it is not always possible in all 
instances to determine relevancy or necessity of specific information in 
the early stages of case development. Information collected during 
criminal investigations and prosecutions and not used during the subject 
case is often retained to provide leads in other cases.
    (D) From subsection (e)(2) because in criminal or other law 
enforcement investigations, the requirement that information be 
collected to the greatest extent practicable from the subject individual 
would alert the subject as to the nature or existence of an 
investigation, presenting a serious impediment to law enforcement 
investigations.
    (E) From subsection (e)(3) because compliance would constitute a 
serious impediment to law enforcement in that it could compromise the 
existence of a confidential investigation or reveal the identity of 
witnesses or confidential informants.
    (F) From subsection (e)(4)(I) because the identity of specific 
sources must be withheld in order to protect the confidentiality of the 
sources of criminal and other law enforcement information. This 
exemption is further necessary to protect the privacy and physical 
safety of witnesses and informants.
    (G) From subsection (e)(5) because in the collection of information 
for law enforcement purposes it is impossible to determine in advance 
what information is accurate, relevant, timely, and complete. With the 
passage of time, seemingly irrelevant or untimely information may 
acquire new significance as further investigation brings new details to 
light and the accuracy of such information can only be determined in a 
court of law. The restrictions of subsection (e)(5) would restrict the 
ability of trained investigators and intelligence analysts to exercise 
their judgment in reporting on investigations and impede the development 
of intelligence necessary for effective law enforcement.
    (H) From subsection (e)(8) because compliance would provide an 
impediment to law enforcement by interfering with the ability to issue 
warrants or subpoenas and by revealing investigative techniques, 
procedures, or evidence.
    (I) From subsection (f) and (g) because this record system is exempt 
from the individual access provisions of subsection (d).
    (J) Consistent with the legislative purpose of the Privacy Act of 
1974, the DON will grant access to nonexempt material in the records 
being maintained. Disclosure will be governed by the DON's Privacy 
Regulation, but will be limited to the extent that the identity of 
confidential sources will not be compromised; subjects of an 
investigation of an actual or potential criminal violation will not be 
alerted to the investigation; the physical safety of witnesses, 
informants and law enforcement personnel will not be endangered, the 
privacy of third parties will not be violated; and that the disclosure 
would

[[Page 940]]

not otherwise impede effective law enforcement. Whenever possible, 
information of the above nature will be deleted from the requested 
documents and the balance made available. The controlling principle 
behind this limited access is to allow disclosures except those 
indicated above. The decisions to release information from these systems 
will be made on a case-by-case basis.
    (22) System identifier and name. NM05211-1, Privacy Act Request 
Files and Tracking System.
    (i) Exemption. During the processing of a Privacy Act request (which 
may include access requests, amendment requests, and requests for review 
for initial denials of such requests), exempt materials from other 
systems of records may in turn become part of the case record in this 
system. To the extent that copies of exempt records from those ``other'' 
systems of records are entered into this system, the DON hereby claims 
the same exemptions for the records from those ``other'' systems that 
are entered into this system, as claimed for the original primary system 
of which they are a part.
    (ii) Authority. 5 U.S.C. 552a(j)(2), (k)(1), (k)(2), (k)(3), (k)(4), 
(k)(5), (k)(6), and (k)(7).
    (iii) Reason. Records are only exempt from pertinent provisions of 5 
U.S.C. 552a to the extent such provisions have been identified and an 
exemption claimed for the original record and the purposes underlying 
the exemption for the original record still pertain to the record which 
is now contained in this system of records. In general, the exemptions 
were claimed in order to protect properly classified information 
relating to national defense and foreign policy, to avoid interference 
during the conduct of criminal, civil, or administrative actions or 
investigations, to ensure protective services provided the President and 
others are not compromised, to protect the identity of confidential 
sources incident to Federal employment, military service, contract, and 
security clearance determinations, and to preserve the confidentiality 
and integrity of Federal evaluation materials. The exemption rule for 
the original records will identify the specific reasons why the records 
are exempt from specific provisions of 5 U.S.C. 552a.
    (23) System identifier and name. NM05720-1, FOIA Request/Appeal 
Files and Tracking System.
    (i) Exemption. During the processing of a Freedom of Information Act 
request, exempt materials from other systems of records may in turn 
become part of the case record in this system. To the extent that copies 
of exempt records from those `other' systems of records are entered into 
this system, the DON hereby claims the same exemptions for the records 
from those `other' systems that are entered into this system, as claimed 
for the original primary system of which they are a part.
    (ii) Authority. 5 U.S.C. 552a(j)(2), (k)(1), (k)(2), (k)(3), (k)(4), 
(k)(5), (k)(6), and (k)(7).
    (iii) Reason. Records are only exempt from pertinent provisions of 5 
U.S.C. 552a to the extent such provisions have been identified and an 
exemption claimed for the original record and the purposes underlying 
the exemption for the original record still pertain to the record which 
is now contained in this system of records. In general, the exemptions 
were claimed in order to protect properly classified information 
relating to national defense and foreign policy, to avoid interference 
during the conduct of criminal, civil, or administrative actions or 
investigations, to ensure protective services provided the President and 
others are not compromised, to protect the identity of confidential 
sources incident to Federal employment, military service, contract, and 
security clearance determinations, and to preserve the confidentiality 
and integrity of Federal evaluation materials. The exemption rule for 
the original records will identify the specific reasons why the records 
are exempt from specific provisions of 5 U.S.C. 552a.
    (24) System identifier and name. N05800-2, Professional 
Responsibility Files.
    (i) Exemptions. Investigatory material compiled for law enforcement 
purposes, may be exempt pursuant to 5 U.S.C. 552(k)(2). However, if an 
individual is denied any right, privilege, or benefit

[[Page 941]]

for which he would otherwise be entitled by Federal law or which he 
would otherwise be eligible, as a result of maintenance of the 
information, the individual will be provided access to the information 
except to the extent that disclosure would reveal the identity of a 
confidential source. Any portion of this record system which falls 
within the provisions of 5 U.S.C. 552a(k)(2) may be exempt from the 
following subsections of 5 U.S.C 552a: (c)(3), (d)(1) through (5), 
(e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I).
    (ii) Authority. 5 U.S.C. 552a(k)(2)
    (ii) Reason. The reason for asserting this exemption (k)(2) is to 
ensure the integrity of the litigation process.
    (25) System identifier and name. NM03800-1, Naval Global Maritime, 
Foreign, Counterterrorism and Counter Intelligence Operation Records.
    (i) Exemptions. Investigatory material compiled solely for the 
purpose of determining suitability, eligibility, or qualifications for 
federal civilian employment, military service, federal contracts, or 
access to classified information may be exempt pursuant to 5 U.S.C. 
552a(k)(5) but only to the extent that such material would reveal the 
identity of a confidential source. An exemption rule for this system has 
been promulgated in accordance with the requirements of 5 U.S.C. 
553(b)(1), (2) and (3)(c) and (e) and is published as 32 CFR part 701.
    (ii) Authority. 5 U.S.C. 552a(k)(5).
    (iii) Reason. The reason for asserting this exemption is ensure the 
integrity of the security and investigative material compiled for law 
enforcement purposes by the Department of the Navy and the Department of 
Defense.

[84 FR 14730, Apr. 11, 2019, as amended at 86 FR 31431, June 14, 2021]

    Effective Date Note: At 88 FR 42236, June 30, 2023, Sec. 310.16 was 
amended by removing and reserving paragraphs (a)(22) and (23), effective 
Sept. 8, 2023.



Sec. 310.17  [Reserved]



Sec. 310.18  Defense Contract Audit Agency (DCAA) exemptions.

    (a) General information. There are two types of exemptions, general 
and specific. The general exemption authorizes the exemption of a system 
of records from all but a few requirements of the Privacy Act. The 
specific exemption authorizes exemption of a system of records or 
portion thereof, from only a few specific requirements. If a new system 
of records originates for which an exemption is proposed, or an 
additional or new exemption for an existing system of records is 
proposed, the exemption shall be submitted with the system of records 
notice. No exemption of a system of records shall be considered 
automatic for all records in the system. The systems manager shall 
review each requested record and apply the exemptions only when this 
will serve significant and legitimate Government purposes.
    (b) Specific exemptions. (1) System identifier and name. RDCAA 
900.1, DCAA Internal Review Case Files.
    (i) Exemption. Any portions of this system of records which fall 
under the provisions of 5 U.S.C. 552a(k)(2) and (k)(5) may be exempt 
from the following subsections of 5 U.S.C. 552a: (c)(3), (d), (e)(1), 
(e)(4)(G), (H), and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(2) and (k)(5).
    (iii) Reasons. (A) From subsection (c)(3) because disclosures from 
this system could interfere with the just, thorough and timely 
resolution of the complaint or inquiry, and possibly enable individuals 
to conceal their wrongdoing or mislead the course of the investigation 
by concealing, destroying or fabricating evidence or documents.
    (B) From subsection (d) because disclosures from this system could 
interfere with the just, thorough and timely resolution of the complaint 
or inquiry, and possibly enable individuals to conceal their wrongdoing 
or mislead the course of the investigation by concealing, destroying or 
fabricating evidence or documents. Disclosures could also subject 
sources and witnesses to harassment or intimidation which jeopardize the 
safety and well-being of themselves and their families.
    (C) From subsection (e)(1) because the nature of the investigation 
functions creates unique problems in prescribing specific parameters in 
a particular case as to what information is relevant or necessary. Due 
to close liaison and working relationships with other Federal, state, 
local, foreign

[[Page 942]]

country law enforcement agencies, and other governmental agencies, 
information may be received which may relate to a case under the 
investigative jurisdiction of another government agency. It is necessary 
to maintain this information in order to provide leads for appropriate 
law enforcement purposes and to establish patterns of activity which may 
relate to the jurisdiction of other cooperating agencies.
    (D) From subsection (e)(4)(G) through (H) because this system of 
records is exempt from the access provisions of subsection (d).
    (E) From subsection (f) because the agency's rules are inapplicable 
to those portions of the system that are exempt and would place the 
burden on the agency of either confirming or denying the existence of a 
record pertaining to a requesting individual might in itself provide an 
answer to that individual relating to an on-going investigation. The 
conduct of a successful investigation leading to the indictment of a 
criminal offender precludes the applicability of established agency 
rules relating to verification of record, disclosure of the record to 
that individual, and record amendment procedures for this record system.
    (2) [Reserved]



Sec. 310.19  Defense Information Systems Agency (DISA) exemptions.

    (a) Section 5 U.S.C. 552a(3)(j) and (3)(k) authorize an agency head 
to exempt certain systems of records or parts of certain systems of 
records from some of the requirements of the act. This part reserves to 
the Director, DISA, as head of an agency, the right to create exemptions 
pursuant to the exemption provisions of the act. All systems of records 
maintained by DISA shall be exempt from the requirements of 5 U.S.C. 
552a(d) pursuant to 5 U.S.C. 552a(k)(1) to the extent that the system 
contains any information properly classified under Executive Order 
11652, ``Classification and Declassification of National Security 
Information and Material,'' dated March 8, 1972 (37 FR 10053, May 19, 
1972) and which is required by the executive order to be kept secret in 
the interest of national defense or foreign policy. This exemption, 
which may be applicable to parts of all systems of records, is necessary 
because certain record systems not otherwise specifically designated for 
exemptions may contain isolated information which has been properly 
classified.
    (1) System identifier and name. K890.23, DISA Inspector General 
Investigative Tracker (DIGit).
    (i) Exemption. Any portion of this record system which falls within 
the provisions of 5 U.S.C. 552a(j)(2), (k)(2)and (k)(5) may be exempt 
from the following subsections of 5 U.S.C. 552a: (c)(3), (d), (e)(1), 
(e)(4)(G), (e)(4)(H), (e)(4)(I).
    (ii) Authority. 5 U.S.C. 552a(j)(2), (k)(2), and (k)(5).
    (iii) Reasons. To ensure the integrity of the privacy and civil 
liberties process. The execution requires that information be provided 
in a free and open manner without fear of retribution or harassment in 
order to facilitate a just, thorough, and timely resolution of the 
complaint or inquiry. Disclosures from this system can enable 
individuals to conceal their wrongdoing or mislead the course of the 
investigation by concealing, destroying, or fabricating evidence or 
documents. In addition, disclosures can subject sources and witnesses to 
harassment or intimidation which may cause individuals not to seek 
redress for wrongs through privacy and civil liberties channels for fear 
of retribution or harassment.
    (2) [Reserved]



Sec. 310.20  Defense Intelligence Agency (DIA) exemptions.

    (a) All systems of records maintained by the Director Intelligence 
Agency shall be exempt from the requirements of 5 U.S.C. 552a(d) 
pursuant to 5 U.S.C. 552a(k)(1) to the extent that the system contains 
any information properly classified under Executive order to be kept 
secret in the interest of national defense or foreign policy. This 
exemption, which may be applicable to parts of all systems of records, 
is necessary because certain record systems not specifically designated 
for exemption may contain isolated information which has been properly 
classified.
    (b) The Director, Defense Intelligence Agency, designated the 
systems of records listed below for exemptions

[[Page 943]]

under the specified provisions of the Privacy Act of 1974, as amended 
(Pub. L. 93-579).
    (1) System identification and name: LDIA 0271, Investigations and 
Complaints.
    (i) Exemption. Any portion of this record system which falls within 
the provisions of 5 U.S.C. 552a(k)(2) and (5) may be exempt from the 
following subsections of 5 U.S.C. 552a: (c)(3), (d), (e)(1), (e)(4)(G), 
(e)(4)(H), and (e)(4)(I).
    (ii) Authority. 5 U.S.C. 552a(k) (2) and (5).
    (iii) Reasons. The reasons for asserting these exemptions are to 
ensure the integrity of the Inspector General process within the Agency. 
The execution requires that information be provided in a free and open 
manner without fear of retribution or harassment in order to facilitate 
a just, thorough and timely resolution of the complaint or inquiry. 
Disclosures from this system can enable individuals to conceal their 
wrongdoing or mislead the course of the investigation by concealing, 
destroying or fabricating evidence or documents. Also, disclosures can 
subject sources and witnesses to harassment or intimidation which may 
cause individuals not to seek redress for wrongs through Inspector 
General channels for fear of retribution or harassment.
    (2) System identifier and name. LDIA 13-0001, Conflict Management 
Programs.
    (i) Exemption. Any portion of this record system which falls within 
the provisions of 5 U.S.C. 552a(k)(2) and (k)(5) may be exempt from the 
following subsections of 5 U.S.C. 552a: (c)(3), (d), (e)(1), (e)(4)(G), 
(e)(4)(H), (e)(4)(I)
    (ii) Authority. 5 U.S.C. 552a (k)(2) and (k)(5)
    (iii) Reasons. Claiming these exemptions ensures the integrity of 
the conflict management process. The execution requires that information 
be provided in a free and open manner without fear of retribution or 
harassment in order to facilitate a just, thorough, and timely 
resolution of the complaint or inquiry. Disclosures from this system can 
enable individuals to conceal their wrongdoing or mislead the course of 
the investigation by concealing, destroying, or fabricating evidence or 
documents. In addition, disclosures can subject sources and witnesses to 
harassment or intimidation which may cause individuals to not seek 
redress for wrongs through available channels for fear of retribution or 
harassment.
    (3) System identifier and name. LDIA 0660, Security and 
Counterintelligence Files.
    (i) Exemption. Any portion of this record system which falls within 
the provisions of 5 U.S.C. 552a(k)(2), (k)(5) and (k)(6) may be exempt 
from the following subsections of 5 U.S.C. 552a: (c)(3), (d), (e)(1), 
(e)(4)(G), (e)(4)(H), and (e)(4)(I).
    (ii) Authority. 5 U.S.C. 552a(k)(2), (k)(5) and (k)(6).
    (iii) Reasons. The reasons for asserting these exemptions are to 
ensure the integrity of the adjudication process used by the Agency to 
determine the suitability, eligibility or qualification for Federal 
service with the Agency and to make determinations concerning the 
questions of access to classified materials and activities. The proper 
execution of this function requires that the Agency have the ability to 
obtain candid and necessary information in order to fully develop or 
resolve pertinent information developed in the process. Potential 
sources, out of fear or retaliation, exposure or other action, may be 
unwilling to provide needed information or may not be sufficiently frank 
to be a value in personnel screening, thereby seriously interfering with 
the proper conduct and adjudication of such matters; and protects 
information used for medical, psychological evaluations, security 
questionnaires and polygraph testing.
    (4) [Reserved]
    (5) [Reserved]
    (6) System identifier and name. LDIA 10-0002, Foreign Intelligence 
and Counterintelligence Operation Records.
    (i) Exemption. (A) Investigatory material compiled for law 
enforcement purposes, other than material within the scope of subsection 
5 U.S.C. 552a(j)(2), may be exempt pursuant to 5 U.S.C. 552a(k)(2). 
However, if an individual is denied any right, privilege, or benefit for 
which he would otherwise be entitled by Federal law or for which he 
would otherwise be eligible, as a result of the maintenance of the 
information,

[[Page 944]]

the individual will be provided access to the information exempt to the 
extent that disclosure would reveal the identity of a confidential 
source.

    Note 1 to paragraph (b)(6)(i)(A). When claimed, this exemption 
allows limited protection of investigative reports maintained in a 
system of records used in personnel or administrative actions.

    (B) The specific sections of 5 U.S.C. 552a from which the system is 
to be exempted are 5 U.S.C. 552a (c)(3) and (c)(4), (d), (e)(1), (e)(2), 
(e)(3), (e)(4)(G), (H), and (I), (e)(5), (f), and (g).
    (ii) Authority. 5 U.S.C. 552a(k)(2).
    (iii) Reasons. (A) From subsection (c)(3) because to grant access to 
an accounting of disclosures as required by the Privacy Act, including 
the date, nature, and purpose of each disclosure and the identity of the 
recipient, could alert the subject to the existence of the investigation 
or prospective interest by DIA or other agencies. This could seriously 
compromise case preparation by prematurely revealing its existence and 
nature; compromise or interfere with witnesses or make witnesses 
reluctant to cooperate; and lead to suppression, alteration, or 
destruction of evidence.
    (B) From subsections (c)(4), (d), and (f) because providing access 
to this information could result in the concealment, destruction or 
fabrication of evidence and jeopardize the safety and well being of 
informants, witnesses and their families, and law enforcement personnel 
and their families. Disclosure of this information could also reveal and 
render ineffectual investigative techniques, sources, and methods used 
by this component and could result in the invasion of privacy of 
individuals only incidentally related to an investigation. Investigatory 
material is exempt to the extent that the disclosure of such material 
would reveal the identity of a source who furnished the information to 
the Government under an express promise that the identity of the source 
would be held in confidence, or prior to September 27, 1975 under an 
implied promise that the identity of the source would be held in 
confidence. This exemption will protect the identities of certain 
sources that would be otherwise unwilling to provide information to the 
Government. The exemption of the individual's right of access to his/her 
records and the reasons therefore necessitate the exemptions of this 
system of records from the requirements of the other cited provisions.
    (C) From subsection (e)(1) because it is not always possible to 
detect the relevance or necessity of each piece of information in the 
early stages of an investigation. In some cases, it is only after the 
information is evaluated in light of other evidence that its relevance 
and necessity will be clear.
    (D) From subsection (e)(2) because collecting information to the 
fullest extent possible directly from the subject individual may or may 
not be practical in a criminal investigation.
    (E) From subsection (e)(3) because supplying an individual with a 
form containing a Privacy Act Statement would tend to inhibit 
cooperation by many individuals involved in a criminal investigation. 
The effect would be somewhat adverse to established investigative 
methods and techniques.
    (F) From subsections (e)(4)(G), (H), and (I) because it will provide 
protection against notification of investigatory material which might 
alert a subject to the fact that an investigation of that individual is 
taking place, and the disclosure of which would weaken the on-going 
investigation, reveal investigatory techniques, and place confidential 
informants in jeopardy who furnished information under an express 
promise that the sources' identity would be held in confidence (or prior 
to the effective date of the Act, under an implied promise). In 
addition, this system of records is exempt from the access provisions of 
subsection (d).
    (G) From subsection (e)(5) because the requirement that records be 
maintained with attention to accuracy, relevance, timeliness, and 
completeness would unfairly hamper the investigative process. It is the 
nature of law enforcement for investigations to uncover the commission 
of illegal acts at diverse stages. It is frequently impossible to 
determine initially what information is accurate, relevant, timely, and 
least of all complete. With the passage of time, seemingly irrelevant or 
untimely information may acquire new

[[Page 945]]

significance as further investigation brings new details to light.
    (H) From subsection (f) because the agency's rules are inapplicable 
to those portions of the system that are exempt and would place the 
burden on the agency of either confirming or denying the existence of a 
record pertaining to a requesting individual might in itself provide an 
answer to that individual relating to an on-going investigation. The 
conduct of a successful investigation leading to the indictment of a 
criminal offender precludes the applicability of established agency 
rules relating to verification of record, disclosure of the record to 
the individual and record amendment procedures for this record system.
    (I) From subsection (g) because this system of records should be 
exempt to the extent that the civil remedies relate to provisions of 5 
U.S.C. 552a from which this rule exempts the system.
    (7) System identifier and name. LDIA 0900, Accounts Receivable, 
Indebtedness and Claims.
    (i) Exemption. During the course of accounts receivable, 
indebtedness or claims actions, exempt materials from other systems of 
records may in turn become part of the case record in this system. To 
the extent that copies of exempt records from those ``other'' systems of 
records are entered into this system, the DIA hereby claims the same 
exemptions for the records from those ``other'' systems that are entered 
into this system, as claimed for the original primary system of which 
they are a part.
    (ii) Authority. 5 U.S.C. 552a(k)(2) through (k)(7).
    (iii) Reasons. Records are only exempt from pertinent provisions of 
5 U.S.C. 552a to the extent such provisions have been identified and an 
exemption claimed for the original record and the purposes underlying 
the exemption for the original record still pertain to the record which 
is now contained in this system of records. In general, the exemptions 
were claimed in order to protect properly classified information 
relating to national defense and foreign policy, to avoid interference 
during the conduct of criminal, civil, or administrative actions or 
investigations, to ensure protective services provided the President and 
others are not compromised, to protect the identity of confidential 
sources incident to Federal employment, military service, contract, and 
security clearance determinations, to preserve the confidentiality and 
integrity of Federal testing materials, and to safeguard evaluation 
materials used for military promotions when furnished by a confidential 
source. The exemption rule for the original records will identify the 
specific reasons why the records are exempt from specific provisions of 
5 U.S.C. 552a.
    (8) System identifier and name. LDIA 0010, Information Requests-
Freedom of Information Act (FOIA) and Privacy Act.
    (i) Exemption. During the course of information requests-FOIA and 
Privacy Act actions, exempt records/material from other systems of 
records may become part of this system of records. For such records/
material, DIA hereby claims the same exemptions as is claimed for the 
systems from which such records/material are derived.
    (ii) Authority. 5 U.S.C. 552a(k)(2) through (k)(7).
    (iii) Reasons. Records in a system of records are only exempted from 
pertinent provisions of 5 U.S.C. 552a to the extent such provisions are 
identified and an exemption claimed. In general, exemptions claimed 
protect properly classified information relating to national defense and 
foreign policy; avoid interference during the conduct of criminal, 
civil, or administrative actions or investigations; ensure protective 
services provided the President and others are not compromised; protect 
the identity of confidential sources incident to Federal employment, 
military service, contract, and security clearance determinations; 
preserve the confidentiality and integrity of Federal testing materials; 
and safeguard evaluation materials used for military promotions when 
furnished by a confidential source. The exemption rule(s) for the 
systems of records from which the records/materials was derived will 
identify the specific reasons why the records/materials are exempt from 
provisions of 5 U.S.C. 552a.

[[Page 946]]

    (9) System identifier and name. LDIA 12-0002, Privacy and Civil 
Liberties Case Management System.
    (i) Exemption. Any portion of this record system which falls within 
the provisions of 5 U.S.C. 552a(k)(2) and (k)(5) may be exempt from the 
following subsections of 5 U.S.C. 552a: (c)(3), (d), (e)(1), (e)(4)(G), 
(e)(4)(H), (e)(4)(I).
    (ii) Authority. 5 U.S.C. 552a(k)(2)and (k)(5).
    (iii) Reasons. The reasons for asserting these exemptions is to 
ensure the integrity of the privacy and civil liberties process. The 
execution requires that information be provided in a free and open 
manner without fear of retribution or harassment in order to facilitate 
a just, thorough, and timely resolution of the complaint or inquiry. 
Disclosures from this system can enable individuals to conceal their 
wrongdoing or mislead the course of the investigation by concealing, 
destroying, or fabricating evidence or documents. In addition, 
disclosures can subject sources and witnesses to harassment or 
intimidation which may cause individuals not to seek redress for wrongs 
through privacy and civil liberties channels for fear of retribution or 
harassment.
    (10) System identifier and name. LDIA 0209, Litigation Case Files.
    (i) Exemption. Investigatory material compiled for law enforcement 
purposes, other than material within the scope of subsection 5 U.S.C. 
552a(j)(2), may be exempt pursuant to 5 U.S.C. 552(k)(2). However, if an 
individual is denied any right, privilege, or benefit for which he would 
otherwise be entitled by Federal law or which he would otherwise be 
eligible, as a result of maintenance of the information, the individual 
will be provided access to the information except to the extent that 
disclosure would reveal the identity of a confidential source. This 
exemption provides limited protection of investigative reports 
maintained in a system of records used in personnel or administrative 
actions. Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source. Any portion of this record system which falls 
within the provisions of 5 U.S.C. 552a(k)(2) and (k)(5) may be exempt 
from the following subsections of 5 U.S.C. 552a: (c)(3), 
(d)(1)(2)(3)(4)(5), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I). Exempt 
materials from other systems of records may in turn become part of the 
case records in this system. To the extent that copies of exempt records 
from those `other' systems of records are entered into this case record, 
the Defense Intelligence Agency hereby claims the same exemptions for 
the records from those `other' systems that are entered into this 
system, as claimed for the original primary systems of records, which 
they are a part.
    (ii) Authority. 5 U.S.C. 552a(j)(2), (k)(2), (k)(3), (k)(4), (k)(5), 
(k)(6), and (k)(7).
    (iii) Reasons. The reason for asserting these exemptions (k)(2) and 
(k)(5) is to ensure the integrity of the litigation process.
    (11) System identifier and name. LDIA 10-0004 Occupational, Safety, 
Health, and Environmental Management Records.
    (i) Exemption. Any portion of this record system which falls within 
the provisions of 5 U.S.C. 552a(k)(2) (k)(4) and (k)(5) may be exempt 
from the following subsections of 5 U.S.C. 552a: (c)(3); (d)(1), (d)(2), 
(d)(3), (d)(4), (d)(5); (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); (f)(1), 
(f)(2), (f)(2), (f)(3), (f)(4), (f)(5).
    (ii) Authority. 5 U.S.C. 552a(k)(2) and (k)(5).
    (iii) Reasons. The reasons for asserting these exemptions are to 
ensure the integrity of an investigative or administrative process and 
to protect statistical records. The execution requires that information 
be provided in a free and open manner without fear of retribution or 
harassment in order to facilitate a just, thorough, and timely 
resolution during an investigation or administrative action. Disclosures 
from this system can enable individuals to conceal their wrongdoing or 
mislead the course of the investigation by concealing, destroying, or 
fabricating evidence or documents. In addition, disclosures can subject 
sources

[[Page 947]]

and witnesses to harassment or intimidation which may cause individuals 
to not to seek redress for concerns about occupational safety, health, 
environmental issues and accident reporting. Information is used to 
comply regulatory reporting requirements.

[84 FR 14730, Apr. 11, 2019, as amended at 86 FR 31431, June 14, 2021]

    Effective Date Note: At 88 FR 42236, June 30, 2023, Sec. 310.20 was 
amended by removing and reserving paragraph (b)(8), effective Sept. 8, 
2023.



Sec. 310.21  Defense Logistics Agency (DLA) exemptions.

    (a) The Director, DLA or designee may claim an exemption from any 
provision of the Privacy Act from which an exemption is allowed.
    (b) An individual is not entitled to access information that is 
compiled in reasonable anticipation of a civil action or proceeding. The 
term ``civil action or proceeding'' is intended to include court 
proceedings, preliminary judicial steps, and quasi-judicial 
administrative hearings or proceedings (i.e., adversarial proceedings 
that are subject to rules of evidence). Any information prepared in 
anticipation of such actions or proceedings, to include information 
prepared to advise DLA officials of the possible legal or other 
consequences of a given course of action, is protected. The exemption is 
similar to the attorney work-product privilege except that it applies 
even when the information is prepared by non-attorneys. The exemption 
does not apply to information compiled in anticipation of criminal 
actions or proceedings.
    (c) Exempt Records Systems. All systems of records maintained by the 
Defense Logistics Agency will be exempt from the access provisions of 5 
U.S.C. 552a(d) and the notification of access procedures of 5 U.S.C. 
522a(e)(4)(H) pursuant to 5 U.S.C. 552a(k)(1) to the extent that the 
system contains any information properly classified under Executive 
Order 13526 and which is required by the Executive Order to be kept 
secret in the interest of national defense or foreign policy. This 
exemption, which may be applicable to parts of all DLA systems of 
records, is necessary because certain record systems not otherwise 
specifically designated for exemptions herein may contain isolated items 
of information which have been properly classified.
    (1) System identifier and name. S170.04 (Specific exemption), 
Debarment and Suspension Files.
    (i) Exemption. (A) Investigatory material compiled for law 
enforcement purposes, other than material within the scope of subsection 
5 U.S.C. 552a(j)(2), may be exempt pursuant to 5 U.S.C. 552a(k)(2). If 
an individual, however, is denied any right, privilege, or benefit for 
which he would otherwise be entitled by Federal law or for which he 
would otherwise be eligible as a result of the maintenance of the 
information, the individual will be provided access to the information 
except to the extent that disclosure would reveal the identity of a 
confidential source.

    Note 1 to paragraph (c)(1)(i)(A). When claimed, this exemption 
allows limited protection of investigative reports maintained in a 
system of records used in personnel or administrative actions.

    (B) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (C) The specific sections of 5 U.S.C. 552a from which the system is 
exempt are 5 U.S.C. 552a(c)(3), (d)(1) through (d)(4), (e)(1), 
(e)(4)(G), (H), and (I), and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(2) and (k)(5).
    (iii) Reasons. (A) From 5 U.S.C. 552a(c)(3), as granting access to 
the accounting for each disclosure, as required by the Privacy Act, 
including the date, nature, and purpose of each disclosure and the 
identity of the recipient, could alert the subject to the existence of 
an investigation or prosecutive interest by DLA or other agencies. This 
seriously could compromise case preparation by prematurely revealing its 
existence and nature; compromise or interfere with witnesses or

[[Page 948]]

making witnesses reluctant to cooperate; and lead to suppression, 
alteration, or destruction of evidence.
    (B) From 5 U.S.C. 552a(d)(1) through (4) and (f), as providing 
access to records of a civil investigation, and the right to contest the 
contents of those records and force changes to be made to the 
information contained therein, would seriously interfere with and thwart 
the orderly and unbiased conduct of an investigation and impede case 
preparation. Providing access rights normally afforded under the Privacy 
Act would provide the subject with valuable information that would: 
Allow interference with or compromise of witnesses or render witnesses 
reluctant to cooperate; lead to suppression, alteration, or destruction 
of evidence; and result in the secreting of or other disposition of 
assets that would make them difficult or impossible to reach to satisfy 
any Government claim arising from the investigation or proceeding.
    (C) From 5 U.S.C. 552a(e)(1), as it is not always possible to detect 
the relevance or necessity of each piece of information in the early 
stages of an investigation. In some cases, it is only after the 
information is evaluated in light of other evidence that its relevance 
and necessity will be clear.
    (D) From 5 U.S.C. 552a(e)(4)(G) and (H), as there is no necessity 
for such publication since the system of records would be exempt from 
the underlying duties to provide notification about and access to 
information in the system and to make amendments and corrections to the 
information in the system.
    (E) From 5 U.S.C. 552a(e)(4)(I), as to the extent that this 
provision is construed to require more detailed disclosure than the 
broad, generic information currently published in the system notice, an 
exemption from this provision is necessary to protect the 
confidentiality of sources of information and to protect privacy and 
physical safety of witnesses and informants. DLA, nevertheless, will 
continue to publish such a notice in broad generic terms as is its 
current practice.
    (2) System identifier and name. S500.10 (Specific exemption), 
Personnel Security Files.
    (i) Exemption. (A) Investigatory material compiled solely for the 
purpose of determining suitability, eligibility, or qualifications for 
federal civilian employment, federal contracts, or access to classified 
information may be exempt pursuant to 5 U.S.C. 552a(k)(5), but only to 
the extent that such material would reveal the identity of a 
confidential source.
    (B) Therefore, portions of this system may be exempt pursuant to 5 
U.S.C. 552a(k)(5) from the following subsections of 5 U.S.C. 552a(c)(3), 
(d), and (e)(1).
    (ii) Authority. 5 U.S.C. 552a(k)(5).
    (iii) Reasons. (A) From 5 U.S.C. 552a(c)(3) and (d), when access to 
accounting disclosures and access to or amendment of records would cause 
the identity of a confidential source to be revealed. Disclosure of the 
source's identity not only will result in the Department breaching the 
promise of confidentiality made to the source but it would impair the 
Department's future ability to compile investigatory material for the 
purpose of determining suitability, eligibility, or qualifications for 
Federal civilian employment, Federal contracts, or access to classified 
information. Unless sources may be assured that a promise of 
confidentiality will be honored, they will be less likely to provide 
information considered essential to the Department in making the 
required determinations.
    (B) From 5 U.S.C. 552a(e)(1), as in the collection of information 
for investigatory purposes, it is not always possible to determine the 
relevance and necessity of particular information in the early stages of 
the investigation. In some cases, it is only after the information is 
evaluated in light of other information that its relevance and necessity 
becomes clear. Such information permits more informed decision making by 
the Department when making required suitability, eligibility, and 
qualification determinations.
    (3) System identifier and name. S500.20 (Specific exemption), 
Defense Logistics Agency (DLA) Criminal Incident Reporting System 
(DCIRS).
    (i) Exemption. (A) Investigatory material compiled for law 
enforcement purposes, other than material within the scope of subsection 
5 U.S.C. 552a(j)(2),

[[Page 949]]

may be exempt pursuant to 5 U.S.C. 552a(k)(2). If an individual, 
however, is denied any right, privilege, or benefit for which he would 
otherwise be entitled by Federal law or for which he would otherwise be 
eligible, as a result of the maintenance of the information, the 
individual will be provided access to the information except to the 
extent that disclosure would reveal the identity of a confidential 
source.

    Note 1 to paragraph (c)(3)(i)(A). When claimed, this exemption 
allows limited protection of investigative reports maintained in a 
system of records used in personnel or administrative actions.

    (B) The specific sections of 5 U.S.C. 552a from which the system is 
to be exempted are 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H), 
(I), and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(2).
    (iii) Reasons. (A) From subsection (c)(3), as to grant access to an 
accounting of disclosures as required by the Privacy Act, including the 
date, nature, and purpose of each disclosure and the identity of the 
recipient, could alert the subject to the existence of the investigation 
or prosecutive interest by DLA or other agencies. This could seriously 
compromise case preparation by: Prematurely revealing its existence and 
nature; compromising or interfering with witnesses or making witnesses 
reluctant to cooperate; and leading to suppression, alteration, or 
destruction of evidence.
    (B) From 5 U.S.C. 552a(d) and (f), as providing access to this 
information could result in the concealment, destruction or fabrication 
of evidence and jeopardize the safety and wellbeing of informants, 
witnesses and their families, and law enforcement personnel and their 
families. Disclosure of this information also could reveal and render 
ineffectual investigative techniques, sources, and methods used by this 
component and could result in the invasion of privacy of individuals 
only incidentally related to an investigation. Investigatory material is 
exempt to the extent that the disclosure of such material would reveal 
the identity of a source who furnished the information to the Government 
under an express promise that the identity of the source would be held 
in confidence, or prior to September 27, 1975, under an implied promise 
that the identity of the source would be held in confidence. This 
exemption will protect the identities of certain sources that would be 
otherwise unwilling to provide information to the Government. The 
exemption of the individual's right of access to his/her records and the 
reasons therefore necessitate the exemptions of this system of records 
from the requirements of the other cited provisions.
    (C) From 5 U.S.C. 552a(e)(1), as it is not always possible to detect 
the relevance or necessity of each piece of information in the early 
stages of an investigation. In some cases, it is only after the 
information is evaluated in light of other evidence that its relevance 
and necessity will be clear.
    (D) From 5 U.S.C. 552a(e)(4)(G), (H), and (I), as it will provide 
protection against notification of investigatory material which might 
alert a subject to the fact that an investigation of that individual is 
taking place, and the disclosure of which would weaken the ongoing 
investigation, reveal investigatory techniques, and place in jeopardy 
confidential informants who furnished information under an express 
promise that the sources' identity would be held in confidence (or prior 
to the effective date of the Act, under an implied promise).
    (4) System identifier and name. S500.30 (Specific exemption), 
Incident Investigation/Police Inquiry Files.
    (i) Exemption. (A) Investigatory material compiled for law 
enforcement purposes, other than material within the scope of subsection 
5 U.S.C. 552a(j)(2), may be exempt pursuant to 5 U.S.C. 552a(k)(2). If 
an individual, however, is denied any right, privilege, or benefit for 
which he would otherwise be entitled by Federal law or for which he 
would otherwise be eligible, as a result of the maintenance of the 
information, the individual will be provided access to the information, 
except to the extent that disclosure would reveal the identity of a 
confidential source.

    Note 1 to paragraph (c)(4)(i)(A). When claimed, this exemption 
allows limited protection of investigative reports maintained in a 
system of records used in personnel or administrative actions.


[[Page 950]]


    (B) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (C) The specific sections of 5 U.S.C. 552a from which the system is 
exempt are 5 U.S.C. 552a(c)(3), (d)(1) through (d)(4), (e)(1), 
(e)(4)(G), (H), and (I), and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(2) and (k)(5).
    (iii) Reasons. (A) From 5 U.S.C. 552a(c)(3), because to grant access 
to the accounting for each disclosure as required by the Privacy Act, 
including the date, nature, and purpose of each disclosure and the 
identity of the recipient, could alert the subject to the existence of 
the investigation or prosecutive interest by DLA or other agencies. This 
could seriously compromise case preparation by: Prematurely revealing 
its existence and nature; compromising or interfering with witnesses or 
making witnesses reluctant to cooperate; and leading to suppression, 
alteration, or destruction of evidence.
    (B) From 5 U.S.C. 552a(d)(1) through (d)(4), and (f), as providing 
access to records of a civil or administrative investigation, and the 
right to contest the contents of those records and force changes to be 
made to the information contained therein, would seriously interfere 
with and thwart the orderly and unbiased conduct of the investigation 
and impede case preparation. Providing access rights normally afforded 
under the Privacy Act would: Provide the subject with valuable 
information that would allow interference with or compromise of 
witnesses or render witnesses reluctant to cooperate; lead to 
suppression, alteration, or destruction of evidence; enable individuals 
to conceal wrongdoing or mislead the course of the investigation; and 
result in the secreting of or other disposition of assets that would 
make them difficult or impossible to reach to satisfy any Government 
claim arising from the investigation or proceeding.
    (C) From 5 U.S.C. 552a(e)(1), as it is not always possible to detect 
the relevance or necessity of each piece of information in the early 
stages of an investigation. In some cases, it is only after the 
information is evaluated in light of other evidence that its relevance 
and necessity will be clear.
    (D) From 5 U.S.C. 552a(e)(4)(G) and (H), as this system of records 
is compiled for law enforcement purposes and is exempt from the access 
provisions of 5 U.S.C. 552a(d) and (f).
    (E) From 5 U.S.C. 552a(e)(4)(I), because to the extent that this 
provision is construed to require more detailed disclosure than the 
broad, generic information currently published in the system notice, an 
exemption from this provision is necessary to protect the 
confidentiality of sources of information and to protect privacy and 
physical safety of witnesses and informants. DLA, nevertheless, will 
continue to publish such a notice in broad generic terms as is its 
current practice.
    (5) System identifier and name. S500.60 (Specific exemption), 
Defense Logistics Agency Enterprise Hotline Program Records.
    (i) Exemption. (A) Investigatory material compiled for law 
enforcement purposes, other than material within the scope of subsection 
5 U.S.C. 552a(j)(2), may be exempt pursuant to 5 U.S.C. 552a(k)(2). If 
an individual, however, is denied any right, privilege, or benefit for 
which he would otherwise be entitled by Federal law or for which he 
would otherwise be eligible, as a result of the maintenance of the 
information, the individual will be provided access to the information, 
except to the extent that disclosure would reveal the identity of a 
confidential source.

    Note 1 to paragraph (c)(5)(i)(A): When claimed, this exemption 
allows limited protection of investigative reports maintained in a 
system of records used in personnel or administrative actions.

    (B) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5),

[[Page 951]]

but only to the extent that such material would reveal the identity of a 
confidential source.
    (C) The specific sections of 5 U.S.C. 552a from which the system is 
exempt are 5 U.S.C. 552a(c)(3), (d)(1) through (4), (e)(1), (e)(4)(G), 
(H), (I), and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(2) and (k)(5).
    (iii) Reasons. (A) From subsection (c)(3), as to grant access to an 
accounting of disclosures as required by the Privacy Act, including the 
date, nature, and purpose of each disclosure and the identity of the 
recipient, could alert the subject to the existence of the investigation 
or prosecutive interest by DLA or other agencies. This could seriously 
compromise case preparation by prematurely revealing its existence and 
nature; compromise or interfere with witnesses or making witnesses 
reluctant to cooperate; and lead to suppression, alteration, or 
destruction of evidence.
    (B) From 5 U.S.C. 552a(d)(1) through (4) and (f), as providing 
access to records of a civil or administrative investigation, and the 
right to contest the contents of those records and force changes to be 
made to the information contained therein, would interfere seriously 
with and thwart the orderly and unbiased conduct of the investigation 
and impede case preparation. Providing access rights normally afforded 
under the Privacy Act would provide the subject with valuable 
information that would allow: Interference with or compromise of 
witnesses or render witnesses reluctant to cooperate; lead to 
suppression, alteration, or destruction of evidence; enable individuals 
to conceal wrongdoing or mislead the course of the investigation; and 
result in the secreting of or other disposition of assets that would 
make them difficult or impossible to reach to satisfy any Government 
claim arising from the investigation or proceeding.
    (C) From 5 U.S.C. 552a(e)(1), as it is not always possible to detect 
the relevance or necessity of each piece of information in the early 
stages of an investigation. In some cases, it is only after the 
information is evaluated in light of other evidence that its relevance 
and necessity will be clear.
    (D) From 5 U.S.C. 552a(e)(4)(G) and (H), as this system of records 
is compiled for law enforcement purposes and is exempt from the access 
provisions of 5 U.S.C. 552a(d) and (f).
    (E) From 5 U.S.C. 552a(e)(4)(I), as to the extent that this 
provision is construed to require more detailed disclosure than the 
broad, generic information currently published in the system notice, an 
exemption from this provision is necessary to protect the 
confidentiality of sources of information and to protect privacy and 
physical safety of witnesses and informants. DLA will, nevertheless, 
continue to publish such a notice in broad generic terms as is its 
current practice.
    (6) System identifier and name. S510.30 (Specific/General 
Exemption), Freedom of Information Act/Privacy Act Requests and 
Administrative Appeal Records.
    (i) Exemption. During the processing of a Freedom of Information 
Act/Privacy Act request (which may include access requests, amendment 
requests, and requests for review for initial denials of such requests), 
exempt materials from other systems of records may, in turn, become part 
of the case record in this system. To the extent that copies of exempt 
records from those ``other'' systems of records are entered into this 
system, the Defense Logistics Agency claims the same exemptions for the 
records from those ``other'' systems that are entered into this system, 
as claimed for the original primary system of which they are a part.
    (ii) Authority. 5 U.S.C. 552a(j)(2), (k)(1) through (7).
    (iii) Reasons. Records are only exempt from pertinent provisions of 
5 U.S.C. 552a to the extent such provisions have been identified and an 
exemption claimed for the original record and the purposes underlying 
the exemption for the original record still pertain to the record which 
is now contained in this system of records. In general, the exemptions 
were claimed in order to protect properly classified information 
relating to national defense and foreign policy; to avoid interference 
during the conduct of criminal, civil, or administrative actions or 
investigations; to ensure protective services provided the President and 
others

[[Page 952]]

are not compromised; to protect the identity of confidential sources 
incident to Federal employment, military service, contract, and security 
clearance determinations; to preserve the confidentiality and integrity 
of Federal testing materials; and to safeguard evaluation materials used 
for military promotions when furnished by a confidential source. The 
exemption rule for the original records will identify the specific 
reasons why the records are exempt from specific provisions of 5 U.S.C. 
552a.
    (7) System identifier and name. S240.28 DoD (Specific exemption), 
Case Adjudication Tracking System (CATS).
    (i) Exemption. (A) Investigatory material compiled solely for the 
purpose of determining suitability, eligibility, or qualifications for 
federal civilian employment, federal contracts, or access to classified 
information may be exempt pursuant to 5 U.S.C. 552a(k)(5), but only to 
the extent that such material would reveal the identity of a 
confidential source.
    (B) Therefore, portions of this system may be exempt pursuant to 5 
U.S.C. 552a(k)(5) from the following subsections of 5 U.S.C. 552a(c)(3), 
(d)(1)(2)(3)(4), and (e)(1).
    (ii) Authority. 5 U.S.C. 552a(k)(5).
    (iii) Reasons. (A) From 5 U.S.C. 552a(c)(3) and (d)(1)(2)(3)(4), 
when access to accounting disclosures and access to or amendment of 
records would cause the identity of a confidential source to be 
revealed. Disclosure of the confidential source's identity not only will 
result in the Department breaching the express promise of 
confidentiality made to the source but it would impair the Department's 
future ability to compile investigatory material for the purpose of 
determining suitability, eligibility, or qualifications for Federal 
civilian employment, Federal contracts, or access to classified 
information. Unless sources may be assured that a promise of 
confidentiality will be honored, they will be less likely to provide 
information considered essential to the Department in making the 
required determinations.
    (B) From 5 U.S.C. 552a(e)(1), as in the collection of information 
for investigatory purposes, it is not always possible to determine the 
relevance and necessity of particular information in the early stages of 
the investigation. In some cases, it is only after the information is 
evaluated in light of other information that its relevance and necessity 
becomes clear. Such information permits more informed decision making by 
the Department when making required suitability, eligibility, and 
qualification determinations.

[84 FR 14730, Apr. 11, 2019; 84 FR 16210, Apr. 18, 2019]

    Effective Date Note: At 88 FR 42236, June 30, 2023, Sec. 310.21 was 
amended by removing and reserving paragraph (c)(6), effective Sept. 8, 
2023.



Sec. 310.22  Defense Security Service (DSS) exemptions.

    (a) General. The Director of the Defense Security Service 
establishes the following exemptions of records systems (or portions 
thereof) from the provisions of these rules, and other indicated 
portions of Public Law 93-579, in this section. They may be exercised 
only by the Director, Defense Security Service and the Chief of the 
Office of FOI and Privacy. Exemptions will be exercised only when 
necessary for a specific, significant and legitimate reason connected 
with the purpose of a records system, and not simply because they are 
authorized by statute. Personal records releasable under the provisions 
of 5 U.S.C. 552 will not be withheld from subject individuals based on 
these exemptions.
    (b) All systems of records maintained by DSS shall be exempt from 
the requirements of 5 U.S.C. 552a(d) pursuant to 5 U.S.C. 552a(k)(1) to 
the extent that the system contains any information properly classified 
under Executive Order 12958 and which is required by the Executive Order 
to be withheld in the interest of national defense of foreign policy. 
This exemption, which may be applicable to parts of all systems of 
records, is necessary because certain record systems not otherwise 
specifically designated for exemptions herein may contain items of 
information that have been properly classified.
    (1) System identifier and name. V1-01, Privacy and Freedom of 
Information Request Records.

[[Page 953]]

    (i) Exemption. (A) Investigatory material compiled for law 
enforcement purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2). 
However, if an individual is denied any right, privilege, or benefit for 
which he would otherwise be entitled by Federal law or for which he 
would otherwise be eligible, as a result of the maintenance of such 
information, the individual will be provided access to such information 
except to the extent that disclosure would reveal the identity of a 
confidential source.
    (B) Records maintained in connection with providing protective 
services to the President and other individuals under 18 U.S.C. 3506, 
may be exempt pursuant to 5 U.S.C. 552a(k)(3).
    (C) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be, exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (D) Any portion of this system that falls under the provisions of 5 
U.S.C. 552a(k)(2), (k)(3), (k)(5) may be exempt from the following 
subsections of 5 U.S.C. 552a(c)(3); (d); (e)(1); (e)(4)(G), (H) and (I); 
and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(2), (k)(3), (k)(5).
    (iii) Reasons. (A) From subsection (c)(3) because it will enable DSS 
to conduct certain investigations and relay law enforcement information 
without compromise of the information, protection of investigative 
techniques and efforts employed, and identities of confidential sources 
who might not otherwise come forward and who furnished information under 
an express promise that the sources' identity would be held in 
confidence (or prior to the effective date of the Act, under an implied 
promise);
    (B) From subsections (e)(1), (e)(4)(G), (H), and (I) because it will 
provide protection against notification of investigatory material 
including certain reciprocal investigations and counterintelligence 
information, which might alert a subject to the fact that an 
investigation of that individual is taking place, and the disclosure of 
which would weaken the on-going investigation, reveal investigatory 
techniques, and place confidential informants in jeopardy who furnished 
information under an express promise that the sources' identity would be 
held in confidence (or prior to the effective date of the Act, under an 
implied promise);
    (C) From subsections (d) and (f) because requiring DSS to grant 
access to records and agency rules for access and amendment of records 
would unfairly impede the agency's investigation of allegations of 
unlawful activities. To require DSS to confirm or deny the existence of 
a record pertaining to a requesting individual may in itself provide an 
answer to that individual relating to an on-going investigation. The 
investigation of possible unlawful activities would be jeopardized by 
agency rules requiring verification of record, disclosure of the record 
to the subject, and record amendment procedures.
    (2) System identifier and name. V5-01, Investigative Files System.
    (i) Exemption. (A) Investigatory material compiled for law 
enforcement purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2). 
However, if an individual is denied any right, privilege, or benefit for 
which he would otherwise be entitled by Federal law or for which he 
would otherwise be eligible, as a result of the maintenance of such 
information, the individual will be provided access to such information 
except to the extent that disclosure would reveal the identity of a 
confidential source.
    (B) Records maintained in connection with providing protective 
services to the President and other individuals under 18 U.S.C. 3506, 
may be exempt pursuant to 5 U.S.C. 552a(k)(3).
    (C) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (D) Any portion of this system that falls under the provisions of 5 
U.S.C. 552a(k)(2), (k)(3), or (k)(5) may be exempt from the following 
subsections of

[[Page 954]]

5 U.S.C. 552a(c)(3); (d); (e)(1); (e)(4)(G), (H), and (I); and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(2), (k)(3), or (k)(5).
    (iii) Reasons. (A) From subsection (c)(3) because it will enable DSS 
to conduct certain investigations and relay law enforcement information 
without compromise of the information, protection of investigative 
techniques and efforts employed, and identities of confidential sources 
who might not otherwise come forward and who furnished information under 
an express promise that the sources' identity would be held in 
confidence (or prior to the effective date of the Act, under an implied 
promise).
    (B) From subsections (e)(1), (e)(4)(G), (H), and (I) because it will 
provide protection against notification of investigatory material 
including certain reciprocal investigations and counterintelligence 
information, which might alert a subject to the fact that an 
investigation of that individual is taking place, and the disclosure of 
which would weaken the on-going investigation, reveal investigatory 
techniques, and place confidential informants in jeopardy who furnished 
information under an express promise that the sources' identity would be 
held in confidence (or prior to the effective date of the Act, under an 
implied promise).
    (C) From subsections (d) and (f) because requiring DSS to grant 
access to records and agency rules for access and amendment of records 
would unfairly impede the agency's investigation of allegations of 
unlawful activities. To require DSS to confirm or deny the existence of 
a record pertaining to a requesting individual may in itself provide an 
answer to that individual relating to an on-going investigation. The 
investigation of possible unlawful activities would be jeopardized by 
agency rules requiring verification of record, disclosure of the record 
to the subject, and record amendment procedures.
    (3) System identifier and name. V5-02, Defense Clearance and 
Investigations Index (DCII).
    (i) Exemption. Investigatory material compiled for law enforcement 
purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an 
individual is denied any right, privilege, or benefit for which he would 
otherwise be entitled by Federal law or for which he would otherwise be 
eligible, as a result of the maintenance of such information, the 
individual will be provided access to such information except to the 
extent that disclosure would reveal the identity of a confidential 
source. Any portion of this system that falls under the provisions of 5 
U.S.C. 552a(k)(2) may be exempt from the following subsections of 5 
U.S.C. 552a(c)(3); (d); (e)(1); (e)(4)(G), (H), and (I), and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(2).
    (iii) Reasons. (A) From subsection (c)(3) because it will enable DSS 
to conduct certain investigations and relay law enforcement information 
without compromise of the information, protection of investigative 
techniques and efforts employed, and identities of confidential sources 
who might not otherwise come forward and who furnished information under 
an express promise that the sources' identity would be held in 
confidence (or prior to the effective date of the Act, under an implied 
promise).
    (B) From subsections (e)(1), (e)(4)(G), (H), and (I) because it will 
provide protection against notification of investigatory material 
including certain reciprocal investigations and counterintelligence 
information, which might alert a subject to the fact that an 
investigation of that individual is taking place, and the disclosure of 
which would weaken the on-going investigation, reveal investigatory 
techniques, and place confidential informants in jeopardy who furnished 
information under an express promise that the sources' identity would be 
held in confidence (or prior to the effective date of the Act, under an 
implied promise).
    (C) From subsections (d) and (f) because requiring DSS to grant 
access to records and agency rules for access and amendment of records 
would unfairly impede the agency's investigation of allegations of 
unlawful activities. To require DSS to confirm or deny the existence of 
a record pertaining to a requesting individual may in itself provide an 
answer to that individual relating to an on-going investigation. The 
investigation of possible unlawful activities would be jeopardized by 
agency rules requiring verification of record,

[[Page 955]]

disclosure of the record to the subject, and record amendment 
procedures.
    (4) System identifier and name. V5-03, Case Control Management 
System (CCMS).
    (i) Exemption. (A) Investigatory material compiled for law 
enforcement purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2). 
However, if an individual is denied any right, privilege, or benefit for 
which he would otherwise be entitled by Federal law or for which he 
would otherwise be eligible, as a result of the maintenance of such 
information, the individual will be provided access to such information 
except to the extent that disclosure would reveal the identity of a 
confidential source.
    (B) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source. Any portion of this system that falls under the 
provisions of 5 U.S.C. 552a(k)(2) or (k)(5) may be exempt from the 
following subsections of 5 U.S.C. 552a: (c)(3); (d); (e)(1); (e)(4)(G), 
(H), and (I); and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(2) and (k)(5).
    (iii) Reasons. (A) From subsection (c)(3) because it will enable DSS 
to conduct certain investigations and relay law enforcement information 
without compromise of the information, protection of investigative 
techniques and efforts employed, and identities of confidential sources 
who might not otherwise come forward and who furnished information under 
an express promise that the sources' identity would be held in 
confidence (or prior to the effective date of the Act, under an implied 
promise).
    (B) From subsections (e)(1), (e)(4)(G), (H), and (I) because it will 
provide protection against notification of investigatory material 
including certain reciprocal investigations and counterintelligence 
information, which might alert a subject to the fact that an 
investigation of that individual is taking place, and the disclosure of 
which would weaken the on-going investigation, reveal investigatory 
techniques, and place confidential informants in jeopardy who furnished 
information under an express promise that the sources' identity would be 
held in confidence (or prior to the effective date of the Act, under an 
implied promise).
    (C) From subsections (d) and (f) because requiring DSS to grant 
access to records and agency rules for access and amendment of records 
would unfairly impede the agency's investigation of allegations of 
unlawful activities. To require DSS to confirm or deny the existence of 
a record pertaining to a requesting individual may in itself provide an 
answer to that individual relating to an on-going investigation. The 
investigation of possible unlawful activities would be jeopardized by 
agency rules requiring verification of record, disclosure of the record 
to the subject, and record amendment procedures.
    (5) System identifier and name. V5-04, Counterintelligence Issues 
Database (CII-DB).
    (i) Exemption. (A) Information specifically authorized to be 
classified under E.O. 12958, as implemented by DoD 5200.1-R, may be 
exempt pursuant to 5 U.S.C. 552a(k)(1).
    (B) Investigatory material compiled for law enforcement purposes may 
be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an individual is 
denied any right, privilege, or benefit for which he would otherwise be 
entitled by Federal law or for which he would otherwise be eligible, as 
a result of the maintenance of such information, the individual will be 
provided access to such information except to the extent that disclosure 
would reveal the identity of a confidential source.
    (C) Records maintained in connection with providing protective 
services to the President and other individuals under 18 U.S.C. 3506, 
may be exempt pursuant to 5 U.S.C. 552a(k)(3).
    (D) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.

[[Page 956]]

    (E) Any portion of this system that falls within the provisions of 5 
U.S.C. 552a(k)(1), (k)(2), (k)(3) and (k)(5) may be exempt from the 
following subsections (c)(3); (d)(1) through (d)(5); (e)(1); (e)(4)(G), 
(H), and (I); and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(1), (k)(2), (k)(3) and (k)(5).
    (iii) Reasons. (A) From subsection (c)(3) because giving the 
individual access to the disclosure accounting could alert the subject 
of an investigation to the existence and nature of the investigation and 
reveal investigative or prosecutive interest by other agencies, 
particularly in a joint-investigation situation. This would seriously 
impede or compromise the investigation and case preparation by 
prematurely revealing its existence and nature; compromise or interfere 
with witnesses or make witnesses reluctant to cooperate with the 
investigators; lead to suppression, alteration, fabrication, or 
destruction of evidence; and endanger the physical safety of 
confidential sources, witnesses, law enforcement personnel and their 
families.
    (B) From subsection (d) because the application of these provisions 
could impede or compromise an investigation or prosecution if the 
subject of an investigation had access to the records or were able to 
use such rules to learn of the existence of an investigation before it 
would be completed. In addition, the mere notice of the fact of an 
investigation could inform the subject and others that their activities 
are under or may become the subject of an investigation and could enable 
the subjects to avoid detection or apprehension, to influence witnesses 
improperly, to destroy evidence, or to fabricate testimony.
    (C) From subsection (e)(1) because during an investigation it is not 
always possible to detect the relevance or necessity of each piece of 
information in the early stages of an investigation. In some cases, it 
is only after the information is evaluated in light of other evidence 
that its relevance and necessity will be clear. In other cases, what may 
appear to be a relevant and necessary piece of information may become 
irrelevant in light of further investigation. In addition, during the 
course of an investigation, the investigator may obtain information that 
related primarily to matters under the investigative jurisdiction of 
another agency, and that information may not be reasonably segregated. 
In the interest of effective law enforcement, DSS investigators should 
retain this information, since it can aid in establishing patterns of 
criminal activity and can provide valuable leads for Federal and other 
law enforcement agencies.
    (D) From subsections (e)(4)(G), (e)(4)(H), (e)(4)(I) and (f) because 
this system is exempt from subsection (d) of the Act, concerning access 
to records. These requirements are inapplicable to the extent that these 
records will be exempt from these subsections. However, DSS has 
published information concerning its notification and access procedures, 
and the records source categories because under certain circumstances, 
DSS could decide it is appropriate for an individual to have access to 
all or a portion of his/her records in this system of records.
    (6) [Reserved]

    Effective Date Note: At 88 FR 42236, June 30, 2023, Sec. 310.22 was 
amended by removing and reserving paragraph (b)(1), effective Sept. 8, 
2023.



Sec. 310.23  Defense Threat Reduction Agency (DTRA) exemptions.

    (a) Exemption for classified material. All systems of records 
maintained by the Defense Threat Reduction Agency shall be exempt under 
section (k)(1) of 5 U.S.C. 552a, to the extent that the systems contain 
any information properly classified under E.O. 12598 and that is 
required by that E.O. to be kept secret in the interest of national 
defense or foreign policy. This exemption is applicable to parts of all 
systems of records including those not otherwise specifically designated 
for exemptions herein which contain isolated items of properly 
classified information.
    (1) System identifier and name. HDTRA 007, Security Operations.
    (i) Exemption. Portions of this system of records may be exempt from 
the provisions of 5 U.S.C. 552a(c)(3), (d)(1) through (d)(4), (e)(1), 
(e)(4)(G), (H), (I), and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(5).
    (iii) Reasons. (A) From subsection (c)(3) because it will enable 
DTRA to

[[Page 957]]

safeguard certain investigations and relay law enforcement information 
without compromise of the information, and protect the identities of 
confidential sources who might not otherwise come forward and who have 
furnished information under an express promise that the sources' 
identity would be held in confidence (or prior to the effective date of 
the Act, under an implied promise.)
    (B) From subsection (d)(1) through (d)(4) and (f) because providing 
access to records of a civil investigation and the right to contest the 
contents of those records and force changes to be made to the 
information contained therein would seriously interfere with, and thwart 
the orderly and unbiased conduct of security investigations. Providing 
access rights normally afforded under the Privacy Act would provide the 
subject with valuable information that would allow interference with or 
compromise of witnesses or render witnesses reluctant to cooperate; lead 
to suppression, alteration, or destruction of evidence; and result in 
the secreting of or other disposition of assets that would make them 
difficult or impossible to reach in order to satisfy any Government 
claim growing out of the investigation or proceeding.
    (C) From subsection (e)(1), (e)(4)(G), (H), (I) because it will 
provide protection against notification of investigatory material 
including certain reciprocal investigations and counterintelligence 
information, which might alert a subject to the fact that an 
investigation of that individual is taking place, and the disclosure of 
which would weaken the on-going investigation, reveal investigatory 
techniques, and place confidential informants in jeopardy who furnished 
information; under an express promise that the sources' identity would 
be held in confidence (or prior to the effective date of the Act, under 
an implied promise.)
    (2) System identifier and name. HDTRA 011, Inspector General 
Investigation Files.
    (i) Exemption. Portions of this system of records may be exempt from 
the provisions of 5 U.S.C. 552a(c)(3); (d)(1) through (4); (e)(1); 
(e)(4)(G), (H), and (I); and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(2).
    (iii) Reasons. (A) From subsection (c)(3) because it will enable 
DTRA to conduct certain investigations and relay law enforcement 
information without compromise of the information, protection of 
investigative techniques and efforts employed, and identities of 
confidential sources who might not otherwise come forward and who 
furnished information under an express promise that the sources' 
identity would be held in confidence (or prior to the effective date of 
the Act, under an implied promise.)
    (B) From subsection (d)(1) through (d)(4) and (f) because providing 
access to records of a civil investigation and the right to contest the 
contents of those records and force changes to be made to the 
information contained therein would seriously interfere with and thwart 
the orderly and unbiased conduct of the investigation and impede case 
preparation. Providing access rights normally afforded under the Privacy 
Act would provide the subject with valuable information that would allow 
interference with or compromise of witnesses or render witnesses 
reluctant to cooperate; lead to suppression, alteration, or destruction 
of evidence; and result in the secreting of or other disposition of 
assets that would make them difficult or impossible to reach in order to 
satisfy any Government claim growing out of the investigation or 
proceeding.
    (C) From subsection (e)(1), (e)(4)(G), (H), and (I) because it will 
provide protection against notification of investigatory material 
including certain reciprocal investigations and counterintelligence 
information, which might alert a subject to the fact that an 
investigation of that individual is taking place, and the disclosure of 
which would weaken the on-going investigation, reveal investigatory 
techniques, and place confidential informants in jeopardy who furnished 
information under an express promise that the sources' identity would be 
held in confidence (or prior to the effective date of the Act, under an 
implied promise).
    (3) System identifier and name. HDTRA 021, Freedom of Information 
Act and Privacy Act Request Case Files.
    (i) Exemption. During the processing of a Freedom of Information Act 
or

[[Page 958]]

Privacy Act request exempt materials from other systems of records may 
in turn become part of the case record in this system. To the extent 
that copies of exempt records from those `other' systems of records are 
entered into this system, the Defense Threat Reduction Agency claims the 
same exemptions for the records from those `other' systems that are 
entered into this system, as claimed for the original primary system of 
which they are a part.
    (ii) Authority. 5 U.S.C. 552a(j)(2), (k)(1), (k)(2), (k)(3), (k)(4), 
(k)(5), (k)(6) and (k)(7).
    (iii) Reasons. Records are only exempt from pertinent provisions of 
5 U.S.C. 552a to the extent such provisions have been identified and an 
exemption claimed for the original record and the purposes underlying 
the exemption for the original record still pertain to the record which 
is now contained in this system of records. In general, the exemptions 
were claimed in order to protect properly classified information 
relating to national defense and foreign policy, to avoid interference 
during the conduct of criminal, civil, or administrative actions or 
investigations, to ensure protective services provided the President and 
others are not compromised, to protect the identity of confidential 
sources incident to Federal employment, military service, contract, and 
security clearance determinations, to preserve the confidentiality and 
integrity of Federal testing materials, and to safeguard evaluation 
materials used for military promotions when furnished by a confidential 
source. The exemption rule for the original records will identify the 
specific reasons why the records are exempt from specific provisions of 
5 U.S.C. 552a.

    Effective Date Note: At 88 FR 42236, June 30, 2023, Sec. 310.23 was 
amended by removing paragraph (a)(3), effective Sept. 8, 2023.



Sec. 310.24  National Geospatial-Intelligence Agency (NGA) exemptions.

    (a) Exempt systems of record. All systems of records maintained by 
the NGA and its components shall be exempt from the requirements of 5 
U.S.C. 552a(d) pursuant to 5 U.S.C. 552a(k)(1) to the extent that the 
system contains any information properly classified under Executive 
Order 12958 and that is required by Executive Order to be withheld in 
the interest of national defense or foreign policy. This exemption is 
applicable to parts of all systems of records, including those not 
otherwise specifically designated for exemptions herein, which contain 
isolated items of properly classified information.
    (1) System identifier and name. B0210-07, Inspector General 
Investigative and Complaint Files.
    (i) Exemption. (A) Investigative material compiled for law 
enforcement purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2). 
However, if an individual is denied any right, privilege, or benefit for 
which he would otherwise be entitled by Federal law or for which he 
would otherwise be eligible, as a result of the maintenance of such 
information, the individual will be provided access to such information 
except to the extent that disclosure would reveal the identity of a 
confidential source.
    (B) Investigative material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (C) Therefore, portions of this system of records may be exempt 
pursuant to 5 U.S.C. 552a(k)(2) and/or (k)(5) from the following 
subsections of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H) and (I), 
and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(2) and (k)(5).
    (iii) Reasons. (A) From subsection (c)(3) because to grant access to 
the accounting for each disclosure as required by the Privacy Act, 
including the date, nature, and purpose of each disclosure and the 
identity of the recipient, could alert the subject to the existence of 
the investigation or prosecutable interest by the NGA or other agencies. 
This could seriously compromise case preparation by prematurely 
revealing its existence and nature; compromise or interfere with 
witnesses or make witnesses reluctant to cooperate; and lead to 
suppression, alteration, or destruction of evidence.

[[Page 959]]

    (B) From subsections (d) and (f) because providing access to 
investigative records and the right to contest the contents of those 
records and force changes to be made to the information contained 
therein would seriously interfere with and thwart the orderly and 
unbiased conduct of the investigation and impede case preparation. 
Providing access rights normally afforded under the Privacy Act would 
provide the subject with valuable information that would allow 
interference with or compromise of witnesses or render witnesses 
reluctant to cooperate; lead to suppression, alteration, or destruction 
of evidence; enable individuals to conceal their wrongdoing or mislead 
the course of the investigation; and result in the secreting of or other 
disposition of assets that would make them difficult or impossible to 
reach in order to satisfy any Government claim growing out of the 
investigation or proceeding.
    (C) From subsection (e)(1) because it is not always possible to 
detect the relevance or necessity of each piece of information in the 
early stages of an investigation. In some cases, it is only after the 
information is evaluated in light of other evidence that its relevance 
and necessity will be clear.
    (D) From subsections (e)(4)(G) and (H) because this system of 
records is compiled for investigative purposes and is exempt from the 
access provisions of subsections (d) and (f).
    (E) From subsection (e)(4)(I) because to the extent that this 
provision is construed to require more detailed disclosure than the 
broad, generic information currently published in the system notice, an 
exemption from this provision is necessary to protect the 
confidentiality of sources of information and to protect privacy and 
physical safety of witnesses and informants. NGA will, nevertheless, 
continue to publish such a notice in broad generic terms, as is its 
current practice.
    (F) Consistent with the legislative purpose of the Privacy Act of 
1974, NGA will grant access to nonexempt material in the records being 
maintained. Disclosure will be governed by NGA's Privacy Regulation, but 
will be limited to the extent that the identity of confidential sources 
will not be compromised; subjects of an investigation of an actual or 
potential criminal or civil violation will not be alerted to the 
investigation; the physical safety of witnesses, informants and law 
enforcement personnel will not be endangered; the privacy of third 
parties will not be violated; and that the disclosure would not 
otherwise impede effective law enforcement. Whenever possible, 
information of the above nature will be deleted from the requested 
documents and the balance made available. The controlling principle 
behind this limited access is to allow disclosures except those 
indicated in this paragraph. The decisions to release information from 
these systems will be made on a case-by-case basis.
    (2) System identifier and name. NGA-004, NGA Threat Mitigation 
Records.
    (i) Exemption. (A) Exempt materials from JUSTICE/FBI--019 Terrorist 
Screening Records System may become part of the case records in this 
system of records. To the extent that copies of exempt records from 
JUSTICE/FBI--019, Terrorist Screening Records System are entered into 
these Threat Mitigation case records, NGA hereby claims the same 
exemptions (j)(2) and (k)(2), for the records as claimed in JUSTICE/
FBI--019, Terrorist Screening Records system of records of which they 
are a part.
    (B) Information specifically authorized to be classified under E.O. 
12958, as implemented by DoD 5200.1-R, may be exempt pursuant to 5 
U.S.C. 552a(k)(1).
    (C) Investigative material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (ii) Authority. 5 U.S.C. 552a(j)(2), (k)(1), (k)(2) and (k)(5).
    (iii) Reasons. (A) Pursuant to 5 U.S.C. 552a(j)(2), (k)(2), and 
(k)(5) NGA is claiming the following exemptions for certain records 
within the Threat Mitigation Records system: 5 U.S.C. 552a(c)(3) and 
(4); (d)(1), (2), (3), and (4); (e)(1), (2), (3), (4)(G) through (I), 
(5), and (8); (f), and (g). Additionally, pursuant to 5 U.S.C. 
552a(k)(1) and (k)(2), NGA

[[Page 960]]

has exempted this system from the following provisions of the Privacy 
Act, subject to the limitation set forth in 5 U.S.C. 552a(c)(3); (d); 
(e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and (f). Exemptions from these 
particular subsections are justified, on a case-by-case basis to be 
determined at the time a request is made.
    (B) In addition to records under the control of NGA, the Threat 
Mitigation system of records may include records originating from 
systems of records of other law enforcement and intelligence agencies 
which may be exempt from certain provisions of the Privacy Act. However, 
NGA does not assert exemption to any provisions of the Privacy Act with 
respect to information submitted by or on behalf of individuals.
    (C) To the extent the Threat Mitigation system contains records 
originating from other systems of records, NGA will rely on the 
exemptions claimed for those records in the originating system of 
records. Exemptions for certain records within the Threat Mitigation 
system from particular subsections of the Privacy Act are justified for 
the following reasons:
    (1) From subsection (c)(3) (Accounting for Disclosures) because 
giving a record subject access to the accounting of disclosures from 
records concerning him or her could reveal investigative interest on the 
part of the recipient agency that obtained the record pursuant to a 
routine use. Disclosure of the accounting could therefore present a 
serious impediment to law enforcement efforts on the part of the 
recipient agency because the individual who is the subject of the record 
would learn of third agency investigative interests and could take steps 
to evade detection or apprehension. Disclosure of the accounting also 
could reveal the details of watch list matching measures under the 
Threat Mitigation system, as well as capabilities and vulnerabilities of 
the watch list matching process, the release of which could permit an 
individual to evade future detection and thereby impede efforts to 
ensure security.
    (2) From subsection (c)(4) because portions of this system are 
exempt from the access and amendment provisions of subsection (d).
    (3) From subsection (d) (Access to Records) because access to the 
records contained in this system of records could inform the subject of 
an investigation of an actual or potential criminal, civil, or 
regulatory violation to the existence of that investigation and reveal 
investigative interest on the part of Department of Homeland Security or 
another agency. Access to the records could permit the individual who is 
the subject of a record to impede the investigation, to tamper with 
witnesses or evidence, and to avoid detection or apprehension. Amendment 
of the records could interfere with ongoing investigations and law 
enforcement activities and would impose an unreasonable administrative 
burden by requiring investigations to be continually reinvestigated. In 
addition, permitting access and amendment to such information could 
disclose security sensitive information that could be detrimental to 
national security.
    (4) From subsection (e)(1) because it is not always possible for NGA 
or other agencies to know in advance what information is both relevant 
and necessary for it to complete an identity comparison between 
individuals and a known or suspected terrorist. In addition, because NGA 
and other agencies may not always know what information about an 
encounter with a known or suspected terrorist will be relevant to law 
enforcement for the purpose of conducting an operational response.
    (5) From subsection (e)(2) because application of this provision 
could present a serious impediment to counterterrorism, law enforcement, 
or intelligence efforts in that it would put the subject of an 
investigation, study or analysis on notice of that fact, thereby 
permitting the subject to engage in conduct designed to frustrate or 
impede that activity. The nature of counterterrorism, law enforcement, 
or intelligence investigations is such that vital information about an 
individual frequently can be obtained only from other persons who are 
familiar with such individual and his/her activities. In such 
investigations, it is not feasible to rely upon information furnished by 
the individual concerning his own activities.

[[Page 961]]

    (6) From subsection (e)(3), to the extent that this subsection is 
interpreted to require NGA to provide notice to an individual if NGA or 
another agency receives or collects information about that individual 
during an investigation or from a third party. Should the subsection be 
so interpreted, exemption from this provision is necessary to avoid 
impeding counterterrorism, law enforcement, or intelligence efforts by 
putting the subject of an investigation, study or analysis on notice of 
that fact, thereby permitting the subject to engage in conduct intended 
to frustrate or impede that activity.
    (7) From subsections (e)(4)(G) and (H) and (I) (Agency Requirements) 
and (f) (Agency Rules), because this system is exempt from the access 
provisions of 5 U.S.C. 552a(d).
    (8) From subsection (e)(5) because many of the records in this 
system coming from other system of records are derived from other agency 
record systems and therefore it is not possible for NGA to ensure their 
compliance with this provision, however, NGA has implemented internal 
quality assurance procedures to ensure that data used in the matching 
process is as thorough, accurate, and current as possible. In addition, 
in the collection of information for law enforcement, counterterrorism, 
and intelligence purposes, it is impossible to determine in advance what 
information is accurate, relevant, timely, and complete. With the 
passage of time, seemingly irrelevant or untimely information may 
acquire new significance as further investigation brings new details to 
light. The restrictions imposed by (e)(5) would limit the ability of 
those agencies' trained investigators and intelligence analysts to 
exercise their judgment in conducting investigations and impede the 
development of intelligence necessary for effective law enforcement and 
counterterrorism efforts. However, NGA has implemented internal quality 
assurance procedures to ensure that the data used in the matching 
process is as thorough, accurate, and current as possible.
    (9) From subsection (e)(8) because to require individual notice of 
disclosure of information due to compulsory legal process would pose an 
impossible administrative burden on NGA and other agencies and could 
alert the subjects of counterterrorism, law enforcement, or intelligence 
investigations to the fact of those investigations when not previously 
known.
    (10) From subsection (f) (Agency Rules) because portions of this 
system are exempt from the access and amendment provisions of subsection 
(d).
    (11) From subsection (g) to the extent that the system is exempt 
from other specific subsections of the Privacy Act.
    (3) System identifier and name. NGA-003, National Geospatial-
Intelligence Agency Enterprise Workforce System.
    (i) Exemption. Investigatory material compiled for law enforcement 
purposes, other than material within the scope of subsection 5 U.S.C. 
552a(j)(2), may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if 
an individual is denied any right, privilege, or benefit for which he 
would otherwise be entitled by Federal law or for which he would 
otherwise be eligible, as a result of the maintenance of the 
information, the individual will be provided access to the information 
exempt to the extent that disclosure would reveal the identity of a 
confidential source.

    Note 1 to paragraph (a)(3)(i). When claimed, this exemption allows 
limited protection of investigative reports maintained in a system of 
records used in personnel or administrative actions.

    (ii) Authority. 5 U.S.C. 552a (k)(2).
    (iii) Reasons. Pursuant to 5 U.S.C. 552a(k)(2), the Director of NGA 
has exempted this system from the following provisions of the Privacy 
Act, subject to the limitation set forth in 5 U.S.C. 552a(c)(3); (d); 
(e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and (f). Exemptions from these 
particular subsections are justified, on a case-by-case basis to be 
determined at the time a request is made, for the following reasons:
    (A) From subsection (c)(3) and (c)(4) (Accounting for Disclosures) 
because release of the accounting of disclosures could alert the subject 
of an investigation of an actual or potential criminal, civil, or 
regulatory violation to the existence of that investigation and reveal 
investigative interest on the part of NGA as well as the recipient 
agency. Disclosure of the accounting would therefore present a serious 
impediment

[[Page 962]]

to law enforcement efforts and/or efforts to preserve national security. 
Disclosure of the accounting would also permit the individual who is the 
subject of a record to impede the investigation, to tamper with 
witnesses or evidence, and to avoid detection or apprehension, which 
would undermine the entire investigative process.
    (B) From subsection (d) (Access to Records) because access to the 
records contained in this system of records could inform the subject of 
an investigation of an actual or potential criminal, civil, or 
regulatory violation to the existence of that investigation and reveal 
investigative interest on the part of NGA or another agency. Access to 
the records could permit the individual who is the subject of a record 
to impede the investigation, to tamper with witnesses or evidence, and 
to avoid detection or apprehension. Amendment of the records could 
interfere with ongoing investigations and law enforcement activities and 
would impose an unreasonable administrative burden by requiring 
investigations to be continually reinvestigated. In addition, permitting 
access and amendment to such information could disclose security-
sensitive information that could be detrimental to homeland security.
    (C) From subsection (e)(1) (Relevancy and Necessity of Information) 
because in the course of investigations into potential violations of 
Federal law, the accuracy of information obtained or introduced 
occasionally may be unclear, or the information may not be strictly 
relevant or necessary to a specific investigation. In the interests of 
effective law enforcement, it is appropriate to retain all information 
that may aid in establishing patterns of unlawful activity.
    (D) From subsection (e)(2) (Collection of Information from 
Individuals) because requiring that information be collected from the 
subject of an investigation would alert the subject to the nature or 
existence of the investigation, thereby interfering with that 
investigation and related law enforcement activities.
    (E) From subsection (e)(3) (Notice to Subjects) because providing 
such detailed information could impede law enforcement by compromising 
the existence of a confidential investigation or reveal the identity of 
witnesses or confidential informants.
    (F) From subsections (e)(4)(G), (e)(4)(H), and (e)(4)(I) (Agency 
Requirements) and (f) (Agency Rules), because portions of this system 
are exempt from the individual access provisions of subsection (d) for 
the reasons noted above, and therefore NGA is not required to establish 
requirements, rules, or procedures with respect to such access. 
Providing notice to individuals with respect to existence of records 
pertaining to them in the system of records or otherwise setting up 
procedures pursuant to which individuals may access and view records 
pertaining to themselves in the system would undermine investigative 
efforts and reveal the identities of witnesses, and potential witnesses, 
and confidential informants.
    (G) From subsection (e)(5) (Collection of Information) because with 
the collection of information for law enforcement purposes, it is 
impossible to determine in advance what information is accurate, 
relevant, timely, and complete. Compliance with subsection (e)(5) would 
preclude NGA personnel from using their investigative training and 
exercise of good judgment to both conduct and report on investigations.
    (H) From subsection (e)(8) (Notice on Individuals) because 
compliance would interfere with NGA's ability to cooperate with law 
enforcement who would obtain, serve, and issue subpoenas, warrants, and 
other law enforcement mechanisms that may be filed under seal and could 
result in disclosure of investigative techniques, procedures, and 
evidence.
    (I) From subsection (g)(1) (Civil Remedies) to the extent that the 
system is exempt from other specific subsections of the Privacy Act.
    (4) System identifier and name. NGA-008, National Geospatial-
Intelligence Agency Polygraph Records System.
    (i) Exemption. Investigatory material compiled for law enforcement 
purposes, other than material within the scope of subsection 5 U.S.C. 
552a(j)(2), may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if 
an individual is denied any right, privilege, or benefit for which he 
would otherwise be entitled by Federal

[[Page 963]]

law or for which he would otherwise be eligible, as a result of the 
maintenance of the information, the individual will be provided access 
to the information exempt to the extent that disclosure would reveal the 
identity of a confidential source.

    Note 1 to paragraph (a)(4)(i). When claimed, this exemption allows 
limited protection of investigative reports maintained in a system of 
records used in personnel or administrative actions.

    (ii) Authority. 5 U.S.C. 552a(k)(2).
    (iii) Reasons. Pursuant to 5 U.S.C. 552a(k)(2), the Director of NGA 
has exempted this system from the following provisions of the Privacy 
Act, subject to the limitation set forth in 5 U.S.C. 552a(c)(3); (d); 
(e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and (f). Exemptions from these 
particular subsections are justified, on a case-by-case basis to be 
determined at the time a request is made, for the following reasons:
    (A) From subsection (c)(3) and (c)(4) (Accounting for Disclosures) 
because release of the accounting of disclosures could alert the subject 
of an investigation of an actual or potential criminal, civil, or 
regulatory violation to the existence of that investigation and reveal 
investigative interest on the part of NGA as well as the recipient 
agency. Disclosure of the accounting would therefore present a serious 
impediment to law enforcement efforts and/or efforts to preserve 
national security. Disclosure of the accounting would also permit the 
individual who is the subject of a record to impede the investigation, 
to tamper with witnesses or evidence, and to avoid detection or 
apprehension, which would undermine the entire investigative process.
    (B) From subsection (d) (Access to Records) because access to the 
records contained in this system of records could inform the subject of 
an investigation of an actual or potential criminal, civil, or 
regulatory violation to the existence of that investigation and reveal 
investigative interest on the part of NGA or another agency. Access to 
the records could permit the individual who is the subject of a record 
to impede the investigation, to tamper with witnesses or evidence, and 
to avoid detection or apprehension. Amendment of the records could 
interfere with ongoing investigations and law enforcement activities and 
would impose an unreasonable administrative burden by requiring 
investigations to be continually reinvestigated. In addition, permitting 
access and amendment to such information could disclose security-
sensitive information that could be detrimental to homeland security.
    (C) From subsection (e)(1) (Relevancy and Necessity of Information) 
because in the course of investigations into potential violations of 
Federal law, the accuracy of information obtained or introduced 
occasionally may be unclear, or the information may not be strictly 
relevant or necessary to a specific investigation. In the interests of 
effective law enforcement, it is appropriate to retain all information 
that may aid in establishing patterns of unlawful activity.
    (D) From subsection (e)(2) (Collection of Information from 
Individuals) because requiring that information be collected from the 
subject of an investigation would alert the subject to the nature or 
existence of the investigation, thereby interfering with that 
investigation and related law enforcement activities.
    (E) From subsection (e)(3) (Notice to Subjects) because providing 
such detailed information could impede law enforcement by compromising 
the existence of a confidential investigation or reveal the identity of 
witnesses or confidential informants.
    (F) From subsections (e)(4)(G), (e)(4)(H), and (e)(4)(I) (Agency 
Requirements) and (f) (Agency Rules), because portions of this system 
are exempt from the individual access provisions of subsection (d) for 
the reasons noted above, and therefore NGA is not required to establish 
requirements, rules, or procedures with respect to such access. 
Providing notice to individuals with respect to existence of records 
pertaining to them in the system of records or otherwise setting up 
procedures pursuant to which individuals may access and view records 
pertaining to themselves in the system would undermine investigative 
efforts and reveal the identities of witnesses, and potential witnesses, 
and confidential informants.

[[Page 964]]

    (G) From subsection (e)(5) (Collection of Information) because with 
the collection of information for law enforcement purposes, it is 
impossible to determine in advance what information is accurate, 
relevant, timely, and complete. Compliance with subsection (e)(5) would 
preclude NGA personnel from using their investigative training and 
exercise of good judgment to both conduct and report on investigations.
    (H) From subsection (e)(8) (Notice on Individuals) because 
compliance would interfere with NGA's ability to cooperate with law 
enforcement who would obtain, serve, and issue subpoenas, warrants, and 
other law enforcement mechanisms that may be filed under seal and could 
result in disclosure of investigative techniques, procedures, and 
evidence.
    (I) From subsection (g)(1) (Civil Remedies) to the extent that the 
system is exempt from other specific subsections of the Privacy Act.
    (5) System identifier and name. NGA-010, National Geospatial-
Intelligence Agency Security Financial Disclosure Reporting Records 
System.
    (i) Exemption. Investigatory material compiled for law enforcement 
purposes, other than material within the scope of subsection 5 U.S.C. 
552a(j)(2), may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if 
an individual is denied any right, privilege, or benefit for which he 
would otherwise be entitled by Federal law or for which he would 
otherwise be eligible, as a result of the maintenance of the 
information, the individual will be provided access to the information 
exempt to the extent that disclosure would reveal the identity of a 
confidential source. When claimed, this exemption allows limited 
protection of investigative reports maintained in a system of records 
used in personnel or administrative actions. Investigative material 
compiled solely for the purpose of determining suitability, eligibility, 
or qualifications for federal civilian employment, military service, 
federal contracts, or access to classified information may be exempt 
pursuant to 5 U.S.C. 552a(k)(5), but only to the extent that such 
material would reveal the identity of a confidential source.
    (ii) Authority. 5 U.S.C. 552a(k)(2) and (k)(5).
    (iii) Reasons. Pursuant to 5 U.S.C. 552a(k)(2), and (k)(5) the 
Director of NGA has exempted this system from the following provisions 
of the Privacy Act, subject to the limitation set forth in 5 U.S.C. 
552a(c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and (f). 
Exemptions from these particular subsections are justified, on a case-
by-case basis to be determined at the time a request is made, for the 
following reasons:
    (A) From subsection (c)(3) (Accounting for Disclosures) because 
release of the accounting of disclosures could alert the subject of an 
investigation of an actual or potential criminal, civil, or regulatory 
violation to the existence of that investigation and reveal 
investigative interest on the part of NGA as well as the recipient 
agency. Disclosure of the accounting would therefore present a serious 
impediment to law enforcement efforts and/or efforts to preserve 
national security. Disclosure of the accounting would also permit the 
individual who is the subject of a record to impede the investigation, 
to tamper with witnesses or evidence, and to avoid detection or 
apprehension, which would undermine the entire investigative process. 
Analyst case notes will be kept separate from the individual's data 
submission. Those case notes will contain investigative case leads and 
summaries, sensitive processes, evidence gathered from external sources 
and potential referrals to law enforcement agencies.
    (B) From subsection (d) (Access to Records) because access to the 
records contained in this system of records could inform the subject of 
an investigation of an actual or potential criminal, civil, or 
regulatory violation to the existence of that investigation and reveal 
investigative interest on the part of NGA or another agency. Access to 
the records could permit the individual who is the subject of a record 
to impede the investigation, to tamper with witnesses or evidence, and 
to avoid detection or apprehension. Amendment of the records could 
interfere with ongoing investigations and law enforcement activities and 
would impose an unreasonable administrative burden by requiring 
investigations to

[[Page 965]]

be continually reinvestigated. In addition, permitting access and 
amendment to such information could disclose security-sensitive 
information that could be detrimental to homeland security.
    (C) From subsection (e)(1) (Relevancy and Necessity of Information) 
because in the course of investigations into potential violations of 
Federal law, the accuracy of information obtained or introduced 
occasionally may be unclear, or the information may not be strictly 
relevant or necessary to a specific investigation. In the interests of 
effective law enforcement, it is appropriate to retain all information 
that may aid in establishing patterns of unlawful activity.
    (D) From subsections (e)(4)(G), (e)(4)(H), and (e)(4)(I) (Agency 
Requirements) and (f) (Agency Rules), because portions of this system 
are exempt from the individual access provisions of subsection (d) for 
the reasons noted above, and therefore NGA is not required to establish 
requirements, rules, or procedures with respect to such access. 
Providing notice to individuals with respect to existence of records 
pertaining to them in the system of records or otherwise setting up 
procedures pursuant to which individuals may access and view records 
pertaining to themselves in the system would undermine investigative 
efforts and reveal the identities of witnesses, and potential witnesses, 
and confidential informants.



Sec. 310.25  National Guard Bureau (NGB) exemptions.

    (a) General information. There are two types of exemptions, general 
and specific. The general exemption authorizes the exemption of a SOR 
from all but a few requirements of 5 U.S.C. 552a. The specific exemption 
authorizes exemption of a SOR or portion thereof, from only a few 
specific requirements. If a new SOR originates for which an exemption is 
proposed, or an additional or new exemption for an existing SOR is 
proposed, the exemption shall be submitted with the SORN. No exemption 
of a SOR shall be considered automatic for all records in the system. 
The System Manager shall review each requested records and apply the 
exemptions only when this will serve significant and legitimate purpose 
of the Federal Government.
    (b) Exemption for classified material. All SOR maintained by the NGB 
shall be exempt under section (k)(1) of 5 U.S.C. 552a to the extent that 
the systems contain any information properly classified under Executive 
Order 13526 and that is required by that Executive Order to be kept 
secret in the interest of national defense or foreign policy. This 
exemption is applicable to parts of all systems of records including 
those not otherwise specifically designated for exemptions herein which 
contain isolated items of properly classified information.
    (c) Exemption for anticipation of a civil action or proceeding. All 
systems of records maintained by the NGB shall be exempt under section 
(d)(5) of 5 U.S.C. 552a, to the extent that the record is compiled in 
reasonable anticipation of a civil action or proceeding.
    (d) General exemptions. No SOR within the NGB shall be considered 
exempt under subsection (j) or (k) of 5 U.S.C. 552a until the exemption 
rule for the SOR has been published as a final rule in the FR.
    (e) Specific exemptions.
    (1) System identifier and name. INGB 001, Freedom of Information Act 
(5 U.S.C.) and Privacy Act (5 U.S.C. 552a) Case Files.
    (i) Exemption. During the course of a 5 U.S.C. 552 or 5 U.S.C. 552a 
action, exempt materials from other systems of records may, in turn, 
become part of the case records in this system. To the extent that 
copies of exempt records from those other systems of records are entered 
into this 5 U.S.C. 552 or 5 U.S.C. 552a case record, the NGB hereby 
claims the same exemptions for the records from those other systems that 
are entered into this system, as claimed for the original primary SOR 
which they are a part.
    (ii) Authority. 5 U.S.C. 552a(j)(2), (k)(1), (k)(2), (k)(3), (k)(4), 
(k)(5), (k)(6), and (k)(7).
    (iii) Reasons. Records are only exempt from pertinent provisions of 
5 U.S.C. 552a to the extent such provisions have been identified and an 
exemption claimed for the original record and the purposes underlying 
the exemption for the original record still

[[Page 966]]

pertain to the record which is now contained in this SOR. In general, 
the exemptions were claimed in order to protect properly classified 
information relating to national defense and foreign policy, to avoid 
interference during the conduct of criminal, civil, or administrative 
actions or investigations, to ensure protective services provided the 
President and others are not compromised, to protect the identity of 
confidential sources incident to Federal employment, military service, 
contract, and security clearance determinations, to preserve the 
confidentiality and integrity of Federal testing materials, and to 
safeguard evaluation materials used for military promotions when 
furnished by a confidential source. The exemption rule for the original 
records will identify the specific reasons why the records are exempt 
from specific provisions of 5 U.S.C. 552a.
    (2) System identifier and name. INGB 005, Special Investigation 
Reports and Files.
    (i) Exemption. Investigatory material compiled for law enforcement 
purposes, other than material within the scope of subsection 5 U.S.C. 
552a(j)(2), may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if 
an individual is denied any right, privilege, or benefit for which he 
would otherwise be entitled by Federal law or for which he would 
otherwise be eligible, as a result of the maintenance of the 
information, the individual will be provided access to the information 
except to the extent that disclosure would reveal the identity of a 
confidential source.

    Note 1 to paragraph (e)(2)(i). When claimed, this exemption allows 
limited protection of investigative reports maintained in a SOR used in 
personnel or administrative actions. Any portion of this SOR which falls 
within the provisions of 5 U.S.C. 552a(k)(2) may be exempt from the 
following subsections of 5 U.S.C. 552a: (c)(3), (d), (e)(1), (e)(4)(G), 
(H), and (I), and (f).

    (ii) Authority. 5 U.S.C. 552a(k)(2).
    (iii) Reasons. (A) From subsection (c)(3) of 5 U.S.C. 552a because 
to grant access to the accounting for each disclosure as required by 5 
U.S.C. 552a, including the date, nature, and purpose of each disclosure 
and the identity of the recipient, could alert the subject to the 
existence of the investigation. This could seriously compromise case 
preparation by prematurely revealing its existence and nature; 
compromise or interfere with witnesses or make witnesses reluctant to 
cooperate; and lead to suppression, alteration, or destruction of 
evidence.
    (B) From subsections (d) and (f) of 5 U.S.C. 552a because providing 
access to investigative records and the right to contest the contents of 
those records and force changes to be made to the information contained 
therein would seriously interfere with and thwart the orderly and 
unbiased conduct of the investigation and impede case preparation. 
Providing access rights normally afforded under 5 U.S.C. 552a would 
provide the subject with valuable information that would allow 
interference with or compromise of witnesses or render witnesses 
reluctant to cooperate; lead to suppression, alteration, or destruction 
of evidence; enable individuals to conceal their wrongdoing or mislead 
the course of the investigation; and result in the secreting of or other 
disposition of assets that would make them difficult or impossible to 
reach in order to satisfy any Government claim growing out of the 
investigation or proceeding.
    (C) From subsection (e)(1) of 5 U.S.C. 552a because it is not always 
possible to detect the relevance or necessity of each piece of 
information in the early stages of an investigation. In some cases, it 
is only after the information is evaluated in light of other evidence 
that its relevance and necessity will be clear.
    (D) From subsections (e)(4)(G) and (H) of 5 U.S.C. 552a because this 
SOR is compiled for investigative purposes and is exempt from the access 
provisions of subsections (d) and (f).
    (E) From subsection (e)(4)(I) of 5 U.S.C. 552a because to the extent 
that this provision is construed to require more detailed disclosure 
than the broad, generic information currently published in the system 
notice, an exemption from this provision is necessary to protect the 
confidentiality of sources of information and to protect privacy and 
physical safety of witnesses and informants.

[[Page 967]]


    Effective Date Note: At 88 FR 42236, June 30, 2023, Sec. 310.25 was 
amended by removing and reserving paragraph (e)(1), effective Sept. 8, 
2023.



Sec. 310.26  National Reconnaissance Office (NRO) exemptions.

    (a) All systems of records maintained by the NRO shall be exempt 
from the requirements of 5 U.S.C. 552a(d) pursuant to 5 U.S.C. 
552a(k)(1) to the extent that the system contains any information 
properly classified under Executive Order 12958 and which is required by 
the Executive Order to be withheld in the interest of national defense 
of foreign policy. This exemption, which may be applicable to parts of 
all systems of records, is necessary because certain record systems not 
otherwise specifically designated for exemptions herein may contain 
items of information that have been properly classified.
    (b) No system of records within the NRO shall be considered exempt 
under subsection (j) or (k) of the Privacy Act until the exemption and 
the exemption rule for the system of records has been published as a 
final rule in the Federal Register.
    (c) An individual is not entitled to have access to any information 
compiled in reasonable anticipation of a civil action or proceeding (5 
U.S.C. 552a(d)(5)).
    (d) Proposals to exempt a system of records will be forwarded to the 
Defense Privacy Office, consistent with the requirements of this part, 
for review and action.
    (1) System identifier and name. QNRO-23, Counterintelligence Issue 
Files.
    (i) Exemption. (A) Investigatory material compiled for law 
enforcement purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2). 
However, if an individual is denied any right, privilege, or benefit for 
which he would otherwise be entitled by Federal law or for which he 
would otherwise be eligible, as a result of the maintenance of such 
information, the individual will be provided access to such information 
except to the extent that disclosure would reveal the identity of a 
confidential source.
    (B) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (C) Therefore, portions of this system of records may be exempt 
pursuant to 5 U.S.C. 552a(k)(2) and/or (k)(5) from the following 
subsections of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H) and (I), 
and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(2) and (k)(5).
    (iii) Reasons. (A) From subsection (c)(3) because to grant access to 
the accounting for each disclosure as required by the Privacy Act, 
including the date, nature, and purpose of each disclosure and the 
identity of the recipient, could alert the subject to the identity of 
the recipient, could alert the subject to the existence of the 
investigation or prosecutable interest by NRO or other agencies. This 
could seriously compromise case preparation by prematurely revealing its 
existence and nature; compromise or interfere with witnesses or make 
witnesses reluctant to cooperate; and lead to suppression, alteration, 
or destruction of evidence.
    (B) From subsections (d)(1) through (d)(4), and (f) because 
providing access to records of a civil or administrative investigation 
and the right to contest the contents of those records and force changes 
to be made to the information contained therein would seriously 
interfere with and thwart the orderly and unbiased conduct of the 
investigation and impede case preparation. Providing access rights 
normally afforded under the Privacy Act would provide the subject with 
valuable information that would allow interference with or compromise of 
witnesses or render witnesses reluctant to cooperate; lead to 
suppression, alteration, or destruction of evidence; enable individuals 
to conceal their wrongdoing or mislead the course of the investigation; 
and result in the secreting of or other disposition of assets that would 
make them difficult or impossible to reach in order to satisfy any 
Government claim growing out of the investigation or proceeding.

[[Page 968]]

    (C) From subsection (e)(1) because it is not always possible to 
detect the relevance or necessity of each piece of information in the 
early stages of an investigation. In some cases, it is only after the 
information is evaluated in light of other evidence that its relevance 
and necessity will be clear.
    (D) From subsections (e)(4)(G) and (H) because this system of 
records is compiled for law enforcement purposes and is exempt from the 
access provisions of subsections (d) and (f).
    (E) From subsection (e)(4)(I) because to the extent that this 
provision is construed to require more detailed disclosure than the 
broad, generic information currently published in the system notice, an 
exemption from this provision is necessary to protect the 
confidentiality of sources of information and to protect privacy and 
physical safety of witnesses and informants. NRO will, nevertheless, 
continue to publish such a notice in broad generic terms as is its 
current practice.
    (F) Consistent with the legislative purpose of the Privacy Act of 
1974, the NRO will grant access to nonexempt material in the records 
being maintained. Disclosure will be governed by NRO's Privacy 
Regulation, but will be limited to the extent that the identity of 
confidential sources will not be compromised; subjects of an 
investigation of an actual or potential criminal violation will not be 
alerted to the investigation; the physical safety of witnesses, 
informants and law enforcement personnel will not be endangered, the 
privacy of third parties will not be violated; and that the disclosure 
would not otherwise impede effective law enforcement. Whenever possible, 
information of the above nature will be deleted from the requested 
documents and the balance made available. The controlling principle 
behind this limited access is to allow disclosures except those 
indicated above. The decisions to release information from these systems 
will be made on a case-by-case basis.
    (2) System identifier and name. QNRO-10, Inspector General 
Investigative Files.
    (i) Exemption. This system may be exempt pursuant to 5 U.S.C. 
552a(j)(2) if the information is compiled and maintained by a component 
of the agency which performs as its principle function any activity 
pertaining to the enforcement of criminal laws. Any portion of this 
system which falls within the provisions of 5 U.S.C. 552a(j)(2) may be 
exempt from the following subsections of 5 U.S.C. 552a (c)(3), (c)(4), 
(d), (e)(1), (e)(2), (e)(3), (e)(4)(G), (H), and (I), (e)(5), (e)(8), 
(f), and (g).
    (ii) Authority. 5 U.S.C. 552a(j)(2).
    (iii) Reasons. (A) From subsection (c)(3) because the release of 
accounting of disclosure would inform a subject that he or she is under 
investigation. This information would provide considerable advantage to 
the subject in providing him or her with knowledge concerning the nature 
of the investigation and the coordinated investigative efforts and 
techniques employed by the cooperating agencies. This would greatly 
impede the NRO IG's criminal law enforcement.
    (B) From subsection (c)(4) and (d), because notification would alert 
a subject to the fact that an open investigation on that individual is 
taking place, and might weaken the on-going investigation, reveal 
investigative techniques, and place confidential informants in jeopardy.
    (C) From subsection (e)(1) because the nature of the criminal and/or 
civil investigative function creates unique problems in prescribing a 
specific parameter in a particular case with respect to what information 
is relevant or necessary. Also, due to NRO IG's close liaison and 
working relationships with other Federal, state, local and foreign 
country law enforcement agencies, information may be received which may 
relate to a case under the investigative jurisdiction of another agency. 
The maintenance of this information may be necessary to provide leads 
for appropriate law enforcement purposes and to establish patterns of 
activity, which may relate to the jurisdiction of other cooperating 
agencies.
    (D) From subsection (e)(2) because collecting information to the 
fullest extent possible directly from the subject individual may or may 
not be practical in a criminal and/or civil investigation.
    (E) From subsection (e)(3) because supplying an individual with a 
form containing a Privacy Act Statement

[[Page 969]]

would tend to inhibit cooperation by many individuals involved in a 
criminal and/or civil investigation. The effect would be somewhat 
adverse to established investigative methods and techniques.
    (F) From subsection (e)(4) (G) through (I) because this system of 
records is exempt from the access provisions of subsection (d).
    (G) From subsection (e)(5) because the requirement that records be 
maintained with attention to accuracy, relevance, timeliness, and 
completeness would unfairly hamper the investigative process. It is the 
nature of law enforcement for investigations to uncover the commission 
of illegal acts at diverse stages. It is frequently impossible to 
determine initially what information is accurate, relevant, timely, and 
least of all complete. With the passage of time, seemingly irrelevant or 
untimely information may acquire new significance as further 
investigation brings new details to light.
    (H) From subsection (e)(8) because the notice requirements of this 
provision could present a serious impediment to law enforcement by 
revealing investigative techniques, procedures, and existence of 
confidential investigations.
    (I) From subsection (f) because the agency's rules are inapplicable 
to those portions of the system that are exempt and would place the 
burden on the agency of either confirming or denying the existence of a 
record pertaining to a requesting individual might in itself provide an 
answer to that individual relating to an on-going investigation. The 
conduct of a successful investigation leading to the indictment of a 
criminal offender precludes the applicability of established agency 
rules relating to verification of record, disclosure of the record to 
that individual, and record amendment procedures for this record system.
    (J) From subsection (g) because this system of records should be 
exempt to the extent that the civil remedies relate to provisions of 5 
U.S.C. 552a from which this rule exempts the system.
    (iv) Exemption. (A) Investigative material compiled for law 
enforcement purposes, other than material within the scope of subsection 
(j)(2), may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an 
individual is denied any right, privilege, or benefit for which he would 
otherwise be entitled by Federal law or for which he would otherwise be 
eligible, as a result of the maintenance of such information, the 
individual will be provided access to such information except to the 
extent that disclosure would reveal the identity of a confidential 
source.
    (B) Investigative material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (C) Therefore, portions of this system of records may be exempt 
pursuant to 5 U.S.C. 552a(k)(2) and/or (k)(5) from the following 
subsections of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H) and (I), 
and (f).
    (v) Authority. 5 U.S.C. 552a(k)(2) and (k)(5).
    (vi) Reasons. (A) From subsection (c)(3) because to grant access to 
the accounting for each disclosure as required by the Privacy Act, 
including the date, nature, and purpose of each disclosure and the 
identity of the recipient, could alert the subject to the existence of 
the investigation or prosecutable interest by the NRO or other agencies. 
This could seriously compromise case preparation by prematurely 
revealing its existence and nature; compromise or interfere with 
witnesses or make witnesses reluctant to cooperate; and lead to 
suppression, alteration, or destruction of evidence.
    (B) From subsections (d) and (f) because providing access to 
investigative records and the right to contest the contents of those 
records and force changes to be made to the information contained 
therein would seriously interfere with and thwart the orderly and 
unbiased conduct of the investigation and impede case preparation. 
Providing access rights normally afforded under the Privacy Act would 
provide the subject with valuable information that would allow 
interference with or

[[Page 970]]

compromise of witnesses or render witnesses reluctant to cooperate; lead 
to suppression, alteration, or destruction of evidence; enable 
individuals to conceal their wrongdoing or mislead the course of the 
investigation; and result in the secreting of or other disposition of 
assets that would make them difficult or impossible to reach in order to 
satisfy any Government claim growing out of the investigation or 
proceeding.
    (C) From subsection (e)(1) because it is not always possible to 
detect the relevance or necessity of each piece of information in the 
early stages of an investigation. In some cases, it is only after the 
information is evaluated in light of other evidence that its relevance 
and necessity will be clear.
    (D) From subsections (e)(4)(G) and (H) because this system of 
records is compiled for investigative purposes and is exempt from the 
access provisions of subsections (d) and (f).
    (E) From subsection (e)(4)(I) because to the extent that this 
provision is construed to require more detailed disclosure than the 
broad, generic information currently published in the system notice, an 
exemption from this provision is necessary to protect the 
confidentiality of sources of information and to protect privacy and 
physical safety of witnesses and informants. NRO will, nevertheless, 
continue to publish such a notice in broad generic terms as is its 
current practice.
    (F) Consistent with the legislative purpose of the Privacy Act of 
1974, the NRO will grant access to nonexempt material in the records 
being maintained. Disclosure will be governed by NRO's Privacy 
Regulation, but will be limited to the extent that the identity of 
confidential sources will not be compromised; subjects of an 
investigation of an actual or potential criminal or civil violation will 
not be alerted to the investigation; the physical safety of witnesses, 
informants and law enforcement personnel will not be endangered, the 
privacy of third parties will not be violated; and that the disclosure 
would not otherwise impede effective law enforcement. Whenever possible, 
information of the above nature will be deleted from the requested 
documents and the balance made available. The controlling principle 
behind this limited access is to allow disclosures except those 
indicated above. The decisions to release information from these systems 
will be made on a case-by-case basis.
    (3) System identifier and name. QNRO-15, Facility Security Files.
    (i) Exemption. (A) Investigative material compiled for law 
enforcement purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2). 
However, if an individual is denied any right, privilege, or benefit for 
which he would otherwise be entitled by Federal law or for which he 
would otherwise be eligible, as a result of the maintenance of such 
information, the individual will be provided access to such information 
except to the extent that disclosure would reveal the identity of a 
confidential source.
    (B) Investigative material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (C) Therefore, portions of this system of records may be exempt 
pursuant to 5 U.S.C. 552a(k)(2) and/or (k)(5) from the following 
subsections of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H) and (I), 
and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(2) and (k)(5).
    (iii) Reasons. (A) From subsection (c)(3) because to grant access to 
the accounting for each disclosure as required by the Privacy Act, 
including the date, nature, and purpose of each disclosure and the 
identity of the recipient, could alert the subject to the existence of 
the investigation or prosecutable interest by the NRO or other agencies. 
This could seriously compromise case preparation by prematurely 
revealing its existence and nature; compromise or interfere with 
witnesses or make witnesses reluctant to cooperate; and lead to 
suppression, alteration, or destruction of evidence.
    (B) From subsections (d)(1) through (d)(4), and (f) because 
providing access to investigative records and the right to contest the 
contents of those records and force changes to be made

[[Page 971]]

to the information contained therein would seriously interfere with and 
thwart the orderly and unbiased conduct of the investigation and impede 
case preparation. Providing access rights normally afforded under the 
Privacy Act would provide the subject with valuable information that 
would allow interference with or compromise of witnesses or render 
witnesses reluctant to cooperate; lead to suppression, alteration, or 
destruction of evidence; wrongdoing or mislead the course of the 
investigation; and result in the secreting of or other disposition of 
assets that would make them difficult or impossible to reach in order to 
satisfy any Government claim growing out of the investigation or 
proceeding.
    (C) From subsection (e)(1) because it is not always possible to 
detect the relevance or necessity of each piece of information in the 
early stages of an investigation. In some cases, it is only after the 
information is evaluated in light of other evidence that its relevance 
and necessity will be clear.
    (D) From subsections (e)(4)(G) and (H) because this system of 
records is compiled for investigative purposes and is exempt from the 
access provisions of subsections (d) and (f).
    (E) From subsection (e)(4)(I) because to the extent that this 
provision is construed to require more detailed disclosure than the 
broad, generic information currently published in the system notice, an 
exemption from this provision is necessary to protect the 
confidentiality of sources of information and to protect privacy and 
physical safety of witnesses and informants. NRO will, nevertheless, 
continue to publish such a notice in broad generic terms as is its 
current practice.
    (F) Consistent with the legislative purpose of the Privacy Act of 
1974, the NRO will grant access to nonexempt material in the records 
being maintained. Disclosure will be governed by NRO's Privacy 
Regulation, but will be limited to the extent that the identity of 
confidential sources will not be compromised; subjects of an 
investigation of an actual or potential criminal or civil violation will 
not be alerted to the investigation; the physical safety of witnesses, 
informants and law enforcement personnel will not be endangered; the 
privacy of third parties will not be violated; and that the disclosure 
would not otherwise impede effective law enforcement. Whenever possible, 
information of the above nature will be deleted from the requested 
documents and the balance made available. The controlling principle 
behind this limited access is to allow disclosures except those 
indicated above. The decisions to release information from these systems 
will be made on a case-by-case basis.
    (4) System identifier and name. QNRO-19, Customer Security Services 
Personnel Security Files.
    (i) Exemption. (A) Investigatory material compiled for law 
enforcement purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2). 
However, if an individual is denied any right, privilege, or benefit for 
which he would otherwise be entitled by Federal law or for which he 
would otherwise be eligible, as a result of the maintenance of such 
information, the individual will be provided access to such information 
except to the extent that disclosure would reveal the identity of a 
confidential source.
    (B) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (C) Therefore, portions of this system of records may be exempt 
pursuant to 5 U.S.C. 552a(k)(2) and/or (k)(5) from the following 
subsections of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H) and (I), 
and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(2) and (k)(5).
    (iii) Reasons. (A) From subsection (c)(3) because to grant access to 
the accounting for each disclosure as required by the Privacy Act, 
including the date, nature, and purpose of each disclosure and the 
identity of the recipient, could alert the subject to the existence of 
the investigation or prosecutable interest by the NRO or other agencies. 
This could seriously compromise case preparation by prematurely 
revealing its existence and

[[Page 972]]

nature; compromise or interfere with witnesses or make witnesses 
reluctant to cooperate; and lead to suppression, alteration, or 
destruction of evidence.
    (B) From subsections (d)(1) through (d)(4), and (f) because 
providing access to investigatory records and the right to contest the 
contents of those records and force changes to be made to the 
information contained therein would seriously interfere with and thwart 
the orderly and unbiased conduct of the investigation and impede case 
preparation. Providing access rights normally afforded under the Privacy 
Act would provide the subject with valuable information that would allow 
interference with or compromise of witnesses or render witnesses 
reluctant to cooperate; lead to suppression, alteration, or destruction 
of evidence; enable individuals to conceal their wrongdoing or mislead 
the course of the investigation; and result in the secreting of or other 
disposition of assets that would make them difficult or impossible to 
reach in order to satisfy any Government claim growing out of the 
investigation or proceeding.
    (C) From subsection (e)(1) because it is not always possible to 
detect the relevance or necessity of each piece of information in the 
early stages of an investigation. In some cases, it is only after the 
information is evaluated in light of other evidence that its relevance 
and necessity will be clear.
    (D) From subsections (e)(4)(G) and (H) because this system of 
records is compiled for investigatory purposes and is exempt from the 
access provisions of subsections (d) and (f).
    (E) From subsection (e)(4)(I) because to the extent that this 
provision is construed to require more detailed disclosure than the 
broad, generic information currently published in the system notice, an 
exemption from this provision is necessary to protect the 
confidentiality of sources of information and to protect privacy and 
physical safety of witnesses and informants. NRO will, nevertheless, 
continue to publish such a notice in broad generic terms as is its 
current practice.
    (F) Consistent with the legislative purpose of the Privacy Act of 
1974, the NRO will grant access to nonexempt material in the records 
being maintained. Disclosure will be governed by NRO's Privacy 
Regulation, but will be limited to the extent that the identity of 
confidential sources will not be compromised; subjects of an 
investigation of an actual or potential criminal or civil violation will 
not be alerted to the investigation; the physical safety of witnesses, 
informants and law enforcement personnel will not be endangered; the 
privacy of third parties will not be violated; and that the disclosure 
would not otherwise impede effective law enforcement. Whenever possible, 
information of the above nature will be deleted from the requested 
documents and the balance made available. The controlling principle 
behind this limited access is to allow disclosures except those 
indicated in this paragraph. The decisions to release information from 
these systems will be made on a case-by-case basis.
    (5) System identifier and name. NRO-21, Personnel Security Files.
    (i) Exemption. (A) Investigatory material compiled for law 
enforcement purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2). 
However, if an individual is denied any right, privilege, or benefit for 
which he would otherwise be entitled by Federal law or for which he 
would otherwise be eligible, as a result of the maintenance of such 
information, the individual will be provided access to such information 
except to the extent that disclosure would reveal the identity of a 
confidential source.
    (B) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (C) Therefore, portions of this system of records may be exempt 
pursuant to 5 U.S.C. 552a(k)(2) and/or (k)(5) from the following 
subsections of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H) and (I), 
and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(2) and (k)(5).

[[Page 973]]

    (iii) Reasons. (A) From subsection (c)(3) because to grant access to 
the accounting for each disclosure as required by the Privacy Act, 
including the date, nature, and purpose of each disclosure and the 
identity of the recipient, could alert the subject to the existence of 
the investigation or prosecutable interest by the NRO or other agencies. 
This could seriously compromise case preparation by prematurely 
revealing its existence and nature; compromise or interfere with 
witnesses or make witnesses reluctant to cooperate; and lead to 
suppression, alteration, or destruction of evidence.
    (B) From subsections (d)(1) through (d)(4), and (f) because 
providing access to records of a civil or administrative investigation 
and the right to contest the contents of those records and force changes 
to be made to the information contained therein would seriously 
interfere with and thwart the orderly and unbiased conduct of the 
investigation and impede case preparation. Providing access rights 
normally afforded under the Privacy Act would provide the subject with 
valuable information that would allow interference with or compromise of 
witnesses or render witnesses reluctant to cooperate; lead to 
suppression, alteration, or destruction of evidence; enable individuals 
to conceal their wrongdoing or mislead the course of the investigation; 
and result in the secreting of or other disposition of assets that would 
make them difficult or impossible to reach in order to satisfy any 
Government claim growing out of the investigation or proceeding.
    (C) From subsection (e)(1) because it is not always possible to 
detect the relevance or necessity of each piece of information in the 
early stages of an investigation. In some cases, it is only after the 
information is evaluated in light of other evidence that its relevance 
and necessity will be clear.
    (D) From subsections (e)(4)(G) and (H) because this system of 
records is compiled for law enforcement purposes and is exempt from the 
access provisions of subsections (d) and (f).
    (E) From subsection (e)(4)(I) because to the extent that this 
provision is construed to require more detailed disclosure than the 
broad, generic information currently published in the system notice, an 
exemption from this provision is necessary to protect the 
confidentiality of sources of information and to protect privacy and 
physical safety of witnesses and informants. NRO will, nevertheless, 
continue to publish such a notice in broad generic terms as is its 
current practice.
    (F) Consistent with the legislative purpose of the Privacy Act of 
1974, the NRO will grant access to nonexempt material in the records 
being maintained. Disclosure will be governed by NRO's Privacy 
Regulation, but will be limited to the extent that the identity of 
confidential sources will not be compromised; subjects of an 
investigation of an actual or potential criminal violation will not be 
alerted to the investigation; the physical safety of witnesses, 
informants and law enforcement personnel will not be endangered; the 
privacy of third parties will not be violated; and that the disclosure 
would not otherwise impede effective law enforcement. Whenever possible, 
information of the above nature will be deleted from the requested 
documents and the balance made available. The controlling principle 
behind this limited access is to allow disclosures except those 
indicated above. The decisions to release information from these systems 
will be made on a case-by-case basis.
    (6) System identifier and name. QNRO-4, Freedom of Information Act 
and Privacy Act Files.
    (i) Exemption. During the processing of a Freedom of Information 
Act/Privacy Act request, exempt materials from other systems of records 
may in turn become part of the case record in this system. To the extent 
that copies of exempt records from those ``other'' systems of records 
are entered into this system, the NRO hereby claims the same exemptions 
for the records from those ``other'' systems that are entered into this 
system, as claimed for the original primary system of which they are a 
part.
    (ii) Authority. 5 U.S.C. 552a(j)(2), (k)(1), (k)(2), (k)(3), (k)(4), 
(k)(5), (k)(6), and (k)(7).
    (iii) Reasons. Records are only exempt from pertinent provisions of 
5 U.S.C. 552a to the extent such provisions have been identified and an 
exemption claimed for the original record

[[Page 974]]

and the purposes underlying the exemption for the original record still 
pertain to the record which is now contained in this system of records. 
In general, the exemptions were claimed in order to protect properly 
classified information relating to national defense and foreign policy, 
to avoid interference during the conduct of criminal, civil, or 
administrative actions or investigations, to ensure protective services 
provided the President and others are not compromised, to protect the 
identity of confidential sources incident to Federal employment, 
military service, contract, and security clearance determinations, and 
to preserve the confidentiality and integrity of Federal evaluation 
materials. The exemption rule for the original records will identify the 
specific reasons why the records are exempt from specific provisions of 
5 U.S.C. 552a.
    (7) System identifier and name. QNRO-27, Legal Records.
    (i) Exemption. Any portion of this system of records which falls 
within the provisions of 5 U.S.C. 552a(k)(2) and (k)(5) may be exempt 
from the following subsections of 5 U.S.C. 552a(c)(3), (d), (e)(1), 
(e)(4)(G), (H), and (I), and (f).
    (ii) Authority. 5 U.S.C. 552a (k)(2) and (k)(5).
    (iii) Reasons. (A) From subsection (c)(3) because to grant access to 
the accounting for each disclosure as required by the Privacy Act, 
including the date, nature, and purpose of each disclosure and the 
identity of the recipient, could alert the subject to the existence of 
the investigation. This could seriously compromise case preparation by 
prematurely revealing its existence and nature; compromise or interfere 
with witnesses or make witnesses reluctant to cooperate; and lead to 
suppression, alteration, or destruction of evidence.
    (B) From subsections (d) and (f) because providing access to 
investigative records and the right to contest the contents of those 
records and force changes to be made to the information contained 
therein would seriously interfere with and thwart the orderly and 
unbiased conduct of the investigation and impede case preparation. 
Providing access rights normally afforded under the Privacy Act would 
provide the subject with valuable information that would allow 
interference with or compromise of witnesses or render witnesses 
reluctant to cooperate; lead to suppression, alteration, or destruction 
of evidence; enable individuals to conceal their wrongdoing or mislead 
the course of the investigation; and result in the secreting of or other 
disposition of assets that would make them difficult or impossible to 
reach in order to satisfy any Government claim growing out of the 
investigation or proceeding.
    (C) From subsection (e)(1) because it is not always possible to 
detect the relevance or necessity of each piece of information in the 
early stages of an investigation. In some cases, it is only after the 
information is evaluated in light of other evidence that its relevance 
and necessity will be clear.
    (D) From subsections (e)(4)(G) and (H) because this system of 
records is compiled for investigative purposes and is exempt from the 
access provisions of subsections (d) and (f).
    (E) From subsection (e)(4)(I) because to the extent that this 
provision is construed to require more detailed disclosure than the 
broad, generic information currently published in the system notice, an 
exemption from this provision is necessary to protect the 
confidentiality of sources of information and to protect privacy and 
physical safety of witnesses and informants.

[84 FR 14730, Apr. 11, 2019; 84 FR 16210, Apr. 18, 2019]



Sec. 310.27  National Security Agency (NSA) exemptions.

    (a) General exemption. The general exemption established by 5 U.S.C. 
552a(j)(2) may be claimed to protect investigative records created and 
maintained by law enforcement activities of the NSA.
    (b) Specific exemptions. The specific exemptions permit certain 
categories of records to be exempt from certain specific provisions of 
the Privacy Act.
    (1) Exemption (k)(1). Information properly classified under 
Executive Order 12958 and that is required by Executive Order to be kept 
secret in the interest of national defense or foreign policy.

[[Page 975]]

    (2) Exemption (k)(2). Investigatory information compiled for law-
enforcement purposes by non-law enforcement activities and which is not 
within the scope of Sec. 310.51(a). If an individual is denied any 
right, privilege or benefit that he or she is otherwise entitled by 
federal law or for which he or she would otherwise be eligible as a 
result of the maintenance of the information, the individual will be 
provided access to the information except to the extent that disclosure 
would reveal the identity of a confidential source. This subsection when 
claimed allows limited protection of investigative reports maintained in 
a system of records used in personnel or administrative actions.
    (3) Exemption (k)(3). Records maintained in connection with 
providing protective services to the President and other individuals 
identified under 18 U.S.C. 3506.
    (4) Exemption (k)(4). Records maintained solely for statistical 
research or program evaluation purposes and which are not used to make 
decisions on the rights, benefits, or entitlement of an individual 
except for census records which may be disclosed under 13 U.S.C. 8.
    (5) Exemption (k)(5). Investigatory material compiled solely for the 
purpose of determining suitability, eligibility, or qualifications for 
federal civilian employment, military service, federal contracts, or 
access to classified information, but only to the extent such material 
would reveal the identity of a confidential source. This provision 
allows protection of confidential sources used in background 
investigations, employment inquiries, and similar inquiries that are for 
personnel screening to determine suitability, eligibility, or 
qualifications.
    (6) Exemption (k)(6). Testing or examination material used solely to 
determine individual qualifications for appointment or promotion in the 
federal or military service, if the disclosure would compromise the 
objectivity or fairness of the test or examination process.
    (7) Exemption (k)(7). Evaluation material used to determine 
potential for promotion in the Military Services, but only to the extent 
that the disclosure of such material would reveal the identity of a 
confidential source.
    (c) All systems of records maintained by the NSA/CSS and its 
components shall be exempt from the requirements of 5 U.S.C. 552a(d) 
pursuant to 5 U.S.C. 552a(k)(1) to the extent that the system contains 
any information properly classified under Executive Order 12958 and that 
is required by Executive Order to be kept secret in the interest of 
national defense or foreign policy. This exemption is applicable to 
parts of all systems of records including those not otherwise 
specifically designated for exemptions herein, which contain isolated 
items of properly classified information.
    (1) System identifier and name. GNSA 01, Access, Authority and 
Release of Information File.
    (i) Exemption. (A) Investigatory material compiled solely for the 
purpose of determining suitability, eligibility, or qualifications for 
federal civilian employment, military service, federal contracts, or 
access to classified information may be exempt pursuant to 5 U.S.C. 
552a(k)(5), but only to the extent that such material would reveal the 
identity of a confidential source.
    (B) Therefore, portions of this system may be exempt pursuant to 5 
U.S.C. 552a(k)(5) from the following subsections of 5 U.S.C. 552a(c)(3), 
(d), and (e)(1).
    (ii) Authority. 5 U.S.C. 552a(k)(5).
    (iii) Reasons. (A) From subsection (c)(3) and (d) when access to 
accounting disclosures and access to or amendment of records would cause 
the identity of a confidential sources to be revealed. Disclosure of the 
source's identity not only will result in the Department breaching the 
promise of confidentiality made to the source but it will impair the 
Department's future ability to compile investigatory material for the 
purpose of determining suitability, eligibility, or qualifications for 
Federal civilian employment, Federal contracts, or access to classified 
information. Unless sources can be assured that a promise of 
confidentiality will be honored, they will be less likely to provide 
information considered essential to the Department in making the 
required determinations.

[[Page 976]]

    (B) From (e)(1) because in the collection of information for 
investigatory purposes, it is not always possible to determine the 
relevance and necessity of particular information in the early stages of 
the investigation. In some cases, it is only after the information is 
evaluated in light of other information that its relevance and necessity 
becomes clear. Such information permits more informed decision-making by 
the Department when making required suitability, eligibility, and 
qualification determinations.
    (2) System identifier and name. GNSA 02, Applicants.
    (i) Exemption. (A) Investigatory material compiled solely for the 
purpose of determining suitability, eligibility, or qualifications for 
federal civilian employment, military service, federal contracts, or 
access to classified information may be exempt pursuant to 5 U.S.C. 
552a(k)(5), but only to the extent that such material would reveal the 
identity of a confidential source.
    (B) Therefore, portions of this system may be exempt pursuant to 5 
U.S.C. 552a(k)(5) from the following subsections of 5 U.S.C. 552a(c)(3), 
(d), and (e)(1).
    (ii) Authority. 5 U.S.C. 552a(k)(5).
    (iii) Reasons. (A) From subsection (c)(3) and (d) when access to 
accounting disclosures and access to or amendment of records would cause 
the identity of a confidential source to be revealed. Disclosure of the 
source's identity not only will result in the Department breaching the 
promise of confidentiality made to the source but it will impair the 
Department's future ability to compile investigatory material for the 
purpose of determining suitability, eligibility, or qualifications for 
Federal civilian employment, Federal contracts, or access to classified 
information. Unless sources can be assured that a promise of 
confidentiality will be honored, they will be less likely to provide 
information considered essential to the Department in making the 
required determinations.
    (B) From (e)(1) because in the collection of information for 
investigatory purposes, it is not always possible to determine the 
relevance and necessity of particular information in the early stages of 
the investigation. In some cases, it is only after the information is 
evaluated in light of other information that its relevance and necessity 
becomes clear. Such information permits more informed decision-making by 
the Department when making required suitability, eligibility, and 
qualification determinations.
    (3) System identifier and name. GNSA 03, Correspondence, Cases, 
Complaints, Visitors, Requests.
    (i) Exemption. (A) Investigatory material compiled for law 
enforcement purposes, other than material within the scope of subsection 
5 U.S.C. 552a(j)(2), may be exempt pursuant to 5 U.S.C. 552a(k)(2). 
However, if an individual is denied any right, privilege, or benefit for 
which he would otherwise be entitled by Federal law or for which he 
would otherwise be eligible, as a result of the maintenance of the 
information, the individual will be provided access to the information 
exempt to the extent that disclosure would reveal the identity of a 
confidential source.

    Note 1 to paragraph (c)(3)(i)(A). When claimed, this exemption 
allows limited protection of investigative reports maintained in a 
system of records used in personnel or administrative actions.

    (B) Records maintained solely for statistical research or program 
evaluation purposes and which are not used to make decisions on the 
rights, benefits, or entitlement of an individual except for census 
records which may be disclosed under 13 U.S.C. 8, may be exempt pursuant 
to 5 U.S.C. 552a(k)(4).
    (C) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (D) All portions of this system of records which fall within the 
scope of 5 U.S.C. 552a(k)(2), (k)(4), and (k)(5) may be exempt from the 
provisions of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), 
(e)(4)(I) and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(2), (k)(4), and (k)(5).

[[Page 977]]

    (iii) Reasons. (A) From subsection (c)(3) because the release of the 
disclosure accounting would place the subject of an investigation on 
notice that they are under investigation and provide them with 
significant information concerning the nature of the investigation, thus 
resulting in a serious impediment to law enforcement investigations.
    (B) From subsections (d) and (f) because providing access to records 
of a civil or administrative investigation and the right to contest the 
contents of those records and force changes to be made to the 
information contained therein would seriously interfere with and thwart 
the orderly and unbiased conduct of the investigation and impede case 
preparation. Providing access rights normally afforded under the Privacy 
Act would provide the subject with valuable information that would allow 
interference with or compromise of witnesses or render witnesses 
reluctant to cooperate; lead to suppression, alteration, or destruction 
of evidence; enable individuals to conceal their wrongdoing or mislead 
the course of the investigation; and result in the secreting of or other 
disposition of assets that would make them difficult or impossible to 
reach in order to satisfy any Government claim growing out of the 
investigation or proceeding.
    (C) From subsection (e)(1) because it is not always possible to 
detect the relevance or necessity of each piece of information in the 
early stages of an investigation. In some cases, it is only after the 
information is evaluated in light of other evidence that its relevance 
and necessity will be clear.
    (D) From subsections (e)(4)(G) and (H) because there is no necessity 
for such publication since the system of records will be exempt from the 
underlying duties to provide notification about and access to 
information in the system and to make amendments to and corrections of 
the information in the system.
    (E) From subsection (e)(4)(I) because to the extent that this 
provision is construed to require more detailed disclosure than the 
broad, generic information currently published in the system notice, an 
exemption from this provision is necessary to protect the 
confidentiality of sources of information and to protect privacy and 
physical safety of witnesses and informants. NSA will, nevertheless, 
continue to publish such a notice in broad generic terms, as is its 
current practice.
    (4) System identifier and name. GNSA 04, Military Reserve Personnel 
Data Base.
    (i) Exemption. (A) Investigatory material compiled solely for the 
purpose of determining suitability, eligibility, or qualifications for 
federal civilian employment, military service, federal contracts, or 
access to classified information may be exempt pursuant to 5 U.S.C. 
552a(k)(5), but only to the extent that such material would reveal the 
identity of a confidential source.
    (B) Therefore, portions of this system may be exempt pursuant to 5 
U.S.C. 552a(k)(5) from the following subsections of 5 U.S.C. 552a(c)(3), 
(d), and (e)(1).
    (ii) Authority. 5 U.S.C. 552a(k)(5).
    (iii) Reasons. (A) From subsection (c)(3) and (d) when access to 
accounting disclosures and access to or amendment of records would cause 
the identity of a confidential sources to be revealed. Disclosure of the 
source's identity not only will result in the Department breaching the 
promise of confidentiality made to the source but it will impair the 
Department's future ability to compile investigatory material for the 
purpose of determining suitability, eligibility, or qualifications for 
Federal civilian employment, Federal contracts, or access to classified 
information. Unless sources can be assured that a promise of 
confidentiality will be honored, they will be less likely to provide 
information considered essential to the Department in making the 
required determinations.
    (B) From (e)(1) because in the collection of information for 
investigatory purposes, it is not always possible to determine the 
relevance and necessity of particular information in the early stages of 
the investigation. In some cases, it is only after the information is 
evaluated in light of other information that its relevance and necessity 
becomes clear. Such information permits more informed decision-making

[[Page 978]]

by the Department when making required suitability, eligibility, and 
qualification determinations.
    (5) System identifier and name. GNSA 05, Equal Employment 
Opportunity Data.
    (i) Exemption. (A) Investigatory material compiled for law 
enforcement purposes, other than material within the scope of subsection 
5 U.S.C. 552a(j)(2), may be exempt pursuant to 5 U.S.C. 552a(k)(2). 
However, if an individual is denied any right, privilege, or benefit for 
which he would otherwise be entitled by Federal law or for which he 
would otherwise be eligible, as a result of the maintenance of the 
information, the individual will be provided access to the information 
exempt to the extent that disclosure would reveal the identity of a 
confidential source.

    Note 1 to paragraph (c)(5)(i)(A). When claimed, this exemption 
allows limited protection of investigative reports maintained in a 
system of records used in personnel or administrative actions.

    (B) Records maintained solely for statistical research or program 
evaluation purposes and which are not used to make decisions on the 
rights, benefits, or entitlement of an individual except for census 
records which may be disclosed under 13 U.S.C. 8, may be exempt pursuant 
to 5 U.S.C. 552a(k)(4).
    (C) All portions of this system of records which fall within the 
scope of 5 U.S.C. 552a(k)(2) and (k)(4) may be exempt from the 
provisions of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), 
(e)(4)(I) and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(2) and (k)(4).
    (iii) Reasons. (A) From subsection (c)(3) because the release of the 
disclosure accounting would place the subject of an investigation on 
notice that they are under investigation and provide them with 
significant information concerning the nature of the investigation, thus 
resulting in a serious impediment to law enforcement investigations.
    (B) From subsections (d) and (f) because providing access to records 
of a civil or administrative investigation and the right to contest the 
contents of those records and force changes to be made to the 
information contained therein would seriously interfere with and thwart 
the orderly and unbiased conduct of the investigation and impede case 
preparation. Providing access rights normally afforded under the Privacy 
Act would provide the subject with valuable information that would allow 
interference with or compromise of witnesses or render witnesses 
reluctant to cooperate; lead to suppression, alteration, or destruction 
of evidence; enable individuals to conceal their wrongdoing or mislead 
the course of the investigation; and result in the secreting of or other 
disposition of assets that would make them difficult or impossible to 
reach in order to satisfy any Government claim growing out of the 
investigation or proceeding.
    (C) From subsection (e)(1) because it is not always possible to 
detect the relevance or necessity of each piece of information in the 
early stages of an investigation. In some cases, it is only after the 
information is evaluated in light of other evidence that its relevance 
and necessity will be clear.
    (D) From subsections (e)(4)(G) and (H) because there is no necessity 
for such publication since the system of records will be exempt from the 
underlying duties to provide notification about and access to 
information in the system and to make amendments to and corrections of 
the information in the system.
    (E) From subsection (e)(4)(I) because to the extent that this 
provision is construed to require more detailed disclosure than the 
broad, generic information currently published in the system notice, an 
exemption from this provision is necessary to protect the 
confidentiality of sources of information and to protect privacy and 
physical safety of witnesses and informants. NSA will, nevertheless, 
continue to publish such a notice in broad generic terms, as is its 
current practice.
    (6) System identifier and name. GNSA 06, Health, Medical and Safety 
Files.
    (i) Exemption. (A) Investigatory material compiled solely for the 
purpose of determining suitability, eligibility, or qualifications for 
federal civilian employment, military service, federal contracts, or 
access to classified information may be exempt pursuant to 5 U.S.C. 
552a(k)(5), but only to the extent

[[Page 979]]

that such material would reveal the identity of a confidential source.
    (B) Testing or examination material used solely to determine 
individual qualifications for appointment or promotion in the Federal 
service may be exempt pursuant to 5 U.S.C. 552a(k)(6), if the disclosure 
would compromise the objectivity or fairness of the test or examination 
process.
    (C) All portions of this system of records which fall within the 
scope of 5 U.S.C. 552a(k)(5) and (k)(6) may be exempt from the 
provisions of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), 
(e)(4)(I) and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(5) and (k)(6).
    (iii) Reasons. (A) From subsection (c)(3) because the release of the 
disclosure accounting would place the subject of an investigation on 
notice that they are under investigation and provide them with 
significant information concerning the nature of the investigation, thus 
resulting in a serious impediment to law enforcement investigations.
    (B) From subsections (d) and (f) because providing access to records 
of a civil or administrative investigation and the right to contest the 
contents of those records and force changes to be made to the 
information contained therein would seriously interfere with and thwart 
the orderly and unbiased conduct of the investigation and impede case 
preparation. Providing access rights normally afforded under the Privacy 
Act would provide the subject with valuable information that would allow 
interference with or compromise of witnesses or render witnesses 
reluctant to cooperate; lead to suppression, alteration, or destruction 
of evidence; enable individuals to conceal their wrongdoing or mislead 
the course of the investigation; and result in the secreting of or other 
disposition of assets that would make them difficult or impossible to 
reach in order to satisfy any Government claim growing out of the 
investigation or proceeding.
    (C) From subsection (e)(1) because it is not always possible to 
detect the relevance or necessity of each piece of information in the 
early stages of an investigation. In some cases, it is only after the 
information is evaluated in light of other evidence that its relevance 
and necessity will be clear.
    (D) From subsections (e)(4)(G) and (H) because there is no necessity 
for such publication since the system of records will be exempt from the 
underlying duties to provide notification about and access to 
information in the system and to make amendments to and corrections of 
the information in the system.
    (E) From subsection (e)(4)(I) because to the extent that this 
provision is construed to require more detailed disclosure than the 
broad, generic information currently published in the system notice, an 
exemption from this provision is necessary to protect the 
confidentiality of sources of information and to protect privacy and 
physical safety of witnesses and informants. NSA will, nevertheless, 
continue to publish such a notice in broad generic terms, as is its 
current practice.
    (7) System identifier and name. GNSA 08, Payroll and Claims.
    (i) Exemption. (A) Investigatory material compiled for law 
enforcement purposes, other than material within the scope of subsection 
5 U.S.C. 552a(j)(2), may be exempt pursuant to 5 U.S.C. 552a(k)(2). 
However, if an individual is denied any right, privilege, or benefit for 
which he would otherwise be entitled by Federal law or for which he 
would otherwise be eligible, as a result of the maintenance of the 
information, the individual will be provided access to the information 
exempt to the extent that disclosure would reveal the identity of a 
confidential source.

    Note 1 to paragraph (c)(7)(i)(A). When claimed, this exemption 
allows limited protection of investigative reports maintained in a 
system of records used in personnel or administrative actions.

    (B) All portions of this system of records which fall within the 
scope of 5 U.S.C. 552a(k)(2) may be exempt from the provisions of 5 
U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I) and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(2).
    (iii) Reasons. (A) From subsection (c)(3) because the release of the 
disclosure accounting would place the subject of an investigation on 
notice that they are under investigation and provide them with 
significant information

[[Page 980]]

concerning the nature of the investigation, thus resulting in a serious 
impediment to law enforcement investigations.
    (B) From subsections (d) and (f) because providing access to records 
of a civil or administrative investigation and the right to contest the 
contents of those records and force changes to be made to the 
information contained therein would seriously interfere with and thwart 
the orderly and unbiased conduct of the investigation and impede case 
preparation. Providing access rights normally afforded under the Privacy 
Act would provide the subject with valuable information that would allow 
interference with or compromise of witnesses or render witnesses 
reluctant to cooperate; lead to suppression, alteration, or destruction 
of evidence; enable individuals to conceal their wrongdoing or mislead 
the course of the investigation; and result in the secreting of or other 
disposition of assets that would make them difficult or impossible to 
reach in order to satisfy any Government claim growing out of the 
investigation or proceeding.
    (C) From subsection (e)(1) because it is not always possible to 
detect the relevance or necessity of each piece of information in the 
early stages of an investigation. In some cases, it is only after the 
information is evaluated in light of other evidence that its relevance 
and necessity will be clear.
    (D) From subsections (e)(4)(G) and (H) because there is no necessity 
for such publication since the system of records will be exempt from the 
underlying duties to provide notification about and access to 
information in the system and to make amendments to and corrections of 
the information in the system.
    (E) From subsection (e)(4)(I) because to the extent that this 
provision is construed to require more detailed disclosure than the 
broad, generic information currently published in the system notice, an 
exemption from this provision is necessary to protect the 
confidentiality of sources of information and to protect privacy and 
physical safety of witnesses and informants. NSA will, nevertheless, 
continue to publish such a notice in broad generic terms, as is its 
current practice.
    (8) System identifier and name. GNSA 09, Personnel File.
    (i) Exemption. (A) Investigatory material compiled solely for the 
purpose of determining suitability, eligibility, or qualifications for 
federal civilian employment, military service, federal contracts, or 
access to classified information may be exempt pursuant to 5 U.S.C. 
552a(k)(5), but only to the extent that such material would reveal the 
identity of a confidential source.
    (B) Testing or examination material used solely to determine 
individual qualifications for appointment or promotion in the Federal 
service may be exempt pursuant to 5 U.S.C. 552a(k)(6), if the disclosure 
would compromise the objectivity or fairness of the test or examination 
process.
    (C) All portions of this system of records which fall within the 
scope of 5 U.S.C. 552a(k)(5) and (k)(6) may be exempt from the 
provisions of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), 
(e)(4)(I) and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(5) and (k)(6).
    (iii) Reasons. (A) From subsection (c)(3) because the release of the 
disclosure accounting would place the subject of an investigation on 
notice that they are under investigation and provide them with 
significant information concerning the nature of the investigation, thus 
resulting in a serious impediment to law enforcement investigations.
    (B) From subsections (d) and (f) because providing access to records 
of a civil or administrative investigation and the right to contest the 
contents of those records and force changes to be made to the 
information contained therein would seriously interfere with and thwart 
the orderly and unbiased conduct of the investigation and impede case 
preparation. Providing access rights normally afforded under the Privacy 
Act would provide the subject with valuable information that would allow 
interference with or compromise of witnesses or render witnesses 
reluctant to cooperate; lead to suppression, alteration, or destruction 
of evidence; enable individuals to conceal their wrongdoing or mislead 
the course of the investigation; and result in the secreting of or other 
disposition of assets

[[Page 981]]

that would make them difficult or impossible to reach in order to 
satisfy any Government claim growing out of the investigation or 
proceeding.
    (C) From subsection (e)(1) because it is not always possible to 
detect the relevance or necessity of each piece of information in the 
early stages of an investigation. In some cases, it is only after the 
information is evaluated in light of other evidence that its relevance 
and necessity will be clear.
    (D) From subsections (e)(4)(G) and (H) because there is no necessity 
for such publication since the system of records will be exempt from the 
underlying duties to provide notification about and access to 
information in the system and to make amendments to and corrections of 
the information in the system.
    (E) From subsection (e)(4)(I) because to the extent that this 
provision is construed to require more detailed disclosure than the 
broad, generic information currently published in the system notice, an 
exemption from this provision is necessary to protect the 
confidentiality of sources of information and to protect privacy and 
physical safety of witnesses and informants. NSA will, nevertheless, 
continue to publish such a notice in broad generic terms, as is its 
current practice.
    (9) System identifier and name. GNSA 10, Personnel Security File.
    (i) Exemption. (A) Investigatory material compiled for law 
enforcement purposes, other than material within the scope of subsection 
5 U.S.C. 552a(j)(2), may be exempt pursuant to 5 U.S.C. 552a(k)(2). 
However, if an individual is denied any right, privilege, or benefit for 
which he would otherwise be entitled by Federal law or for which he 
would otherwise be eligible, as a result of the maintenance of the 
information, the individual will be provided access to the information 
exempt to the extent that disclosure would reveal the identity of a 
confidential source.

    Note 1 to paragraph (c)(9)(i)(A). When claimed, this exemption 
allows limited protection of investigative reports maintained in a 
system of records used in personnel or administrative actions.

    (B) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (C) Testing or examination material used solely to determine 
individual qualifications for appointment or promotion in the Federal 
service may be exempt pursuant to 5 U.S.C. 552a(k)(6), if the disclosure 
would compromise the objectivity or fairness of the test or examination 
process.
    (D) All portions of this system of records which fall within the 
scope of 5 U.S.C. 552a(k)(2), (k)(5), and (k)(6) may be exempt from the 
provisions of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), 
(e)(4)(I) and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(2), (k)(5), and (k)(6).
    (iii) Reasons. (A) From subsection (c)(3) because the release of the 
disclosure accounting would place the subject of an investigation on 
notice that they are under investigation and provide them with 
significant information concerning the nature of the investigation, thus 
resulting in a serious impediment to law enforcement investigations.
    (B) From subsections (d) and (f) because providing access to records 
of a civil or administrative investigation and the right to contest the 
contents of those records and force changes to be made to the 
information contained therein would seriously interfere with and thwart 
the orderly and unbiased conduct of the investigation and impede case 
preparation. Providing access rights normally afforded under the Privacy 
Act would provide the subject with valuable information that would allow 
interference with or compromise of witnesses or render witnesses 
reluctant to cooperate; lead to suppression, alteration, or destruction 
of evidence; enable individuals to conceal their wrongdoing or mislead 
the course of the investigation; and result in the secreting of or other 
disposition of assets that would make them difficult or impossible to 
reach in order to satisfy any Government claim growing out of the 
investigation or proceeding.

[[Page 982]]

    (C) From subsection (e)(1) because it is not always possible to 
detect the relevance or necessity of each piece of information in the 
early stages of an investigation. In some cases, it is only after the 
information is evaluated in light of other evidence that its relevance 
and necessity will be clear.
    (D) From subsections (e)(4)(G) and (H) because there is no necessity 
for such publication since the system of records will be exempt from the 
underlying duties to provide notification about and access to 
information in the system and to make amendments to and corrections of 
the information in the system.
    (E) From subsection (e)(4)(I) because to the extent that this 
provision is construed to require more detailed disclosure than the 
broad, generic information currently published in the system notice, an 
exemption from this provision is necessary to protect the 
confidentiality of sources of information and to protect privacy and 
physical safety of witnesses and informants. NSA will, nevertheless, 
continue to publish such a notice in broad generic terms, as is its 
current practice.
    (10) System identifier and name. GNSA 12, Training.
    (i) Exemption. (A) Investigatory material compiled solely for the 
purpose of determining suitability, eligibility, or qualifications for 
federal civilian employment, military service, federal contracts, or 
access to classified information may be exempt pursuant to 5 U.S.C. 
552a(k)(5), but only to the extent that such material would reveal the 
identity of a confidential source.
    (B) Testing or examination material used solely to determine 
individual qualifications for appointment or promotion in the Federal 
service may be exempt pursuant to 5 U.S.C. 552a(k)(6), if the disclosure 
would compromise the objectivity or fairness of the test or examination 
process.
    (C) All portions of this system of records which fall within the 
scope of 5 U.S.C. 552a(k)(5) and (k)(6) may be exempt from the 
provisions of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), 
(e)(4)(I) and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(5), and (k)(6).
    (iii) Reasons. (A) From subsection (c)(3) because the release of the 
disclosure accounting would place the subject of an investigation on 
notice that they are under investigation and provide them with 
significant information concerning the nature of the investigation, thus 
resulting in a serious impediment to law enforcement investigations.
    (B) From subsections (d) and (f) because providing access to records 
of a civil or administrative investigation and the right to contest the 
contents of those records and force changes to be made to the 
information contained therein would seriously interfere with and thwart 
the orderly and unbiased conduct of the investigation and impede case 
preparation. Providing access rights normally afforded under the Privacy 
Act would provide the subject with valuable information that would allow 
interference with or compromise of witnesses or render witnesses 
reluctant to cooperate; lead to suppression, alteration, or destruction 
of evidence; enable individuals to conceal their wrongdoing or mislead 
the course of the investigation; and result in the secreting of or other 
disposition of assets that would make them difficult or impossible to 
reach in order to satisfy any Government claim growing out of the 
investigation or proceeding.
    (C) From subsection (e)(1) because it is not always possible to 
detect the relevance or necessity of each piece of information in the 
early stages of an investigation. In some cases, it is only after the 
information is evaluated in light of other evidence that its relevance 
and necessity will be clear.
    (D) From subsections (e)(4)(G) and (H) because there is no necessity 
for such publication since the system of records will be exempt from the 
underlying duties to provide notification about and access to 
information in the system and to make amendments to and corrections of 
the information in the system.
    (E) From subsection (e)(4)(I) because to the extent that this 
provision is construed to require more detailed disclosure than the 
broad, generic information currently published in the system

[[Page 983]]

notice, an exemption from this provision is necessary to protect the 
confidentiality of sources of information and to protect privacy and 
physical safety of witnesses and informants. NSA will, nevertheless, 
continue to publish such a notice in broad generic terms, as is its 
current practice.
    (11) System identifier and name. GNSA 29 (General Exemption), NSA/
CSS Office of Inspector General Investigations and Complaints.
    (i) Exemption. Investigatory material compiled for law enforcement 
purposes, other than material within the scope of subsection 5 U.S.C. 
552a(j)(2), may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if 
any individual is denied any right, privilege, or benefit for which he 
would otherwise be entitled by Federal law or for which he would 
otherwise be eligible, as a result of the maintenance of the 
information, the individual will be provided access to the information 
except to the extent that disclosure would reveal the identity of a 
confidential source.

    Note 1 to paragraph (c)(11)(i). When claimed, this exemption allows 
limited protection of investigative reports maintained in a system of 
records used in personnel or administrative actions. Investigatory 
material compiled solely for the purpose of determining suitability, 
eligibility, or qualifications for Federal civilian employment, military 
service, federal contracts, or access to classified information may be 
exempt pursuant to 5 U.S.C. 552a(k)(5), but only to the extent that such 
material would reveal the identity of a confidential source.

    (ii) Authority. 5 U.S.C. 552a(k)(2) through (k)(5).
    (iii) Reasons. (A) From subsection (c)(3) and (d) when access to 
accounting disclosures and access to or amendment of records would cause 
the identity of a confidential source to be revealed. Disclosure of the 
source's identity not only will result in the Department breaching the 
promise of confidentiality made to the source but it will impair the 
Department's future ability to compile investigatory material for the 
purpose of determining suitability, eligibility, or qualifications for 
Federal civilian employment, Federal contracts, or access to classified 
information. Unless sources can be assured that a promise of 
confidentiality will be honored, they will be less likely to provide 
information considered essential to the Department in making the 
required determinations.
    (B) From (e)(1) because in the collection of information for 
investigatory purposes, it is not always possible to determine the 
relevance and necessity of particular information in the early stages of 
the investigation. In some cases, it is only after the information is 
evaluated in light of other information that its relevance and necessity 
becomes clear. Such information permits more informed decision-making by 
the Department when making required suitability, eligibility, and 
qualification determinations
    (12) System identifier and name. GNSA 14, Library Patron File 
Control System.
    (i) Exemption. (A) Records maintained solely for statistical 
research or program evaluation purposes and which are not used to make 
decisions on the rights, benefits, or entitlement of an individual 
except for census records which may be disclosed under 13 U.S.C. 8, may 
be exempt pursuant to 5 U.S.C. 552a(k)(4).
    (B) All portions of this system of records which fall within the 
scope of 5 U.S.C. 552a(k)(4) may be exempt from the provisions of 5 
U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I) and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(4).
    (iii) Reasons. (A) From subsection (c)(3) because the release of the 
disclosure accounting would place the subject of an investigation on 
notice that they are under investigation and provide them with 
significant information concerning the nature of the investigation, thus 
resulting in a serious impediment to law enforcement investigations.
    (B) From subsections (d) and (f) because providing access to records 
of a civil or administrative investigation and the right to contest the 
contents of those records and force changes to be made to the 
information contained therein would seriously interfere with and thwart 
the orderly and unbiased conduct of the investigation and impede case 
preparation. Providing access rights normally afforded under the Privacy 
Act would provide the subject with valuable information that would

[[Page 984]]

allow interference with or compromise of witnesses or render witnesses 
reluctant to cooperate; lead to suppression, alteration, or destruction 
of evidence; enable individuals to conceal their wrongdoing or mislead 
the course of the investigation; and result in the secreting of or other 
disposition of assets that would make them difficult or impossible to 
reach in order to satisfy any Government claim growing out of the 
investigation or proceeding.
    (C) From subsection (e)(1) because it is not always possible to 
detect the relevance or necessity of each piece of information in the 
early stages of an investigation. In some cases, it is only after the 
information is evaluated in light of other evidence that its relevance 
and necessity will be clear.
    (D) From subsections (e)(4)(G) and (H) because there is no necessity 
for such publication since the system of records will be exempt from the 
underlying duties to provide notification about and access to 
information in the system and to make amendments to and corrections of 
the information in the system.
    (E) From subsection (e)(4)(I) because to the extent that this 
provision is construed to require more detailed disclosure than the 
broad, generic information currently published in the system notice, an 
exemption from this provision is necessary to protect the 
confidentiality of sources of information and to protect privacy and 
physical safety of witnesses and informants. NSA will, nevertheless, 
continue to publish such a notice in broad generic terms, as is its 
current practice.
    (13) System identifier and name. GNSA 15, Computer Users Control 
System.
    (i) Exemption. (A) Investigatory material compiled for law 
enforcement purposes, other than material within the scope of subsection 
5 U.S.C. 552a(j)(2), may be exempt pursuant to 5 U.S.C. 552a(k)(2). 
However, if an individual is denied any right, privilege, or benefit for 
which he would otherwise be entitled by Federal law or for which he 
would otherwise be eligible, as a result of the maintenance of the 
information, the individual will be provided access to the information 
exempt to the extent that disclosure would reveal the identity of a 
confidential source.

    Note 1 to paragraph (c)(13)(i)(A). When claimed, this exemption 
allows limited protection of investigative reports maintained in a 
system of records used in personnel or administrative actions.

    (B) All portions of this system of records which fall within the 
scope of 5 U.S.C. 552a(k)(2) may be exempt from the provisions of 5 
U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I) and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(2).
    (iii) Reasons. (A) From subsection (c)(3) because the release of the 
disclosure accounting would place the subject of an investigation on 
notice that they are under investigation and provide them with 
significant information concerning the nature of the investigation, thus 
resulting in a serious impediment to law enforcement investigations.
    (B) From subsections (d) and (f) because providing access to records 
of a civil or administrative investigation and the right to contest the 
contents of those records and force changes to be made to the 
information contained therein would seriously interfere with and thwart 
the orderly and unbiased conduct of the investigation and impede case 
preparation. Providing access rights normally afforded under the Privacy 
Act would provide the subject with valuable information that would allow 
interference with or compromise of witnesses or render witnesses 
reluctant to cooperate; lead to suppression, alteration, or destruction 
of evidence; enable individuals to conceal their wrongdoing or mislead 
the course of the investigation; and result in the secreting of or other 
disposition of assets that would make them difficult or impossible to 
reach in order to satisfy any Government claim growing out of the 
investigation or proceeding.
    (C) From subsection (e)(1) because it is not always possible to 
detect the relevance or necessity of each piece of information in the 
early stages of an investigation. In some cases, it is only after the 
information is evaluated in light of other evidence that its relevance 
and necessity will be clear.
    (D) From subsections (e)(4)(G) and (H) because there is no necessity 
for such publication since the system of

[[Page 985]]

records will be exempt from the underlying duties to provide 
notification about and access to information in the system and to make 
amendments to and corrections of the information in the system.
    (E) From subsection (e)(4)(I) because to the extent that this 
provision is construed to require more detailed disclosure than the 
broad, generic information currently published in the system notice, an 
exemption from this provision is necessary to protect the 
confidentiality of sources of information and to protect privacy and 
physical safety of witnesses and informants. NSA will, nevertheless, 
continue to publish such a notice in broad generic terms, as is its 
current practice.
    (14) System identifier and name. GNSA 17, Employee Assistance 
Service (EAS) Case Record System.
    (i) Exemption. (A) Investigatory material compiled for law 
enforcement purposes, other than material within the scope of subsection 
5 U.S.C. 552a(j)(2), may be exempt pursuant to 5 U.S.C. 552a(k)(2). 
However, if an individual is denied any right, privilege, or benefit for 
which he would otherwise be entitled by Federal law or for which he 
would otherwise be eligible, as a result of the maintenance of the 
information, the individual will be provided access to the information 
exempt to the extent that disclosure would reveal the identity of a 
confidential source.

    Note 1 to paragraph (c)(14)(i)(A). When claimed, this exemption 
allows limited protection of investigative reports maintained in a 
system of records used in personnel or administrative actions.

    (B) Records maintained solely for statistical research or program 
evaluation purposes and which are not used to make decisions on the 
rights, benefits, or entitlement of an individual except for census 
records which may be disclosed under 13 U.S.C. 8, may be exempt pursuant 
to 5 U.S.C. 552a(k)(4).
    (C) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (D) All portions of this system of records which fall within the 
scope of 5 U.S.C. 552a(k)(2), (k)(4), and (k)(5) may be exempt from the 
provisions of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), 
(e)(4)(I) and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(2), (k)(4), and (k)(5).
    (iii) Reasons. (A) From subsection (c)(3) because the release of the 
disclosure accounting would place the subject of an investigation on 
notice that they are under investigation and provide them with 
significant information concerning the nature of the investigation, thus 
resulting in a serious impediment to law enforcement investigations.
    (B) From subsections (d) and (f) because providing access to records 
of a civil or administrative investigation and the right to contest the 
contents of those records and force changes to be made to the 
information contained therein would seriously interfere with and thwart 
the orderly and unbiased conduct of the investigation and impede case 
preparation. Providing access rights normally afforded under the Privacy 
Act would provide the subject with valuable information that would allow 
interference with or compromise of witnesses or render witnesses 
reluctant to cooperate; lead to suppression, alteration, or destruction 
of evidence; enable individuals to conceal their wrongdoing or mislead 
the course of the investigation; and result in the secreting of or other 
disposition of assets that would make them difficult or impossible to 
reach in order to satisfy any Government claim growing out of the 
investigation or proceeding.
    (C) From subsection (e)(1) because it is not always possible to 
detect the relevance or necessity of each piece of information in the 
early stages of an investigation. In some cases, it is only after the 
information is evaluated in light of other evidence that its relevance 
and necessity will be clear.
    (D) From subsections (e)(4)(G) and (H) because there is no necessity 
for such publication since the system of records will be exempt from the 
underlying duties to provide notification about and access to 
information in the

[[Page 986]]

system and to make amendments to and corrections of the information in 
the system.
    (E) From subsection (e)(4)(I) because to the extent that this 
provision is construed to require more detailed disclosure than the 
broad, generic information currently published in the system notice, an 
exemption from this provision is necessary to protect the 
confidentiality of sources of information and to protect privacy and 
physical safety of witnesses and informants. NSA will, nevertheless, 
continue to publish such a notice in broad generic terms, as is its 
current practice.
    (15) System identifier and name. GNSA 18, Operations Files.
    (i) Exemption. (A) Investigatory material compiled for law 
enforcement purposes, other than material within the scope of subsection 
5 U.S.C. 552a(j)(2), may be exempt pursuant to 5 U.S.C. 552a(k)(2). 
However, if an individual is denied any right, privilege, or benefit for 
which he would otherwise be entitled by Federal law or for which he 
would otherwise be eligible, as a result of the maintenance of the 
information, the individual will be provided access to the information 
exempt to the extent that disclosure would reveal the identity of a 
confidential source.

    Note 1 to paragraph (c)(15)(i)(A). When claimed, this exemption 
allows limited protection of investigative reports maintained in a 
system of records used in personnel or administrative actions.

    (B) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (C) All portions of this system of records which fall within the 
scope of 5 U.S.C. 552a(k)(2) and (k)(5) may be exempt from the 
provisions of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), 
(e)(4)(I) and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(2) and (k)(5).
    (iii) Reasons. (A) From subsection (c)(3) because the release of the 
disclosure accounting would place the subject of an investigation on 
notice that they are under investigation and provide them with 
significant information concerning the nature of the investigation, thus 
resulting in a serious impediment to law enforcement investigations.
    (B) From subsections (d) and (f) because providing access to records 
of a civil or administrative investigation and the right to contest the 
contents of those records and force changes to be made to the 
information contained therein would seriously interfere with and thwart 
the orderly and unbiased conduct of the investigation and impede case 
preparation. Providing access rights normally afforded under the Privacy 
Act would provide the subject with valuable information that would allow 
interference with or compromise of witnesses or render witnesses 
reluctant to cooperate; lead to suppression, alteration, or destruction 
of evidence; enable individuals to conceal their wrongdoing or mislead 
the course of the investigation; and result in the secreting of or other 
disposition of assets that would make them difficult or impossible to 
reach in order to satisfy any Government claim growing out of the 
investigation or proceeding.
    (C) From subsection (e)(1) because it is not always possible to 
detect the relevance or necessity of each piece of information in the 
early stages of an investigation. In some cases, it is only after the 
information is evaluated in light of other evidence that its relevance 
and necessity will be clear.
    (D) From subsections (e)(4)(G) and (H) because there is no necessity 
for such publication since the system of records will be exempt from the 
underlying duties to provide notification about and access to 
information in the system and to make amendments and corrections to the 
information in the system.
    (E) From subsection (e)(4)(I) because to the extent that this 
provision is construed to require more detailed disclosure than the 
broad, generic information currently published in the system notice, an 
exemption from this provision is necessary to protect the 
confidentiality of sources of information and to protect privacy and 
physical safety of witnesses and informants.

[[Page 987]]

NSA will, nevertheless, continue to publish such a notice in broad 
generic terms, as is its current practice.
    (16) System identifier and name. GNSA 20, NSA Police Operational 
Files.
    (i) Exemption. (A) Investigatory material compiled for law 
enforcement purposes, other than material within the scope of subsection 
5 U.S.C. 552a(j)(2), may be exempt pursuant to 5 U.S.C. 552a(k)(2). 
However, if an individual is denied any right, privilege, or benefit for 
which he would otherwise be entitled by Federal law or for which he 
would otherwise be eligible, as a result of the maintenance of the 
information, the individual will be provided access to the information 
exempt to the extent that disclosure would reveal the identity of a 
confidential source.

    Note 1 to paragraph (c)(16)(i)(A). When claimed, this exemption 
allows limited protection of investigative reports maintained in a 
system of records used in personnel or administrative actions.

    (B) Records maintained solely for statistical research or program 
evaluation purposes and which are not used to make decisions on the 
rights, benefits, or entitlement of an individual except for census 
records which may be disclosed under 13 U.S.C. 8, may be exempt pursuant 
to 5 U.S.C. 552a(k)(4).
    (C) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (D) All portions of this system of records which fall within the 
scope of 5 U.S.C. 552a(k)(2), (k)(4), and (k)(5) may be exempt from the 
provisions of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), 
(e)(4)(I) and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(2), (k)(4), and (k)(5).
    (iii) Reasons. (A) From subsection (c)(3) because the release of the 
disclosure accounting would place the subject of an investigation on 
notice that they are under investigation and provide them with 
significant information concerning the nature of the investigation, thus 
resulting in a serious impediment to law enforcement investigations.
    (B) From subsections (d) and (f) because providing access to records 
of a civil or administrative investigation and the right to contest the 
contents of those records and force changes to be made to the 
information contained therein would seriously interfere with and thwart 
the orderly and unbiased conduct of the investigation and impede case 
preparation. Providing access rights normally afforded under the Privacy 
Act would provide the subject with valuable information that would allow 
interference with or compromise of witnesses or render witnesses 
reluctant to cooperate; lead to suppression, alteration, or destruction 
of evidence; enable individuals to conceal their wrongdoing or mislead 
the course of the investigation; and result in the secreting of or other 
disposition of assets that would make them difficult or impossible to 
reach in order to satisfy any Government claim growing out of the 
investigation or proceeding.
    (C) From subsection (e)(1) because it is not always possible to 
detect the relevance or necessity of each piece of information in the 
early stages of an investigation. In some cases, it is only after the 
information is evaluated in light of other evidence that its relevance 
and necessity will be clear.
    (D) From subsections (e)(4)(G) and (H) because this system of 
records is compiled for investigative purposes and is exempt from the 
access provisions of subsections (d) and (f).
    (E) From subsection (e)(4)(I) because to the extent that this 
provision is construed to require more detailed disclosure than the 
broad, generic information currently published in the system notice, an 
exemption from this provision is necessary to protect the 
confidentiality of sources of information and to protect privacy and 
physical safety of witnesses and informants.
    (17) [Reserved]
    (18) System identifier and name. GNSA 25, NSA/CSS Operations Travel 
Records.
    (i) Exemption. (A) Investigatory material compiled for law 
enforcement purposes, other than material within the scope of subsection 
5 U.S.C. 552a(j)(2), may be exempt pursuant to 5 U.S.C.

[[Page 988]]

552a(k)(2). However, if an individual is denied any right, privilege, or 
benefit for which he would otherwise be entitled by Federal law or for 
which he would otherwise be eligible, as a result of the maintenance of 
the information, the individual will be provided access to the 
information exempt to the extent that disclosure would reveal the 
identity of a confidential source.

    Note 1 to paragraph (c)(18)(i)(A). When claimed, this exemption 
allows limited protection of investigative reports maintained in a 
system of records used in personnel or administrative actions.

    (B) Records maintained solely for statistical research or program 
evaluation purposes and which are not used to make decisions on the 
rights, benefits, or entitlement of an individual except for census 
records which may be disclosed under 13 U.S.C. 8, may be exempt pursuant 
to 5 U.S.C. 552a(k)(4).
    (ii) Authority. 5 U.S.C. 552a(k)(2) (k)(4).
    (iii) Reasons. (A) From subsection (c)(3) because the release of the 
disclosure accounting would place the subject of an investigation on 
notice that they are under investigation and provide them with 
significant information concerning the nature of the investigation, thus 
resulting in a serious impediment to law enforcement investigations.
    (B) From subsections (d) and (f) because providing access to records 
of a civil or administrative investigation and the right to contest the 
contents of those records and force changes to be made to the 
information contained therein would seriously interfere with and thwart 
the orderly and unbiased conduct of the investigation and impede case 
preparation. Providing access rights normally afforded under the Privacy 
Act would provide the subject with valuable information that would allow 
interference with or compromise of witnesses or render witnesses 
reluctant to cooperate; lead to suppression, alteration, or destruction 
of evidence; enable individuals to conceal their wrongdoing or mislead 
the course of the investigation; and result in the secreting of or other 
disposition of assets that would make them difficult or impossible to 
reach in order to satisfy any Government claim growing out of the 
investigation or proceeding.
    (C) From subsection (e)(1) because it is not always possible to 
detect the relevance or necessity of each piece of information in the 
early stages of an investigation. In some cases, it is only after the 
information is evaluated in light of other evidence that its relevance 
and necessity will be clear.
    (D) From subsections (e)(4)(G) and (H) because this system of 
records is compiled for investigative purposes and is exempt from the 
access provisions of subsections (d) and (f).
    (E) From subsection (e)(4)(I) because to the extent that this 
provision is construed to require more detailed disclosure than the 
broad, generic information currently published in the system notice, an 
exemption from this provision is necessary to protect the 
confidentiality of sources of information and to protect privacy and 
physical safety of witnesses and informants.
    (19) System identifier and name. GNSA 26, NSA/CSS Accounts 
Receivable, Indebtedness and Claims.
    (i) Exemption. (A) Investigatory material compiled for law 
enforcement purposes, other than material within the scope of subsection 
5 U.S.C. 552a(j)(2), may be exempt pursuant to 5 U.S.C. 552a(k)(2). 
However, if an individual is denied any right, privilege, or benefit for 
which he would otherwise be entitled by Federal law or for which he 
would otherwise be eligible, as a result of the maintenance of the 
information, the individual will be provided access to the information 
exempt to the extent that disclosure would reveal the identity of a 
confidential source.

    Note 1 to paragraph (c)(19)(i)(A). When claimed, this exemption 
allows limited protection of investigative reports maintained in a 
system of records used in personnel or administrative actions.

    (B) Records maintained solely for statistical research or program 
evaluation purposes and which are not used to make decisions on the 
rights, benefits, or entitlement of an individual except for census 
records which may be disclosed under 13 U.S.C. 8, may be exempt pursuant 
to 5 U.S.C. 552a(k)(4).
    (ii) Authority. 5 U.S.C. 552a(k)(2) (k)(4).

[[Page 989]]

    (iii) Reasons. (A) From subsection (c)(3) because the release of the 
disclosure accounting would place the subject of an investigation on 
notice that they are under investigation and provide them with 
significant information concerning the nature of the investigation, thus 
resulting in a serious impediment to law enforcement investigations.
    (B) From subsections (d) and (f) because providing access to records 
of a civil or administrative investigation and the right to contest the 
contents of those records and force changes to be made to the 
information contained therein would seriously interfere with and thwart 
the orderly and unbiased conduct of the investigation and impede case 
preparation. Providing access rights normally afforded under the Privacy 
Act would provide the subject with valuable information that would allow 
interference with or compromise of witnesses or render witnesses 
reluctant to cooperate; lead to suppression, alteration, or destruction 
of evidence; enable individuals to conceal their wrongdoing or mislead 
the course of the investigation; and result in the secreting of or other 
disposition of assets that would make them difficult or impossible to 
reach in order to satisfy any Government claim growing out of the 
investigation or proceeding.
    (C) From subsection (e)(1) because it is not always possible to 
detect the relevance or necessity of each piece of information in the 
early stages of an investigation. In some cases, it is only after the 
information is evaluated in light of other evidence that its relevance 
and necessity will be clear.
    (D) From subsections (e)(4)(G) and (H) because this system of 
records is compiled for investigative purposes and is exempt from the 
access provisions of subsections (d) and (f).
    (E) From subsection (e)(4)(I) because to the extent that this 
provision is construed to require more detailed disclosure than the 
broad, generic information currently published in the system notice, an 
exemption from this provision is necessary to protect the 
confidentiality of sources of information and to protect privacy and 
physical safety of witnesses and informants.
    (20) System identifier and name. GNSA 28 (General Exemption), 
Freedom of Information Act, Privacy Act and Mandatory Declassification 
Review Records.
    (i) Exemption. During the processing of letters and other 
correspondence to the National Security Agency/Central Security Service, 
exempt materials from other systems of records may in turn become part 
of the case record in this system. To the extent that copies of exempt 
records from those ``other'' systems of records are entered into this 
system, the National Security Agency/Central Security Service hereby 
claims the same exemptions for the records from those ``other'' systems 
that are entered into this system, as claimed for the original primary 
system of which they are a part.
    (ii) Authority. 5 U.S.C. 552a(k)(2) through (k)(7).
    (iii) Reasons. During the course of a FOIA/Privacy Act and/or MDR 
action, exempt materials from other system of records may become part of 
the case records in this system of records. To the extent that copies of 
exempt records from those other systems of records are entered into 
these case records, NSA/CSS hereby claims the same exemptions for the 
records as claimed in the original primary system of records of which 
they are a part. The exemption rule for the original records will 
identify the specific reasons why the records are exempt from specific 
provisions of 5 U.S.C. 552a.



Sec. 310.28  Office of the Inspector General (OIG) exemptions.

    (a) Exemption for classified records. Any record in a system of 
records maintained by the Office of the Inspector General which falls 
within the provisions of 5 U.S.C. 552a(k)(1) may be exempt from the 
following subsections of 5 U.S.C. 552a: (c)(3), (d), (e)(1), (e)(4)(G) 
through (I) and (f) to the extent that a record system contains any 
record properly classified under Executive Order 12958 and that the 
record is required to be kept classified in the interest of national 
defense or foreign policy. This specific exemption rule, claimed by the 
Inspector General under

[[Page 990]]

authority of 5 U.S.C. 552a(k)(1), is applicable to all systems of 
records maintained, including those individually designated for an 
exemption herein as well as those not otherwise specifically designated 
for an exemption, which may contain isolated items of properly 
classified information.
    (b) The Inspector General of the Department of Defense claims an 
exemption for the following record systems under the provisions of 5 
U.S.C. 552a(j) and (k)(1)-(k)(7) from certain indicated subsections of 
the Privacy Act of 1974. The exemptions may be invoked and exercised on 
a case-by-case basis by the Deputy Inspector General for Investigations 
or the Director, Communications and Congressional Liaison Office, and 
the Chief, Freedom of Information/Privacy Act Office, which serve as the 
Systems Program Managers. Exemptions will be exercised only when 
necessary for a specific, significant and legitimate reason connected 
with the purpose of the records system.
    (c) No personal records releasable under the provisions of The 
Freedom of Information Act (5 U.S.C. 552) will be withheld from the 
subject individual based on these exemptions.
    (1) System identifier and name. CIG-04, Case Control System.
    (i) Exemption. Any portion of this system which falls within the 
provisions of 5 U.S.C. 552a(j)(2) may be exempt from the following 
subsections of 5 U.S.C. 552a: (c)(3), (c)(4), (d), (e)(1), (e)(2), 
(e)(3), (e)(4)(G), (H), (I), (e)(5), (e)(8), (f), and (g).
    (ii) Authority. 5 U.S.C. 552a(j)(2).
    (iii) Reasons. (A) From subsection (c)(3) because the release of 
accounting of disclosure would inform a subject that he or she is under 
investigation. This information would provide considerable advantage to 
the subject in providing him or her with knowledge concerning the nature 
of the investigation and the coordinated investigative efforts and 
techniques employed by the cooperating agencies. This would greatly 
impede OIG's criminal law enforcement.
    (B) From subsection (c)(4) and (d), because notification would alert 
a subject to the fact that an open investigation on that individual is 
taking place, and might weaken the on-going investigation, reveal 
investigatory techniques, and place confidential informants in jeopardy.
    (C) From subsection (e)(1) because the nature of the criminal and/or 
civil investigative function creates unique problems in prescribing a 
specific parameter in a particular case with respect to what information 
is relevant or necessary. Also, due to OIG's close liaison and working 
relationships with other Federal, state, local and foreign country law 
enforcement agencies, information may be received which may relate to a 
case under the investigative jurisdiction of another agency. The 
maintenance of this information may be necessary to provide leads for 
appropriate law enforcement purposes and to establish patterns of 
activity which may relate to the jurisdiction of other cooperating 
agencies.
    (D) From subsection (e)(2) because collecting information to the 
fullest extent possible directly from the subject individual may or may 
not be practical in a criminal and/or civil investigation.
    (E) From subsection (e)(3) because supplying an individual with a 
form containing a Privacy Act Statement would tend to inhibit 
cooperation by many individuals involved in a criminal and/or civil 
investigation. The effect would be somewhat adverse to established 
investigative methods and techniques.
    (F) From subsection (e)(4) (G) through (I) because this system of 
records is exempt from the access provisions of subsection (d).
    (G) From subsection (e)(5) because the requirement that records be 
maintained with attention to accuracy, relevance, timeliness, and 
completeness would unfairly hamper the investigative process. It is the 
nature of law enforcement for investigations to uncover the commission 
of illegal acts at diverse stages. It is frequently impossible to 
determine initially what information is accurate, relevant, timely, and 
least of all complete. With the passage of time, seemingly irrelevant or 
untimely information may acquire new significance as further 
investigation brings new details to light.

[[Page 991]]

    (H) From subsection (e)(8) because the notice requirements of this 
provision could present a serious impediment to law enforcement by 
revealing investigative techniques, procedures, and existence of 
confidential investigations.
    (I) From subsection (f) because the agency's rules are inapplicable 
to those portions of the system that are exempt and would place the 
burden on the agency of either confirming or denying the existence of a 
record pertaining to a requesting individual might in itself provide an 
answer to that individual relating to an on-going investigation. The 
conduct of a successful investigation leading to the indictment of a 
criminal offender precludes the applicability of established agency 
rules relating to verification of record, disclosure of the record to 
that individual, and record amendment procedures for this record system.
    (J) For comparability with the exemption claimed from subsection 
(f), the civil remedies provisions of subsection (g) must be suspended 
for this record system. Because of the nature of criminal 
investigations, standards of accuracy, relevance, timeliness, and 
completeness cannot apply to this record system. Information gathered in 
an investigation is often fragmentary and leads relating to an 
individual in the context of one investigation may instead pertain to a 
second investigation.
    (2) System identifier and name. CIG-06, Investigative Files.
    (i) Exemption. Any portion of this system which falls within the 
provisions of 5 U.S.C. 552a(j)(2) may be exempt from the following 
subsections of 5 U.S.C. 552a (c)(3), (c)(4), (d), (e)(1), (e)(2), 
(e)(3), (e)(4) (G), (H), (I), (e)(5), (e)(8), (f), and (g).
    (ii) Authority. 5 U.S.C. 552a(j)(2).
    (iii) Reasons. (A) From subsection (c)(3) because the release of 
accounting of disclosure would inform a subject that he or she is under 
investigation. This information would provide considerable advantage to 
the subject in providing him or her with knowledge concerning the nature 
of the investigation and the coordinated investigative efforts and 
techniques employed by the cooperating agencies. This would greatly 
impede OIG's criminal law enforcement.
    (B) From subsection (c)(4) and (d), because notification would alert 
a subject to the fact that an open investigation on that individual is 
taking place, and might weaken the on-going investigation, reveal 
investigatory techniques, and place confidential informants in jeopardy.
    (C) From subsection (e)(1) because the nature of the criminal and/or 
civil investigative function creates unique problems in prescribing a 
specific parameter in a particular case with respect to what information 
is relevant or necessary. Also, due to OIG's close liaison and working 
relationships with other Federal, state, local and foreign country law 
enforcement agencies, information may be received which may relate to a 
case under the investigative jurisdiction of another agency. The 
maintenance of this information may be necessary to provide leads for 
appropriate law enforcement purposes and to establish patterns of 
activity which may relate to the jurisdiction of other cooperating 
agencies.
    (D) From subsection (e)(2) because collecting information to the 
fullest extent possible directly from the subject individual may or may 
not be practical in a criminal and/or civil investigation.
    (E) From subsection (e)(3) because supplying an individual with a 
form containing a Privacy Act Statement would tend to inhibit 
cooperation by many individuals involved in a criminal and/or civil 
investigation. The effect would be somewhat adverse to established 
investigative methods and techniques.
    (F) From subsection (e)(4) (G) through (I) because this system of 
records is exempt from the access provisions of subsection (d).
    (G) From subsection (e)(5) because the requirement that records be 
maintained with attention to accuracy, relevance, timeliness, and 
completeness would unfairly hamper the investigative process. It is the 
nature of law enforcement for investigations to uncover the commission 
of illegal acts at diverse stages. It is frequently impossible to 
determine initially what information is accurate, relevant, timely,

[[Page 992]]

and least of all complete. With the passage of time, seemingly 
irrelevant or untimely information may acquire new significance as 
further investigation brings new details to light.
    (H) From subsection (e)(8) because the notice requirements of this 
provision could present a serious impediment to law enforcement by 
revealing investigative techniques, procedures, and existence of 
confidential investigations.
    (I) From subsection (f) because the agency's rules are inapplicable 
to those portions of the system that are exempt and would place the 
burden on the agency of either confirming or denying the existence of a 
record pertaining to a requesting individual might in itself provide an 
answer to that individual relating to an on-going investigation. The 
conduct of a successful investigation leading to the indictment of a 
criminal offender precludes the applicability of established agency 
rules relating to verification of record, disclosure of the record to 
that individual, and record amendment procedures for this record system.
    (J) For comparability with the exemption claimed from subsection 
(f), the civil remedies provisions of subsection (g) must be suspended 
for this record system. Because of the nature of criminal 
investigations, standards of accuracy, relevance, timeliness, and 
completeness cannot apply to this record system. Information gathered in 
an investigation is often fragmentary and leads relating to an 
individual in the context of one investigation may instead pertain to a 
second investigation.
    (3) System identifier and name. CIG-15, Departmental Inquiries Case 
System.
    (i) Exemption. Investigatory material compiled for law enforcement 
purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an 
individual is denied any right, privilege, or benefit for which he would 
otherwise be entitled by Federal law or for which he would otherwise be 
eligible, as a result of the maintenance of such information, the 
individual will be provided access to such information except to the 
extent that disclosure would reveal the identity of a confidential 
source. Any portions of this system which fall under the provisions of 5 
U.S.C. 552a(k)(2) may be exempt from the following subsection of 5 
U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H), and (I).
    (ii) Authority. 5 U.S.C. 552a(k)(2).
    (iii) Reasons. (A) From subsection (c)(3) because disclosures from 
this system could interfere with the just, thorough and timely 
resolution of the compliant or inquiry, and possibly enable individuals 
to conceal their wrongdoing or mislead the course of the investigation 
by concealing, destroying or fabricating evidence or documents.
    (B) From subsection (d) because disclosures from this system could 
interfere with the just thorough and timely resolution of the compliant 
or inquiry, and possibly enable individuals to conceal their wrongdoing 
or mislead the course of the investigation by concealing, destroying or 
fabricating evidence or documents. Disclosures could also subject 
sources and witnesses to harassment or intimidation which jeopardize the 
safety and well-being of themselves and their families.
    (C) From subsection (e)(1) because the nature of the investigation 
function creates unique problems in prescribing specific parameters in a 
particular case as to what information is relevant or necessary. Due to 
close liaison and working relationships with other Federal, state, local 
and foreign country law enforcement agencies, information may be 
received which may relate to a case under the investigative jurisdiction 
of another government agency. It is necessary to maintain this 
information in order to provide leads for appropriate law enforcement 
purposes and to establish patterns of activity which may relate to the 
jurisdiction of other cooperating agencies.
    (D) From subsection (e)(4) (G) through (H) because this system of 
records is exempt from the access provisions of subsection (d).
    (E) From subsection (f) because the agency's rules are inapplicable 
to those portions of the system that are exempt and would place the 
burden on the agency of either confirming or denying the existence of a 
record pertaining to a requesting individual might in itself provide an 
answer to that individual relating to an on-going investigation.

[[Page 993]]

The conduct of a successful investigation leading to the indictment of a 
criminal offender precludes the applicability of established agency 
rules relating to verification of record, disclosure of the record to 
that individual, and record amendment procedures for this record system.
    (4) System identifier and name. CIG-16, DOD Hotline Program Case 
Files.
    (i) Exemption. Any portions of this system of records which fall 
under the provisions of 5 U.S.C. 552a(k)(2) and (k)(5) may be exempt 
from the following subsections of 5 U.S.C. 552a: (c)(3), (d), (e)(1), 
(e)(4)(G), (H), and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(2) and (k)(5).
    (iii) Reasons. (A) From subsection (c)(3) because disclosures from 
this system could interfere with the just, thorough and timely 
resolution of the complaint or inquiry, and possibly enable individuals 
to conceal their wrongdoing or mislead the course of the investigation 
by concealing, destroying or fabricating evidence or documents.
    (B) From subsection (d) because disclosures from this system could 
interfere with the just, thorough and timely resolution of the complaint 
or inquiry, and possibly enable individuals to conceal their wrongdoing 
or mislead the course of the investigation by concealing, destroying or 
fabricating evidence or documents. Disclosures could also subject 
sources and witnesses to harassment or intimidation which jeopardize the 
safety and well-being of themselves and their families.
    (C) From subsection (e)(1) because the nature of the investigation 
functions creates unique problems in prescribing specific parameters in 
a particular case as to what information is relevant or necessary. Due 
to close liaison and working relationships with other Federal, state, 
local, and foreign country law enforcement agencies, information may be 
received which may relate to a case under the investigative jurisdiction 
of another government agency. It is necessary to maintain this 
information in order to provide leads for appropriate law enforcement 
purposes and to establish patterns of activity which may relate to the 
jurisdiction of other cooperating agencies.
    (D) From subsection (e)(4)(G) through (H) because this system of 
records is exempt from the access provisions of subsection (d).
    (E) From subsection (f) because the agency's rules are inapplicable 
to those portions of the system that are exempt and would place the 
burden on the agency of either confirming or denying the existence of a 
record pertaining to a requesting individual might in itself provide an 
answer to that individual relating to an on-going investigation. The 
conduct of a successful investigation leading to the indictment of a 
criminal offender precludes the applicability of established agency 
rules relating to verification of record, disclosure of the record to 
that individual, and record amendment procedures for this record system.
    (5) System identifier and name. CIG 01, Privacy Act and Freedom of 
Information Act Case Files.
    (i) Exemption. During the processing of a Freedom of Information Act 
(FOIA) and Privacy Act (PA) request, exempt materials from other systems 
of records may in turn become part of the case record in this system. To 
the extent that copies of exempt records from those ``other'' systems of 
records are entered into this system, the Inspector General, DoD, claims 
the same exemptions for the records from those ``other'' systems that 
are entered into this system, as claimed for the original primary system 
of which they are a part.
    (ii) Authority. 5 U.S.C. 552a(j)(2), (k)(1), (k)(2), (k)(3), (k)(4), 
(k)(5), (k)(6), and (k)(7).
    (iii) Reasons. Records are only exempt from pertinent provisions of 
5 U.S.C. 552a to the extent such provisions have been identified and an 
exemption claimed for the original record and the purposes underlying 
the exemption for the original record still pertain to the record which 
is now contained in this system of records. In general, the exemptions 
were claimed in order to protect properly classified information 
relating to national defense and foreign policy, to avoid interference 
during the conduct of criminal, civil, or administrative actions or 
investigations, to ensure protective services provided the President and 
others

[[Page 994]]

are not compromised, to protect the identity of confidential sources 
incident to Federal employment, military service, contract, and security 
clearance determinations, to preserve the confidentiality and integrity 
of Federal testing materials, and to safeguard evaluation materials used 
for military promotions when furnished by a confidential source. The 
exemption rule for the original records will identify the specific 
reasons why the records are exempt from specific provisions of 5 U.S.C. 
552a.
    (6) System identifier and name. CIG-21, Congressional Correspondence 
Tracking System.
    (i) Exemption. During the processing of a Congressional inquiry, 
exempt materials from other systems of records may in turn become part 
of the case record in this system. To the extent that copies of exempt 
records from those ``other'' systems of records are entered into this 
system, the Inspector General, DoD, claims the same exemptions for the 
records from those ``other'' systems that are entered into this system, 
as claimed for the original primary system of which they are a part.
    (ii) Authority. 5 U.S.C. 552a(j)(2), (k)(1), (k)(2), (k)(3), (k)(4), 
(k)(5), (k)(6), and (k)(7).
    (iii) Reasons. Records are only exempt from pertinent provisions of 
5 U.S.C. 552a to the extent such provisions have been identified and an 
exemption claimed for the original record and the purposes underlying 
the exemption for the original record still pertain to the record which 
is now contained in this system of records. In general, the exemptions 
were claimed in order to protect properly classified information 
relating to national defense and foreign policy, to avoid interference 
during the conduct of criminal, civil, or administrative actions or 
investigations, to ensure protective services provided the President and 
others are not compromised, to protect the identity of confidential 
sources incident to Federal employment, military service, contract, and 
security clearance determinations, to preserve the confidentiality and 
integrity of Federal testing materials, and to safeguard evaluation 
materials used for military promotions when furnished by a confidential 
source. The exemption rule for the original records will identify the 
specific reasons why the records are exempt from specific provisions of 
5 U.S.C. 552a.
    (7) System identifier and name. CIG 23, Public Affairs Files.
    (i) Exemption. During the course of processing a General Counsel 
action, exempt materials from other systems of records may in turn 
become part of the case records in this system. To the extent that 
copies of exempt records from those `other' systems of records are 
entered into the Public Affairs Files, the Office of the Inspector 
General hereby claims the same exemptions for the records from those 
`other' systems that are entered into this system, as claimed for the 
original primary systems of records which they are a part.
    (ii) Authority. 5 U.S.C. 552a(j)(2), (k)(1), (k)(2), (k)(3), (k)(4), 
(k)(5), (k)(6), and (k)(7).
    (iii) Reasons. Records are only exempt from pertinent provisions of 
5 U.S.C. 552a to the extent (A) such provisions have been identified and 
an exemption claimed for the original record and (B) the purposes 
underlying the exemption for the original record still pertain to the 
record which is now contained in this system of records. In general, the 
exemptions were claimed in order to protect properly classified 
information relating to national defense and foreign policy, to avoid 
interference during the conduct of criminal, civil, or administrative 
actions or investigations, to ensure protective services provided the 
President and others are not compromised, to protect the identity of 
confidential sources incident to Federal employment, military service, 
contract, and security clearance determinations, to preserve the 
confidentiality and integrity of Federal testing materials, and to 
safeguard evaluation materials used for military promotions when 
furnished by a confidential source. The exemption rule for the original 
records will identify the specific reasons why the records are exempt 
from specific provisions of 5 U.S.C. 552a.

[[Page 995]]

    (8) System identifier and name. CIG-29, Privacy and Civil Liberties 
Complaint Reporting System.
    (i) Exemption. Any portion of this record system which falls within 
the provisions of 5 U.S.C. 552a (j)(2), (k)(2) and (k)(5) may be exempt 
from the following subsections of 5 U.S.C. 552a: (c)(3), (d), (e)(1), 
(e)(4)(G), (e)(4)(H), (e)(4)(I).
    (ii) Authority. 5 U.S.C. 552a(j)(2), (k)(2), and (k)(5).
    (iii) Reasons. To ensure the integrity of the privacy and civil 
liberties process. The execution requires that information be provided 
in a free and open manner without fear of retribution or harassment in 
order to facilitate a just, thorough, and timely resolution of the 
complaint or inquiry. Disclosures from this system can enable 
individuals to conceal their wrongdoing or mislead the course of the 
investigation by concealing, destroying, or fabricating evidence or 
documents. In addition, disclosures can subject sources and witnesses to 
harassment or intimidation which may cause individuals not to seek 
redress for wrongs through privacy and civil liberties channels for fear 
of retribution or harassment. There is a clear need to protect national 
security information from inadvertent disclosure.
    (9) System identifier and name. CIG-26, Case Control System-
Investigative.
    (i) Exemption. Any portion of this system which falls within the 
provisions of 5 U.S.C. 552a(j)(2) may be exempt from the following 
subsections of 5 U.S.C. 552a: (c)(3), (c)(4), (d), (e)(1), (e)(2), 
(e)(3), (e)(4)(G) through (I), (e)(5), (e)(8), and (g), as applicable. 
In addition, any portion of this system which falls within the 
provisions of 5 U.S.C. 552a(k)(1) or (k)(2) may be exempt from the 
following subsections of 5 U.S.C. 552a: (c)(3), (d), (e)(1), (e)(4)(G) 
through (I), as applicable. Exempted records from other systems of 
records may in-turn become part of the case record in this system. To 
the extent that copies of exempt records from those `other' systems of 
records are entered into this system, the DoD OIG claims the same 
exemptions for the records from those `other' systems that are entered 
into this system, as claimed for the original primary system of which 
they are a part. Records are only exempt from pertinent provisions of 5 
U.S.C. 552a to the extent such provisions have been identified and an 
exemption claimed for the original record and the purposes underlying 
the exemption for the original record still pertain to the record which 
is now contained in this system of records. The exemption rule for the 
original records will identify the specific reasons why the records are 
exempt from specific provisions of 5 U.S.C. 552a.
    (ii) Authority. 5 U.S.C. 552a(j)(2), (k)(1), and (k)(2).
    (iii) Reasons. (A) From subsections (c)(3) and (c)(4) because making 
available to a record subject the accounting of disclosure of 
investigations concerning him or her would specifically reveal an 
investigative interest in the individual. Revealing this information 
would reasonably be expected to compromise open or closed administrative 
or criminal investigation efforts to a known or suspected offender by 
notifying the record subject that he or she is under investigation. This 
information could also prompt the record subject to take measures to 
impede the investigation, e.g., destroy evidence, intimidate potential 
witnesses, or flee the area to avoid or impede the investigation.
    (B) From subsection (d), because these provisions concern individual 
access to and amendment of certain records contained in this system. 
Granting access to information that is properly classified pursuant to 
executive order may cause damage to national security. Additionally, 
compliance with these provisions could alert the subject of an 
investigation of the fact and nature of the investigation and/or the 
investigative interest of law enforcement agencies. It can also 
compromise sensitive information related to national security; interfere 
with the overall law enforcement process by leading to the destruction 
of evidence, improper influencing of witnesses, fabrication of 
testimony, and/or flight of the subject; could identify a confidential 
source or disclose information which would constitute an unwarranted 
invasion of another's personal privacy; reveal a sensitive investigation 
or constitute a potential danger to

[[Page 996]]

the health or safety of law enforcement personnel, confidential 
informants, and witnesses. Amendment of open or active investigations 
would interfere with ongoing law enforcement investigations and analysis 
activities, and impose an excessive administrative burden by requiring 
investigations, analyses, and reports to be continuously reinvestigated 
and revised.
    (C) From subsection (e)(1) because it is not always possible to 
determine what information is relevant and necessary at an early stage 
in a given investigation, and because DoD OIG and other agencies may not 
always know what information about a known or suspected offender may be 
relevant to law enforcement for the purpose of conducting an operational 
response. The nature of the criminal and/or administrative law 
enforcement investigative functions creates unique problems in 
prescribing a specific parameter and a particular case with respect to 
what information is relevant or necessary. Also, due to the DoD OIG's 
close liaison and working relationships with other Federal, State, local 
and foreign country criminal and administrative law enforcement 
agencies, information may be received which may relate to a case under 
the investigative jurisdiction of another agency. The maintenance of 
this information may be necessary to provide leads for appropriate 
criminal and administrative law enforcement purposes and to establish 
patterns of activity which may relate to the jurisdiction of other 
cooperating agencies.
    (D) From subsection (e)(2) because it is not always in the best 
interest of law enforcement to collect information to the greatest 
extent practicable directly from an investigative subject. Requiring the 
collection of information to the greatest extent practicable directly 
from an investigative subject would present a serious impediment to law 
enforcement in that the subject of the investigation would be placed on 
notice of the existence of the investigation and would therefore be able 
to avoid detection.
    (E) From subsection (e)(3) because supplying an individual with a 
form containing a Privacy Act Statement would tend to inhibit 
cooperation by many individuals involved in a criminal investigation. 
The effect would be somewhat adverse to established investigative 
methods and techniques.
    (F) From subsections (e)(4)(G) through (I) because this system of 
records is exempt from the access provisions of subsection (d).
    (G) From subsection (e)(5) because the requirement that records be 
maintained with attention to accuracy, relevance, timeliness, and 
completeness would unfairly hamper the investigative process. It is the 
nature of criminal law enforcement for investigations to uncover the 
commission of illegal acts at diverse stages. It is frequently 
impossible to determine initially what information is accurate, 
relevant, timely, and complete. With the passage of time, seemingly 
irrelevant or untimely information may acquire new significance as 
further investigation brings new details to light.
    (H) From subsection (e)(8) because the notice requirements of this 
provision could present a serious impediment to criminal law enforcement 
investigations by revealing investigative techniques, procedures, and 
existence of sensitive information and/or confidential sources.
    (I) To the extent that exemptions have been established from other 
provisions of the Privacy Act, the civil remedies provisions of 
subsection (g) are inapplicable. The nature of criminal law enforcement 
investigations and the utilization of authorized exemptions should not 
increase the Department's exposure to civil litigation under the Privacy 
Act.
    (10) System identifier and name. CIG-30, ``OIG Data Analytics 
Platform.''
    (i) Exemptions. This system of records is exempt from 5 U.S.C. 
552a(c)(3) and (4); (d)(1), (2), (3), and (4); (e)(1); (e)(2); (e)(3); 
(e)(4)(G), (H), and(I); (e)(5); (e)(8); (f) and (g) of the Privacy Act 
pursuant to 5 U.S.C. 552a(j)(2). This system of records is exempt from 5 
U.S.C. 552a(c)(3); (d)(1), (2), (3), and (4); (e)(1); (e)(4)(G), (H), 
and (I); and (f) of the Privacy Act to the extent the records are 
subject to exemption pursuant to 5 U.S.C. 552a(k)(1) and (k)(2).
    (ii) Authority. 5 U.S.C. 552a(j)(2), (k)(1), and (k)(2).

[[Page 997]]

    (iii) Exemption from the particular subsections. Exemption from the 
particular subsections is justified for the following reasons:
    (A) Subsections (c)(3), (d)(1), and (d)(2)--(1) Exemption (j)(2). 
Records in this system of records may contain investigatory material 
compiled for criminal law enforcement purposes to include information 
identifying criminal offenders and alleged offenders, information 
compiled for the purpose of criminal investigation, or reports compiled 
during criminal law enforcement proceedings. Application of exemption 
(j)(2) may be necessary because access to, amendment of, or release of 
the accounting of disclosures of such records could inform the record 
subject of an investigation of the existence, nature, or scope of an 
actual or potential law enforcement or disciplinary investigation, and 
thereby seriously impede law enforcement or prosecutorial efforts by 
permitting the record subject and other persons to whom he might 
disclose the records to avoid criminal penalties or disciplinary 
measures; reveal confidential sources who might not have otherwise come 
forward to assist in an investigation and thereby hinder DoD's ability 
to obtain information from future confidential sources; and result in an 
unwarranted invasion of the privacy of others.
    (2) Exemption (k)(1). Records in this system of records may contain 
information that is properly classified pursuant to executive order. 
Application of exemption (k)(1) may be necessary because access to and 
amendment of the records, or release of the accounting of disclosures 
for such records, could reveal classified information. Disclosure of 
classified records to an individual may cause damage to national 
security.
    (3) Exemption (k)(2). Records in this system of records may contain 
investigatory material compiled for law enforcement purposes other than 
material within the scope of 5 U.S.C. 552a(j)(2). Application of 
exemption (k)(2) may be necessary because access to, amendment of, or 
release of the accounting of disclosures of such records could: inform 
the record subject of an investigation of the existence, nature, or 
scope of an actual or potential law enforcement or disciplinary 
investigation, and thereby seriously impede law enforcement or 
prosecutorial efforts by permitting the record subject and other persons 
to whom he might disclose the records or the accounting of records to 
avoid criminal penalties, civil remedies, or disciplinary measures; 
interfere with a civil or administrative action or investigation which 
may impede those actions or investigations; reveal confidential sources 
who might not have otherwise come forward to assist in an investigation 
and thereby hinder DoD's ability to obtain information from future 
confidential sources; and result in an unwarranted invasion of the 
privacy of others.
    (B) Subsection (c)(4), (d)(3) and (4). These subsections are 
inapplicable to the extent that an exemption is being claimed from 
subsections (d)(1) and (2). Accordingly, exemption from subsection 
(c)(4) is claimed pursuant to (j)(2) and exemptions from subsections 
(d)(3) and (d)(4) are claimed pursuant to (j)(2), (k)(1), and (k)(2).
    (C) Subsection (e)(1). In the collection of information for 
investigatory and law enforcement purposes it is not always possible to 
conclusively determine the relevance and necessity of particular 
information in the early stages of the investigation or adjudication. In 
some instances, it will be only after the collected information is 
evaluated in light of other information that its relevance and necessity 
for effective investigation and adjudication can be assessed. Collection 
of such information permits more informed decision-making by the 
Department when making required disciplinary and prosecutorial 
determinations. Additionally, records within this system may be properly 
classified pursuant to executive order. Accordingly, application of 
exemptions (j)(2), (k)(1), and (k)(2) may be necessary.
    (D) Subsection (e)(2). To collect information from the subject 
individual could serve notice that he or she is the subject of a 
criminal investigation and thereby present a serious impediment to such 
investigations. Collection of information only from the individual 
accused of criminal activity or misconduct could also subvert discovery 
of relevant evidence and subvert the

[[Page 998]]

course of justice. Accordingly, application of exemption (j)(2) may be 
necessary.
    (E) Subsection (e)(3). To inform individuals as required by this 
subsection could reveal the existence of a criminal investigation and 
compromise investigative efforts. Accordingly, application of exemption 
(j)(2) may be necessary.
    (F) Subsection (e)(4)(G) and (H). These subsections are inapplicable 
to the extent exemption is claimed from subsections (d)(1) and (2).
    (G) Subsection (e)(4)(I). To the extent that this provision is 
construed to require more detailed disclosure than the broad, generic 
information currently published in the system notice, an exemption from 
this provision is necessary to protect the confidentiality of sources of 
information and to protect the privacy and physical safety of witnesses 
and informants. Accordingly, application of exemptions (j)(2), (k)(1), 
and (k)(2) may be necessary.
    (H) Subsection (e)(5). It is often impossible to determine in 
advance if investigatory records contained in this system are accurate, 
relevant, timely and complete, but, in the interests of effective law 
enforcement, it is necessary to retain this information to maintain an 
accurate record of the investigatory activity to preserve the integrity 
of the investigation and satisfy various Constitutional and evidentiary 
requirements, such as mandatory disclosure of potentially exculpatory 
information in the investigative file to a defendant. It is also 
necessary to retain this information to aid in establishing patterns of 
activity and provide investigative leads. With the passage of time, 
seemingly irrelevant or untimely information may acquire new 
significance as further investigation brings new details to light and 
the accuracy of such information can only be determined through judicial 
processes. Accordingly, application of exemption (j)(2) may be 
necessary.
    (I) Subsection (e)(8). To serve notice could give persons sufficient 
warning to evade investigative efforts. Accordingly, application of 
exemption (j)(2) may be necessary.
    (J) Subsection (f). The agency's rules are inapplicable to those 
portions of the system that are exempt. Accordingly, application of 
exemptions (j)(2), (k)(1), and (k)(2) may be necessary.
    (K) Subsection (g). This subsection is inapplicable to the extent 
that the system is exempt from other specific subsections of the Privacy 
Act. Accordingly, an exemption from subsection (g) is claimed pursuant 
to (j)(2).
    (iv) Exempt records from other systems. In the course of carrying 
out the overall purpose for this system, exempt records from other 
systems of records may in turn become part of the records maintained in 
this system. To the extent that copies of exempt records from those 
other systems of records are maintained in this system, the DoD claims 
the same exemptions for the records from those other systems that are 
entered into this system, as claimed for the prior system(s) of which 
they are a part, provided the reason for the exemption remains valid and 
necessary.

[84 FR 14730, Apr. 11, 2019; 84 FR 16210, Apr. 18, 2019, as amended at 
85 FR 60715, Sept. 28, 2020; 88 FR 16183, Mar. 16, 2023]

    Effective Date Note: At 88 FR 42237, June 30, 2023, Sec. 310.28 was 
amended by removing and reserving paragraph (c)(5), effective Sept. 8, 
2023.



Sec. 310.29  Office of the Secretary of Defense (OSD) exemptions.

    (a) General information. The Secretary of Defense designates those 
Office of the Secretary of Defense (OSD) systems of records which will 
be exempt from certain provisions of the Privacy Act. There are two 
types of exemptions, general and specific. The general exemption 
authorizes the exemption of a system of records from all but a few 
requirements of the Act. The specific exemption authorizes exemption of 
a system of records or portion thereof, from only a few specific 
requirements. If an OSD Component originates a new system of records for 
which it proposes an exemption, or if it proposes an additional or new 
exemption for an existing system of records, it shall submit the 
recommended exemption with the records system notice as outlined in 
Sec. 311.6. No exemption of a system of records shall be considered 
automatic

[[Page 999]]

for all records in the system. The systems manager shall review each 
requested record and apply the exemptions only when this will serve 
significant and legitimate Government purpose.
    (b) General exemptions. The general exemption provided by 5 U.S.C. 
552a(j)(2) may be invoked for protection of systems of records 
maintained by law enforcement activities. Certain functional records of 
such activities are not subject to access provisions of the Privacy Act 
of 1974. Records identifying criminal offenders and alleged offenders 
consisting of identifying data and notations of arrests, the type and 
disposition of criminal charges, sentencing, confinement, release, 
parole, and probation status of individuals are protected from 
disclosure. Other records and reports compiled during criminal 
investigations, as well as any other records developed at any stage of 
the criminal law enforcement process from arrest to indictment through 
the final release from parole supervision are excluded from release.
    (1) System identifier and name. DWHS P42.0, DPS Incident Reporting 
and Investigations Case Files.
    (i) Exemption. Portions of this system that fall within 5 U.S.C. 
552a(j)(2) are exempt from the following provisions of 5 U.S.C. 552a, 
Sections (c)(3) and (4); (d)(1) through (d)(5); (e)(1) through (e)(3); 
(e)(5); (f)(1) through (f)(5); (g)(1) through (g)(5); and (h) of the 
Act.
    (ii) Authority. 5 U.S.C. 552a(j)(2).
    (iii) Reasons. The Defense Protective Service is the law enforcement 
body for the jurisdiction of the Pentagon and immediate environs. The 
nature of certain records created and maintained by the DPS requires 
exemption from access provisions of the Privacy Act of 1974. The general 
exemption, 5 U.S.C. 552a(j)(2), is invoked to protect ongoing 
investigations and to protect from access, criminal investigation 
information contained in this record system, so as not to jeopardize any 
subsequent judicial or administrative process taken as a result of 
information contained in the file.
    (2)-(15) [Reserved]
    (16) System identifier and name. DWHS E06, Enterprise Correspondence 
Control System (ECCS).
    (i) Exemption. During the staffing and coordination of actions to, 
from, and within components in conduct of daily business, exempt 
materials from other systems of records may in turn become part of the 
case record in this document control system. To the extent that copies 
of exempt records from those ``other'' systems of records are entered 
into this system, the Office of the Secretary of Defense hereby claims 
the same exemptions for the records from those ``other'' systems that 
are entered into this system, as claimed for the original primary system 
of which they are a part.
    (ii) Authority. 5 U.S.C. 552a (j)(2) and (k)(1) through (k)(7).
    (iii) Reasons. Records are only exempt from pertinent provisions of 
5 U.S.C. 552a to the extent such provisions have been identified and an 
exemption claimed for the original record and the purposes underlying 
the exemption for the original record still pertain to the record which 
is now contained in this system of records. In general, the exemptions 
were claimed in order to protect properly classified information 
relating to national defense and foreign policy, to avoid interference 
during the conduct of criminal, civil, or administrative actions or 
investigations, to ensure protective services provided the President and 
others are not compromised, to protect the identity of confidential 
sources incident to Federal employment, military service, contract, and 
security clearance determinations, to preserve the confidentiality and 
integrity of Federal testing materials, and to safeguard evaluation 
materials used for military promotions when furnished by a confidential 
source. The exemption rule for the original records will identify the 
specific reasons why the records are exempt from specific provisions of 
5 U.S.C. 552a.
    (c) Specific exemptions: All systems of records maintained by any 
OSD Component shall be exempt from the requirements of 5 U.S.C. 552a(d) 
pursuant to subsection (k)(1) of that section to the extent that the 
system contains any information properly classified under Executive 
Order 11265, `National Security Information,' dated June 28, 552a(d) 
pursuant to subsection (k)(1) of

[[Page 1000]]

that section to the extent that the system contains any information 
properly classified under E.O. 11265, `National Security Information,' 
dated June 28, 1979, as amended, and required by the Executive Order to 
be kept classified in the interest of national defense or foreign 
policy. This exemption, which may be applicable to parts of all systems 
of records, is necessary because certain record systems not otherwise 
specifically designated for exemptions may contain isolated information 
which has been properly classified. The Secretary of Defense has 
designated the following OSD system of records described below 
specifically exempted from the appropriate provisions of the Privacy Act 
pursuant to the designated authority contained therein:
    (1)-(2) [Reserved]
    (3) System identifier and name. DGC 04, Industrial Personnel 
Security Clearance Case Files.
    (i) Exemption. All portions of this system which fall under 5 U.S.C. 
552a(k)(5) are exempt from the following provisions of title 5 U.S.C. 
552a: (c)(3); (d).
    (ii) Authority. 5 U.S.C. 552a(k)(5).
    (iii) Reasons. This system of records is exempt from subsections 
(c)(3) and (d) of section 552a of 5 U.S.C. which would require the 
disclosure of investigatory material compiled solely for the purpose of 
determining access to classified information, but only to the extent 
that the disclosure of such material would reveal the identity of a 
source who furnished information to the Government under an expressed 
promise that the identity of the source would be held in confidence, or 
prior to September 27, 1975, under an implied promise that the identity 
of the source would be held in confidence. A determination will be made 
at the time of the request for a record concerning whether specific 
information would reveal the identity of a source. This exemption is 
required in order to protect the confidentiality of the sources of 
information compiled for the purpose of determining access to classified 
information. This confidentiality helps maintain the Government's 
continued access to information from persons who would otherwise refuse 
to give it.
    (4)-(5) [Reserved]
    (6) System identifier and name. DODDS 02.0, Educator Application 
Files.
    (i) Exemption. All portions of this system which fall within 5 
U.S.C. 552a(k)(5) may be exempt from the following provisions of 5 
U.S.C. 552a: (c)(3); (d).
    (ii) Authority. 5 U.S.C. 552a(k)(5).
    (iii) Reasons. It is imperative that the confidential nature of 
evaluation and investigatory material on teacher application files 
furnished the Department of Defense Dependent Schools (DoDDS) under 
promises of confidentiality be exempt from disclosure to the individual 
to insure the candid presentation of information necessary to make 
determinations involving applicants suitability for DoDDS teaching 
positions.
    (7)-8 [Reserved]
    (9) System identifier and name. JS004SECDIV, Joint Staff Security 
Clearance Files.
    (i) Exemption. Portions of this system of records are exempt 
pursuant to the provisions of 5 U.S.C. 552a(k)(5) from subsections 5 
U.S.C. 552a(d)(1) through (d)(5).
    (ii) Authority. 5 U.S.C. 552a(k)(5).
    (iii) Reasons. From subsections (d)(1) through (d)(5) because the 
agency is required to protect the confidentiality of sources who 
furnished information to the Government under an expressed promise of 
confidentiality or, prior to September 27, 1975, under an implied 
promise that the identity of the source would be held in confidence. 
This confidentiality is needed to maintain the Government's continued 
access to information from persons who otherwise might refuse to give 
it. This exemption is limited to disclosures that would reveal the 
identity of a confidential source. At the time of the request for a 
record, a determination will be made concerning whether a right, 
privilege, or benefit is denied or specific information would reveal the 
identity of a source.
    (10) System identifier and name. DFMP 26, Vietnamese Commando 
Compensation Files.
    (i) Exemption. Information classified under E.O. 12958, as 
implemented by DoD 5200.1-R, may be exempt pursuant to 5 U.S.C. 
552a(k)(1).
    (ii) Authority. 5 U.S.C. 552a(k)(1).

[[Page 1001]]

    (iii) Reasons. From subsection 5 U.S.C. 552a(d) because granting 
access to information that is properly classified pursuant to E.O. 
12958, as implemented by DoD 5200.1-R, may cause damage to the national 
security.
    (11) System identifier and name. DUSP 11, POW/Missing Personnel 
Office Files.
    (i) Exemption. Information classified under E.O. 12958, as 
implemented by DoD 5200.1-R, may be exempt pursuant to 5 U.S.C. 
552a(k)(1).
    (ii) Authority. 5 U.S.C. 552a(k)(1).
    (iii) Reasons. From subsection 5 U.S.C. 552a(d) because granting 
access to information that is properly classified pursuant to E.O. 
12958, as implemented by DoD 5200.1-R, may cause damage to the national 
security.
    (12) System identifier and name. DFOISR 05, Freedom of Information 
Act Case Files.
    (i) Exemption. During the processing of a Freedom of Information Act 
request, exempt materials from other systems of records may in turn 
become part of the case record in this system. To the extent that copies 
of exempt records from those `other' systems of records are entered into 
this system, the Office of the Secretary of Defense claims the same 
exemptions for the records from those `other' systems that are entered 
into this system, as claimed for the original primary system of which 
they are a part.
    (ii) Authority. 5 U.S.C. 552a(j)(2), (k)(1), (k)(2), (k)(3), (k)(4), 
(k)(5), (k)(6), and (k)(7).
    (iii) Reasons. Records are only exempt from pertinent provisions of 
5 U.S.C. 552a to the extent such provisions have been identified and an 
exemption claimed for the original record and the purposes underlying 
the exemption for the original record still pertain to the record which 
is now contained in this system of records. In general, the exemptions 
were claimed in order to protect properly classified information 
relating to national defense and foreign policy, to avoid interference 
during the conduct of criminal, civil, or administrative actions or 
investigations, to ensure protective services provided the President and 
others are not compromised, to protect the identity of confidential 
sources incident to Federal employment, military service, contract, and 
security clearance determinations, to preserve the confidentiality and 
integrity of Federal testing materials, and to safeguard evaluation 
materials used for military promotions when furnished by a confidential 
source. The exemption rule for the original records will identify the 
specific reasons why the records are exempt from specific provisions of 
5 U.S.C. 552a.
    (13) System identifier and name. DFOISR 10, Privacy Act Case Files.
    (i) Exemption. During the processing of a Privacy Act request (which 
may include access requests, amendment requests, and requests for review 
for initial denials of such requests), exempt materials from other 
systems of records may in turn become part of the case record in this 
system. To the extent that copies of exempt records from those `other' 
systems of records are entered into this system, the Office of the 
Secretary of Defense hereby claims the same exemptions for the records 
from those `other' systems that are entered into this system, as claimed 
for the original primary system of which they are a part.
    (ii) Authority. 5 U.S.C. 552a(j)(2), (k)(1), (k)(2), (k)(3), (k)(4), 
(k)(5), (k)(6), and (k)(7).
    (iii) Reasons. Records are only exempt from pertinent provisions of 
5 U.S.C. 552a to the extent such provisions have been identified and an 
exemption claimed for the original record and the purposes underlying 
the exemption for the original record still pertain to the record which 
is now contained in this system of records. In general, the exemptions 
were claimed in order to protect properly classified information 
relating to national defense and foreign policy, to avoid interference 
during the conduct of criminal, civil, or administrative actions or 
investigations, to ensure protective services provided the President and 
others are not compromised, to protect the identity of confidential 
sources incident to Federal employment, military service, contract, and 
security clearance determinations, to preserve the confidentiality and 
integrity of Federal testing materials, and to safeguard evaluation 
materials used for military

[[Page 1002]]

promotions when furnished by a confidential source. The exemption rule 
for the original records will identify the specific reasons why the 
records are exempt from specific provisions of 5 U.S.C. 552a.
    (14) System identifier and name. DHRA 02, PERSEREC Research Files.
    (i) Exemption. (A) Investigative material compiled solely for the 
purpose of determining suitability, eligibility, or qualifications for 
federal civilian employment, military service, federal contracts, or 
access to classified information may be exempt pursuant to 5 U.S.C. 
552a(k)(5), but only to the extent that such material would reveal the 
identity of a confidential source.
    (B) Therefore, portions of this system may be exempt pursuant to 5 
U.S.C. 552a(k)(5) from the following subsections of 5 U.S.C. 552a(c)(3), 
(d), and (e)(1).
    (ii) Authority. 5 U.S.C. 552a(k)(5).
    (iii) Reasons. (A) From subsection (c)(3) and (d) when access to 
accounting disclosures and access to or amendment of records would cause 
the identity of a confidential source to be revealed. Disclosure of the 
source's identity not only will result in the Department breaching the 
promise of confidentiality made to the source, but it will impair the 
Department's future ability to compile investigatory material for the 
purpose of determining suitability, eligibility, or qualifications for 
Federal civilian employment, Federal contracts, or access to classified 
information. Unless sources can be assured that a promise of 
confidentiality will be honored, they will be less likely to provide 
information considered essential to the Department in making the 
required determinations.
    (B) From (e)(1) because in the collection of information for 
investigatory purposes, it is not always possible to determine the 
relevance and necessity of particular information in the early stages of 
the investigation. In some cases, it is only after the information is 
evaluated in light of other information that its relevance and necessity 
becomes clear. Such information permits more informed decision making by 
the Department when making required suitability, eligibility, and 
qualification determinations.
    (15) [Reserved]
    (16) System identifier and name. DMDC 15 DoD, Armed Services 
Military Accession Testing.
    (i) Exemption. Testing or examination material used solely to 
determine individual qualifications for appointment or promotion in the 
Federal service or military service may be exempt pursuant to 5 U.S.C. 
552a(k)(6), if the disclosure would compromise the objectivity or 
fairness of the test or examination process. Therefore, portions of the 
system of records may be exempt pursuant to 5 U.S.C. 552a(d).
    (ii) Authority. 5 U.S.C. 552a(k)(6).
    (iii) Reasons. (A) An exemption is required for those portions of 
the Skill Qualification Test system pertaining to individual item 
responses and scoring keys to preclude compromise of the test and to 
ensure fairness and objectivity of the evaluation system.
    (B) From subsection (d)(1) when access to those portions of the 
Skill Qualification Test records would reveal the individual item 
responses and scoring keys. Disclosure of the individual item responses 
and scoring keys will compromise the objectivity and fairness of the 
test as well as the validity of future tests resulting in the Department 
being unable to use the testing battery as an individual assessment 
tool.
    (17)-(18) [Reserved]
    (19) System identifier and name. DA&M 01, Civil Liberties Program 
Case Management System.
    (i) Exemption. Records contained in this System of Records may be 
exempted from the requirements of subsections (c)(3); (d)(1), (2), (3), 
and (4); (e)(1) and (e)(4)(G), (H), and (I); and (f) of the Privacy Act 
pursuant to 5 U.S.C. 552a(k)(1). Records may be exempted from these 
subsections or, additionally, from the requirements of subsections 
(c)(4); (e)(2), (3), and (8) of the Privacy Act of 1974 consistent with 
any exemptions claimed under 5 U.S.C. 552a (j)(2) or (k)(1), (k)(2), or 
(k)(5) by the originator of the record, provided the reason for the 
exemption remains valid and necessary. An exemption rule for this system 
has been promulgated in accordance with the requirements of 5 U.S.C. 
553(b)(1), (2), and (3), (c) and (e) and is published at 32 CFR part 
311.

[[Page 1003]]

    (ii) Authority. 5 U.S.C. 552a (j)(2), (k)(1), (k)(2), or (k)(5).
    (iii) Reasons. (A) From subsections (c)(3) (accounting of 
disclosures) because an accounting of disclosures from records 
concerning the record subject would specifically reveal an intelligence 
or investigative interest on the part of the Department of Defense and 
could result in release of properly classified national security or 
foreign policy information.
    (B) From subsections (d)(1), (2), (3) and (4) (record subject's 
right to access and amend records) because affording access and 
amendment rights could alert the record subject to the investigative 
interest of law enforcement agencies or compromise sensitive information 
classified in the interest of national security. In the absence of a 
national security basis for exemption, records in this system may be 
exempted from access and amendment to the extent necessary to honor 
promises of confidentiality to persons providing information concerning 
a candidate for position. Inability to maintain such confidentiality 
would restrict the free flow of information vital to a determination of 
a candidate's qualifications and suitability.
    (C) From subsection (e)(1) (maintain only relevant and necessary 
records) because in the collection of information for investigatory 
purposes, it is not always possible to determine the relevance and 
necessity of particular information in the early stages of the 
investigation. It is only after the information is evaluated in light of 
other information that its relevance and necessity becomes clear. In the 
absence of a national security basis for exemption under subjection 
(k)(1), records in this system may be exempted from the relevance 
requirement pursuant to subjection (k)(5) because it is not possible to 
determine in advance what exact information may assist in determining 
the qualifications and suitability of a candidate for position. 
Seemingly irrelevant details, when combined with other data, can provide 
a useful composite for determining whether a candidate should be 
appointed.
    (D) From subsections (e)(4)(G) and (H) (publication of procedures 
for notifying subject of the existence of records about them and how 
they may access records and contest contents) because the system is 
exempted from subsection (d) provisions regarding access and amendment, 
and from the subsection (f) requirement to promulgate agency rules. 
Nevertheless, the Office of the Secretary of Defense has published 
notice concerning notification, access, and contest procedures because 
it may, in certain circumstances, determine it appropriate to provide 
subjects access to all or a portion of the records about them in this 
system of records.
    (E) From subsection (e)(4)(I) (identifying sources of records in the 
system of records) because identifying sources could result in 
disclosure of properly classified national defense or foreign policy 
information, intelligence sources and methods, and investigatory 
techniques and procedures. Notwithstanding its proposed exemption from 
this requirement the Office of the Secretary of Defense identifies 
record sources in broad categories sufficient to provide general notice 
of the origins of the information it maintains in this system of 
records.
    (F) From subsection (f) (agency rules for notifying subjects to the 
existence of records about them, for accessing and amending records, and 
for assessing fees) because the system is exempt from subsection (d) 
provisions regarding access and amendment of records by record subjects. 
Nevertheless, the Office of the Secretary of Defense has published 
agency rules concerning notification of a subject in response to his 
request if any system of records named by the subject contains a record 
pertaining to him and procedures by which the subject may access or 
amend the records. Notwithstanding exemption, the Office of the 
Secretary of Defense may determine it appropriate to satisfy a record 
subject's access request.
    (20) [Reserved]
    (21) System identifier and name. DWHS E05, Mandatory 
Declassification Review Files.
    (i) Exemption. Information classified under E.O. 13526, as 
implemented by DoD 5200.1-R, may be exempt pursuant to 5 U.S.C. 
552a(k)(1).
    (ii) Authority. 5 U.S.C. 552a(k)(1).

[[Page 1004]]

    (iii) Reasons. From subsection 5 U.S.C. 552a(d) because granting 
access to information that is properly classified pursuant to E.O. 
13526, as implemented by DoD 5200.1-R, may cause damage to the national 
security.
    (22) System identifier and name. DPFPA 05, Computer Aided Dispatch 
and Records Management System (CAD/RMS).
    (i) Exemption. Portions of this system that fall within 5 U.S.C. 
552a(j)(2) and/or (k)(2) are exempt from the following provisions of 5 
U.S.C. 552a, section (c)(3) and (4); (d); (e)(1) through (e)(3); 
(e)(4)(G) through (I); (e)(5); (e)(8); (f) and (g) of the Act, as 
applicable.
    (ii) Authority. 5 U.S.C. 552a(j)(2) and (k)(2).
    (iii) Reasons. (A) From subsections (c)(3) and (4) because making 
available to a record subject the accounting of disclosure from records 
concerning him or her would specifically reveal any investigative 
interest in the individual. Revealing this information could reasonably 
be expected to compromise ongoing efforts to investigate a known or 
suspected offender by notifying the record subject that he or she is 
under investigation. This information could also permit the record 
subject to take measures to impede the investigation, e.g., destroy 
evidence, intimidate potential witnesses, or flee the area to avoid or 
impede the investigation.
    (B) From subsection (d) because these provisions concern individual 
access to and amendment of certain records contained in this system, 
including law enforcement and investigatory records. Compliance with 
these provisions could alert the subject of an investigation of the fact 
and nature of the investigation, and/or the investigative interest of 
law enforcement agencies; compromise sensitive information related to 
national security; interfere with the overall law enforcement process by 
leading to the destruction of evidence, improper influencing of 
witnesses, fabrication of testimony, and/or flight of the subject; could 
identify a confidential source or disclose information which would 
constitute an unwarranted invasion of another's personal privacy; reveal 
a sensitive investigative or constitute a potential danger to the health 
or safety of law enforcement personnel, confidential informants, and 
witnesses. Amendment of these records would interfere with ongoing law 
enforcement investigations and analysis activities and impose an 
excessive administrative burden by requiring investigations, analyses, 
and reports to be continuously reinvestigated and revised.
    (C) From subsections (e)(1) through (e)(3) because it is not always 
possible to determine what information is relevant and necessary at an 
early stage in a given investigation. Also, because DoD and other 
agencies may not always know what information about a known or suspected 
offender may be relevant to law enforcement for the purpose of 
conducting an operational response.
    (D) From subsections (e)(4)(G) through (I) (Agency Requirements) 
because portions of this system are exempt from the access and amendment 
provisions of subsection (d).
    (E) From subsection (e)(5) because the requirement that records be 
maintained with attention to accuracy, relevance, timeliness, and 
completeness would unfairly hamper the criminal investigative process. 
It is the nature of criminal law enforcement for investigations to 
uncover the commission of illegal acts at diverse stages. It is 
frequently impossible to determine initially what information is 
accurate, relevant, timely, and least of all complete. With the passage 
of time, seemingly irrelevant or untimely information may acquire new 
significant as further investigation brings new details to light.
    (F) From subsection (e)(8) because the requirement to serve notice 
on an individual when a record is disclosed under compulsory legal 
process could unfairly hamper law enforcement processes. It is the 
nature of law enforcement that there are instances where compliance with 
these provisions could alert the subject of an investigation of the fact 
and nature of the investigation, and/or the investigative interest of 
intelligence or law enforcement agencies; compromise sensitive 
information related to national security; interfere with the overall law 
enforcement process by leading to the destruction of evidence, improper 
influencing

[[Page 1005]]

of witnesses, fabrication of testimony, and/or flight of the subject; 
reveal a sensitive investigative or intelligence technique; or 
constitute a potential danger to the health or safety of law enforcement 
personnel, confidential informants, and witnesses.
    (G) From subsection (f) because requiring the Agency to grant access 
to records and establishing agency rules for amendment of records would 
compromise the existence of any criminal, civil, or administrative 
enforcement activity. To require the confirmation or denial of the 
existence of a record pertaining to a requesting individual may in 
itself provide an answer to that individual relating to the existence of 
an on-going investigation. The investigation of possible unlawful 
activities would be jeopardized by agency rules requiring verification 
of the record, disclosure of the record to the subject, and record 
amendment procedures.
    (H) From subsection (g) for compatibility with the exemption claimed 
from subsection (f), the civil remedies provisions of subsection (g) 
must be suspended for this record system. Because of the nature of 
criminal investigations, standards of accuracy, relevance, timeliness 
and completeness cannot apply to this record system. Information 
gathered in criminal investigations if often fragmentary and leads 
relating to an individual in the context of one investigation may 
instead pertain to a second investigation.
    (23) [Reserved]
    (24) System identifier and name. DPFPA 06, Internal Affairs Records 
System.
    (i) Exemption. Portions of this system that fall within 5 U.S.C. 
552a(j)(2) and/or (k)(2) are exempt from the following provisions of 5 
U.S.C. 552a, section (c)(3) and (4); (d); (e)(1) through (e)(3); 
(e)(4)(G) through (I); (e)(5); (f) and (g) of the Act, as applicable.
    (ii) Authority. 5 U.S.C. 552a(j)(2) and (k)(2).
    (iii) Reasons. (A) From subsections (c)(3) and (4) because making 
available to a record subject the accounting of disclosure of 
investigations concerning him or her would specifically reveal an 
investigative interest in the individual. Revealing this information 
would reasonably be expected to compromise open or closed administrative 
or civil investigation efforts to a known or suspected offender by 
notifying the record subject that he or she is under investigation. This 
information could also permit the record subject to take measures to 
impede the investigation, e.g., destroy evidence, intimidate potential 
witnesses, or flee the area to avoid or impede the investigation.
    (B) From subsection (d) because these provisions concern individual 
access to and amendment of open or closed investigation records 
contained in this system, including law enforcement and investigatory 
records. Compliance with these provisions would provide the subject of 
an investigation of the fact and nature of the investigation, and/or the 
investigative interest of the Pentagon Force Protection Agency; 
compromise sensitive information related to national security; interfere 
with the overall law enforcement process by leading to the destruction 
of evidence, improper influencing of witnesses, fabrication of 
testimony, and/or flight of the subject; could identify a confidential 
informant or disclose information which would constitute an unwarranted 
invasion of another's personal privacy; reveal a sensitive investigative 
or constitute a potential danger to the health or safety of law 
enforcement personnel, confidential informants, and witnesses. Amendment 
of investigative records would interfere with open or closed 
administrative or civil law enforcement investigations and analysis 
activities and impose an excessive administrative burden by requiring 
investigations, analyses, and reports to be continuously reinvestigated 
and revised.
    (C) From subsections (e)(1) through (e)(3) because it is not always 
possible to determine what information is relevant and necessary in open 
or closed investigations.
    (D) From subsections (e)(4)(G) through (I) (Agency Requirements) 
because portions of this system are exempt from the access and amendment 
provisions of subsection (d).
    (E) From subsection (e)(5) because the requirement that 
investigative records be maintained with attention to accuracy, 
relevance, timeliness, and completeness would unfairly hamper

[[Page 1006]]

the criminal, administrative, or civil investigative process. It is the 
nature of Internal Affairs investigations to uncover the commission of 
illegal acts and administrative violations. It is frequently impossible 
to determine initially what information is accurate, relevant, timely, 
and least of all complete. With the passage of time, seemingly 
irrelevant or untimely information may acquire new significant as 
further investigation brings new details to light.
    (F) From subsection (f) because requiring the Agency to grant access 
to records and establishing agency rules for amendment of records would 
compromise the existence of any criminal, civil, or administrative 
enforcement activity. To require the confirmation or denial of the 
existence of a record pertaining to a requesting individual may in 
itself provide an answer to that individual relating to the existence of 
an on-going investigation. The investigation of possible unlawful 
activities would be jeopardized by agency rules requiring verification 
of the record, disclosure of the record to the subject, and record 
amendment procedures.
    (G) From subsection (g) for compatibility with the exemption claimed 
from subsection (f), the civil remedies provisions of subsection (g) 
must be suspended for this record system. Because of the nature of 
criminal, administrative and civil investigations, standards of 
accuracy, relevance, timeliness and completeness cannot apply to open or 
closed investigations in this record system. Information gathered in 
criminal investigations is often fragmentary and leads relating to an 
individual in the context of one investigation may instead pertain to a 
second investigation.
    (25) System identifier and name. DPFPA 07, Counterintelligence 
Management Information System (CIMIS).
    (i) Exemption. Portions of this system that fall within 5 U.S.C. 
552a (k)(2) are exempt from the following provisions of 5 U.S.C. 552a, 
section (c)(3); (d); (e)(1); (e)(4)(G) through (I); and (f) of the Act, 
as applicable.
    (ii) Authority. 5 U.S.C. 552a(k)(2).
    (iii) Reasons. (A) From subsections (c)(3) because making available 
to a record subject the accounting of disclosure from records concerning 
him or her would specifically reveal any investigative interest in the 
individual. Revealing this information could reasonably be expected to 
compromise ongoing efforts to investigate a known or suspected offender 
by notifying the record subject that he or she is under investigation. 
This information could also permit the record subject to take measures 
to impede the investigation, e.g., destroy evidence, intimidate 
potential witnesses, or flee the area to avoid or impede the 
investigation.
    (B) From subsection (d) because these provisions concern individual 
access to and amendment of certain records contained in this system, 
including counterintelligence, law enforcement, and investigatory 
records. Compliance with these provisions could alert the subject of an 
investigation of the fact and nature of the investigation, and/or the 
investigative interest of agencies; compromise sensitive information 
related to national security; interfere with the overall 
counterintelligence and investigative process by leading to the 
destruction of evidence, improper influencing of witnesses, fabrication 
of testimony, and/or flight of the subject; could identify a 
confidential source or disclose information which would constitute an 
unwarranted invasion of another's personal privacy; reveal a sensitive 
investigation or constitute a potential danger to the health or safety 
of law enforcement personnel, confidential informants, and witnesses. 
Amendment of these records would interfere with ongoing 
counterintelligence investigations and analysis activities and impose an 
excessive administrative burden by requiring investigations, analyses, 
and reports to be continuously reinvestigated and revised.
    (C) From subsection (e)(1) because it is not always possible to 
determine what information is relevant and necessary at an early stage 
in a given investigation. Also, because Pentagon Force Protection Agency 
and other agencies may not always know what information about a known or 
suspected offender may be relevant to for the purpose of conducting an 
operational response.

[[Page 1007]]

    (D) From subsections (e)(4)(G) through (I) (Agency Requirements) 
because portions of this system are exempt from the access and amendment 
provisions of subsection (d).
    (E) From subsection (f) because requiring the Agency to grant access 
to records and establishing agency rules for amendment of records would 
compromise the existence of any criminal, civil, or administrative 
enforcement activity. To require the confirmation or denial of the 
existence of a record pertaining to a requesting individual may in 
itself provide an answer to that individual relating to the existence of 
an on-going investigation. Counterintelligence investigations would be 
jeopardized by agency rules requiring verification of the record, 
disclosure of the record to the subject, and record amendment 
procedures.
    (26) System identifier and name. DMDC 16 DoD, Identity Management 
Engine for Security and Analysis (IMESA).
    (i) Exemption. To the extent that copies of exempt records from 
JUSTICE/FBI-001, National Crime Information Center (NCIC) are entered 
into the Interoperability Layer Service records, the OSD hereby claims 
the same exemptions, (j)(2) and (k)(3), for the records as claimed in 
JUSTICE/FBI- 001, National Crime Information Center (NCIC). Pursuant to 
5 U.S.C. 552a portions of this system that fall within (j)(2) and (k)(3) 
are exempt from the following provisions of 5 U.S.C. 552a, section 
(c)(3) and (4); (d); (e)(1) through (3); (e)(4)(G) through (I); (e)(5) 
and (8); (f); and (g) (as applicable) of the Act.
    (ii) Authority. 5 U.S.C. 552a(j)(2) and (k)(3).
    (iii) Reasons. (A) From subsection (c)(3) because making available 
to a record subject the accounting of disclosure from records concerning 
him or her would specifically reveal any investigative interest in the 
individual. Revealing this information could reasonably be expected to 
compromise ongoing efforts to investigate a known or suspected terrorist 
by notifying the record subject that he or she is under investigation. 
This information could also permit the record subject to take measures 
to impede the investigation, e.g., destroy evidence, intimidate 
potential witnesses, or flee the area to avoid or impede the 
investigation.
    (B) From subsection (c)(4) because portions of this system are 
exempt from the access and amendment provisions of subsection (d).
    (C) From subsection (d) because these provisions concern individual 
access to and amendment of certain records contained in this system, 
including law enforcement, counterterrorism, investigatory, and 
intelligence records. Compliance with these provisions could alert the 
subject of an investigation of the fact and nature of the investigation, 
and/or the investigative interest of intelligence or law enforcement 
agencies; compromise sensitive information related to national security; 
interfere with the overall law enforcement process by leading to the 
destruction of evidence, improper influencing of witnesses, fabrication 
of testimony, and/or flight of the subject; could identify a 
confidential source or disclose information which would constitute an 
unwarranted invasion of another's personal privacy; reveal a sensitive 
investigative or intelligence technique; or constitute a potential 
danger to the health or safety of law enforcement personnel, 
confidential informants, and witnesses. Amendment of these records would 
interfere with ongoing counterterrorism, law enforcement, or 
intelligence investigations and analysis activities and impose an 
impossible administrative burden by requiring investigations, analyses, 
and reports to be continuously reinvestigated and revised.
    (D) From subsection (e)(1) because it is not always possible to 
determine what information is relevant and necessary to complete an 
identity comparison between the individual seeking access and a known or 
suspected terrorist. Also, because DoD and other agencies may not always 
know what information about an encounter with a known or suspected 
terrorist will be relevant to law enforcement for the purpose of 
conducting an operational response.
    (E) From subsection (e)(2) because application of this provision 
could present a serious impediment to counterterrorism, law enforcement, 
or intelligence efforts in that it would put

[[Page 1008]]

the subject of an investigation, study, or analysis on notice of that 
fact, thereby permitting the subject to engage in conduct designed to 
frustrate or impede that activity. The nature of counterterrorism, law 
enforcement, or intelligence investigations is such that vital 
information about an individual frequently can be obtained only from 
other persons who are familiar with such individual and his/her 
activities. In such investigations, it is not feasible to rely upon 
information furnished by the individual concerning his own activities.
    (F) From subsection (e)(3) to the extent that this subsection is 
interpreted to require DoD to provide notice to an individual if DoD or 
another agency receives or collects information about that individual 
during an investigation or from a third party. Should this subsection be 
so interpreted, exemption from this provision is necessary to avoid 
impeding counterterrorism, law enforcement, or intelligence efforts by 
putting the subject of an investigation, study, or analysis on notice of 
that fact, thereby permitting the subject to engage in conduct intended 
to frustrate or impede the activity.
    (G) From subsection (e)(4)(G), (e)(4)(H), and (e)(4)(I) (Agency 
Requirements) because portions of this system are exempt from the access 
and amendment provisions of subsection (d).
    (H) From subsection (e)(5) because the requirement that records be 
maintained with attention to accuracy, relevance, timeliness, and 
completeness could unfairly hamper law enforcement processes. It is the 
nature of law enforcement to uncover the commission of illegal acts at 
diverse stages. It is often impossible to determine initially what 
information is accurate, relevant, timely, and least of all complete. 
With the passage of time, seemingly irrelevant or untimely information 
may acquire new significance as further details are brought to light.
    (I) From subsection (e)(8) because the requirement to serve notice 
on an individual when a record is disclosed under compulsory legal 
process could unfairly hamper law enforcement processes. It is the 
nature of law enforcement that there are instances where compliance with 
these provisions could alert the subject of an investigation of the fact 
and nature of the investigation, and/or the investigative interest of 
intelligence or law enforcement agencies; compromise sensitive 
information related to national security; interfere with the overall law 
enforcement process by leading to the destruction of evidence, improper 
influencing of witnesses, fabrication of testimony, and/or flight of the 
subject; reveal a sensitive investigative or intelligence technique; or 
constitute a potential danger to the health or safety of law enforcement 
personnel, confidential informants, and witnesses.
    (J) From subsection (f) because requiring the Agency to grant access 
to records and establishing agency rules for amendment of records would 
unfairly impede the agency's law enforcement mission. To require the 
confirmation or denial of the existence of a record pertaining to a 
requesting individual may in itself provide an answer to that individual 
relating to the existence of an on-going investigation. The 
investigation of possible unlawful activities would be jeopardized by 
agency rules requiring verification of the record, disclosure of the 
record to the subject, and record amendment procedures.
    (K) From subsection (g) to the extent that the system is exempt from 
other specific subsections of the Privacy Act.
    (27) [Reserved]
    (28) System identifier and name. DMDC 18 DoD, Synchronized 
Predeployment and Operational Tracker Enterprise Suite (SPOT-ES) 
Records.
    (i) Exemption. Information classified under E.O. 13526, as 
implemented by DoD Instruction (DoDI) 5200.01 and DoD Manual (DoDM) 
5200.01, Volumes 1 and 3, may be exempt pursuant to 5 U.S.C. 552a(k)(1).
    (ii) Authority. 5 U.S.C. 552a(k)(1).
    (iii) Reasons. From subsection 5 U.S.C. 552a(d) because granting 
access to information that is properly classified pursuant to E.O. 
13526, as implemented by DoD Instruction 5200.01 and DoD Manual 5200.01, 
Volumes 1 and 3, may cause damage to the national security.

[84 FR 14730, Apr. 11, 2019, as amended at 86 FR 26672, May 17, 2021; 86 
FR 31431, June 14, 2021; 87 FR 37999, June 27, 2022]

[[Page 1009]]


    Effective Date Note: At 88 FR 42237, June 30, 2023, Sec. 310.29 was 
amended by removing and reserving paragraphs (c)(12) and (13), effective 
Sept. 8, 2023.



          Sec. Appendix A to Part 310--DOD Blanket Routine Uses

                     A. Routine Use--Law Enforcement

    If a system of records maintained by a DoD Component to carry out 
its functions indicates a violation or potential violation of law, 
whether civil, criminal, or regulatory in nature, and whether arising by 
general statute or by regulation, rule, or order issued pursuant 
thereto, the relevant records in the system of records may be referred, 
as a routine use, to the agency concerned, whether Federal, State, 
local, or foreign, charged with the responsibility of investigating or 
prosecuting such violation or charged with enforcing or implementing the 
statute, rule, regulation, or order issued pursuant thereto.

         B. Routine Use--Disclosure When Requesting Information

    A record from a system of records maintained by a Component may be 
disclosed as a routine use to a Federal, State, or local agency 
maintaining civil, criminal, or other relevant enforcement information 
or other pertinent information, such as current licenses, if necessary 
to obtain information relevant to a Component decision concerning the 
hiring or retention of an employee, the issuance of a security 
clearance, the letting of a contract, or the issuance of a license, 
grant, or other benefit.

           C. Routine Use--Disclosure of Requested Information

    A record from a system of records maintained by a Component may be 
disclosed to a Federal agency, in response to its request, in connection 
with the hiring or retention of an employee, the issuance of a security 
clearance, the reporting of an investigation of an employee, the letting 
of a contract, or the issuance of a license, grant, or other benefit by 
the requesting agency, to the extent that the information is relevant 
and necessary to the requesting agency's decision on the matter.

                 D. Routine Use--Congressional Inquiries

    Disclosure from a system of records maintained by a Component may be 
made to a congressional office from the record of an individual in 
response to an inquiry from the congressional office made at the request 
of that individual.

               E. Routine Use--Private Relief Legislation

    Relevant information contained in all systems of records of the 
Department of Defense published on or before August 22, 1975, may be 
disclosed to the Office of Management and Budget (OMB) in connection 
with the review of private relief legislation as set forth in OMB 
Circular A-19 at any stage of the legislative coordination and clearance 
process as set forth in that circular.

    F. Routine Use--Disclosures Required by International Agreements

    A record from a system of records maintained by a Component may be 
disclosed to foreign law enforcement, security, investigatory, or 
administrative authorities to comply with requirements imposed by, or to 
claim rights conferred in, international agreements and arrangements, 
including those regulating the stationing and status in foreign 
countries of Department of Defense military and civilian personnel.

    G. Routine Use--Disclosure to State and Local Taxing Authorities

    Any information normally contained in Internal Revenue Service (IRS) 
Form W-2 which is maintained in a record from a system of records 
maintained by a Component may be disclosed to State and local taxing 
authorities with which the Secretary of the Treasury has entered into 
agreements under 5 U.S.C., sections 5516, 5517, 5520, and only to those 
State and local taxing authorities for which an employee or military 
member is or was subject to tax regardless of whether tax is or was 
withheld. This routine use is in accordance with Treasury Fiscal 
Requirements Manual Bulletin No. 76-07.

    H. Routine Use--Disclosure to the Office of Personnel Management

    A record from a system of records subject to the Privacy Act and 
maintained by a Component may be disclosed to the Office of Personnel 
Management (OPM) concerning information on pay and leave, benefits, 
retirement reductions, and any other information necessary for the OPM 
to carry out its legally authorized government-wide personnel management 
functions and studies.

 I. Routine Use--Disclosure to the Department of Justice for Litigation

    A record from a system of records maintained by a Component may be 
disclosed as a routine use to any component of the Department of Justice 
for the purpose of representing the Department of Defense, or any 
officer, employee or member of the Department in pending or potential 
litigation to which the record is pertinent.

[[Page 1010]]

        J. Routine Use--Disclosure to Military Banking Facilities

    Information as to current military addresses and assignments may be 
provided to military banking facilities who provide banking services 
overseas and who are reimbursed by the Government for certain checking 
and loan losses. For personnel separated, discharged, or retired from 
the Armed Forces, information as to last known residential or home of 
record address may be provided to the military banking facility upon 
certification by a banking facility officer that the facility has a 
returned or dishonored check negotiated by the individual or the 
individual has defaulted on a loan and that if restitution is not made 
by the individual, the U.S. Government will be liable for the losses the 
facility may incur.

   K. Routine Use--Disclosure of Information to the General Services 
                             Administration

    A record from a system of records maintained by a Component may be 
disclosed as a routine use to the General Services Administration (GSA) 
for the purpose of records management inspections conducted under 
authority of 44 U.S.C. 2904 and 2906.

 L. Routine Use--Disclosure of Information to the National Archives and 
                         Records Administration

    A record from a system of records maintained by a Component may be 
disclosed as a routine use to the National Archives and Records 
Administration (NARA) for the purpose of records management inspections 
conducted under authority of 44 U.S.C. 2904 and 2906.

    M. Routine Use--Disclosure to the Merit Systems Protection Board

    A record from a system of records maintained by a Component may be 
disclosed as a routine use to the Merit Systems Protection Board, 
including the Office of the Special Counsel, for the purpose of 
litigation, including administrative proceedings, appeals, special 
studies of the civil service and other merit systems, review of OPM or 
Component rules and regulations, investigation of alleged or possible 
prohibited personnel practices, including administrative proceedings 
involving any individual subject of a DoD investigation, and such other 
functions, promulgated in 5 U.S.C. 1205 and 1206 or as may be authorized 
by law.

              N. Routine Use--Counterintelligence Purposes

    A record from a system of records maintained by a Component may be 
disclosed as a routine use outside the DoD or the U.S. Government for 
the purpose of counterintelligence activities authorized by U.S. law or 
Executive order or for the purpose of enforcing laws that protect the 
national security of the United States.

          O. Routine Use--Data Breach Response and Remediation

    A record from a system of records maintained by DoD or a Component 
may be disclosed to appropriate agencies, entities, and persons when (1) 
the Component suspects or has confirmed that there has been a breach of 
the system of records; (2) the Component has determined that as a result 
of the suspected or confirmed breach there is a risk of harm to 
individuals, DoD (including its information systems, programs, and 
operations), the Federal Government, or national security; and (3) the 
disclosure made to such agencies, entities, and persons is reasonably 
necessary to assist in connection with the Component's efforts to 
respond to the suspected or confirmed breach or to prevent, minimize, or 
remedy such harm.

           P. Routine Use--Data Breach Inter-Agency Assistance

    A record from a system of records maintained by DoD or a Component 
may be disclosed to another Federal agency or Federal entity, when DoD 
or the Component determines that information from this system of records 
is reasonably necessary to assist the recipient agency or entity in (1) 
responding to a suspected or confirmed breach or (2) preventing, 
minimizing, or remedying the risk of harm to individuals, the recipient 
agency or entity (including its information systems, programs, and 
operations), the Federal Government, or national security, resulting 
from a suspected or confirmed breach.

       Q. Routine Use--Agency Sharing To Support Counterterrorism

    A record from a system of records maintained by a Component 
consisting of, or relating to, terrorism information (6 U.S.C. 
485(a)(4)), homeland security information (6 U.S.C. 482(f)(1)), or law 
enforcement information (Guideline 2 Report attached to White House 
Memorandum, ``Information Sharing Environment,'' November 22, 2006) may 
be disclosed to a Federal, State, local, Tribal, territorial, foreign 
governmental and/or multinational agency, either in response to its 
request or upon the initiative of the Component, for purposes of sharing 
such information as is necessary and relevant for the agencies for the 
detection, prevention, disruption, preemption, and mitigation of the 
effects of terrorist activities against the territory, people, and 
interests of the United States of America as contemplated by the 
Intelligence Reform and Terrorism Protection Act of 2004 (Pub. L. 108-
458) and Executive Order 13388 (October 25, 2005).

[[Page 1011]]

               R. Routine Use--Office of Inspector General

    A record from a system of records maintained by DoD or a Component 
may be disclosed to another Federal, State, or local agency for the 
purpose of comparing to the agency's system of records or to non-Federal 
records, in coordination with an Office of Inspector General, in 
conducting an audit, investigation, inspection, evaluation, or some 
other review as authorized by the Inspector General Act of 1978, as 
amended.

[86 FR 64368, Nov. 18, 2021, as amended at 88 FR 24477, Apr. 21, 2023]



PART 339_DOD GUIDANCE DOCUMENTS--Table of Contents



Sec.
339.1 General.
339.2 Initial review process.
339.3 Good faith cost estimates.
339.4 Departmental review and submission to OIRA.
339.5 Designation procedures.
339.6 Non-significant guidance documents.
339.7 Significant guidance document.
339.8 Notice-and-comment procedures.
339.9 Public access to effective guidance documents.
339.10 Petitions for guidance.
339.11 Rescinded guidance.
339.12 Exigent circumstances.
339.13 Reports to Congress and GAO.
339.14 Use of guidance documents.

    Authority: 5 U.S.C. 552a.



Sec. 339.1  General.

    (a) This part provides policies and procedures governing all phases 
of issuing, modifying, or rescinding guidance documents within DoD.
    (b) Subject to the qualifications and exemptions contained in this 
part, these policies and procedures apply to all guidance documents 
intended to have future effect on the behavior of regulated parties 
issued by all components of the Department, including regional and 
district offices.
    (c) For purposes of this part, the term guidance document includes 
any statement of agency policy or interpretation concerning a statute, 
regulation, or technical matter within the jurisdiction of the 
Department that is intended to have general applicability and future 
effect on the behavior of regulated parties, but which is not intended 
to have the force or effect of law in its own right and is not otherwise 
required by statute to satisfy the rulemaking procedures specified in 5 
U.S.C. 553 or 5 U.S.C. 556. The term is not confined to formal written 
documents; guidance may come in a variety of forms, including, but not 
limited to, letters, memoranda, circulars, bulletins, advisories, and 
may include video, audio, and Web-based formats. See OMB Memorandum M-
20-02, ``Guidance Implementing Executive Order 13891, Titled ``Promoting 
the Rule of Law Through Improved Agency Guidance Documents,'' '' dated 
October 31, 2019.
    (d) This part does not apply to:
    (1) Agency statements of specific applicability, including advisory 
or legal opinions directed to particular parties about circumstance-
specific questions (e.g., case or investigatory letters responding to 
complaints, warning letters), notices regarding particular locations or 
facilities (e.g., guidance pertaining to the use, operation, or control 
of a government facility or property), and correspondence with 
individual persons or entities (e.g., congressional correspondence), 
except documents ostensibly directed to a particular party but designed 
to guide the conduct of the broader regulated public;
    (2) Agency statements that do not set forth a policy on a statutory, 
regulatory, or technical issue or an interpretation of a statute or 
regulation, including speeches and individual presentations, editorials, 
media interviews, press materials, or congressional testimony that do 
not set forth for the first time a new regulatory policy;
    (3) Rules promulgated pursuant to notice and comment under 5 U.S.C. 
553, or similar statutory provisions;
    (4) Rules exempt from rulemaking requirements under 5 U.S.C. 553(a);
    (5) Rules of agency organization, procedure, or practice;
    (6) Decisions of agency adjudications under 5 U.S.C. 554, or similar 
statutory provisions;
    (7) Internal guidance directed solely to the issuing agency or other 
agencies (or personnel of such agencies) that is not intended to have 
substantial future effect on the behavior of regulated parties or the 
public;

[[Page 1012]]

    (8) Internal guidance that is made public only because release is 
required under the Freedom of Information Act or agency disclosure 
policies;
    (9) Legal briefs, other court filings, or positions taken in 
litigation or enforcement actions;
    (10) Legal opinions by the Office of Legal Counsel at the Department 
of Justice.
    (11) Internal executive branch legal advice or legal advisory 
opinions addressed to executive branch officials;
    (12) Guidance pertaining to military or foreign affairs functions, 
or to a national security or homeland security function of the United 
States (other than guidance documents involving procurement or the 
import or export of non-defense articles and services);
    (13) Grant solicitations and awards; or
    (14) Contract solicitations and awards.



Sec. 339.2  Initial review process.

    (a) Prior to submitting guidance documents for departmental review, 
Components seeking to issue, modify, or rescind a guidance document 
should submit a draft copy of that document, along with the component's 
designation request (see Sec. 339.5 of this part) and good faith cost 
estimate (see Sec. 339.3 of this part), to their Federal Register 
Liaison Officer.
    (b) Before such a guidance document can be cleared for departmental 
review, the appropriate DoD or OSD Federal Register Liaison Officer will 
review it to ensure that it satisfies the following requirements:
    (1) For significant guidance (see Sec. 339.7 of this part), Federal 
Register required formatting.
    (2) The guidance document complies with all relevant statutes and 
regulations (including any statutory deadlines for agency action);
    (3) The guidance document identifies or includes:
    (i) The term ``guidance'' or its functional equivalent;
    (ii) The issuing component of the Department;
    (iii) A unique identifier, including, at a minimum, the date of 
issuance and title of the document and its Z-RIN (a regulation 
identifier number), if applicable;
    (iv) The activity or entities to which the guidance applies;
    (v) Citations to applicable statutes and regulations;
    (vi) A statement noting whether the guidance is intended to revise 
or replace any previously issued guidance and, if so, sufficient 
information to identify the previously issued guidance; and
    (vii) A short summary of the subject matter covered in the guidance 
document at the top of the document.
    (4) The guidance document avoids using mandatory language, such as 
``shall,'' ``must,'' ``required,'' or ``requirement,'' unless the 
language is describing an established statutory or regulatory 
requirement or is addressed to DoD staff and will not foreclose the 
Department's consideration of positions advanced by affected private 
parties or is intended to have a substantial future effect on the 
behavior of regulated parties;
    (5) The guidance document is written in plain and understandable 
English;
    (6) All guidance documents include the following disclaimer 
prominently: ``The contents of this document do not have the force and 
effect of law and are not meant to bind the public in any way. This 
document is intended only to provide clarity to the public regarding 
existing requirements under the law or departmental policies.''



Sec. 339.3  Good faith cost estimates.

    Even though not legally binding, some agency guidance may result in 
a substantial economic impact. For example, the issuance of departmental 
guidance may induce private parties to alter their conduct to conform to 
recommended standards or practices, thereby incurring costs beyond the 
costs of complying with existing statutes and regulations. While it may 
be difficult to predict with precision the economic impact of voluntary 
guidance, the proposing component of the Department must, to the extent 
practicable, make a good faith effort to estimate the likely economic 
cost impact of the guidance document to determine whether the document 
might be significant. When the component is assessing

[[Page 1013]]

or explaining whether it believes a guidance document is significant, it 
will, at a minimum, provide the same level of analysis that would be 
required for a major determination under the Congressional Review Act (5 
U.S.C. chapter 8). When it is determined that a guidance document will 
be economically significant (see Sec. 339.7(a)(1) of this part), the 
component must conduct and publish a Regulatory Impact Analysis of the 
sort that would accompany an economically significant rulemaking (see 
requirements in E.O. 12866, E.O. 13563, and OMB Circular A-4), to the 
extent reasonably possible.



Sec. 339.4  Departmental review and submission to OIRA.

    (a) After the appropriate FRLO completes his or her initial review, 
a guidance document will be internally coordinated within the proposing 
component and formally coordinated throughout the Department with other 
components who have equities. Mandatory coordinators on all guidance 
documents are the Chief Management Officer, Department of Defense and 
the component's General Counsel.
    (b) The proposing component will adjudicate DoD and OSD Component 
comments and return a final guidance document package to the appropriate 
DoD or OSD Federal Register Liaison Officer for submission to the Office 
of Management and Budget (OMB), Office of Information and Regulations 
Affairs (OIRA) for a significance determination.
    (c) Guidance documents deemed by OIRA to be ``significant'' (see 
Sec. 339.7 of this part) must be reviewed and approved by the 
Department's Regulatory Policy Officer before OIRA formally reviews 
them.



Sec. 339.5  Designation procedures.

    (a) The proposing component will prepare a designation request for 
guidance documents. Designation requests must include the following 
information:
    (1) A summary of the guidance document; and
    (2) The component's recommended designation of ``not significant,'' 
``significant,'' or ``economically significant,'' as well as a 
justification for that designation.
    (b) The appropriate DoD or OSD Federal Register Liaison Officer will 
seek a significance determination from OIRA for guidance documents in 
the same manner as for rulemakings. OIRA review will occur prior to the 
publishing of guidance documents, and with sufficient time to allow OIRA 
to review the designation request and the guidance document to determine 
if it meets the definition of ``significant'' or ``economically 
significant'' under Executive Order 13891.
    (c) Prior to being published, guidance documents determined to be 
``significant'' or ``economically significant'' are subject to formal 
review and interagency coordination by OIRA. The OIRA review, to include 
interagency coordination, is to be consistent with Executive Order 
12866.
    (d) Significant guidance documents (see Sec. 339.7 of this part) 
must be reviewed and approved by the Department's Regulatory Policy 
Officer before OIRA formally reviews them.
    (e) Once the OMB/OIRA has cleared a guidance document for 
publication, the appropriate DoD or OSD Federal Register Liaison Officer 
will coordinate the guidance document with the Defense Office of 
Prepublication and Security Review (DOPSR). The FRLO will notify the 
component of DOPSR's approval and that the guidance document can be 
approved for Federal Register publication or signed for placement on the 
central website.



Sec. 339.6  Non-significant guidance documents.

    (a) If the guidance document is determined to be non-significant 
within the meaning of Sec. 339.7 of this part, the appropriate DoD or 
OSD Federal Register Liaison Officer will advise the proposing component 
to proceed with issuance of the guidance.
    (b) For each such guidance document, the proposing component should 
forward it to the appropriate authority for approval. OSD PSAs or 
equivalents can delegate in writing the authority to approve non-
significant guidance documents to subordinate officials at

[[Page 1014]]

or above the level of a General/Flag Officer, Senior Executive Service 
member, or equivalent. The proposing component should include a 
statement in the action memorandum to the approving authority that the 
guidance document has been reviewed and cleared as non-significant by 
OIRA.
    (c) After the approving authority signs the non-significant guidance 
document, it should be forwarded to the DoD Regulatory Program staff for 
publication on the department's guidance document website located at 
https://open.defense.gov/ Regulatory-Program/Guidance-Documents/.



Sec. 339.7  Significant guidance documents.

    (a) The term ``significant guidance document'' means a guidance 
document that will be disseminated to regulated entities or the general 
public and that may reasonably be anticipated:
    (1) To lead to an annual effect on the economy of $100 million or 
more or adversely affect in a material way the U.S. economy, a sector of 
the U.S. economy, productivity, competition, jobs, the environment, 
public health or safety, or State, local, or tribal governments or 
communities (a guidance document is economically significant if it meets 
the criteria in this paragraph);
    (2) To create serious inconsistency or otherwise interfere with an 
action taken or planned by another Federal agency;
    (3) To alter materially the budgetary impact of entitlements, 
grants, user fees, or loan programs or the rights and obligations of 
recipients thereof; or
    (4) To raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
E.O. 12866, as further amended.
    (b) The term ``significant guidance document'' does not include the 
categories of documents excluded by Sec. 339.1(d) or any other category 
of guidance documents exempted in writing in consultation with OIRA.
    (c) Significant guidance documents, to include economically 
significant guidance documents, must be reviewed by OIRA under E.O. 
12866 before issuance; and must demonstrate compliance with the 
applicable requirements for regulations or rules, including significant 
regulatory actions, set forth in E.O. 12866, E.O. 13563, E.O. 13609, 
E.O. 13771, and E.O. 13777.
    (d) Each proposed DoD guidance document determined by OIRA to be 
significant must be approved by an OSD Principal Staff Assistant or 
equivalent appointed by the President.
    (e) Significant guidance documents have to be published for notice 
and comment in accordance with Sec. 339.8 of this part before they can 
be issued.



Sec. 339.8  Notice-and-comment procedures.

    (a) Except as provided in paragraph (b) of this section, all 
proposed DoD guidance documents determined to be a ``significant 
guidance document'' within the meaning of Sec. 339.7 shall be subject 
to the following notice and comment procedures. After receiving 
clearance from OIRA to publish a proposed significant guidance document, 
the proposing component shall publish a notice in the Federal Register 
announcing that a draft of the proposed guidance document is publicly 
available on Regulations.gov, shall invite public comment on the draft 
document for a minimum of 30 days. After the comment period ends, the 
proposing component shall prepare and post a public response to major 
concerns raised in the comments, as appropriate, in the docket on 
Regulations.gov. Then the component will prepare a final notice that 
will be coordinated within the department and submitted to OIRA for 
review, interagency coordination, and clearance for publishing in the 
Federal Register. Both the proposed and final notices shall be approved 
by the DoD RPO before OIRA review, and by an OSD Principal Staff 
Assistant or equivalent appointed by the President after OIRA clearance 
and DOPSR approval.
    (b) The notice and comment requirements of paragraph (a) of this 
section will not apply to any significant guidance document or 
categories of significant guidance documents for which the proposing 
component finds, in consultation with their component OGC and OIRA, good 
cause that notice and public procedure thereon are impracticable, 
unnecessary, or contrary to the

[[Page 1015]]

public interest (and incorporates the finding of good cause and a brief 
statement of reasons therefor in the guidance issued).



Sec. 339.9  Public access to effective guidance documents.

    (a) The DoD Regulatory Policy Team shall:
    (1) Ensure all final guidance documents in effect are identified by 
a unique identifier which includes, at a minimum, the document's title 
and date of issuance or revision and its Z-RIN, if applicable, are 
published and maintained on a central website located at https://
open.defense.gov/ Regulatory-Program/Guidance-Documents/ in a single, 
searchable, indexed database, and available to the public;
    (2) Note on its website that guidance documents do not bind the 
public, except as authorized by law or as incorporated into a contract;
    (3) Announce on its website a means for the public to comment 
electronically on any guidance documents that are subject to the notice 
and comment procedures; and
    (4) Receive complaints from the public that a component of the 
Department is not following the requirements of OMB's Memorandum M-20-
02, ``Guidance Implementing Executive Order 13891, Titled ``Promoting 
the Rule of Law Through Improved Agency Guidance Documents'','' dated 
October 31, 2019, or is improperly treating a guidance document as a 
binding requirement.
    (b) Each component responsible for issuing guidance documents shall:
    (1) Submit final guidance documents to the DoD Regulatory Policy 
Team at the email address osd.mc-alex.ocmo. mbx.guidance-
[email protected] for posting to the Department's central website.
    (2) Address complaints from the public that they are not following 
the requirements of OMB's Memorandum M-20-02, ``Guidance Implementing 
Executive Order 13891, Titled ``Promoting the Rule of Law Through 
Improved Agency Guidance Documents'','' dated October 31, 2019, or are 
improperly treating a guidance document as a binding requirement.



Sec. 339.10  Petitions for guidance.

    (a) Any person may petition the Department to withdraw or modify a 
particular guidance document by sending a written request to the DoD 
Regulatory Program staff at email address osd.mc-alex.ocmo.mbx. 
[email protected]. Please use the words ``GUIDANCE: [Insert 
the title of the guidance document]'' in the subject line of the email 
message. The DoD Regulatory Program staff will provide the request to 
the issuing component of the guidance document for response.
    (b) The issuing component should respond to all requests within 90 
days after receipt of the request, or as timely as possible given any 
constraints of the request. For recordkeeping purposes, the issuing 
component will provide a copy of their response to the DoD Regulatory 
Program staff at email address osd.mc-alex.ocmo.mbx. guidance-
[email protected].



Sec. 339.11  Rescinded guidance.

    (a) All effective guidance documents must appear on the central 
website. If the guidance document does not appear on the central 
website, the guidance is rescinded and without effect.
    (b) No component may cite, use, or rely on guidance documents that 
are rescinded, except to establish historical facts.



Sec. 339.12  Exigent circumstances.

    In emergency situations or when the proposing component is required 
by statutory deadline, court order, or executive order to act more 
quickly than normal review procedures allow, the proposing component 
shall coordinate with OGC and the appropriate DoD or OSD Federal 
Register Liaison Officer to notify OIRA as soon as possible and, to the 
extent practicable, shall comply with the requirements of this part at 
the earliest opportunity.



Sec. 339.13  Reports to Congress and GAO.

    Upon the issuance of a final guidance document, the appropriate 
Federal Register Liaison Officer will submit a report to Congress and 
GAO in accordance with the procedures described in 5 U.S.C. 801 (the 
``Congressional Review Act''). If the CRA procedures are not

[[Page 1016]]

followed, the guidance document can be nullified.



Sec. 339.14  Use of guidance documents.

    Guidance documents cannot create binding requirements that do not 
already exist by statute or regulation. Accordingly, noncompliance with 
guidance documents cannot be used as a basis for proving violations of 
applicable law. Guidance documents can do no more, with respect to 
prohibition of conduct, than articulate the Department's understanding 
of how a statute or regulation applies to particular circumstances.

[[Page 1017]]



            SUBCHAPTER P_OBTAINING DOD INFORMATION [RESERVED]



[[Page 1019]]



                              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 1021]]



                    Table of CFR Titles and Chapters




                      (Revised as of July 1, 2023)

                      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 1022]]

     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)
        LX  Federal Communications Commission (Parts 6000--6099)

                        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)

[[Page 1023]]

      XXVI  Department of Defense (Parts 3600--3699)
    XXVIII  Department of Justice (Parts 3800--3899)
      XXIX  Federal Communications Commission (Parts 3900--3999)
       XXX  Farm Credit System Insurance Corporation (Parts 4000--
                4099)
      XXXI  Farm Credit Administration (Parts 4100--4199)
    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)

[[Page 1024]]

    LXXIII  Department of Agriculture (Parts 8300--8399)
     LXXIV  Federal Mine Safety and Health Review Commission 
                (Parts 8400--8499)
     LXXVI  Federal Retirement Thrift Investment Board (Parts 
                8600--8699)
    LXXVII  Office of Management and Budget (Parts 8700--8799)
      LXXX  Federal Housing Finance Agency (Parts 9000--9099)
   LXXXIII  Special Inspector General for Afghanistan 
                Reconstruction (Parts 9300--9399)
    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)
       CIV  Office of the Intellectual Property Enforcement 
                Coordinator (Part 10400--10499)

                      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)

[[Page 1025]]

      VIII  Agricultural Marketing Service (Federal Grain 
                Inspection Service, Fair Trade Practices Program), 
                Department of Agriculture (Parts 800--899)
        IX  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Fruits, Vegetables, Nuts), Department 
                of Agriculture (Parts 900--999)
         X  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Milk), Department of Agriculture 
                (Parts 1000--1199)
        XI  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Miscellaneous Commodities), Department 
                of Agriculture (Parts 1200--1299)
       XIV  Commodity Credit Corporation, Department of 
                Agriculture (Parts 1400--1499)
        XV  Foreign Agricultural Service, Department of 
                Agriculture (Parts 1500--1599)
       XVI  [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  [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]

[[Page 1026]]

      XLII  Rural Business-Cooperative Service and Rural Utilities 
                Service, Department of Agriculture (Parts 4200--
                4299)
         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  [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]

[[Page 1027]]

         X  Consumer Financial Protection Bureau (Parts 1000--
                1099)
        XI  Federal Financial Institutions Examination Council 
                (Parts 1100--1199)
       XII  Federal Housing Finance Agency (Parts 1200--1299)
      XIII  Financial Stability Oversight Council (Parts 1300--
                1399)
       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)
        XV  Department of the Treasury (Parts 1500--1599)
       XVI  Office of Financial Research, 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 1028]]

      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 1029]]

                     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 1030]]

                          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 1031]]

        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 1032]]

        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 1033]]

         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 1034]]

                          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  [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 1035]]

       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  (Parts 103-001--104-099) [Reserved]
       105  General Services Administration (Parts 105-1--105-999)

[[Page 1036]]

       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--Federal Acquisition Supply Chain Security
       201  Federal Acquisition Security Council (Parts 201-1--
                201-99).
            Subtitle E [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 1037]]

                       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 1038]]

                      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 1039]]

        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 1040]]

        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 1041]]





           Alphabetical List of Agencies Appearing in the CFR




                      (Revised as of July 1, 2023)

                                                  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 1042]]

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 1043]]

  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 1044]]

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 Acquisition Security Council              41, 201
Federal Aviation Administration                   14, I
  Commercial Space Transportation                 14, III
Federal Claims Collection Standards               31, IX
Federal Communications Commission                 2, LX; 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

[[Page 1045]]

  Federal Management Regulation                   41, 102
  Federal Property Management Regulations         41, 101
  Federal Travel Regulation System                41, Subtitle F
  General                                         41, 300
  Payment From a Non-Federal Source for Travel    41, 304
       Expenses
  Payment of Expenses Connected With the Death    41, 303
       of Certain Employees
  Relocation Allowances                           41, 302
  Temporary Duty (TDY) Travel Allowances          41, 301
Geological Survey                                 30, IV
Government Accountability Office                  4, I
Government Ethics, Office of                      5, XVI
Government National Mortgage Association          24, III
Grain Inspection, Packers and Stockyards          7, VIII; 9, II
     Administration
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 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
Indian Arts and Crafts Board                      25, II

[[Page 1046]]

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
Intellectual Property Enforcement Coordinator,    5, CIV
     Office of
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 1047]]

  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 1048]]

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, L
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV, L
Rural Utilities Service                           7, XVII, XVIII, XLII, L
Safety and Environmental Enforcement, Bureau of   30, II
Science and Technology Policy, Office of          32, XXIV; 47, II
Secret Service                                    31, IV
Securities and Exchange Commission                5, XXXIV; 17, II
Selective Service System                          32, XVI
Small Business Administration                     2, XXVII; 13, I
Smithsonian Institution                           36, V
Social Security Administration                    2, XXIII; 20, III; 48, 23
Soldiers' and Airmen's Home, United States        5, XI
Special Counsel, Office of                        5, VIII
Special Education and Rehabilitative Services,    34, III
     Office of
State, Department of                              2, VI; 22, I; 28, XI

[[Page 1049]]

  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 1051]]



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, 2018 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.

                                  2018

32 CFR
                                                                   83 FR
                                                                    Page
Chapter I
199.14 (a)(6)(i)(I) and (ii) revised; (j)(1)(xi) added; interim....63576
199.21 (e)(3) added; (i)(2)(ii), (iv), and (x) revised; interim....63577
205 Removed.........................................................1556
206 Removed........................................................30036
215 Removed........................................................16774
219 Regulation at 82 FR 7272 eff. date delayed to 7-19-18...........2885
219.101 (l)(3) and (4) revised......................................2892
    (l)(1) heading and (5) added; (l)(2), (3), and (4) revised.....28516
221 Added..........................................................59304
269.4 (d) revised...................................................3078
285 Removed........................................................17921
286.7 (c) amended...................................................5197
287 Removed........................................................27290
290 Removed........................................................26841
291 Removed........................................................19179
292 Removed........................................................18220
293 Removed........................................................18220
295 Removed........................................................42026
296 Removed........................................................18221
298 Removed........................................................18221
299 Removed........................................................18221
300 Removed........................................................47069
310.30 (d) redesignated as (e); undesignated paragraph following 
        new (e)(1) redesignated as (e)(1)(i); (e)(1)(ii) and 
        (e)(2) added; new (e)(2) redesignated as (d); new (e)(3) 
        introductory text and new (i) through (xii) redesignated 
        as (e)(1)(iii) introductory text and (e)(1)(iii)(A) 
        through (L); new (e)(4) redesignated as (e)(1)(iv); 
        (b)(1), new (d) heading, (e)(1)(iii) heading, and (iv) 
        heading amended; new (e)(1) revised........................52318

                                  2019

32 CFR
                                                                   84 FR
                                                                    Page
Chapter I
199.2 (b) amended...................................................4333
199.14 (a)(1)(i)(D) revised.........................................4333
199.17 (f)(4), (l)(1)(ii), (1)(2)(ii), and (n)(2)(vi) revised.......4333
225 Added; interim.................................................71822
233 Authority citation revised.....................................59722
233.1 (a) and (c) amended..........................................59722
233.2 (c) amended..................................................59722
233.3 Amended......................................................59722
233.4 (a) and (d) amended..........................................59722

[[Page 1052]]

233.5 (a)(1) through (5) amended; (a)(6), (b), (c), (d), and (f) 
        removed; (e) redesignated as new (b).......................59722
233.6 (a)(3) through (19) redesignated as (a)(2) through (18); new 
        (a)(10), new (11), new (14), new (15), new (17), (b)(1) 
        through (4), (6) through (22), (24) through (29), (31), 
        and (32) removed; new (a)(12), new (13), new (16), new 
        (18), (b)(5), (23), (30), and (33) redesignated as new 
        (a)(10) through new (13), new (b)(1) through new (4); new 
        (b)(1)(iv)(C)(2), new (D), and new (H) removed; new 
        (b)(1)(iv)(E), new (F), and new (G) redesignated as new 
        (b)(1)(iv)(D), new (E), and new (F); (a), (1), new (2) 
        through new (5), new (6)(iv), new (vii), new (viii), new 
        (7), new (8), new (10), new (13), new (b)(1)(i), new 
        (iii), new (iv)(B), new (3)(i), new (v), (c)(2), (ii), 
        (iii), (v), and (vi) amended...............................59722
242a Removed.......................................................29062
242b Removed.......................................................29063
268 Removed........................................................42809
269.4 (d) revised..................................................12099
270 Removed..........................................................530
275 Revised........................................................24708
279 Removed..........................................................969
310 Revised........................................................14730
310.21 (c)(7)(i) correctly designated..............................16210
310.26 (d)(4) through (8) correctly designated as (d)(3) through 
        (7)........................................................16210
310.28 (c)(6)(ii) correctly designated.............................16210
311 Removed........................................................38552
312 Removed........................................................47880
314 Removed........................................................57326
315 Removed........................................................34060
316 Removed........................................................51974
317 Removed........................................................39970
318 Removed........................................................46681
324 Removed........................................................64022
337 Removed.........................................................6969
338 Removed........................................................29375

                                  2020

32 CFR
                                                                   85 FR
                                                                    Page
Chapter I
199.2 Amended......................................................15065
199.4 (b)(3)(xiv) introductory text and (g)(15)(i)(A) amended; 
        interim....................................................54923
199.4 (c)(3)(x)(A) revised.........................................73196
199.4 (e)(26) amended; (e)(26)(iii) added; interim.................68757
199.4 (g)(52) revised; interim.....................................27927
199.6 (b)(4)(i)(I) note added; interim.............................54923
199.6 (c)(2)(i) revised; interim...................................27927
199.6 (c)(3)(iii)(K)(2)(i) revised; (c)(3)(iii)(K)(2)(ii) 
        redesignated as (c)(3)(iii)(K)(2)(iii); 
        (c)(3)(iii)(K)(2)(ii) added................................15066
199.6 (c)(3)(iii)(C) and (K)(2) introductory text revised; 
        (c)(3)(iii)(K)(2)(iii) removed; (c)(3)(iii)(K)(3) added....73196
199.8 Correction: (c)(6) removed...................................26355
199.9 (f)(1)(ii) revised...........................................60705
199.14 (a)(1)(iii)(E)(2) revised; (a)(1)(iii)(E)(5) and (6) added; 
        (a)(9)(i) note added; interim..............................54924
199.14 (j)(1)(xi) revised; eff. 7-6-20.............................34104
199.17 (l)(3)(A), (B), (4)(A), and (B) redesignated as (l)(3)(i), 
        (ii), (4)(i), and (ii); (l)(3)(iii) added; interim.........27927
200 Added..........................................................60705
204 Removed........................................................55783
217 Removed........................................................55784
220 Authority citation revised.....................................51351
220.8 (b), (c)(1), (5) introductory text, (i), (f)(2), (5), and 
        (6) revised; (d) and (f)(8) amended........................51351
232 Interpretation.................................................11842
233 Authority citation revised.....................................13047
233.2 (b) amended; (d) added; interim..............................13047
233.6 (b)(5) added; (c)(1) amended; interim........................13047
253 Removed........................................................72566
269.4 (d) revised; interim.........................................13049
272 Removed........................................................60911
310.28 (c)(9) added................................................60715
319 Removed........................................................40117
320 Removed........................................................40117
321 Removed........................................................37751
322 Removed........................................................40118
326 Removed........................................................40118
327 Removed.........................................................5796

[[Page 1053]]

329 Removed........................................................15066
339 Added..........................................................32297

                                  2021

32 CFR
                                                                   86 FR
                                                                    Page
Chapter I
199.5 (c)(7) introductory text revised.............................36217
199.24 (b)(1) introductory text revised............................67862
233.3 Amended......................................................70748
242 Removed........................................................70749
269.4 (d) revised..................................................46600
310.13 (e)(3) added................................................72524
310.13 (e)(4) added................................................52072
310.13 (e)(6) added................................................38561
310.16 (a)(12) removed; eff. 8-23-21...............................31431
310.20 (b)(5) removed; eff. 8-23-21................................31431
310.29 (c)(28) added...............................................26672
310.29 (b)(2), (c)(1), (4), (5), (7), (15), (17), (18), (20), 
        (23), and (27) removed; eff. 8-23-21.......................31431
310 Appendix A added...............................................64368
323 Removed........................................................54371

                                  2022

32 CFR
                                                                   87 FR
                                                                    Page
Chapter I
199 Technical correction...........................................34779
199.2 Amended......................................................33013
199.4 Regulations at 85 FR 27927 and 85 FR 54923 confirmed in part
                                                                   33001
199.4 (c)(1)(iii), (g)(52) introductory text, and (i) revised......33013
199.6 Regulations at 85 FR 27927 and 85 FR 54923 confirmed.........33001
199.6 (b)(4)(i)(I) note revised....................................33013
199.14 (a)(1)(iii)(E) introductory text amended; (a)(1)(iv) added; 
        (a)(1)(iii)(E)(5) and (6) redesignated as (a)(1)(iv)(A) 
        and (B); new (a)(1)(iv)(A) revised.........................33013
199.17 (l)(2)(i)(A) revised; interim...............................46886
199.17 Regulation at 85 FR 27927 confirmed.........................33001
199.17 (l)(3)(iii) amended.........................................33014
269.4 (d) revised..................................................57147
310.13 (e)(5) added................................................28775
310.13 (e)(9) added................................................30417
310.13 (e)(7) added................................................51612
310.13 (e)(10) added...............................................76934
310.13 (e)(11) added...............................................54153
310.13 (e)(12) added...............................................76936
310.14 (f)(12), (14), and (15) removed; eff. 9-6-22................37999
310.17 Removed; eff. 9-6-22........................................37999
310.29 (c)(2) and (8) removed; eff. 9-6-22.........................37999
313 Removed.........................................................7945

                                  2023

   (Regulations published from January 1, 2023, through July 1, 2023)

32 CFR
                                                                   88 FR
                                                                    Page
Subtitle A
Chapter I
199 Technical correction...........................................25492
199.2 (b) amended; eff. 10-1-23....................................19854
199.6 (b)(4)(xxi) added; (f)(1)(i) revised; interim.................2001
199.6 (b)(4)(x)(B)(1); eff. 10-1-23................................19855
199.14 (a)(1)(iv)(C) added; (c) revised; interim....................2001
199.14 (a)(6)(ii)(A), (E) introductory text, (3), and (d) revised; 
        (a)(6)(ii)(E)(4); eff. 10-1-23.............................19855
269.4 (d) revised...................................................2240
310.13 (e)(13) added...............................................11396
310.13 (e)(8) added................................................24479
310.14 (e)(7), (f)(20), and (21) removed; eff. 9-8-23..............42236
310.15 (g)(21) removed; eff. 9-8-23................................42236
310.16 (a)(22) and (23) removed; eff. 9-8-23.......................42236
310.20 (b)(8) removed; eff. 9-8-23.................................42236
310.21 (c)(6) removed; eff. 9-8-23.................................42236
310.22 (b)(1) removed; eff. 9-8-23.................................42236
310.23 (a)(3) removed; eff. 9-8-23.................................42236
310.25 (e)(1) removed; eff. 9-8-23.................................42236
310.28 (c)(10) added...............................................16184
310.28 (c)(5) removed; eff. 9-8-23.................................42237
310.29 (c)(12) and (13) removed; eff. 9-8-23.......................42237
310 Appendix A amended.............................................24477


                                  [all]