[Title 32 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2018 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 32
National Defense
________________________
Part 800 to End
Revised as of July 1, 2018
Containing a codification of documents of general
applicability and future effect
As of July 1, 2018
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
U.S. GOVERNMENT OFFICIAL EDITION NOTICE
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It is prohibited to use NARA's official seal and the stylized Code
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Any person using NARA's official seals and logos in a manner
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[[Page iii]]
Table of Contents
Page
Explanation................................................. vi
Title 32:
SUBTITLE A--Department of Defense (Continued)
Chapter VII--Department of the Air Force 5
SUBTITLE B--Other Regulations Relating to National Defense
Chapter XII--Defense Logistics Agency 231
Chapter XVI--Selective Service System 249
Chapter XVII--Office of the Director of National
Intelligence 321
Chapter XVIII--National Counterintelligence Center 359
Chapter XIX--Central Intelligence Agency 397
Chapter XX--Information Security Oversight Office,
National Archives and Records Administration 451
Chapter XXI--National Security Council 545
Chapter XXIV--Office of Science and Technology
Policy 555
Chapter XXVII--Office for Micronesian Status
Negotiations 579
Chapter XXVIII--Office of the Vice President of the
United States 589
Finding Aids:
Table of CFR Titles and Chapters........................ 603
[[Page iv]]
Alphabetical List of Agencies Appearing in the CFR...... 623
List of CFR Sections Affected........................... 633
[[Page v]]
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 32 CFR 806.1 refers
to title 32, part 806,
section 1.
----------------------------
[[Page vi]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
together to determine the latest version of any given rule.
To determine whether a Code volume has been amended since its
revision date (in this case, July 1, 2018), consult the ``List of CFR
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
number of the Federal Register and date of publication. Publication
dates and effective dates are usually not the same and care must be
exercised by the user in determining the actual effective date. In
instances where the effective date is beyond the cut-off date for the
Code a note has been inserted to reflect the future effective date. In
those instances where a regulation published in the Federal Register
states a date certain for expiration, an appropriate note will be
inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vii]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
requirements.
PAST PROVISIONS OF THE CODE
Provisions of the Code that are no longer in force and effect as of
the revision date stated on the cover of each volume are not carried.
Code users may find the text of provisions in effect on any given date
in the past by using the appropriate List of CFR Sections Affected
(LSA). For the convenience of the reader, a ``List of CFR Sections
Affected'' is published at the end of each CFR volume. For changes to
the Code prior to the LSA listings at the end of the volume, consult
previous annual editions of the LSA. For changes to the Code prior to
2001, consult the List of CFR Sections Affected compilations, published
for 1949-1963, 1964-1972, 1973-1985, and 1986-2000.
``[RESERVED]'' TERMINOLOGY
The term ``[Reserved]'' is used as a place holder within the Code of
Federal Regulations. An agency may add regulatory information at a
``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used
editorially to indicate that a portion of the CFR was left vacant and
not accidentally dropped due to a printing or computer error.
INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
established by statute and allows Federal agencies to meet the
requirement to publish regulations in the Federal Register by referring
to materials already published elsewhere. For an incorporation to be
valid, the Director of the Federal Register must approve it. The legal
effect of incorporation by reference is that the material is treated as
if it were published in full in the Federal Register (5 U.S.C. 552(a)).
This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed as
an approved incorporation by reference, please contact the agency that
issued the regulation containing that incorporation. If, after
contacting the agency, you find the material is not available, please
notify the Director of the Federal Register, National Archives and
Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001,
or call 202-741-6010.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Authorities
and Rules. A list of CFR titles, chapters, subchapters, and parts and an
alphabetical list of agencies publishing in the CFR are also included in
this volume.
[[Page viii]]
An index to the text of ``Title 3--The President'' is carried within
that volume.
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ``Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES
For a legal interpretation or explanation of any regulation in this
volume, contact the issuing agency. The issuing agency's name appears at
the top of odd-numbered pages.
For inquiries concerning CFR reference assistance, call 202-741-6000
or write to the Director, Office of the Federal Register, National
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ELECTRONIC SERVICES
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register.
The e-CFR is a regularly updated, unofficial editorial compilation
of CFR material and Federal Register amendments, produced by the Office
of the Federal Register and the Government Publishing Office. It is
available at www.ecfr.gov.
Oliver A. Potts,
Director,
Office of the Federal Register
July 1, 2018
[[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, 2018.
The current regulations issued by the Department 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, National Counterintelligence Center, Central Intelligence
Agency, Information Security Oversight Office, National Security
Council, Office of Science and Technology Policy, Office for Micronesian
Status Negotiations, and Office of the Vice President of the United
States appear in the volume containing part 800 to end.
For this volume, Kenneth R. Payne was Chief Editor. The Code of
Federal Regulations publication program is under the direction of John
Hyrum Martinez, assisted by Stephen J. Frattini.
[[Page 1]]
TITLE 32-NATIONAL DEFENSE
(This book contains part 800 to End)
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SUBTITLE A--Department of Defense (Continued)
Part
chapter vii--Department of the Air Force....................
SUBTITLE B--Other Regulations Relating to National Defense
chapter xii--Defense Logistics Agency....................... 1280
chapter xvi--Selective Service System....................... 1602
chapter xvii--Office of the Director of National
Intelligence.............................................. 1700
chapter xviii--National Counterintelligence Center.......... 1800
chapter xix--Central Intelligence Agency.................... 1900
chapter xx--Information Security Oversight Office, National
Archives and Records Administration....................... 2001
chapter xxi--National Security Council...................... 2102
chapter xxiv--Office of Science and Technology Policy....... 2400
chapter xxvii--Office for Micronesian Status Negotiations... 2700
chapter xxviii--Office of the Vice President of the United
States.................................................... 2800
[[Page 3]]
Subtitle A--Department of Defense (Continued)
[[Page 5]]
CHAPTER VII--DEPARTMENT OF THE AIR FORCE
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SUBCHAPTER A--ADMINISTRATION
Part Page
800-806
[Reserved]
806b Privacy Act Program......................... 7
807 Sale to the public.......................... 43
809a Installation entry policy, civil disturbance
intervention and disaster assistance.... 45
SUBCHAPTER B--SALES AND SERVICES
811 Release, dissemination, and sale of visual
information materials................... 48
813 Visual information documentation program.... 50
SUBCHAPTER C--PUBLIC RELATIONS [RESERVED]
SUBCHAPTER D--CLAIMS AND LITIGATION
842 Administrative claims....................... 53
845 Counsel fees and other expenses in foreign
tribunals............................... 92
SUBCHAPTER E--SECURITY [RESERVED]
SUBCHAPTER F--AIRCRAFT
855 Civil aircraft use of United States Air
Force airfields......................... 96
[[Page 6]]
861 Department of Defense Commercial Air
Transportation Quality and Safety Review
Program................................. 120
SUBCHAPTER G--ORGANIZATION AND MISSION--GENERAL
865 Personnel review boards..................... 134
SUBCHAPTER H [RESERVED]
SUBCHAPTER I--MILITARY PERSONNEL
881 Determination of active military service and
discharge for civilian or contractual
groups.................................. 161
884 Delivery of personnel to United States
civilian authorities for trial.......... 163
887 Issuing of certificates in lieu of lost or
destroyed certificates of separation.... 169
888-888g
[Reserved]
SUBCHAPTER J--CIVILIAN PERSONNEL [RESERVED]
SUBCHAPTER K--MILITARY TRAINING AND SCHOOLS
901 Appointment to the United States Air Force
Academy................................. 172
903 Air Force Academy Preparatory School........ 181
SUBCHAPTERS L-M [RESERVED]
SUBCHAPTER N--TERRITORIAL AND INSULAR REGULATIONS
935 Wake Island Code............................ 187
SUBCHAPTER O--SPECIAL INVESTIGATION [RESERVED]
SUBCHAPTERS P-S [RESERVED]
SUBCHAPTER T--ENVIRONMENTAL PROTECTION
989 Environmental impact analysis process (EIAP) 203
900-999
[Reserved]
[[Page 7]]
SUBCHAPTER A_ADMINISTRATION
PARTS 800 806 [RESERVED]
PART 806b_PRIVACY ACT PROGRAM--Table of Contents
Subpart A_Overview of the Privacy Act Program
Sec.
806b.1 Summary of revisions.
806b.2 Basic guidelines.
806b.3 Violation penalties.
806b.4 Privacy Act complaints.
806b.5 Personal notes.
806b.6 Systems of records operated by a contractor.
806b.7 Responsibilities.
Subpart B_Obtaining Law Enforcement Records and Confidentiality Promises
806b.8 Obtaining law enforcement records.
806b.9 Confidentiality promises.
Subpart C_Collecting Personal Information
806b.10 How to collect personal information.
806b.11 When To Give Privacy Act Statements (PAS).
806b.12 Requesting the Social Security Number.
Subpart D_Giving Access to Privacy Act Records
806b.13 Making a request for access.
806b.14 Processing a request for access.
806b.15 Fees.
806b.16 Denying or limiting access.
806b.17 Special provision for certain medical records.
806b.18 Third party information in a Privacy Act System of records.
806b.19 Information compiled in anticipation of civil action.
806b.20 Denial authorities.
Subpart E_Amending the Record
806b.21 Amendment reasons.
806b.22 Responding to amendment requests.
806b.23 Approving or denying a record amendment.
806b.24 Seeking review of unfavorable Agency determinations.
806b.25 Contents of Privacy Act case files.
Subpart F_Appeals
806b.26 Appeal procedures.
Subpart G_Privacy Act Notifications
806b.27 When to include a Privacy Act warning statement in publications.
806b.28 Warning banners.
806b.29 Sending personal information over electronic mail.
Subpart H_Privacy Impact Assessments
806b.30 Evaluating information systems for Privacy Act compliance.
Subpart I_Preparing and Publishing System Notices for the Federal
Register
806b.31 Publishing System notices.
806b.32 Submitting notices for publication in the Federal Register.
806b.33 Reviewing notices.
Subpart J_Protecting and Disposing of Records
806b.34 Protecting records.
806b.35 Balancing protection.
806b.36 Disposing of records.
Subpart K_Privacy Act Exemptions
806b.37 Exemption types.
806b.38 Authorizing exemptions.
806b.39 Requesting an exemption.
806b.40 Exemptions.
Subpart L_Disclosing Records to Third Parties
806b.41 Disclosure considerations.
806b.42 Social rosters.
806b.43 Placing personal information on shared drives.
806b.44 Personal information that requires protection.
806b.45 Releasable information.
806b.46 Disclosing other information.
806b.47 Rules for releasing Privacy Act information without the consent
of the subject.
806b.48 Disclosing the medical records of minors.
806b.49 Disclosure accountings.
806b.50 Computer matching.
806b.51 Privacy and the Web.
Subpart M_Training
806b.52 Who needs training?
806b.53 Training tools.
806b.54 Information collections, records, and forms or Information
Management Tools (IMT).
Appendix A to Part 806b--Definitions
[[Page 8]]
Appendix B to Part 806b--Preparing a System Notice
Appendix C to Part 806b--DoD ``Blanket Routine Uses''
Appendix D to Part 806b--General and Specific Exemptions
Appendix E to Part 806b--Privacy Impact Assessment
Authority: Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 552a).
Source: 69 FR 954, Jan. 7, 2004, unless otherwise noted.
Subpart A_Overview of the Privacy Act Program
Sec. 806b.1 Summary of revisions.
This part moves responsibility for the Air Force Privacy Program
from Air Force Communications and Information Center to the Air Force
Chief Information Officer; prescribes Air Force Visual Aid 33-276,
Privacy Act Label as optional; adds the E-Gov Act of 2002 requirement
for a Privacy Impact Assessment for all information systems that are new
or have major changes; changes appeal processing from Air Force
Communications and Information Center to Air Force Legal Services
Agency; adds Privacy Act warning language to use on information systems
subject to the Privacy Act, includes guidance on sending personal
information via e-mail; adds procedures on complaints; and provides
guidance on recall rosters; social rosters; consent statements, systems
of records operated by a contractor, and placing information on shared
drives.
Sec. 806b.2 Basic guidelines.
This part implements the Privacy Act of 1974 \1\ and applies to
records on living U.S. citizens and permanent resident aliens that are
retrieved by name or personal identifier. This part also provides
guidance on collecting and disseminating personal information in
general.
---------------------------------------------------------------------------
\1\ http://www.usdoj.gov/04foia/privstat.htm.
---------------------------------------------------------------------------
(a) Records that are retrieved by name or personal identifier are
subject to Privacy Act requirements and are referred to as Privacy Act
systems of records. The Air Force must publish notices in the Federal
Register, describing the collection of information for new, changed or
deleted systems to inform the public and give them an opportunity to
comment before implementing or changing the system. (see appendix B to
this part).
(b) An official system of records is:
(1) Authorized by law or Executive Order.
(2) Needed to carry out an Air Force mission or function.
(3) Published in the Federal Register.
(c) The Air Force will not:
(1) Keep records on how a person exercises First Amendment rights.
Exceptions are when: The Air Force has the permission of that individual
or is authorized by Federal statute; or the information pertains to, and
is within the scope of, an authorized law enforcement activity. First
Amendment rights include, but are not limited to, freedom of religion,
freedom of political beliefs, freedom of speech, freedom of the press,
the right to assemble, and the right to petition.
(2) Penalize or harass an individual for exercising rights
guaranteed under the Privacy Act. We must reasonably help individuals
exercise their rights under the Privacy Act.
(d) Air Force members will:
(1) Keep paper and electronic records that are retrieved by name or
personal identifier only in approved Privacy Act systems published in
the Federal Register.
(2) Collect, maintain, and use information in such systems, for
purposes described in the published notice, to support programs
authorized by law or Executive Order.
(3) Safeguard the records in the system and keep them the minimum
time required.
(4) Ensure records are timely, accurate, complete, and relevant.
(5) Amend and correct records on request.
(6) Allow individuals to review and receive copies of their own
records unless the Secretary of the Air Force approved an exemption for
the system; or the Air Force created the records in anticipation of a
civil action or proceeding (5 U.S.C. 552a(d)(5)).
[[Page 9]]
(7) Provide a review of decisions that deny individuals access to or
amendment of their records through appellate procedures.
Sec. 806b.3 Violation penalties.
An individual may file a civil law suit against the Air Force for
failing to comply with the Privacy Act. The courts may find an
individual offender guilty of a misdemeanor and fine that individual
offender not more than $5,000 for:
(a) Willfully maintaining a system of records that doesn't meet the
public notice requirements.
(b) Disclosing information from a system of records to someone not
entitled to the information.
(c) Obtaining someone else's records under false pretenses.
Sec. 806b.4 Privacy Act complaints.
(a) Process Privacy Act complaints or allegations of Privacy Act
violations through the appropriate base or Major Command Privacy Act
office, to the local systems manager. The base or Major Command Privacy
Act officer directs the process and provides guidance to the system
manager. The local systems manager will investigate complaints, or
allegations of Privacy Act violations; will establish and review the
facts when possible; interview individuals as needed; determine validity
of the complaint; take appropriate corrective action; and ensure a
response is sent to the complainant through the Privacy Act Officer. In
cases where no system manager can be identified, the local Privacy Act
officer will assume these duties. Issues that cannot be resolved at the
local level will be elevated to the Major Command Privacy Office. When
appropriate, local system managers will also: refer cases for more
formal investigation, refer cases for command disciplinary action, and
consult the servicing Staff Judge Advocate. In combatant commands,
process component unique system complaints through the respective
component chain of command.
(b) For Privacy Act complaints filed in a U.S. District Court
against the Air Force, an Air Force activity, or any Air Force employee,
Air Force Legal Services Agency, General Litigation Division (JACL) will
provide Air Force Chief Information Officer/P a litigation summary to
include: The case number, requester name, the nature of the case (denial
of access, refusal to amend, incorrect records, or specify the
particular violation of the Privacy Act), date complaint filed, court,
defendants, and any appropriate remarks, as well as updates during the
litigation process. When the court renders a formal opinion or judgment,
Air Force Legal Services Agency, General Litigation Division (JACL)
sends Air Force Chief Information Officer/P a copy of the judgment and
opinion.
Sec. 806b.5 Personal notes.
The Privacy Act does not apply to personal notes on individuals used
as memory aids. Personal notes may become Privacy Act records if they
are retrieved by name or other personal identifier and at least one of
the following three conditions apply: Keeping or destroying the records
is not at the sole discretion of the author; the notes are required by
oral or written directive, regulation, or command policy; or they are
shown to other agency personnel.
Sec. 806b.6 Systems of records operated by a contractor.
Contractors who are required to operate or maintain a Privacy Act
system of records by contract must follow this part for collecting,
safeguarding, maintaining, using, accessing, amending and disseminating
personal information. The record system affected is considered to be
maintained by the Air Force and is subject to this part. Systems
managers for offices who have contractors operating or maintaining such
record systems must ensure the contract contains the proper Privacy Act
clauses, and identify the record system number, as required by the
Defense Acquisition Regulation and this part.
(a) Contracts for systems of records operated or maintained by a
contractor will be reviewed annually by the appropriate Major Command
Privacy Officer to ensure compliance with this part.
(b) Disclosure of personal records to a contractor for use in the
performance of an Air Force contract is considered
[[Page 10]]
a disclosure within the agency under exception (b)(1) of the Privacy Act
(see Sec. 806b.47(a)).
Sec. 806b.7 Responsibilities.
(a) The Air Force Chief Information Officer is the senior Air Force
Privacy Official with overall responsibility for the Air Force Privacy
Act Program.
(b) The Office of the General Counsel to the Secretary of the Air
Force, Fiscal and Administrative Law Division (GCA) makes final
decisions on appeals.
(c) The General Litigation Division, Air Force Legal Services Agency
(JACL), receives Privacy Act appeals and provides recommendations to the
appellate authority. Service unique appeals, from combatant commands,
should go through the respective chain of command.
(d) The Plans and Policy Directorate, Office of the Chief
Information Officer manages the program through the Air Force Privacy
Act Officer who:
(1) Administers procedures outlined in this part.
(2) Reviews publications and forms for compliance with this part.
(3) Reviews and approves proposed new, altered, and amended systems
of records; and submits system notices and required reports to the
Defense Privacy Office.
(4) Serves as the Air Force member on the Defense Privacy Board and
the Defense Data Integrity Board.
(5) Provides guidance and assistance to Major Commands, field
operating agencies, direct reporting units and combatant commands for
which AF is executive agent in their implementation and execution of the
Air Force Privacy Program. Ensures availability of training and training
tools for a variety of audiences.
(6) Provides advice and support to those commands to ensure that
information requirements developed to collect or maintain personal data
conform to Privacy Act standards; and that appropriate procedures and
safeguards are developed, implemented, and maintained to protect the
information.
(e) Major Command commanders, and Deputy Chiefs of Staff and
comparable officials at Secretary of the Air Force and Headquarters
United States Air Force offices implement this part.
(f) 11th Communications Squadron will provide Privacy Act training
and submit Privacy Act reports for Headquarters United States Air Force
and Secretary of the Air Force offices.
(g) Major Command Commanders: Appoint a command Privacy Act officer,
and send the name, office symbol, phone number, and e-mail address to
Air Force Chief Information Officer/P.
(h) Major Command and Headquarters Air Force Functional Chief
Information Officers:
(1) Review and provide final approval on Privacy Impact Assessments
(see appendix E of this part).
(2) Send a copy of approved Privacy Impact Assessments to Air Force
Chief Information Officer/P.
(i) Major Command Privacy Act Officers:
(1) Train base Privacy Act officers. May authorize appointment of
unit Privacy Act monitors to assist with implementation of the program.
(2) Promote Privacy Act awareness throughout the organization.
(3) Review publications and forms for compliance with this part (do
forms require a Privacy Act Statement; is Privacy Act Statement
correct?).
(4) Submit reports as required.
(5) Review system notices to validate currency.
(6) Evaluate the health of the program at regular intervals using
this part as guidance.
(7) Review and provide recommendations on completed Privacy Impact
Assessments for information systems.
(8) Resolve complaints or allegations of Privacy Act violations.
(9) Review and process denial recommendations.
(10) Provide guidance as needed to functionals on implementing the
Privacy Act.
(j) Base Privacy Act Officers:
(1) Provide guidance and training to base personnel.
(2) Submit reports as required.
(3) Review publications and forms for compliance with this part.
(4) Review system notices to validate currency.
(5) Direct investigations of complaints/violations.
[[Page 11]]
(6) Evaluate the health of the program at regular intervals using
this part as guidance.
(k) System Managers:
(1) Manage and safeguard the system.
(2) Train users on Privacy Act requirements.
(3) Protect records from unauthorized disclosure, alteration, or
destruction.
(4) Prepare system notices and reports.
(5) Answer Privacy Act requests.
(6) Records of disclosures.
(7) Validate system notices annually.
(8) Investigate Privacy Act complaints.
(l) System owners and developers:
(1) Decide the need for, and content of systems.
(2) Evaluate Privacy Act requirements of information systems in
early stages of development.
(3) Complete a Privacy Impact Assessment and submit to the Privacy
Act Officer.
Subpart B_Obtaining Law Enforcement Records and Confidentiality Promises
Sec. 806b.8 Obtaining law enforcement records.
The Commander, Air Force Office of Special Investigation; the
Commander, Air Force Security Forces Center; Major Command, Field
Operating Agency, and base chiefs of security forces; Air Force Office
of Special Investigations detachment commanders; and designees of those
offices may ask another agency for records for law enforcement under 5
U.S.C. 552a(b)(7). The requesting office must indicate in writing the
specific part of the record desired and identify the law enforcement
activity asking for the record.
Sec. 806b.9 Confidentiality promises.
Promises of confidentiality must be prominently annotated in the
record to protect from disclosure any ``confidential'' information under
5 United States Code 552a(k)(2), (k)(5), or (k)(7) of the Privacy Act.
Subpart C_Collecting Personal Information
Sec. 806b.10 How to collect personal information.
Collect personal information directly from the subject of the record
whenever possible. Only ask third parties when:
(a) You must verify information.
(b) You want opinions or evaluations.
(c) You can't contact the subject.
(d) You are doing so at the request of the subject individual.
Sec. 806b.11 When to give Privacy Act Statements (PAS).
(a) Give a PAS orally or in writing to the subject of the record
when you are collecting information from them that will go in a system
of records. Note: Do this regardless of how you collect or record the
answers. You may display a sign in areas where people routinely furnish
this kind of information. Give a copy of the Privacy Act Statement if
asked. Do not ask the person to sign the Privacy Act Statement.
(b) A Privacy Act Statement must include four items:
(1) Authority: The legal authority, that is, the U.S.C. or Executive
Order authorizing the program the system supports.
(2) Purpose: The reason you are collecting the information and what
you intend to do with it.
(3) Routine Uses: A list of where and why the information will be
disclosed outside DoD.
(4) Disclosure: Voluntary or Mandatory. (Use Mandatory only when
disclosure is required by law and the individual will be penalized for
not providing information.) Include any consequences of nondisclosure in
non-threatening language.
Sec. 806b.12 Requesting the Social Security Number.
When asking an individual for his or her Social Security Number,
always give a Privacy Act Statement that tells the person: The legal
authority for requesting it; the uses that will be made of the Social
Security Number; and whether providing the Social Security Number is
voluntary or mandatory. Do not deny anyone a legal right,
[[Page 12]]
benefit, or privilege for refusing to give their Social Security Number
unless the law requires disclosure, or a law or regulation adopted
before January 1, 1975 required the Social Security Number and the Air
Force uses it to verify a person's identity in a system of records
established before that date.
(a) The Air Force requests an individual's Social Security Number
and provides the individual information required by law when anyone
enters military service or becomes an Air Force civilian employee. The
Air Force uses the Social Security Number as a service or employment
number to reference the individual's official records. When you ask
someone for a Social Security Number as identification to retrieve an
existing record, you do not have to restate this information.
(b) Executive Order 9397, Numbering System for Federal Accounts
Relating to Individual Persons \2\, authorizes using the Social Security
Number as a personal identifier. This order is not adequate authority to
collect a Social Security Number to create a record. When law does not
require disclosing the Social Security Number or when the system of
records was created after January 1, 1975, you may ask for the Social
Security Number, but the individual does not have to disclose it. If the
individual refuses to respond, use alternative means of identifying
records. (c) Social Security Numbers are personal and unique to each
individual. Protect them as for official use only (FOUO).
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Within DoD, do not disclose them to anyone without an official need
to know. Outside DoD, they are not releasable without the person's
consent, or unless authorized under one of the 12 exceptions to the
Privacy Act (see Sec. 806b.47).
Subpart D_Giving Access to Privacy Act Records
Sec. 806b.13 Making a Request for Access.
Persons or their designated representatives may ask for a copy of
their records in a system of records. Requesters need not state why they
want access to their records. Verify the identity of the requester to
avoid unauthorized disclosures. How you verify identity will depend on
the sensitivity of the requested records. Persons may use a notary or an
unsworn declaration in the following format: ``I declare under penalty
of perjury (if outside the United States, add ``under the laws of the
United States of America'') that the foregoing is true and correct.
Executed on (date). (Signature).''
Sec. 806b.14 Processing a Request for Access.
Consider a request from an individual for his or her own records in
a system of records under both the Freedom of Information Act and the
Privacy Act regardless of the Act cited. The requester does not need to
cite either Act if the records they want are contained in a system of
records. Process the request under whichever Act gives the most
information. When necessary, tell the requester which Act you used and
why.
(a) Requesters should describe the records they want. They do not
have to name a system of records number, but they should at least name a
type of record or functional area. For requests that ask for ``all
records about me,'' ask for more information and tell the person how to
review the Air Force systems of records published in the Federal
Register or at http://www.defenselink.mil/privacy/notices/usaf.
(b) Requesters should not use government equipment, supplies,
stationery, postage, telephones, or official mail channels for making
Privacy Act requests. System managers will process such requests and
tell requesters that using government resources to make Privacy Act
requests is not authorized.
(c) Tell the requester if a record exists and how to review the
record. If possible, respond to requests within 10 workdays of receipt.
If you cannot answer the request in 10 workdays, send a letter
explaining why and give an approximate completion date no more than 20
workdays after the first office received the request.
(d) Show or give a copy of the record to the requester within 30
workdays of receiving the request unless the system
[[Page 13]]
is exempt and the Air Force lists the exemption in appendix D to this
part; or it is published in this section; or published as a final rule
in the Federal Register. Give information in a form the requester can
understand. If the system is exempt under the Privacy Act, provide any
parts releasable under the Freedom of Information Act, with appeal
rights (See subpart F of this part), citing appropriate exemptions from
the Privacy Act and the Freedom of Information Act, if applicable.
(e) If the requester wants another person present during the record
review, the system manager may ask for written consent to authorize
discussing the record with another person present.
Sec. 806b.15 Fees.
Give the first 100 pages free, and charge only reproduction costs
for the remainder. Copies cost $.15 per page; microfiche costs $.25 per
fiche. Charge fees for all pages for subsequent requests for the same
records. Do not charge fees:
(a) When the requester can get the record without charge under
another publication (for example, medical records).
(b) For search.
(c) For reproducing a document for the convenience of the Air Force.
(d) For reproducing a record so the requester can review it.
Fee waivers. Waive fees automatically if the direct cost of
reproduction is less than $15, unless the individual is seeking an
obvious extension or duplication of a previous request for which he or
she was granted a waiver. Decisions to waive or reduce fees that exceed
$15 are made on a case-by-case basis.
Sec. 806b.16 Denying or limiting access.
System managers process access denials within 5 workdays after you
receive a request for access. When you may not release a record, send a
copy of the request, the record, and why you recommend denying access
(include the applicable exemption) to the denial authority through the
legal office and the Privacy Act office. Judge Advocate offices will
include a written legal opinion. The Privacy Act officer reviews the
file, and makes a recommendation to the denial authority. The denial
authority sends the requester a letter with the decision. If the denial
authority grants access, release the record. If the denial authority
refuses access, tell the requester why and explain pertinent appeal
rights (see subpart F of this part). Before you deny a request for
access to a record, make sure that:
(a) The system has an exemption rule published in the Federal
Register as a final rule.
(b) The exemption covers each document. (All parts of a system are
not automatically exempt.)
(c) Nonexempt parts are segregated.
Sec. 806b.17 Special provision for certain medical records.
If a physician believes that disclosing requested medical records
could harm the person's mental or physical health, you should:
(a) Ask the requester to get a letter from a physician to whom you
can send the records. Include a letter explaining to the physician that
giving the records directly to the individual could be harmful.
(b) Offer the services of a military physician other than one who
provided treatment if naming the physician poses a hardship on the
individual.
(c) The Privacy Act requires that we ultimately insure that the
subject receives the records.
Sec. 806b.18 Third party information in a Privacy Act System of Record.
Ordinarily a person is entitled to their entire record under the
Privacy Act. However, the law is not uniform regarding whether a subject
is entitled to information that is not ``about'' him or her (for
example, the home address of a third party contained in the subject's
records). Consult your servicing Staff Judge Advocate before disclosing
third party information. Generally, if the requester will be denied a
right, privilege or benefit, the requester must be given access to
relevant portions of the file.
[[Page 14]]
Sec. 806b.19 Information compiled in anticipation of civil action.
Withhold records compiled in connection with a civil action or other
proceeding including any action where the Air Force expects judicial or
administrative adjudicatory proceedings. This exemption does not cover
criminal actions. Do not release attorney work products prepared before,
during, or after the action or proceeding.
Sec. 806b.20 Denial authorities.
These officials or a designee may deny access or amendment of
records as authorized by the Privacy Act. Send a letter to Air Force
Chief Information Officer/P with the position titles of designees.
Authorities are:
(a) Deputy Chief of Staffs and chiefs of comparable offices or
higher level at Secretary of the Air Force or Headquarters United States
Air Force or designees.
(b) Major Command, Field Operating Agency, or direct reporting unit
commanders or designees.
(c) Director, Personnel Force Management, 1040 Air Force Pentagon,
Washington, DC 20330-1040 (for civilian personnel records).
(d) Commander, Air Force Office of Special Investigations,
Washington, DC 20332-6001 (for Air Force Office of Special
Investigations records).
(e) Unified Commanders or designees.
Subpart E_Amending the Record
Sec. 806b.21 Amendment reasons.
Individuals may ask to have their records amended to make them
accurate, timely, relevant, or complete. System managers will routinely
correct a record if the requester can show that it is factually wrong
(e.g., date of birth is wrong).
Sec. 806b.22 Responding to amendment requests.
(a) Anyone may request minor corrections orally. Requests for more
serious modifications should be in writing.
(b) After verifying the identity of the requester, make the change,
notify all known recipients of the record, and inform the individual.
(c) Acknowledge requests within 10 workdays of receipt. Give an
expected completion date unless you complete the change within that
time. Final decisions must take no longer than 30 workdays.
Sec. 806b.23 Approving or denying a record amendment.
The Air Force does not usually amend a record when the change is
based on opinion, interpretation, or subjective official judgment.
Determinations not to amend such records constitutes a denial, and
requesters may appeal (see subpart F of this part).
(a) If the system manager decides not to amend the record, send a
copy of the request, the record, and the recommended denial reasons to
the denial authority through the legal office and the Privacy Act
office. Legal offices will include a written legal opinion. The Privacy
Act officer reviews the proposed denial and legal opinion and makes a
recommendation to the denial authority.
(b) The denial authority sends the requester a letter with the
decision. If the denial authority approves the request, amend the record
and notify all previous recipients that it has been changed. If the
authority denies the request, give the requester the statutory
authority, reason, and pertinent appeal rights (see subpart F of this
part).
Sec. 806b.24 Seeking review of unfavorable Agency determinations.
Requesters should pursue record corrections of subjective matters
and opinions through proper channels to the Civilian Personnel Office
using grievance procedures or the Air Force Board for Correction of
Military Records. Record correction requests denied by the Air Force
Board for Correction of Military Records are not subject to further
consideration under this part. Military personnel, other than U.S. Air
Force personnel, should pursue service-unique record corrections through
their component chain of command.
Sec. 806b.25 Contents of Privacy Act case files.
Do not keep copies of disputed records in this file. File disputed
[[Page 15]]
records in their appropriate series. Use the file solely for statistics
and to process requests. Do not use the case files to make any kind of
determination about an individual. Document reasons for untimely
responses. These files include:
(a) Requests from and replies to individuals on whether a system has
records about them.
(b) Requests for access or amendment.
(c) Approvals, denials, appeals, and final review actions.
(d) Coordination actions and related papers.
Subpart F_Appeals
Sec. 806b.26 Appeal procedures.
Individuals who receive a denial to their access or amendment
request may request a denial review by writing to the Secretary of the
Air Force, through the denial authority, within 60 calendar days after
receiving a denial letter. The denial authority promptly sends a
complete appeal package to Air Force Legal Services Agency, General
Litigation Division (JACL). The package must include:
(1) The original appeal letter;
(2) The initial request;
(3) The initial denial;
(4) A copy of the record;
(5) Any internal records or coordination actions relating to the
denial;
(6) The denial authority's comments on the appellant's arguments;
and
(7) The legal reviews.
(a) If the denial authority reverses an earlier denial and grants
access or amendment, notify the requester immediately.
(b) Air Force Legal Services Agency, General Litigation Division
(JACL) reviews the denial and provides a final recommendation to
Secretary of the Air Force, Fiscal and Administrative Law Division
(GCA). Secretary of the Air Force, Fiscal and Administrative Law
Division (GCA) tells the requester the final Air Force decision and
explains judicial review rights.
(c) The requester may file a concise statement of disagreement with
the system manager if Secretary of the Air Force, Fiscal and
Administrative Law Division (GCA) denies the request to amend the
record. Secretary of the Air Force, Fiscal and Administrative Law
Division (GCA) explains the requester's rights when they issue the final
appeal decision.
(d) The records should clearly show that a statement of disagreement
is filed with the record or separately.
(e) The disputed part of the record must show that the requester
filed a statement of disagreement.
(f) Give copies of the statement of disagreement to the record's
previous recipients. Inform subsequent record users about the dispute
and give them a copy of the statement with the record.
(g) The system manager may include a brief summary of the reasons
for not amending the record. Limit the summary to the reasons Secretary
of the Air Force, Fiscal and Administrative Law Division (GCA) gave to
the individual. The summary is part of the individual's record, but it
is not subject to amendment procedures.
Subpart G_Privacy Act Notifications
Sec. 806b.27 When to include a Privacy Act warning statement in
publications.
Include a Privacy Act Warning Statement in each Air Force
publication that requires collecting or keeping information in a system
of records. Also include the Warning Statement when publications direct
collection of the Social Security Number, or any part of the Social
Security Number, from the individual. The warning statement will cite
legal authority and when part of a record system, the Privacy Act system
of records number and title. You can use the following warning
statement: ``This instruction requires collecting and maintaining
information protected by the Privacy Act of 1974 authorized by (U.S.C.
citation and or Executive Order number). System of records notice
(number and title) applies.''
Sec. 806b.28 Warning banners.
Information systems that contain information on individuals that is
retrieved by name or personal identifier are subject to the Privacy Act.
The Privacy Act requires these systems to
[[Page 16]]
have a Privacy Act system notice published in the Federal Register that
covers the information collection before collection begins. In addition,
all information systems subject to the Privacy Act will have warning
banners displayed on the first screen (at a minimum) to assist in
safeguarding the information. Use the following language for the banner:
``PRIVACY ACT INFORMATION--The information accessed through this system
is FOR OFFICIAL USE ONLY and must be protected in accordance with the
Privacy Act and Air Force Instruction 33-332.''
Sec. 806b.29 Sending personal information over electronic mail.
(a) Exercise caution before transmitting personal information over
e-mail to ensure it is adequately safeguarded. Some information may be
so sensitive and personal that e-mail may not be the proper way to
transmit it. When sending personal information over e-mail within DoD,
ensure: There is an official need; all addressee(s) (including ``cc''
addressees) are authorized to receive it under the Privacy Act; and it
is protected from unauthorized disclosure, loss, or alteration.
Protection methods may include encryption or password protecting the
information in a separate Word document. When transmitting personal
information over e-mail, add ``FOUO'' to the beginning of the subject
line, followed by the subject, and apply the following statement at the
beginning of the e-mail:
``This e-mail contains For Official Use Only (FOUO) information
which must be protected under the Privacy Act and Air Force Instruction
33-332.''
(b) Do not indiscriminately apply this statement to e-mails. Use it
only in situations when you are actually transmitting personal
information. DoD Regulation 5400.7/Air Force Supp, Chapter 4 \3\,
provides additional guidance regarding For Official Use Only
information.
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(c) Do not disclose personal information to anyone outside DoD
unless specifically authorized by the Privacy Act (see Sec. 806b.47).
(d) Do not send Privacy Act information to distribution lists or
group e-mail addresses unless each member has an official need to know
the personal information. When in doubt, send only to individual
accounts.
(e) Before forwarding e-mails you have received that contain
personal information, verify that your intended recipients are
authorized to receive the information under the Privacy Act (see Sec.
806b.47).
Subpart H_Privacy Impact Assessments
Sec. 806b.30 Evaluating information systems for Privacy Act compliance.
Information system owners and developers must address Privacy Act
requirements in the development stage of the system and integrate
privacy protections into the development life cycle of the information
system. This is accomplished with a Privacy Impact Assessment.
(a) The Privacy Impact Assessment addresses what information is to
be collected; why the information is being collected; the intended use
of the information; with whom the information will be shared; what
notice or opportunities for the individual to decline or consent to
providing the information collected, and how that information is shared;
secured; and whether a system of records is being created, or an
existing system is being amended. The E-Government Act of 2002 \4\
requires Privacy Impact Assessments to be conducted before:
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(1) Developing or procuring information technology systems or
projects that collect, maintain, or disseminate information in
identifiable form from or about members of the public.
(2) Initiating a new electronic collection of information in
identifiable form for 10 or more persons excluding agencies,
instrumentalities, or employees of the Federal Government.
(b) In general, Privacy Impact Assessments are required to be
performed and updated as necessary where a system change creates new
privacy risks.
[[Page 17]]
(c) No Privacy Impact Assessment is required where information
relates to internal government operations, has been previously assessed
under an evaluation similar to a Privacy Impact Assessment, or where
privacy issues are unchanged.
(d) The depth and content of the Privacy Impact Assessment should be
appropriate for the nature of the information to be collected and the
size and complexity of the information technology system.
(e) The system owner will conduct a Privacy Impact Assessment as
outlined in appendix E to this part and send it to their Major Command
Privacy Act office for review and final approval by the Major Command or
Headquarters Air Force Functional Chief Information Officer. The Major
Command or Headquarters Air Force Functional Chief Information Officer
will send a copy of approved Privacy Impact Assessments to Air Force
Chief Information Officer/P, 1155 Air Force Pentagon, Washington DC
20330-1155; or e-mail [email protected].
(f) Whenever practicable, approved Privacy Impact Assessments will
be posted to the Freedom of Information Act/Privacy Act Web site for
public access at http://www.foia.af.mil (this requirement will be waived
for security reasons, or to protect classified, sensitive, or private
information contained in an assessment).
Subpart I_Preparing and Publishing System Notices for the Federal
Register
Sec. 806b.31 Publishing system notices.
The Air Force must publish notices in the Federal Register of new,
changed, and deleted systems to inform the public of what records the
Air Force keeps and give them an opportunity to comment before the
system is implemented or changed. The Privacy Act also requires
submission of new or significantly changed systems to the Office of
Management and Budget and both houses of Congress before publication in
the Federal Register. This includes:
(a) Starting a new system.
(b) Instituting significant changes to an existing system.
(c) Sending out data collection forms or instructions.
(d) Issuing a request for proposal or invitation for bid to support
a new system.
Sec. 806b.32 Submitting notices for publication in the Federal Register.
At least 120 days before implementing a new system, or a major
change to an existing system, subject to this part, system managers must
send a proposed notice, through the Major Command Privacy Office, to Air
Force Chief Information Officer/P. Send notices electronically to
[email protected] using Microsoft Word, using the Track Changes
tool in Word to indicate additions/changes to existing notices. Follow
the format outlined in appendix B to this part. For new systems, system
managers must include a statement that a risk assessment was
accomplished and is available should the Office of Management and Budget
request it.
Sec. 806b.33 Reviewing notices.
System managers will review and validate their Privacy Act system
notices annually and submit changes to Air Force Chief Information
Officer/P through the Major Command Privacy Office.
Subpart J_Protecting and Disposing of Records
Sec. 806b.34 Protecting records.
Maintaining information privacy is the responsibility of every
federal employee, military member, and contractor who comes into contact
with information in identifiable form. Protect information according to
its sensitivity level. Consider the personal sensitivity of the
information and the risk of disclosure, loss or alteration. Most
information in systems of records is FOUO. Refer to DoD 5400.7-R/Air
Force Supp, DoD Freedom of Information Act Program, for protection
methods.
Sec. 806b.35 Balancing protection.
Balance additional protection against sensitivity, risk and cost. In
some situations, a password may be enough protection for an automated
system with a log-on protocol. Others
[[Page 18]]
may require more sophisticated security protection based on the
sensitivity of the information. Classified computer systems or those
with established audit and password systems are obviously less
vulnerable than unprotected files. Follow Air Force Instruction 33-202,
Computer Security, \5\ for procedures on safeguarding personal
information in automated records.
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(a) AF Form 3227, Privacy Act Cover Sheet, \6\ is optional and
available for use with Privacy Act material. Use it to cover and protect
personal information that you are using in office environments that are
widely unprotected and accessible to many individuals. After use, such
information should be protected as outlined in DoD 5400.7-R/Air Force
Supp.
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(b) Privacy Act Labels. Use of Air Force Visual Aid 33-276, Privacy
Act Label, is optional to assist in protecting Privacy Act information
on compact disks, diskettes, and tapes.
Sec. 806b.36 Disposing of records.
You may use the following methods to dispose of records protected by
the Privacy Act and authorized for destruction according to records
retention schedules:
(a) Destroy by any method that prevents compromise, such as tearing,
burning, or shredding, so long as the personal data is not recognizable
and beyond reconstruction.
(b) Degauss or overwrite magnetic tapes or other magnetic medium.
(c) Dispose of paper products through the Defense Reutilization and
Marketing Office or through activities that manage a base-wide recycling
program. The recycling sales contract must contain a clause requiring
the contractor to safeguard privacy material until its destruction and
to pulp, macerate, shred, or otherwise completely destroy the records.
Originators must safeguard Privacy Act material until it is transferred
to the recycling contractor. A Federal employee or, if authorized, a
contractor employee must witness the destruction. This transfer does not
require a disclosure accounting.
Subpart K_Privacy Act Exemptions
Sec. 806b.37 Exemption types.
There are two types of exemptions permitted by 5 U.S.C. 552a:
(a) A General exemption authorizes the exemption of a system of
records from most parts of the Privacy Act.
(b) A Specific exemption authorizes the exemption of a system of
records from only a few parts.
Sec. 806b.38 Authorizing exemptions.
Denial authorities may withhold records using Privacy Act exemptions
only when an exemption for the system of records has been published in
the Federal Register as a final rule. Appendix D lists the systems of
records that have published exemptions with rationale.
Sec. 806b.39 Requesting an exemption.
A system manager who believes that a system needs an exemption from
some or all of the requirements of the Privacy Act will send a request
to Air Force Chief Information Officer/P through the Major Command or
Field Operating Agency Privacy Act Officer. The request will detail the
reasons for the exemption, the section of the Act that allows the
exemption, and the specific subsections of the Privacy Act from which
the system is to be exempted, with justification for each subsection.
Sec. 806b.40 Exemptions.
Exemptions permissible under 5 U.S.C. 552a (subject to Sec. 806b.38
of this part):
(a) The (j)(2) exemption. Applies to investigative records created
and maintained by law-enforcement activities whose principal function is
criminal law enforcement.
(b) The (k)(1) exemption. Applies to information specifically
authorized to be classified under the DoD Information Security Program
Regulation, 32 CFR part 159.
(c) The (k)(2) exemption. Applies to investigatory information
compiled for
[[Page 19]]
law-enforcement purposes by nonlaw enforcement activities and which is
not within the scope of Sec. 806b.40(a) of this part. However, the Air
Force must allow an individual access to any record that is used to deny
rights, privileges or benefits to which he or she would otherwise be
entitled by Federal law or for which he or she would otherwise be
eligible as a result of the maintenance of the information (unless doing
so would reveal a confidential source).
(d) The (k)(3) exemption. Applies to records maintained in
connection with providing protective services to the President and other
individuals under 18 U.S.C. 3506.
(e) The (k)(4) exemption. Applies to 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.
(f) The (k)(5) exemption. Applies to 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.
(g) The (k)(6) exemption. Applies to 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.
(h) The (k)(7) exemption. Applies to 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.
Subpart L_Disclosing Records to Third Parties
Sec. 806b.41 Disclosure considerations.
The Privacy Act requires the written consent of the subject before
releasing personal information to third parties, unless one of the 12
exceptions of the Privacy Act applies (see Sec. 806b.47). Use this
checklist before releasing personal information to third parties: Make
sure it is authorized under the Privacy Act; consider the consequences;
and check the accuracy of the information. You can release personal
information to third parties when the subject agrees in writing. Air
Force members consent to releasing their home telephone number and
address when they sign and check the ``Do Consent'' block on the AF Form
624, Base/Unit Locator and Postal Service Center Directory \7\(see Air
Force Instruction 33-329, Base and Unit Personnel Locators \8\).
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Sec. 806b.42 Social rosters.
Before including personal information such as spouses names, home
addresses, home phones, and similar information on social rosters or
directories that are shared with groups of individuals, ask for signed
consent statements. Otherwise, do not include the information. Consent
statements must give the individual a choice to consent or not consent,
and clearly tell the individual what information is being solicited, the
purpose, to whom you plan to disclose the information, and that consent
is voluntary. Maintain the signed statements until no longer needed.
Sec. 806b.43 Placing personal information on shared drives.
Personal information should never be placed on shared drives for
access by groups of individuals unless each person has an official need
to know the information to perform their job. Add appropriate access
controls to ensure access by only authorized individuals. Recall rosters
are FOUO because they contain personal information and
[[Page 20]]
should be shared with small groups at the lowest levels for official
purposes to reduce the number of people with access to such personal
information. Commanders and supervisors should give consideration to
those individuals with unlisted phone numbers, who do not want their
number included on the office recall roster. In those instances,
disclosure to the Commander or immediate supervisor, or deputy, should
normally be sufficient.
Sec. 806b.44 Personal information that requires protection.
Following are some examples of information that is not releasable
without the written consent of the subject. This list is not all-
inclusive.
(a) Marital status (single, divorced, widowed, separated).
(b) Number, name, and sex of dependents.
(c) Civilian educational degrees and major areas of study (unless
the request for the information relates to the professional
qualifications for Federal employment).
(d) School and year of graduation.
(e) Home of record.
(f) Home address and phone.
(g) Age and date of birth (year).
(h) Present or future assignments for overseas or for routinely
deployable or sensitive units.
(i) Office and unit address and duty phone for overseas or for
routinely deployable or sensitive units.
(j) Race/ethnic origin.
(k) Educational level (unless the request for the information
relates to the professional qualifications for Federal employment).
(l) Social Security Number.
Sec. 806b.45 Releasable information.
Following are examples of information normally releasable to the
public without the written consent of the subject. This list is not all-
inclusive.
(a) Name.
(b) Rank.
(c) Grade.
(d) Air Force specialty code.
(e) Pay (including base pay, special pay, all allowances except
Basic Allowance for Quarters and Variable Housing Allowance).
(f) Gross salary for civilians.
(g) Past duty assignments, unless sensitive or classified.
(h) Present and future approved and announced stateside assignments.
(i) Position title.
(j) Office, unit address, and duty phone number (Continental United
States (CONUS) only).
(k) Date of rank.
(l) Entered on active duty date.
(m) Pay date.
(n) Source of commission.
(o) Professional military education.
(p) Promotion sequence number.
(q) Military awards and decorations.
(r) Duty status of active, retired, or reserve.
(s) Active duty official attendance at technical, scientific, or
professional meetings.
(t) Biographies and photos of key personnel.
(u) Date of retirement, separation.
Sec. 806b.46 Disclosing other information.
Use these guidelines to decide whether to release information:
(a) Would the subject have a reasonable expectation of privacy in
the information requested?
(b) Would disclosing the information benefit the general public? The
Air Force considers information as meeting the public interest standard
if it reveals anything regarding the operations or activities of the
agency, or performance of its statutory duties.
(c) Balance the public interest against the individual's probable
loss of privacy. Do not consider the requester's purpose, circumstances,
or proposed use.
Sec. 806b.47 Rules for releasing Privacy Act information without
consent of the subject.
The Privacy Act prohibits disclosing personal information to anyone
other than the subject of the record without his or her written consent.
There are twelve exceptions to the ``no disclosure without consent''
rule. Those exceptions permit release of personal information without
the individual's consent only in the following instances:
(a) Exception 1. DoD employees who have a need to know the
information in the performance of their official duties.
[[Page 21]]
(b) Exception 2. In response to a Freedom of Information Act request
for information contained in a system of records about an individual and
the Freedom of Information Act requires release of the information.
(c) Exception 3. To agencies outside DoD only for a Routine Use
published in the Federal Register. The purpose of the disclosure must be
compatible with the intended purpose of collecting and maintaining the
record. When initially collecting the information from the subject, the
Routine Uses block in the Privacy Act Statement must name the agencies
and reason.
Note to paragraph (c): In addition to the Routine Uses established
by the Department of the Air Force within each system of records, the
DoD has established ``Blanket Routine Uses'' that apply to all record
systems maintained by the Department of the Air Force. These ``Blanket
Routine Uses'' have been published only once at the beginning of the
Department of the Air Force's Federal Register compilation of record
systems notices in the interest of simplicity, economy and to avoid
redundancy. Unless a system notice specifically excludes a system of
records from a ``Blanket Routine Use,'' all ``Blanket Routine Uses''
apply to that system (see appendix C to this part).
(d) Exception 4. The Bureau of the Census to plan or carry out a
census or survey under Title 13, U.S.C. Section 8.
(e) Exception 5. A recipient for statistical research or reporting.
The recipient must give advanced written assurance that the information
is for statistical purposes only.
Note: No one may use any part of the record to decide on
individuals' rights, benefits, or entitlements. You must release records
in a format that makes it impossible to identify the real subjects.
(f) Exception 6. The National Archives and Records Administration to
evaluate records for permanent retention. Records stored in Federal
Records Centers remain under Air Force control.
(g) Exception 7. A Federal, State, or local agency (other than DoD)
for civil or criminal law enforcement. The head of the agency or a
designee must send a written request to the system manager specifying
the record or part needed and the law enforcement purpose. In addition,
the ``blanket routine use'' for law enforcement allows the system
manager to disclose a record to a law enforcement agency if the agency
suspects a criminal violation.
(h) Exception 8. An individual or agency that needs the information
for compelling health or safety reasons. The affected individual need
not be the record subject.
(i) Exception 9. Either House of Congress, a congressional
committee, or a subcommittee, for matters within their jurisdictions.
The request must come from the committee chairman or ranking minority
member (see Air Force Instruction 90-401, Air Force Relations With
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(1) Requests from a Congressional member acting on behalf of the
record subject are evaluated under the routine use of the applicable
system notice. If the material for release is sensitive, get a release
statement.
(2) Requests from a Congressional member not on behalf of a
committee or the record subject are properly analyzed under the Freedom
of Information Act, and not under the Privacy Act.
(j) Exception 10. The Comptroller General or an authorized
representative of the General Accounting Office (GAO) to conduct
official GAO business.
(k) Exception 11. A court of competent jurisdiction, with a court
order signed by a judge.
(l) Exception 12. A consumer reporting agency in accordance with 31
U.S.C. 3711(e). Ensure category element is represented within the system
of records notice.
Sec. 806b.48 Disclosing the medical records of minors.
Air Force personnel may disclose the medical records of minors to
their parents or legal guardians in conjunction with applicable Federal
laws and guidelines. The laws of each state define the age of majority.
(a) The Air Force must obey state laws protecting medical records of
drug or alcohol abuse treatment, abortion, and birth control. If you
manage medical records, learn the local laws and coordinate proposed
local policies with the servicing Staff Judge Advocate.
[[Page 22]]
(b) Outside the United States (overseas), the age of majority is 18.
Unless parents or guardians have a court order granting access or the
minor's written consent, they will not have access to minor's medical
records overseas when the minor sought or consented to treatment between
the ages of 15 and 17 in a program where regulation or statute provides
confidentiality of records and he or she asked for confidentiality.
Sec. 806b.49 Disclosure accountings.
System managers must keep an accurate record of all disclosures made
from any system of records except disclosures to DoD personnel for
official use or disclosures under the Freedom of Information Act. System
managers may use Air Force Form 771 \10\, Accounting of Disclosures.
Retain disclosure accountings for 5 years after the disclosure, or for
the life of the record, whichever is longer.
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(a) System managers may file the accounting record any way they want
as long as they give it to the subject on request, send corrected or
disputed information to previous record recipients, explain any
disclosures, and provide an audit trail for reviews. Include in each
accounting:
(1) Release date.
(2) Description of information.
(3) Reason for release.
(4) Name and address of recipient.
(5) Some exempt systems let you withhold the accounting record from
the subject.
(b) You may withhold information about disclosure accountings for
law enforcement purposes at the law enforcement agency's request.
Sec. 806b.50 Computer matching.
Computer matching programs electronically compare records from two
or more automated systems that may include DoD, another Federal agency,
or a state or other local government. A system manager proposing a match
that could result in an adverse action against a Federal employee must
meet these requirements of the Privacy Act:
(1) Prepare a written agreement between participants;
(2) Secure approval of the Defense Data Integrity Board;
(3) Publish a matching notice in the Federal Register before
matching begins;
(4) Ensure full investigation and due process; and
(5) Act on the information, as necessary.
(a) The Privacy Act applies to matching programs that use records
from: Federal personnel or payroll systems and Federal benefit programs
where matching:
(1) Determines Federal benefit eligibility;
(2) Checks on compliance with benefit program requirements;
(3) Recovers improper payments or delinquent debts from current or
former beneficiaries.
(b) Matches used for statistics, pilot programs, law enforcement,
tax administration, routine administration, background checks and
foreign counterintelligence, and internal matching that won't cause any
adverse action are exempt from Privacy Act matching requirements.
(c) Any activity that expects to participate in a matching program
must contact Air Force Chief Information Officer/P immediately. System
managers must prepare a notice for publication in the Federal Register
with a Routine Use that allows disclosing the information for use in a
matching program. Send the proposed system notice to Air Force Chief
Information Officer/P. Allow 180 days for processing requests for a new
matching program.
(d) Record subjects must receive prior notice of a match. The best
way to do this is to include notice in the Privacy Act Statement on
forms used in applying for benefits. Coordinate computer matching
statements on forms with Air Force Chief Information Officer/P through
the Major Command Privacy Act Officer.
Sec. 806b.51 Privacy and the Web.
Do not post personal information on publicly accessible DoD web
sites unless clearly authorized by law and implementing regulation and
policy. Additionally, do not post personal information on .mil private
web sites unless authorized by the local commander, for
[[Page 23]]
official purposes, and an appropriate risk assessment is performed. See
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(a) Ensure public Web sites comply with privacy policies regarding
restrictions on persistent and third party cookies, and add appropriate
privacy and security notices at major web site entry points and Privacy
Act statements or Privacy Advisories when collecting personal
information. Notices must clearly explain where the collection or
sharing of certain information is voluntary, and notify users how to
provide consent.
(b) Include a Privacy Act Statement on the web page if it collects
information directly from an individual that we maintain and retrieve by
his or her name or personal identifier (i.e., Social Security Number).
We may only maintain such information in approved Privacy Act systems of
records that are published in the Federal Register. Inform the visitor
when the information is maintained and retrieved by name or personal
identifier in a system of records; that the Privacy Act gives them
certain rights with respect to the government's maintenance and use of
information collected about them, and provide a link to the Air Force
Privacy Act policy and system notices at http://www.foia.af.mil.
(c) Anytime a web site solicits personally-identifying information,
even when not maintained in a Privacy Act system of records, it requires
a Privacy Advisory. The Privacy Advisory informs the individual why the
information is solicited and how it will be used. Post the Privacy
Advisory to the web page where the information is being solicited, or
through a well-marked hyperlink ``Privacy Advisory--Please refer to the
Privacy and Security Notice that describes why this information is
collected and how it will be used.''
Subpart M_Training
Sec. 806b.52 Who needs training.
The Privacy Act requires training for all persons involved in the
design, development, operation and maintenance of any system of records.
More specialized training is needed for personnel who may be expected to
deal with the news media or the public, personnel specialists, finance
officers, information managers, supervisors, and individuals working
with medical and security records. Commanders will ensure that above
personnel are trained annually in the principles and requirements of the
Privacy Act.
Sec. 806b.53 Training tools.
Helpful resources include:
(a) The Air Force Freedom of Information Act Web page which includes
a Privacy Overview, Privacy Act training slides, the Air Force systems
of records notices, and links to the Defense Privacy Board Advisory
Opinions, the DoD and Department of Justice Privacy web pages. Go to
http://www.foia.af.mil. Click on ``Resources.''
(b) ``The Privacy Act of 1974,'' a 32-minute film developed by the
Defense Privacy Office. Contact the Joint Visual Information Activity at
DSN 795-6543/7283 or commercial (717) 895-6543/7283, and ask for 504432
``The Privacy Act of 1974.''
(c) A Manager's Overview, What You Need to Know About the Privacy
Act. This overview gives you Privacy Act 101 and is available on-line at
http://www.foia.af.mil.
(d) Training slides for use by the Major Command and base Privacy
Act officers, available from the Freedom of Information Act web page at
http://www.foia.af.mil, under ``Resources.''
Note: Formal school training groups that develop or modify blocks of
instruction must send the material to Air Force Chief Information
Officer/P for coordination.
Sec. 806b.54 Information collections, records, and forms or information
management tools (IMT).
(a) Information Collections. No information collections are required
by this publication.
(b) Records. Retain and dispose of Privacy Act records according to
Air
[[Page 24]]
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(c) Forms or Information Management Tools (Adopted and Prescribed).
(1) Adopted Forms or Information Management Tools. Air Force Form
624, Base/Unit Locator and PSC Directory, and AF Form 847,
Recommendation for Change of Publication.
(2) Prescribed Forms or Information Management Tools. AF Form 3227,
Privacy Act Cover Sheet, Air Force Form 771, Accounting of Disclosures,
and Air Force Visual Aid 33-276.
Sec. Appendix A to Part 806b--Definitions
Access: Allowing individuals to review or receive copies of their
records.
Amendment: The process of adding, deleting, or changing information
in a system of records to make the data accurate, relevant, timely, or
complete.
Computer matching: A computerized comparison of two or more
automated systems of records or a system of records with non-Federal
records to establish or verify eligibility for payments under Federal
benefit programs or to recover delinquent debts for these programs.
Confidential source: A person or organization giving information
under an express or implied promise of confidentiality made before
September 27, 1975.
Confidentiality: An expressed and recorded promise to withhold the
identity of a source or the information provided by a source. The Air
Force promises confidentiality only when the information goes into a
system with an approved exemption for protecting the identity of
confidential sources.
Cookie: Data created by a Web server that is stored on a user's
computer either temporarily for that session only or permanently on the
hard disk (persistent cookie). It provides a way for the Web site to
identify users and keep track of their preferences. It is commonly used
to ``maintain the state'' of the session. A third-party cookie either
originates on or is sent to a Web site different from the one you are
currently viewing.
Defense Data Integrity Board: Composed of representatives from DoD
components and the services who oversee, coordinate, and approve all DoD
computer matching programs covered by the Act.
Denial Authority: The individuals with authority to deny requests
for access or amendment of records under the Privacy Act.
Disclosure: Giving information from a system, by any means, to
anyone other than the record subject.
Federal benefit program: A Federally funded or administered program
for individuals that provides cash or in-kind assistance (payments,
grants, loans, or loan guarantees).
Individual: A living U.S. citizen or a permanent resident alien.
Minor: Anyone under the age of majority according to local state
law. If there is no applicable state law, a minor is anyone under age
18. Military members and married persons are not minors, no matter what
their chronological age.
Personal identifier: A name, number, or symbol that is unique to an
individual, usually the person's name or Social Security Number.
Personal information: Information about an individual other than
items of public record.
Privacy Act request: An oral or written request by an individual
about his or her records in a system of records.
Privacy advisory: A statement required when soliciting personally-
identifying information by an Air Force web site and the information is
not maintained in a system of records. The Privacy Advisory informs the
individual why the information is being solicited and how it will be
used.
Privacy Impact Assessment: A written assessment of an information
system that addresses the information to be collected, the purpose and
intended use; with whom the information will be shared; notice or
opportunities for consent to individuals; how the information will be
secured; and whether a new system of records is being created under the
Privacy Act.
Record: Any information about an individual.
Routine use: A disclosure of records to individuals or agencies
outside DoD for a use that is compatible with the purpose for which the
Air Force created the records.
System manager: The official who is responsible for managing a
system of records, including policies and procedures to operate and
safeguard it. Local system managers operate record systems or are
responsible for part of a decentralized system.
System of records: A group of records retrieved by the individual's
name, personal identifier; or individual identifier through a cross-
reference system.
System notice: The official public notice published in the Federal
Register of the existence and content of the system of records.
Sec. Appendix B to Part 806b--Preparing a System Notice
The following elements comprise a system of records notice for
publication in the Federal Register:
[[Page 25]]
System identifier: Air Force Chief Information Officer/P assigns the
notice number, for example, F033 AF PC A, where ``F'' indicates ``Air
Force,'' the next number represents the publication series number
related to the subject matter, and the final letter group shows the
system manager's command or Deputy Chief of Staff. The last character
``A'' indicates that this is the first notice for this series and system
manager.
System name: Use a short, specific, plain-language title that
identifies the system's general purpose (limited to 55 characters).
System location: Specify the address of the primary system and any
decentralized elements, including automated data systems with a central
computer facility and input or output terminals at separate locations.
Use street address, 2-letter state abbreviations and 9-digit ZIP Codes.
Spell out office names. Do not use office symbols.
Categories of individuals covered by the system: Use nontechnical,
specific categories of individuals about whom the Air Force keeps
records. Do not use categories like ``all Air Force personnel'' unless
they are actually true.
Categories of records in the system: Describe in clear, plain
language, all categories of records in the system. List only documents
actually kept in the system. Do not show source documents that are used
to collect data and then destroyed. Do not list form numbers.
Authority for maintenance of the system: Cite the specific law or
Executive Order that authorizes the program the records support. Cite
the DoD directive/instruction or Air Force instruction(s) that
authorizes the system of records. Always include titles with the
citations.
Note: Executive Order 9397 authorizes using the Social Security
Number as a personal identifier. Include this authority whenever the
Social Security Number is used to retrieve records.
Purpose: Describe briefly and specifically what the Air Force does
with the information collected.
Routine uses of records maintained in the system including
categories of users and the purpose of such uses: List each specific
agency or activity outside DoD to whom the records may be released and
the purpose for such release.
The DoD `Blanket Routine Uses' published in the Air Force Directory
of System Notices apply to all system notices unless you indicate
otherwise.
Polices and practices for storing, retrieving, accessing, retaining,
and disposing of records in the system:
Storage: State the medium in which the Air Force keeps the records;
for example, in file folders, card files, microfiche, computer, or a
combination of those methods. Storage does not refer to the storage
container.
Retrievability: State how the Air Force retrieves the records; for
example, by name, Social Security Number, or personal characteristics
(such as fingerprints or voiceprints).
Safeguards: List the kinds of officials who have immediate access to
the system. List those responsible for safeguarding the records.
Identify the system safeguards; for example, storage in safes, vaults,
locked cabinets or rooms, use of guards, visitor controls, personnel
screening, computer systems software, and so on. Describe safeguards
fully without compromising system security.
Retention and disposal: State how long Air Force Manual 37-139
requires the activity to maintain the record. Indicate when or if the
records may be transferred to a Federal Records Center and how long the
record stays there. Specify when the Records Center sends the record to
the National Archives or destroys it. Indicate how the records may be
destroyed.
System manager(s) and address: List the position title and duty
address of the system manager. For decentralized systems, show the
locations and the position or duty title of each category of officials
responsible for any segment of the system.
Notification procedure: List the title and duty address of the
official authorized to tell requesters if their records are in the
system. Specify the information a requester must submit; for example,
full name, military status, Social Security Number, date of birth, or
proof of identity, and so on.
Record access procedures: Explain how individuals may arrange to
access their records. Include the titles or categories of officials who
may assist; for example, the system manager.
Contesting records procedures: Air Force Chief Information Officer/P
provides this standard caption.
Record source categories: Show categories of individuals or other
information sources for the system.
Exemptions claimed for the system: When a system has no approved
exemption, write ``none'' under this heading. Specifically list any
approved exemption including the subsection in the Act.
Sec. Appendix C to Part 806b--DoD `Blanket Routine Uses'
Certain DoD ``blanket routine uses'' have been established that are
applicable to every record system maintained by the Department of the
Air Force, unless specifically stated otherwise within the particular
record system notice. These additional routine uses of the records are
published only once in the Air Force's Preamble to its compilation of
records systems in the interest of simplicity, economy and to avoid
redundancy.
[[Page 26]]
a. Law Enforcement Routine Use
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. Disclosure when Requesting Information Routine Use
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. Disclosure of Requested Information Routine Use
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. Congressional Inquiries Routine Use
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. Private Relief Legislation Routine Use
Relevant information contained in all systems of records of the
Department of Defense published on or before August 22, 1975, will be
disclosed to the Office of Management and Budget in connection with the
review of private relief legislation as set forth in Office of
Management and Budget Circular A-19 (reference (u)) at any stage of the
legislative coordination and clearance process as set forth in that
Circular.
f. Disclosures Required by International Agreements Routine Use
A record from a system of records maintained by a Component may be
disclosed to foreign law enforcement, security, investigatory, or
administrative authorities to comply with requirements imposed by, or to
claim rights conferred in, international agreements and arrangements
including those regulating the stationing and status in foreign
countries of DoD military and civilian personnel.
g. Disclosure to State and Local Taxing Authorities Routine Use
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, and 5520 (reference (v))
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. Disclosure to the Office of Personnel Management Routine Use
A record from a system of records subject to the Privacy Act and
maintained by a Component may be disclosed to the Office of Personnel
Management (OPM) concerning information on pay and leave, benefits,
retirement deduction, and any other information necessary for the OPM to
carry out its legally authorized government-wide personnel management
functions and studies.
i. Disclosure to the Department of Justice for Litigation Routine Use
A record from a system of records maintained by this component may
be disclosed as a routine use to any component of the Department of
Justice for the purpose of representing the Department of Defense, or
any officer, employee or member of the Department in pending or
potential litigation to which the record is pertinent.
j. Disclosure to Military Banking Facilities Overseas Routine Use
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
[[Page 27]]
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. Disclosure of Information to the General Services Administration
(GSA) Routine Use
A record from a system of records maintained by this component may
be disclosed as a routine use to the General Services Administration
(GSA) for the purpose of records management inspections conducted under
authority of 44 U.S.C. 2904 and 2906.
l. Disclosure of Information to the National Archives and Records
Administration (NARA) Routine Use
A record from a system of records maintained by this component may
be disclosed as a routine use to the National Archives and Records
Administration (NARA) for the purpose of records management inspections
conducted under authority of 44 U.S.C. 2904 and 2906.
m. Disclosure to the Merit Systems Protection Board Routine Use
A record from a system of records maintained by this component may
be disclosed as a routine use to the Merit Systems Protection Board,
including the Office of the Special Counsel for the purpose of
litigation, including administrative proceedings, appeals, special
studies of the civil service and other merit systems, review of OPM or
component rules and regulations, investigation of alleged or possible
prohibited personnel practices; including administrative proceedings
involving any individual subject of a DoD investigation, and such other
functions, promulgated in 5 U.S.C. 1205 and 1206, or as may be
authorized by law.
n. Counterintelligence Purpose Routine Use
A record from a system of records maintained by this component may
be disclosed as a routine use outside the DoD or the U.S. Government for
the purpose of counterintelligence activities authorized by U.S. Law or
Executive Order or for the purpose of enforcing laws, which protect the
national security of the United States.
Sec. Appendix D to Part 806b--General and Specific 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)
[[Page 28]]
from the following subsections of 5 U.S.C. 552a(c)(3), (c)(4), (d),
(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 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),
[[Page 29]]
(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:
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 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) 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 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
[[Page 30]]
which he would otherwise be entitled by Federal law or for which he
would otherwise be eligible, as a result of the maintenance of the
information, the individual will be provided access to the information
exempt to the extent that disclosure would reveal the identity of a
confidential source. NOTE: When claimed, this exemption allows limited
protection of investigative reports maintained in a system of records
used in personnel or administrative actions. 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) Reason: (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), his 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 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
[[Page 31]]
the information, the individual will be provided access to the
information exempt to the extent that disclosure would reveal the
identify of a confidential source.
Note: When claimed, this exemption allows limited protection of
investigative reports maintained in a system of records used in
personnel or administrative actions. 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(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 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, 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 identify of a confidential source. 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
[[Page 32]]
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 identify 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: 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),
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
[[Page 33]]
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), 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) Reason: (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. 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
[[Page 34]]
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) Exemptions: 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 identify 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) System identifier and name: F031 497IG A, Sensitive
Compartmented Information Personnel 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, the individual will be provided access to the information
exempt to the extent that disclosure would reveal the identify of a
confidential source.
Note: When claimed, this exemption allows limited protection of
investigative reports maintained in a system of records used in
personnel or administrative actions.
(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 (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)(2) and (k)(5).
(iii) Reasons: To protect the identity of sources to which proper
promises of confidentiality have been made during investigations.
Without these promises, sources will often be unwilling to provide
information essential in adjudicating access in a fair and impartial
manner.
(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 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) System identifier and name: F031 497IG B, Special Security Case
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
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.
(15) System identifier and name: F031 AF SP N, Special Security
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
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
[[Page 35]]
personnel security and related investigations. Fear of harassment could
cause them to refuse to give this information in the frank and open way
needed to pinpoint areas in an investigation that should be expanded to
resolve charges of questionable conduct.
(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
interservice 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: 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 be provided access to the information
except to the extent that disclosure would reveal the identity of a
confidential source.
Note: When claimed, this exemption allows limited protection of
investigative reports maintained in a system of records used in
personnel or administrative actions. 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
[[Page 36]]
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 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) 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.
(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: 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
[[Page 37]]
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.
(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: 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
[[Page 38]]
and to protect privacy and physical safety of witnesses and informants.
(24) System identifier and name: F036 AETC X, College Scholarship
Program.
(i) Exemption: Investigatory material compiled solely for the
purpose of determining suitability * * * 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 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) 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
[[Page 39]]
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.
[69 FR 954, Jan. 7, 2004, as amended at 69 FR 12540, Mar. 17, 2004; 70
FR 46405, Aug. 10, 2005; 74 FR 55785, 55786, 55787, 55788, Oct. 29,
2009; 74 FR 57415, Nov. 6, 2009]
Sec. Appendix E to Part 806b--Privacy Impact Assessment
Section A--Introduction and Overview
The Privacy Act Assessment. The Air Force recognizes the importance
of protecting the privacy of individuals, to ensure sufficient
protections for the privacy of personal information as we implement
citizen-centered e-Government. Privacy issues must be addressed when
systems are being developed, and privacy protections must be integrated
into the development life cycle of these automated systems. The vehicle
for addressing privacy issues in a system under development is the
Privacy Impact Assessment. The Privacy Impact Assessment process also
provides a means to assure compliance with applicable laws and
regulations governing individual privacy.
(a) Purpose. The purpose of this document is to:
(1) Establish the requirements for addressing privacy during the
systems development process.
(2) Describe the steps required to complete a Privacy Impact
Assessment.
(3) Define the privacy issues you will address in the Privacy Impact
Assessment.
(b) Background. The Air Force is responsible for ensuring the
privacy, confidentiality, integrity, and availability of personal
information. The Air Force recognizes that privacy protection is both a
personal and fundamental right. Among the most basic of individuals'
rights is an expectation that the Air Force will protect the
confidentiality of personal, financial, and employment information.
Individuals also have the right to expect that the Air Force will
collect, maintain, use, and disseminate identifiable personal
information and data only as authorized by law and as necessary to carry
out agency responsibilities. Personal information is protected by the
following:
(1) Title 5, U.S.C. 552a, The Privacy Act of 1974, as amended, which
affords individuals the right to privacy in records maintained and used
by Federal agencies.
Note: 5 U.S.C. 552a includes Public Law 100-503, The Computer
Matching and Privacy Act of 1988. \13\
---------------------------------------------------------------------------
\13\ http://www.defenselink.mil/privacy/1975OMB_PAGuide/jun1989.pdf.
(2) Public Law 100-235, The Computer Security Act of 1987, \14\
which establishes minimum security practices for Federal computer
systems.
---------------------------------------------------------------------------
\14\ http://csrc.nist.gov/secplcy/csa_87.txt.
---------------------------------------------------------------------------
(3) OMB Circular A-130, Management of Federal Information Resources,
\15\ which provides instructions to Federal agencies on how to comply
with the fair information practices and security requirements for
operating automated information systems.
---------------------------------------------------------------------------
\15\ http://www.whitehouse.gov/omb/circulars/a130/a130trans4.html.
---------------------------------------------------------------------------
(4) Public Law 107-347, Section 208, E-Gov Act of 2002, which aims
to ensure privacy in the conduct of federal information activities.
(5) Title 5, U.S.C. 552, The Freedom of Information Act, as amended,
which provides for the disclosure of information maintained by Federal
agencies to the public while allowing limited protections for privacy.
(6) DoD Directive 5400.11, Department of Defense Privacy Program,
\16\ December 13, 1999.
---------------------------------------------------------------------------
\16\ http://www.dtic.mil/whs/directives/corres/html/540011.htm.
---------------------------------------------------------------------------
(7) DoD 5400.11-R, Department of Defense Privacy Program, \17\
August 1983.
---------------------------------------------------------------------------
\17\ http://www.dtic.mil/whs/directives/corres/html/540011r.htm.
---------------------------------------------------------------------------
(8) Air Force Instruction 33-332, Air Force Privacy Act Program.
(c) The Air Force Privacy Office is in the Office of the Air Force
Chief Information Officer, Directorate of Plans and Policy, and is
responsible for overseeing Air Force implementation of the Privacy Act.
Section B--Privacy and Systems Development
System Privacy. Rapid advancements in computer technology make it
possible to store and retrieve vast amounts of data of all kinds quickly
and efficiently. These advancements have raised concerns about the
impact of large computerized information systems on the privacy of data
subjects. Public concerns about highly integrated information systems
operated by the government make it imperative to commit to a positive
and aggressive approach to protecting individual privacy. Air Force
Chief Information Officer is requiring the use of this Privacy Impact
Assessment in order to ensure that
[[Page 40]]
the systems the Air Force develops protect individuals' privacy. The
Privacy Impact Assessment incorporates privacy into the development life
cycle so that all system development initiatives can appropriately
consider privacy issues from the earliest stages of design.
(a) What is a Privacy Impact Assessment? The Privacy Impact
Assessment is a process used to evaluate privacy in information systems.
The process is designed to guide system owners and developers in
assessing privacy through the early stages of development. The process
consists of privacy training, gathering data from a project on privacy
issues, and identifying and resolving the privacy risks. The Privacy
Impact Assessment process is described in detail in Section C,
Completing a Privacy Impact Assessment.
(b) When is a Privacy Impact Assessment Done? The Privacy Impact
Assessment is initiated in the early stages of the development of a
system and completed as part of the required system life cycle reviews.
Privacy must be considered when requirements are being analyzed and
decisions are being made about data usage and system design. This
applies to all of the development methodologies and system life cycles
used in the Air Force.
(c) Who completes the Privacy Impact Assessment? Both the system
owner and system developers must work together to complete the Privacy
Impact Assessment. System owners must address what data is to be used,
how the data is to be used, and who will use the data. The system
developers must address whether the implementation of the owner's
requirements presents any threats to privacy.
(d) What systems have to complete a Privacy Impact Assessment?
Accomplish Privacy Impact Assessments when:
(1) Developing or procuring information technology that collects,
maintains, or disseminates information in identifiable form from or
about members of the public.
(2) Initiating a new collection of information, using information
technology, that collects, maintains, or disseminates information in
identifiable form for 10 or more persons excluding agencies,
instrumentalities, or employees of the Federal Government.
(3) Systems as described above that are undergoing major
modifications.
(e) The Air Force or Major Command Privacy Act Officer reserves the
right to request that a Privacy Impact Assessment be completed on any
system that may have privacy risks.
Section C--Completing a Privacy Impact Assessment
The Privacy Impact Assessment. This section describes the steps
required to complete a Privacy Impact Assessment. These steps are
summarized in Table A4.1, Outline of Steps for Completing a Privacy
Impact Assessment.
Training. Training on the Privacy Impact Assessment will be
available, on request, from the Major Command Privacy Act Officer. The
training consists of describing the Privacy Impact Assessment process
and provides detail about the privacy issues and privacy questions to be
answered to complete the Privacy Impact Assessment. Major Command
Privacy Act Officers may use appendix E, Sections A, B, D, and E for
this purpose. The intended audience is the personnel responsible for
writing the Privacy Impact Assessment document.
The Privacy Impact Assessment Document. Preparing the Privacy Impact
Assessment document requires the system owner and developer to answer
the privacy questions in Section E. A brief explanation should be
written for each question. Issues that do not apply to a system should
be noted as ``Not Applicable.'' During the development of the Privacy
Impact Assessment document, the Major Command Privacy Act Officer will
be available to answer questions related to the Privacy Impact
Assessment process and other concerns that may arise with respect to
privacy.
Review of the Privacy Impact Assessment Document. Submit the
completed Privacy Impact Assessment document to the Major Command
Privacy Act Office for review. The purpose of the review is to identify
privacy risks in the system.
Approval of the Privacy Impact Assessment. The system life cycle
review process (Command, Control, Communications, Computers, and
Intelligence Support Plan) will be used to validate the incorporation of
the design requirements to resolve the privacy risks. Major Command and
Headquarters Air Force Functional CIOs will issue final approval of the
Privacy Impact Assessment.
Table A4.1--Outline of Steps for Completing a Privacy Impact Assessment
------------------------------------------------------------------------
Step Who Procedure
------------------------------------------------------------------------
1.......................... System Owner, and Request and complete
Developer. Privacy Impact
Assessment
Training.
2.......................... System Owner, and Answer the questions
Developer. in Section E,
Privacy Questions.
For assistance
contact your Major
Command Privacy Act
Officer.
[[Page 41]]
3.......................... System Owner, and Submit the Privacy
Developer. Impact Assessment
document to the
Major Command
Privacy Act
Officer.
4.......................... Major Command Privacy Review the Privacy
Act Officer. Impact Assessment
document to
identify privacy
risks from the
information
provided. The Major
Command Privacy Act
Officer will get
clarification from
the owner and
developer as
needed.
5.......................... System Owner and The System Owner,
Developer, Major Developer and the
Command Privacy Act Major Command
Officer. Privacy Act Officer
should reach
agreement on design
requirements to
resolve all
identified risks.
6.......................... System Owner, Participate in the
Developer, and Major required system
Command Privacy Act life cycle reviews
Officer. to ensure
satisfactory
resolution of
identified privacy
risks to obtain
formal approval
from the Major
Command or
Headquarters Air
Force Functional
CIO.
7.......................... Major Command or Issue final approval
Headquarters Air of Privacy Impact
Force Functional CIO. Assessment, and
send a copy to Air
Force Chief
Information Officer/
P.
8.......................... Air Force Chief When feasible,
Information Officer/ publish Privacy
P. Impact Assessment
on Freedom of
Information Act Web
page (http://
www.foia.af.mil).
------------------------------------------------------------------------
Section D--Privacy Issues in Information Systems
Privacy Act of 1974, 5 U.S.C. 552a as Amended
Title 5, U.S.C., 552a, The Privacy Act of 1974, as amended, requires
Federal Agencies to protect personally identifiable information. It
states specifically:
Each agency that maintains a system of records shall:
Maintain in its records 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 by executive order of the President;
Collect information to the greatest extent practicable directly from
the subject individual when the information may result in adverse
determinations about an individual's rights, benefits, and privileges
under Federal programs;
Maintain all records used by the agency in making any determination
about any individual with such accuracy, relevance, timeliness, and
completeness as is reasonably necessary to assure fairness to the
individual in the determination;
Establish appropriate administrative, technical and physical
safeguards to ensure the security and confidentiality of records and to
protect against any anticipated threats or hazards to their security or
integrity which could result in substantial harm, embarrassment,
inconvenience, or unfairness to any individual on whom information is
maintained.
Definitions
Accuracy--within sufficient tolerance for error to assure the
quality of the record in terms of its use in making a determination.
Completeness--all elements necessary for making a determination are
present before such determination is made.
Determination--any decision affecting an individual which, in whole
or in part, is based on information contained in the record and which is
made by any person or agency.
Necessary--a threshold of need for an element of information greater
than mere relevance and utility.
Record--any item, collection or grouping of information about an
individual and identifiable to that individual that is maintained by an
agency.
Relevance--limitation to only those elements of information that
clearly bear on the determination(s) for which the records are intended.
Routine Use--with respect to the disclosure of a record, the use of
such record outside DoD for a purpose that is compatible with the
purpose for which it was collected.
System of Records--a group of any records under the control of any
agency from which information is retrieved by the name of the individual
or by some identifying number, symbol, or other identifying particular
assigned to the individual.
Timeliness--sufficiently current to ensure that any determination
based on the record will be accurate and fair.
Information and Privacy
To fulfill the commitment of the Air Force to protect personal
information, several
[[Page 42]]
issues must be addressed with respect to privacy.
The use of information must be controlled.
Information may be used only for a necessary and lawful purpose.
Individuals must be informed in writing of the principal purpose and
routine uses of the information being collected from them.
Information collected for a particular purpose should not be used
for another purpose without the data subject's consent unless such other
uses are specifically authorized or mandated by law.
Any information used must be sufficiently accurate, relevant, timely
and complete to assure fair treatment of the individual.
Given the availability of vast amounts of stored information and the
expanded capabilities of information systems to process the information,
it is foreseeable that there will be increased requests to share that
information. With the potential expanded uses of data in automated
systems it is important to remember that information can only be used
for the purpose for which it was collected unless other uses are
specifically authorized or mandated by law. If the data is to be used
for other purposes, then the public must be provided notice of those
other uses. These procedures do not in themselves create any legal
rights, but are intended to express the full and sincere commitment of
the Air Force to protect individual privacy rights and which provide
redress for violations of those rights.
Data in the System
The sources of the information in the system are an important
privacy consideration if the data is gathered from other than Air Force
records. Information collected from non-Air Force sources should be
verified, to the extent practicable, for accuracy, that the information
is current, and complete. This is especially important if the
information will be used to make determinations about individuals.
Access to the Data
Who has access to the data in a system must be defined and
documented. Users of the data can be individuals, other systems, and
other agencies. Individuals who have access to the data can be system
users, system administrators, system owners, managers, and developers.
When individuals are granted access to a system, their access should be
limited, where possible, to only that data needed to perform their
assigned duties. If individuals are granted access to all of the data in
a system, procedures need to be in place to deter and detect browsing
and unauthorized access. Other systems are any programs or projects that
interface with the system and have access to the data. Other agencies
can be International, Federal, state, or local entities that have access
to Air Force data.
Attributes of the Data
When requirements for the data to be used in the system are being
determined, those requirements must include the privacy attributes of
the data. The privacy attributes are derived from the legal requirements
imposed by The Privacy Act of 1974. First, the data must be relevant and
necessary to accomplish the purpose of the system. Second, the data must
be complete, accurate, and timely. It is important to ensure the data
has these privacy attributes in order to assure fairness to the
individual in making decisions based on the data.
Maintenance of Administrative Controls
Automation of systems can lead to the consolidation of processes,
data, and the controls in place to protect the data. When administrative
controls are consolidated, they should be evaluated so that all
necessary controls remain in place to the degree necessary to continue
to control access to and use of the data. Document record retention and
disposal procedures and coordinate them with the Major Command Records
Manager.
Section E--Privacy Questions
Data in the System
1. Generally describe the information to be used in System the
system.
2. What are the sources of the information in the system?
a. What Air Force files and databases are used?
b. What Federal Agencies are providing data for use in the system?
c. What State and local agencies are providing data for use in the
system?
d. What other third party sources will data be collected from?
e. What information will be collected from the employee?
3. Is data accurate and complete?
a. How will data collected from sources other than Air Force records
and the subject be verified for accuracy?
b. How will data be checked for completeness?
c. Is the data current? How do you know?
4. Are the data elements described in detail and documented? If yes,
what is the name of the document?
Access to the Data
1. Who will have access to the data in the system Data (Users,
Managers, System Administrators, Developers, Other)?
2. How is access to the data by a user determined? Are criteria,
procedures, controls, and responsibilities regarding access documented?
[[Page 43]]
3. Will users have access to all data on the system or will the
user's access be restricted? Explain.
4. What controls are in place to prevent the misuse (e.g., browsing)
of data by those having access?
5. Does the system share data with another system?
a. Do other systems share data or have access to data in this
system? If yes, explain.
b. Who will be responsible for protecting the privacy rights of the
employees affected by the interface?
6. Will other agencies have access to the data in the system?
a. Will other agencies share data or have access to data in this
system (International, Federal, State, Local, Other)?
b. How will the data be used by the agency?
c. Who is responsible for assuring proper use of the data?
d. How will the system ensure that agencies only get the information
they are entitled to under applicable laws?
Attributes of the Data
1. Is the use of the data both relevant and necessary Data to the
purpose for which the system is being designed?
2. Will the system create new data about an individual?
a. Will the system derive new data or create previously unavailable
data about an individual through aggregation from the information
collected?
b. Will the new data be placed in the individual's record?
c. Can the system make determinations about the record subject that
would not be possible without the new data?
d. How will the new data be verified for relevance and accuracy?
3. Is data being consolidated?
a. If data is being consolidated, what controls are in place to
protect the data from unauthorized access or use?
b. If processes are being consolidated, are the proper controls
remaining in place to protect the data and prevent unauthorized access?
Explain.
4. How will the data be retrieved? Is it retrieved by a personal
identifier? If yes, explain.
Maintenance of Administrative Controls
(1) a. Explain how the system and its use will ensure Administrative
equitable treatment of record subjects.
b. If the system is operated at more than one location, how will
consistent use of the system and data be maintained?
c. Explain any possibility of disparate treatment of individuals or
groups.
(2) a. Coordinate proposed maintenance and disposition of the
records with the Major Command Records Manager.
b. While the data is retained in the system, what are the
requirements for determining if the data is still sufficiently accurate,
relevant, timely, and complete to ensure fairness in making
determinations?
(3) a. Is the system using technologies in ways that the Air Force
has not previously employed?
b. How does the use of this technology affect personal privacy?
(4) a. Will this system provide the capability to identify, locate,
and monitor individuals? If yes, explain.
b. Will this system provide the capability to identify, locate, and
monitor groups of people? If yes, explain.
c. What controls will be used to prevent unauthorized monitoring?
(5) a. Under which Systems of Record notice does the system operate?
Provide number and name.
b. If the system is being modified, will the system of record
require amendment or revision? Explain.
PART 807_SALE TO THE PUBLIC--Table of Contents
Sec.
807.1 General requirements.
807.2 Charges for publications and forms.
807.3 Requests for classified material, For Official Use Only material,
accountable forms, storage safeguard forms, Limited (L)
distribution items, and items with restrictive distribution
caveats.
807.4 Availability and nonavailability of stock.
807.5 Processing requests.
807.6 Depositing payments.
Authority: 10 U.S.C. 8013.
Source: 55 FR 36631, Sept. 6, 1990, unless otherwise noted.
Sec. 807.1 General requirements.
(a) Unaltered Air Force publications and forms will be made
available to the public with or without charge, subject to the
requirements of this part. Base Chiefs of Information Management will
set up procedures to meet these needs and will make available Master
Publications Libraries for public use according to AFR 4-61. They will
also advise requesters that these libraries are available, since in many
cases this will satisfy their needs and reduce workloads in processing
sales requests. If the item is on sale by the Superintendent of
Documents, GPO, refer the request to that outlet. Refer general public
requests for Air Force administrative publications and forms to
[[Page 44]]
the National Technical Information Service (NTIS), Defense Publication
Section, US Department of Commerce, 4285 Port Royal Road, Springfield,
VA 22161-0001.
(b) The Air Force does not consider these unaltered publications and
forms as records, within the meaning of the Freedom of Information Act
(FOIA), as outlined in 5 U.S.C. 552 and implemented by part 806 of this
chapter. Refer requests that invoke the FOIA to the chief, base
information management, for processing.
(c) Units will process requests under the Foreign Military Sales
Program (FMS) as specified in AFR 4-71, chapter 11.
(d) Units will send requests from foreign governments, their
representatives, or international organizations to the MAJCOM foreign
disclosure policy office and to HQ USAF/CVAII, Washington DC 20330-5000.
Also send information copies of such requests to the base public affairs
office. Commands will supplement this requirement to include policies
pertaining to those items for which they have authority to release.
(e) Units will return a request for non-Air Force items to the
requester for submission to appropriate agency.
Sec. 807.2 Charges for publications and forms.
(a) The Air Force applies charges to all requests unless
specifically excluded.
(b) The Air Force applies charges according to part 813, Schedule of
Fees for Copying, Certifying, and Searching Records and Other
Documentary Material. Additional guidance is in part 812, User Charges,
including specific exclusion from charges as listed in Sec. 812.5. As
indicated, the list of exclusions is not all inclusive and
recommendations for additional exclusions are sent to the office of
primary responsibility for part 812 of this chapter.
(c) When a contractor requires publications and forms to perform a
contract, the Air Force furnishes them without charge, if the government
contracting officer approves these requirements.
Sec. 807.3 Requests for classified material, For Official Use Only
material, accountable forms, storage safeguard forms, Limited (L)
distribution items, and items with restrictive distribution caveats.
(a) Classified material. The unit receiving the requests should tell
the requester that the Air Force cannot authorize the material for
release because it is currently and properly classified in the interest
of national security as authority by Executive Order, and must be
protected from unauthorized disclosure.
(b) For Official Use Only (FOUO) material. The office of primary
responsibility for the material will review these requests to determine
the material's releasability.
(c) Accountable forms. The unit receiving the request will return it
to the requester stating that the Air Force stringently controls these
forms and cannot release them to unauthorized personnel since their
misuse could jeopardize Department of Defense security or could result
in fraudulent financial gain or claims against the government.
(d) Storage safeguard forms. The unit receiving these requests
returns them to the requesters stating that the Air Force specially
controls these forms and that they are not releasable outside the
Department of Defense since they could be put to unauthorized or
fraudulent use.
(e) Limited (L) distribution items are not releasable outside the
Department of Defense without special review according to AFR 700-6.
Units receiving these requests should refer them to the SCS manager
shown in the index or on the cover of the publications. Advise the
requesters of the referral.
(f) Items with restrictive distribution caveats. Some publications
have restrictive distribution caveats on the cover. Follow the
instructions stated and advise the requesters of the referral.
Sec. 807.4 Availability and nonavailability of stock.
(a) Limit quantities furnished so that stock levels required for
operational Air Force support are not jeopardized.
(b) If the item is not available from publishing distribution office
(PDO)
[[Page 45]]
stock, obtain it from the Air Force Publishing Distribution Center. If
the item is under revision, advise the requester that it is being
revised and that no stock is available.
(c) If stocks are not available and the item is being reprinted,
advise the requester that stocks are expected to be available in 90
calendar days and to resubmit at that time.
Sec. 807.5 Processing requests.
Payment is required before shipping the requested material. Payment
must be by check or money order.
(a) Upon receipt of the request, determine the cost involved and
request the material.
(b) Upon receipt of the item, advise the requester to resubmit the
required payment and send the material after payment is received.
(c) If the material cannot be obtained, advise the requester of the
reason.
Sec. 807.6 Depositing payments.
Obtain instructions from the local Accounting and Finance Office
regarding how checks or money orders must be prepared and required
procedures for depositing them.
PART 809a_INSTALLATION ENTRY POLICY, CIVIL DISTURBANCE INTERVENTION AND
DISASTER ASSISTANCE--Table of Contents
Sec.
809a.0 Purpose.
Subpart A_Installation Entry Policy
809a.1 Random installation entry point checks.
809a.2 Military responsibility and authority.
809a.3 Unauthorized entry.
809a.4 Use of Government facilities.
809a.5 Barment procedures.
Subpart B_Civil Disturbance Intervention and Disaster Assistance
809a.6 Authority.
809a.7 Definitions.
809a.8 Installation policies and laws.
809a.9 Conditions for use of Air Force resources.
809a.10 Military commanders' responsibilities.
809a.11 Procedures outside the United States.
Authority: 10 U.S.C. 332 and 333.
Source: 67 FR 13718, Mar. 26, 2002, unless otherwise noted.
Sec. 809a.0 Purpose.
This part prescribes the commanders' authority for enforcing order
within or near Air Force installations under their jurisdiction and
controlling entry to those installations. It provides guidance for use
of military personnel in controlling civil disturbances and in
supporting disaster relief operations. This part applies to
installations in the United States, its territories and possessions, and
will be used to the maximum extent possible in the overseas commands.
Instructions issued by the appropriate overseas commander, status of
forces agreements, and other international agreements provide more
definitive guidance for the overseas commands. Nothing in this part
should be construed as authorizing or requiring security forces units to
collect and maintain information concerning persons or organizations
having no affiliation with the Air Force other than a list of persons
barred from the installation.
Subpart A_Installation Entry Policy
Sec. 809a.1 Random installation entry point checks.
The installation commander determines when, where, and how to
implement random checks of vehicles or pedestrians. The commander
conducts random checks to protect the security of the command or to
protect government property.
Sec. 809a.2 Military responsibility and authority.
(a) Air Force installation commanders are responsible for protecting
personnel and property under their jurisdiction and for maintaining
order on installations, to ensure the uninterrupted and successful
accomplishment of the Air Force mission.
(b) Each commander is authorized to grant or deny access to their
installations, and to exclude or remove persons
[[Page 46]]
whose presence is unauthorized. In excluding or removing persons from
the installation, the installation commander must not act in an
arbitrary or capricious manner. Their action must be reasonable in
relation to their responsibility to protect and to preserve order on the
installation and to safeguard persons and property thereon. As far as
practicable, they should prescribe by regulation the rules and
conditions governing access to their installation.
Sec. 809a.3 Unauthorized entry.
Under Section 21 of the Internal Security Act of 1950 (50 U.S.C.
797), any directive issued by the commander of a military installation
or facility, which includes the parameters for authorized entry to or
exit from a military installation, is legally enforceable against all
persons whether or not those persons are subject to the Uniformed Code
of Military Justice (UCMJ). Military personnel who reenter an
installation after having been properly ordered not to do so may be
apprehended. Civilian violators may be detained and either escorted off
the installation or turned over to proper civilian authorities. Civilian
violators may be prosecuted under 18 U.S.C. 1382.
Sec. 809a.4 Use of Government facilities.
Commanders are prohibited from authorizing demonstrations for
partisan political purposes. Demonstrations on any Air Force
installation for other than political purposes may only occur with the
prior approval of the installation commander. Demonstrations that could
result in interference with, or prevention of, the orderly
accomplishment of the mission of an installation or that present a clear
danger to loyalty, discipline or morale of members of the Armed Forces
will not be approved.
Sec. 809a.5 Barment procedures.
Under the authority of 50 U.S.C. 797, installation commanders may
deny access to the installation through the use of a barment order.
Barment orders should be in writing but may also be oral. Security
forces maintain a list of personnel barred from the installation.
Subpart B_Civil Disturbance Intervention and Disaster Assistance
Sec. 809a.6 Authority.
The authority to intervene during civil disturbances and to provide
disaster assistance is bound by directives issued by competent
authorities. States must request federal military intervention or aid
directly from the President of the United States by the state's
legislature or executive. Installation commanders must immediately
report these requests in accordance with AFI 10-802, Military Support to
Civil Authorities (Available from National Technical Information
Service, 5285 Port Royal Road, Springfield, VA 22161.).
Sec. 809a.7 Definitions.
The following definitions apply to this part:
(a) Emergencies. These are conditions which affect public welfare
and occur as a result of enemy attack, insurrection, civil disturbances,
earthquake, fire, flood, or other public disasters which endanger life
and property or disrupt the usual process of government. The term
``emergency'' includes any or all of the conditions explained in this
section.
(b) Civil defense emergency. This is a disaster situation resulting
from devastation created by an enemy attack and requiring emergency
operations during and following attack. It may also be proclaimed by
appropriate authority in anticipation of an attack.
(c) Civil disturbances. These are group acts of violence or disorder
prejudicial to public law and order including those which follow a major
disaster. They include riots, acts of violence, insurrections, unlawful
obstructions or assemblages, or other disorders.
(d) Major disaster. Any flood, fire, hurricane, or other catastrophe
which, in the determination of the President, is or threatens to be of
sufficient severity and magnitude to warrant disaster assistance by the
Federal Government to supplement the efforts and available resources of
the State and local governments in alleviating the damage, hardship, or
suffering caused thereby.
[[Page 47]]
Sec. 809a.8 Installation policies and laws.
This subpart contains policies on the use of Air Force military
personnel in civil disturbances and disasters. The more important laws
concerning military aid to civil authorities are also summarized.
(a) The Air Force gives military assistance to civil authorities in
civil defense or civil disturbances and disasters only when such
assistance is requested or directed. Commanders will not undertake such
assistance without authority, unless the overruling demands of humanity
compel immediate action to protect life and property and to restore
order.
(b) The military service having available resources nearest the
affected area is responsible for providing initial assistance to civil
authorities in emergencies. Subsequent operations are to be according to
the mutual agreement between the senior service commanders concerned.
(c) The protection of life and property and the maintenance of law
and order within the territorial jurisdiction of any State is the
primary responsibility of State and local authorities. It is well-
established U.S. Government policy that intervention with military
forces takes place only after State and local authorities have used
their own forces and are unable to control the situation, or when they
do not take appropriate action.
Sec. 809a.9 Conditions for use of Air Force resources.
This part is not intended to extend Air Force responsibilities in
emergencies to generate additional resources (manpower, materiel,
facilities, etc.) requirements, or encourage participation in such
operations at the expense of the Air Force primary mission. It is a
guide for the employment of Air Force resources when:
(a) A disaster or disturbance occurs in areas in which the U.S. Air
Force is the executive agent of the United States.
(b) A disaster or disturbance occurs in areas that are remote from
an Army installation but near an Air Force installation, thereby
necessitating Air Force assumption of responsibility pending arrival of
Army personnel.
(c) The overriding demand of conditions resulting from a natural
disaster compels immediate action to protect life and property and to
restore order.
Sec. 809a.10 Military commanders' responsibilities.
(a) Civilians in the affected area will be informed of the rules of
conduct and other restrictive measures to be enforced by the military.
These will be announced by local proclamation or order, and will be
given the widest publicity by all available media.
(b) Persons not normally subject to military law, who are taken into
custody by military forces incident to civil disturbances, will be
turned over to the civil authorities as soon as possible.
(c) Military forces will ordinarily exercise police powers
previously inoperative in an affected area; restore and maintain order;
maintain essential transportation and communication; and provide
necessary relief measures.
(d) U.S. Air Force civilian employees may be used, in any
assignments in which they are capable and willing to serve. In planning
for on-base contingencies of fires, floods, hurricanes, and other
natural disasters, arrangements should be made for the identification
and voluntary use of individual employees to the extent that the needs
for their services are anticipated.
Sec. 809a.11 Procedures outside the United States.
It is Air Force policy to make every reasonable effort to avoid any
confrontation between United States military forces and host nation
demonstrators or other dissidents posing a threat to Air Force
resources. Intervention by United States military personnel outside the
United States is governed by international law, bilateral and other
international agreements to which the United States is a party, and
host-nation laws. Local plans to counter such situations must include
provisions to request and obtain host nation civil or military support
as quickly as possible.
[[Page 48]]
SUBCHAPTER B_SALES AND SERVICES
PART 811_RELEASE, DISSEMINATION, AND SALE OF VISUAL INFORMATION MATERIALS
--Table of Contents
Sec.
811.1 Exceptions.
811.2 Release of visual information materials.
811.3 Official requests for visual information productions or materials.
811.4 Selling visual information materials.
811.5 Customers exempt from fees.
811.6 Visual information product/material loans.
811.7 Collecting and controlling fees.
811.8 Forms prescribed and availability of publications.
Authority: 10 U.S.C. 8013.
Source: 65 FR 64619, Oct. 30, 2000, unless otherwise noted.
Sec. 811.1 Exceptions.
The regulations in this part do not apply to:
(a) Visual information (VI) materials made for the Air Force Office
of Special Investigations for use in an investigation or a
counterintelligence report. (See Air Force Instruction (AFI) 90-301, The
Inspector General Complaints, which describes who may use these
materials.)
(b) VI materials made during Air Force investigations of aircraft or
missile mishaps according to AFI 91-204, Safety Investigations and
Reports. (See AFI 90-301.)
Sec. 811.2 Release of visual information materials.
(a) Only the Secretary of the Air Force for Public Affairs (SAF/PA)
clears and releases Air Force materials for use outside Department of
Defense (DoD), according to AFI 35-205, Air Force Security and Policy
Review Program.
(b) The Secretary of the Air Force for Legislative Liaison (SAF/LL)
arranges the release of VI material through SAF/PA when a member of
Congress asks for them for official use.
(c) The International Affairs Division (HQ USAF/CVAII) or, in some
cases, the major command (MAJCOM) Foreign Disclosure Office, must
authorize release of classified and unclassified materials to foreign
governments and international organizations or their representatives.
Sec. 811.3 Official requests for visual information productions or
materials.
(a) Send official Air Force requests for productions or materials
from the DoD Central Records Centers by letter or message. Include:
(1) Descriptions of the images needed, including media format,
dates, etc.
(2) Visual information record identification number (VIRIN),
production, or Research, development, test, and evaluation (RDT&E)
identification numbers, if known.
(3) Intended use and purpose of the material.
(4) The date needed and a statement of why products are needed on a
specific date.
(b) Send inquiries about motion picture or television materials to
the Defense Visual Information Center (DVIC), 1363 Z Street, Building
2730, March ARB, CA 92518-2703.
(c) Send Air Force customer inquiries about still photographic
materials to 11 CS/SCUA, Bolling AFB, Washington, DC 20332-0403 (the Air
Force accessioning point).
(d) Send non-Air Force customers' inquiries about still photographic
materials to the DVIC.
Sec. 811.4 Selling visual information materials.
(a) Air Force VI activities cannot sell materials.
(b) HQ AFCIC/ITSM may approve the loan of copies of original
materials for federal government use.
(c) Send requests to buy:
(1) Completed, cleared, productions, to the National Archives and
Records Administration, National Audiovisual Center, Information Office,
8700 Edgeworth Drive, Capitol Heights, MD 20722-3701.
(2) Nonproduction VI motion media to the DVIC. The center may sell
other Air Force VI motion picture and television materials, such as
historical and stock footage. When it sells VI motion
[[Page 49]]
media, the DVIC assesses charges, unless Sec. 811.5 exempts the
requesting activity.
(3) VI still media to the DoD Still Media Records Center (SMRC),
Attn: SSRC, Washington, DC 20374-1681. When SMRC sells VI still media,
the SMRC assesses charges, unless Sec. 811.5 exempts the requesting
activity.
Sec. 811.5 Customers exempt from fees.
Title III of the 1968 Intergovernmental Cooperation Act (42 U.S.C.
4201, 4231, and 4233) exempts some customers from paying for products
and loans. This applies if the supplier has sufficient funds and if the
exemption does not impair its mission. The requesting agency must
certify that the materials are not commercially available. When requests
for VI material do not meet exemption criteria, the requesting agency
pays the fees. Exempted customers include:
(a) DoD and other government agencies asking for materials for
official activities (see DoD Instruction 4000.19, Interservice, and
Intergovernmental Support, August 9, 1995, and DoD Directive 5040.2,
Visual Information (VI), December 7, 1987.
(b) Members of Congress asking for VI materials for official
activities.
(c) VI records center materials or services furnished according to
law or Executive Order.
(d) Federal, state, territorial, county, municipal governments, or
their agencies, for activities contributing to an Air Force or DoD
objective.
(e) Nonprofit organizations for public health, education, or welfare
purposes.
(f) Armed Forces members with a casualty status, their next of kin,
or authorized representative, if VI material requested relates to the
member and does not compromise classified information or an accident
investigation board's work.
(g) The general public, to help the Armed Forces recruiting program
or enhance public understanding of the Armed Forces, when SAF/PA
determines that VI materials or services promote the Air Force's best
interest.
(h) Incidental or occasional requests for VI records center
materials or services, including requests from residents of foreign
countries, when fees would be inappropriate. AFI 16-101, International
Affairs and Security Assistance Management, tells how a foreign
government may obtain Air Force VI materials.
(i) Legitimate news organizations working on news productions,
documentaries, or print products that inform the public on Air Force
activities.
Sec. 811.6 Visual information product/material loans.
(a) You may request unclassified and classified copies of current
Air Force productions and loans of DoD and other Federal productions
from JVISDA, ATTN: ASQV-JVIA-T-AS, Bldg. 3, Bay 3, 11 Hap Arnold Blvd.,
Tobyhanna, PA 18466-5102.
(1) For unclassified products, use your organization's letterhead,
identify subject title, PIN, format, and quantity.
(2) For classified products, use your organization's letterhead,
identify subject title, personal identification number (PIN), format,
and quantity. Also, indicate that either your organization commander or
security officer, and MAJCOM VI manager approve the need.
(b) You may request other VI materials, such as, still images and
motion media stock footage, from DVIC/OM-PA, 1363 Z Street, Building
2730, March ARB, CA 92518-2703.
Sec. 811.7 Collecting and controlling fees.
(a) The DoD records centers usually collect fees in advance.
Exceptions are sales where you cannot determine actual cost until work
is completed (for example, television and motion picture services with
per minute or per footage charges).
(b) Customers pay fees, per AFR 177-108, Paying and Collecting
Transactions at Base Level, with cash, treasury check, certified check,
cashier's check, bank draft, or postal money order.
Sec. 811.8 Forms prescribed and availability of publications.
(a) AF Form 833, Visual Information Request, AF Form 1340, Visual
Information Support Center Workload Report, DD Form 1995, Visual
Information (VI) Production Request and Report,
[[Page 50]]
DD Form 2054-1, Visual Information (VI) Annual Report, and DD Form 2537,
Visual Information Caption Sheet are prescribed by this part.
(b) Air Force publications and forms referenced in this part are
available from NTIS, 5285 Port Royal Road, Springfield, VA 22161 or
online at http://www.afpubs.hq.af.mil. DoD publications are available at
http://www.defenselink.mil/pubs.
PART 813_VISUAL INFORMATION DOCUMENTATION PROGRAM--Table of Contents
Sec.
813.1 Purpose of the visual information documentation (VIDOC) program.
813.2 Sources of VIDOC.
813.3 Responsibilities.
813.4 Combat camera operations.
813.5 Shipping or transmitting visual information documentation images.
813.6 Planning and requesting combat documentation.
813.7 Readiness reporting.
Authority: 10 U.S.C. 8013.
Source: 65 FR 64621, Oct. 30, 2000, unless otherwise noted.
Sec. 813.1 Purpose of the visual information documentation (VIDOC)
program.
Using various visual and audio media, the Air Force VIDOC program
records important Air Force operations, historical events, and
activities for use as decision making and communicative tools. VIDOC of
Air Force combat operations is called COMCAM documentation. Air Force
publications are available at NTIS, 5285 Port Royal Road, Springfield,
VA 22161 or online at http://www.afpubs.hq.af.mil. DoD publications are
available at http://www.defenselink.mil/pubs.
Sec. 813.2 Sources of VIDOC.
Primary sources of VIDOC materials include:
(a) HQ AMC active and reserve combat camera (COMCAM) forces, both
ground and aerial, whose primary goal is still and motion media
documentation of Air Force and air component combat and combat support
operations, and related peacetime activities such as humanitarian
actions, exercises, readiness tests, and operations.
(b) Visual information forces with combat documentation capabilities
from other commands: HQs ACC, AETC, AFRES, and AFSPACECOM.
(c) Communications squadron base visual information centers
(BVISCs).
(d) Air Digital Recorder (ADR) images from airborne imagery systems,
such as heads up displays, radar scopes, and images from electro-optical
sensors carried aboard aircraft and weapons systems.
(e) Photography of Air Force Research, Development, Test &
Evaluation (RDT&E) activities, including high speed still and motion
media optical instrumentation.
Sec. 813.3 Responsibilities.
(a) HQ AFCIC/ITSM:
(1) Sets Air Force VIDOC policy.
(2) Oversees United States Air Force (USAF) COMCAM programs and
combat readiness.
(3) Makes sure Air Force participates in joint actions by
coordinating with the Office of the Secretary of Defense staff, Joint
Chiefs of Staff (JCS), executive departments, and other branches of the
United States Government.
(4) Approves use of Air Force COMCAM forces in non-Air Force
activities.
(b) Air components:
(1) Manage air component COMCAM and visual information support
within their areas of responsibility. Documents significant events and
operations for theater and national-level use.
(2) Sets requirements for COMCAM and VI support. Includes
requirements in operations plans (OPLAN) force lists, concept plans
(CONPLAN), operations orders (OPORD), and similar documents. See Air
Force Manual (AFMAN) 10-401, Operation Plan and Concept Plan Development
and Implementation.
(3) Coordinate with MAJCOM VI managers to plan and source VIDOC
forces for war, contingencies, and exercises.
(4) Provide input (VI and COMCAM requirements) to HQ AMC/SCMV, 203
West Losey Street, Room 3180, Scott AFB, IL 62225-5223, as required to
develop the annual VI Exercise Support Plan. Include requirements to
exercise
[[Page 51]]
VI forces to refine operational procedures and meet defined objectives.
(c) HQ AMC:
(1) Provides primary Air Force ADR theater support to the air
component commanders.
(2) Maintains a deployable theater support Unified Transportation
Command (UTC) to manage ADR requirements above the aviation wing level.
This includes the gathering, editing, copying, and distribution of ADR
images from combat aviation squadrons for operational analysis, bomb
damage assessment, collateral intelligence, training, historical, public
affairs, and other needs.
(3) Sets combat training standards and develops programs for all Air
Force COMCAM personnel (includes both formal classroom and field
readiness training).
(4) Coordinates and meets COMCAM needs in war, operations, and
concept plans.
(5) Provides the Air Force's primary COMCAM capability and assists
air component and joint commands with deliberate and crisis action
planning for USAF's COMCAM assets.
(6) Provides component and theater commands COMCAM planning
assistance and expertise for contingencies, humanitarian actions,
exercises, and combat operations.
(7) Acts as manpower and equipment force packaging (MEFPAK) manager
for COMCAM UTCs.
(8) Funds HQ AMC COMCAM personnel and equipment for contingency or
wartime deployments. (The requester funds temporary duty and supply
costs for planned events, such as non-JCS exercises and competitions.)
(9) Develops and monitors the annual Air Force-wide VI Exercise
Support Plan for the Air Staff, with assistance from air components and
supporting MAJCOMs. (Use criteria contained in Sec. 813.4(e)(1) and
provide equitable deployment opportunity for tasked commands' VI
resources.)
(d) MAJCOM VI managers:
(1) Plan and set policy for documenting activities of operational,
historical, public affairs, or other significance within their commands.
(2) Train and equip VIDOC forces to document war, contingencies,
major events, Air Force and joint exercises, and weapons tests.
(3) Make sure COMCAM and BVISC forces meet their wartime tasking and
identify and resolve deficiencies. Refer significant deficiencies and
problems and proposed resolution to HQ AFCIC/ITSM.
(4) Allow documentation of significant Air Force activities and
events, regardless of their sensitivity or classification. Protect
materials as the supported command directs. Safeguard classified images
or handle them according to Department of Defense (DoD) Directive
5200.1, DoD Information Security Program, June 7, 1982, with Changes 1
and 2, and AFI 31-401, Information Security Program Management. The
authority in charge of the event or operation approves documentation
distribution.
(5) Update UTC availability in MAJCOM information systems.
(6) Assist Air Force Operations Group, in identifying the command's
capability to support COMCAM and VI requirements.
(7) Provide inputs to HQ AMC/SCMV for the annual VI Exercise Support
Plan for JCS exercises.
(8) Make sure units that have deployable VI teams have Status of
Resources and Training System (SORTS) reportable designed operational
capability (DOC) statements that accurately reflect their mission and
taskings.
(9) Develop and oversee measurements, such as operational readiness
inspection criteria, to evaluate VI force readiness at DOC-tasked units.
Sec. 813.4 Combat camera operations.
(a) Air Force COMCAM forces document Air Force and air component
activities.
(b) The supported unified command or joint task force commander,
through the air component commander (when assigned), controls Air Force
COMCAM forces in a joint environment. If an air component is assigned,
the air component normally manages documentation of its operations. Air
Force COMCAM and visual information
[[Page 52]]
support for joint operations will be proportionate to USAF combat force
participation. In airlift operations, HQ AMC may be the supported
command.
(c) During contingencies, exercises, and other operations, the Air
Force provides its share of Unified Command headquarters COMCAM and
visual information support forces for still photographic, motion media,
graphics, and other VI services.
(d) COMCAM and VI forces take part in Air Force and joint exercises
to test procedures and over-all readiness. COMCAM and VI forces also
provide VI products to command, operations, public affairs, historical,
and other significant customers.
(e) Sourcing COMCAM forces. See AFMAN 10-401 for specific
procedures.
(1) When VI support teams are required, the lead wing's VI UTC
deploys as primary, whenever possible. If lead wing VI support is not
available, the providing command sources the requirement from other
active or reserve component forces, or coordinates with other MAJCOMs
for assistance.
(2) Air Force VI personnel who assist supported commands in
determining COMCAM and VI requirements and sourcing consider the total
USAF VI community as a resource. Planners consider employing USAF
deployable VI support teams, augmentation combat documentation teams
from AFSPACECOM, AETC, and ACC, as well as active and reserve COMCAM
teams.
Sec. 813.5 Shipping or transmitting visual information documentation
images.
(a) COMCAM images. Send COMCAM images to the DoD Joint Combat Camera
Center, Room 5A518, Pentagon, Washington, DC 20330-3000, by the fastest
means possible, following the approval procedures that on-scene and
theater commanders set.
(b) Other non-COMCAM images. After use, send significant non-COMCAM
images to the appropriate DoD media records center through the Air Force
record center accessioning point.
(c) Identification of VIDOC materials. Clearly identify all VIDOC
and COMCAM material with slates, captions, and cover stories.
Sec. 813.6 Planning and requesting combat documentation.
(a) Planned combat documentation. Air components identify
documentation needs as early as possible in OPLANs, CONPLANs, and OPORDs
and send copies of these plans to HQ AMC/SCMV, 203 West Losey Street,
Room 3180, Scott AFB, IL 62225-5223. Include the contact for planning
and support.
(b) Activity documentation. MAJCOMs may request that HQ AMC document
their activities. Send information copies of requests to HQ AFCIC/ITSM,
1250 Air Force Pentagon, Washington, DC 20330-1250, and HQ AMC/SCMV.
When a supporting component command operationally controls HQ AMC COMCAM
units, other organizations that need support must coordinate requests
with the supported command.
(c) Unplanned combat documentation. Send short notice requests to
the supported operational commander as soon as possible, with
information copies to HQ AFCIC/ITSM and HQ AMC/SCMO. Identify end
product requirements, media formats, and deadlines.
(d) Humanitarian, disaster relief, and contingencies. Theater
commanders normally task the supporting component through the Joint
Operation Planning and Execution System, that in turn, requests support
from HQ AMC. HQ USAF can directly task HQ AMC to document humanitarian,
disaster relief, or contingency activities if it does not receive other
tasking(s). In these cases, coordinate with the supported unified
command.
Sec. 813.7 Readiness reporting.
All Air Force units assigned a DOC statement report readiness status
through the SORTS process. See AFI 10-201, Status of Resources and
Training System, for specific information and reporting criteria.
SUBCHAPTER C_PUBLIC RELATIONS [RESERVED]
[[Page 53]]
SUBCHAPTER D_CLAIMS AND LITIGATION
PART 842_ADMINISTRATIVE CLAIMS--Table of Contents
Sec.
842.0 Scope.
Subpart A_General Information
842.1 Scope of this subpart.
842.2 Definitions.
842.3 Claims authorities.
842.4 Where to file a claim.
842.5 Claims forms.
842.6 Signature on the claim form.
842.7 Who may file a claim.
842.8 Insured claimants.
Subpart B_Claims Under Article 139, Uniform Code of Military Justice
(UCMJ) (10 U.S.C. 939)
842.9 Scope of this subpart.
842.10 Definitions.
842.11 Claims payable.
842.12 Claims not payable.
842.13 Limiting provisions.
842.14 Filing a claim.
Subpart C_Personnel Claims (31 U.S.C. 3701, 3721)
842.15 Scope of this subpart.
842.16 Definitions.
842.17 Delegations of authority.
842.18 Filing a claim.
842.19 Partial payments.
842.20 Statute of limitations.
842.21 Who may file a claim.
842.22 Who are proper claimants.
842.23 Who are not proper claimants.
842.24 General provisions.
842.25 Claims payable.
842.26 Claims not payable.
842.27 Reconsideration of a claim.
842.28 Right of subrogation, indemnity, and contribution.
842.29 Depreciation and maximum allowances.
Subpart D_Military Claims Act (10 U.S.C. 2733)
842.30 Scope of this subpart.
842.31 Definitions.
842.32 Delegations of authority.
842.33 Filing a claim.
842.34 Advance payments.
842.35 Statute of limitations.
842.36 Who may file a claim.
842.37 Who are proper claimants.
842.38 Who are not proper claimants.
842.39 Claims payable.
842.40 Claims not payable.
842.41 Applicable law.
842.42 Appeal of final denials.
842.43 Right of subrogation, indemnity, and contribution.
842.44 Attorney fees.
Subpart E_Foreign Claims (10 U.S.C. 2734)
842.45 Scope of this subpart.
842.46 Definitions.
842.47 Delegations of authority.
842.48 Filing a claim.
842.49 Advance payments.
842.50 Statute of limitations.
842.51 Who may file a claim.
842.52 Who are proper claimants.
842.53 Who are not proper claimants.
842.54 Payment criteria.
842.55 Claims not payable.
842.56 Applicable law.
842.57 Reconsideration of final denials.
842.58 Right of subrogation, indemnity, and contribution.
Subpart F_International Agreement Claims (10 U.S.C. 2734a and 2734b)
842.59 Scope of this subpart.
842.60 Definitions.
842.61 Delegations of authority.
842.62 Filing a claim.
Subpart G_Use of Government Property Claims (10 U.S.C. 2737)
842.63 Scope of this subpart.
842.64 Definitions.
842.65 Delegations of authority.
842.66 Filing a claim.
842.67 Statute of limitations.
842.68 Claims payable.
842.69 Claims not payable.
842.70 Reconsideration of final denial.
842.71 Settlement agreement.
Subpart H_Admiralty Claims (10 U.S.C. 9801 9804, 9806; 46 U.S.C. 740)
842.72 Scope of this subpart.
842.73 Definitions.
842.74 Delegations of authority.
842.75 Reconsidering claims against the United States.
Subpart I_Claims Under the Federal Tort Claims Act (28 U.S.C. 1346(b),
2402, 2671, 2672, 2674 2680)
842.76 Scope of this subpart.
842.77 Delegations of authority.
842.78 Settlement agreements.
[[Page 54]]
842.79 Administrative claim; when presented.
Subpart J_Property Damage Tort Claims in Favor of the United States (31
U.S.C. 3701, 3711 3719)
842.80 Scope of this subpart.
842.81 Delegations of authority.
842.82 Assertable claims.
842.83 Non-assertable claims.
842.84 Asserting the claim.
842.85 Referring a claim to the U.S. Attorney or the Department of
Justice.
842.86 Statute of limitations.
842.87 Compromise, termination, and suspension of collection.
Subpart K_Claims Under the National Guard Claims Act (32 U.S.C. 715)
842.88 Scope of this subpart.
842.89 Definitions.
842.90 Delegations of authority.
842.91 Filing a claim.
842.92 Advance payments.
842.93 Statute of limitations.
842.94 Who may file a claim.
842.95 Who are proper claimants.
842.96 Who are not proper claimants.
842.97 Claims payable.
842.98 Claims not payable.
842.99 Applicable law.
842.100 Appeal of final denials.
842.101 Government's right of subrogation, indemnity, and contribution.
842.102 Attorney fees.
Subpart L_Hospital Recovery Claims (42 U.S.C. 2651 2653)
842.103 Scope of this subpart.
842.104 Definitions.
842.105 Delegations of authority.
842.106 Assertable claims.
842.107 Nonassertable claims.
842.108 Asserting the claim.
842.109 Referring a claim to the U.S. Attorney.
842.110 Statute of limitations.
842.111 Recovery rates in government facilities.
842.112 Waiver and compromise of United States interest.
842.113 Reconsideration of a waiver for undue hardship.
Subpart M_Nonappropriated Fund Claims
842.114 Scope of this subpart.
842.115 Definitions.
842.116 Payment of claims against NAFIs.
842.117 Claims by customers, members, participants, or authorized users.
Subpart N_Civil Air Patrol Claims (5 U.S.C. 8101(1)(B), 8102(a),
8116(c), 8141; 10 U.S.C. 9441, 9442; 36 U.S.C. 201 208)
842.118 Scope of this subpart.
842.119 Definitions.
842.120 Improper claimants.
842.121 Claims payable.
842.122 Claims not payable.
Subpart O_Advance Payments (10 U.S.C. 2736)
842.123 Scope of this subpart.
842.124 Delegation of authority.
842.125 Who may request.
842.126 When authorized.
842.127 When not authorized.
842.128 Separate advance payment claims.
842.129 Liability for repayment.
Authority: Sec. 8013, 100 Stat. 1053, as amended; 10 U.S.C. 8013,
except as otherwise noted.
Source: 55 FR 2809, Jan. 29, 1990, unless otherwise noted.
Note: Air Force Regulations are available on the e-Publishing Web
site at http://www.e-publishing.af.mil/ for downloading. This part is
derived from Air Force Instruction 51-501, Tort Claims, and Air Force
Instruction 51-502, Personnel and Carrier Recovery Claims.
[81 FR 83688, Nov. 22, 2016]
Editorial Note: Nomenclature changes to part 842 appear at 81 FR
83688, Nov. 22, 2016.
Sec. 842.0 Scope.
This part establishes standard policies and procedures for all
administrative claims resulting from Air Force activities and for which
the Air Force has assigned responsibility.
[81 FR 83688, Nov. 22, 2016]
Subpart A_General Information
Sec. 842.1 Scope of this subpart.
This subpart explains terms used in this part. It states basic Air
Force claims policy and identifies proper claimants.
Sec. 842.2 Definitions.
(a) Authorized agent. Any person or corporation, including a legal
representative, empowered to act on a claimant's behalf.
(b) Civilian personnel. Civilian employees of the Air Force who are
paid
[[Page 55]]
from appropriated or nonappropriated funds. They include prisoners of
war, interned enemy aliens performing paid labor, and volunteer workers
except for claims under the Military Personnel and Civilian Employees'
Claims Act.
(c) Claim. Any signed written demand made on or by the Air Force for
the payment of a sum certain. It does not include any obligations
incurred in the regular procurement of services, supplies, equipment, or
real estate. An oral demand made under Article 139, Uniform Code of
Military Justice (UCMJ) is sufficient.
(d) Claimant. An individual, partnership, association, corporation,
country, state, territory, or its political subdivisions, and the
District of Columbia. The U.S. Government or any of its
instrumentalities may be a claimant in admiralty, tort, carrier recovery
and hospital recovery claims in favor of the United States.
(e) Geographic area of claims responsibility. The base Staff Judge
Advocate's (SJA's) jurisdiction for claims. CONUS jurisdictional areas
are designated by AFLOA/JACC on maps distributed to the field. HQ PACAF,
HQ USAFE, and HQ 9AF SJAs designate these areas within their
jurisdictions. DOD assigns areas of single service responsibility to
each military department.
(f) AFLOA/JACC. Claims and Tort Litigation Division, 1500 West
Perimeter Road, Suite 1700, Joint Base Andrews, MD 20762.
(g) Owner. A holder of a legal title or an equitable interest in
certain property. Specific examples include:
(1) For real property. The mortgagor, and the mortgagee if that
individual can maintain a cause of action in the local courts involving
a tort to that specific property.
(2) For personal property. A bailee, lessee, mortgagee and a
conditional vendee. A mortgagor, conditional vendor, title loan company
or someone else other than the owner, who has the title for purposes of
security are not owners.
(h) HQ PACAF. Headquarters, Pacific Air Forces, Hickam AFB, HI
96853-5001.
(i) Personal injury. The term ``personal injury'' includes both
bodily injury and death.
(j) Property damage. Damage to, loss of, or destruction of real or
personal property.
(k) Settle. To consider and pay, or deny a claim in full or in part.
(l) Single Base General Court-Martial Jurisdiction (GCM). For claims
purposes, a base legal office serving the commander who exercises GCM
authority over that base, or that base and other bases.
(m) Subrogation. The act of assuming the legal rights of another
after paying a claim or debt, for example, an insurance company
(subrogee) paying its insured's (subrogor's) claim, thereby assuming the
insured's right of recovery.
(n) HQ USAFE. Headquarters, United States Air Forces in Europe,
Ramstein Air Base, Germany, APO NY 09012-5001.
[55 FR 2809, Jan. 29, 1990, as amended at 56 FR 1574, Jan. 16, 1991; 81
FR 83688, Nov. 22, 2016]
Sec. 842.3 Claims authorities.
(a) Appellate authority. The individual authorized to review the
final decision of a settlement authority upon appeal or reconsideration.
(b) Settlement authority. The individual or foreign claims
commission authorized to settle a claim upon its initial presentation.
Sec. 842.4 Where to file a claim.
File a claim at the base legal office of the unit or installation at
or nearest to where the accident or incident occurred. If the accident
or incident occurred in a foreign country where no Air Force unit is
located, file the claim with the Defense Attache (DATT) or Military
Assistance Advisory Group (MAAG) personnel authorized to receive claims
(DIAM 100-1 and AFR 400-45). In a foreign country where a claimant is
unable to obtain adequate assistance in filing a claim, the claimant may
contact the nearest Air Force SJA. The SJA then advises AFLOA/JACC
through claims channels of action taken and states why the DATT or MAAG
was unable to adequately assist the claimant.
[81 FR 83688, Nov. 22, 2016]
[[Page 56]]
Sec. 842.5 Claims forms.
Any signed written demand on the Air Force for a sum certain is
sufficient to file a claim. The claimant should use these forms when
filing a claim:
(a) Claim processed under the Military Personnel and Civilian
Employees' Claims Act. Use AF Form 180, Claim for Loss of or Damage to
Personal Property Incident to Service, or DD Forms 1842, Claim for
Personal Property Against the United States, and 1844, Schedule of
Property and Claim Analysis Chart, to file the claim.
(b) Claim processed under international agreements. Use any form
specified by the host country.
(c) Any other type claim. Use SF 95, Claim for Damage, Injury, or
Death.
Sec. 842.6 Signature on the claim form.
The claimant or authorized agent signs the claim form in ink using
the first name, middle initial, and last name.
(a) Claim filed by an individual. (1) A married woman signs her
name, for example, Mary A. Doe, rather than Mrs. John Doe.
(2) An authorized agent signing for a claimant shows, after the
signature, the title or capacity and attaches evidence of authority to
present a claim on behalf of the claimant as agent, executor,
administrator, parent, guardian, or other representative; for example,
John Doe by Richard Roe, Attorney in Fact. A copy of a current and valid
power of attorney, court order, or other legal document is sufficient
evidence of the agent's authority.
(b) Claim with joint interest. Where a joint ownership or interest
in real property exists, all joint owners must sign the claim form. This
includes a husband and wife signing a claim if the claim is for property
damage. However, only the military member or civilian employee signs the
claim form for a claim under the Military Personnel and Civilian
Employees' Claims Act.
(c) Claim filed by a corporation. (1) A corporate officer signing
the form must show title or capacity and affix the corporate seal (if
any) to the claim form.
(2) If the person signing the claim is other than the corporate
officer they must:
(i) Attach to the claim form a certification by a proper corporate
officer that the individual is an agent of the corporation duly
authorized to file and settle the claim;
(ii) Affix to the claim form the corporate seal (if any) to the
certification.
(d) Claim filed by a partnership. A partner must sign the form
showing his or her title as partner and list the full name of the
partnership.
Sec. 842.7 Who may file a claim.
(a) Property damage. The owner or owners of the property or their
authorized agent may file a claim for property damage.
(b) Personal injury or death. (1) The injured person or authorized
agent may file a claim for personal injury.
(2) The duly appointed guardian of a minor child or any other person
legally entitled to do so under applicable local law may file a claim
for a minor's personal injury.
(3) The executor or administrator of the decedent's estate or any
other person legally entitled to do so under applicable local law may
file a claim based on an individual's death.
(c) Subrogation. The subrogor (insured) and the subrogee (insurer)
may file a claim jointly or individually. Pay a fully subrogated claim
only to the subrogee. A joint claim must be asserted in the names of and
signed by the real parties in interest. Make payment by sending a joint
check to the subrogee, made payable to the subroger and subrogee. If
separate claims are filed, make payment by check issued to each claimant
to the extent of each undisputed interest.
Sec. 842.8 Insured claimants.
Insured claimants must make a detailed disclosure of their insurance
coverage by stating:
(a) Their name and address.
(b) Kind, amount, and dates of coverage of insurance.
(c) Insurance policy number.
(d) Whether a claim was presented to the insurer and, if so, in what
amount.
(e) Whether the insurer paid or is expected to pay the claim.
[[Page 57]]
(f) The amount of any payment made or promised.
Subpart B_Claims Under Article 139, Uniform Code of Military Justice
(UCMJ) (10 U.S.C. 939)
Source: 55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83688, Nov.
22, 2016, unless otherwise noted.
Sec. 842.9 Scope of this subpart.
It sets out the Air Force procedures for processing Article 139,
UCMJ claims.
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83688, Nov. 22, 2016]
Sec. 842.10 Definitions.
(a) Appointing commander. The commander exercising special court-
martial jurisdiction over the offender.
(b) Board of officers. One to three commissioned officers appointed
to investigate a complaint of willful property damage or wrongful taking
by Air Force personnel.
(c) Property. Property is an item that is owned or possessed by an
individual or business. Property includes a tangible item such as
clothing, household furnishings, motor vehicles, real property, and
currency. The term does not include intangible property or items having
no independent monetary worth. Items that should not be considered as
property for the purpose of this part include a stock, bond, check,
check book, credit card, telephone service and cable television
services.
(d) Willful damage. Damage or destruction caused intentionally,
knowingly, and purposely, without justifiable excuse.
(e) Wrongful taking. Any unauthorized taking or withholding of
property with intent to deprive the owner or person in lawful possession
either temporarily or permanently.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83688,
Nov. 22, 2016]
Sec. 842.11 Claims payable.
Claims for property willfully damaged or wrongfully taken by Air
Force military personnel as a result of riotous, violent, or disorderly
conduct. If a claim is payable under this part and also under another
part, it may be paid under this part if authorized by AFLOA/JACC.
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83688, Nov. 22, 2016]
Sec. 842.12 Claims not payable.
Claims that are not payable are:
(a) Claims resulting from simple negligence.
(b) Claims for personal injury or death.
(c) Claims resulting from acts or omissions of Air Force military
personnel while acting within the scope of their duty.
(d) Claims of subrogees.
(e) Claims arising from private indebtedness.
(f) Claims for reimbursement for bad checks.
(g) Claims involving wrongful taking stemming from larceny, forgery
or deceit, which are not accompanied by riotous or violent action.
(h) Claims against Air National Guard members unless they are
performing duty under Title 10 U.S.C.
(i) Claims for indirect, consequential or remote damages.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83688,
Nov. 22, 2016]
Sec. 842.13 Limiting provisions.
(a) A complaint must be submitted within 90 days of the date of the
incident. The appointing commander may find good cause for the delay and
accept a late claim. The appointing commander's determination of good
cause is final and not reviewable.
(b) Assessment of damages in excess of $5,000 against an offender's
pay for a single incident requires AFLOA/JACC approval.
[81 FR 83688, Nov. 22, 2016]
Sec. 842.14 Filing a claim.
Claimant complains (orally or in writing) to the commander of a
military organization or unit of the alleged offending member or members
or to the commander of the nearest military installation. If the claim
is made orally, the individual must assist the commander to reduce the
complaint to writing within a reasonable time. The
[[Page 58]]
complainant need not request a sum certain in writing at the time the
complaint is filed, but they must present such value and evidence before
settlement is made.
[81 FR 83688, Nov. 22, 2016]
Subpart C_Personnel Claims (31 U.S.C. 3701, 3721)
Source: 55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83688, Nov.
22, 2016, unless otherwise noted.
Sec. 842.15 Scope of this subpart.
It explains how to settle and pay claims under the Military
Personnel and Civilian Employees' Claims Act for incident to service
loss and damage of personal property. These claims are paid according to
this subpart even when another subpart may also apply.
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83688, Nov. 22, 2016]
Sec. 842.16 Definitions.
(a) Military installation. A facility used to serve a military
purpose and used or controlled by the Air Force or any other Department
of Defense (DOD) element.
(b) Personal property. Tangible property an individual owns,
including but not limited to household goods, unaccompanied baggage,
privately owned vehicles (POV), and mobile homes.
(c) Reconsideration. The original or a higher settlement authority's
review of a prior settlement action.
(d) Unusual Occurrence. Something not expected to happen in the
normal course of events.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83688,
Nov. 22, 2016]
Sec. 842.17 Delegations of authority.
(a) Settlement authority. The Secretary of the Air Force has
delegated the authority to assign areas of responsibility and designate
functional responsibility for claims under the Military Personnel and
Civilian Employees' Claims Act to The Judge Advocate General (TJAG).
(b) Reconsideration authority. A settlement authority has the same
authority specified in paragraph (a) of this section. However, with the
exception of TJAG, a settlement authority may not deny a claim on
reconsideration that it, or its delegate, had previously denied.
(c) Authority to reduce, withdraw and restore delegated settlement
authority. Any superior settlement authority may reduce, withdraw, or
restore delegated authority.
[81 FR 83688, Nov. 22, 2016]
Sec. 842.18 Filing a claim.
(a) How and when to file a claim. A claim is filed when a federal
military agency receives from a claimant or duly authorized agent a
properly completed AF Form 180, DD Form 1842 or other written and signed
demand for a determinable sum of money.
(1) A claim is also filed when a federal military agency receives
from a claimant or duly authorized agent an electronic submission,
through a Department of Defense claims Web site, indicating that the
claimant intends for the appropriate military branch to consider a
digitally signed demand for a determinable sum of money.
(2) A claim is also filed when the Air Force receives from a
claimant or duly authorized agent an electronic submission, through the
Air Force claims Web site, a digitally signed demand for a determinable
sum of money.
(b) Amending a claim. A claimant may amend a claim at any time prior
to the expiration of the statute of limitations by submitting a signed
amendment. The settlement authority adjudicates and settles or forwards
the amended claim as appropriate.
(c) Separate claims. The claimant files a separate claim for each
incident which caused a loss. For transportation claims, this means a
separate claim for each shipment.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83688,
Nov. 22, 2016]
Sec. 842.19 Partial payments.
Upon request of a claimant, a settlement authority may make a
partial payment in advance of final settlement when a claimant
experiences personal hardship due to extensive property damage or loss.
Partial payments are made if a claim for only part of the loss
[[Page 59]]
is submitted and is readily provable, up to the amount of the settlement
authority. (The claimant may later amend the claim for the remainder of
the loss.) If the total payable amount of the claim exceeds the payment
limits of the settlement authority, send it with recommendations to the
proper settlement authority.
(a) If a claim for only part of the loss is submitted and is readily
provable, pay it up to the amount of the settlement authority. (The
claimant may later amend the claim for the remainder of the loss.) If
the total payable amount of the claim exceeds the payment limits of the
settlement authority, send it with recommendations through claims
channels to the proper settlement authority.
(b) When the total claim is submitted and the amount payable exceeds
the settlement authority, pay a partial payment within the limits of
settlement authority and send the claim, with recommendations, through
claims channels to the proper settlement authority.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83688,
83689, Nov. 22, 2016]
Sec. 842.20 Statute of limitations.
(a) The claimant must file the claim in writing within 2 years after
it accrues. It accrues when the claimant discovered or reasonably should
have discovered the full extent of the property damage or loss. For
transportation losses, the claim usually accrues on the date of
delivery.
(b) To compute the statutory period, the incident date is excluded
and the day the claim was filed is included.
(c) Consider a claim filed after the statute has run if both of the
following are present:
(1) The United States is at war or in an armed conflict when the
claim accrues, or the United States enters a war or armed conflict after
the claim accrues. Congress or the President establishes the beginning
and end of war or armed conflict. A claimant may not file a claim more
than 2 years after the war or armed conflict ends.
(2) Good cause is shown. A claimant may not file a claim more than 2
years after the good cause ceases to exist.
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83688, Nov. 22, 2016]
Sec. 842.21 Who may file a claim.
A claim may be filed by:
(a) A proper claimant.
(b) An authorized agent or legal representative of a proper
claimant.
(c) A survivor of a deceased proper claimant in this order:
(1) Spouse.
(2) Children.
(3) Father or mother.
(4) Brothers or sisters.
[81 FR 83689, Nov. 22, 2016]
Sec. 842.22 Who are proper claimants.
Proper claimants are:
(a) Active duty Air Force military personnel.
(b) Civilian employees of the Air Force who are paid from
appropriated funds.
(c) DOD school teachers and school administrative personnel who are
provided logistic and administrative support by an Air Force
installation commander.
(d) Air Force Reserve (AFRES) and Air National Guard (ANG) personnel
when performing active duty, full-time National Guard duty, or inactive
duty training, ANG technicians under 32 U.S.C. 709.
(e) Retired or separated Air Force military personnel who suffer
damage or loss resulting from the last storage or movement of personal
property, or for claims accruing before retirement or separation.
(f) AFROTC cadets while on active duty for summer training.
(g) United States Air Force Academy cadets.
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83688, Nov. 22, 2016]
Sec. 842.23 Who are not proper claimants.
The following individuals are not proper claimants:
(a) Subrogees and assignees of proper claimants, including insurance
companies.
(b) Conditional vendors and lienholders.
[[Page 60]]
(c) Non-Air Force personnel, including American Red Cross personnel,
United Services Organization (USO) performers, employees of government
contractors, and Civil Air Patrol (CAP) members.
(d) AFROTC cadets who are not on active duty for summer training.
(e) Active duty military personnel and civilian employees of a
military service other than the Air Force.
(f) DOD employees who are not assigned to the Air Force.
(g) Army and Air Force Exchange Service (AAFES) employees and other
employees whose salaries are paid from nonappropriated funds (see
subpart O).
(h) Military personnel of foreign governments.
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83688, Nov. 22, 2016]
Sec. 842.24 General provisions.
Payable claims must be for:
(a) Personal property which is reasonable or useful under the
circumstances of military service.
(b) Loss, damage, destruction, confiscation, or forced abandonment
which is incident to service.
(c) Losses that are not collectible from any other source, including
insurance and carriers.
(d) Property that is owned by the claimants, or their immediate
families, or borrowed for their use, or in which the claimants or their
immediate families has an enforceable ownership interest.
(e) Losses occurring without the claimants' negligence.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83688,
83689, Nov. 22, 2016]
Sec. 842.25 Claims payable.
Claims may be payable for loss of or damage to tangible personal
property when the damage occurs incident to service. For loss of or
damage to property to be incident to service, it must occur at a place
and time that is connected to the service of an active duty military
member or employment of a civilian employee.
(a) Authorized location. Claims are only payable when the claimed
property is located in an authorized location. There must be some
connection between the claimant's service and the location of the
claimed property. Duty locations where personal property is used, stored
or held because of official duties are authorized places. Other
authorized places may include:
(1) Any location on a military installation not otherwise excluded.
(2) Any office, building, recreation area, or real estate the Air
Force or any other DoD element uses or controls.
(3) Any place a military member is required or ordered to be
pursuant to their duties and while performing those duties.
(4) Assigned Government housing or quarters in the United States or
provided in kind. The Military Personnel and Civilian Employees' Claims
Act specifically prohibits payment for loss of or damage to property in
quarters within the U.S. unless the housing or quarters are assigned or
otherwise provided in kind. Base housing that has not been privatized is
generally considered assigned or provided in kind wherever it is
located.
(i) Privatized housing or quarters within the United States subject
to the Military Housing Privatization Initiative located within the
fence line of a military installation or on federal land in which the
DoD has an interest is considered assigned or otherwise provided in kind
for the purposes of the Military Personnel and Civilian Employees'
Claims Act.
(ii) [Reserved]
(5) Housing or quarters outside the United States. Outside the US,
authorized off-base quarters, as well as assigned quarters, including
quarters in U.S. territories and possessions, are authorized places. The
residence of a civilian employee is not an authorized location if the
employee is a local inhabitant.
(6) Temporary duty (TDY) quarters and locations en route to the TDY
destination. Significant deviations from the direct travel route are not
authorized locations.
(7) Permanent change of station (PCS) temporary quarters and
locations enroute to the PCS destination. Significant deviations from
the direct travel route are not authorized locations.
[[Page 61]]
(8) Entitlement and benefit locations. For these locations to be
authorized, the claimant must be using them for the intended purpose and
the property must be reasonably linked to that purpose.
(9) Locations where personal property shipped or stored at
government expense are found. Government facilities where property is
stored at the claimant's expense or for their convenience without an
entitlement are not authorized places.
(b) Payable causes of loss incident to service. Because the
Personnel Claims Act (PCA) is not a substitute for private insurance,
loss or damage at quarters or other authorized locations may only be
paid if caused by:
(1) An unusual occurrence;
(2) Theft, vandalism or other malfeasance;
(3) Hostile action;
(4) A carrier, contractor, warehouseman or other transportation
service provider storing or moving goods or privately owned vehicles at
government expense;
(5) An agent of the US; or
(6) A permanent seizure of a witness' property by the Air Force.
(c) Privately owned vehicles (POV). Pay for damage to or loss of
POVs caused by government negligence under subpart F or K. Pay under
this subpart for damage or loss incident to:
(1) Theft of POVs or their contents, or vandalism to parked POVs:
(i) Anywhere on a military installation.
(ii) At offbase quarters overseas.
(iii) At other authorized places.
(2) Government shipment:
(i) To or from oversea areas incident to PCS.
(ii) On a space available reimbursable basis.
(iii) As a replacement vehicle under the provisions of the Joint
Travel Regulations (JTR).
(3) Authorized use for government duty other than PCS moves. The
owner must have specific advance permission of the appropriate
supervisor or official. Adequate proof of the permission and of
nonavailability of official transportation must be provided prior to
paying such claims. Claims arising while the claimant is deviating from
the principal route or purpose of the trip should not be paid, but
claims occurring after the claimant returns to the route or purpose
should be paid. Travel between quarters and place of duty, including
parking, is not authorized use for government duty.
(4) Paint spray, smokestack emission, and other similar operations
by the Air Force on a military installation caused by a contractor's
negligence. (Process the claim under subpart F or K, if government
negligence causes such losses.) If a contractor's operation caused the
damage:
(i) Refer the claim first to the contractor for settlement.
(ii) Settle the claim under this subpart if the contractor does not
pay it or excessively delays payment, and assert a claim against the
contractor.
(d) Damage to mobile or manufactured homes and contents in shipment.
Pay such claims if there is no evidence of structural or mechanical
failure for which the manufacturer is responsible.
(e) Borrowed property. Pay for loss or damage to property claimants
borrow for their use. Either the borrower or lender, if proper
claimants, may file a claim. Do not pay for property borrowed to
accommodate the lender, i.e., such as to avoid weight or baggage
restrictions in travel.
(f) Marine or aircraft incident. Pay claims of crewmembers and
passengers who are in duty or leave status at the time of the incident.
Payable items include jettisoned baggage, clothing worn at the time of
an incident, and reasonable amounts of money, jewelry, and other
personal items.
(g) Combat losses. Pay for personal property losses, whether or not
the United States was involved, due to:
(1) Enemy action.
(2) Action to prevent capture and confiscation.
(3) Combat activities.
(h) Civil activity losses. Pay for losses resulting from a
claimant's acts to:
(1) Quell a civil disturbance.
(2) Assist during a public disaster.
(3) Save human life.
(4) Save government property.
(i) Confiscated property. Pay for losses when:
(1) A foreign government unjustly confiscates property.
[[Page 62]]
(2) An unjust change or application of foreign law forces surrender
or abandonmnet of property.
(j) Clothing and accessories worn on the person. Pay claims for
damage to eyeglasses, hearing aids, and dentures the government did not
supply, when the damage results from actions beyond the normal risks
associated with daily living and working. Claimants assume the risk of
normal wear and tear, and their negligence bars payment of the claim.
(k) Money losses. Pay claims for loss of money when the losses are
due to theft from quarters, other authorized places, or from the person,
if the claimant was required to be in the area and could not avoid the
theft by due care. As a general rule, $200.00 is reasonable to have in
quarters, and $100.00 is reasonable to have on the person unless:
(1) The money was in a bona fide coin collection.
(2) The claimant can justify possession of the money for a PCS move,
extended TDY, vacation, extensive shopping trip, or similar
circumstances. The claimant must show a good reason why the money had
not been deposited in a bank or converted into travelers checks or a
money order.
(3) Local commercial facilities are not available or because U.S.
personnel do not generally use such facilities.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83688,
83689, Nov. 22, 2016]
Sec. 842.26 Claims not payable.
A claim is not payable if:
(a) It is not incident to the claimant's service.
(b) The loss or damage is caused in whole or in part by the
negligence or wrongful act of the claimant, the claimant's spouse,
agent, or employee.
(c) It is a subrogation or assigned claim.
(d) The loss is recovered or recoverable from an insurer or other
source unless the settlement authority determines there is good cause
for not claiming against the insurer.
(e) It is intangible property including bank books, promissory
notes, stock certificates, bonds, baggage checks, insurance policies,
checks, money orders, travelers checks and credit cards.
(f) It is government property, including issued clothing items
carried on an individual issue supply account. (Clothing not carried on
an individual issue supply account which is stolen or clothing lost or
damaged in transit may be considered as a payable item when claimed.)
(g) It is enemy property.
(h) It is a loss within the United States at offbase quarters the
government did not provide.
(i) It is damage to real property.
(j) It is an appraisal fee, unless the settlement authority requires
one to adjudicate the claim.
(k) It is property acquired or shipped for persons other than the
claimant or the claimant's immediate family; however, a claim for
property acquired for bona fide gifts may be paid.
(l) It is an article held for sale, resale, or used primarily in a
private business.
(m) It is an item acquired, possessed, shipped, or stored in
violation of any U.S. Armed Force directive or regulation.
(n) It is an item fraudulently claimed.
(o) It is for charges for labor performed by the owner or immediate
family member.
(p) It is for financial loss due to changed or cancelled orders.
(q) It is for expenses of enroute repair of a mobile or manufactured
home.
(r) It is a loss of use of personal property.
(s) It is an attorney or agent fee.
(t) It is the cost of preparing a claim, other than estimate fees.
(u) It is an inconvenience expense.
(v) It is a loss of, or damage to POV driven during PCS.
(w) It is a personal property insurance premium.
(x) It is a claim for a thesis or other similar papers, except for
the cost of materials.
(y) It is damage to, or loss of a rental vehicle which TDY or PCS
orders authorized.
(z) It is a cost to relocate a telephone or mobile or manufactured
home due to a government ordered quarters move.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83688,
83689, Nov. 22, 2016]
[[Page 63]]
Sec. 842.27 Reconsideration of a claim.
A claimant may request reconsideration of an initial settlement or
denial of a claim. The claimant sends the request in writing, to the
settlement authority within a reasonable time following the initial
settlement or denial. Sixty days is considered a reasonable time, but
the settlement authority may waive the time limit for good cause.
(a) The original settlement authority reviews the reconsideration
request. The settlement authority sends the entire claim file with
recommendations and supporting rationale to the next higher settlement
authority if all relief the claimant requests is not granted.
(b) The decision of the higher settlement authority is the final
administrative action on the claim.
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83688, Nov. 22, 2016]
Sec. 842.28 Right of subrogation, indemnity, and contribution.
The Air Force becomes subrogated to the rights of the claimant upon
settling a claim. The Air Force has the rights of contribution and
indemnity permitted by the law of the situs or under contract. The Air
Force does not seek contribution or indemnity from U.S. military
personnel or civilian employees whose conduct in scope of employment
gave rise to government liability.
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83688, Nov. 22, 2016]
Sec. 842.29 Depreciation and maximum allowances.
The military services have jointly established the ``Allowance List-
Depreciation Guide'' to determine values for most items and to limit
payment for some categories of items.
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83688, Nov. 22, 2016]
Subpart D_Military Claims Act (10 U.S.C. 2733)
Source: 55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83690, Nov.
22, 2016, unless otherwise noted.
Sec. 842.30 Scope of this subpart.
This subpart establishes policies and procedures for all
administrative claims under the Military Claims Act for which the Air
Force has assigned responsibility.
[81 FR 83690, Nov. 22, 2016]
Sec. 842.31 Definitions.
(a) Appeal. A request by the claimant or claimant's authorized agent
to reevaluate the final decision. A request for reconsideration and an
appeal are the same for the purposes of this subpart.
(b) Final denial. A letter mailed from the settlement authority to
the claimant or authorized agent advising the claimant that the Air
Force denies the claim. Final denial letters mailed from within the
United States shall be sent by U.S. Mail, certified mail, return receipt
requested.
(c) Noncombat activity. Activity, other than combat, war or armed
conflict, that is particularly military in character and has little
parallel in the civilian community.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83690,
Nov. 22, 2016]
Sec. 842.32 Delegations of authority.
(a) Settlement authority. (1) The Secretary of the Air Force has
authority to:
(i) Settle claims for $100,000 or less.
(ii) Settle claims for more than $100,000, paying the first $100,000
and reporting the excess to the General Accounting Office for payment.
(iii) Deny a claim in any amount.
(2) The Judge Advocate General has delegated authority to settle
claims for $100,000 or less and deny claims in any amount.
(3) The following individuals have delegated authority to settle
claims for $25,000 or less and to deny claims in any amount:
(i) The Deputy Judge Advocate General.
(ii) The Director, Civil Law and Litigation.
(iii) The Chief, Associate Chief and Branch Chiefs, Claims and Tort
Litigation Division.
(4) SJAs of the Air Force component commander of the U.S. geographic
[[Page 64]]
combatant commands for claims arising within their respective combatant
command areas of responsibility have delegated authority to settle
claims payable or deny claims filed for $25,000 or less.
(5) SJAs of GCMs in PACAF and USAFE have delegated authority to
settle claims payable, or deny claims filed for $15,000 or less.
(b) Redelegation of authority. The Chief, Claims and Tort Litigation
Division may redelegate his or her authority to Staff Judge Advocates. A
settlement authority may redelegate his or her authority for claims not
exceeding $25,000, to a subordinate judge advocate or civilian attorney
in writing. The Chief, AFLOA/JACC may redelegate up to $25,000, in
writing, to paralegals assigned to AFLOA/JACC and, upon request, may
authorize installation Staff Judge Advocates to redelegate their
settlement authority to paralegals under their supervision.
(c) Appellate authority. Upon appeal, a settlement authority has the
same authority specified above. However, no appellate authority below
the Office of the Secretary of the Air Force may deny an appeal of a
claim it had previously denied.
(d) Authority to reduce, withdraw, and restore settlement authority.
Any superior settlement authority may reduce, withdraw, or restore
delegated authority.
(e) Settlement negotiations. A settlement authority may settle a
claim in any sum within its delegated settlement authority, regardless
of the amount claimed. Send uncompromised claims in excess of the
delegated authority to the level with settlement authority. Unsuccessful
negotiations at one level do not bind higher authority.
(f) Special exceptions. Do not settle or deny claims for the
following reasons without AFLOA/JACC approval:
(1) Legal malpractice.
(2) On the job personal injury or death of an employee of a
government contractor or subcontractor.
(3) Assault, battery, false imprisonment, false arrest, abuse of
process, or malicious prosecution committed by an investigative or law
enforcement officer.
(4) On-base animal bite cases.
(5) Personal injury from asbestos or radon.
(6) Claims based upon an act or omission of an employee of the
government, exercising due care, in the execution of a statute or
regulation.
(7) Claims based upon the exercise or performance or the failure to
exercise or perform a discretionary function or duty on the part of a
federal agency or an employee of the government.
(8) Claims not payable because payment is not in the best interests
of the United States, is contrary to public policy, or is otherwise
contrary to the basic intent of the MCA.
(9) Claims presented by a national, or a corporation controlled by a
national, of a country at war or engaged in armed conflict with the
United States, or any country allied with such enemy country.
(10) Medical malpractice.
[55 FR 2809, Jan. 29, 1990, as amended at 56 FR 1574, Jan. 16, 1991.
Redesignated and amended at 81 FR 83690, Nov. 22, 2016]
Sec. 842.33 Filing a claim.
(a) Elements of a proper claim. A claim is must be filed on a
Standard Form 95 or other written document. It must be signed by the
Claimant or authorized agent, be for money damages in a sum certain, and
lay out a basic statement as to the nature of the claim that will allow
the Air Force to investigate the allegations contained therein.
(b) Amending a claim. A claimant may amend a claim at any time prior
to final action. To amend a claim, the claimant or his or her authorized
agent must submit a written, signed demand.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83690,
Nov. 22, 2016]
Sec. 842.34 Advance payments.
Subpart P of this part sets forth procedures for advance payments.
[81 FR 83690, Nov. 22, 2016]
Sec. 842.35 Statute of limitations.
(a) A claim must be filed in writing within 2 years after it
accrues. It is deemed to be filed upon receipt by The Judge Advocate
General, AFLOA/JACC, or a Staff Judge Advocate of the Air Force. A claim
accrues when the
[[Page 65]]
claimant discovers or reasonably should have discovered the existence of
the act that resulted in the claimed loss. The same rules governing
accrual pursuant to the Federal Tort Claims Act should be applied with
respect to the Military Claims Act. Upon receipt of a claim that
properly belongs with another military department, the claim is promptly
transferred to that department.
(b) The statutory time period excludes the day of the incident and
includes the day the claim was filed.
(c) A claim filed after the statute of limitations has run is
considered if the U.S. is at war or in an armed conflict when the claim
accrues or if the U.S. enters a war or armed conflict after the claim
accrues, and if good causes shows how the war or armed conflict
prevented the claimant from diligently filing the claim within the
statute of limitations. But in no case will a claim be considered if
filed more than two years after the war or armed conflict ends.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83690,
Nov. 22, 2016]
Sec. 842.36 Who may file a claim.
(a) Owners of the property or their authorized agents may file
claims for property damage.
(b) Injured persons or their duly authorized agents may file claims
for personal injury.
(c) Duly appointed guardians of minor children or any other persons
legally entitled to do so under applicable local law may file claims for
minors' personal injuries.
(d) Executors or administrators of a decedent's estate or another
person legally entitled to do so under applicable local law, may file
claims based on:
(1) An individual's death.
(2) A cause of action surviving an individual's death.
(e) Insurers with subrogation rights may file claims for losses paid
in full by them. The parties may file claims jointly or individually, to
the extent of each party's interest, for losses partially paid by
insurers with subrogation rights.
(f) Authorized agents signing claims show their title or legal
capacity and present evidence of authority to present the claims.
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83690, Nov. 22, 2016]
Sec. 842.37 Who are proper claimants.
(a) Citizens and inhabitants of the United States. U.S. inhabitants
includes dependents of the U.S. military personnel and federal civilian
employees temporarily outside the U.S. for purposes of U.S. Government
service.
(b) U.S. military personnel and civilian employees. Note: These
personnel are not proper claimants for claims for personal injury or
death that occurred incident to their service.
(c) Foreign military personnel when the damage or injury occurs in
the U.S. Do not pay for claims under the Military Claims Act (MCA) for
personal injury or death of a foreign military personnel that occurred
incident to their service.
(d) States, state agencies, counties, or municipalities, or their
political subdivisions.
(e) Subrogees of proper claimants to the extent they have paid for
the claim in question.
[81 FR 83690, Nov. 22, 2016]
Sec. 842.38 Who are not proper claimants.
(a) Governments of foreign nations, their agencies, political
subdivisions, or municipalities.
(b) Agencies and nonappropriated fund instrumentalities (NAFIs) of
the U.S. Government.
(c) Subrogees of Sec. 842.42(a) and (b).
(d) Inhabitants of foreign countries.
[81 FR 83690, Nov. 22, 2016]
Sec. 842.39 Claims payable.
(a) Claims arising from negligent or wrongful acts or omissions
committed by United States military or civilian personnel while acting
in the scope of their employment, subject to the exceptions listed in
this subpart.
(b) Claims arising from noncombat activities of the United States,
whether or not such injuries of damages arose out of the negligent or
wrongful acts or omissions by United States military or civilian
employees acting within the scope of their employment.
[[Page 66]]
(c) Claims for property damage of U.S. military personnel under
conditions listed in paragraphs (a) and (b) of this section, where the
damage occurred on a military installation and is not payable under the
Military Personnel and Civilian Employees' Claims Act.
[55 FR 2809, Jan. 29, 1990, as amended at 55 FR 32076, Aug. 7, 1990.
Redesignated and amended at 81 FR 83690, Nov. 22, 2016]
Sec. 842.40 Claims not payable.
(a) Claims covered by the Federal Tort Claims Act (FTCA), Foreign
Claims Act (FCA), International Agreements Claims Act (IACA), 10 U.S.C.
2734a and 2734b, Air Force Admiralty Claims Act (AFACA), 10 U.S.C. 9801-
9804, 9806, National Guard Claims Act (NGCA), 32 U.S.C. 715, or covered
under the Military Personnel and Civilian Employees' Claims Act
(MPCECA), 31 U.S.C. 3701, 3721.
(1) MCA claims arising from noncombat activities in the U.S. are not
covered by the FTCA because more elements are needed to state an FTCA
claim than are needed to state a claim under the MCA for noncombat
activities. All FTCA claims are based on elements of traditional tort
liability (i.e., duty, breach, causation, and damages); that is, they
are fault based. Noncombat activity claims under the MCA are based
solely on causation and damages. Because MCA claims for noncombat
activities are not fault based, they are not covered by the FTCA.
(2) Claims for incident-to-service damage to vehicles caused by the
negligence of a member or employee of the armed forces acting in the
scope of employment are paid under the MCA, instead of the Military
Personnel and Civilian Employees' Claims Act.
(b) Arises with respect to the assessment or collection of any
customs duty, or the detention of any goods or merchandise by any U.S.
officer of customs or excise, or any other U.S. law enforcement officer.
Note: This includes loss or damage to property detained by members of
the Security Forces or Office of Special Investigation (OSI).
(c) Is cognizable under U.S. admiralty and maritime law, to include:
(1) The Suits in Admiralty Act, 46 U.S.C. 30901 and following.
(2) The Death on the High Seas Act, 46 U.S.C. 30301 and following.
(3) The Public Vessels Act, 46 U.S.C. 31101 and following.
(4) Exception: Claims arising from noncombat activities may be paid
under the MCA, even if they are also cognizable under paragraphs (c)(1)
through (3) of this section.
(d) Arises out of assault, battery, false imprisonment, false
arrest, malicious prosecution, or abuse of process. Exception: Unless
such actions were committed by an investigative or law enforcement
officer of the U.S. who is empowered by law to conduct searches, seize
evidence, or make arrests for violations of federal law.
(e) Arises out of libel, slander, misrepresentation, or deceit.
(f) Arises out of an interference with contract rights.
(g) Arises out of the combat activities of U.S. military forces.
(h) Is for the personal injury or death of a member of the Armed
Forces of the U.S. incident to the member's service.
(i) Is for the personal injury or death of any person for workplace
injuries covered by the Federal Employees' Compensation Act, 5 U.S.C.
8101, and following.
(j) Is for the personal injury or death of any employee of the US,
including nonappropriated fund employees, for workplace injuries covered
by the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 901,
and following.
(k) Is for a taking of property, e.g., by technical trespass or over
flight of aircraft.
(l) Is for patent or copyright infringement.
(m) Results wholly from the negligent or wrongful act of the
claimant.
(n) Is for the reimbursement of medical, hospital, or burial
expenses furnished at the expense of the US, either directly or through
contractual payments.
(o) Arises from contractual transactions, express or implied
(including rental agreements, sales agreements, leases, and easements),
that:
[[Page 67]]
(1) Are payable or enforceable under oral or written contracts; or
(2) Arise out of an irregular procurement or implied contract.
(p) Is for the personal injury or death of military or civilian
personnel of a foreign government incident to their service.
(q) Is based on an act or omission of an employee of the government,
exercising due care, in the execution of a statute or regulation,
whether or not such statute or regulation is valid. Do not deny claims
solely on this exception without the prior approval of USAF/JACC. Claims
under the noncombat activities provision of this subpart may be paid
even if this paragraph (q) applies. Is based on the exercise or
performance of, or the failure to exercise or perform, a discretionary
function or duty on the part of a federal agency or a Federal Government
employee, whether or not the discretion involved is abused. Do not deny
claims solely on this exception without the prior approval of USAF/JACC.
Exception: Claims under the noncombat activities provision may be paid
even if this paragraph (q) applies.
(r) Is not in the best interests of the US, is contrary to public
policy, or is otherwise contrary to the basic intent of the MCA.
Examples include, but are not limited to, when a claimant's criminal
conduct or failure to comply with a nonpunitive regulation is a
proximate cause of the loss. Prior approval must be obtained from USAF/
JACC before denying claims solely on this exception.
(s) Arises out of an act or omission of any employee of the
government in administering the provisions of the Trading With the Enemy
Act, 50 U.S.C. app. 1-44.
(t) Is for damages caused by the imposition or establishment of a
quarantine by the U.S.
(u) Arises from the fiscal operations of the Department of the
Treasury or from the regulation of the monetary system.
(v) Arises from the activities of the Tennessee Valley Authority.
(w) Arises from the activities of a federal land bank, a federal
intermediate credit bank, or a bank for cooperatives.
(x) Is for the personal injury or death of any government contractor
employee for whom benefits are available under any worker's compensation
law, or under any contract or agreement providing employee benefits
through insurance, local law, or custom when the U.S. pays insurance
either directly or as part of the consideration under the contract. Only
USAF/JACC may act on these claims.
(y) Is for damage, injury or death from or by flood or flood waters
at any place.
(z) Is for damage to property or other losses of a state,
commonwealth, territory, or the District of Columbia caused by Air
National Guard personnel engaged in training or duty under 32 U.S.C.
316, 502, 503, 504, or 505 who are assigned to a unit maintained by that
state, commonwealth, territory, or the District of Columbia.
(aa) Is for damage to property or for any death or personal injury
arising out of activities of any federal agency or employee of the
government in carrying out the provisions of the Disaster Relief Act of
1974 (42 U.S.C. 5121, et seq.), as amended.
(bb) Arises from activities that present a political question.
(cc) Arises from private, as distinguished from government,
transactions.
(dd) Is based solely on compassionate grounds.
(ee) Is for rent, damage, or other expenses or payments involving
the regular acquisition, use, possession, or disposition of real
property or interests therein by and for the U.S.
(ff) Is presented by a national, or a corporation controlled by a
national, of a country at war or engaged in armed conflict with the
U.S., or any country allied with such enemy country unless the
appropriate settlement authority determines that the claimant is, and at
the time of the incident was, friendly to the U.S. A prisoner of war or
an interned enemy alien is not excluded as to a claim for damage, loss,
or destruction of personal property in the custody of the U.S. otherwise
payable. Forward claims considered not payable under this paragraph
(ff), with recommendations for disposition, to USAF/JACC.
[[Page 68]]
(gg) Arises out of the loss, miscarriage, or negligent transmission
of letters or postal matter by the U.S. Postal Service or its agents or
employees.
(hh) Is for damage to or loss of bailed property when the bailor
specifically assumes such risk.
(ii) Is for property damage, personal injury, or death occurring in
a foreign country to an inhabitant of a foreign country.
(jj) Is for interest incurred prior to the payment of a claim.
(kk) Arises out of matters which are in litigation against the U.S.
(ll) Is for attorney fees or costs in connection with pursuing an
administrative or judicial remedy against the U.S. or any of its
agencies.
(mm) Is for bail, interest or inconvenience expenses incurred in
connection with the preparation and presentation of the claim.
(nn) Is for a failure to use a duty of care to keep premises owned
or under the control of the U.S. safe for use for any recreational
purpose, or for a failure by the U.S. to give any warning of hazardous
conditions on such premises to persons entering for a recreational
purpose unless there is a willful or malicious failure to guard or warn
against a dangerous condition, or unless consideration was paid to the
U.S. (including a nonappropriated fund instrumentality) to use the
premises.
[81 FR 83691, Nov. 22, 2016]
Sec. 842.41 Applicable law.
This section provides the existing law governing liability,
measurement of liability and the effects of settlement upon awards.
(a) Federal preemption. Many of the exclusions in this subpart are
based upon the wording of 28 U.S.C. 2680 or other federal statutes or
court decisions interpreting the Federal Tort Claims Act. Federal case
law interpreting the same exclusions under the Federal Tort Claims Act
is applied to the Military Claims Act. Where state law differs with
federal law, federal law prevails.
(b) Extent of liability. Where the claim arises is important in
determining the extent of liability.
(1) Applicable law. When a claim arises in the United States, its
territories or possessions, the same law as if the claim was cognizable
under the FTCA will be applied.
(2) Claims in foreign countries. In claims arising in a foreign
country, where the claim is for personal injury, death, or damage to or
loss of real or personal property caused by an act or omission alleged
to be negligent, wrongful, or otherwise involving fault of military
personnel or civilian officers or employees of the United States acting
within the scope of their employment, liability or the United States is
determined according to federal case law interpreting the FTCA. Where
the FTCA requires application of the law of the place where the act or
omission occurred, settlement authorities will use the rules set forth
in the currently adopted edition of the Restatement of the Law,
published by the American Law Institute, to evaluate the liability of
the Air Force, subject to the following rules:
(i) Foreign rules and regulations governing the operation of motor
vehicles (rules of the road) are applied to the extent those rules are
not specifically superseded or preempted by United States military
traffic regulations.
(ii) Absolute or strict liability will not apply for claims not
arising from noncombat activities.
(iii) Hedonic damages are not payable.
(iv) The collateral source doctrine does not apply.
(v) Joint and several liability does not apply. Payment will be made
only upon the portion of loss, damage, injury or death attributable to
the Armed Forces of the United States.
(vi) Future economic loss will be discounted to present value after
deducting for federal income taxes and, in cases of wrongful death,
personal consumption.
(c) Claims not payable. Do not approve payment for:
(i) Punitive damages.
(ii) Cost of medical or hospital services furnished at the expense
of the United States.
(iii) Cost of burial expenses paid by the United States.
[[Page 69]]
(d) Settlement by insurer or joint tortfeasor. When settlement is
made by an insurer or joint tortfeasor and an additional award is
warranted, an award may be made if both of the following are present:
(1) The United States is not protected by the release executed by
the claimant.
(2) The total amount received from such source is first deducted.
[81 FR 83692, Nov. 22, 2016]
Sec. 842.42 Appeal of final denials.
(a) A claimant may appeal the final denial of the claim. The
claimant sends the request, in writing, to the settlement authority that
issued the denial letter within 60 days of the date the denial letter
was mailed. The settlement authority may waive the 60 day time limit for
good cause.
(b) Upon receipt of the appeal, the original settlement authority
reviews the appeal.
(c) Where the settlement authority does not reach a final agreement
on an appealed claim, he or she sends the entire claim file to the next
higher settlement authority, who is the appellate authority for that
claim. Any higher settlement authority may act upon an appeal.
(d) The decision of the appellate authority is the final
administrative action on the claim.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83690,
83692, Nov. 22, 2016]
Sec. 842.43 Right of subrogation, indemnity, and contribution.
The Air Force becomes subrogated to the rights of the claimant upon
settling a claim. The Air Force has the rights of contribution and
indemnity permitted by the law of the situs, or under contract. Do not
seek contribution or indemnity from U.S. military personnel or civilian
employees whose conduct gave rise to government liability.
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83690, Nov. 22, 2016]
Sec. 842.44 Attorney fees.
In the settlement of any claim pursuant to 10 U.S.C. 2733 and this
subpart, attorney fees will not exceed 20 percent of any award provided
that when a claim involves payment of an award over $1,000,000, attorney
fees on that part of the award exceeding $1,000,000 may be determined by
the Secretary of the Air Force. For the purposes of this paragraph, an
award is deemed to be the cost to the United States of any trust or
structured settlement, and not its future value.
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83690, Nov. 22, 2016]
Subpart E_Foreign Claims (10 U.S.C. 2734)
Source: 55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83692, Nov.
22, 2016, unless otherwise noted.
Sec. 842.45 Scope of this subpart.
This subpart tells how to settle and pay claims against the United
States presented by inhabitants of foreign countries for property
damage, personal injury, or death caused by military and civilian
members of the U.S. Armed Forces in foreign countries.
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83692, Nov. 22, 2016]
Sec. 842.46 Definitions.
(a) Foreign country. A national state other than the United States,
including any place under jurisdiction of the United States in a foreign
country.
(b) Inhabitant of a foreign country. A person, corporation, or other
business association whose usual place of abode is in a foreign country.
The term ``inhabitant'' has a broader meaning than such terms as
``citizen'' or ``national'', but does not include persons who are merely
temporarily present in a foreign country. It does not require foreign
citizenship or domicile.
(c) Appointing authority. An Air Force official authorized to
appoint members to foreign claims commissions (FCC).
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83692, Nov. 22, 2016]
Sec. 842.47 Delegations of authority.
(a) Settlement authority. (1) The Secretary of the Air Force has the
authority to:
(i) Settle claims for payment of $100,000 or less.
[[Page 70]]
(ii) Settle claims for more than $100,000, pay the first $100,000,
and report the excess to the Department of the Treasury for payment.
(iii) Deny claims in any amount.
(2) The Judge Advocate General, Deputy Judge Advocate General,
Director of Civil Law, and the Chief, Deputy Chief and Branch Chiefs,
Claims and Tort Litigation Staff are FCCs and have delegated authority
to:
(i) Settle claims for payment of $100,000 or less.
(ii) Deny claims in any amount.
(3) The SJAs of the Air Force component commander of the U.S.
geographic combatant commands are FCC for claims arising in their
respective combatant command Areas of Responsibility (AORs) and may deny
claims of $50,000 or less and will pay claims filed in any amount when
payment is for $50,000 or less.
(b) Redelegating settlement authority. A settlement authority
appointed as a FCC in paragraph (a) of this section may appoint one or
more subordinate judge advocates or civilian attorneys to act as FCC,
and redelegate all or part of that settlement authority to such persons.
(c) Settlement negotiations. A settlement authority may settle a
claim in any sum within its settlement authority, regardless of the
amount claimed. Send uncompromised claims in excess of the delegated
authority through claims channels to the level with settlement
authority. Unsuccessful negotiations at one level do not bind higher
authority.
(d) Special exceptions. Do not settle claims for medical malpractice
without HQ USAF/JACC approval.
[81 FR 83692, Nov. 22, 2016]
Sec. 842.48 Filing a claim.
(a) How and when filed. A claim is filed when the Air Force receives
from a claimant or authorized agent a properly completed SF 95 or other
signed and written demand for money damages in a sum certain. A claim
may be presented orally only if oral claims are the custom in the
country where the incident occurred and the claimant is functionally
illiterate. In any case where an oral claim is made, claims personnel
must promptly reduce the claim to writing with all particulars carefully
noted. A claim belonging to another agency is promptly transferred to
the appropriate agency.
(b) Amending a claim. A claimant may amend a claim at any time prior
to final action. An amendment must be in writing and signed by the
claimant or authorized agent.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83692,
83693, Nov. 22, 2016]
Sec. 842.49 Advance payments.
Subpart P of this part outlines procedures for advance payments.
[81 FR 83693, Nov. 22, 2016]
Sec. 842.50 Statute of limitations.
(a) A claim must be presented to the Air Force within 2 years after
it accrues. It accrues when the claimant discovers or reasonably should
have discovered the existence of the act that resulted in the claimed
loss or injury.
(b) In computing the statutory time period, the day of the incident
is excluded and the day the claim was filed is included.
(c) War or armed conflict does not toll the statute of limitations.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83692,
83693, Nov. 22, 2016]
Sec. 842.51 Who may file a claim.
(a) Owners of the property or their authorized agents for property
damage.
(b) Injured persons or other authorized agents for personal injury.
(c) Executors or administrators of a decedent's estate, or any other
person legally entitled to do so under applicable local law, for an
individual's death.
(d) Authorized agents (including the claimant's attorney) must show
their title or legal capacity and present evidence of authority to
present the claim.
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83692, Nov. 22, 2016]
Sec. 842.52 Who are proper claimants.
Claimants include inhabitants of a foreign country who are:
(a) Foreign nationals. In a wrongful death case, if the decedent is
an inhabitant of a foreign country, even though
[[Page 71]]
his or her survivors are U.S. inhabitants, the FCA will apply.
(b) U.S. nationals residing abroad, unless the claim arises from a
benefit, privilege or service provided to them by the U.S. Government,
or they reside in the foreign country primarily because they are
employed directly by the United States, or sponsored by or accompanying
such a person, or employed by a U.S. civilian contractor in furtherance
of a contract with the U.S. Government, or sponsored by or accompanying
such a person.
(c) U.S. corporations with a place of business in the country in
which the claim arose.
(d) Foreign governments and their political subdivisions, including
a municipal and prefectural government.
(e) Foreign companies and business entities.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83692,
83693, Nov. 22, 2016]
Sec. 842.53 Who are not proper claimants.
Persons who are not proper claimants include:
(a) Insurers and other subrogees.
(b) Persons determined to be U.S. inhabitants. U.S. inhabitants
include dependents of U.S. military personnel and U.S. Government
civilian employees.
(c) Foreign military personnel suffering personal injury, or death
arising incident to service or pursuant to combined and/or joint
military operations. Such operations include, but are not limited to,
military exercises and United Nations, NATO, and other regional
peacekeeping and humanitarian missions.
(d) Civilian employees of the United States, including local
inhabitants, injured in the scope of their employment.
(e) National governments and their political subdivisions engaging
in war or armed conflict with the United States or its allies. This
includes factions that have not necessarily been recognized by the
international community as a legitimate nation state.
(f) A national or nationally controlled corporation of a country
engaging in war or armed conflict with the United States or its allies,
unless the FCC or local military commander determines the claimant is
friendly with the United States.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83692,
83693, Nov. 22, 2016]
Sec. 842.54 Payment criteria.
The following criteria is considered before determining liability.
(a) The incident causing the damage or injury must arise in a
foreign country and be caused by noncombatant activities of the U.S.
Armed Forces or by the negligent or wrongful acts of civilian employees
or military members of the Armed Forces.
(1) It is a prerequisite to U.S. responsibility if the employee
causing the damage or injury is a local inhabitant, a prisoner of war,
or an interned enemy alien. These persons are ``employees'' within the
meaning of the Foreign Claims Act (FCA) only when in the service of the
United States. Ordinarily, a slight deviation as to time or place does
not constitute a departure from the scope of employment. The purpose of
the activity and whether it furthers the general interest of the United
States is considered. If the claim arose from the operation or use of a
U.S. Armed Forces vehicle or other equipment by such a person, pay it
provided local law imposes liability on the owner of the vehicle or
other equipment in the circumstances involved.
(2) It is immaterial when the claim arises from the acts or
omissions of any U.S. Armed Forces member or employee not listed in
Sec. 842.64(c)(1). The Act imposes responsibility on the United States
when it places a U.S. citizen or non-US citizen employee in a position
to cause the injury or damage. If the cause is a criminal act clearly
outside the scope of employment, ordinarily pay the claim and consider
disciplinary action against the offender.
(b) Scope of employment is considered in the following situations.
(1) It is a prerequisite to U.S. responsibility if the employee
causing the damage or injury is a local inhabitant, a prisoner of war,
or an interned enemy alien. These persons are ``employees'' within the
meaning of the Foreign Claims Act (FCA) only when in the service of the
United States. Ordinarily, a slight deviation as to time or place does
not constitute a departure
[[Page 72]]
from the scope of employment. The purpose of the activity and whether it
furthers the general interest of the United States is considered. If the
claim arose from the operation or use of a U.S. Armed Forces vehicle or
other equipment by such a person, pay it provided local law imposes
liability on the owner of the vehicle or other equipment in the
circumstances involved.
(2) It is immaterial when the claim arises from the acts or
omissions of any U.S. Armed Forces member or employee not listed in
Sec. 842.64(c)(1) of this part. The Act imposes responsibility on the
United States when it places a U.S. citizen or non-US citizen employee
in a position to cause the injury or damage. If the cause is a criminal
act clearly outside the scope of employment, ordinarily pay the claim
and consider disciplinary action against the offender.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83692,
83693, Nov. 22, 2016]
Sec. 842.55 Claims not payable.
A claim is not payable when it:
(a) Is waived under an applicable international agreement, or
pursuant to an applicable international agreement, a receiving state
should adjudicate and pay the claim. However, if a foreign government
subject to such an international agreement disputes its legal
responsibilities under the agreement, and the claimant has no other
means of compensation, USAF/JACC may authorize payment.
(b) Is purely contractual in nature.
(c) Is for attorney fees, punitive damages, a judgment or interest
on a judgment, bail, or court costs. FCC should consider providing early
notice to claimants that attorney fees are not payable as an item of
damage under the FCA.
(d) Accrues from a private contractual relationship between U.S.
personnel and third parties about property leases, public utilities,
hiring of domestic servants, and debts of any description. This claim is
sent for action to the commander of the person concerned (see 32 CFR
part 818).
(e) Is based solely on compassionate grounds.
Note: A Solatium payment is paid from O&M funds as an investigative
expense.
(f) Is a paternity claim.
(g) Is for patent or copyright infringement.
(h) Results wholly from the negligent or wrongful act of the
claimant or agent.
(i) Is for rent, damage, or other payments involving regular
acquisition, possession, and disposition of real property by or for the
Air Force.
(j) Is filed by a Communist country or its inhabitants, unless
authorized by AFLOA/JACC.
(k) Is for real property taken by a continuing trespass.
(l) Is for personal injury or death of a person covered by:
(1) The Federal Employees' Compensation Act (5 U.S.C. 8101, et
seq.).
(2) The Longshore and Harbor Workers' Compensation Act (33 U.S.C.
901, et seq.).
(3) A U.S. contract or agreement providing employee benefits through
insurance, local law, or custom, where the United States pays for them
either directly or as part of the consideration under the contract. (See
42 U.S.C. 1651 and 42 U.S.C. 1701.) The Judge Advocate General or Chief,
Claims and Tort Litigation Staff, AFLOA/JACC, may authorize an award
where local benefits are not adequate. Local benefits are deducted from
any award.
(m) Results from an action by an enemy, or directly or indirectly
from an act of the U.S. Armed Forces in combat, except that a claim may
be allowed if it arises from an accident or malfunction incident to the
operation of an aircraft of the U.S. Armed Forces, including its
airborne ordnance, indirectly related to combat, and occurring while
preparing for or going to, or returning from a combat mission.
(n) Is based on negligence of a concessionaire or other independent
contractor.
(o) Arises out of personal activities of family members, guests,
servants, or activities of the pets of members and employees of the U.S.
Armed Forces.
(p) Is the subject of litigation against the United States or its
employees. This restriction does not apply to joint criminal/civil
proceedings in a foreign
[[Page 73]]
court. Claims settlement may be authorized by AFLOA/JACC in appropriate
cases on request.
(q) Is covered under U.S. admiralty or maritime laws, unless
authorized by The Judge Advocate General or Chief, Claims and Tort
Litigation Staff.
(s) Is not in the best interest of the United States, is contrary to
public policy, or otherwise contrary to the basic intent of the FCA.
Claims considered not payable on this basis will be forwarded to USAF/
JACC for final decision.
(t) Is presented by a national, or a corporation controlled by a
national, of a country at war or engaged in armed conflict with the
United States, or any country allied with such enemy country unless the
settlement authority determines the claimant is, and at the time of the
incident was, friendly to the United States. Exception: A prisoner of
war or interned enemy alien is not excluded from filing a claim for
damage, loss, or destruction of personal property within the U.S. Armed
Forces' custody if the claim is otherwise payable.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83692,
83693, Nov. 22, 2016]
Sec. 842.56 Applicable law.
This section provides guidance to determine the applicable law for
assessment of liability.
(a) In adjudicating FCA claims, settlement authorities will follow
the law, customs, and standards of the country where the claim arose,
except:
(1) Causation is determined based upon general principles of U.S.
tort law found in federal case law and standard legal publications.
(2) Joint and several liability does not apply. Payment is based
solely on the portion of loss, damage, injury or death attributable to
the U.S. Armed Forces.
(3) If lost income or lost profits is recoverable under the law
where the claim arose, they shall be limited to net lost income or net
lost profits, taking into account appropriate deductions for taxes,
regular business expenditures, and in the case of wrongful death,
personal consumption during the loss period.
(b) Settlement authorities will not deduct compensation from
collateral sources except for:
(1) Direct payments by a member or civilian employee of the U.S.
Armed Forces for damages (not solatia).
(2) Any payments recovered or recoverable from an insurance policy
when premiums were paid, directly or indirectly, by the United States,
or a member or civilian employee of the U.S. Armed Forces; or when the
member or employee has the benefit of the insurance (such as when a U.S.
member or employee borrows a vehicle of a local national, and the
vehicle carries insurance for the benefit of any driver with permission
to drive the vehicle).
[81 FR 83694, Nov. 22, 2016]
Sec. 842.57 Reconsideration of final denials.
This section provides the procedures used to reconsider a final
denial.
(a) An FCC has the inherent authority to reconsider a final
decision. The mere fact that a request for reconsideration is received
does not obligate the settlement authority to reopen the claim.
(b) The FCC does not mention a reconsideration right in the original
denial letter.
(c) A settlement authority must reconsider the final action when
there is:
(1) New and material evidence concerning the claim; or
(2) Obvious errors in the original decision.
(d) The FCC must document in the claim file the reason for
reconsideration.
(e) A FCC above the original settlement authority may direct a claim
be forwarded to a higher FCC for reconsideration.
[81 FR 83694, Nov. 22, 2016]
Sec. 842.58 Right of subrogation, indemnity, and contribution.
The Air Force has all the rights of subrogation, indemnity and
contribution, as local law permits. However, settlement authorities will
not seek contribution or indemnity from U.S. military members or
civilian employees whose conduct gave rise to U.S. Government liability,
or whenever it
[[Page 74]]
would be harmful to international relations.
[81 FR 83694, Nov. 22, 2016]
Subpart F_International Agreement Claims (10 U.S.C. 2734a and 2734b)
Source: 55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83694, Nov.
22, 2016, unless otherwise noted.
Sec. 842.59 Scope of this subpart.
This subpart governs Air Force actions in investigating, processing,
and settling claims under the International Agreement Claims Act.
[81 FR 83694, Nov. 22, 2016]
Sec. 842.60 Definitions.
The following are general definitions. See the relevant
international agreement for the specific meaning of a term to use with a
specific claim.
(a) Civilian component. Civilian personnel accompanying and employed
by an international agreement contracting force. Local employees,
contractor employees, or members of the American Red Cross are not a
part of the civilian component unless specifically included in the
agreement.
(b) Contracting party. A nation signing the governing agreement.
(c) Force. Personnel belonging to the land, sea, or air armed
services of one contracting party when in the territory of another
contracting party in connection with their official duties.
(d) Legally responsible. A term of art providing for settlement of
claims under cost sharing international agreements in accordance with
the law of the receiving state. Often, employees who are local
inhabitants, not part of the civilian component of the force, could
cause the sending state to be legally responsible under a respondeat
superior theory.
(e) Receiving state. The country where the force or civilian
component of another contracting party is temporarily located. It is
often thought of as the ``host nation.''
(f) Sending state. The country sending the force or civilian
component to the receiving State. In cases where U.S. personnel are
stationed in a foreign country, the U.S. is the sending state.
(g) Third parties. A term of art used in International Agreements.
Parties other than members of the force and civilian component of the
sending or receiving States. Dependents, tourists, and other
noninhabitants of a foreign country are third parties (and therefore can
generally make a claim under a SOFA) unless the international agreement,
or an understanding between the countries involved, specifically
excludes them.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83694,
Nov. 22, 2016]
Sec. 842.61 Delegations of authority.
(a) Overseas settlement authority. Staff Judge Advocates of the Air
Force component commands of the U.S. geographic combatant commands will,
within their combatant command AORs, fulfill U.S. obligations concerning
claims abroad subject to 10 U.S.C. 2734a for which the Air Force has
settlement authority. Consistent with 10 U.S.C. 2734a and the
international agreement, they may reimburse or pay the pro rata share of
a claim as agreed, or if inconsistent with the IACA or the international
agreement, they may object to a bill presented,
(b) Settlement authority. The Secretary of the Air Force, The Judge
Advocate General, the Deputy Judge Advocate General, The Director of
Civil Law and Chief of the Claims and Tort Litigation Division may also
exercise settlement authority under 10 U.S.C. 2734a.
(c) Redelegation of authority. A settlement authority may redelegate
his or her authority to a subordinate judge advocate or civilian
attorney in writing.
(d) Authority to reduce, withdraw, and restore settlement authority.
Any superior settlement authority may reduce, withdraw, or restore
delegated authority.
[81 FR 83694, Nov. 22, 2016]
Sec. 842.62 Filing a claim.
(a) Claims arising in a foreign country. (1) If a third party
claimant tries to file an international agreement claim
[[Page 75]]
with Air Force, direct that person to the appropriate receiving State
office.
(2) If the Air Force receives a claim, send it to the U.S. sending
State office for delivery to the receiving State.
(b) Claims arising in the United States. The claimant files tort
claims arising from the act or omission of military or civilian
personnel of another contracting party at any U.S. military
installation. The Staff Judge Advocate for the installation where such
military or civilian personnel is assigned or attached will promptly
notify the Foreign Claims Branch of USAF/JACC as well as the Commander,
U.S. Army Claims Service. If the claimant files said claim at an
installation other than the location where said military or civilian
personnel is assigned, the Staff Judge Advocate for that installation
will promptly forward the claim to the appropriate installation Staff
Judge Advocate.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83694,
83695, Nov. 22, 2016]
Subpart G_Use of Government Property Claims (10 U.S.C. 2737)
Source: 55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83695, Nov.
22, 2016, unless otherwise noted.
Sec. 842.63 Scope of this subpart.
This subpart explains how to settle and pay claims against the
United States, for property damage, personal injury, or death incident
to the use of a government vehicle or any other government property on a
government installation which are not payable under any other statute.
[81 FR 83695, Nov. 22, 2016]
Sec. 842.64 Definitions.
(a) Government installation. A United States Government facility
having fixed boundaries and owned or controlled by the government.
(b) Vehicle. Every mechanical device used as a means of
transportation on land.
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83695, Nov. 22, 2016]
Sec. 842.65 Delegations of authority.
(a) Settlement authority. The following individuals have delegated
authority to settle claims for $1,000 or less and deny them in any
amount.
(1) The Judge Advocate General.
(2) The Deputy Judge Advocate General.
(3) Director of Civil Law.
(4) Chief, Deputy Chief and Branch Chiefs, Claims and Tort
Litigation staff.
(5) SJA of the Air Force component commands of the U.S. geographic
combatant commands.
(6) SJAs of single base GCMs and GCMs in PACAF and USAFE.
(7) The SJA of each Air Force base, station and fixed installation.
(8) Any other judge advocate designated by The Judge Advocate
General.
(b) Redelegation of authority. A settlement authority may redelegate
it to a subordinate judge advocate or civilian attorney in writing.
(c) Authority to reduce, withdraw, and restore settlement authority.
Any superior settlement authority may reduce, withdraw, or restore
delegated authority.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83695,
Nov. 22, 2016]
Sec. 842.66 Filing a claim.
(a) How and when filed. A claim has been filed when a federal agency
receives from a claimant or the claimant's duly authorized agent written
notification of an incident of property damage, personal injury or death
accompanied by a demand for money damages in a sum certain. A claim
incorrectly presented to the Air Force will be promptly transferred to
the appropriate Federal agency.
(b) Amending a claim. A claimant may amend a claim at any time prior
to final Air Force action. Amendments will be submitted in writing and
signed by the claimant or the claimant's duly authorized agent.
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83695, Nov. 22, 2016]
Sec. 842.67 Statute of limitations.
(a) A claim must be presented in writing within 2 years after it
accrues.
[[Page 76]]
It accrues at the time the claimant discovers, or in the exercise of
reasonable care should have discovered, the existence of the act causing
property damage, personal injury or death for which the claim is filed.
(b) In computing time to determine whether the period of limitation
has expired, exclude the incident date and include the date the claim
was filed.
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83695, Nov. 22, 2016]
Sec. 842.68 Claims payable.
When all of the following are present, payment of a claim in the
amount of $1,000 or less is authorized if it:
(a) Is for property damage, personal injury, or death. Payment for a
personal injury or death claim is limited to costs of reasonable
medical, hospital, and burial expenses actually incurred and not
otherwise furnished or paid by the United States.
(b) Was caused by a military member or civilian employee of the Air
Force, whether acting within or outside the scope of employment.
(c) Arose from the use of a government vehicle at any place or from
the use of other government property on a government installation.
(d) Is not payable under any other provision of law except Article
139, UCMJ.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83695,
Nov. 22, 2016]
Sec. 842.69 Claims not payable.
A claim is not payable if it is:
(a) Payable under any other provision of the law.
(b) Caused wholly or partly by a negligent or wrongful act of the
claimant, the claimant's agent, or employee.
(c) A subrogated claim.
(d) Recoverable from other sources such as an insurance policy, or
recovered from action under Article 139, UCMJ.
(e) For pain and suffering or other general damages.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83695,
Nov. 22, 2016]
Sec. 842.70 Reconsideration of final denial.
(a) The statute does not provide for appeals. The original
settlement authority may, however, reconsider any decision. There is no
set format for a reconsideration but it should be submitted in writing
within 60 days of the original decision.
(b) The settlement authority may either grant all or any portion of
the requested relief without referral to any other office, or forward
the entire file with the reasons for the action and recommendations to
the next higher claims settlement authority for independent review and
final action.
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83695, Nov. 22, 2016]
Sec. 842.71 Settlement agreement.
Do not pay a claim unless the claimant accepts the amount offered in
full satisfaction of the claim and signs a settlement agreement to that
effect, in which the claimant agrees to release any and all claims
against the United States, its employees and agents arising from the
incident in question. Use the settlement agreement approved for use by
the Department of Justice for the settlement of FTCA claims, tailored to
this claim.
[81 FR 83695, Nov. 22, 2016]
Subpart H_Admiralty Claims (10 U.S.C. 9801 9804, 9806; 46 U.S.C. 740)
Source: 55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83695, Nov.
22, 2016, unless otherwise noted.
Sec. 842.72 Scope of this subpart.
It sets forth the procedure for administrative settlement of
admiralty and maritime claims in favor of and against the United States.
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83695, Nov. 22, 2016]
Sec. 842.73 Definitions.
(a) Admiralty contracts. A contract covering maritime services or a
maritime transaction such as vessel procurement and space for commerical
ocean transportation of DOD cargo,
[[Page 77]]
mail, and personnel is an admiralty contract.
(b) General average. General average is the admiralty rule that when
someone's property is thrown overbaord to save a ship, the ship owner
and all owners of the cargo must share the loss.
(c) Maritime torts. A maritime tort is one committed in navigable
waters or on land or in the air where a substantial element of the
damage, personal injury, or death occurred in navigable waters. The
activity causing the tortious act must bear some significant
relationship to traditional maritime activity.
(d) Vessel. Every description of watercraft used or usable as a
means of transportation on water is a vessel. (1 U.S.C. 3)
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83695, Nov. 22, 2016]
Sec. 842.74 Delegations of authority.
(a) The following officials have the authority to settle a claim
against the Air Force in the amounts provided:
(1) The Secretary of the Air Force has the authority to:
(i) Settle or deny a claim in any amount. Settlements for payment of
more than $500,000 are certified to Congress for payment.
(ii) [Reserved]
(2) The following individuals have delegated authority to settle
claims for $100,000 or less:
(i) The Judge Advocate General.
(ii) The Deputy Judge Advocate General.
(iii) The Director of Civil Law.
(iv) The Chief and Deputy Chief, Claims and Tort Litigation staff.
(b) Delegation of settlement authority on claims in favor of the
United States.
(1) The Secretary of the Air Force has the authority to settle
claims for damage to property under the jurisdiction of the Air Force in
an amount not to exceed $500,000, and to settle claims for salvage
services performed by the Air Force in any amount.
(2) AFLOA/JACC refers all claims for damage to property under the
jurisdiction of the Air Force for more than $500,000 to the Department
of Justice.
(3) The following individuals have delegated authority to settle
claims for $100,000 or less and deny them in any amount:
(i) The Judge Advocate General.
(ii) The Deputy Judge Advocate General.
(iii) The Director of Civil Law.
(iv) The Chief and Deputy Chief, Claims and Tort Litigation
Division.
[55 FR 2809, Jan. 29, 1990, as amended at 55 FR 32077, Aug. 7, 1990; 56
FR 1574, Jan. 16, 1991. Redesignated and amended at 81 FR 83695, Nov.
22, 2016]
Sec. 842.75 Reconsidering claims against the United States.
This section provides the policy and procedures to reconsider any
maritime claim made against the United States.
(a) The settlement authority may reconsider any claim previously
disapproved in whole or in part when either:
(1) The claimant submits new evidence in support of the claim.
(2) There were errors or irregularities in the submission or
settlement of the claim.
(b) There is no right of appeal to higher authority under this
subpart.
(c) There is no time limit for submitting a request for
reconsideration, but it is within the discretion of the settlement
authority to decline to reconsider a claim based on the amount of time
passed since the claim was originally denied.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83695,
Nov. 22, 2016]
Subpart I_Claims Under the Federal Tort Claims Act (28 U.S.C. 1346(b),
2402, 2671, 2672, 2674 2680)
Source: 81 FR 83695, Nov. 22, 2016, unless otherwise noted.
Sec. 842.76 Scope of this subpart.
This subpart, promulgated under the authority of 28 CFR 14.11,
governs claims against the United States for property damage, personal
injury, or death, from the negligent or wrongful acts or omission of Air
Force military or civilian personnel while acting within the scope of
their employment.
[[Page 78]]
Sec. 842.77 Delegations of authority.
(a) Settlement authority. The following individuals are delegated
the full authority of the Secretary of the Air Force to settle and deny
claims:
(1) The Judge Advocate General.
(2) The Deputy Judge Advocate General.
(3) The Director of Civil Law.
(4) The Division Chief of Claims and Tort Litigation.
(5) The Division Chief of Environmental Law and Litigation.
(b) Redelegation of authority. A settlement authority may be
redelegated, in writing, to a subordinate judge advocate or civilian
attorney. The Chief, AFLOA/JACC may redelegate up to $25,000, in
writing, to paralegals assigned to AFLOA/JACC and, upon request, may
authorize installation Staff Judge Advocates to redelegate their
settlement authority to paralegals under their supervision.
(c) Authority to reduce, withdraw, and restore settlement authority.
Any superior settlement authority may reduce, withdraw, or restore
delegated authority.
(d) Settlement negotiations. A settlement authority may settle a
claim filed in any amount for a sum within the delegated authority.
Unsettled claims in excess of the delegated authority will be sent to
the next highest level with settlement authority. Unsuccessful
negotiations at one level do not bind higher authority.
Sec. 842.78 Settlement agreements.
The claimant must sign a settlement agreement and general release
before any payment is made.
Sec. 842.79 Administrative claim; when presented.
When the Air Force is the proper agency to receive a claim pursuant
to 28 CFR 14.2(b), for purposes of the provisions of 28 U.S.C. 2401(b),
2672 and 2675, a claim shall be deemed to have been presented when it is
received by:
(a) The office of the Staff Judge Advocate of the Air Force
installation nearest the location of the incident; or
(b) The Claims and Tort Litigation Division, 1500 West Perimeter
Road, Suite 1700, Joint Base Andrews, MD 20762.
Subpart J_Property Damage Tort Claims in Favor of the United States (31
U.S.C. 3701, 3711 3719)
Source: 55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83696, Nov.
22, 2016, unless otherwise noted.
Sec. 842.80 Scope of this subpart.
This subpart describes how to assert, administer, and collect claims
for damage to or loss or destruction of government property and lost
wages of Air Force servicemembers through negligent or wrongful acts. It
does not cover admiralty, hospital recovery, or nonappropriated fund
claims.
[81 FR 83696, Nov. 22, 2016]
Sec. 842.81 Delegations of authority.
(a) Settlement authority. (1) The following individuals have
delegated authority to settle, compromise, suspend, or terminate action
on claims asserted for $100,000 or less and to accept full payment on
any claim:
(i) The Judge Advocate General.
(ii) The Deputy Judge Advocate General.
(iii) The Director of Civil Law.
(iv) Chief, Deputy Chief, and Branch Chiefs, Claims and Tort
Litigation Staff.
(2) Installation staff judge advocates have authority to assert
claims in any amount, accept full payment on any claim and to
compromise, suspend or terminate action on claims asserted for $25,000
or less.
(b) Redelegation of authority. A settlement authority may redelegate
it to a subordinate judge advocate or civilian attorney, in writing.
(c) Authority to reduce, withdraw, or restore settlement authority.
Any superior settlement authority may reduce, withdraw, or restore
delegated authority.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83696,
Nov. 22, 2016]
Sec. 842.82 Assertable claims.
A claim may be asserted in writing for loss of or damage to
government property, against a tort-feasor when:
(a) Damage results from negligence and the claim is for:
[[Page 79]]
(1) More than $100.
(2) Less than $100 but collection is practicable and economical.
(b) The claim is based on a contract and the contracting officer
does not intend to assert a claim under the contract. The contracting
officer's intention not to assert a claim should be recorded in a
memorandum for the record and placed in the claim file.
(c) The claim is for property damage arising from the same incident
as a hospital recovery claim.
(d) The Tort-feasor or his insurer presents a claim against the
government arising from the same incident. (Both claims should be
processed together.)
(e) The claim is assertable as a counterclaim under an international
agreement. (The claim should be processed under subpart G of this part).
(f) The claim is based on product liability. AFLOA/JACC approval
must be obtained before asserting the claim.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83696,
Nov. 22, 2016]
Sec. 842.83 Non-assertable claims.
A claim is not assertable under this subpart when it is for:
(a) Reimbursement for military or civilian employees for their
negligence claims paid by the United States.
(b) Loss or damage to government property:
(1) Caused by a nonappropriated fund employee acting in the scope of
employment.
(2) Caused by a person who has accountability and responsibility for
the damaged property under the Report of Survey system.
(c) Loss or damage to nonappropriated fund property assertable under
other provisions.
(d) Loss or damage caused by an employee of an instrumentality of
the government in the absence of statutory authority to reimburse.
(e) Monies recovered against a foreign government or any of its
political subdivisions. (AFLOA/JACC may authorize this claim as an
exception to the rule).
(f) Loss or damage caused by an employee of another federal agency
while the employee was acting in the scope of his employment.
[55 FR 2809, Jan. 29, 1990, as amended at 55 FR 32077, Aug. 7, 1990.
Redesignated and amended at 81 FR 83696, Nov. 22, 2016]
Sec. 842.84 Asserting the claim.
The base SJA asserts the claim against the tort-feasor by mailing,
certified mail, return receipt requested, the original and one copy of a
``Notice of Claim'' that includes the following:
(a) Reference to the statutory right to collect.
(b) A demand for payment or restoration.
(c) A description of damage.
(d) The date and place of incident.
(e) The name, phone number, and office address of claims personnel
to contact.
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83696, Nov. 22, 2016]
Sec. 842.85 Referring a claim to the U.S. Attorney or the Department
of Justice.
If collection efforts are unsuccessful, AFLOA/JACC may refer a claim
to the appropriate U.S. Attorney's Office or the Department of Justice
for initiation of a lawsuit.
[81 FR 83696, Nov. 22, 2016]
Sec. 842.86 Statute of limitations.
The government must file suit within 3 years after the cause of
action accrues. It accrues when a responsible U.S. official knew or
reasonably should have known the material facts that resulted in the
claimed loss.
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83696, Nov. 22, 2016]
Sec. 842.87 Compromise, termination, and suspension of collection.
This section establishes the guidelines for compromise, termination,
or suspension of a claim.
(a) Compromise of a claim is allowable when:
(1) The tort-feasor is unable to pay the full amount within a
reasonable time. (A sworn statement showing the debtor's assets and
liabilities, income, expenses, and insurance coverage should be obtained
and included in the claim file).
[[Page 80]]
(2) The Government is unable to collect a claim in full within a
reasonable time even though the enforced collection proceedings are used
for collection.
(3) The cost to collect does not justify enforced collection of the
full amount.
(4) The government may have difficulty proving its case in court for
the full amount claimed.
(b) Compromise is not allowable when there may be fraud,
misrepresentation, or violation of antitrust laws. The Department of
Justice must authorize compromise of such claims.
(c) Termination of collection is allowable when:
(1) The government is unable to collect the debt after exhausting
all collection methods.
(2) The government is unable to locate the tort-feasor.
(3) The cost to collect will exceed recovery.
(4) The claim is legally without merit.
(5) The evidence does not substantiate the claim.
(d) Suspension of collection is allowable when:
(1) The government is unable to locate tort-feasor.
(2) The tort-feasor is presently unable to pay but:
(i) The statute of limitations is tolled or is running anew.
(ii) Future collection may be possible.
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83696, Nov. 22, 2016]
Subpart K_Claims Under the National Guard Claims Act (32 U.S.C. 715)
Source: 55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83696, Nov.
22, 2016, unless otherwise noted.
Sec. 842.88 Scope of this subpart.
This subpart establishes policies and procedures for all
administrative claims under the National Guard Claims Act for which the
Air Force has assigned responsibility. Unless otherwise outlined in this
subpart, follow procedures as outlined in subpart E of this part for
claims arising out of noncombat activities.
[81 FR 83696, Nov. 22, 2016]
Sec. 842.89 Definitions.
(a) Air National Guard (ANG). The federally recognized Air National
Guard of each state, the District of Columbia, the Commonwealth of
Puerto Rico, the Virgin Islands, and Guam.
(b) ANG member. An ANG member is one who is performing duty under 32
U.S.C., section 316, 502, 503, 504, or 505 for which the member is
entitled to pay from the United States or for which the member has
waived pay from the United States.
(c) ANG duty status--(1) Active federal service. ANG members may
serve on active Federal duty under 10 U.S.C. to augment the active Air
Force under certain circumstances or for certain types of duty or
training (e.g., overseas training exercises and ANG alert duty). Duty
under 10 U.S.C. does not fall under this subpart.
(2) Federally funded duty. ANG members perform specified federally
funded duty or training under 32 U.S.C. such as weekend drills, annual
training, field exercises, range firing, military schooling, full time
unit support, or recruiting duties. Duty under 32 U.S.C. falls under
this subpart for noncombat activities.
(3) State duty. State duty is duty not authorized by federal law but
required by the governor of the state and paid for from state funds.
Such duty includes civil emergencies (natural or other disasters), civil
disturbances (riots and strikes), and transportation requirements for
official state functions, public health, or safety. State duty does not
fall under this subpart.
(d) ANG technicians. An ANG technician is a Federal employee
employed under 32 U.S.C. 709. Tort claims arising out of his or her
activity are settled under the Federal Tort Claims Act (FTCA).
[81 FR 83696, Nov. 22, 2016]
Sec. 842.90 Delegations of authority.
(a) Settlement authority. (1) The Secretary of the Air Force has
authority to:
(i) Settle a claim for $100,000 or less.
[[Page 81]]
(ii) Settle a claim for more than $100,000, paying the first
$100,000 and reporting the excess to the General Accounting Office for
payment.
(iii) Deny a claim in any amount.
(2) The Judge Advocate General has delegated authority to settle a
claim for $100,000 or less, and deny a claim in any amount.
(3) The following individuals have delegated authority to settle a
claim for $25,000 or less, and deny a claim in any amount:
(i) The Deputy Judge Advocate General.
(ii) The Director of Civil Law.
(iii) The Chief, Deputy Chief, and Branch Chiefs, Claims and Tort
Litigation Staff.
(4) The SJAs of the Air Force component commander of the U.S.
geographic combatant commands for claims arising within their respective
combatant command areas of responsibility have delegated authority to
settle claims payable or to deny claims filed for $25,000 or less.
(5) SJAs of GCMs in PACAF and USAFE have delegated authority to
settle claims payable, and deny claims filed, for $15,000 or less.
(b) Redelegation of authority. A settlement authority may redelegate
up to $25,000 of settlement authority to a subordinate judge advocate or
civilian attorney. This redelegation must be in writing and can be for
all claims or limited to a single claim. The Chief, AFLOA/JACC may
redelegate up to $25,000, in writing, to paralegals assigned to AFLOA/
JACC and, upon request, may authorize installation Staff Judge Advocates
to redelegate their settlement authority to paralegals under their
supervision.
(c) Appellate authority. Upon appeal a settlement authority has the
same authority to settle a claim as that specified above. However, no
appellate authority below the Office of the Secretary of the Air Force
may deny an appeal of a claim it previously denied.
(d) Authority to reduce, withdraw, and restore settlement authority.
Any superior settlement authority may reduce, withdraw, or restore
delegated settlement authority.
(e) Settlement negotiations. A settlement authority may settle a
claim filed in any amount for a sum within the delegated settlement
authority regardless of the amount claimed. Unsettled claims in excess
of the delegated settlement authority are sent to the individual with
higher settlement authority. Unsuccessful negotiations at one level do
not bind higher authority.
(f) Special exceptions. No authority below the level of AFLOA/JACC
may settle claims for:
(1) On the job personal injury or death of an employee of a
government contractor or subcontractor.
(2) Assault, battery, false imprisonment, false arrest, abuse of
process, or malicious prosecution committed by an investigative or law
enforcement officer.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83696,
Nov. 22, 2016]
Sec. 842.91 Filing a claim.
(a) Elements of a proper claim. A claim is must be filed on a
Standard Form 95 or other written document. It must be signed by the
Claimant or authorized agent, be for money damages in a sum certain, and
lay out a basic statement as to the nature of the claim that will allow
the Air Force to investigate the allegations contained therein.
(b) Amending a claim. A claimant may amend a claim at any time prior
to final action. To amend a claim the claimant or his or her authorized
agent must submit a written, signed demand.
[81 FR 83697, Nov. 22, 2016]
Sec. 842.92 Advance payments.
Subpart P of this part sets forth procedures for such payments.
[81 FR 83697, Nov. 22, 2016]
Sec. 842.93 Statute of limitations.
(a) A claim must be filed in writing within 2 years after it
accrues. It is deemed to be filed upon receipt by The Judge Advocate
General, USAF/JACC, or a Staff Judge Advocate of the Air Force. A claim
accrues when the claimant discovers or reasonably should have discovered
the existence of the act that resulted in the claimed loss. The same
rules governing accrual pursuant to the Federal Tort Claims Act should
be applied with respect to the
[[Page 82]]
National Guard Claims Act. Upon receipt of a claim that properly belongs
with another military department, the claim is promptly transferred to
that department.
(b) The statutory time period excludes the day of the incident and
includes the day the claim was filed.
(c) A claim filed after the statute of limitations has run is
considered if the U.S. is at war or in an armed conflict when the claim
accrues or if the U.S. enters a war or armed conflict after the claim
accrues, and if good causes shows how the war or armed conflict
prevented the claimant from diligently filing the claim within the
statute of limitations. But in no case will a claim be considered if
filed more than two years after the war or armed conflict ends.
[81 FR 83697, Nov. 22, 2016]
Sec. 842.94 Who may file a claim.
The following individuals may file a claim under this subpart.
(a) Owners of the property or their authorized agents may file
claims for property damage.
(b) Injured persons or their duly authorized agents may file claims
for personal injury.
(c) Duly appointed guardians of minor children or any other persons
legally entitled to do so under applicable local law may file claims for
minors' personal injuries.
(d) Executors or administrators of a decedent's estate or another
person legally entitled to do so under applicable local law, may file
claims based on:
(1) An individual's death.
(2) A cause of action surviving an individual's death.
(e) Insurers with subrogation rights may file claims for losses paid
in full by them. The parties may file claims jointly or individually, to
the extent of each party's interest, for losses partially paid by
insurers with subrogation rights.
(f) Authorized agents signing claims show their title or legal
capacity and present evidence of authority to present the claims.
[81 FR 83697, Nov. 22, 2016]
Sec. 842.95 Who are proper claimants.
(a) Citizens and inhabitants of the United States. U.S. inhabitants
includes dependents of the U.S. military personnel and federal civilian
employees temporarily outside the U.S. for purposes of U.S. Government
service.
(b) U.S. military personnel and civilian employees. Note: These
personnel are not proper claimants for claims for personal injury or
death that occurred incident to their service.
(c) Foreign military personnel when the damage or injury occurs in
the U.S. Do not pay for claims under the MCA for personal injury or
death of a foreign military personnel that occurred incident to their
service.
(d) States, state agencies, counties, or municipalities, or their
political subdivisions.
(e) Subrogees of proper claimants to the extent they have paid for
the claim in question.
[81 FR 83697, Nov. 22, 2016]
Sec. 842.96 Who are not proper claimants.
(a) Governments of foreign nations, their agencies, political
subdivisions, or municipalities.
(b) Agencies and nonappropriated fund instrumentalities of the U.S.
Government including the District of Columbia government.
(c) Inhabitants of foreign countries.
(d) The state, territory and its political subdivisions whose Air
National Guard member caused the loss.
(e) Subrogees of the claimants in paragraphs (a) through (d) of this
section.
[81 FR 83697, Nov. 22, 2016]
Sec. 842.97 Claims payable.
Claims arising from noncombat activities of the United States when
caused by ANG members performing duty under 32 U.S.C. and acting within
the scope of their employment, whether or not such injuries or damages
arose out of their negligent or wrongful acts or omissions.
[81 FR 83697, Nov. 22, 2016]
Sec. 842.98 Claims not payable.
The following are not payable:
[[Page 83]]
(a) Claims covered by the FTCA, FCA, IACA, 10 U.S.C. 2734a and
2734b, Air Force Admiralty Claims Act (AFACA), 10 U.S.C. 9801-9804,
9806, MCA, 10 U.S.C. 2733, or covered under the Military Personnel and
Civilian Employees' Claims Act (MPCECA), 31 U.S.C. 3701, 3721.
(b) NGCA claims arising from noncombat activities in the U.S. are
not covered by the FTCA because more elements are needed to state an
FTCA claim than are needed to state a claim under the NGCA for noncombat
activities. All FTCA claims are based on elements of traditional tort
liability (i.e., duty, breach, causation, and damages); that is, they
are fault based. Noncombat activity claims under the NGCA are based
solely on causation and damages. Because NGCA claims for noncombat
activities are not fault based, they are not covered by the FTCA.
(c) See subpart E of this part for other claims not payable.
(d) Claims for damage to or loss of bailed property when the bailor
specifically assumed such risk.
(e) Claims for personal injury or death of a person covered by:
(1) The Federal Employees' Compensation Act.
(2) The Longshore and Harbor Workers' Compensation Act.
(3) A United States contract or agreement providing employee
benefits through insurance, local law, or custom and the United States
pays for such benefits either directly or as a part of the consideration
under the contract.
(f) Claims for property damage, personal injury or death occurring
in a foreign country to an inhabitant of that country.
(g) Claims caused by the negligent or wrongful acts or omissions of
members of the District of Columbia ANG.
(h) Claims arising from a private rather than a government
transaction.
(i) Claims for patent or copyright infringement.
(j) Claims for damage, use, or other expenses involving the regular
acquisition, possession, and disposition of real property by or for the
ANG.
(k) Claims for the taking of private real property by a continuing
trespass or by a technical trespass such as overflights of aircraft.
(l) Claims for loss of rental fee for personal property.
(m) Claims in litigation against the United States.
(n) Claims for a maritime occurrence covered under U.S. admiralty
laws.
(o) Claims for:
(1) Any tax or customs duty.
(2) The detention of any goods or merchandise by any officer of
customs, excise, or law enforcement officer.
(p) Claims from an act or omission of any employee of the Government
while administering the provisions of the Trading With the Enemy Act.
(q) Claims for damages caused by the United States' imposition or
establishment of a quarantine.
(r) Claims for libel, slander, misrepresentation, deceit or
interference with contract rights.
(s) Claims that result wholly from the negligent or wrongful act of
the claimant or the claimant's agent.
(t) Claims for reimbursement of medical, hospital, or burial
expenses furnished at the expense of the United States, any state, the
District of Columbia, or Puerto Rico.
(u) Claims for damage from floods or flood waters.
(v) Claims for damages caused by the fiscal operations of the
Treasury or by regulation of the monetary system.
(w) Claims caused by the negligent or wrongful acts or omissions of
ANG members acting within the scope of their employment, while
performing duty under 32 U.S.C., on or after 29 December 1981.
(x) Claims caused by the negligent or wrongful acts or omissions of
ANG technicians employed under 32 U.S.C. 709.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83696,
83697, Nov. 22, 2016]
Sec. 842.99 Applicable law.
(a) Federal preemption. Many of the exclusions in this subpart are
based upon the wording of 28 U.S.C. 2680 or other federal statutes or
court decisions interpreting the Federal Tort Claims Act. Federal case
law interpreting the same exclusions under the Federal Tort Claims Act
is applied to the National Guard Claims Act. Where
[[Page 84]]
state law differs with federal law, federal law prevails.
(b) Extent of liability. Where the claim arises is important in
determining the extent of liability.
(1) Applicable law. When a claim arises in the United States, its
territories or possessions, the same law as if the claim was cognizable
under the FTCA will be applied.
(2) Claims in foreign countries. In claims arising in a foreign
country, where the claim is for personal injury, death, or damage to or
loss of real or personal property caused by an act or omission alleged
to be negligent, wrongful, or otherwise involving fault of military
personnel or civilian officers or employees of the United States acting
within the scope of their employment, liability or the United States is
determined according to federal case law interpreting the FTCA. Where
the FTCA requires application of the law of the place where the act or
omission occurred, settlement authorities will use the rules set forth
in the currently adopted edition of the Restatement of the Law,
published by the American Law Institute, to evaluate the liability of
the Air Force, subject to the following rules:
(i) Absolute or strict liability will not apply for claims not
arising from noncombat activities.
(ii) Hedonic damages are not payable.
(iii) The collateral source doctrine will not apply.
(iv) Joint and several liability does not apply. Payment will be
made only upon the portion of loss, damage, injury or death attributable
to the Armed Forces of the United States.
(v) Future economic loss will be discounted to present value after
deducting for federal income taxes and, in cases of wrongful death,
personal consumption.
(c) Claims not payable. Do not approve payment for:
(1) Punitive damages.
(2) Cost of medical or hospital services furnished at U.S. expense.
(3) Cost of burial expenses paid by the United States.
(d) Settlement by insurer or joint tortfeasor. When settlement is
made by an insurer or joint tortfeasor and an additional award is
warranted, an award may be made if both of the following are present:
(1) The United States is not protected by the release executed by
the claimant.
(2) The total amount received from such source is first deducted.
[81 FR 83698, Nov. 22, 2016]
Sec. 842.100 Appeal of final denials.
This section explains the steps to take when a denial is appealed.
(a) A claimant may appeal the final denial of the claim. The
claimant sends the request, in writing, to the settlement authority that
issued the denial letter within 60 days of the date the denial letter
was mailed. The settlement authority may waive the 60 day time limit for
good cause.
(b) Upon receipt of the appeal, the original settlement authority
reviews the appeal.
(c) Where the settlement authority does not reach a final agreement
on an appealed claim, he or she sends the entire claim file to the next
higher settlement authority, who is the appellate authority for that
claim. Any higher settlement authority may act upon an appeal.
(d) The decision of the appellate authority is the final
administrative action on the claim.
[81 FR 83698, Nov. 22, 2016]
Sec. 842.101 Government's right of subrogation, indemnity, and
contribution.
The Air Force becomes subrogated to the rights of the claimant upon
settling a claim. The Air Force has the rights of contribution and
indemnity permitted by the law of the situs or under contract. Do not
seek contribution or indemnity from ANG members whose conduct gave rise
to Government liability.
[81 FR 83698, Nov. 22, 2016]
Sec. 842.102 Attorney fees.
In the settlement of any claim pursuant to 32 U.S.C. 715 and this
subpart, attorney fees will not exceed 20 percent of any award provided
that when a claim involves payment of an award over $1,000,000, attorney
fees on that part of the award exceeding $1,000,000
[[Page 85]]
may be determined by the Secretary of the Air Force. For the purposes of
this section, an award is deemed to be the cost to the United States at
the time of purchase of a structured settlement, and not its future
value.
[81 FR 83698, Nov. 22, 2016]
Subpart L_Hospital Recovery Claims (42 U.S.C. 2651 2653)
Source: 55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83698, Nov.
22, 2016, unless otherwise noted.
Sec. 842.103 Scope of this subpart.
This subpart explains how the United States asserts and settles
claims for costs of medical care, against third parties under the
Federal Medical Care Recovery Act (FMCRA) (10 U.S.C. 1095) and various
other laws.
[81 FR 83698, Nov. 22, 2016]
Sec. 842.104 Definitions.
This section defines terms which are used within this subpart.
(a) Medical Cost Reimbursement Program Regional Field Offices. The
Chief of the Medical Cost Reimbursement Program (MCRP) Branch determines
and assigns geographic responsibility for all regional field offices.
Each field office is responsible for investigating all potential claims
and asserting claims within their jurisdiction for the cost of medical
care provided by either a Medical Treatment Facility or at a civilian
facility through Tricare.
(b) Compromise. A mutually binding agreement where payment is made
and accepted in an amount less than the full amount of the claim.
(c) Injured party. The person who received medical care for injury
or disease as a result of the incident on which the claim is based. The
injured party may be represented by a guardian, personal representative,
estate, or survivor.
(d) Medical care. Includes medical and dental treatment, prostheses,
and medical appliances the U.S. furnished or reimbursed other sources
for providing.
(e) Reasonable value of medical care. Either:
(1) An amount determined by reference to rates set by the Director
of the Office of Management and Budget for the value of necessary
medical care in U.S. medical facilities.
(2) The actual cost of necessary care from other sources which was
reimbursed by the United States.
(f) Third party. An individual, partnership, business, corporation
(including insurance carriers), which is indebted to the United States
for medical care provided to an injured party. (In some cases, a state
or foreign government can be the third party.)
(g) Waiver. The voluntary relinquishment by the United States of the
right to collect for medical care provided to an injured party.
(h) Accrued pay. The total of all pay accrued to the account of an
active duty member during a period when the member is unable to perform
military duties. It does not include allowances.
(i) Future care. Medical care reasonably expected to be provided or
paid for in the future treatment of an injured party as determined
during the investigative process.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83698,
Nov. 22, 2016]
Sec. 842.105 Delegations of authority.
(a) Settlement authority. The following individuals have delegated
authority to settle, compromise, or waive MCRP claims for $300,000 or
less and to accept full payment on any claim:
(1) The Judge Advocate General.
(2) The Deputy Judge Advocate General.
(3) The Director of Civil Law.
(4) Chief, Claims and Tort Litigation Staff and the Chief, MCRP.
(b) Redelegation of authority. The individuals described in
paragraph (a) of this section may re-delegate a portion or all of their
authority to subordinates, subject to the following limitations:
(1) SJAs, when given Medical Cost Reimbursement (MCR) claims
jurisdiction, are granted authority to waive, compromise, or settle
claims in amounts of $25,000 or less. This authority may be re-delegated
in writing with authority to re-delegate to subordinates.
(2) SJAs of numbered Air Forces, when given MCR claims jurisdiction,
[[Page 86]]
are granted authority to waive, compromise, or settle claims in amounts
of $40,000 or less. This authority may be re-delegated in writing with
authority to re-delegate to subordinates.
(3) SJAs of single base GCMs, the SJAs of GCMs in PACAF and USAFE,
and the SJAs of each Air Force base, station, or fixed installation have
delegated authority to compromise or waive claims for $15,000 or less
and to accept full payment on any claim.
(c) Authority to assert a claim. Each settlement authority has
authority to assert a claim in any amount for the reasonable value of
medical care.
(d) Authority to reduce, withdraw, and restore settlement authority.
Any superior settlement authority may reduce, withdraw, or restore
delegated authority.
(e) Settlement negotiations. A settlement authority may settle a
claim filed for an amount within the delegated settlement authority.
Claims in excess of the delegated authority must be approved by the next
higher settlement authority. Unsuccessful negotiations at one level do
not bind higher authority.
Note to paragraph (e): Telephonic approvals, in the discretion of
the higher settlement authority, are authorized.
(f) Special exceptions. Only the Department of Justice (DOJ) may
approve claims involving:
(1) Compromise or waiver of a claim for more than $300,000.
(2) Settlement previously referred to DOJ.
(3) Settlement where a third party files suit against the U.S. or
the injured party arising out of the same incident.
[81 FR 83698, Nov. 22, 2016]
Sec. 842.106 Assertable claims.
A claim should be asserted when the Air Force has furnished or will
furnish medical care in military health care facilities or when the Air
Force is responsible for reimbursement to a private care provider and
either of the following conditions are met:
(a) Third party liability in tort exists for causing an injury or
disease.
(b) Local or foreign law permits the United States to recover or the
United States is a third party beneficiary under uninsured motorist
coverage, medical pay insurance coverage, worker's compensation, no-
fault statutes, or other statutes.
A claim should only be asserted if the base SJA determines it merits
assertion. Claims for $150 or less need not be asserted; they should be
asserted only if the base SJA or designee determines the collection will
not exceed the cost to collect, the third party offers payment and
demands a release from the United States before paying damages to the
injured party, or the United States asserts a property damage claim
under subpart L arising out of the same incident.
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83698, Nov. 22, 2016]
Sec. 842.107 Nonassertable claims.
The following are considered nonassertable claims and should not be
asserted:
(a) Claims against any department, agency, or instrumentality of the
United States. ``Agency or instrumentality'' includes any self-insured
nonappropriated fund activity whether revenue producing, welfare, or
sundry. The term does not include private associations.
(b) Claims for care furnished a veteran by the Department of
Veterans Affairs (VA) for service connected disability. However, claims
may be asserted for the reasonable value of medical care an Air Force
member receives prior to his or her discharge and transfer to the VA
facility or when the Air Force has reimbursed the VA facility for the
care.
(c) Claims for care furnished a merchant seaman under 42 U.S.C. 249.
A claim against the seaman's employer should not be filed.
(d) Government contractors. In claims in which the United States
must reimburse the contractor for a claim according to the terms of the
contract, settlement authorities investigate the circumstances
surrounding the incident to determine if assertion is appropriate. If
the U.S. is not required to reimburse the contractor, the MCR authority
may assert a claim against the contractor.
(e) Foreign governments. Settlement authorities investigate any
claims that
[[Page 87]]
might be made against foreign governments, their political subdivisions,
armed forces members or civilian employees.
(f) U.S. personnel. Claims are not asserted against members of the
uniformed services; employees of the US, its agencies or
instrumentalities; or an individual who is a dependent of a service
member or employee at the time of assertion unless they have insurance
to pay the claim, they were required by law or regulation to have
insurance which would have covered the Air Force, or their actions,
which necessitated the medical treatment provided at government expense,
constituted willful misconduct or gross negligence.
[81 FR 83699, Nov. 22, 2016]
Sec. 842.108 Asserting the claim.
When asserting the claim, the base SJA will:
(a) MCR personnel assert a claim against a tortfeasor or other third
party using a formal letter on Air Force stationery. The assertion is
made against all potential payers, including insurers. The demand letter
should state the legal basis for recovery and sufficiently describe the
facts and circumstances surrounding the incident giving rise to medical
care. Applicable bases of recovery include U.S. status as a third-party
beneficiary under various types of insurance policies, workers'
compensation laws, no-fault laws, or other Federal statutes, including
Coordination of Benefits (COB) or FMCRA.
(b) The MCR authority must promptly notify the injured parties or
their legal representatives, in writing, that the United States will
attempt to recover from the third parties the reasonable value of
medical care furnished or to be furnished and that they:
(1) Should seek advice from a legal assistance officer or civilian
counsel.
(2) Must cooperate in the prosecution of all actions of the United
States against third parties.
(3) Must furnish a complete statement regarding the facts and
circumstances surrounding the incident which caused the injury.
(4) Must not execute a release or settle any claim which exists as a
result of the injury without prior notice to the MCR authority.
(c) Mail all copies of the SF 96, or claim notice on Air Force
letterhead:
(1) By certified mail with return receipt requested in all claims in
which the amount claimed is $5,000.00 or more or in which there is a
substantial likelihood that the final amount claimed will be $5,000.00
or more.
(2) By regular or certified mail with return receipt requested at
the SJA's discretion in cases in which the final amount claimed is less
than $5,000.00, unless there is no response to the initial notice of
claim within a reasonable period of time and a second notice of claim is
required to be mailed. All second notices of claim and copies will be
mailed by certified mail, return receipt requested.
(d) Notify the injured parties promptly in writing that the United
States will attempt to recover from the third parties the reasonable
value of medical care furnished or to be furnished and that they:
(1) Should seek advice from a legal assistance officer or civilian
counsel and furnish the civilian counsel's name to the claims officer.
(2) Must cooperate in the prosecution of all actions of the United
States against third parties.
(3) Must furnish a complete statement regarding the facts and
circumstances surrounding the incident which caused the injury.
(4) Must not execute a release or settle any claim which exists as a
result of the injury without prior notice to the SJA.
(5) Should read the enclosed Privacy Act statement.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83698,
83699, Nov. 22, 2016]