32 CFR 250.7 Pertinent portions of Export Administration Regulations
(EAR).
The following pertinent section of the EAR is provided for the
guidance of DoD personnel in determining the releasability technical
data under the authority of this part.
Destinations
A General License designated GTDA is hereby established authorizing
the export to all destinations of technical data described in 379.3(a),
(b), or (c), below:
(a) Data Generally Available.
Data that have been made generally available to the public in any
form, including
(1) Data released orally or visually at open conferences, lectures,
trade show, or other media open to the public; and
(2) Publications that may be purchased without restrictions at a
nominal cost, or obtained without costs, or are readily available at
libraries open to the public.
The term ''nominal cost'' as used in 379.3(a)(2), is intended to
reflect realistically only the cost of preparing and distributing the
publication and not the intrinsic value of the technical data. If the
cost is as much as to prevent the technical data from being generally
available to the public, General License GTDA would not be applicable.
(b) Scientific or Educational Data.
(1) Dissemination of information not directly and significantly
related to design, production, or utilization in industrial processes,
including such dissemination by correspondence, attendance at, or
participation in, meetings; or
(2) Instruction in academic institutions and academic laboratories,
excluding information that involves research under contract related
directly and significantly to design, production, or utilization in
industrial processes.
(c) Patent Applications.
Data contained in a patent application, prepared wholly from
foreign-origin technical data where such application is being sent to
the foreign inventor to be executed and returned to the United States
for subsequent filing in the U.S. Patent and Trademark Office. (No
validated export license from the Office of Export Administration is
required for data contained in a patent application, or an amendment,
modification, supplement, or division thereof for filing in a foreign
country in accordance with the regulations of the Patent and Trademark
Office 37 CFR part 5. See 370.10(j).)
32 CFR 250.8 Pertinent portions of International Traffic in Arms
Regulations (ITAR).
The following pertinent section of the ITAR is provided for the
guidance of DoD personnel in determining the releasibility of technical
data under the authority of this part.
(a) Except as provided in 26.01, district directors of customs and
postal authorities are authorized to permit the export without a license
of unclassified technical data as follows:
(1) If it is in published /4/ form and subject to public
dissemination by being:
(i) Sold at newsstands and bookstores;
(ii) Available by subscription or purchase without restrictions to
any person or available without cost to any person;
(iii) Granted second class mailing privileges by the U.S.
Government; or
(iv) Freely available at public libraries.
(2) If it has been approved for public release by any U.S.
Government department or agency having authority to classify information
or material under Executive Order (12356), as amended, and other
applicable Executive Orders, and does not disclose the details of
design, production, or manufacturing of any arms, ammunition, or
implements of war on the U.S. Munitions List.
(3) If the export is in furtherance of a manufacturing license or
technical assistance agreement approved by the Department of State in
accordance with part 124 of this chapter.
(4) If the export is in furtherance of a contract with an agency of
the U.S. Government or a contract between an agency of the U.S.
Govenment and foreign persons, provided the contract calls for the
export of relevant unclassified technical data, and such data are being
exported only by the prime contractor. Such data shall not disclose the
details of development, engineering, design, production, or manufacture
of any arms, ammunition, or implements of war on the U.S. Munitions
List. (This exemption does not permit the prime contractor to enter
into subsidiary technical assistance or manufacturing license
agreements, or any arrangement which calls for the exportation of
technical data without compliance with part 124 of this subchapter.)
(5) If it relates to firearms not in excess of caliber .50 and
ammunition for such weapons, except technical data containing advanced
designs, processes, and munufacturing techniques.
(6) If it consists of technical data, other than design, development,
or production information relating to equipment, the export of which has
been previously authorized to the same recipient.
(7) If it consists of operations, maintenance and training manuals,
and aids relating to equipment, the export of which has been authorized
to the same recipient. /5/
(8) If it consists of additional copies of technical data previously
approved for export to the same recipient; or if it consists of revised
copies of technical data, provided it pertains to the identical
Munitions List article, and the revisions are solely editorial and do
not add to the content of technology previously approved for export to
the same recipient.
(9) If it consists solely of technical data being reexported to the
original source of import.
(10) If the export is by the prime contractor in direct support and
within the technical and/or product limitations of a ''U.S. Government
approved project'' and the prime contractor so certifies. The Office of
Munitions Control, Department of State, will verify, upon request, those
projects which are ''U.S. Government approved,'' and accord an exemption
to the applicant who applies for such verification and exemption, where
appropriate, under this subparagraph. /6/
(11) If the export is solely for the use of American citizen
employees of U.S. firms provided the U.S. firm certifies its overseas
employee is a U.S. citizen and has a ''need to know.'' /7/
(12) If the export is directly related to classified information, the
export of which has been previously authorized to the same recipient,
and does not disclose the details of design, production, or manufacture
of any arms, ammunition, or implements of war on the U.S. Munitions
List.
(b) Plant visits. Except as restricted by the provisions of 126.01
of this subchapter:
(1) No license shall be required for the oral and visual disclosure
of unclassified technical data during the course of a plant visit by
foreign nationals provided the data (are) disclosed in connection with a
classified plant visit or the visit has the approval of a U.S.
Government agency having authority for the classification of information
or material under Executive Order (12356), as amended, and other
applicable Executive Orders, and the requirements of section V,
paragraph (41(d)) of the Industrial Security Manual are met.
(2) No license shall be required for the documentary disclosure of
unclassified technical data during the course of a plant visit by
foreign nationals provided the document does not contain technical data
as defined in 125.01 in excess of that released orally or visually
during the visit, is within the terms of the approved visit request, and
the person in the United States assures that the technical data will not
be used, adopted for use, or disclosed to others for the purpose of
manufacture or production without the prior approval of the Department
of State in accordance with part 124 of this subchapter.
(3) No Department of State approval is required for the disclosure of
oral and visual classified information during the course of a plant
visit by foreign nationals provided the visit has been approved by the
cognizant U.S. Defense agency and the requirements of section V,
paragraph (41(d)) of the Defense Industrial Security Manual are met.
/4/ The burden for obtaining appropriate U.S. Government approval for
the publication of technical data falling within the definition in
125.01, including such data as may be developed under other than U.S.
Government contract, is on the person or company seeking publication.
/5/ Not applicable to technical data relating to Category VI(d) and
Category XVI.
/6/ Classified information may also be transmitted in direct support
of and within the technical and/or product limitation of such verified
U.S. Government approved projects without prior Department of State
approval provided the U.S. party so certifies and complies with the
requirements of the Department of Defense Industrial Security Manual
relating to the transmission of such classified information (and any
other rquirements of cognizant U.S. Government departments or agencies).
/7/ Classified information may also be exported to such certified
American citizen employees without prior Department of State approval
provided the U.S. party complies with the requirements of the Department
of Defense Industrial Security Manual relating to the transmission of
such classified information (and any other requirements of cognizant
U.S. Government departments or agencies). Such technical data or
information (classified or unclassified) shall not be released by oral,
visual, or documentary means to any foreign person.
32 CFR 250.9 Notice to accompany the dissemination of export-controlled
technical data.
(a) Export of information contained herein, which includes, in some
circumstances, release to foreign nationals within the United States,
without first obtaining approval or license from the Department of State
for items controlled by the International Traffic in Arms Regulations
(ITAR), or the Department of Commerce for items controlled by the Export
Administration Regulations (EAR), may constitute a violation of law.
(b) Under 22 U.S.C. 2778 the penalty for unlawful export of items or
information controlled under the ITAR is up to 2 years imprisonment, or
a fine of $100,000, or both. Under 50 U.S.C., Appendix 2410, the
penalty for unlawful export of items or information controlled under the
EAR is a fine of up to $1,000,000, or five times the value of the
exports, whichever is greater; or for an individual, imprisonment of up
to 10 years, or a fine of up to $250,000, or both.
(c) In accordance with your certification that establishes you as a
''qualified U.S. contractor,'' unauthorized dissemination of this
information is prohibited and may result in disqualification as a
qualified U.S. contractor, and may be considered in determining your
eligibility for future contracts with the Department of Defense.
(d) The U.S. Government assumes no liability for direct patent
infringement, or contributory patent infringement or misuse of technical
data.
(e) The U.S. Government does not warrant the adequacy, accuracy,
currency, or completeness of the technical data.
(f) The U.S. Government assumes no liability for loss, damage, or
injury resulting from manufacture or use for any purpose of any product,
article, system, or material involving reliance upon any or all
technical data furnished in response to the request for technical data.
(g) If the technical data furnished by the Government will be used
for commercial manufacturing or other profit potential, a license for
such use may be necessary. Any payments made in support of the request
for data do not include or involve any license rights.
(h) A copy of this notice shall be provided with any partial or
complete reproduction of these data that are provided to qualified U.S.
contractors.
32 CFR 250.9 PART 251 -- SALE OF GOVERNMENT-FURNISHED EQUIPMENT OR
MATERIEL AND SERVICE TO U.S. COMPANIES
Sec.
251.1 Reissuance and purpose.
251.2 Applicability.
251.3 Policy.
251.4 Definitions.
251.5 Responsibilities.
251.6 Procedures.
251.7 Information requirements.
Appendix A to Part 251 -- Status report on sales of GFE or GFM and
related quality assurance services (RCS DSAA (Q)1149)
Authority: Sec. 305(2) Pub. L. 98-525, Pub. L. 97-392, 10 U.S.C.
2208(i), 22 U.S.C. 2770, and 96 Stat 1962.
Source: 52 FR 36030, Sept. 25, 1987, unless otherwise noted.
32 CFR 251.1 Reissuance and purpose.
This part reissues 32 CFR part 251 expanding its coverage to
implement Title 10, United States Code, section 2208(i). It provides
policy, assigns responsibilities, and prescribes procedures.
32 CFR 251.2 Applicability.
This part applies to the Office of the Secretary of Defense (OSD),
the Military Departments, the Organization of the Joint Chiefs of Staff
(OJCS), the Unified Commands, and the Defense Agencies (hereafter
referred to collectively as ''DoD Components''). The term ''Military
Services,'' as used herein, refers to the Army, Navy, Air Force, and
Marine Corps.
32 CFR 251.3 Policy.
(a) The Department of Defense executes the authority provided by 22
U.S.C. 2770 to sell to U.S. companies defense articles and defense
services (hereafter also ''items'') in connection with proposed exports
on a direct commercial basis pursuant to State Department licenses or
approvals under International Traffic in Arms Regulation. The
Department of Defense also executes the authority provided by 10 U.S.C.
2208(i), which applies only to a working-capital funded Department of
Army Arsenal that manufactures large caliber cannons, gun mounts, or
recoil mechanisms.
(b) Sales under 22 U.S.C. 2770 may be authorized only if the
following applies:
(1) The items are of a type approved for foreign military sales
(FMS);
(2) Sale to a U.S. company under this part would simplify and
expedite the direct commercial sale involved;
(3) The items are of the type that would be supplied to the prime
contractor as Government-furnished equipment (GFE) or materiels (GFM)
for manufacture or assembly into end items for use by the Military
Services, and have in fact been supplied as GFE or GFM in connection
with any past or present DoD procurement of such end items; and
(4) The other provisions of this part are complied with.
(c) Sales under 10 U.S.C. 2208(i) may be authorized by the Department
of the Army only if the following applies:
(1) The article or related services are sold to a U.S. manufacturer,
assembler, or developer:
(i) For use in developing new products, or
(ii) For incorporation into items to be sold to, or to be used in a
contract with, an agency of the United States or a friendly foreign
government.
(2) The sale has been approved previously by the Office of Deputy
Assistant Secretary of Defense (Production Support) (ODASD)(PS)), or a
designee.
(3) The other applicable provisions of this part are complied with.
32 CFR 251.4 Definitions.
(a) Authorized purchasers under 22 U.S.C. 2770. A company
incorporated in the United States as defined in paragraphs a. and c.
or in paragraphs b. and c. of the definitions.
(1) The existing prime contractor for the specific end item with a
DoD contract for final assembly or final manufacture in the United
States of the end item for use by the Military Services.
(2) A known DoD-qualified producer of the end item to be used by the
Military Services, or one considered by the commanding officer of the
Military Department procuring activity to be a responsible contractor
for final assembly or final manufacture in the United States of the end
item for use by the Military Services, and which is not debarred,
ineligible, or suspended for defense procurement contracts.
(3) A U.S. manufacturer that has an approved license under the
International Traffic in Arms Regulation, which provides for the use of
GFE or GFM in the direct commercial export to a foreign country for the
use of the Armed Forces of that country or international organization.
The license shall identify the defense end item being sold and exported,
the quantity and identification of concurrent and follow-on spares, end
item delivery schedule, and name of the ultimate user.
(b) Authorized purchasers under 10 U.S.C. 2208(i). A company
incorporated in the United States as defined in paragraphs (a) and (b)
of this definition. Where export of an article from the United States
is involved, paragraph (c) of this definition also applies.
(1) A known DoD-qualified manufacturer, assembler, or developer of
articles, and which is not debarred, ineligible, or suspended for
defense procurement contracts.
(2) A company considered by the Commanding Officer of the Military
Department procuring activity to be a responsible contractor for the
proposed work.
(3) A company exporting articles is restricted to sales to a friendly
foreign government and must have an approved license under the
International Traffic in Arms Regulation, which provides for use or sale
of the article in the direct commercial export to a foreign country for
use by the Armed Forces of that country. The license shall identify the
article being sold and exported, the quantity and identification of
arsenal-produced items provided as concurrent and follow-on spares, item
delivery schedule, and name of the ultimate user.
32 CFR 251.5 Responsibilities.
(a) The Under Secretary of Defense for Policy (USD(P)), or designee,
shall provide overall guidance regarding the sale of the GFE or GFM to
U.S. companies for commercial export.
(b) The Director, Defense Security Assistance Agency (DSAA), shall:
(1) Monitor the sale of GFE and GFM to U.S. companies and
implementation of this Part with coordination with the ASD(A&L), where
applicable.
(2) Determine priorities or make allocations between two or more
competing foreign requirements.
(c) The Assistant Secretary of Defense (Acquisition and Logistics)
(ASD(A&L)), or designee, shall approve all sales under 10 U.S.C.
2208(i) in accordance with policies set forth in DoD Directive 4005.1.
/1/
(d) The Secretaries of the Military Departments:
(1) Shall execute the functions conferred upon the Secretary of
Defense by 22 U.S.C. 2770.
(2) May redelegate the authority under 22 U.S.C. 2770, but such
delegation may not be below the level of the commanding officer or head
of a procuring activity of the Military Department responsible for
procurement or acquisition of the applicable end item.
(3) Shall provide a quarterly report to the Director, DSAA, of sales
made to U.S. companies under 22 U.S.C. 2770.
(e) The Secretary of the Army:
(1) Shall execute the functions conferred by 10 U.S.C. 2208(i).
(2) May delegate the authority under 10 U.S.C. 2208(i).
(f) The Assistant Secretary of Defense (Comptroller) (ASD(C)) shall
monitor pricing compliance and financial administration set forth under
DoD 7290.3-M.
/1/ Copies may be obtained, if needed, from the U.S. Naval
Publications and Forms Center, Attn: Code 301, 5801 Tabor Avenue,
Philadelphia, PA 19120.
32 CFR 251.6 Procedures.
(a) Articles and services authorized for sale under 22 U.S.C. 2770.
(1) Defense items that currently are in fact being furnished (or have in
fact been furnished) by the U.S. Government as GFE or GFM to a U.S.
company that is or has been under contract to the Department of Defense
for final assembly or final manufacture into an end item for use by the
Military Services.
(2) Defense services that are directly associated with the
installation, testing, and certification of GFE that are or have been in
fact provided by the U.S. Government to a U.S. company in connection
with the U.S. Government procurement of similar end items for use by the
Department of Defense. Such defense services, including transportation
(subject to paragraph (e)(3)(iii) of this section), may be performed
only in the United States and only in support of the sale of defense
articles under this part; that is, services alone may not be provided
under this part.
(3) Defense items shall not be procured by the Department of Defense
for sale under Section 30 of the Arms Export Control Act if they are
available to the authorized purchases directly from U.S. commercial
sources at such times as may be required to meet the delivery schedule
of the authorized purchaser.
(b) Articles and services authorized for sale under 10 U.S.C.
2208(i). (1) Articles that can be manufactured by a working-capital
funded Department of the Army Arsenal that manufactures large caliber
cannons, gun mounts, or recoil mechanisms without present or future
interference with performance of the work by that Arsenal for the
Department of Defense or for a contractor performing for the Department
of Defense.
(2) Services that are directly associated with the articles sold.
Such services, including transportation (subject to paragraph (e)(3)(ii)
of this section), may be performed only in the United States and only in
support of the sale of articles under this part; that is, services
alone may not be provided under this part.
(3) Articles shall not be sold by Army Arsenals under authority of 10
U.S.C. 2208(i) if they are readily available to the authorized purchaser
directly from a U.S. commercial source.
(4) Nothing in this Directive shall be construed to affect the
application of the export controls provided for in Section 38 of the
Arms Export Control Act to items that incorporate or are produced
through the use of an article sold under this part.
(c) Pricing, Financing, and Accounting. (1) To afford U.S.
companies the ability to conduct planning and marketing of items,
Military Departments are authorized to provide cost and delivery
scheduling data to authorized potential purchasers (see 251.4) in
advance of execution of a sales agreement. Such data shall be
identified as estimates and shall not be binding on the U.S.
Government. Efforts shall be made to provide accurate data.
(2) Actual sales of items shall be made in cash, with payment upon
signature of the sales agreement by the representatives of the U.S.
Government and the U.S. company. Payment shall be received by the U.S.
Government in U.S. dollars upon such signature and shall precede
procurement action by the U.S. Government or, in cases of stock sales,
delivery to the authorized purchaser.
(3) Prices for sales from procurement or sales from DoD stocks, under
22 U.S.C. 2770 section 30 or 10 U.S.C. 2208(i) shall be established in
accordance with DoD 7290.3-M. Prices to be charged shall be the same as
those established for sales under the FMS Program of the same defense
articles and services, to include all surcharges and accessorial charges
applicable to FMS, including an amount for administration not less than
the FMS administrative surcharge. Full replacement cost pricing shall
be used for all sales of defense articles from DoD stocks and all
diversions from DoD procurement. Sales prices (under 10 U.S.C.
2208(i)), for articles to be exported or for independent research and
development will include the same appropriate surcharges and accessorial
charges that are applicable to sales under FMS. Sales to Federal
customers other than the Department of Defense shall be priced in
accordance with Chapter 26 of the DoD Accounting Manual, DoD 7220.9-M.
(4) An obligation for a reimbursable procurement may not exceed the
cash received from an authorized purchaser as prescribed in paragraph
(c)(2) of this section. If there is an increase in the procurement
contract cost, the purchaser shall be required to make additional cash
payment to the Military Service to fund the contract fully, plus
applicable surcharges, when such an increase is known. The cash
received from an authorized purchaser as prescribed in paragraph (c)(3)
of this section, must be sufficient to fund the replacement cost of
defense articles shipped from DoD stocks.
(5) Accountability shall be in accordance with DoD 7290.3-M with
reimbursements from sales being credited to the current appropriation,
fund, or account of the selling agency. Surcharges on items sold, such
as nonrecurring cost recoupment charge, asset use charge, and FMS
administrative charge, shall be accountable as FMS surcharges under DoD
7290.3-M. Amounts collected for items sold shall be credited to
accounts, specified in paragraph 10402 of Foreign Military Sales
Financial Management Manual, DoD 7290.3-M.
(d) Establishment of priorities and allocations. (1) Unless
otherwise directed by the USD(P) in coordination with the ASD(A&L),
sales are not authorized if they result in inventory stockage levels
dropping below the established reorder points. Except as provided in
section 21(i) of the Arms Export Control Act, sales, are not authorized
if they constitute a withdrawal of assets from U.S. stocks that result
in a significant adverse impact on the combat readiness of the Military
Services.
(2) When procurement is required, or manufacture in Government-owned
facilities is necessary, the Military Department concerned shall
determine whether a sale will be concluded. Unless directed by the DSAA
(see paragraph (d)(2) of this section), the Military Department
concerned is responsible for the establishment of priorities for
procurement or manufacture and for allocations and delivery of military
equipment and services. In determining production priorities and
allocations, the Military Departments shall consider fully all existing
DoD requirements for U.S. and other foreign requirements and normally
will schedule delivery, manufacture, and allocation on a first-in,
first-out basis. In making such determinations, the Military
Departments shall be guided by DoD Directive 4410.6 /2/ and related
assignments of force activity designators by the Joint Chiefs of Staff
(JCS).
(3) If there are two or more competing foreign requirements, the
Director, DSAA, shall determine priorities or shall make allocations.
Such priorities or allocations for foreign requirements shall supersede
determinations made by the Military Department under paragraph (d)(2) of
this section.
(e) Sales agreement. (1) The sales agreement with the U.S. company
will identify the company, the items and quantities being sold, the
estimated availability of the items, whether from DoD stocks or
procurement, the estimated price of the items, the item into which the
GFE or GFM item or items will be incorporated for resale, the identity
of the foreign purchaser and the number and date of the munitions export
license, or State Department approval.
(2) The sales agreement shall be approved by the appropriate Military
Department's General Counsel, or designee, and shall, as a minimum,
indicate that the U.S. Government:
(i) Retains the right to cancel in whole or in part or to suspend
performance at any time under unusual or compelling circumstances if the
national interest so requires.
(ii) Provides no warranty or guarantee, either expressed or implied,
regarding the items being sold.
(iii) Shall provide best efforts to comply with the delivery leadtime
cited, but will incur no liability for failure to meet an indicated
delivery schedule.
(iv) Shall use its best efforts to deliver at the estimated prices,
but that the purchaser is obligated to reimburse the U.S. Government
for the total cost if it is greater than the estimated price.
(3) Moreover, the sales agreement shall state that:
(i) Payment terms are cash, payable in advance, in accordance with
paragraph (c)(2) of this section;
(ii) Delivery shall be ''Free on Board (FOB) Point of Origin'' with
purchaser to arrange for continental U.S. (CONUS) transportation, except
for sensitive or hazardous cargo that normally shall be shipped by way
of the Defense Transportation Services (DTS) at rates established in DoD
7290.3-M;
(iii) The purchaser is responsible for both insurance coverage, if
desired, and ultimate customs clearance for export;
(iv) The purchaser is required to reimburse the U.S. Government for
all costs incurred by the U.S. Government if the purchase agreement is
canceled by the purchaser before delivery of the defense materiel or
completion of defense services.
(v) The purchaser renounces all claims against the U.S. Government,
its officers, agents, and employees arising out of or incident to this
agreement, whether concerning injury to or death of personnel, damage to
or destruction of property, or other matters, and will indemnify and
hold harmless the U.S. Government, its officers, agents, and employees
against any such claims of third parties and any loss or damage to U.S.
Government property.
(vi) The U.S. company agrees to provide for protection of classified
information and will require the agreement with the foreign government
to provide for protection of U.S. classified information.
/2/ See footnote 1 to 251.5(c).
32 CFR 251.7 Information requirements.
(a) The quarterly report (see 251.5(d)(3)) shall be provided within
30 days of the end of each fiscal quarter and shall contain the
information specified in 22 U.S.C. 2770.
(b) The reporting requirement of this Directive has been assigned
Report Control Symbol DSAA(Q)1149. The report format is in 22 U.S.C.
2770.
32 CFR 251.7 Pt. 251, App. A
32 CFR 251.7 -- PART 252 -- DEPARTMENT OF DEFENSE OFFSHORE MILITARY
ACTIVITIES PROGRAM
Sec.
252.1 Reissuance and purpose.
252.2 Applicability and scope.
252.3 Definitions.
252.4 Policy.
252.5 Responsibilities.
Authority: 5 U.S.C. 301.
Source: 52 FR 39222, Oct. 21, 1987, unless otherwise noted.
32 CFR 252.1 Reissuance and purpose.
This part reissues 32 CFR part 252 to update policies and procedures
for the use of offshore areas by the Department of Defense. It shall
serve as the basis for a comprehensive Offshore Military Activities
Program.
32 CFR 252.2 Applicability and scope.
This part:
(a) Applies to the Office of the Secretary of Defense (OSD), the
Military Departments (including their National Guard and Reserve
components), the Organization of the Joint Chiefs of Staff (OJCS), and
the Defense Agencies (hereafter referred to collectively as ''DoD
Components'').
(b) Concerns the use of offshore areas for military purposes. It
does not limit the responsibilities of the Secretary of the Navy
assigned under 33 U.S.C. 1101 et seq.
32 CFR 252.3 Definitions.
Offshore areas. The submerged land areas defined in 43 U.S.C. 1301
et seq. and 43 U.S.C. 1331 et seq. and the adjacent waters affected by
the use of those submerged lands.
Offshore Military Activities Program. The program established to
implement DoD policies and procedures for those activities, operations,
and installations that require an offshore environment and that may
impact on offshore areas.
Outer Continental Shelf. All submerged lands lying seaward and
outside of the area of lands beneath navigable waters as defined in
section 2 of 43 U.S.C. 1301 et seq., and of which the subsoil and seabed
appertain to the United States and are subject to its jurisdiction and
control.
State-owned Offshore Submerged Lands. Coastal portions of lands
beneath navigable waters, as defined in section 2 of the Submerged Lands
Act.
32 CFR 252.4 Policy.
(a) lt is DoD policy to support the principle that lands composing
the Outer Continental Shelf and state-owned offshore areas shall be used
in the best interest of the United States. Therefore, it is DoD policy
for the use of offshore areas to be shared with nonmilitary interests
whenever they can be accommodated.
(b) The Secretaries of Defense and the Interior have agreed on
procedures for resolving conflicts over joint use of offshore areas for
military and mineral exploration or developmental purposes. In carrying
out negotiations with elements of the Department of the Interior (DoI),
the Department of Defense shall be guided by this agreement when
appropriate.
(c) If a coastal state determines that the mineral potential of
off-shore areas being used or proposed to be used for military purposes
must be explored or developed, DoD shall endeavor to accommodate joint
military and commercial use of those areas. If compatible joint use is
not economically or militarily feasible, DoD shall seek agreement with
the coastal state to exclude conflict areas from its leasing program.
32 CFR 252.5 Responsibilities.
(a) The Assistant Secretary of Defense (Production and Logistics)
(ASD(P&L)) shall maintain a comprehensive program for the military use
of the offshore environment and provide related direction and policy to
DoD Components.
(b) The Secretary of the Army shall provide notices to the ASD(A&L),
to affected military installations and activities, and to the Director
of the Defense Mapping Agency Hydrographic/Topographic Center of
potential obstructions and hazards to navigation as stated in the Rivers
and Harbors Appropriation Act, of proposed permits for obstructions to
be located on the Outer Continental Shelf under 43 U.S.C. 1331 et seq.,
as amended, and of proposed permits for artificial reefs under the
National Fishing Enhancement Act of 1984 to ensure compatibility with
the Offshore Military Activities Program.
(c) The Secretary of the Navy shall:
(1) Act as DoD Executive Agent for outer continental shelf matters
and carry out responsibilities assigned to the Executive Agent in the
Agreement.
(2) Conduct continuing liaison with DoI, appropriate coastal states,
and the ASD(P&L) to ensure compatibility between the DoD Offshore
Military Activities Program and the related plans and programs of DoI
and coastal states.
(3) lnform concerned DoD Components of new developments in the DOI's,
states', and industry's mineral leasing plans that may affect present or
potential military interests in offshore areas.
(4) Represent the Department of Defense on the Secretary of the
Interior's Outer Continental Shelf Advisory Board.
(d) The Secretary of the Air Force shall, for those offshore areas
under his control, conduct continuing liaison with the DoI and coastal
states and enter into agreements necessary to ensure compatibility
between military activities and relevant plans and programs of the DoI
and coastal states.
(e) Heads of DoD Components shall:
(1) Review proposed DoI's and states' mineral leasing plans and
inform the Executive Agent of proposed activities that could be
incompatible with military missions. When joint use is feasible, the
Heads shall recommend conditions and stipulations that should be imposed
in leases to ensure the integrity of military missions and otherwise
protect the interests of the United States against claims arising out of
damage to property or personal injury.
(2) Establish and maintain lines of communication and coordination to
ensure that the ASD(P&L) and the Executive Agent are fully aware of
plans and programs involving offshore areas.
(3) Review notices referred to in 252.5(b) and notify the Army Chief
of Engineers if proposed actions are incompatible with offshore military
activities.
(4) Inform the Army Chief of Engineers and the Executive Agent of any
significant change in the status of offshore ranges, restricted areas,
or operating areas.
(5) Comply with the provisions of the Coastal Zone Management Act.
(6) Conduct other activities related to offshore areas as requested
by the ASD(A&L).
32 CFR 252.5 PART 253 -- ASSIGNMENT OF AMERICAN NATIONAL RED CROSS AND
UNITED SERVICE ORGANIZATIONS, INC., EMPLOYEES TO DUTY WITH THE MILITARY
SERVICES
Sec.
253.1 Reissuance and purpose.
253.2 Applicability and scope.
253.3 Definitions.
253.4 Policy.
253.5 Responsibilities.
253.6 Procedures.
Authority: Pub. L. 83-131, 5 U.S.C. 301.
Source: 48 FR 35644, Aug. 5, 1983, unless otherwise noted.
32 CFR 253.1 Reissuance and purpose.
This rule reissues this Part to update policy and procedures
governing the investigation of American National Red Cross (hereafter
''Red Cross'') employees and United Service Organizations, Inc. (USO),
staff for the purpose of determining the security acceptability of such
personnel for assignment to duty with the Military Services.
32 CFR 253.2 Applicability and scope.
(a) This rule applies to the Office of the Secretary of Defense, the
Military Departments, the Unified and Specified Commands, and the
Defense Investigative Service (hereafter referred to as ''DoD
Components''). The term ''Military Services,'' as used herein, refers
to the Army, the Navy, the Air Force, and the Marine Corps.
(b) This rule does not apply to U.S. citizens or foreign nationals
who are available locally at overseas locations for temporary or
part-time employment with the Red Cross or the USO. Policy and
procedures governing investigation and security acceptability of locally
hired employees shall be determined by the Military Department
concerned.
32 CFR 253.3 Definition.
Employee. Any full-time, salaried individual serving with or employed
by the Red Cross or the USO who is subject to assignment for overseas
duty with the Military Services.
32 CFR 253.4 Policy.
(a) It is the policy of the Department of Defense that an employee
shall be accepted for assignment to duty with the Military Services
overseas only after it first has been determined, based upon an
appropriate personnel security investigation, that such acceptance for
assignment is clearly consistent with the national interest.
(b) The standard and criteria for determining the security
acceptability of an employee for assignment or continuation of
assignment with the Military Services overseas shall be identical to
those established for making security clearance determinations for
personnel employed in private industry under 155.4 and 155.5 of this
title.
32 CFR 253.5 Responsibilities
(a) The Deputy Under Secretary of Defense for Policy, or designee,
the Director, Security Plans and Programs, shall serve as the primary
contact between the Department of Defense and the Red Cross and USO for
all matters relating to the policy and procedures prescribed herein.
(b) Heads of DoD Components shall comply with the provisions of this
rule.
32 CFR 253.6 Procedures.
(a) Employees who are U.S. citizens shall have been the subject of a
national agency check (NAC), completed with favorable results, before
being nominated for assignment with the Military Services overseas.
(b) Employees who are not U.S. citizens shall have been the subject
of a background investigation (BI), completed with favorable results,
before being nominated for assignment with the Military Services
overseas.
(c) An employee will not be assigned for duty with the Military
Services overseas or continued in such an assignment when it has been
determined that assignment or continuation of assignment is not clearly
consistent with the national interest.
(d) Completed security forms (DD Form 398, Personnel Security
Questionnaire (BI/SBI), or 398-2, Personnel Security Questionnaire
(National Agency Check)) shall be forwarded to the Defense Industrial
Security Clearance Office (DISCO), Defense Investigative Service, for
initiation of the NAC or BI, as appropriate.
(e) Upon completion of the appropriate investigation, the results
shall be returned to the DISCO where a determination shall be made
concerning security acceptability of the employee. If the determination
is favorable, the DISCO shall provide a statement to that effect to the
Red Cross or the USO. If the DISCO is unable to make a favorable
security acceptability determination, the procedures described in
paragraph (f)(3), of this section, shall apply.
(f) Whenever any DoD Component or the Red Cross or the USO receives
information indicating that an employee's assignment or continuation of
assignment with the Military Services overseas may not clearly be
consistent with the national interest, the information shall be
furnished to the DISCO for appropriate review. In such cases, the
following actions shall be taken:
(1) The DISCO shall arrange for the conduct of any investigation
warranted to resolve the adverse or questionable information.
(2) In cases arising after the initial security acceptability
determination has been made, the DISCO shall review the information or
report of investigation to determine whether the security acceptability
determination is to continue in effect. If such adjudication is
favorable, no further action is required. The Red Cross or the USO will
not be notified in such cases in order to preclude the possibility of
any adverse inference being drawn.
(3) If, after reviewing the information or report of investigation,
the DISCO is unable to make a favorable security acceptability
determination, the case shall be referred for further processing in
accordance with part 155 of this title.
32 CFR 253.6 PART 255 -- CONFIDENTIALITY OF MEDICAL QUALITY ASSURANCE
(QA) RECORDS
Sec.
255.1 Purpose.
255.2 Applicability and scope.
255.3 Definitions.
255.4 Policy.
255.5 Responsibilities.
255.6 Procedures.
Authority: 10 U.S.C. 1102.
Source: 56 FR 41940, Aug. 26, 1991, unless otherwise noted.
32 CFR 255.1 Purpose.
This part implements 10 U.S.C. 1102 in accordance with policies in 5
U.S.C., DoD Directive 6025.13, /1/ DoD Directive 6025.11, /2/ and 32 CFR
part 199.
/1/ Copies may be obtained, at cost, from the National Technical
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
/2/ See footnote 1 to 255.1
32 CFR 255.2 Applicability and scope.
This part applies to:
(a) The Office of the Secretary of Defense (OSD); the Military
Departments (including their National Guard and Reserve components);
the Chairman, Joint Chiefs of Staff and Joint Staff; the Unified and
Specified Commands; the Defense Agencies; and the DoD Field
Activities.
(b) Civilian healthcare entities or individuals, when they provide
medical QA information on healthcare of DoD beneficiaries to the
Department of Defense.
(c) The Peer Review Organization (PRO) Program of the Civilian Health
and Medical Program of the Uniformed Services (CHAMPUS), as specified in
32 CFR part 199.
32 CFR 255.3 Definitions.
(a) Aggregate Statistical Information. An assembled collection of
numerical facts and other information or data derived from various DoD
health program activities. Names, social security numbers, or other
specific information that will identify or reasonably lead to
identification of individual healthcare providers, patients, healthcare
facilities, or other specific organizational entities may not be
included in aggregate statistical data.
(b) Credentials. Documents providing evidence of education,
training, licensure, experience, and expertise of a healthcare provider.
(c) Healthcare Provider. Any military or civilian healthcare
professional who, under regulations of a Military Department, is granted
clinical practice privileges or is in training to provide healthcare
services in a military MTF or DTF or who is licensed or certified to
perform healthcare services by a governmental board or Agency or
professional healthcare society or organization.
(d) Healthcare QA Program. Any activity carried out before, on, or
after the enactment of 10 U.S.C. 1102 by or for the Department of
Defense to assess the quality of medical care. This includes activities
conducted by individuals, military MTF or DTF committees, contractors,
military medical departments, or DoD Agencies responsible for QA,
credentials review and clinical privileging, infection control, patient
care assessment (including review of treatment procedures, therapeutics,
blood use, medication use), review of healthcare records, health
resources management review, and risk management review.
(e) Individual QA Action. A provider sanction, privileging action,
or other activity on an individual healthcare provider intended to
address a quality of healthcare matter. Such an action is based on
processes structured by the QA program.
(f) Medical. Includes medical, mental health, and dental QA records,
programs, activities, and information.
(g) QA Record. The proceedings, records, minutes, and reports that
emanate from healthcare QA program activities and are produced or
compiled by the Department of Defense as part of a healthcare QA
program.
32 CFR 255.4 Policy.
It is DoD policy that:
(a) Medical QA records created by or for the Department of Defense,
as part of a medical QA program, are confidential and privileged. They
may not be made available to any person under the ''Freedom of
Information Act'' (5 U.S.C. 552). As a system of records, they are
within the purview of the ''Privacy Act'' (5 U.S.C. 552a) and,
therefore, the individual healthcare provider who is the subject of an
individual QA action may be entitled to access to the records. With the
exception of such a provider, the identities of third parties in the
record; i.e., any person receiving healthcare services (patients) from
the Department of Defense or any other person associated with the DoD QA
program, shall be deleted from the record before any disclosure of the
record is made outside the Department of Defense. This identity
deletion requirement does not apply to disclosures under 5 U.S.C. 552a,
but other deletion requirements under section 552a may apply in certain
circumstances.
(b) No part of any medical QA record may be subject to discovery or
admitted into evidence in any judicial or administrative proceeding,
except in accordance with 10 U.S.C. 1102.
(c) A person who reviews or creates medical QA records for the
Department of Defense or who participates in any proceeding that reviews
or creates such records may not testify in any judicial or
administrative proceeding on such records or on any finding,
recommendation, evaluation, opinion, or action taken by such person or
body for such records, except in accordance with 10 U.S.C. 1102.
(d) A person or entity having possession of or access to medical QA
records or testimony may not disclose the contents of such record or
testimony in any manner or for any purpose, except in accordance with 10
U.S.C. 1102.
(e) Any person who willfully discloses a medical QA record other than
as provided in 10 U.S.C. 1102, knowing that such record is a medical QA
record, shall be subject to adverse personnel action (to include, in
appropriate cases, dismissal or separation), and may be liable under 10
U.S.C. 1102 for a fine of not more than $3,000 in the case of a first
offense and not more than $20,000 in the case of a subsequent offense.
(f) Information on healthcare providers who are found to be
incompetent, negligent, medically or psychiatrically impaired, or guilty
of misconduct as defined in DoD Directive 6025.13 or 6025.11, shall be
provided to Agencies specified in those Directives.
(g) Information shall be submitted to the National Practitioner Data
Bank (NPDB) instituted by Public Law 99-660 in accordance with
applicable law and DoD Directives.
(h) Aggregate statistical information on results of DoD medical QA
programs may be provided in response to written requests.
(i) As provided in 10 U.S.C. 1102, a person who participates in or
provides information to a person or body that reviews or creates medical
QA records shall not be civilly liable for such participation or for
providing such information if the participation or provision of
information was in good faith, based on prevailing professional
standards at the time the medical QA program activity took place.
(j) Nothing in this part shall be construed as limiting access to the
information in a record created and maintained outside a medical QA
program, including a patient's medical records, on the grounds that the
information was presented during meetings of a review body that are part
of a healthcare QA program.
32 CFR 255.5 Responsibilities.
(a) The Assistant Secretary of Defense (Health Affairs) (ASD(HA))
shall monitor implementation of this Directive and may issue such
instructions as may be necessary to implement this part. Instructions
to the Military Departments shall be issued through the Secretaries of
the Military Departments.
(b) The General Counsel of the Department of Defense (GC, DoD) shall
provide legal advice on the interpretation and implementation of this
part.
(c) The Secretaries of the Military Departments, or their respective
designees, shall implement the requirements of this part and the
instructions issued under paragraph (a) of this section.
32 CFR 255.6 Procedures.
The Assistant Secretary of Defense for Health Affairs shall issue
instructions, in accordance with 255.5(a) that require the protection
of confidentiality as follows:
(a) QA Records That Are Protected From Disclosure, Except as
Described in Paragraphs (b) (1) through (7) of this section. Those
records include, but are not limited to, the data, testimony, and
working documents of any medical or dental treatment facility (MTF or
DTF), DoD contractor, Military Department, or DoD Agency involved in
monitoring, assessing, or documenting quality of healthcare.
(b) DoD QA Records May Be Authorized for Disclosure or Testimony to
the Following:
(1) A Federal Executive Agency, or private organization, if such
medical QA record or testimony is needed by such Agency or organization
to perform licensing or accreditation functions related to DoD
healthcare facilities or to perform monitoring, required by law, of DoD
healthcare facilities.
(2) An administrative or judicial proceeding commenced by a present
or former DoD healthcare provider concerning the termination,
suspension, or limitation of clinical privileges of such healthcare
provider.
(3) A governmental board or Agency or a professional healthcare
society or organization, if such medical QA record or testimony is
needed by such board, Agency, society, or organization to perform
licensing, credentialing, or the monitoring of professional standards of
any healthcare provider who is, or was, a member or an employee of the
Department of Defense.
(4) A hospital, medical center, or other institution that provides
healthcare services, if such medical QA record or testimony is needed by
such institution to assess the professional qualifications of any
healthcare provider who is, or was, a member or employee of the
Department of Defense and who has applied for, or has been granted,
authority or employment to provide healthcare services in or on behalf
of such institution.
(5) An officer, employee, or contractor of the Department of Defense
who has a need for such record or testimony to perform official duties.
(6) A criminal or civil law enforcement agency or instrumentality
charged under applicable law with the protection of the public health or
safety, if a qualified representative of such agency or instrumentality
makes a written request that such record or testimony be provided for a
purpose authorized by law.
(7) An administrative or judicial proceeding commenced by a criminal
or civil law enforcement agency or instrumentality referred to in
paragraph (b)(6) of this section, but only for the subject of such
proceeding.
(c) Aggregate Statistical Information. Nothing in this part shall be
construed as authorizing or requiring the withholding, from any person
or entity, aggregate statistical information on the result of DoD
medical QA programs.
(d) Congressional Requests. Nothing in this part shall be construed
as authority to withhold any medical quality assurance record from a
committee of either House of Congress, any joint committee of Congress,
or the General Accounting Office if such record pertains to any matter
within their respective jurisdictions.
32 CFR 255.6 PART 256 -- AIR INSTALLATIONS COMPATIBLE USE ZONES
Sec.
256.1 Purpose.
256.2 Applicability.
256.3 Criteria.
256.4 Policy.
256.5 The air installation compatible use program.
256.6 Runway classification by aircraft type.
256.7 Accident potential zone guidelines.
256.8 Land use compatibility guidelines for accident potential.
256.9 Real estate interests to be considered for clear zones and
accident potential zone.
256.10 Air installations compatible use zone noise descriptors.
256.11 Effective date and implementation.
Authority: National Security Act of 1947, as amended, 61 Stat. 495.
Source: 42 FR 773, Jan. 4, 1977, unless otherwise noted.
32 CFR 256.1 Purpose.
This part: (a) Sets forth Department of Defense policy on achieving
compatible use of public and private lands in the vicinity of military
airfields;
(b) Defines (1) required restrictions on the uses and heights of
natural and man-made objects in the vicinity of air installations to
provide for safety of flight and to assure that people and facilities
are not concentrated in areas susceptible to aircraft accidents; and
(2) Desirable restrictions on land use to assure its compatibility
with the characteristics, including noise, of air installations
operations;
(c) Describes the procedures by which Air Installations Compatible
Use Zones (AICUZ) may be defined; and
(d) Provides policy on the extent of Government interest in real
property within these zones which may be retained or acquired to protect
the operational capability of active military airfields (subject in each
case to the availability of required authorizations and appropriations).
32 CFR 256.2 Applicability.
This part applies to air installations of the Military Departments
located within the United States, its territories, trusts, and
possessions.
32 CFR 256.3 Criteria.
(a) General. The Air Installations Compatible Use Zone for each
military air installation shall consist of (1) land areas upon which
certain uses may obstruct the airspace or otherwise be hazardous to
aircraft operations, and (2) land areas which are exposed to the health,
safety or welfare hazards of aircraft operations.
(b) Height of obstructions. The land area and height standards
defined in AFM 86-8,1 NavFac P-272 and P-80,1 and TM 5-803-41 will be
used for purposes of height restriction criteria.
(c) Accident potential -- (1) General. (i) Areas immediately beyond
the ends of runways and along primary flight paths are subject to more
aircraft accidents than other areas. For this reason, these areas
should remain undeveloped, or if developed should be only sparsely
developed in order to limit, as much as possible, the adverse effects of
a possible aircraft accident.
(ii) DoD fixed wing runways are separated into two types for the
purpose of defining accident potential areas. Class A runways are those
restricted to light aircraft (See 256.6) and which do not have the
potential for development for heavy or high performance aircraft use or
for which no foreseeable requirement for such use exists. Typically
these runways have less than 10% of their operations involving Class B
aircraft ( 256.6) and are less than 8000 feet long. Class B runways are
all other fixed wing runways.
(iii) The following descriptions of Accident Potential Zones are
guidelines only. Their strict application would result in increasing
the safety of the general public but would not provide complete
protection against the effects of aircraft accidents. Such a degree of
protection is probably impossible to achieve. Local situations may
differ significantly from the assumptions and data upon which these
guidelines are based and require individual study. Where it is
desirable to restrict the density of development of an area, it is not
usually possible to state that one density is safe and another is not.
Safety is a relative term and the objective should be the realization of
the greatest degree of safety that can be reasonably attained.
(2) Accident potential and clear zones (See 256.7). (i) The area
immediately beyond the end of a runway is the ''Clear Zone'', an area
which possesses a high potential for accidents, and has traditionally
been acquired by the Government in fee and kept clear of obstructions to
flight.
(ii) Accident Potential Zone I (APZ I) is the area beyond the clear
zone which possesses a significant potential for accidents.
(iii) Accident Potential Zone II (APZ II) is an area beyond APZ I
having a measurable potential for accidents.
(iv) Modifications to APZs I and II will be considered if:
(A) The runway is infrequently used.
(B) The prevailing wind conditions are such that a large percentage
(i.e., over 80 percent) of the operations are in one direction.
(C) Most aircraft do not overfly the APZs as defined herein during
normal flight operations (modifications may be made to alter these zones
and adjust them to conform to the line of flight).
(D) Local accident history indicates consideration of different
areas.
(E) Other unusual conditions exist.
(v) The takeoff safety zone for VFR rotary-wing facilities will be
used for the clear zone; the remainder of the approach-departure zone
will be used as APZ I.
(vi) Land use compatibility with clear zones and APZs is shown in
256.8.
(d) Noise -- (1) General. Noise exposure is described in various
ways. In 1964, the Department of Defense began using the Composite
Noise Rating (CNR) system to describe aircraft noise. Several years ago
the Noise Exposure Forecast (NEF) system began to replace CNR. In
August 1974, the Environment Protection Agency notified all Federal
agencies of intent to implement the Day-Night Average Sound Level (Ldn)
noise descriptor, and this was subsequently adopted by the DoD. This
Ldn system will be used for air installations. Where AICUZ studies have
been published using the CNR of NEF systems or where studies have
progressed to the point that a change in the descriptor system is
impractical or uneconomical, such studies may be published and continued
in use. However, in such cases, data necessary for conversion to Ldn
should be collected and studies should be revised as soon as time and
budgetary considerations permit. However, if State or local laws
require some other noise descriptor, it may be used in lieu of Ldn.
(2) Noise Zones. (i) As a minimum, contours for Ldn 65, 70, 75 and
80 shall be plotted on maps as part of AICUZ studies.
(ii) See 256.10 for a further discussion of Ldn use and conversion
to Ldn from previously used systems.
1Filed as part of original. Copies available in the Office of the
Assistant Secretary of Defense (Installations and Logistics) -- ID,
Washington, DC 20301.
32 CFR 256.4 Policy.
(a) General. As a first priority step, all reasonable, economical,
and practical measures will be taken to reduce and/or control the
generation of noise from flying and flying related activities. Typical
measures normally include siting of engine test and runup facilities in
remote areas if practical, provision of sound suppression equipment
where necessary, and may include additional measures such as adjustment
of traffic patterns to avoid built-up areas where such can be
accomplished with safety and without significant impairment of
operational effectiveness. After all reasonable noise source control
measures have been taken, there will usually remain significant land
areas wherein the total noise exposure is such as to be incompatible
with certain uses.
(b) Compatible use land -- (1) General. (i) DoD policy is to work
toward achieving compatibility between air installations and neighboring
civilian communities by means of a compatible land use planning and
control process conducted by the local community.
(ii) Land use compatibility guidelines will be specified for each
Clear Zone, Accident Potential Zone, Noise Zone and combination of these
as appropriate.
(iii) The method of control and regulation of land usage within each
zone will vary according to local conditions. In all instances the
primary objective will be to identify planning areas and reasonable land
use guidelines which will be recommended to appropriate agencies who are
in control of the planning functions for the affected areas.
(2) Property rights acquisition -- (i) General. While noise
generated by aircraft at military air installations should be an
integral element of land use compatibility efforts, the acquisition of
property rights on the basis of noise by the Department of Defense may
not be in the long term best interests of the United States. Therefore,
while the complete requirement for individual installations should be
defined prior to any programming actions, acquisition of interests
should be programmed in accordance with the following priorities.
(ii) Priorities. (A) The first priority is the acquisition in fee
and/or appropriate restrictive easements of lands within the clear zones
whenever practicable.
(B) Outside the clear zone, program for the acquisition of interests,
first in Accident Potential Zones and secondly in high noise areas only
when all possibilities of achieving compatible use zoning, or similar
protection, have been exhausted and the operational integrity of the air
installation is manifestly threatened. If programming actions are
considered necessary, complete records of all discussions, negotiations,
testimony, etc., with or before all local officials, boards, etc., must
be maintained. This will ensure that documentation is available to
indicate that all reasonable and prudent efforts were made to preclude
incompatible land use through cooperation with local governmental
officials and that all recourse to such action has been exhausted. Such
records shall accompany programming actions and/or apportionment
requests for items programmed prior to the date of this part. In
addition, a complete economic analysis and assessment of the future of
the installation must be included.
(1) Costs of establishing and maintaining compatible use zones must
be weighed against other available options, such as changing the
installation's mission and relocating the flying activities, closing the
installation, or such other courses of action as may be available. In
performing analyses of this type, exceptional care must be exercised to
assure that a decision to change or relocate a mission is fully
justified and that all aspects of the situation have been thoroughly
considered.
(2) When, as a result of such analysis, it is determined that
relocation or abandonment of a mission will be required, then no new
construction shall be undertaken in support of such activities except as
is absolutely necessary to maintain safety and operational readiness
pending accomplishment of the changes required.
(iii) Guidelines. This part shall not be used as sole justification
for either the acquisition or the retention of owned interests beyond
the minimum required to protect the Government.
(A) Necessary rights to land within the defined compatible use area
may be obtained by purchase, exchange, or donation, in accordance with
all applicable laws and regulations.
(B) If fee title is currently held or subsequently acquired in an
area where compatible uses could be developed and no requirement for a
fee interest in the land exists except to prevent incompatible use,
disposal actions shall normally be instituted. Only those rights and
interests necessary to establish and maintain compatible uses shall be
retained. Where proceeds from disposal would be inconsequential,
consideration may be given to retaining title.
(C) If the cost of acquiring a required interest approaches closely
the cost of fee title, consideration shall be given to whether
acquisition of fee title would be to the advantage of the Government.
(c) Rights and interests which may be obtained. When it is
determined to be necessary for the Federal Government to acquire
interests in land, a careful assessment of the type of interest to be
acquired is mandatory. 256.9 contains a listing of possible interests
which should be examined for applicability.
(d) Environmental impact statements. (1) Any actions taken with
respect to safety of flight, accident hazard, or noise which involve
acquisition of interests in land must be examined to determine the
necessity of preparing an environmental impact statement in accordance
with DoD Directive 6050.1, ''Environmental Considerations in DoD
Actions,'' March 19, 1974 (32 CFR part 214).
(2) All such environmental impact statements must be forwarded to
appropriate Federal and local agencies for review in accordance with DoD
Directive 6050.1 (32 CFR part 214).
(3) Coordination with local agencies will be in accordance with OMB
Circular A-95.
32 CFR 256.5 The air installation compatible use program.
(a) The Secretaries of the Military Departments will develop,
implement and maintain a program to investigate and study all air
installations in necessary order of priority to develop an Air
Installation Compatible Use Zone (AICUZ) program for each air
installation consistent wth 256.4. AICUZ studies which contain an
analysis of land use compatibility problems and potential solutions
shall be developed and updated as necessary. As a minimum, each Study
shall include the following:
(1) Determination by detailed study of flight operations, actual
noise and safety surveys if necessary, and best available projections of
future flying activities, desirable restrictions on land use due to
noise characteristics and safety of flight;
(2) Identification of present incompatible land uses;
(3) Identification of land that if inappropriately developed would be
incompatible;
(4) Indication of types of desirable development for various land
tracts;
(5) Land value estimates for the zones in question.
(6) Review of the airfield master plans to ensure that existing and
future facilities siting is consistent with the policies in this part.
(7) Full consideration of joint use of air installations by
activities of separate Military Departments whenever such use will
result in maintaining operational capabilities while reducing noise,
real estate and construction requirements.
(8) Recommendations for work with local zoning boards, necessary
minimum programs of acquisition, relocations, or such other actions as
are indicated by the results of the Study.
(b) Procedures. In developing AICUZ Studies the Secretaries of
Military Departments shall:
(1) Follow the review and comment procedures established under OMB
Circular A-95;
(2) Ensure that appropriate environmental factors are considered;
and
(3) Ensure that other local, State or Federal agencies engaged in
land use planning or land regulation for a particular area have an
opportunity to review and comment upon any proposed plan or significant
modification thereof.
(c) Coordination with State and local governments. Secretaries of
the Military Departments shall develop procedures for coordinating AICUZ
Studies with the land use planning and regulatory agencies in the area.
Developing compatible land use plans may require working with local
governments, local planning commissions, special purpose districts,
regional planning agencies, state agencies, state legislatures, as well
as the other Federal agencies. Technical assistance to local, regional,
and state agencies to assist them in developing their land use planning
and regulatory processes, to explain an AICUZ Study and its
implications, and generally to work toward compatible planning and
development in the vicinity of military airfields, should be provided.
(d) Property rights acquisition. The AICUZ Study shall serve as the
basis for new land acquisitions, property disposal, and other proposed
changes in Military Departments real property holdings in the vicinity
of military airfields where applicable.
(e) Required approvals. Based on the results of the AICUZ Studies,
each Military Department will prepare recommendations for individual
installations AICUZ programs for approval as follows:
(1) The Secretaries of the Military Departments or their designated
representatives will review and approve the AICUZ Studies establishing
the individual air installation AICUZ program.
(2) When relocation or abandonment of a mission or an installation is
apparently required, the Secretaries of the Military Departments will
submit the proposed plan for the installation, with appropriate
recommendations, to the Secretary of Defense for approval.
(3) A time-phased fiscal year plan for implementation of the AICUZ
program in priority order, consistent with budgetary considerations,
will be developed for approval by the Secretaries of the Military
Departments, or their designated representatives. These plans will
serve as the basis for all AICUZ actions at the individual
installations.
(f) Coincident actions. The Secretaries of the Military Departments
will also take action to assure in accordance with 256.4 (a) and (b)
that:
(1) As the first priority action in developing an AICUZ program, full
attention is given to safety and noise problems.
(2) In all planning, acquisition and siting of noise generating
items, such as engine test stands, full advantage is taken of available
alleviating measures, such as remote sites or sound suppression
equipment.
(3) The noise exposure of on-installation facilities and personnel
are considered together with that off the installation.
(4) There is development or continuation with renewed emphasis, of
programs to inform local governments, citizens groups, and the general
public of the requirements of flying activities, the reasons therefore,
the efforts which may have been made or may be taken to reduce noise
exposure, and similar matters which will promote and develop a public
awareness of the complexities of air installation operations, the
problems associated therewith, and the willingness of the Department of
Defense to take all measures possible to alleviate undesirable external
effects.
(g) Responsibilities for the acquisition, management and disposal of
real property are defined in DoD Directive 4165.6, ''Real Property;
Acquisition, Management and Disposal,'' September 15, 1955 (20 FR 7113).
(h) The Deputy Assistant Secretary of Defense (Installations and
Housing) will examine the program developed pursuant to this Part, and
from time to time review the progress thereunder to assure conformance
with policy.
32 CFR 256.6 Runway classification by aircraft type.
S-2, VC-6, C-1, C-2, TC-4C, U-10, U-11, LU-16, TU-16, HU-16, C-7,
C-8, C-12, C-47, C-117, U-21, QU-22, E-1, E-2, O-1, U-1, U-3, U-6, U-8,
U-9, O-2, OV-1, OV-10, T-28, T-34, T-41, T-42.
A-1, A-3, A-4, A-5, A-6, F-106, F-5, F-15, F-18, S-3, C-121, EC-121,
WC-121, C-123, C-130, A-7, A-38, AV-8, P-2, P-3, T-29, T-33, T-37, T-39,
T-1, HC-130B, C-131, C-140, C-5A, KC-97, F-9, F-14, F-4, F-8, F-111,
T-2, T-38, B-52, B-57, B-57F, C-124, EC-130E, HC-130, C-135, VC-137,
YF-12, SR-71, F-100, F-101, F-102, B-66, C-9, C-54, C-97, C-118, C-141,
KC-135, EC-135, RC-135, U-2, F-104, F-105, C-119.
(42 FR 13022, Mar. 8, 1977)
32 CFR 256.7 Accident potential zone guidelines.
32 CFR 256.8 Land use compatibility guidelines for accident potential.
32 CFR 256.9 Real estate interests to be considered for clear zones and
accident potential zone.
(a) The right to make low and frequent flights over said land and to
generate noises associated with:
(1) Aircraft in flight, whether or not while directly over said land,
(2) Aircraft and aircraft engines operating on the ground at said
base, and,
(3) Aircraft engine test/stand/cell operations at said base.
(b) The right to regulate or prohibit the release into the air of any
substance which would impair the visibility or otherwise interfere with
the operations of aircraft, such as, but not limited to, steam, dust and
smoke.
(c) The right to regulate or prohibit light emissions, either direct
or indirect (reflective), which might interfere with pilot vision.
(d) The right to prohibit electrical emissions which would interfere
with aircraft and aircraft communications systems or aircraft
navigational equipment.
(e) The right to prohibit any use of the land which would
unnecessarily attract birds or waterfowl, such as, but not limited to,
operation of sanitary landfills, maintenance of feeding stations or the
growing of certain types of vegetation attractive to birds or waterfowl.
(f) The right to prohibit and remove any buildings or other
non-frangible structures.
(g) The right to top, cut to ground level, and to remove trees,
shrubs, brush or other forms of obstruction which the installation
commander determines might interfere with the operation of aircraft,
including emergency landings.
(h) The right of ingress and egress upon, over and across said land
for the purpose of exercising the rights set forth herein.
(i) The right to post signs on said land indicating the nature and
extent of the Government's control over said land.
(j) The right to prohibit land uses other than the following:
(1) Agriculture.
(2) Livestock grazing.
(3) Permanent open space.
(4) Existing water areas.
(5) Rights of way for fenced two lane highways, without sidewalks or
bicycle trails and single track railroads.
(6) Communications and utilities rights of way, provided all
facilities are at or below grade.
(k) The right to prohibit entry of persons onto the land except in
connection with activities authorized under paragraphs (a), (b), (c),
and (f) of this section.
(l) The right to disapprove land uses not in accordance with 256.8.
(m) The right to control the height of structures to insure that they
do not become a hazard to flight.
(n) The right to install airfield lighting and navigational aids.
32 CFR 256.10 Air installations compatible use zone noise descriptors.
(a) Composite Noise Rating (CNR) and Noise Exposure Forecast (NEF)
values as previously required by Sections III., IV., and V. of DoD
Instruction 4165.57, ''Air Installations Compatible Use Zones,'' July
30, 19731 will no longer be used.
(b) Where CNR 100 (or the quietest boundary of CNR Zone 2 if
otherwise computed) or NEF 30 would previously have been used, data
shall be collected sufficient to permit computation of Ldn 65 noise
contours and these noise contours shall be plotted on maps accompanying
AICUZ studies.
(c) Where CNR 115 (or the boundary of CNR Zone 3 if otherwise
computed) or NEF 40 would previously have been used, data shall be
collected sufficient to permit computation of Ldn 75 noise contours and
these noise contours shall be plotted on maps accompanying AICUZ
studies.
(d) Where previous studies have used CNR or NEF, for meters of
policy, noise planning and decisionmaking, areas quieter than Ldn 65
shall be considered approximately equivalent to the previously used CNR
Zone 1 and to areas quieter than NEF 30. The area between Ldn 65 and
Ldn 75 shall be considered approximately equivalent to the previously
used CNR Zone 2 and to the area between NEF 30 and NEF 40. The area of
higher noise than Ldn 75 shall be considered approximately equivalent to
the previously used CNR Zone 3 and to noise higher the NEF 40. The
procedures shall remain in effect only until sufficient data to compute
land values can be obtained.
(e) When computing helicopter noise levels using data collected from
meters, a correction of +7db shall be added to meter readings obtained
under conditions where blade slap was present until and unless matters
are developed which more accurately reflect true conditions.
(f) Noise contours less than Ldn 65 or more than Ldn 80 need not be
plotted for AICUZ studies.
(g) Since CNR noise levels are not normally directly convertible to
Ldn values without introducing significant error, care should be
exercised to assure that personnel do not revise previous studies by
erroneously relabeling CNR contours to the approximately equivalent Ldn
values.
(h) Where intermittent impulse noises are such as are associated with
bombing and gunnery ranges are of importance such noises will be
measured using standard ''C'' weighing of the various frequencies to
insure a description most representative of actual human response.
1Filed as part of original. Copies available in the Office of the
Assistant Secretary of Defense (Installations and Logistics) -- IO,
Washington, DC 20301.
32 CFR 256.11 Effective date and implementation.
This part is effective immediately. Two copies of implementing
regulations shall be forwarded to the Assistant Secretary of Defense
(Installations and Logistics) within 90 days after publication of final
rules.
32 CFR 256.11 PART 257 -- ACCEPTANCE OF SERVICE OF PROCESS
Sec.
257.1 Purpose.
257.2 Applicability.
257.3 Definition.
257.4 Policy.
257.5 Responsibilities.
Authority: 5 U.S.C. 301, 133.
Source: 49 FR 1490, Jan. 12, 1984, unless otherwise noted.
32 CFR 257.1 Purpose.
This rule updates DoD policy governing acceptance of service of
process served on the Secretary of Defense and the Secretaries of the
Military Departments.
32 CFR 257.2 Applicability.
This rule applies to the Office of the Secretary of Defense (OSD) and
the Military Departments.
32 CFR 257.3 Definition.
Service of Process. When applied to the filing of a court action
against an officer or agency of the United States, service of process
refers to the delivery or, when appropriate, receipt by mail, of a
summons and complaint made in accordance with Rule 4, Federal Rules of
Civil Procedure by serving the United States and by serving a copy of
the summons and complaint by registered or certified mail to such
officer or agency. It further signifies the delivery of a subpoena
requiring a witness to appear and give testimony or of a subpoena
requiring production of documents, or delivery of a subpoena for any
other reason whether or not the matter involves the United States.
32 CFR 257.4 Policy.
It is DoD policy to accept service of process directed to the
Secretary of Defense or a Secretary of a Military Department in his
official capacity. Acceptance of service of process will not constitute
an admission or waiver with respect to the jurisdiction or to the
propriety of service.
32 CFR 257.5 Responsibilities.
The following responsibilities may not be redelegated:
(a) The General Counsel, Department of Defense, shall accept service
of process for the OSD.
(b) The Secretary of the Army, or his designee, the Chief, Litigation
Division, Office of the Judge Advocate General, shall accept service of
process for the Department of the Army.
(c) The Secretary of the Navy, or his designee, the General Counsel,
shall accept service of process for the Department of the Navy.
(d) The Secretary of the Air Force, or his designee, the Chief,
General Litigation Division, Office of the Judge Advocate General, shall
accept service of process for the Department of the Air Force.
32 CFR 257.5 PART 258 -- COOPERATION WITH ALLIES IN RESEARCH AND
DEVELOPMENT OF DEFENSE EQUIPMENT
Sec.
258.1 Purpose.
258.2 Background.
258.3 Policy.
258.4 Criteria.
258.5 Procedures.
258.6 Responsibilities and authorities.
Authority: 5 U.S.C. 301.
Source: 33 FR 13024, Sept. 14, 1968, unless otherwise noted.
32 CFR 258.1 Purpose.
It is the purpose of this part to specify Defense Department policy
for strengthening cooperation with Allies in research and development
and to assign responsibilities for implementing it. This policy calls
for maximum coordination of technical objectives and programs with those
of our allies. It complements DoD Directive 3100.4, Harmonization of
Qualitative Requirements for Defense Equipment of United States and
Allies. 1198
1981Copies available from Naval Supply Depot, 5801 Tabor Avenue,
Philadelphia, Pa. 19120; Attn.: Code 300.
32 CFR 258.2 Background.
Cooperation in defense research and development between the United
States and its Allies since World War II has been aimed primarily at
assisting them, financially as well as technically, in developing
indigenous capabilities. The economic status of certain of these Allies
has now evolved beyond the point of warranting further financial
assistance. However, the evolution of modern weapons of increasing cost
and complexity makes the effective utilization of the aggregate of
available technical resources a matter of concern to each nation.
32 CFR 258.3 Policy.
(a) The United States will cooperate with its Allies to the greatest
degree possible in the development of defense equipment, where such
cooperation is in the overall best interests of the United States. The
objectives of such cooperation will be:
(1) To make the best equipment available to the United States and its
Allies in the most timely manner.
(2) To increase the effectiveness of the scientific and technical
resources of the United States and its Allies, especially by eliminating
unnecessary and wasteful duplication of effort.
(3) To achieve the maximum practicable degree of standardization of
equipment.
(4) To create closer military ties among the Alliance.
(b) The United States will seek to enter in bilateral and
multilateral agreements with its allies that will minimize waste
resulting from purely duplicative R&D programs and, within the criteria
stated in 258.4, encourage the establishment of a mutually acceptable
free, fully competitive market for defense R&D. To this effect, the DoD
will:
(1) Continue to encourage the mutual development of technical
capabilities, in particular through exchanges of significant
information.
(2) Coordinate exploratory, advanced and engineering development
plans to minimize wasteful duplication.
(3) Participate in joint development programs for major systems
meeting harmonized requirements, whenever such programs meet the
objectives and criteria listed in this part.
(4) Consistent with OSD guidance, consider promising foreign as well
as U.S. R&D resources prior to placing research and development
contracts.
(5) Facilitate availability of U.S. R&D resources to foreign
procurement agencies, on terms similar to those governing availability
of these resources to U.S. agencies.
(c) Necessary release of classified information will be in accordance
with the provisions of the National Disclosure Policies.
32 CFR 258.4 Criteria.
(a) The general criteria for such cooperation will be:
(1) Except for MAP ''grant-aid countries,'' no appropriations
available to the DoD will be used to finance the foreign research and
development effort unless the program is aimed at satisfying a United
States military need.
(2) Except for MAP ''grant-aid countries,'' cooperative R&D programs
will be funded by Service RDT&E funds.
(3) U.S. participation in jointly funded development programs will
not be approved unless the United States receives design and production
rights equivalent to those secured from domestic sources.
(b) International balance-of-payments considerations have resulted in
the establishment of certain specific restrictions pertinent to DoD
overseas activities, including those relating to foreign R&D. The
screening and selection of proposed R&D projects must be consistent with
these restrictions. In this connection, preference should be given to
the following types of joint R&D undertakings:
(1) Projects that provide for the investment of foreign funds in U.S.
R&D activities under mutually acceptable terms and conditions.
(2) Projects that offer the U.S. good prospects for the ultimate sale
of the end item or associated components to second and third foreign
parties.
(3) Projects that capitalize on the unique technical state-of-the-art
capabilities existing in a foreign country and offer prospects of saving
the U.S. time and money in the R&D and production field.
(4) Projects that enable the United States to assist and/or
accommodate a foreign second party to accomplish joint R&D objectives
without jeopardizing U.S. aspirations to promote future U.S. sales to
third countries.
32 CFR 258.5 Procedures.
Procedures for accomplishing and administering the cooperative
programs and projects will be integrated into DoD management systems so
that decisions concerning national and international programs will be
made by the same individuals.
32 CFR 258.6 Responsibilities and authorities.
(a) The Military Departments are charged with the primary
responsibility for implementing this part.
(b) The Director of Defense Research and Engineering will be
responsible for monitoring the implementation of this part. He will:
(1) Negotiate basic policy agreements with foreign Ministries of
Defense as appropriate.
(2) Consult with the Joint Chiefs of Staff on the interaction of
research and development and strategic doctrines.
(3) Seek formal statements of military operational requirements from
the Military Departments or the JCS, as appropriate, for research and
development projects and equipment areas which require such statements.
(4) Recommend to the Secretary of Defense policy guidance and
appropriate instructions for the Military Departments to assure
consistency of their actions and conformity with National Policy.
(5) Continually review progress made towards the objectives of this
part.
(6) Request policy guidance and support from Assistance Secretaries
of Defense (ISA) (I&L) (Comp), and the General Counsel on matters within
their respective fields of responsibility.
(c) The Defense Advisor U.S. Mission to the North Atlantic Treaty
Organization will assist the Director of Defense Research and
Engineering, as directed, in supervising the implementation of this
part.
(d) Military Assistance Advisory Groups and Missions will provide
advice and assistance to the Military Departments as requested and
within the limits of availability of assigned resources. Those MAAGs
and Missions within the North Atlantic Treaty Organization areas will
provide advice and assistance to the Defense Advisor U.S. NATO when
requested.
32 CFR 258.6 PART 259 -- UNIFORM RELOCATION ASSISTANCE AND REAL
PROPERTY ACQUISITION FOR FEDERAL AND FEDERALLY ASSISTED PROGRAMS
Authority: Section 213, Uniform Relocation Assistance and Real
Property Acquisition Policies Act of 1970, Pub. L. 91-646, 84 Stat.
1894, (42 U.S.C. 4601) as amended by the Surface Transportation and
Uniform Relocation Assistance Act of 1987, Title IV of Pub. L. 100-17,
101 Stat. 246-256 (42 U.S.C. 4601 note).
32 CFR 259.1 Uniform relocation assistance and real property
acquisition.
Regulations and procedures for complying with the Uniform Relocation
Assistance and Real Property Acquisition Policies Act of 1970, Pub. L.
91-646, 84 Stat. 1894 42 U.S.C. 4601) as amended by the Surface
Transportation and Uniform Relocation Assistance Act of 1987 (Title IV
of Pub. L. 100-17, 101 Stat. 246-256, 42 U.S.C. 4601 note) are set
forth in 49 CFR part 24.
(52 FR 48020, Dec. 17, 1987 and 54 FR 8912, Mar. 2, 1989)
32 CFR 259.1 PART 260 -- VENDING FACILITY PROGRAM FOR THE BLIND ON
FEDERAL PROPERTY
Sec.
260.1 Reissuance and purpose.
260.2 Applicability.
260.3 Policy.
260.4 Responsibilities.
260.5 Arbitration.
260.6 Definitions.
Authority: 49 Stat. 1559, as amended by Act of Aug. 3, 1954, Pub.
L. 83-565, 68 Stat. 663, as further amended by Pub. L. 93-516, 88
Stat. 1622, (20 U.S.C. 107).
Source: 43 FR 25337, June 12, 1978, unless otherwise noted.
32 CFR 260.1 Reissuance and purpose.
This part updates part 260 to implement the provisions of the
Randolph-Sheppard Vending Stand Act and 45 CFR part 13, part 1369, and
establishes within the Department of Defense:
(a) Uniform policies for application of priority accorded the blind
to operate vending facilities;
(b) Requirements for satisfactory vending facility sites in DoD
Component-owned or occupied buildings; and,
(c) Vending machine income-sharing requirements on property under the
jurisdiction of a DoD Component.
32 CFR 260.2 Applicability.
The provisions of this part apply to the office of the Secretary of
Defense, the Military Departments, and the Defense Agencies (hereafter
referred to as ''DoD Components'') in the 50 States, the District of
Columbia, Puerto Rico, American Samoa, Guam, and the Virgin Islands.
32 CFR 260.3 Policy.
In implementation of the Randolph-Sheppard Act, priority on
DoD-controlled property will be extended to the blind as set out below:
(a) The blind will be given a priority in establishment and operation
of vending facilities.
(b) The blind will be given a priority in award of contracts to
operate cafeterias.
(c) In conjunction with acquisition or substantial alteration or
renovation of property, satisfactory sites will be provided for
operation of blind vending facilities.
(d) Certain income from vending machines operated by a DoD Component
either directly or by contract will be given to State licensing
agencies.
(e) DoD components will take necessary action to ensure that, within
their areas of responsibility, the requirements set forth below are
implemented.
(f) The blind have a priority right to operate vending facilities on
DoD-controlled property when the opportunity to operate them becomes
available. The priority extended allows blind licensees to be gainfully
employed. While primary responsibility for carrying out this intent
falls upon the State licensing agency, it is nevertheless a
responsibility of the on-site official to ensure that the operator is in
fact a State licensed blind person and that sighted employees or
assistants are utilized only to the extent reasonably necessary.
(1) This priority will not be accorded when the on-site official
determines, after conferring with the Head of the DoD component, that
the interest of the United States would be adversely affected if the
priority were accorded.
(2) Any determination that according the priority would be adverse to
interests of the United States must be fully justified in writing
through the head of the DoD component concerned (who will consult with
the Assistant Secretary of Defense (Manpower, Reserve Affairs and
Logistics)) (ASD(MRA&L)). The justification then shall be sent to the
Secretary, Department of Health, Education, and Welfare (HEW), who has
authority to determine whether the failure to accord the priority is
justified by the circumstances. This determination by the Secretary,
HEW must be published in the Federal Register and is binding upon the
DoD component.
(3) Applications for permits by the State licensing agency to operate
vending facilities (except cafeterias) on DoD controlled property must
be submitted in writing to the head of the DoD component concerned,
through the on-site official. When an application is not approved, the
head of the DoD component will advise the State licensing agency in
writing and will indicate the reasons for the disapproval. When issued,
permits will describe the location of the vending facility and will be
subject to the following requirements:
(i) The permit will be issued in the name of the State licensing
agency.
(ii) The permit will be issued for an indefinite period of time
subject to suspension or termination upon failure to comply with agreed
upon terms; and subject to termination by either party upon 60 days
written notice to the other party, in cases of
(A) Inactivation of the installation or activity,
(B) Loss of use of a building or other facility housing the vending
facility,
(C) Change in the DoD component's requirements for service, or
(D) Inability of the State licensing agency to continue to operate
the vending facility.
(iii) The permit will provide that:
(A) No charge will be made by the DoD component to the State
licensing agency for normal repair and maintenance of the building, or
for cleaning areas adjacent to the designated vending facility
boundaries, or for trash removal from a designated collection point.
(B) The State licensing agency will be responsible for cleaning and
maintaining the appearance of and for the security of the vending
facility within the designated boundaries of such facility and for all
costs of every kind in conjunction with vending facility equipment,
merchandise and other products to be sold, except as provided in
paragraph (f)(3)(iii)(E) of this section. Neither party will be
responsible for loss or damage to the other's property, unless
proximately caused by its acts or omissions. The State licensing agency
will also be responsible for the acts or omissions of the blind vendor,
his employees or agents.
(C) Articles sold at such vending facilities may consist of
newspapers, periodicals, publications, confections, tobacco products,
foods, beverages, chances for any lottery authorized by State law and
conducted by an agency of a State within such State, and other articles
or services traditionally found in blind operated vending facilities
operated under the Randolph-Sheppard Act as determined by the State
licensing agency in consultation with the on-site official, to be
suitable for a particular location (articles and services may be
dispensed automatically or manually);
(D) Vending facilities will be operated in compliance with applicable
health, sanitation and building codes, ordinances, and regulations;
(E) Installation, modification, relocation, removal, and renovation
of vending facilities will be subject to the prior approval of the
on-site official and the State licensing agency. Costs of installation,
modification, removal, relocation or renovation will be paid by the
initiating party. In any case of suspension or termination of a permit
to operate a vending facility on the basis of noncompliance by either
party, the costs of removal from the building will be borne by the
noncomplying party.
(iv) The permit will also contain appropriate requirements for
reimbursement or direct payment for support services such as utilities
and telephone service.
(v) In the event the blind licensee fails to provide satisfactory
service or otherwise fails to comply with the requirements of the permit
issued to the State licensing agency, the on-site official will, after
coordinating with the Head of the DoD Component, notify the State
licensing agency of this deficiency in writing and request corrective
action within a specified reasonable time. The notice will indicate
that failure to correct the deficiency will result in temporary
suspension or termination of the permit, as appropriate. Suspension or
termination action will be taken by the Head of the DoD Component
concerned after consultation with the ASD (MRA&L).
(g) The blind have a priority right to operate cafeterias on
DoD-controlled property, as set out in paragraph (g) (1) or (2) of this
section, when the cafeteria operation involved is contracted.
(1) Procuring activity solicitations, when issued, will establish
basic requirements and the criteria for judging proposals. One copy of
each solicitation will be provided to the State licensing agency for the
blind. The criteria upon which proposals will be evaluated may include
factors such as sanitation practices, personnel, staffing, menu pricing
and portion sizes, variety, budget and accounting practices, fees, and
other relevant considerations.
(i) If the State licensing agency submits a proposal and it is not
within the competitive range established by the contracting officer,
award may be made to another offeror following normal procurement
procedures, but only after the on-site official confers with the Head of
the DoD Component.
(ii) If the State licensing agency submits a proposal and it is
within the competitive range established by the contracting officer, the
contract will be awarded to the State licensing agency except as
provided in paragraph (g)(1)(iii) of this section.
(iii) The contracting officer may award to other than the State
licensing agency when the on-site official determines that award to the
State licensing agency would adversely affect the interests of the
United States and the Secretary, HEW, approves the determination
(processing will be in accordance with paragraph (f)(2) of this
section), or when the on-site official determines, after conferring with
the Head of the DoD Component, and the Secretary, HEW, agrees, that the
blind vendor does not have the capacity to operate a cafeteria in such a
manner as to provide food service at a comparable cost and of comparable
high quality as that available from other providers of cafeteria
services.
(2) Direct negotiations may be undertaken with State licensing
agencies whenever the on-site official, with concurrence of the Head of
the DoD Component, has determined that State licensing agency, through
its blind licensee, can provide the cafeteria services required at a
reasonable cost, with food of a high quality comparable to that
available from other providers of cafeteria services. In the event
direct negotiations fail to result in a contract with the State
licensing agency, the procedures prescribed in paragraph (g)(1) of this
section, will be followed.
(3) The operation of a cafeteria by a blind vendor will be governed
by contractual agreement, not by a permit. Normal contract
administration procedures will apply, except that termination actions
will not be taken without prior coordination with the Head of the DoD
Component concerned.
(4) All contracts for the operation of cafeterias on DoD-controlled
property with other than State licensing agencies will, upon expiration,
be processed under the above paragraphs unless the State licensing
agency informs the on-site official that it is not prepared to exercise
its priority at that time.
(h) Any DoD Component acquired (purchased, rented, leased,
constructed), or substantially altered or renovated building is required
to have one or more satisfactory sites (as defined in 260.6) for a
blind-operated vending facility, except as provided in paragraph (h)(1)
of this section.
(1) A determination that a building contains a satisfactory site or
sites is presumed made if the State licensing agency and the on-site
official consult and agree that the site or sites provided are
satisfactory.
(i) DoD Components will notify by certified or registered mail,
return receipt requested, the appropriate State licensing agency of
buildings to be acquired or substantially altered or renovated. This
notification will be provided at least 60 days in advance of the
intended aquisition date or the initiation of actual construction,
alteration or renovation. As a practical matter, the State licensing
agency should be contacted early in the planning or design stage of a
project. (This notice requirement does not apply in cases as described
in paragraph (h)(1)(i)(C) of this section.) This notification will:
(A) Indicate that a satisfactory site or sites for the location and
operation of a blind vending facility is included in the plans for the
building,
(B) Forward a copy of a single line drawing indicating the proposed
location of such site or sites,
(C) Assure the State licensing agency that, subject to the approval
of the DoD Component involved, it will be offered the opportunity to
select the location and type of vending facility to be operated by a
blind vendor prior to completion of the final space layout of the
building, and
(D) Also indicate that an unexplained response indicating that the
State licensing agency does not desire to establish and operate a
vending facility, or the absence of a response within 30 days will be
construed by the DoD Component concerned as a determination by the State
licensing agency that the number of persons using the property is or
will be insufficient to support a vending facility.
(ii) The State licensing agency must respond within 30 days
acknowledging receipt of the correspondence from the DoD Component and
indicating whether it is interested in establishing a vending facility,
and if interested, indicating its agreement or alternate selection of a
location and its selection of type of vending facility. A copy of the
written notice to the State licensing agency and the State licensing
agency's response, if any, will be provided to the Secretary, HEW.
(iii) If the State licensing agency responds indicating that it does
not desire to establish and operate a vending facility and sets forth
any specific basis other than the insufficiency of persons to support a
vending facility, then a satisfactory site which meets anticipated needs
of the DoD Component will be incorporated. Each such satisfactory site
will meet or exceed the requirements defined in 260.6.
(iv) If an unexplained response indicating that the State licensing
agency does not desire to establish and operate a vending facility is
received, or if no response is received within the 30 day period, the
on-site official will, through the Head of the DoD Component, notify the
Secretary, HEW, that the State licensing agency's response or failure to
respond has been construed as a determination by the State licensing
agency that the number of persons using the property is or will be
insufficient to support a vending facility and that a satisfactory site
to be operated under the auspices of the State licensing agency will not
be incorporated, unless directed by the Secretary, HEW. This
notification will also be provided if the State licensing agency
responds and affirmatively indicates that it has made such a
determination.
(2) The Secretary, HEW, has determined that the requirement to
provide a satisfactory site does not apply:
(i) When fewer than 100 Federal employees (as defined in 260.6) will
be located in the building during normal working hours; or
(ii) When the building contains less than 15,000 square feet to be
used for Federal Government purposes in the case of a building in which
services are to be provided to the general public.
(3) The provisions of paragraph (h)(2) of this section, do not
preclude arrangements under which vending facilities to be operated by
blind vendors may be established in buildings of a size or with an
employee population less than that specified. For example, if a
building is to be constructed which would contain only 80 Federal
employees, upon agreement of the on-site official and the State
licensing agency, the DoD Component concerned may determine to provide a
satisfactory site in which the blind have agreed to operate a vending
facility.
(4) When a DoD Component is leasing all or part of a privately owned
building in which the lessor or any of its tenants have an existing
restaurant or other food facility in a part of the building not covered
by the lease and operation of a vending facility would be in substantial
direct competition with such restaurant or other food operation, the
requirement to provide a satisfactory site does not apply.
(i) Effective January 2, 1975, vending machine income generated by
DoD will be shared with State licensing agencies for the blind and/or
blind vendors as set forth below. The on-site official is responsible
for the collection of, and accounting for, such vending machine income
(as defined in 260.6) and for otherwise ensuring compliance with the
requirements of this paragraph.
(1) The vending machine income-sharing requirements are as follows:
(i) One hundred percent (100%) of the vending machine income from
vending machines in direct competition with blind-operated vending
facilities will be provided the State licensing agency.
(ii) Fifty percent (50%) of the vending machine income from vending
machines not in direct competition with blind-operated vending
facilities will be provided the State licensing agency.
(iii) Thirty percent (30%) of the vending machine income from vending
machines not in direct competition with blind-operated vending
facilities and located where at least 50 percent of the total hours
worked on the premises occurs during other than normal working hours (as
defined in 260.6) will be provided the State licensing agency.
(2) The determination of whether a vending machine is in direct
competition with the blind-operated vending facility is the
responsibility of the on-site official subject to the concurrence of the
State licensing agency.
(3) These vending machine income-sharing requirements do not apply
to:
(i) Income from vending machines operated by or for the military
exchanges or ships' stores systems; or
(ii) Income from vending machines, not in direct competition with a
blind-operated vending facility, at any individual location,
installation, or facility (as defined in 260.6) where the total of the
vending machine income (as defined in 260.6) from all such machines at
such location, installation, or facility does not exceed $3,000
annually.
(4) The payment to State licensing agencies under these
income-sharing requirements must be made quarterly on a calendar year
basis. The first payment of income, however, will be made no later than
April 30, 1978. This first payment will be for the period March 23,
1977, through the end of calendar year 1977. It will also include
amounts collected and set aside during the period January 2, 1975,
through March 22, 1977, for distribution to State licensing agencies.
DoD Component activities which did not set aside vending machine income
for distribution during the period January 2, 1975, through March 22,
1977, will consider taking steps to determine the amounts of such
vending machine income which should have been withheld during that
period and withhold such amounts from future income for distribution.
All subsequent quarterly payments will be made within 60 days after
expiration of the applicable calendar quarter.
32 CFR 260.4 Responsibilities.
(a) The Assistant Secretary of Defense (Manpower, Reserve Affairs and
Logistics) (ASD (MRA&L)) will monitor the overall DoD program and
consult with DoD Components on all determinations (1) that the granting
of a priority to the blind would be adverse to the interests of the
United States, and (2) to suspend or terminate a permit to operate a
vending facility.
(b) The Head of the DoD Component concerned, in monitoring its
program shall:
(1) Approve/disapprove State licensing agency applications for
permits and the provision of satisfactory sites;
(2) Consult with the on-site official on determinations that granting
a priority to the blind would be adverse to the interests of the United
States and on termination of contracts to operate a cafeteria; and
(3) Where circumstances warrant, suspend or terminate a permit to
operate a vending facility.
(c) The on-site official will be the point of contact with State
licensing agencies and will:
(1) Consult with State licensing agencies on articles and services to
be provided;
(2) Determine, when appropriate, that granting a priority to the
blind would be adverse to the interests of the United States and justify
this determination to the Secretary, Health, Education, and Welfare
through the Head of the DoD Component;
(3) Notify State licensing agencies of acquisition or substantial
alteration or renovation of property;
(4) Ensure that operators are in fact State licensed blind persons
and that sighted employees and assistants are utilized only to the
extent reasonably necessary; and
(5) Negotiate with State licensing agencies on other matters
indicated in 260.3.
32 CFR 260.5 Arbitration.
Whenever any State licensing agency for the blind determines that any
activity of the Department of Defense is failing to comply with the
provisions of the Act and all informal attempts to resolve the issues
have been unsuccessful, the State licensing agency may file a complaint
with the Secretary, HEW, who will convene an ad hoc arbitration panel in
accordance with the provisions of 45 CFR 1369.37.
32 CFR 260.6 Definitions.
(a) Blind licensee. A blind person licensed by the State licensing
agency to operate a vending facility on Federal or other property.
(b) Cafeteria. A food dispensing facility which provides a broad
variety of prepared foods and beverages (including hot meals) primarily
through the use of a serving line where the customer serves or selects
for himself from displayed selections. A cafeteria may be fully
automatic, self-service, or have limited waiter or waitress service.
Table or booth seating facilities are always provided. DoD Component
food dispensing facilities which conduct cafeteria-type operations
during part of their normal operating day and full table-service
operations during the remainder of their normal operating day are not
''cafeterias'' if they engage primarily in full table-service
operations.
(c) Direct competition. The presence and operation of a DoD
Component vending machine or a vending facility on the same premises as
a vending facility operated by a blind vender. Vending machines or
vending facilities operated in areas serving employees, the majority of
whom normally do not have access (in terms of uninterrupted ease of
approach and the amount of time required to patronize the vending
facility) to the vending facility operated by a blind vendor, will not
be considered to be indirect competition with that vending facility.
(d) Federal property. Any building, land, or other real property
owned, leased, or occupied by any department, agency, or instrumentality
of the United States.
(e) Head of the DoD component. Deputy Secretary of Defense,
Secretaries of the Military Departments and the Directors of Defense
Agencies or their designees. For the Pentagon Building only, the Deputy
Assistant Secretary of Defense (Administration) is designated as the
''Head of the DoD Component.''
(f) Individual location, installation, or facility. A single
building or a self-contained group of buildings. A self-contained group
of buildings means two or more buildings which are in close proximity to
each other, and between which a majority of the Federal employees
working in such buildings regularly move from one building to another in
the normal course of their official business during a normal working
day.
(g) Federal employees. Civilian appropriated fund and
nonappropriated fund employees of the United States.
(h) License. A written instrument issued by a State licensing agency
to a blind person, authorizing that person to operate a vending facility
on Federal or other property.
(i) Normal working hours. An 8-hour work period between the hours of
0800 and 1800 hours, Monday through Friday.
(j) On-site official. The individual in command of an installation
or separate facility or location. For the Pentagon Building only, the
chairman of the Department of Defense Concession Committee is designated
as the on-site official.
(k) Permit. The official written approval to establish and operate a
vending facility requested by and issued to a State licensing agency by
a DoD Component.
(l) Satisfactory site. An area fully accessible to vending facility
patrons and having sufficient electrical, plumbing, heating, and
ventilation outlets for the location of a vending facility in accordance
with applicable health and building requirements. Effective March 23,
1977, a ''satisfactory site'' will have a minimum of 250 square feet
available for sale of items and for storage of articles necessary for
the operation of a vending facility, unless the Head of the DoD
Component and the State licensing agency agree that a smaller or larger
facility is appropriate.
(m) State. The 50 States, District of Columbia, Puerto Rico,
American Samoa, Guam, and the Virgin Islands.
(n) State licensing agency. The State agency designated by the
Department of Health, Education, and Welfare, Commissioner of the
Rehabilitation Services Administration to issue licenses to blind
persons for the operation of vending facilities on Federal and other
property.
(o) Substantial alteration or renovation. A permanent material
change in the floor area of a building which would render it appropriate
for the location and operation of a vending facility by a blind vendor.
(p) Vending facility. Automatic vending machines, cafeterias, snack
bars, cart services, shelters, and counters, which sell such items as
newspapers, periodicals, confections, tobacco products, foods,
beverages, and other articles and services to be dispensed automatically
or manually and which are prepared on or off the premises in accordance
with applicable health laws and further including the vending or
exchange of chances for any lottery authorized by State law and
conducted by an agency of a State within such State. ''Vending
facility'' does not include food dispensing facilities (e.g., food
operations of open messes/military clubs) which engage primarily in full
table-service operations.
(q) Vending machine. For the purpose of assigning vending machine
income, means a coin or currency operated machine which dispenses
articles or services, except that machines providing services of a
recreational nature, commonly referred to as amusement machines (e.g.,
jukeboxes, pinball machines, electronic game machines, pool tables,
shuffle boards, etc.) and telephones, are not considered to be vending
machines.
(r) Vending machine income. DoD Component receipts from DoD
Component vending machine operations on Federal property, after
deducting all applicable costs incurred (costs of goods, service,
maintenance, repair, cleaning, depreciation, supervisory and
administrative personnel, normal accounting, accounting for
income-sharing, and so forth) where the machines are operated by any DoD
Component activity; or commissions received (less applicable DoD
Component costs) by any DoD Component activity from a commercial vending
firm which provides vending machines on Federal property for, or with
the approval of, any DoD Component activity.
(s) Vendor. A blind licensee who is operating a vending facility on
Federal or other property.
32 CFR 260.6 PART 261 -- ARMED SERVICES MILITARY CLUB AND PACKAGE
STORES
Sec.
261.1 Purpose.
261.2 Applicability.
261.3 Policy.
261.4 Procedures.
261.5 Responsibilities.
261.6 Information requirements.
Authority: 50 U.S.C. Appendix, Section 473, section 6.
Source: 47 FR 34533, Aug. 10, 1982, unless otherwise noted.
32 CFR 261.1 Purpose.
This part incorporates DoD Directive 1330.15, ''Alcoholic Beverage
Control,'' May 4, 1964, (which is hereby cancelled), provides policy and
assigns responsibilities for the operation of military clubs and package
stores of the Army, Navy, Air Force, and the Marine Corps; and
authorizes the development, publication, and maintenance of DoD
1015.3-R, ''Armed Services and Military Club and Package Store
Regulations.''
32 CFR 261.2 Applicability.
The provisions of this part apply to the Office of the Secretary of
Defense and the Military Departments, including DoD activities with
clubs and package stores designated as a service (executive agent)
responsibility, and Defense Agencies (hereinafter referred to as ''DoD
Components''). The term ''Military Services,'' as used herein, refers
to the Army, Navy, Air Force, and Marine Corps.
32 CFR 261.3 Policy.
It is the policy of the Department of Defense that Armed Services
military clubs and package stores be established as an essential part of
the DoD Morale, Welfare and Recreation (MWR) program. In addition, the
Department of Defense shall establish controls and procedures governing
the sale of alcoholic beverages in these clubs and package stores.
Affirmative measures shall be taken to provide character guidance,
emphasizing the harmful effects of the immoderate use of alcohol.
Chaplains and local community and national organizations shall assist in
this effort. Military clubs shall provide dining, essential feeding
(where required), and social programs, services, and facilities to
eligible patrons. Package stores shall provide the sale of alcoholic
beverages purchased for off-premise consumption by authorized patrons,
and also provide a resale source of alcoholic beverages for all other
authorized activities under 50 U.S.C., Appendix, Section 473. The
establishment, management, and control of club and package store
nonappropriated fund instrumentalities (NAFIs) shall be in accordance
with DoD Directive 1015.1, ''Establishment, Management, and Control of
Nonappropriated Fund Instrumentalities (NAFIs),'' August 19, 1981.
32 CFR 261.4 Procedures.
Procedures and guidance are prescribed in DoD 1015.3-R, ''Armed
Services Military Club and Package Store Regulations.'' Chapter 4,
section C., of this guidance reads as follows:
''C. COOPERATION. The Department of Defense shall cooperate with
local, state, and federal officials to the degree that their duties
relate to the provisions of this chapter. However, the purchase of all
alcoholic beverages for resale at any camp, post, station, base, or
other DoD installation within the United States shall be in such a
manner and under such conditions as shall obtain for the government the
most advantageous contract, price and other considered factors. These
other factors shall not be construed as meaning any submission to state
control, nor shall cooperation be construed or represented as an
admission of any legal obligation to submit to state control, pay state
or local taxes, or purchase alcoholic beverages within geographical
boundaries or at prices or from suppliers prescribed by any state.''
32 CFR 261.5 Responsibilities.
(a) The Assistant Secretary of Defense (Manpower, Reserve Affairs,
and Logistics) (ASD(MRA&AL)) shall:
(1) Provide guidance and direction in carrying out the provisions of
this part; and shall establish, maintain, and disestablish clubs and
package stores in accordance with DoD Directive 1015.1.
(2) Delegate executive agent responsibilities consistent with DoD
Directive 1015.1.
(3) Develop, publish, and maintain DoD 1015.3-R, consistent with DoD
5025.1-M.
(b) The Secretaries of the Military Departments shall:
(1) Act as executive agents for the administration of clubs and
package stores, consistent with DoD Directive 1015.1.
(2) Establish a Fund Council whose composition and membership are
provided at Chapter 1 of DoD 1015.3-R.
(c) The Director of Defense Agencies shall coordinate with the
Military Service concerned in the preparation of a memorandum of
understanding detailing Defense Agency responsibilities for the
operation of clubs and package stores under the direction, regulation,
and administration of the Military Service concerned.
32 CFR 261.6 Information requirements.
(a) This part establishes a reporting requirement that is prescribed
in Chapter 4 of DoD 1015.3-R for a triennial review of each package
store.
(b) Report Control Symbol DD-M(TRI)1593 has been assigned to this
information requirement.
32 CFR 261.6 PART 263 -- TRAFFIC AND VEHICLE CONTROL ON CERTAIN DEFENSE
MAPPING AGENCY SITES
Sec.
263.1 Definitions.
263.2 Applicability.
263.3 Compliance.
263.4 Registration of vehicles.
263.5 Inspection of license and registration.
263.6 Speeding or reckless driving.
263.7 Emergency vehicle.
263.8 Signs.
263.9 Right-of-way in crosswalks.
263.10 Parking.
263.11 Penalties.
Authority: 63 Stat. 377 as amended, 18 U.S.C. 13, 40 U.S.C. 318 a
through d, 50 U.S.C. 797, Delegations, 43 FR 56895, 46 FR 58306.
Source: 48 FR 34952, Aug. 2, 1983, unless otherwise noted.
32 CFR 263.1 Definitions.
As used in this part:
(a) Brookmont site means those grounds and facilities of the Defense
Mapping Agency Hydrographic/Topographic Center (DMAHTC) and the Defense
Mapping Agency Office of Distribution Services (DMAODS) located in
Montgomery County, Maryland, over which the Federal Government has
acquired exclusive or concurrent jurisdiction.
(b) Uniformed guard means a designated DMA government guard appointed
to enforce vehicle and traffic regulations by the Director, DMAHTC.
32 CFR 263.2 Applicability.
The provisions of this regulation apply to all areas in the Brookmont
site and to all persons on or within the site. They supplement those
penal provisions of Title 18, U.S. Code, relating to crimes and criminal
procedures, which apply without regard to the place of the offense and
those provisions of state law which are made federal criminal offenses
by virtue of the Assimilative Crimes Act, 18 U.S.C. 13.
32 CFR 263.3 Compliance.
(a) All persons entering the site shall comply with this regulation;
with all official signs; and with the lawful directions or orders of a
uniformed guard in connection with the control or regulation of traffic,
parking or other conduct at the Brookmont site.
(b) At the request of a uniformed guard, a person must provide
identification by exhibiting satisfactory credentials (such as driver's
license).
(c) No person shall knowingly give any false or fictitious report
concerning an accident or violation of this regulation to any person
properly investigating an accident or alleged violation.
(d) All incidents resulting in injury to persons or damage to
property must be reported to the Security Office immediately.
(e) No person involved in an accident shall leave the scene of that
accident without first giving aid or assistance to the injured and
making his or her identity known.
32 CFR 263.4 Registration of vehicles.
(a) Newly assigned or employed individuals who intend to operate a
privately-owned vehicle at the site shall register it with the Security
Police Division within 24 hours after entry on duty.
(b) Temporary registration for a specified period of time will be
permitted for temporarily hired, detailed, or assigned personnel;
consultants; contractors; visiting dignitaries, etc.
32 CFR 263.5 Inspection of license and registration.
No person may operate any motor vehicle on the site without a valid,
current operator's license, nor may any person, if operating a motor
vehicle on the site, refuse to exhibit for inspection, upon request of a
uniformed guard, his operator's license or proof of registration of the
vehicle under his control at time of operation.
32 CFR 263.6 Speeding or reckless driving.
(a) No person shall drive a motor vehicle on the site at a speed
greater than or in a manner other that what is reasonable and prudent
for the particular location, given the conditions of traffic, weather,
and road surface and having regard to the actual and potential hazards
existing.
(b) Except when a special hazard exists that requires lower speed,
the speed limit on the site is 15 m.p.h., unless another speed limit has
been duly posted, and no person shall drive a motor vehicle on the site
in excess of the speed limit.
32 CFR 263.7 Emergency vehicles.
No person shall fail or refuse to yield the right-of-way to an
emergency vehicle when operating with siren or flashing lights.
32 CFR 263.8 Signs.
Every driver shall comply with all posted traffic signs.
32 CFR 263.9 Right-of-way in crosswalks.
No person shall fail or refuse to yield the right-of-way to a
pedestrian or bicyclist crossing a street in the marked crosswalk.
32 CFR 263.10 Parking.
(a) No person, unless otherwise authorized by a posted traffic sign
or directed by a uniformed guard, shall stand or park a motor vehicle:
(1) On a sidewalk, lawn, plants or shrubs.
(2) Within an intersection or within a crosswalk.
(3) Within 15 feet of a fire hydrant, 5 feet of a driveway or 30 feet
of a stop sign or traffic control device.
(4) At any place which would result in the vehicle being double
parked.
(5) At curbs painted yellow.
(6) In a direction facing on-coming traffic.
(7) In a manner which would obstruct traffic.
(8) In a parking space marked as not intended for his or her use.
(9) Where directed not to do so by a uniformed guard.
(10) Except in an area specifically designated for parking or
standing.
(11) Except within a single space marked for such purposes, when
parking or standing in an area with marked spaces.
(12) At any place in violation of any posted sign.
(13) In excess of 24 hours, unless permission has been granted by the
Security Office.
(b) No person shall park bicycles, motorbikes or similar vehicles in
areas not designated for that purpose.
(c) Visitors shall park in areas identified for that purpose by
posted signs and shall register their vehicles at the front desk of
Erskine Hall, Ruth Building or Fremont Building.
(d) No person, except visitors, shall park a motor vehicle on the
Brookmont site without having a valid parking permit displayed on such
motor vehicle in compliance with the instructions of the issuing
authority.
32 CFR 263.11 Penalties.
(a) Except with respect to the laws of the State of Maryland
assimilated under 18 U.S.C. 13, whoever shall be found guilty of
violating these regulations is subject to a fine of not more than $50 or
imprisonment of not more than 30 days, or both in accordance with 40
U.S.C. 318c. Except as expressly provided in this part, nothing
contained in these regulations shall be construed to abrogate any other
Federal laws or regulations, or any State and local laws and regulations
applicable to the area in which the site is situated.
(b) In addition to the penalties described in subsection (a) of this
section, parking privileges may be revoked by the issuing authority for
violations of any of the provisions of this regulation.
(c) Any motor vehicle that is parked in violation of this regulation
may be towed away or otherwise moved if a determination is made by a
uniformed guard that it is a nuisance or hazard. A fee for the moving
service and for the storage of the vehicle, if any, may be charged, and
the vehicle is subject to a lien for that charge.
32 CFR 263.11 PART 264 -- INTERNATIONAL INTERCHANGE OF PATENT RIGHTS
AND TECHNICAL INFORMATION
Sec.
264.1 Purpose and cancellation.
264.2 Scope.
264.3 Background.
264.4 Policy.
264.5 Claims for compensation.
Authority: Secs. 601, 606, 75 Stat. 438, 440; 22 U.S.C. 2351,
2356.
Source: 25 FR 14456, Dec. 31, 1960, unless otherwise noted.
32 CFR 264.1 Purpose and cancellation.
The purpose of this part is to restate Department of Defense policy
concerning the international interchange for defense purposes of patent
rights and technical information. DoD Directive 2000.3, ''Technical
Property Interchange Agreements'', dated April 15, 1954, is hereby
superseded and cancelled. Delegation published at 19 FR 2523 is
cancelled.
32 CFR 264.2 Scope.
This part applies to the activities of all Department of Defense
personnel involved in the international interchange for defense purposes
of patent rights and technical information. The policy prescribed
herein applies to unclassified as well as classified information, owned
by the United States Government or privately owned, but does not apply
to patents, patent applications, and technical information in the field
of atomic energy.
32 CFR 264.3 Background.
(a) Pursuant to the provisions of the Mutual Security Act of 1954, as
amended, and of predecessor legislation superseded by that Act, the
United States has entered into agreements for the Interchange of Patent
Rights and Technical Information for Defense Purposes with Australia,
Belgium, Denmark, France, the Federal Republic of Germany, Greece,
Italy, Japan, The Netherlands, Norway, Portugal, Spain, Turkey, and the
United Kingdom. The agreements, which are published in the Treaties and
Other International Act Series, are basically similar in substance but
are not identical. Under the agreements:
(1) Each government undertakes to facilitate the interchange of
privately owned patent rights and of technical information through the
medium of commercial relationships, to the extent permitted by the laws
and security requirements of the contracting governments.
(2) When technical information is supplied by one government to the
other for information only, the recipient government undertakes to treat
the information as disclosed in confidence and to use its best endeavors
to ensure that the information is not dealt with in any manner likely to
prejudice the rights of the owner to obtain patent or similar statutory
protection.
(3) When technical information supplied by one government to the
other discloses an invention which is the subject of a patent or patent
application held in secrecy in the country of origin, the recipient
government undertakes to accord similar treatment to a corresponding
patent application filed in that country.
(4) When privately owned technical information is released by one
government to the other and the recipient government uses or disclosed
the information, the owner shall, subject to the extent that the owner
may be entitled thereto under the applicable law and subject to
arrangements between the contracting governments regarding the
assumption as between them of liability for compensation, receive
prompt, just and effective compensation for such use and for any damages
resulting from such use or disclosure.
(5) Each government is entitled to use for defense purposes without
cost any invention which the other government (including government
corporations) owns or to which it has the right to grant a license to
use, except to the extent that there may be liability to any private
owner of an interest in the invention.
(b) Each of these agreements establishes a Technical Property
Committee consisting of a representative of each contracting government,
whose function it is to consider and make recommendations to the
contracting governments on all matters relating to the subject of the
agreement and to assist where appropriate in the negotiation of
commercial or other agreements for the use of patent rights and
technical information in the military assistance program.
(1) The Patent Advisor assigned to the Defense Staff of the U.S.
Mission to the North Atlantic Treaty Organization and European Regional
Organizations (USRO), Paris, France, is the United States representative
to the Technical Property Committees in Europe. The J-4, Hq. United
States Forces Japan, Tokyo, Japan is the United States representative to
the United States-Japanese Technical Property Committee. A member of
the Office of Assistant General Counsel, International Affairs, Office
of the Secretary of Defense, is the United States representative to the
United States-Australian Technical Property Committee. The appropriate
representative should be consulted on all problems dealing with patent
rights, technical information and related matters under the agreements.
(2) These representatives receive policy guidance from the Department
of Defense. The Assistant Secretary of Defense for International
Security Affairs is responsible within the Department of Defense for
transmitting such policy guidance through appropriate channels.
Guidance transmitted for the United States representative in Europe
shall be forwarded to the Defense Advisor, USRO; guidance transmitted
for the United States representative in Japan shall be transmitted to
the Commanding General, United States Forces Japan.
(c) Department of Defense problems arising in the United States in
connection with the interchange of patent rights and privately owned
technical information should be referred to the patent activity of the
appropriate Military Department.
(25 FR 14456, Dec. 31, 1960, as amended at 26 FR 1993, Mar. 8, 1961;
26 FR 6479, July 19, 1961)
32 CFR 264.4 Policy.
It is the policy of the Department of Defense to encourage and
facilitate international interchanges of patent rights and technical
information to further the common defense of the United States and
friendly nations. In achieving this purpose, the following principles
shall be observed.
(a) Classified military information shall be released only through
Government channels and only when consistent with the National
Disclosure Policy, or when approved as an exception to that policy.
(b) In accordance with the Congressional policy prescribed by section
413(a) of the Mutual Security Act of 1954, as amended (22 U.S.C.
1933(a)), and pursuant to the bilateral agreements referred to in
264.3, commercial relationships shall be utilized whenever appropriate
and to the maximum extent feasible in order to encourage the
participation of private enterprise in the Mutual Security Program, to
relieve the Department of Defense of administrative burdens, and to
reduce the costs to the United States of such interchanges.
(c) In accordance with section 414 of the Mutual Security Act of
1954, as amended (22 U.S.C. 1934), the utilization of commercial
channels for the exportation of unclassified privately owned technical
information relating to articles designated as arms, ammunition, and
implements of war in the United States Munitions List shall be subject
to the regulations issued by the Secretary of State pursuant to section
414 of the Mutual Security Act of 1954, as amended (22 U.S.C. 1934)
(Title 22 CFR, chapter I, subchapter M). (The term ''technical data''
is used in those regulations to describe technical information relating
to such articles).
(d) Technical information which might be privately owned may be
released under paragraph (e) (1) or (2) of this section by Department of
Defense Agencies to foreign governments if any one of the following
conditions are met:
(1) The owner expressly consents to the proposed release;
(2) The United States, by contract or otherwise, has acquired or is
entitled to acquire, the information under circumstances which permit
the proposed release; or
(3) The Secretary of the Military Department concerned, or his
designee, determines, under the authority of the Mutual Security Act of
1954, as amended, that:
(i) The exigencies of the requirement for release to further the
common defense do not allow sufficient time to obtain the consent of the
owner; or
(ii) The owner refuses consent and the best interests of the United
States would be served by the release.
(e) In accordance with the provisions of the agreements referred to
in 264.3, the release to foreign governments by Department of Defense
agencies of technical information which might be privately owned shall
normally be in accord with the following two step procedure:
(1) Release for information only.
(2) Permission for manufacture, or use, for defense purposes.
(f)(1) All technical information, whether privately owned or
government owned, released to a foreign government by Department of
Defense Agencies shall be marked with the following restrictions:
1. This information is accepted for defense purposes only.
2. This information shall be accorded substantially the same degree
of security protection as such information has in the United States.
3. This information shall not be disclosed to another country without
the consent of the United States.
(2) When technical information which might be privately owned is
released for information only, the restrictive marking shall also
contain these additional notations:
4. This information is accepted upon the understanding that it might
be privately owned.
5. This information is accepted solely for the purpose of information
and shall accordingly be treated as disclosed in confidence. The
recipient Government shall use its best endeavors to ensure that the
information is not dealt with in any manner likely to prejudice the
rights of the private owner thereof to obtain patent or other like
statutory protection therefor.
6. The recipient Government shall obtain the consent of the United
States if it desires that this information be made available for
manufacture, or use, for defense purposes.
(g) When technical information which might be privately owned is
released under the procedures set forth herein, the owner, if known,
shall be furnished:
(1) Notice of the release;
(2) The identity of the recipient, if not contrary to security
regulations;
(3) Notice that the recipient has been advised that the information
might be privately owned; and
(4) Notice of the restrictions to which the release is subject.
32 CFR 264.5 Claims for compensation.
(a) With respect to interchanges in furtherance of the purposes of
the Mutual Security Act of 1954, as amended, section 506 of the Mutual
Security Act of 1954, as amended (22 U.S.C. 1758) provides the exclusive
remedy for compensation for infringement within the United States of a
patent issued by the United States and for damage resulting from the
disclosure by the United States of privately owned technical
information.
(b) The Secretaries of the Military Departments are hereby authorized
to exercise the power and authority conferred by section 506 of the
Mutual Security Act of 1954, as amended (22 U.S.C. 1758) to enter into
agreements with claimants in full settlement and compromise of any claim
against the United States thereunder, subject to such rules and
regulations, if any, as the Secretary of Defense may promulgate from
time to time. The Secretaries of the Military Departments are
authorized to make successive redelegations in writing of this power and
authority to any officer, employee, board or agent of their respective
departments.
(c) Funds appropriated for military assistance pursuant to the Mutual
Security Act of 1954, as amended, which have been made available to a
Military Department may be used to settle claims under section 506 of
the Mutual Security Act of 1954, as amended (22 U.S.C. 1758). In
addition, in those cases where the provisions of 10 U.S.C. 2386 are
applicable, funds appropriated for a Military Department available for
making or procuring supplies may be used to settle such claims.
32 CFR 264.5 PART 266 -- AUDITS OF STATE AND LOCAL GOVERNMENTS,
INSTITUTIONS OF HIGHER EDUCATION, AND OTHER NONPROFIT INSTITUTIONS
Sec.
266.1 Purpose.
266.2 Applicability.
266.3 Definitions.
266.4 Policy.
266.5 Responsibilities.
266.6 Procedures.
Authority: 10 U.S.C. 140.
Source: 56 FR 36003, July 30, 1991, unless otherwise noted.
32 CFR 266.1 Purpose.
This part:
(a) Updates policy, responsibilities, and procedures.
(b) Implements Public Law 98-502 (31 U.S.C. 7501-7507 and 3512) and
Office of Management and Budget (OMB) Circulars A-128 /1/ and A-133 /2/
to establish audit requirements for State and local governments,
institutions of higher education, and other nonprofit institutions that
receive Federal financial assistance.
(c) Assigns responsibilities within the Department of Defense for
monitoring compliance with those requirements.
/1/ Forward written requests to: Office of Management and Budget
Publications, 725 17th Street, NW. New Executive Office Building,
Washington, DC 20503.
/2/ See footnote 1 to 266.1(b).
32 CFR 266.2 Applicability.
This part applies to the Office of the Secretary of Defense, the
Military Departments, the Chairman of the Joint Chiefs of Staff and the
Joint Staff, the Unified and Specified Commands, the Inspector General
of the Department of Defense (IG, DoD), the Defense Agencies, and the
DoD Field Activities (hereafter referred to collectively as ''the DoD
Components'') that provide Federal financial assistance to State and
local governments, institutions of higher education, and other nonprofit
institutions.
32 CFR 266.3 Definitions.
Terms used in this part are defined in OMB Circulars A-128 and A-133
with the following deviation. Funds paid by the National Guard Bureau
to States under facilities' operation and maintenance agreements do not
constitute ''Federal financial assistance'' for purposes of Public Law
98-502 and OMB Circular A-128.
32 CFR 266.4 Policy.
The DoD Components shall rely on and use financial and performance
audits performed by non-Federal auditors under OMB Circular A-128 and
independent auditors under OMB Circular A-133 in the oversight of
Federal financial assistance provided to State and local governments,
institutions of higher education, and other nonprofit institutions.
Public Law 98-502 provides that a non-Federal audit of the operations of
a State or local government performed under OMB Circular A-128 may
exclude public colleges and universities, in which case an audit of the
public college or university shall be made in accordance with OMB
Circular A-133. The DoD Components, however, may request additional
audits of such assistance when required by regulation or to ensure
effective use of such assistance as deemed necessary. Any additional
audit effort shall be planned and carried out in such a way as to avoid
duplication and shall be separately funded.
32 CFR 266.5 Responsibilities.
(a) The Inspector General of the Department of Defense shall:
(1) Serve as the DoD senior official under OMB Circulars A-128 and
A-133 for policy guidance, direction, and coordination with DoD
Components and other Federal Agencies on audit matters related to State
and local governments, institutions of higher education and other
nonprofit institutions.
(2) For State and local governments, institutions of higher
education, and other nonprofit institutions for which the OMB has
assigned the DoD cognizance, do the following:
(i) Ensure that audits are made and reports are received in a timely
manner and in accordance with the requirements of OMB Circulars A-128
and A-133.
(ii) Provide technical advice and liaison through the DoD Components
to State and local governments, institutions of higher education, other
nonprofit institutions, and independent auditors.
(iii) Make desk reviews of all reports received, and also make
quality control reviews of selected audits made by non-Federal audit
organizations and provide the results, when appropriate, to other
interested organizations.
(iv) Promptly inform other affected Federal Agencies and appropriate
law enforcement officials of any reported illegal acts or irregularities
in accordance with requirements of OMB Circulars A-128 and A-133.
(v) Advise the recipient of audits that have been found not to have
met the requirements in OMB Circulars A-128 and A-133. In such
instances, the recipient will work with the auditor to take corrective
action. If corrective action is not taken, the cognizant agency shall
notify the recipient and Federal awarding agencies of the facts and make
recommendations for followup action. Major inadequacies or repetitive
sub-standard performance of independent auditors shall be referred to
appropriate professional bodies for disciplinary action.
(vi) Coordinate, to the extent practicable, audits requested by other
Federal Agencies, in addition to those required by OMB Circulars A-128
and A-133.
(vii) Ensure the resolution of audit findings and recommendations
that affect DoD programs and those findings affecting programs of more
than one Federal Agency. Ensure that a management decision affecting
audit resolution shall be made within 6 months after receipt of the
audit report.
(3) For local governments, institutions of higher education, and
other nonprofit institutions for which the Department of Defense has
assumed oversight responsibility, do the following:
(i) Provide technical advice and counsel through DoD Components to
institutions and independent auditors when requested.
(ii) Assume all or some of the cognizant agency responsibilities (see
paragraph (a)(2) of this section), as deemed necessary.
(4) For other State and local governments, institutions of higher
education, and other nonprofit institutions, receive and distribute
copies of single audit reports to appropriate DoD Components for
appropriate action and followup by designated program officials.
(5) For audit reports that contain conditions affecting DoD programs,
institute followup efforts to ensure that corrective actions have been
taken by DoD organizations responsible for managing associated programs
or funds.
(b) The Heads of the DoD Components shall:
(1) Designate an official to coordinate with the IG, DoD, on matters
dealing with audits of financial assistance provided by the DoD
Component to State and local governments, institutions of higher
education, and other nonprofit institutions.
(2) Ensure input of accurate award data for Federal financial
assistance to the appropriate DoD management information system.
(3) Ensure that the State or local government, institution of higher
education, or other nonprofit institution takes appropriate actions to
correct audit deficiencies involving financial assistance provided by
the DoD Component.
(4) For State and local governments, institutions of higher
education, and other nonprofit institutions for which the OMB has
assigned DoD cognizance, do the following:
(i) Coordinate with the IG, DoD, on requests from other Federal
Agencies for audits of State and local governments, institutions of
higher education, and other nonprofit institutions, in addition to those
required by OMB Circulars A-128 and A-133.
(ii) Seek the views of other interested agencies when a coordinated
audit approach is to be used and before completing a coordinated
program.
(iii) Help coordinate the audit work and reporting responsibilities
among independent public accountants, State auditors, and both resident
and non-resident Federal auditors to achieve the most cost-effective
audit.
32 CFR 266.6 Procedures.
The costs of audits made by non-Federal auditors under OMB Circulars
A-128 and A-133 are allowable charges to Federal financial assistance
programs. The charges may be considered as a direct cost or an
allocated indirect cost in accordance with OMB Circulars A-87, A-122 and
A-21 /3/ ; FAR, part 31 (48 CFR part 31); or the DFARS, part 231 (48
CFR part 231). Generally, the percentage of costs charged to Federal
assistance programs for an audit shall not exceed the percentage of
Federal funds expended to the total funds expended by the recipient
during the fiscal year. No cost, however, may be charged to Federal
programs for audits not made in accordance with OMB Circulars A-128 and
A-133 and other applicable cost principles and regulations.
/3/ See footnote 1 to 266.1(b).
32 CFR 266.6 PART 268 -- COLLECTING AND REPORTING OF FOREIGN
INDEBTEDNESS WITHIN THE DEPARTMENT OF DEFENSE
Sec.
268.1 Purpose.
268.2 Applicability.
268.3 Policy.
268.4 Responsibilities.
268.5 Collection and followup procedures.
268.6 Reporting of accounts receivable and sales under 120 days
delayed payment terms (short-term credit).
268.7 Collecting and reporting of foreign debts under long-term loans
and debts.
268.8 Flash report of major foreign debt arrearages.
268.9 Discussion of terms.
Authority: Federal Claims Collection Act of 1966 (31 U.S.C.
951-953); Arms Export Control Act, sec. 23.
Source: 43 FR 11196, Mar. 17, 1978, unless otherwise noted.
32 CFR 268.1 Purpose.
This part establishes standard procedures to be used for the
collecting and reporting of foreign indebtedness. Such indebtedness may
arise through the (a) sale of Defense articles and services pursuant to
the Arms Export Control Act; (b) operation of military missions; and
(c) logistical support provided under country-to-country agreements.
32 CFR 268.2 Applicability.
The provisions of this part apply to the Office of the Secretary of
Defense, the Military Departments, and the Defense Agencies (hereafter
referred to as ''DoD Components'').
32 CFR 268.3 Policy.
It is the policy of the Department of Defense that timely and
aggressive collection efforts will be conducted to assure that foreign
arrearages to DoD Components are held to the absolute minimum. Foreign
indebtedness will be uniformly and accurately reported to the Department
of the Treasury on forms prescribed by the Treasury Fiscal Requirements
Manual. The information system on the status of collection actions will
support the information requirements of the National Advisory Council on
International Monetary and Financial Policies (NAC).
32 CFR 268.4 Responsibilities.
(a) The assistant Secretary of Defense (Comptroller) is the DoD point
of contact for matters concerning foreign indebtedness requirements
imposed on DoD from outside the Department, such as by the Congress,
Treasury Department, and NAC.
(b) The Defense Security Assistance Agency (DSAA) is responsible for
consolidation of feeder arrearage reports and submission of a single
consolidated DoD arrearage report to the Treasury Department. The DSAA
shall (1) monitor collection actions; (2) follow up when initial
collection actions have been unsuccessful; and (3) serve as the focal
point within DoD for responding to NAC information requests.
(c) Unless otherwise directed, the DoD Component which makes the
sale, or is otherwise assigned responsibility, is responsible for taking
initial collection action, accounting for indebtedness, preparation of
feeder arrearage reports, and providing copies of arrearage reports to
the DSAA.
32 CFR 268.5 Collection and followup procedures.
Each DoD Component is responsible for taking timely and aggressive
billing and followup collection actions for each category of
indebtedness incurred by official and private obligors pursuant to
authorized programs.
32 CFR 268.6 Reporting of accounts receivable and sales under 120 days
delayed payment terms (short-term credit).
(a) General. (1) Amounts payable to DoD Components for sales of
Defense articles and services on terms which require payment of cash in
advance of delivery/performance or within 60 days thereof will be
classified as accounts receivable. Military Departments shall submit
reports to the DSAA of foreign indebtedness related to those sales.
(2) Sales made by DoD Components under existing cases which provide
for 120-day payment terms shall be classified as short-term credit
sales. Similarly, those sales made after September 30, 1976, under
special emergency appropriations which provide for payments 120 days
after delivery of articles or services will also be classified as
short-term credit sales. DoD Components shall submit reports to the
DSAA of these short-term credit sales.
(3) Foreign indebtedness to DoD Components for logistical support,
mission support costs, and other programs is payable upon presentation
of the appropriate billing documents. Reports of foreign indebtedness
related to these programs will be submitted to the DSAA.
(b) Basis for reporting. Amounts to be reported will be determined
by analyzing unpaid bills using the criteria and definitions contained
in 268.9.
32 CFR 268.7 Collecting and reporting of foreign debts under long-term
loans and debts.
The DSAA is responsible for administering FMS long-term loans and
credit programs authorized by Section 23 of the Arms Export Control Act,
and likewise is responsible for determining foreign indebtedness against
these programs. Debts remaining uncollected 90 days after the due date
will be referred to the State Department for diplomatic assistance to
effect settlement.
32 CFR 268.8 Flash report of major foreign debt arrearages.
Major foreign debt arrearages are monitored by the NAC. Therefore,
periodically DSAA will request flash reports from the DoD Components to
satisfy NAC requirements for information on major foreign debt
arrearages. For this purpose, a ''major'' foreign debt arrearage is any
country program arrearage which involves the sum of $250,000 or more.
Flash reports will be submitted directly to DSAA by the local command in
message form with information copies to the next higher command. The
report will reflect any significant changes in major foreign debt
arrearages from the quarterly foreign indebtedness reports submitted in
accordance with 268.6. Collections, information on increased
indebtedness, problems encountered in unsuccessful collection attempts,
or country circumstances which may adversely affect collections are
examples of the information which should be included in the flash
reports.
32 CFR 268.9 Discussion of terms.
(a) Accounts receivable. ''Accounts receivable'' consist of those
amounts due in which the original payment time required full payment
within 90 days of delivery or performance. It excludes principal
payments or interest on short-term and long-term loans and credits.
(b) Arrearage delinquency determination. Obligations generated by
formal agreements, as in the case of Foreign Military Sales contracts,
are due on the dates specified in the contract or on the date specified
in billings rendered in accordance with these contracts. Obligations
incurred under Military Mission Support (Program 142) Logistical Support
(Program 143) and any other authorized programs are due on the date
billings are made to the customer country unless otherwise stated in the
bill. Followup and reporting actions required by this part will be
taken based on these dates. (See 268.5.)
(c) Country designations. For reporting purposes, grants and
contingent liabilities will be identified with the country which
receives the benefit. Loans and credits will be identified generally
with the country of the obligor or, in the instance of official
multinational organizations, with the institution name. When the
project is located in, or goods are destined for another country or
area, the latter country or area should be stated in the description of
purpose. If a government credit intermediary is the obligor, the
transaction should be identified with the country where the project is
located or the goods are destined.
(1) United States. ''United States'' shall mean the states of the
United States, the District of Columbia, the Commonwealth of Puerto
Rico, American Samoa, the Canal Zone, Guam, Midway Island, U.S. Virgin
Islands, and Wake Island.
(2) Foreign country designations. Country designations other than
the ''United States'' shall be consistent with the standardized names
and codes contained in the Military Assistance and Sales Manual (MASM).
(3) Official Multinational Organization. For reporting purposes,
''Official Multinational Organization'' shall mean any international or
regional organization (or affiliated agency thereof) created by treaty
or convention between sovereign states.
(d) Dollar equivalents of foreign currency. Represents dollar
equivalent of all foreign currency amounts disbursed and still
outstanding, undisbursed balances, and arrearages of principal and
interest. They shall be computed at the reporting rate prescribed by
Treasury Department Circular No. 930 for balances as of the end of the
reporting period. The dollar equivalents of all other reportable
amounts shall be the summation of individual transactions computed at
the reporting rate prescribed for the period in which the transactions
occurred.
(e) Foreign indebtedness. ''Foreign indebtedness'' means financial
obligations owed to the U.S. Government by the following entities in
connection with DoD activities.
(1) Any individual, including a citizen of the United States
(excluding U.S. military members and U.S. Government employees)
domiciled outside the United States.
(2) Any partnership, association, corporation, or other organization
created or organized under the laws of a foreign country, excepting
branches or agencies thereof located in the United States.
(3) Any branch, subsidiary, or allied organization within a foreign
country of a partnership, association, corporation, or other
organization created or organized under the laws of a foreign country or
the United States.
(4) Any government of a foreign country and any subdivision, agency,
or instrumentality thereof, including all foreign ''Official''
institutions, even though located in the United States.
(5) Any private relief, philanthropic, or other organization of a
multinational or regional character with headquarters abroad.
(6) Any official multinational organization, defined as any
international or regional organization (or affiliated agency thereof)
created by treaty or convention between sovereign states.
(f) Indebtedness. ''Indebtedness'' within the context of this part
refers to financial obligations to make payment(s) to the U.S.
Government in accordance with contractual or other arrangements. Such
obligations generally arise from
(1) The disbursements of cash to be repaid at a future time (with or
without interest),
(2) The extension of credit (by formal agreement or an open book
account) in connection with the sale of products, property, or services,
(3) The formal deferral of interest collection,
(4) The purchase or repurchase of obligations that have been insured
or guaranteed by the U.S. Government, and
(5) Payments by the U.S. Government in cases of default on insured or
guaranteed loans and other investments when the U.S. Government acquires
a debt instrument from the insured.
(g) Long-term loans and credits. ''Long-term loans and credits''
include any indebtedness under which the original payment terms provided
for payment within a period of time exceeding one year after delivery or
performance.
(h) Official obligor. ''Official obligors'' are debtors or
guarantors who are:
(1) Central governments or their departments (ministries) or
components, whether administrative or commercial.
(2) Political subdivisions such as states, provinces, departments,
and municipalities.
(3) Foreign central banks.
(4) Other institutions (such as corporations, development banks,
railways, and utilities) when (i) the budget of the institution is
subject to the approval of the government, or (ii) the government owns
more than 50 percent of the voting stock or more than half of the
members of the board of directors are government representatives, or
(iii) in the case of default the government or central bank would become
liable for the debt of the institution.
(5) Any official multinational organization.
(i) Private obligor. ''Private obligors'' are all debtors or
guarantors who are not defined as ''official obligors.''
(j) Program. ''Program'' is the law, international treaty,
appropriation, or other authority under which the loans or credits are
extended, or the accounts receivable arise. When a narrative program
designation is required, commonly used terms should be used, e.g., Arms
Export Control Act, Logistical Support, and Military Assistance Advisory
Groups.
(k) Short-term loans and credits. ''Short-term loans and credits''
include any indebtedness under which the original payment terms provided
for payment within a period from 90 days to and including one year after
delivery or performance.
(l) Time conventions. The terms 30, 60 and 90 days should be
interpreted to mean 1, 2, and 3 calendar months, respectively. That is,
the period February 6 through May 5 would be considered to be 90 days.
For example, in calculating amounts ''due and unpaid'' 90 days or more
as of December 31 the amounts due before October 1 and remaining unpaid
as of December 31 would be reportable. However, amounts due as of
October 1 but remaining unpaid at December 31 would not be reportable.
32 CFR 268.9 PART 271 -- OBTAINING INFORMATION FROM FINANCIAL
INSTITUTIONS
Sec.
271.1 Purpose and applicability.
271.2 Policy.
271.3 Procedures.
271.4 Reports.
Authority: 12 U.S.C. 3401 et seq.
Source: 46 FR 880, Jan. 5, 1981, unless otherwise noted.
Redesignated at 56 FR 64482, Dec. 10, 1991.
32 CFR 271.1 Purpose and applicability.
(a) This part establishes procedures for the National Security
Agency/Central Security Service (NSA/CSS) to obtain records from
financial institutions and implements 12 U.S.C. 3401-3422, 92 Stat.
3697 (Pub. L. 95-630).
(b) The provisions of this part apply only to financial records
maintained by any office of a bank, savings bank, credit card issuer,
industrial loan company, trust company, savings and loan, building and
loan, homestead association (including cooperative banks), credit union,
or consumer finance institution that is located in any district, state
or territory of the United States.
(c) All NSA/CSS elements are subject to the provisions of this part.
32 CFR 271.2 Policy.
(a) Financial records shall be sought regarding any individual who is
an applicant for employment with the NSA/CSS or who has a current
security clearance and/or access granted by the NSA/CSS, and regarding
any other individual assigned or detailed to the NSA/CSS when such
records are relevant to a final determination with respect to
employment, continued assignment or detail, clearance, access or other
related actions.
(b) The NSA/CSS shall seek the consent of an individual when
obtaining that individual's financial records from a financial
institution. Refusal of an individual to provide such consent may be
grounds for denying access to all Sensitive Compartmented Information
(SCI) and to other classified information in NSA/CSS custody if the
circumstances of such refusal or the nature of the records sought
prevent the NSA/CSS from determining that such access is or would be
clearly consistent with the national security.
(c) Any actions relative to obtaining financial records without an
individual's consent shall be conducted in accordance with the
provisions of DoD Directive 5400.12, found in 32 CFR part 275, as
appropriate.
(46 FR 880, Jan. 5, 1981. Redesignated and amended at 56 FR 64482,
Dec. 10, 1991)
32 CFR 271.3 Procedures.
(a) Representatives of NSA/CSS Security shall use a consent form as
set out in Enclosure 2 of CFR part 275, relative to obtaining financial
records. A copy of the consent form shall be made a part of the
individual's NSA/CSS security file, and an additional record copy of the
form kept be security for the purpose of an annual report. A
certification form as set out in Enclosure 4 of 32 CFR part 275 shall be
provided to financial institutions by security representatives along
with the consent form certifying compliance with 12 U.S.C. 3401 et seq.
(b) Procedures used by security regarding matters referenced in
paragraph (a) of this section, shall be established on a case-by-case
basis and shall be in consonance with the appropriate provisions of 32
CFR part 275.
(c) Financial records obtained under 12 U.S.C. 3401 et seq. shall be
marked: ''This record was obtained pursuant to the Right to Financial
Privacy Act of 1978, 12 U.S.C. 3401 et seq., and may not be transferred
to another federal agency or department without prior compliance with
the transferring requirements of 12 U.S.C. 3412.'' Except in accordance
with paragraph (e) of this section such records shall not be transferred
to another agency or department outside the Department of Defense unless
the Chief, Security, or delegate certifies in writing that there is
reason to believe that the records are relevant to a legitimate law
enforcement inquiry within the jurisdiction of the receiving agency or
department. Such certificates shall be maintained in the appropriate
NSA/CSS security file with copies of the released records.
(d) Unless alternate procedures are involved as referenced in
paragraph (b) of this section, when financial records have been
transferred to another agency, a security representative shall, within
14 days, personally serve or mail to the individual whose records have
been transferred, at his or her last known address, a copy of the
certificate required by paragraph (c) of this section, and the following
notice: ''Copies of or information contained in your financial records
lawfully in possession of the NSA/CSS have been furnished to (name of
agency) pursuant to the Right to Financial Privacy Act of 1978 for the
following purpose(s): (state reason). If you believe that this
transfer has not been made to further a legitimate law enforcement
inquiry, you may have legal rights under the Financial Privacy Act of
1978 or the Privacy Act of 1974.''
(e) In cases where another federal agency authorized to conduct
foreign intelligence or foreign counterintelligence activities requests
a financial record held by the NSA/CSS, and makes such a request for the
purpose of conducting that Agency's protective functions, the NSA/CSS
may release the information without notifying the individual to whom the
financial record pertains.
(46 FR 880, Jan. 5, 1981. Redesignated and amended at 56 FR 64482,
Dec. 10, 1991)
32 CFR 271.4 Reports.
Security shall compile an annual report setting forth the data
required in the Right to Financial Privacy Act of 1978. The report
shall be submitted to the Defense Privacy Board, Office of the Deputy
Assistant Secretary of Defense (Administration), by 15 February
annually, and shall be assigned the Report Control Symbol DD-COMP(A) of
1538.
32 CFR 271.4 PART 272 -- ADMINISTRATION AND SUPPORT OF BASIC RESEARCH
BY THE DoD
Sec.
272.1 Purpose.
272.2 Definition of basic research.
272.3 Background.
272.4 Principles.
272.5 Policy.
272.6 Implementation.
Authority: Secs. 2202, 2301-2314, 70A Stat. 127-133; secs. 1-3, 72
Stat. 1793; 5 U.S.C. 301; 10 U.S.C. 2202, 2301-2314, 42 U.S.C.
1891-1893; E.O. 10521 (19 FR 1499, as amended by sec. 6(b), E.O.
10807, 24 FR 1899.
Source: 26 FR 11831, Dec. 9, 1961, unless otherwise noted.
32 CFR 272.1 Purpose.
This part states the policy of the Department of Defense on the
administration and support of basic research.
32 CFR 272.2 Definition of basic research.
Basic research is that type of research which is directed toward
increase of knowledge in science. It is research where the primary aim
of the investigator is a fuller understanding of the subject under
study.
32 CFR 272.3 Background.
(a) E.O. 10521, as amended, ''Administration of Scientific Research
by Agencies of the Federal Government,'' (19 FR 1499) provides broad
guidelines for administration of basic scientific research by Federal
agencies. These guidelines state that while the National Science
Foundation shall be increasingly responsible for providing Federal
support for general purpose basic research, the conduct and support by
other Federal agencies of basic research in areas which are closely
related to their missions is recognized as important and desirable and
shall continue.
(b) The Director of Defense Research and Engineering is responsible
to the Secretary of Defense for the review and direction of the basic
research program of the military departments and other agencies of the
Department of Defense authorized to conduct or support basic research,
and shall ensure that this program is executed according to the
provisions of E.O. 10521. This review will be of maximum effectiveness
if all elements of the Department adhere to the same fundamental
principles in their conduct and support of basic research.
32 CFR 272.4 Principles.
(a) Basic research is essential to the development of military power.
(b) Continuity is essential to successful basic research. Therefore,
long-term planning and funding of basic research will be employed to the
maximum possible extent.
(c) Basic research may be conducted by competent scientists in
universities and non-profit institutions, industry, military
laboratories, or elsewhere.
(d) Sustained support of basic research will result in increased
effectiveness and economies in military programs.
(e) Free and effective communication among scientists is important to
basic research.
32 CFR 272.5 Policy.
(a) It is the policy of the Department of Defense:
(1) To conduct and support a broad and continuing basic research
program to provide fundamental knowledge, with emphasis on that related
to the needs of the Department of Defense; and
(2) To assure full utilization of our scientific resources and to
extend those resources in those areas of science relevant to the mission
of the Department of Defense; and
(3) To maintain, through such a program, effective communication
among the scientists of the Department of Defense and the scientists of
the universities and industry; and
(4) To coordinate this program of basic research with the National
Science Foundation; and
(5) To encourage the support of basic research by other government
and private agencies.
32 CFR 272.6 Implementation.
(a) It is the responsibility of the Director of Defense Research and
Engineering to produce, on a continuing basis, a sound basic research
program through the coordination and integration of the elements of the
program among the military departments and other agencies of the
Department of Defense authorized to conduct or support basic research.
(b) The Department of Defense provides support of basic research by:
(1) Support of in-house laboratories. Basic research in laboratories
of the Department of Defense or in laboratories of other government
agencies, best qualified for such work in particular areas, should be
encouraged.
(2) Grants to and contracts with educational and nonprofit
institutions. In situations appropriate for grants under the provisions
of part 273, of this chapter the grant instrument is the preferred
method of supporting basic research by educational and other non-profit
institutions.
(3) Contract with industry. Contracts specifically for basic
research may be made with industrial contractors (including small
businesses) which have a recognized special competence in a given area.
In the administration of the provisions of part 15 of this chapter,
which relate to the allowability of a contractor's independent research
costs under certain Department of Defense contracts, favorable
consideration should be given to independent basic research.
(c) The military departments and other agencies of the Department of
Defense authorized to conduct or support basic research will provide the
Director of Defense Research and Engineering with such information as he
may require in order to carry out his responsibilities under this part,
including annual reports through established administrative and fiscal
channels of the following, by contract or grant and dollar value:
(1) Basic research performed in government laboratories.
(2) Basic research grants to educational and nonprofit institutions.
(3) Basic research contracts to educational and nonprofit
institutions.
(4) Basic research contracts to industrial contractors, including
small business.
(5) Independent basic research recognized as an allowable cost in an
advance agreement under the provisions of part 15 of this chapter. Such
costs shall be reported via the Assistant Secretary of Defense
(Installations and Logistics).
32 CFR 272.6 PART 274 -- REGULATIONS GOVERNING COMPETITIVE BIDDING ON
U.S. GOVERNMENT GUARANTEED MILITARY EXPORT LOAN AGREEMENTS
Sec.
274.1 Purpose.
274.2 Definitions.
274.3 Public notice.
274.4 U.S. guaranty.
274.5 Notice of intent to bid.
274.6 Submission of bids.
274.7 Acceptance of bids.
274.8 Bids-revocations-rejections-postponements.
274.9 Delegation of authority to the Secretary of the Treasury.
274.10 Reservations.
Authority: Sec. 24, Foreign Military Sales Act (22 U.S.C. 2764) and
Executive Order 11501 (34 FR 20169).
Source: 38 FR 858, Jan. 5, 1973, unless otherwise noted.
32 CFR 274.1 Purpose.
The purpose of this memorandum is to prescribe regulations under
which the Secretary of Defense or his designee may, from time to time,
by public notice, offer financial institutions the opportunity to bid on
the interest rates for the subject agreements. The bids made will be
subject to the terms, conditions, and procedures herein set forth,
except as they may be supplemented in the public notice or notices
issued by the Secretary of Defense or his designee in connection with
particular offerings.
32 CFR 274.2 Definitions.
(a) The terms public notice, notices, or announcement mean the public
notice of invitation to bid and any supplementary or amendatory notices
or announcements with respect thereto, including, but not limited to,
any statement released to the press by the Secretary of Defense or his
designee and notices sent to those who have filed notices of intent to
bid or who have filed bids.
(b) The term Loan Agreement means the proposed agreement between the
foreign government and the private U.S. lender as described in the
particular notice of Invitation to Bid.
32 CFR 274.3 Public notice.
(a) Bids hereunder will be invited through a public notice issued by
the Secretary of Defense or his designee which will prescribe the amount
of the loan for which bids are invited, the repayment schedule, the
conditions under which bidders may specify the rate of interest, and the
date and closing hour for receipt of bids.
(b) Accompanying the notice will be the form of the Loan Agreement
which the successful bidder must execute with the borrower, except for
those terms which will be subject to bidding.
32 CFR 274.4 U.S. guaranty.
Under section 24 of the Foreign Military Sales Act (22 U.S.C. 2764),
any individual, corporation, partnership, or other juridical entity
(excluding U.S. Government agencies) will be guaranteed against
political and credit risks of nonpayment arising out of their financing
of credit sales of defense articles and defense services to friendly
countries and international organizations. Section 24 explicitly
provides that guarantees thereunder are backed by the full faith and
credit of the United States. Fees in the amount of one-fourth of 1
percent of the amount of credits agreed upon shall be charged for such
guaranties.
32 CFR 274.5 Notice of intent to bid.
Any individual or organization, syndicates, or other group which
intends to submit a bid, must, when required by the notice, give written
notice of such intent on the appropriate form at the place and within
the time specified in the public notice. Such notice, which shall be
given to the Federal Reserve Bank of New York, 33 Liberty Street, New
York, NY 10045, will not constitute a commitment to bid.
32 CFR 274.6 Submission of bids.
(a) General. Bids will be received only at the place specified and
not later than the time designated in the public notice. Bids shall be
irrevocable.
(b) Interest rates. Bids must be expressed in terms of rates of
interest not to exceed three decimals, for example, 5.125 percent.
(c) Group bids. A syndicate or other group submitting a bid must act
through a representative who must be a member of the group. The
representative must warrant to the Secretary of Defense or his designee,
that he has all necessary power and authority to act for each member and
to bind the members jointly and severally. In addition to whatever
other data may be required by the Secretary of Defense or his designee,
in the case of a syndicate, the representative must file, within 1 hour
after the time for opening bids, at the place specified in the public
notice for receipt of bids a final statement of the composition of the
syndicate membership and the amount of each member's underwriting
participation.
32 CFR 274.7 Acceptance of bids.
(a) Opening bids. Bids will be opened at the time and place
specified in the public notice.
(b) Acceptance of successful bid. The Secretary of Defense or his
designee will notify any successful bidder of acceptance in the manner
and form specified in the public notice.
32 CFR 274.8 Bids-revocations-rejections-postponements.
The Secretary of Defense or his designee in his discretion, may (a)
revoke the public notice of invitation to bid at any time before opening
bids, (b) return all bids unopened either at or prior to the time
specified for their opening, (c) reject any or all bids, (d) postpone
the time for presentation and opening of bids, and (e) waive any
immaterial or obvious defect in any bid. Any action the Secretary of
Defense or his designee may take in these respects shall be final. In
the event of a postponement, known bidders will be advised thereof and
their bids returned unopened.
32 CFR 274.9 Delegation of authority to the Secretary of the Treasury.
There is hereby delegated to the Secretary or Acting Secretary of the
Treasury the authority, in the name of and title of the Secretary of the
Treasury, to invite bids under this memorandum, to issue, modify and
revoke public notices, notices, and announcements concerning such bids,
to prescribe additional terms and conditions with respect thereto,
consistent with this memorandum, to receive, return, open, reject, and
accept bids, and to take such other actions as may be necessary and
proper to execute this delegation of authority to implement this
memorandum, excluding, however, the issuance of guaranties under 274.4.
32 CFR 274.10 Reservations.
The Secretary of Defense reserves the right, at any time, or from
time to time, to amend, repeal, supplement, revise or withdraw all or
any of the provisions of this memorandum.
32 CFR 274.10 PART 275 -- OBTAINING INFORMATION FROM FINANCIAL
INSTITUTIONS: RIGHTS TO FINANCIAL PRIVACY ACT OF 1978
Sec.
275.1 Purpose.
275.2 Applicability and scope.
275.3 Policy.
275.4 Information requirements.
275.5 Responsibilities.
275.6 Definitions.
275.7 Requesting basic identifying account information.
275.8 Procedures for obtaining customer's consent.
275.9 Other access procedures.
275.10 Requests for financial records in connection with foreign
intelligence and foreign counterintelligence activities.
275.11 Emergency access procedures.
275.12 Procedures for delay of notice.
275.13 Procedures for releasing information obtained from financial
institutions.
275.14 Right to Financial Privacy Act of 1978 Annual Report.
Enclosure 1 -- Request for Basic Identifying Account Data Format
Enclosure 2 -- Customer Consent and Authorization for Access Format
Enclosure 3 -- Formal Written Request for Access Format
Enclosure 4 -- Certificate of Compliance With the Right to Financial
Privacy Act of 1978
Enclosure 5 -- Obtaining Accesss to Financial Records Overseas
Authority: 92 Stat. 3697 et seq. (12 U.S.C. 3401, et seq.)
Source: 45 FR 17576, Mar. 19, 1980, unless otherwise noted.
Redesignated at 56 FR 57984, Nov. 15, 1991.
32 CFR 275.1 Purpose.
This part implements Title 12, U.S.C. section 3401, et seq., Pub. L.
95-630, ''Right to Financial Privacy Act of 1978,'' and prescribes the
procedures for the Department of Defense to use to gain access to
financial records maintained by financial institutions.
32 CFR 275.2 Applicability and scope.
(a) The provisions of this part apply to the Office of the Secretary
of Defense, the Military Departments, the Defense Investigative Service,
and the National Security Agency (hereafter referred to as the ''DoD
Components'').
(b) Its provisions apply only to financial records maintained by
financial institutions as defined in 275.6(a).
(45 FR 17576, Mar. 19, 1980. Redesignated and amended at 56 FR 57984,
Nov. 15, 1991)
32 CFR 275.3 Policy.
(a) It is the policy of the Department of Defense when obtaining
financial records from a financial institution to seek the consent of
the customer to whom the record pertains, unless doing so compromises or
harmfully delays a legitimate law enforcement inquiry. If the person
declines to consent to disclosure, the alternative means of obtaining
the records authorized by this part shall be utilized.
(b) The provisions of 12 U.S.C. 3401 et seq. do not govern obtaining
access to financial records maintained by military banking contractors
located outside of the United States, the District of Columbia, Guam,
American Samoa, or the Virgin Islands. The procedures outlined in
enclosure 5 may be followed in obtaining financial information from
these facilities.
(45 FR 17576, Mar. 19, 1980, as amended at 46 FR 29706, June 3, 1981)
32 CFR 275.4 Information requirements.
The report required by 275.14 of this part is assigned Report
Control Symbol DD-COMP(A)1538.
(45 FR 17576, Mar. 19, 1980. Redesignated and amended at 56 FR 57984,
Nov. 15, 1991)
32 CFR 275.5 Responsibilities.
(a) Heads of affected DoD Components shall:
(1) Follow the procedures outlined in this part when seeking access
to financial records.
(2) Establish procedures for implementing this part within the
Component.
(3) Established procedures to ensure that the report required by
275.14 is forwarded to the Defense Privacy Board, Office of the Deputy
Assistant Secretary of Defense (Administration).
(b) The Deputy Assistant Secretary of Defense (Administration), or
designee, shall:
(1) Prepare a consolidated DoD annual report required by 12 U.S.C.
3421(b) and 275.14.
(2) Provide policy guidance to DoD Components to implement this part.
(45 FR 17576, Mar. 19, 1980. Redesignated and amended at 56 FR 57984,
Nov. 15, 1991)
32 CFR 275.6 Definitions.
(a) Financial institution. Any office of a bank, savings bank,
credit card issuer, industrial loan company, trust company, savings and
loan, building and loan, homestead association (including cooperative
banks), credit union, or consumer finance institution that is located in
any State or territory of the United States, or in the District of
Columbia, Puerto Rico, Guam, American Samoa, or the Virgin Islands.
(b) Financial record. An original, its copy, or information known to
have been extracted from the original record held by a financial
institution that pertains to a customer's relationship with the
financial institution.
(c) Person. An individual or a partnership of five or less
individuals.
(d) Customer. Any person or authorized representative of that person
who used or is using any service of a financial institution or for whom
a financial institution is acting or has acted as fiduciary for an
account maintained in the name of that person.
(e) Law enforcement office. Any element of a DoD Component
authorized by the Component head to conduct law enforcement inquiries.
(f) Law enforcement inquiry. A lawful investigation or official
proceeding that inquires into a violation of or failure to comply with a
criminal or civil statute, or any rule, regulation, or order issued
pursuant thereto.
(g) Personnel security investigation. An investigation required to
determine a person's eligibility for access to classified information,
assignment or retention in sensitive duties, or other designated duties
requiring such investigation. Personnel security investigations include
investigations of subversive affiliations, suitability information, or
hostage situations conducted for the purpose of making personnel
security determinations; and also include investigations of allegations
that arise subsequent to adjudicative action that require resolution to
determine an individual's current eligibility for access to classified
information, or assignment or retention in a sensitive position.
(h) Personnel security element. Any element of a DoD Component
authorized by the Secretary of Defense to conduct personnel security
investigations.
32 CFR 275.7 Requesting basic identifying account information.
(a) A DoD law enforcement office may issue a formal written request
for basic identifying account information to a financial institution
relevant to a legitimate law enforcement inquiry. A request may be
issued to a financial institution for any or all of the following
identifying data:
(1) Name.
(2) Address.
(3) Account Number.
(4) Type of account of any customer or ascertainable group of
customers associated with a financial transaction or class of financial
transactions.
(b) A request for disclosure of the above specified basic identifying
information concerning a customer's account shall not require any
customer notice ( 275.9, 275.11, and 275.13), challenge ( 275.9) or
transfer ( 275.13) procedures. However, this partial exception for basic
identifying data shall not alter the mandatory access requirements set
forth in 275.8 and 275.9 to obtain the actual financial record itself.
(c) A format for requesting basic identifying account data is set
forth in enclosure 1 of this part.
(45 FR 17576, Mar. 19, 1980. Redesignated and amended at 56 FR 57984,
Nov. 15, 1991)
32 CFR 275.8 Procedures for obtaining customer's consent.
(a) A DoD law enforcement office or personnel security element
seeking access to a person's financial records shall, when feasible,
obtain the customer's consent.
(b) Any consent obtained under 275.8(a) shall:
(1) Be in writing, signed, and dated.
(2) Identify the particular financial records that are being
disclosed.
(3) State that the customer may revoke the consent at any time before
disclosure.
(4) Specify the purpose for disclosure and to which agency the
records may be disclosed.
(5) Authorize the disclosure for a period not in excess of 3 months.
(6) Contain a Privacy Act advisory statement required by Part 286a of
this title for a personnel security investigation.
(7) Contain a ''Statement of Customer Rights Under the Right to
Financial Privacy Act of 1978'' (enclosure 2).
(c) Any customer's consent not containing all of the elements listed
in 275.8(b), shall be void. A customer consent form, in a format set
forth in enclosure 2, shall be used for this purpose.
(d) A copy of the customer's consent shall be made a part of the law
enforcement inquiry or personnel security investigation file.
(e) A certification of compliance with 12 U.S.C. 3401 et seq., in
writing (enclosure 4), along with the customer's consent, shall be
provided to the financial institution as a prerequisite to obtaining
access to financial records.
(f) The annual reporting requirements of 275.14 shall apply to any
request for access under 275.8(a).
(45 FR 17576, Mar. 19, 1980. Redesignated and amended at 56 FR 57984,
Nov. 15, 1991)
32 CFR 275.9 Other access procedures.
(a) Access by compulsory legal process -- (1) Administrative summons
or subpoena. (i) Within the Department of Defense, the Inspector
General, DoD, has the authority under Pub. L. 95-452 (The Inspector
General Act of 1978, as amended by Pub. L. 97-252) to issue
administrative subpoenas for access to financial records. No other DoD
Component official may issue summonses or subpoenas for access to these
records.
(ii) The Inspector General, DoD, shall issue administrative
procedures for access to financial records in accordance with
established procedures.
(2) Search warrant. (i) A law enforcement office may obtain
financial records by using a search warrant obtained under Rule 41 of
the Federal Rules of Criminal Procedure in appropriate cases.
(ii) Unless a delay of notice has been obtained under provisions of
275.12, the law enforcement office shall, no later than 90 days after
serving the search warrant, mail to the customer's last known address a
copy of the search warrant together with the following notice:
''Records or information concerning your transactions held by the
financial institution named in the attached search warrant were obtained
by this (agency or department) on (date) for the following purpose:
(state purpose). you may have rights under the Right to Financial
Privacy Act of 1978.''
(iii) In any state or territory of the United States, or in the
District of Columbia, Puerto Rico, Guam, American Samoa, or the Virgin
Islands, search warrants signed by installation commanders or military
judges shall not be used to gain access to financial records.
(3) Judicial subpoena. Judicial subpoenas are those issued in
connection with a pending judicial proceeding and inlcude subpoenas
issued under paragraph 115 of the Manual for Courts-Martial (1969
Revised) and Article 46 of the Uniform Code of Military Justice.
Cognizant legal counsel shall be consulted on the availability and use
of judicial subpoenas.
(b) Formal written request. (1) A law enforcement office may issue a
formal written request for financial records when the records sought are
relevant to a legitimate law enforcement inquiry. This request may be
issued only if the customer has declined to consent, 275.8, to the
disclosure of his or her records, or if it is determined that to seek
consent from the customer would compromise or harmfully delay a
legitimate law enforcement inquiry.
(2) A formal written request shall be in a format set forth in
enclosure 3 and shall:
(i) State that the request is issued under the Right to Financial
Privacy Act of 1978 and the Component's implementation of this part.
(ii) Describe the specific records to be examined.
(iii) State that access is sought in connection with a legitimate law
enforcement inquiry.
(iv) Describe the nature of the inquiry.
(v) Be signed by the head of the law enforcement office or a
designee.
(3) When a formal written request is issued to a financial
institution, a copy of the request shall, at the same time or before, be
personally served upon, or mailed to the customer's last known address
unless a delay of customer notice has been obtained under 275.12. The
notice to the customer shall be in a format similar to enclosure shall
be personally served at least 14 days or mailed at least 18 days prior
to the date on which access is sought.
(4) The official who signs the customer notice shall be designated to
receive any challenge from the customer.
(5) The customer shall have 14 days to challenge a notice request
when personal service is made and 18 days when service is by mail.
(6) Components shall establish procedures to ensure that no access to
financial records is attempted before the expiration of the pertinent
time period while awaiting receipt of a potential customer challenge, or
prior to the adjudication, prescribed by 12 U.S.C. 3410, of any
challenge made.
(7) When a customer fails to file a challenge to access to financial
records within the pertinent above time periods, or after a challenge is
adjudicated in favor of the law enforcement office, the head of the
office, or a designee, shall certify in writing to the financial
institution that such office has complied with the requirements of 12
U.S.C. 3401 et seq. No access to any financial records shall be made
before such certification is given.
(c) Certification. Prior to obtaining the requested records under
275.9 (a)(2) and (a)(3), a certification of compliance with 12 U.S.C.
3401 et seq. and Enclosure 4 of this part, shall be provided to the
financial institution as a prerequisite to obtaining access to financial
records.
(d) Annual report. The annual reporting requirements of 275.14
shall apply to access procedures under paragraph (a) and (b) of this
section.
(45 FR 17576, Mar. 19, 1980, as amended at 48 FR 20228, May 5, 1983.
Redesignated and amended at 56 FR 57984, Nov. 15, 1991)
32 CFR 275.10 Requests for financial records in connection with foreign
intelligence and foreign counterintelligence activities.
(a) Except as specified in paragraph (b) of this section, nothing in
this part shall apply to requests for financial records in connection
with authorized foreign intelligence and foreign counterintelligence
activities as defined in E.O. 12036, January 24, 1978.
(b) When a request for financial records is made under paragraph (a)
of this section, a Component official designated by the Secretary of
Defense, the Secretary of a Military Department, or the Head of the DoD
Component authorized to conduct foreign intelligence and foreign
counterintelligence activities shall certify to the financial
institution that the requesting Component has complied with the
provisions of 12 U.S.C. 3401 et seq. Such certification, in a format
similar to enclosure 4 of this part, shall be made before obtaining any
records.
(c) A Component requesting financial records under paragraph (a) of
this section, may notify the financial institution from which records
are sought that section 3414(3) of 12 U.S.C., prohibits disclosure to
any person by the institution, its agents, or employees that financial
records have been sought or obtained.
(d) The annual reporting requirements of 275.14 shall apply to any
request for access under paragraph (a) of this section.
(45 FR 17576, Mar. 19, 1980. Redesignated and amended at 56 FR 57984,
Nov. 15, 1991)
32 CFR 275.11 Emergency access procedures.
(a) Except as provided in paragraph (b) and (c) of this section,
nothing in this part shall apply to a request for financial records from
a financial institution when the law enforcement office making such
request determines that a delay in obtaining access to such records
would create an imminent danger of:
(1) Physical injury to any person.
(2) Serious property damage.
(3) Flight to avoid prosecution.
(b) When access is made to financial records under paragraph (a) of
this section, Component official designated by the Secretary of Defense
or the Secretary of a Military Department shall:
(1) Certify in writing, in a format set forth in Enclosure 4 of this
part, to the financial institution that the Component has complied with
the provisions of 12 U.S.C. 3401 et seq., as a prerequisite to obtaining
access.
(2) Submit for filing with the appropriate court a signed sworn
statement setting forth the grounds for the emergency access within 5
days of obtaining access to financial records.
(c) After filing of the signed sworn statement required by paragraph
(b)(2) of this section, the Component that has obtained access to
financial records under paragraph (a) of this section, shall personally
serve or mail to the customer a copy of the request to the financial
institution and the following notice, unless a delay of notice has been
obtained under 275.12.
''Records concerning your transactions held by the financial
institution named in the attached request were obtained by (agency or
department) under the Right to Financial Privacy Act of 1978 on (date)
for the following purpose: (state with reasonable specificity the
nature of the law enforcement inquiry). Emergency access to such
records was obtained on the grounds that (state grounds).''
Mailings under this paragraph shall be by certified or registered
mail to the last known address of the customer.
(d) The annual reporting requirements of 275.14 shall apply to any
access pursuant to paragraph (a) of this section.
(45 FR 17576, Mar. 19, 1980. Redesignated and amended at 56 FR 57984,
Nov. 15, 1991)
32 CFR 275.12 Procedures for delay of notice.
(a) The customer notice required by 275.9(b)(3), 275.11(c), or
275.13(c) may be delayed for successive periods of 90 days. The notice
required by paragraph (a)(2)(ii) of this section may be delayed for one
period of 180 days and successive periods of 90 days. A delay of notice
may only be granted by a court of competent jurisdiction and only when
not serving the notice would result in:
(1) Endangering the life or physical safety of any person.
(2) Flight from prosecution.
(3) Destruction of or tampering with evidence.
(4) Intimidation of potential witnesses.
(5) Otherwise seriously jeopardizing an investigation or official
proceeding or unduly delaying a trial or ongoing official proceeding to
the same degree as the circumstances in paragraphs (a)(1) through (4) of
this section.
(b) When a delay of notice is appropriate, legal counsel shall be
consulted to obtain such a delay. Application for delays of notice
shall be made with reasonable specificity.
(c) Upon the expiration of a delay obtained under paragraph (a) of
this section, of a notice required by:
(1) Section 275.9(a)(2)(ii), the law enforcement office obtaining
such records shall mail to the customer a copy of the search warrant and
the following notice:
''Records or information concerning your transactions held by the
financial institution named in the attached search warrant were obtained
by this (agency or department) on (date). Notification was delayed
beyond the statutory 90-day delay period pursuant to a determination by
the court that such notice would seriously jeopardize an investigation
concerning (state with reasonable specificity). You may have rights
under the Right to Financial Privacy Act of 1978.''
(2) Section 275.9(b)(3), the law enforcement office obtaining such
records shall serve personally or mail to the customer a copy of the
process or request and the following notice:
''Records of information concerning your transactions which are held
by the financial institution named in the attached process or request
were supplied to or requested by the Government authority named in the
process or request on (date). Notification was withheld pursuant to a
determination by the (title of the court so ordering) under the Right to
Financial Privacy Act of 1978 that such notice might (state reason).
The purpose of the investigation or official proceeding was (state
purpose with reasonable specificity).''
(3) Section 275.11(c), the law enforcement office obtaining financial
records shall serve personally or mail to the customer a copy of the
request and the notice required by 275.11(c).
(4) Section 275.13(c), the law enforcement office or personnel
security element transferring such records shall serve personally or
mail to the customer the notice required by 275.13(c).
(d) The annual reporting requirements of 275.14 shall apply to any
request for access under the delay of notice.
(45 FR 17576, Mar. 19, 1980. Redesignated and amended at 56 FR 57984,
Nov. 15, 1991)
32 CFR 275.13 Procedures for releasing information obtained from
financial institutions.
(a) Financial records obtained under 12 U.S.C. 3401 et seq., shall be
marked: ''This record was obtained pursuant to the Right to Financial
Privacy Act of 1978, 12 U.S.C. 3401 et seq., and may not be transferred
to another federal agency or department without prior compliance with
the transferring requirements of 12 U.S.C. 3412.''
(b) Financial records obtained under the provisions of 12 U.S.C.
3401 et seq., shall not be transferred to another agency or department
outside the Department of Defense unless the head of the transferring
law enforcement office, personnel security element, or delegate
certifies in writing that there is reason to believe that the records
are relevant to a legitimate law enforcement inquiry within the
jurisdiction of the receiving agency or department. Such certificates
shall be maintained with the DoD Component copy of the released records.
(c) Unless a delay of customer notice has been obtained under
275.12, when financial information is transferred under paragraph (b) of
this section the law enforcement office or personnel security element
shall within 14 days, personally serve or mail to the customer, at his
or her last known address, a copy of the certificate required by
paragraph (b) of this section, and the following notice:
Copies of or information contained in your financial records lawfully
in possession of (name of Component) have been furnished to (name of
agency) pursuant to the Right to Financial Privacy Act of 1978 for the
following purposes: (state the nature of the law enforcement inquiry
with reasonable specificity). If you believe that this transfer has not
been made to further a legitimate law enforcement inquiry, you may have
legal rights under the Financial Privacy Act of 1978 or the Privacy Act
of 1974.
(d) If a request for release of information is from a federal agency
authorized to conduct foreign intelligence or foreign
counterintelligence activities, as defined in E.O. 12036 for purposes of
conducting such activities, the transferring DoD Component shall release
the information without notifying the customer, unless permission to
provide notification is given in writing by the requesting agency.
(e) Whenever financial data obtained under this part is incorporated
into a report of investigation or other correspondence, precautions must
be taken to ensure that:
(1) The reports or correspondence are not distributed outside the
Department of Defense except in compliance with paragraphs (b) and (c)
of this section; and
(2) The report or correspondence contains an appropriate warning
restriction on the first page or cover.
(f) A suggested restrictive legend for use on the first page or cover
sheet of reports or other correspondence follows:
Some of the information contained herein (cite specific paragraph) is
financial record information which was obtained pursuant to the Right to
Privacy Act of 1978, 12 U.S.C. 3401 et seq. This information may not be
released to another federal agency or department outside the Department
of Defense without compliance with the specific requirements of 12
U.S.C. 3412.
(45 FR 17576, Mar. 19, 1980, as amended at 46 FR 29706, June 3, 1981.
Redesignated and amended at 56 FR 57984, Nov. 15, 1991)
32 CFR 275.14 Right to Financial Privacy Act of 1978 Annual Report.
(a) Each affected DoD Component shall compile an annual report
setting forth the following for the preceding calendar year:
(1) The number of requests for access to financial institutions
specifying the types of access and any other information deemed relevant
or useful.
(2) The number of customer challenges to access and whether they were
successful.
(3) The number of transfers to agencies outside of the Department of
Defense of information obtained under this part.
(4) The number of customers challenges to the transfer of information
and whether they were successful.
(5) The number of applications for delay of notice, the number
granted, and the names of the officials requesting such delays.
(6) The number of delay of notice extensions sought and the number
granted.
(7) The number of refusals by financial institutions to grant access
by category of authorization, such as, customer consent or formal
written request.
(b) This report shall be submitted to the Defense Privacy Board,
Office of the Deputy Assistant Secretary of Defense (Administration), by
February 15 annually.
32 CFR 275.14 Pt. 275, Encl. 1
32 CFR 275.14 Enclosure 1 -- Request for Basic Identifying Account Data
Format
Mr./Mrs. XXXXXXXXXX,
Chief Teller (as appropriate), First National Bank, Little Rock, AR
72203
Dear Mr./Mrs. XXXXXXXXXXXXXX. In connection with a legitimate law
enforcement inquiry and pursuant to section 3413(g) of the Right to
Financial Privacy Act of 1978, 12 U.S.C. 3401 et seq., you are requested
to provide the following account information: (Name, address, account
number, and type of account of any customer or ascertainable group of
customers associated with a certain class of financial transactions as
set forth in 275.7.)
I hereby certify, pursuant to section 3403(b) of the Right of
Financial Privacy Act of 1978, that the provisions of the Act have been
complied with as to this request for account information.
(Official Signature Block)
Under section 3417(c) of the Act, good faith reliance upon this
certification relieves your institution and its employees and agents of
any possible liability to the subject in connection with the disclosure
of the requested financial records.
(46 FR 29706, June 3, 1981. Redesignated and amended at 56 FR 57984,
Nov. 15, 1991)
32 CFR 275.14 Pt. 275, Encl. 2
32 CFR 275.14 Enclosure 2 -- Customer Consent and Authorization for
Access Format
Pursuant to section 3404(a) of the Right to Financial Privacy Act of
1978, I, (Name of customer), having read the explanation of my rights on
the reverse side, hereby authorize the (Name and address of financial
institution) to disclose these financial records: (List the particular
financial records) to (DoD Component) for the following purpose(s):
(Specify the purpose(s)).
I understand that this authorization may be revoked by me in writing
at any time before my records, as described above, are disclosed, and
that this authorization is valid for no more than three months from the
date of my signature.
Date:
Signature:
(Typed name)
(Mailing address of customer)
Federal law protects the privacy of your financial records. Before
banks, savings and loan associations, credit unions, credit card
issuers, or other financial institutions may give financial information
about you to a federal agency, certain procedures must be followed.
You may be asked to consent to the financial institution making your
financial records available to the Government. You may withhold your
consent, and your consent is not required as a condition of doing
business with any financial institution. If you give your consent, it
can be revoked in writing at any time before your records are disclosed.
Furthermore, any consent you give is effective for only three months,
and your financial institution must keep a record of the instances in
which it discloses your financial information.
Without your consent, a federal agency that wants to see your
financial records may do so ordinarily only by means of a lawful
subpoena, summons, formal written request, or search warrant for that
purpose. Generally, the federal agency must give you advance notice of
its request for your records explaining why the information is being
sought and telling you how to object in court. The federal agency must
also send you copies of court documents to be prepared by you with
instructions for filling them out. While these procedures will be kept
as simple as possible, you may want to consult an attorney before making
a challenge to a federal agency's request.
In some circumstances, a federal agency may obtain financial
information about you without advance notice or your consent. In most
of these cases, the federal agency will be required to go to court for
permission to obtain your records without giving you notice beforehand.
In these instances, the court will make the Government show that its
investigation and request for your records are proper.
When the reason for the delay of notice no longer exists, you will
usually be notified that your records were obtained.
Generally, a federal agency that obtains your financial records is
prohibited from transferring them to another federal agency unless it
certifies in writing that the transfer is proper and sends a notice to
you that your records have been sent to another agency.
If the federal agency or financial institution violates the Right to
Financial Privacy Act, you may sue for damages or seek compliance with
the law. If you win, you may be repaid your attorney's fee and costs.
If you have any questions about your rights under this law, or about
how to consent to release your financial records, please call the
official whose name and telephone number appears below:
--
(Last Name, First Name, Middle Initial) Title (Area Code) (Telephone
number)
--
(Component activity, Local Mailing Address)
(46 FR 29706, June 3, 1981. Redesignated at 56 FR 57984, Nov. 15,
1991)
32 CFR 275.14 Pt. 275, Encl. 3
32 CFR 275.14 Enclosure 3 -- Formal Written Request for Access Format
Mr./Mrs. XXXXXXXXXX,
President (as appropriate), City National Bank and Trust Company,
Altoona, PA
Dear Mr./Mrs. XXXXXXXXXX. In connection with a legitimate law
enforcement inquiry and pursuant to section 3402(5) and section 3408 of
the Right to Financial Privacy Act of 1978, 12 U.S.C. 3401 et seq., and
(cite Component's implementation of this part), you are requested to
provide the following account information pertaining to the subject:
(Describe the specific records to be examined)
The (DoD Component) is without authority to issue an administrative
summons or subpoena for access to these financial records which are
required for (Describe the nature or purpose of the inquiry).
A copy of this request was (personally served upon or mailed) to the
subject on (Date) who has (10 or 14) days in which to challenge this
request by filing an application in an appropriate United States
district court if the subject desires to do so.
Upon the expiration of the above mentioned time period and absent any
filing or challenge by the subject, you will be furnished a
certification certifying in writing that the applicable provisions of
the Act have been complied with prior to obtaining the requested
records. Upon your receipt of a Certificate of Compliance with the
Right to Financial Privacy Act of 1978, you will be relieved of any
possible liability to the subject in connection with the disclosure of
the requested financial records.
(Official Signature Block)
(46 FR 29706, June 3, 1981. Redesignated at 56 FR 57984, Nov. 15,
1991)
32 CFR 275.14 Pt. 275, Encl. 4
32 CFR 275.14 Enclosure 4 -- Certificate of Compliance With the Right
to Financial Privacy Act of 1978
Mr./Mrs. XXXXXXXXXX,
Manager, Army Federal Credit Union, Fort Ord, CA 93941
Dear Mr./Mrs. XXXXXXXXXX. I certify, pursuant to section 3403(b) of
the Right to Financial Privacy Act of 1978, 12 U.S.C. 3401 et seq., that
the applicable provisions of that statute have been complied with as to
the (Customer's consent, search warrant or judicial subpoena, formal
written request, emergency access, as applicable) presented on (Date),
for the following financial records of (Customer's name):
(Describe the specific records)
(Official Signature Block)
Pursuant to section 3417(c) of the Right to Financial Privacy Act of
1978, good faith reliance upon this certificate relieves your
institution and its employees and agents of any possible liability to
the customer in connection with the disclosure of these financial
records.
(46 FR 29706, June 3, 1981. Redesignated at 56 FR 57984, Nov. 15,
1991)
32 CFR 275.14 Enclosure 5 -- Obtaining Access to Financial Records
Overseas
(a) The provisions of 12 U.S.C. 3401 et seq. do not govern obtaining
access to financial records maintained by military banking contractors
in overseas or other financial institutions in offices located on DoD
installations outside the United States, the District of Columbia, Guam,
American Samoa, or the Virgin Islands. The purpose of this part is to
describe a uniform procedure for access to the financial records of
these institutions.
(b) Access to financial records maintained by military banking
contractors in overseas areas or other financial institutions located on
DoD installations outside the United States, the District of Columbia,
Guam, American Samoa or the Virgin Islands is preferably obtained by
customer consent. However, in those cases where it would not be
appropriate to obtain this consent or where such consent is refused and
the financial institution is not otherwise willing to provide access to
its records the law enforcement activity may seek access by the use of a
search authorization issued by the appropriate military official. This
search authorization shall be issued in accordance with established
Component procedures and the Military Rules of Evidence.
(c) Information obtained under this enclosure shall be properly
identified as financial information and transferred only where an
official need-to-know exists. Failure to identify or limit access in
accordance with this paragraph does not render the information
inadmissible in courts-martial or other proceedings.
(d) Access to financial records maintained by all other financial
institutions overseas by law enforcement activities shall be in
accordance with the local foreign statutes or procedures governing such
access.
(46 FR 29706, June 3, 1981. Redesignated at 56 FR 57984, Nov. 15,
1991)
32 CFR 275.14 PART 277 -- IMPLEMENTATION OF THE PROGRAM FRAUD CIVIL
REMEDIES ACT
Sec.
277.1 Purpose.
277.2 Applicability.
277.3 Policy.
277.4 Responsibilities.
Appendix to Part 277 -- Program Fraud Civil Remedies
Authority: 31 U.S.C. 3807.
Source: 53 FR 39262, Oct. 6, 1988, unless otherwise noted.
32 CFR 277.1 Purpose.
This part establishes uniform policies, assigns responsibilities, and
prescribes procedures for implementation of Pub. L. 99-509.
32 CFR 277.2 Applicability.
This part applies to the Office of the Secretary of Defense (OSD);
the Military Departments; the Office of the Inspector General,
Department of Defense (OIG, DoD); the Defense Agencies; and the DoD
Field Activities (hereafter referred to collectively as ''DoD
Components'').
32 CFR 277.3 Policy.
It is DoD policy to redress fraud in DoD programs and operations
through the nonexclusive use of Pub. L. 99-509. All DoD Components
shall comply with the requirements of this part in using this new
remedy. Changes or modifications to this part by implementing
organizations are prohibited. Implementing regulations are authorized
only to the extent necessary to effectively carry out the requirements
of this part.
32 CFR 277.4 Responsibilities.
(a) The Inspector General, Department of Defense (IG, DoD), shall
establish procedures for carrying out the duties and responsibilities of
the ''investigating official'' as outlined in the Appendix of this part.
(b) The General Counsel, Department of Defense (GC, DoD), shall:
(1) Establish procedures for carrying out the duties and
responsibilities of the authority head, Department of Defense, which
have been delegated to the GC, DoD, as set forth in Appendix of this
part.
(2) Establish procedures for carrying out the duties and
responsibilities for appointment and support of presiding officers, as
set forth in Appendix of this part; and
(3) Review and approve the regulations and instructions required by
this section to be submitted for approval by the GC, DoD.
(c) The Secretaries of the Military Departments shall:
(1) Establish procedures for carrying out the duties and
responsibilities of the ''authority head'' and of the ''reviewing
officials'' for their respective Departments, and for obtaining and
supporting presiding officers from other Agencies as specified in Office
of Personnel Management (OPM) regulations; (see Appendix of this part).
(2) Make all regulations or instructions promulgated subject to the
approval of the GC, DoD; and
(3) Delegate duties as appropriate.
(d) The General Counsel of the National Security Agency (GC, NSA) and
the General Counsel of the Defense Logistics Agency (GC, DLA) shall be
responsible for establishing procedures for carrying out the duties and
responsibilities of the reviewing officials that have been delegated to
them, as stated in Appendix of this part. All Regulations or
Instructions promulgated pursuant to this part shall be submitted to the
GC, DoD.
32 CFR 277.4 Appendix to Part 277 -- Program Fraud Civil Remedies
32 CFR 277.4 Pt. 277, App.
1. The Department of Defense has the authority to impose civil
penalties and assessments against persons who make, submit or present,
or cause to be made, submitted, or presented, false, fictitious, or
fraudulent claims or written statements to authorities or to their
agents.
2. This Appendix:
a. Establishes administrative policies and procedures for imposing
civil penalties and assessments against persons who make, submit, or
present, or cause to be made, submitted, or presented, false,
fictitious, or fraudulent claims or written statements to authorities or
to their agents;
b. Specifies the hearing and appeal rights of persons subject to
allegations of liability for such penalties and assessments.
3. The uniform policies and procedures established by this enclosure
are binding on the authorities and authority heads in the Department of
Defense and Military Departments. Additional administrative regulations
necessary to carry out the requirements of the PFCRA and this part may
be written by the authority heads. Any such regulations shall be
consistent with the provisions of this Appendix.
Information sufficient to support the reasonable belief that a
particular act or omission has occurred.
a. The Department of Defense, which includes OSD, Organization of the
Joint Chiefs of Staff (OJCS), Unified and Specified Commands, Defense
Agencies, and DoD Field Activities.
b. The Department of the Army.
c. The Department of the Navy.
d. The Department of the Air Force.
a. For the Department of Defense, the Deputy Secretary of the
Department of Defense or an official or employee of the Department of
Defense or the Military Departments designated in writing by the Deputy
Secretary of Defense.
b. For the respective Military Departments, the Secretary of the
Military Department or an official or employee of the Military
Department designated in regulations promulgated by the Secretary to act
on behalf of the Secretary.
In the context of statements, anything of value, including but not
limited to any advantage, preference, privilege, license, permit,
favorable decision, ruling status, or loan guarantee.
Any request, demand, or submission made as follows:
a. To the authority for property, services, or money (including money
representing grants, loans, insurance, or benefits);
b. To a recipient of property, services, or money from the authority
or to a party to a contract with the authority:
(1) For property or services if the United States:
(a) Provided such property or services;
(b) Provided any portion of the funds for the purchase of such
property or services; or
(c) Will reimburse such recipient or party for the purchase of such
property or services; or
(2) For the payment of money (including money representing grants,
loans, insurance, or benefits) if the United States:
(a) Provided any portion of the money requested or demanded; or
(b) Will reimburse such recipient or party for any portion of the
money paid on such request or demand; or
(3) Made to the authority that has the effect of decreasing an
obligation to pay or account for property, services, or money.
The administrative complaint served by the reviewing official on the
defendant under section G., below.
Any person alleged in a complaint under section G., below, to be
liable for a civil penalty or assessment under Section C., below.
The U.S. Army Criminal Investigative Command, Naval Security and
Investigative Command, U.S. Air Force Office of Special Investigations,
and the Defense Criminal Investigative Service.
The U.S. Government.
A natural person.
The Written decision of the presiding officer required by section J.
or KK., below. This includes a revised initial decision issued following
a remand or a motion of reconsideration.
a. The IG, DoD; or
b. An officer or employee of the OIG designated by the IG;
c. Who, if a member of the Armed Forces of the United States on
active duty, is serving in Grade 0-7 or above or, if a civilian
employee, is serving in a position for which the rate of basic pay is
not less than the minimum rate of basic pay for Grade GS-16 under the
General Schedule.
A person who, with respect to a claim or statement:
a. Has actual knowledge that the claim or statement is false,
fictitious, or fraudulent;
b. Acts in deliberate ignorance of the truth or falsity of the claim
or statement; or
c. Acts in reckless disregard of the truth or falsity of the claim or
statement.
Includes the terms presents, submits, and causes to be made,
presented, or submitted. As the context requires, making or made shall
likewise include the corresponding forms of such terms.
Any individual, partnership, corporation, association or private
organization, and includes the plural of that term.
The evidence necessary to support a presiding officer's decision that
a violation of the PFCRA has occurred. Evidence that leads to the
belief that what is sought to be proved is more likely true than not
true.
An officer or employee of the Department of Defense or an employee
detailed to the Department of Defense from another agency who:
a. Is selected under 5 U.S.C., Chapter 33, pursuant to the
competitive examination process applicable to administrative law judges;
b. Is appointed by the authority head of DoD to conduct hearings
under this part for cases arising in the Department of Defense or the
Military Departments;
c. Is assigned to cases in rotation so far as practicable;
d. May not perform duties inconsistent with the duties and
responsibilities of a presiding officer;
e. Is entitled to pay prescribed by the Office of Personnel
Management (OPM) independently of ratings and recommendations made by
the authority and in accordance with 5 U.S.C., Chapters 51 and 53,
Subchapter III;
f. Is not subject to a performance appraisal pursuant to 5 U.S.C.,
Chapter 43; and
g. May be removed, suspended, furloughed, or reduced in grade or pay
only for good cause established and determined by the Merit Systems
Protection Board (MSPB) on the record after opportunity for hearing by
such Board.
An Attorney-at-law duly licensed in any State, commonwealth,
territory, the District of Columbia, or foreign country, who enters his
or her appearance in writing to represent a party in a proceeding under
this part, or an officer, director, or employee of a defendant or of its
affiliate.
a. In all cases arising in the Department of Defense and any of the
Military Departments, the reviewing official shall be an officer or
employee of an authority as follows:
(1) Who is designated by the authority head to make the determination
required under section E., below, of this enclosure;
(2) Who, if a member of the Armed Forces of the United States on
active duty, is serving in Grade 0-7 or above or, if a civilian
employee, is serving in a position for which the rate of basic pay is
not less than the minimum rate of basic pay for Grade GS-16 under the
General Schedule; and
(3) Who is as follows:
(a) Not subject to supervision by, or required to report to, the
investigating official;
(b) Not employed in the organizational unit of the authority in which
the investigating official is employed; and
(c) Not an official designated to make suspension or debarment
decisions.
b. The General Counsel, Defense Logistics Agency (GC, DLA), shall be
the reviewing official for all cases involving a claim or statement made
to the DLA or any other part of the Department of Defense other than a
Military Department or the National Security Agency (NSA). The General
Counsel, National Security Agency (GC, NSA), shall be the reviewing
official for all cases involving claims or statements made to that
Agency. The General Counsel, Defense Logistics Agency (GC, DLA), and
GC, NSA, may redelegate their authority to act as reviewing officials to
any individual(s) meeting the criteria set out in subparagraph (1) of
this section.
c. The authority head of each Military Department shall select a
reviewing official, who shall review all cases involving a claim or
statement that was made to their Department.
Any written repesentation, certification, affirmation, document,
record, accounting, or bookkeeping entry made:
a. With respect to a claim or to obtain the approval or payment of a
claim (including relating to eligibility to make a claim); or
b. With respect to (including relating to eligibility for):
(1) A contract with, or a bid or proposal for a contract with; or
(2) A grant, loan, or benefit from the authority, or any State,
political subdivision of a State, or other party; if the U.S.
Government provides any portion of the money or property under such
contract or for such grant, loan, or benefit, or if the U.S. Government
will reimburse such State, political subdivision, or party for any
portion of the money or property under such contract or for such grant,
loan, or benefit.
a. Any person who makes a claim that the person knows or has reason
to know:
(1) Is false, fictitious, or fraudulent;
(2) Includes or is supported by a written statement that asserts a
material fact that is false, fictitious, or fraudulent;
(3) Includes or is supported by any written statement that:
(a) Omits a material fact;
(b) Is false, fictitious, or fraudulent as a result of such omission;
and
(c) Is a statement in which the person making such statement has a
duty to include such material fact; or
(4) Is for payment for the provision of property or services that the
person had not provided as claimed, shall be subject, in addition to any
other remedy that may be prescribed by law, to a civil penalty of not
more than $5,000 for each such claim.
b. Each voucher, invoice, claim form, or other individual request or
demand for property, services, or money constitutes a separate claim.
c. A claim shall be considered made to an authority, recipient, or
party when such claim is received by an agent, fiscal intermediary, or
other entity, including any State or political subdivision thereof,
acting for or on behalf of such authority, recipient, or party.
d. Each claim for property, services, or money is subject to a civil
penalty regardless of whether such property, service, or money is
actually delivered or paid.
e. If the Government has made any payment (including transferred
property or provided services) on a claim, a person subject to a civil
penalty under subparagraph a.(1) of this section shall also be subject
to an assessment of not more than twice the amount of such claim or that
portion thereof that is determined to be in violation of subparagraph
a.(1) of this section. Such assessment shall be in lieu of damages
sustained by the Government because of such claim.
a. Any person who makes a written statement that:
(1) The person knows or has reason to know the following:
(a) Asserts a material fact that is false, fictitious, or fraudulent;
or
(b) Is false, fictitious, or fraudulent because it omits a material
fact that the person making the statement has a duty to include in such
statement; and
(2) Contains or is accompanied by an express certification or
affirmation of the truthfulness and accuracy of the contents of the
statement, shall be subject, in addition to any other remedy that may be
prescribed by law, to a civil penalty of not more than $5,000 for each
statement.
b. Each written representation, certification, or affirmation
constitutes a separate statement.
c. A statement shall be considered made to an authority when such
statement is received by an agent, fiscal intermediary, or other entity,
including any State or political subdivision thereof, acting for or on
behalf of such authority.
3. No proof of specific intent to defraud is required to establish
liability under this section.
4. In any case in which it is determined that more than one person is
liable for making a claim or statement under this section, each such
person may be held jointly and severally liable for a civil penalty with
respect to such claims or statements.
5. In any case in which it is determined that more than one person is
liable for making a claim under this section on which the Government has
made payment (including transferred property or provided services) an
assessment may be imposed against any such person or jointly and
severally against any combination of such persons.
1. If the investigating official concludes that a subpoena pursuant
to the authority conferred by 31 U.S.C. 3804(a) is warranted, then:
a. The subpoena so issued shall notify the person to whom it is
addressed of the authority under which the subpoena is issued and shall
identify the records or documents sought;
b. The investigating official may designate a person to act on his or
her behalf to receive the documents sought; and
c. The person receiving such subpoena shall be required to tender to
the investigating official, or to the person designated to receive the
documents, a certification that the documents sought have been produced,
or that such documents are not available and the reasons therefor, or
that such documents, suitably identified, have been withheld based upon
the assertion of an identified privilege.
2. If the investigating official concludes that an action under the
PFCRA may be warranted, the investigating official shall submit a report
containing the findings and conclusions of such investigation to the
appropriate reviewing official(s). In instances where the false claim
or false statement involves more than one authority within the
Department of Defense, or where the investigating official finds that
more than one case has arisen from the same set of facts, the
investigating official may, at his or her sole discretion, refer the
case(s) to the reviewing official of one of the affected authorities.
That reviewing official shall consolidate the claims and statements and
act for all. Nothing in this subection confers any right in any party
to the consolidation or severance of any case(s), although presiding
officers may, at their sole discretion, entertain motions to consolidate
or sever.
3. Nothing in this section shall preclude or limit an investigating
official's discretion to refer allegations directly to the Department of
Justice for suit under 18 U.S.C. 287 or 31 U.S.C. 3729 and 3730, False
Claims Act, or other civil relief, or to preclude or limit such
official's discretion to defer or postpone a report or referral to the
reviewing official to avoid interference with a criminal investigation
or prosecution.
4. Nothing in this section modifies any responsibility of an
investigating official to report violations of criminal law to the
Attorney General.
5. Nothing in this section shall preclude or limit the investigating
official's authority to obtain the assistance of any investigative units
of the Department of Defense, including those of the Military
Departments. In this regard, appropriate investigation may be conducted
by the Defense criminal investigative organizations and other
investigative elements of the Military Departments and Defense Agencies.
1. If, based on the report of the investigating official under
subsection D.2., above, the reviewing official determines that there is
adequate evidence to believe that a person is liable under section C.,
above, the reviewing official shall transmit to the Attorney General or
his or her designated point of coordination within the Department of
Justice a written notice of the reviewing official's intention to issue
a complaint under section G., below.
2. Such notice shall include the following:
a. A statement of the reviewing official's reasons for issuing a
complaint;
b. A statement specifying the evidence that supports the allegations
of liability;
c. A description of the claims or statements upon which the
allegations of liability are based;
d. An estimate of the amount of money or the value of property,
services, or other benefits requested or demanded in violation of
section C., above.
e. A statement of any exculpatory or mitigating circumstances that
may relate to the claims or statements known by the reviewing official
or the investigating official; and
f. A statement that there is a reasonable prospect of collecting an
appropriate amount of penalties and assessments.
1. The reviewing official may issue a complaint under section G.,
below, only if:
a. The Attorney General or an Assistant Attorney General designated
by the Attorney General approves the issuance of a complaint in a
written statement described in 31 U.S.C. 3803(b)(1); and
b. In the case of allegations of liability under subsection C.1.,
above, with respect to a claim, the reviewing official determines that,
with respect to such claim or a group of related claims submitted at the
same time such claim is submitted (as defined in subsection 2. of this
section), the amount of money or the value of property or services
demanded or requested in violation of subsection C.1., above, does not
exceed $150,000.00;
2. For the purposes of this section, a related group of claims
submitted at the same time shall include only those claims arising from
the same transaction (e.g., grant, loan, application, or contract) that
are submitted simultaneously as part of a single request, demand, or
submission.
3. Nothing in this section shall be construed to limit the reviewing
official's authority to join in a single complaint against a person's
claims that are unrelated or were not submitted simultaneously,
regardless of the amount of money or the value of property or services
demanded or requested.
4. In any case that involves claims or statements made to more than
one entity within the Department of Defense or the Military Departments,
or the reviewing officials having responsibility for each such entity,
as stated in subsection D.2., above, shall have concurrent jurisdiction
to make the required determinations under this section. In any such
case, the responsible reviewing officials shall coordinate with each
other prior to making any determination under this section. Where more
than one case arises from the same set of facts, such cases shall be
consolidated to the degree practicable, although the reviewing official
shall have absolute discretion to make such determination. The
requirements of this paragraph do not confer any procedural or
substantive rights upon individuals, associations, corporations, or
other persons or entities who might become defendants under the PFCRA.
1. On or after the date the Attorney General or an Assistant Attorney
General designated by the Attorney General approves the issuance of a
complaint in accordance with 31 U.S.C. 3803(b)(1), the reviewing
official may serve a complaint on the defendant, as provided in section
H., below.
2. The complaint shall state the following:
a. The allegations of liability against the defendant, including the
statutory basis for liability, an identification of the claims or
statements that are the basis for the alleged liability, and the reasons
why liability allegedly arises from such claims or statements;
b. The maximum amount of penalties and assessments for which the
defendant may be held liable;
c. Instructions for filing an answer to a request including a
specific statement of the defendant's right to request a hearing, by
filing an answer and to be represented by a representative; and
d. That failure to file an answer within 30 days of service of the
complaint shall result in the imposition of penalties and assessments
without right to appeal, consistent with the provisions of section J.,
below.
3. At the same time the reviewing official serves the complaint, he
or she shall notify the defendant with a copy of this part and any
applicable implementing regulations.
1. Service of a complaint must be made by certified or registered
mail or by delivery in any manner authorized by Rule 4(d) of the Federal
Rules of Civil Procedure. Service is complete upon receipt.
2. Proof of service, stating the name and address of the person on
whom the complaint was served, and the manner and date of service may be
made by the following:
a. Affidavit of the individual serving the complaint by delivery;
b. A United States Postal Service return receipt card acknowledging
receipt; or
c. Written acknowledgement of receipt by the defendant or his or her
representative.
1. The defendant may request a hearing by filing an answer with the
reviewing official within 30 days of service of the complaint. An
answer shall be deemed to be a request for hearing.
2. In the answer, the defendant:
a. Shall admit or deny each of the allegations of liability made in
the complaint;
b. Shall state any defense on which the defendant intends to rely;
c. May state any reasons why the defendant contends that the
penalties and assessments should be less than the statutory maximum;
and
d. Shall state the name, address, and telephone number of the person
authorized by the defendant to act as defendant's representative, if
any.
3. If the defendant is unable to file an answer meeting the
requirements of paragraph 2.b of this section within the time provided,
the defendant may, before the expiration of 30 days from service of the
complaint, file with the reviewing official a general answer denying
liability and requesting a hearing, and a request for an extension of
time within which to file an answer meeting the requirements of
subsection 2. of this section. The reviewing official shall, in such
event, file promptly with the presiding officer the complaint, the
general answer denying liability, and the request for an extension of
time as provided in section K., below. For good cause shown, the
presiding officer may grant the defendant additional time within which
to file an answer meeting the requirements of subsection 2. of this
section.
4. The 30-day limitation for filing an answer may be tolled for a
reasonable period of time by written agreement of the parties and
approval of the authority head to allow time for settlement.
1. If the defendant does not file an answer within the time
prescribed in subsection I.1., above, and there is no approved written
agreement as in subsection I.4, above, tolling the time prescribed, the
reviewing official may then refer the complaint to the presiding
officer.
2. Upon referral of the complaint pursuant to this section, the
presiding officer shall promptly serve on defendant, in the manner
prescribed in section H., above, a notice that an initial decision will
be issued under this section.
3. Upon referral of the complaint pursuant to this section, the
presiding officer shall assume the facts alleged in the complaint to be
true and, if such facts establish liability under section C., above, the
presiding officer shall issue an initial decision imposing penalties and
assessments under the statute.
4. Except as otherwise provided in this section, by failing to file a
timely answer, the defendant waives any right to further review of the
penalties and assessments imposed under subsection 3. of this section,
and the initial decision shall become final and binding upon the parties
30 days after it is issued.
5. If, before such an initial decision becomes final, the defendant
files a motion with the presiding officer seeking to reopen on the
grounds that good cause prevented the defendant from filing an answer,
the initial decision shall be stayed pending the presiding officer's
decision on the motion.
6. If, on a motion brought under subsection J.5., above, the
defendant can demonstrate good cause excusing the failure to file a
timely answer, the presiding officer shall withdraw the initial decision
in subsection 3. of this section if such a decision has been issued,
and shall grant the defendant an opportunity to answer the complaint.
7. A decision of the presiding officer denying a defendant's motion
under subsections 5. and 6. of this section is not subject to
reconsideration under section LL., below.
8. The defendant may appeal to the authority head the decision
denying a motion to reopen by filing a notice of appeal with the
authority head within 15 days after the presiding officer denies the
motion. The timely filing of a notice of appeal shall stay the initial
decision until the authority head decides the issue.
9. If the defendant files a timely notice of appeal with the
authority head, the presiding officer shall forward the record of the
proceeding to the authority head.
10. The authority head shall decide expeditiously whether good cause
excused the defendant's failure to file a timely answer based solely on
the record before the presiding officer.
11. If the authority head decides that good cause excused the
defendant's failure to file a timely answer, the authority head shall
remand the case to the presiding officer with instructions to grant the
defendant an opportunity to answer.
12. If the authority head decides that the defendant's failure to
file a timely answer is not excused, the authority head shall approve
the initial decision of the presiding officer, which shall become final
and binding upon the parties 30 days after the authority head issues
such decision.
1. Upon receipt of an answer, the reviewing official shall file the
complaint and answer with the presiding officer.
2. To allow time for settlement, referral of complaint and answer to
the presiding officer may be delayed for a reasonable period of time if
there is a written agreement of the parties, approved by the authority
head, in favor of such delay.
1. When the presiding officer receives the complaint and answer, the
presiding officer shall promptly serve a notice of hearing upon the
defendant in the manner prescribed by section H., above. At the same
time, the presiding officer shall send a copy of such notice to the
representative for the Government.
2. Such notice shall include:
a. The tentative time and place, and the nature of the hearing;
b. The legal authority and jurisdiction under which the hearing is to
be held;
c. The matters of fact and law to be asserted;
d. A description of the procedures for the conduct of the hearing;
e. The name, address, and telephone number of the representative of
the Government, the defendant, and other parties, if any; and
f. Such other matters as the presiding officer deems appropriate.
The parties to the hearing shall be the defendant and the authority.
The reviewing official of each authority shall, with the concurrence of
the DoD Component head, designate attorneys within that authority to
represent the authority in hearings conducted under this part.
Attorneys appointed as authority representatives shall remain under the
supervision of their DoD Component.
1. The investigating official and the reviewing official, for any
particular case or factually related case, may not do the following:
a. Participate in the hearing as the presiding officer;
b. Participate or advise in the initial decision or the review of the
initial decision by the authority head, except as a witness or a
representative in a public proceeding; or
c. Make the collecting of penalties and assessments under 31 U.S.C.
3806.
2. The presiding officer shall not be responsible to, or subject to
the supervision or direction of, the investigating official or the
reviewing official.
3. Except as provided in subsection 1. of this section, the
representative for the Government may be employed anywhere in the
authority, including in the offices of either the investigating official
or the reviewing official.
No party or person (except employees of the presiding officer's
office) shall communicate in any way with the presiding officer on any
matter at issue in a case unless on notice and there is an opportunity
for all parties to participate. This provision does not prohibit a
person or party from inquiring about the status of a case or asking
routine questions concerning administrative functions or procedures.
1. A reviewing official or presiding officer in a particular case may
disqualify himself or herself at any time.
2. A party may file a motion for disqualification of the presiding
officer or the reviewing official. Such motion, to be filed with the
presiding officer, shall be accompanied by an affidavit alleging
personal bias or other reason for disqualification.
3. Such motion and affidavit shall be filed promptly upon the party's
discovery of reasons requiring disqualification or such objections shall
be deemed waived.
4. Such affidavit shall state specific facts that support the party's
belief that personal bias or other reason for disqualification exists
and the time and circumstances of the party's discovery of such facts.
It shall be accompanied by a certificate of the representative of record
that it is made in good faith.
5. Upon the filing of such a motion and affidavit, the presiding
officer shall proceed no further in the case until he or she resolves
the matter of disqualification by taking one of the following actions:
a. If the presiding officer determines that a reviewing official is
disqualified, the presiding officer shall dismiss the complaint without
prejudice;
b. If the presiding officer disqualifies himself or herself, the case
shall be reassigned promptly to another presiding officer;
c. The presiding officer may deny a motion to disqualify. In such
event, the authority head may determine the matter only as part of his
or her review of the initial decision upon appeal, if any.
Except as otherwise limited by this enclosure, all parties may:
1. Be accompanied, represented, and advised by a representative;
2. Participate in any conference held by the presiding officer;
3. Conduct discovery;
4. Agree to stipulations of fact or law, which shall be made part of
the record;
5. Present evidence relevant to the issues at the hearing;
6. Present and cross-examine witnesses;
7. Present oral arguments at the hearing, as permitted by the
presiding officer; and
8. Submit written briefs and proposed findings of fact and
conclusions of law after the hearing.
1. The presiding officer shall conduct a fair and impartial hearing,
avoid delay, maintain order, and assure that a record of the proceeding
is made.
2. The presiding officer has the authority to do the following:
a. Set and change the date, time, and place of the hearing upon
reasonable notice to the parties;
b. Continue or recess the hearing in whole or in part for a
reasonable period of time;
c. Hold conferences to identify or simplify the issues, or to
consider other matters that may aid in the expeditious disposition of
the proceeding;
d. Administer oaths and affirmations;
e. Issue subpoenas requiring the attendance of witnesses and the
production of documents at depositions or at hearings;
f. Rule on motions and other procedural matters;
g. Regulate the scope and timing of discovery;
h. Regulate the course of the hearing and the conduct of
representatives and parties;
i. Examine witnesses;
j. Receive, rule on, exclude, or limit evidence;
k. Upon motion of a party, take official notice of facts;
l. Upon motion of a party, decide cases, in whole or in part by
summary judgment where there is no disputed issue of material fact;
m. Conduct any conference, argument, or hearing on motions in person
or by telephone; and
n. Exercise such other authority as is necessary to carry out the
responsibilities of the presiding officer under this Directive.
3. The presiding officer does not have the authority to find Federal
statutes or regulations invalid.
1. The presiding officer may schedule prehearing conferences as
appropriate.
2. Upon the motion of any party, the presiding officer shall schedule
at least one prehearing conference at a reasonable time in advance of
the hearing.
3. The presiding officer may use prehearing conferences to discuss
the following:
a. Simplification of the issues;
b. The necessity or desirability of amendments to the pleadings,
including the need for a more definite statement;
c. Stipulations and admissions of fact or as to the contents and
authenticity of documents;
d. Whether the parties can agree to submission of the case on a
stipulated record;
e. Whether a party chooses to waive appearance at an oral hearing and
to submit only documentary evidence (subject to the objections of other
parties) and written argument;
f. Limitation of the number of witnesses;
g. Scheduling dates for the exchange of witness lists and of proposed
exhibits;
h. Discovery;
i. The time and place for the hearing; and
j. Such other matters as may tend to expedite the fair and just
disposition of the proceedings.
4. The presiding officer may issue an order containing all matters
agreed upon by the parties or ordered by the presiding officer at a
prehearing conference.
1. Upon written request to the reviewing official, the defendant may
review any relevant and material documents, transcripts, records, and
other materials that relate to the allegations set out in the complaint
and upon which the findings and conclusions of the investigating
official under subsection D.2., above, are based, unless such documents
are subject to a privilege under Federal law. Upon payment of fees for
duplication, the defendant may obtain copies of such documents.
2. Upon written request to the reviewing official, the defendant also
may obtain a copy of all exculpatory information in the possession of
the reviewing official or investigating official relating to the
allegations in the complaint, even if it is contained in a document that
would otherwise be privileged. If the document would otherwise be
privileged, only that portion containing exculpatory information must be
disclosed, except if disclosure would violate Rule 6(e) of the Federal
Rules of Criminal Procedure.
3. The notice sent to the Attorney General from the reviewing
official as described in section E., above, is not discoverable under
any circumstances.
4. The defendant may file a motion to compel disclosure of the
documents subject to the provisions of this section at any time after
service of the complaint.
1. The following types of discovery are authorized:
a. Requests for production of documents for inspection and copying;
b. Requests for admissions of the authenticity of any relevant
document or of the truth of any relevant fact;
c. Written interrogatories; and
d. Depositions.
2. For the purpose of this section and sections V. and W., below,
the term ''documents'' includes information, documents, reports,
answers, records, accounts, papers, and other data and documentary
evidence contained in a form contemplated by the definition of
''document'' set forth in the Federal Rules of Civil Procedure, Rule 34.
Nothing contained herein shall be interpreted to require the creation
of a document.
3. Unless mutually agreed to by the parties, discovery is available
only as ordered by the presiding officer. The presiding officer shall
regulate the timing of discovery.
4. Motions for discovery may be filed with the presiding officer by
the party seeking discovery.
a. Such a motion shall be accompanied by a copy of the requested
discovery, or in the case of depositions, a summary of the scope of the
proposed deposition.
b. Within 10 days of service, a party may file an opposition to the
motion and/or a motion for protective order as provided in section X.,
below.
c. The presiding officer may grant a motion of discovery only if he
finds that the discovery sought:
(1) Is necessary for the expeditious, fair, and reasonable
consideration of the issue;
(2) Is not unduly costly or burdensome;
(3) Will not unduly delay the proceeding; and
(4) Does not seek privileged information.
d. The burden of showing that discovery should be allowed is on the
party seeking discovery.
e. The presiding officer may grant discovery subject to a protective
order under section X., below.
a. If a motion for deposition is granted, the presiding officer shall
issue a subpoena for the deponent, which may require the deponent to
produce documents. The subpoena shall specify the time and place at
which the deposition will be held. The presiding officer may order that
parties produce deponents and/or documents without the need for
subpoena.
b. The party seeking to depose shall serve the subpoena in the manner
prescribed in section H., above.
c. The deponent may file with the presiding officer a motion to quash
the subpoena or a motion for a protective order within 10 days of
service.
d. The party seeking to depose shall provide for the taking of a
verbatim transcript of the deposition, which it shall make available to
all parties for inspection and copying.
6. Each party shall bear its own costs of discovery.
1. At least 15 days before the hearing or at such other time as may
be ordered by the presiding officer, the parties shall exchange witness
lists, copies of prior statements of proposed witnesses, and copies of
proposed hearing exhibits, including copies of any written statements
that the party intends to offer in lieu of live testimony in accordance
with subsection GG.2., below. At the time the above documents are
exchanged, any party that intends to rely upon the transcript of
deposition testimony in lieu of live testimony at the hearing, if
permitted by the presiding officer, shall provide each party with a copy
of the specific pages of the transcript it intends to introduce into
evidence.
2. If a party objects, the presiding officer shall not admit into
evidence the testimony of any witness whose name does not appear on the
witness list or any exhibit not provided to the opposing party as
provided above unless the presiding officer finds good cause for the
failure or that there is no prejudice to the objecting party.
3. Unless another party objects within the time set by the presiding
officer, documents exchanged in accordance with subsection 1. of this
section shall be admitted into evidence at the hearing. Later
challenges to admissibility at the hearing shall be permitted only upon
a showing of good cause for the lateness.
1. A party wishing to procure the appearance and testimony of any
individual at the hearing may request that the presiding officer issue a
subpoena.
2. A subpoena requiring the attendance and testimony of an individual
may also require the individual to produce documents at the hearing.
3. A party seeking a subpoena shall file a written request therefor
not less than 15 days before the date fixed for the hearing, unless
otherwise allowed by the presiding officer for good cause shown. Such
request shall specify any documents to be produced and shall designate
the witnesses and describe the address and location thereof with
sufficient particularity to permit such witnesses to be found.
4. The subpoena shall specify the time and place at which the witness
is to appear and any documents the witness is to produce.
5. The party seeking the subpoena shall serve it in the manner
prescribed in section H., above. A subpoena on a party or upon an
individual under the control of a party may be served by first class
mail.
6. A party or a representative of the individual to whom the subpoena
is directed may file with the presiding officer a motion to quash the
subpoena with 10 days after service or on or before the time specified
in the subpoena for compliance if it is less than 10 days after service.
1. A party or a prospective witness or deponent may file a motion for
a protective order with respect to discovery sought by an opposing party
or with respect to the hearing, seeking to limit the availability or
disclosure of evidence.
2. In issuing a protective order, the presiding officer may make any
order that justice requires to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense including one or
more of the following:
a. That the discovery not be had;
b. That the discovery may be had only on specified terms and
conditions, including a designation of the time or place;
c. That the discovery may be had only through a method of discovery
other than that requested;
d. That classified information not be released unless prior notice
and arrangements reasonably acceptable to the representative of the
authority are made in coordination with the Defense Investigative
Service, and the presiding officer agrees to the use;
e. That certain matters not be inquired into or that the scope of
discovery be limited to certain matters;
f. That discovery be conducted with no person except persons
designated by the presiding officer;
g. That the contents of discovery or evidence be sealed;
h. That the defendant comply with 32 CFR part 97 concerning official
witnesses;
i. That a deposition after being sealed be opened only upon order of
the presiding officer;
j. That a trade secret or other confidential research, development,
commercial information, or facts pertaining to any criminal
investigation, proceeding, or other administrative investigation not be
disclosed or be disclosed only in a designated way; or
k. That the parties simultaneously file specified documents of
information enclosed in sealed envelopes to be opened as directed by the
presiding officer.
The party requesting a subpoena shall pay the cost of the witness
fees and mileage of any witness subpoenaed in the amounts that would be
payable to a witness in a proceeding in the United States District
Court. A check for witness fees and mileage shall accompany the
subpoena when served, except that when a subpoena is issued on behalf of
the authority a check for witness fees and mileage need not accompany
the subpoena.
a. Documents filed with the presiding officer shall include an
original and two copies.
b. Every pleading and paper filed in the proceeding shall contain a
caption setting forth the title of the action, the case number assigned
by the presiding officer, and a designation of the paper (e.g., motion
to quash subpoena).
c. Every pleading and paper shall be signed by, and shall contain the
address and telephone number of, the party or the person on whose behalf
the paper was filed, or his or her representative.
d. Papers are considered filed when they are mailed. Date of mailing
may be established by a certificate from the party or its representative
or by proof that the document was sent by certified or registered mail.
2. Service. A party filing a document with the presiding officer
shall, at the time of filing, serve a copy of such document on every
other party. Service upon any party of any document other than those
required to be served as prescribed in section H., above, shall be made
by delivering a copy or by placing a copy of the document in the United
States mail, postage prepaid and addressed to the party's last known
address. When a party is represented by a representative, service shall
be made upon such representative in lieu of the actual party.
3. Proof of service. A certificate of the individual serving the
document by personal delivery or by mail, setting forth the manner of
service, shall be proof of service.
1. In computing any period of time under this part or in an order
issued thereunder, the time begins with the day following the act,
event, or default, and includes the last day of the period, unless it is
a Saturday, Sunday, or legal holiday observed by the Federal Government,
in which event it includes the next business day.
2. When the period of time allowed is less than 7 days, intermediate
Saturdays, Sundays, and legal holidays observed by the Federal
Government shall be excluded from the computation.
3. Where a document has been served or issued by placing it in the
mail, an additional 5 days will be added to the time permitted for any
response.
1. Any application to the presiding officer for an order or ruling
shall be by motion. Motions shall state the relief sought, the
authority relied upon, the facts alleged, and shall be filed with the
presiding officer and served on all other parties.
2. Except for motions made during a prehearing conference or at the
hearing, all motions shall be in writing. The presiding officer may
require the oral motions be put in writing.
3. Within 15 days after a written motion is served, or such other
time as may be fixed by the presiding officer, any party may file a
response to such motion.
4. The presiding officer may not grant a written motion before the
time for filing responses thereto has expired, except upon consent of
the parties or following a hearing on the motion, but may overrule or
deny such motion without awaiting a response.
5. The presiding officer shall make a reasonable effort to dispose of
all outstanding motions prior to the beginning of the hearing.
6. Failure by a party to raise defenses or objections or to make
requests that must be made prior to the beginning of the hearing shall
constitute waiver thereof, but the presiding officer may grant relief
from the waiver for good cause shown.
1. The presiding officer may sanction a person, including any party
or representative, for the following:
a. Failing to comply with an order, rule, or procedure governing the
proceeding;
b. Failing to prosecute or defend an action; or
c. Engaging in other misconduct that interferes with the speedy,
orderly, or fair conduct of the hearing.
2. Any such sanction, including but not limited to those listed in
subsections 3., 4., and 5. of this section, shall reasonably relate to
the severity and nature of the failure or misconduct.
3. When a party fails to comply with an order, including an order for
taking a deposition, the production of evidence within the party's
control, or a request for admission, the presiding officer may:
a. Draw an inference in favor of the requesting party with regard to
the information sought;
b. In the case of requests for admission, deem each matter of which
an admission is requested to be admitted;
c. Prohibit the party failing to comply with such order from
introducing evidence concerning, or otherwise relying upon, testimony
relating to the information sought; and
d. Strike any part of the pleadings or other submission of the party
failing to comply with such request.
4. If a party fails to prosecute or defend an action under this part
commenced by service of a notice of hearing, the presiding officer may
dismiss the action or may issue an initial decision imposing penalties
and assessments.
5. The presiding officer may refuse to consider any motion, request,
response, brief, or other document that is not filed in a timely
fashion.
1. The presiding officer shall conduct a hearing on the record in
order to determine whether the defendant is liable for a civil penalty
or assessment under section C., above, and, if so, the appropriate
amount of any such civil penalty or assessment considering any
aggravating or mitigating factors.
2. The authority shall prove defendant's liability and any
aggravating factors by a preponderance of the evidence.
3. The defendant shall prove any affirmative defenses and any
mitigating factors by a preponderance of the evidence.
4. The hearing shall be open to the public unless otherwise ordered
by the presiding officer for good cause shown.
In determining an appropriate amount of civil penalties and
assessments, the presiding officer and the authority head, upon appeal,
should evaluate any circumstances that mitigate or aggravate the
violation and should articulate in their opinions the reasons that
support the penalties and assessments they impose.
1. The hearing may be held as follows:
a. In any judicial district of the United States in which the
defendant resides or transacts business;
b. In any judicial district of the United States in which the claim
or statement at issue was made; or
c. In such other place, including foreign countries, as may be agreed
upon by the defendant and the presiding officer.
2. Each party shall have the opportunity to petition the presiding
officer with respect to the location of the hearing.
3. The hearing shall be held at the place and at the time ordered by
the presiding officer.
1. Except as provided in subsection 2. of this section, testimony at
the hearing shall be given orally by witnesses under oath or
affirmation.
2. At the discretion of the presiding officer, testimony may be
admitted in the form of a written or videotaped statement or deposition.
Any such written or videotaped statement must be provided to all other
parties along with the last known address of such witness, in a manner
which allows sufficient time for other parties to subpoena such witness
for deposition or cross-examination at the hearing. Prior written or
videotaped statements of witnesses proposed to testify at the hearings
and deposition transcripts shall be exchanged as provided in subsection
V.1., above.
3. The presiding officer shall exercise reasonable control over the
mode and order of interrogating witnesses and presenting evidence so as
to:
a. Make the interrogation and presentation effective for the
ascertainment of the truth;
b. Avoid needless consumption of time; and
c. Protect witnesses from harassment or undue embarrassment.
4. The presiding officer shall permit the parties to conduct such
cross-examination as may be required for a full and true disclosure of
the facts.
5. At the discretion of the presiding officer, a witness may be
cross-examined on matters relevant to the proceeding without regard to
the scope of his or her direct examination.
6. Upon motion of any party, the presiding officer shall order
witnesses excluded so that they cannot hear the testimony of other
witnesses. This rule does not authorize exclusion of the following:
a. A party who is an individual;
b. In the case of a party that is not an individual, an officer or
employee of the party appearing for the party as its representative, or
designated by the party's representative; or
c. An individual whose presence is shown by a party to be essential
to the presentation of its case, including an individual employed by the
Government engaged in assisting the representative for the Government.
1. The presiding officer shall determine the admissibility of
evidence.
2. Except as provided herein, the presiding officer shall not be
bound by the Federal Rules of Evidence. However, the presiding officer
may apply the Federal Rules of Evidence where appropriate; e.g., to
exclude unreliable evidence.
3. The presiding officer shall exclude irrelevant and immaterial
evidence.
4. Although relevant, evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice, confusion
of the issues, or by consideration of undue delay or needless
presentation of cumulative evidence.
5. Evidence shall be excluded if it is privileged under Federal law
and the holder of the privilege asserts it.
6. Evidence concerning offers of compromise or settlement shall be
inadmissible to the extent provided in Rule 408 of the Federal Rules of
Evidence.
7. The presiding officer shall permit the parties to introduce
rebuttal witnesses and evidence.
8. All documents and other evidence offered or taken for the record
shall be open to examination by all parties, unless otherwise ordered by
the presiding officer pursuant to section X., above.
1. The hearing will be recorded and transcribed. Transcripts may be
obtained following the hearing from the presiding officer at a cost not
to exceed the actual cost of duplication.
2. The transcript of testimony, exhibits, and other evidence admitted
at the hearing, and all papers and requests filed in the proceeding
constitute the record for the decision by the presiding officer and the
authority head.
3. The record may be inspected and copied (upon payment of a
reasonable fee) by anyone, unless otherwise ordered by the presiding
officer.
4. Funding for the hearing and record, except for the cost of the
presiding officer, shall be the responsibility of the authority in which
the case arose.
The presiding officer may require or permit the parties to file
post-hearing briefs. The presiding officer shall fix the time for
filing any such briefs, not to exceed 60 days from the date the parties
receive the transcript of the hearing or, if applicable, the stipulated
record. Such briefs may be accompanied by proposed findings of fact and
conclusions of law. The presiding officer may permit the parties to
file reply briefs.
1. The presiding officer shall issue an initial decision based only
on the record that shall contain findings of fact, conclusions of law,
and the amount of any penalties and assessments imposed.
2. The findings of fact shall include a finding on each of the
following issues:
a. Whether the claims or statements identified in the complaint, or
any portions thereof, violate section C., above; and
b. If the person is liable for penalties or assessments, the
appropriate amount of any such penalties or assessments.
3. The presiding officer shall promptly serve the initial decision on
all parties within 90 days after the time for submission of post-hearing
briefs and reply briefs (if permitted) has expired. The presiding
officer shall at the same time serve all parties with a statement
describing the right of any defendant determined to be liable for a
civil penalty or assessment to file a motion for reconsideration with
the presiding officer or a notice of appeal with the authority head. If
the presiding officer fails to meet the deadline contained in this
subsection, he or she shall notify the parties of the reason for the
delay and shall set a new deadline.
4. Unless the initial decision of the presiding officer is timely
appealed to the authority head, or a motion for reconsideration of the
initial decision is timely filed, the initial decision of the presiding
officer shall be final and binding on the parties 30 days after it is
issued by the presiding officer.
1. Except as provided in subsection 4. of this section, any party
may file a motion for reconsideration of the initial decision within 20
days of service of the initial decision in the manner set forth in
section H., above, for service of the complaint. Service shall be
proved in the manner provided in subsection H.2., above.
2. Every such motion must set forth the matters claimed to have been
erroneously decided and the nature of the alleged errors. Such motion
shall be accompanied by a supporting brief.
3. Responses to such motions shall be allowed only upon request of
the presiding officer; however, the presiding officer shall not issue a
revised initial determination without affording both parties an
opportunity to be heard on the motion for reconsideration.
4. No party may file a motion for reconsideration of an initial
decision that has been revised in response to a previous motion for
reconsideration.
5. The presiding officer may dispose of a motion for reconsideration
by denying it or by issuing a revised initial decision.
6. If the presiding officer denies a motion for reconsideration, the
initial decision shall constitute the final decision of the authority
head and shall be final and binding on the parties 30 days after the
presiding officer denies the motion, unless the initial decision is
timely appealed to the authority head in accordance with section MM.,
below.
7. If the presiding officer issues a revised initial decision, that
decision shall constitute the final decision of the authority head and
shall be final and binding on the parties 30 days after it is issued,
unless it is timely appealed to the authority head in accordance with
section MM., below.
1. Any defendant who has filed a timely answer and who is determined
in an initial decision to be liable for a civil penalty or assessment
may appeal such decision to the authority head by filing a notice of
appeal with the authority head in accordance with this section.
2. A notice of appeal:
a. May be filed at any time within 30 days after the presiding
officer issues an initial or a revised initial decision. If another
party files a motion for reconsideration under section LL., above,
consideration of the appeal shall be stayed automatically pending
resolution of the motion for reconsideration, until the time period for
filing a motion for reconsideration under section LL., above, has
expired or the motion is resolved;
b. If a motion for reconsideration is timely filed, a notice of
appeal may be filed within 30 days after the presiding officer denies
the motion or issues a revised initial decision, whichever applies;
c. The authority head may extend the initial 30-day period for an
additional 30 days if the defendant files with the authority head a
request for an extension within the initial 30-day period and shows good
cause.
3. If the defendant files a timely notice of appeal with the
authority head, the presiding officer shall forward the record of the
proceeding to the authority head when:
a. The time for filing a motion for reconsideration expires without
the filing of such a motion, or
b. The motion for reconsideration is denied. Issuance of a revised
initial decision upon motion for reconsideration shall require filing of
a new notice of appeal.
4. A notice of appeal shall be accompanied by a written brief
specifying exceptions to the initial decision and reasons supporting the
exceptions.
5. The representative for the Government may file a brief in
opposition to the exceptions within 30 days of receiving the notice of
appeal and accompanying brief.
6. There is no right to appear personally before the authority head,
although the authority head may at his or her discretion require the
parties to appear for an oral hearing on appeal.
7. There is no right to appeal any interlocutory ruling by the
presiding officer.
8. In reviewing the initial decision, the authority head shall not
consider any objection that was not raised before the presiding officer,
unless a demonstration is made of extraordinary circumstances causing
the failure to raise the objection.
9. If any party demonstrates to the satisfaction of the authority
head that additional evidence not presented at such hearing is material
and that there were reasonable grounds for the failure to present such
evidence at such hearing, the authority head shall remand the matter to
the presiding officer for consideration of such additional evidence.
10. The authority head may affirm, reduce, reverse, compromise,
remand, or settle any penalty or assessment determined by the presiding
officer in any initial decision.
11. The authority head shall promptly serve each party to the appeal
with a copy of the decision of the authority head and a statement
describing the right of any person determined to be liable for a penalty
or assessment to seek judicial review.
12. Unless a petition for review is filed as provided in 32 U.S.C.
3805 after a defendant has exhausted all administrative remedies under
this part and within 60 days after the date on which the authority head
serves the defendant with a copy of the authority head's decision, a
determination that a defendant is liable under section C., above, is
final and is not subject to judicial review.
13. The authority heads (or their designees) may designate an officer
or employee of the authority, who is serving in the grade of GS-17 or
above under the General Schedule, or in the Senior Executive Service, to
carry out these appellate responsibilities; however, the authority to
compromise, settle, or otherwise discretionarily dispose of the case on
appeal provided pursuant to subsection MM.10, hereof, may not be so
redelegated pursuant to this subsection.
If at any time, the Attorney General or an Assistant Attorney General
designated by the Attorney General transmits to the authority head a
written finding that continuation of the administrative process
described in this Directive with respect to a claim or statement may
adversely affect any pending or potential criminal or civil action
related to such claim or statement, the authority head shall stay the
process immediately. The authority head may order the process resumed
only upon receipt of the written authorization of the Attorney General.
1. An initial decision is stayed automatically pending disposition of
a motion for reconsideration or of an appeal to the authority head.
2. No administrative stay is available following a final decision of
the authority head.
31 U.S.C. 3805 authorizes judicial review by an appropriate United
States District Court of a final decision of the authority head imposing
penalties or assessment under this part and specifies the procedures for
such review.
31 U.S.C. 3806 and 3808(b) authorize actions for collection of civil
penalties and assessments imposed under this part and specify the
procedures for such actions.
The amount of any penalty or assessment that has become final, or for
which a judgment has been entered under section QQ., above, or any
amount agreed upon in a compromise or settlement under section TT.,
below, may be collected by administrative offset under 31 U.S.C. 3716,
except that an administrative offset may not be made under this section
against a refund of an overpayment of Federal taxes then or later owing
by the United States to the defendant.
All amounts collected pursuant to this part shall be deposited as
miscellaneous receipts in the Treasury of the United States, except as
provided in 31 U.S.C. 3806(g).
1. Parties may make offers of compromise or settlement at any time.
2. The reviewing official has the exclusive authority to compromise
or settle a case under this part at any time after the date on which the
reviewing official is permitted to issue a complaint and before the date
on which the presiding officer issues an initial decision.
3. The authority head has exclusive authority to compromise or settle
a case under this Directive at any time after the date on which the
presiding officer issues an initial decision, except during the pendency
of any review under section PP., above, or during the pendency of any
action to collect penalties as assessments under section QQ., above.
4. The Attorney General has exclusive authority to compromise or
settle a case under this part during the pendency of any review under
section PP., above, of any action to recover penalties and assessments
under 31 U.S.C. 3806.
5. The investigating official may recommend settlement terms to the
reviewing official or the Attorney General, as appropriate. The
reviewing official may recommend settlement terms to the Attorney
General, as appropriate.
6. Any compromise or settlement must be in writing.
1. The notice of hearing with respect to a claim or settlement must
be served in the manner specified in section H., above, within 6 years
after the date on which such claim or statement is made.
2. If the defendant fails to file a timely answer, service of a
notice under subsection J.2., above, shall be deemed a notice of hearing
for purposes of this section.
3. If at any time during the course of proceedings brought pursuant
to this section, the authority head receives or discovers any specific
information concerning bribery, gratuities, conflict of interest, or
other corruption or similar activity in relation to a false claim or
statement, the authority head shall immediately report such information
to the Attorney General and to the Inspector General, Department of
Defense.
The General Counsel for the Department of Defense is designated to
carry out the reponsibilities of the authority head of the Department of
Defense for the issuance of additional implementing regulations that are
necessary to implement PFCRA and this part to decide cases upon appeal,
and to hire or designate employees of the Department of Defense to
decide cases on appeal. The General Counsel, Department of Defense, is
also designated to appoint presiding officers for the Department of
Defense, and may assist in the appointment of presiding officers on
detail from other Agencies for all authorities within the Department of
Defense.
32 CFR 277.4 Subpart E -- Entitlement (Reserved)
32 CFR 277.4 SUBCHAPTER N -- FREEDOM OF INFORMATION ACT PROGRAM
32 CFR 277.4 PART 285 -- FREEDOM OF INFORMATION ACT PROGRAM
Sec.
285.1 Reissuance and purpose.
285.2 Applicability and scope.
285.3 Definitions.
285.4 Policy.
285.5 Responsibilities.
285.6 Information requirements.
285.7 Effective date and implementation.
Authority: Pub. L. 99-570, secs. 1801-1804; Pub. L. 99-661, sec.
2328; 5 U.S.C. 552.
Source: 53 FR 19905, June 1, 1988, unless otherwise noted.
Redesignated at 56 FR 24133, May 29, 1991.
32 CFR 285.1 Reissuance and purpose.
(a) This part:
(1) Reissues DoD Directive 5400.7. /1/
(2) Establishes policies and procedures for the implementation of the
DoD Freedom of Information Act (FOIA) Program under 5 U.S.C. 552.
(3) Delegates authorities and responsibilities for the effective
administration of the program.
(b) This part also authorizes, consistent with DoD 5025.1-M /2/ the
publication of DoD 5400.7-R /3/ the single DoD regulation on the FOIA
Program.
/1/ Copies may be obtained, if needed, from the U.S. Naval
Publications and Forms Center, Attn: Code 1052, 5801 Tabor Avenue,
Philadelphia, PA 19120.
/2/ Copies may be obtained, at cost, from the National Technical
Information Service, 5258 Port Royal Road, Springfield, VA 22161.
/3/ See footnote 2 to 285.1(b).
32 CFR 285.2 Applicability and scope.
(a) This part applies to the Office of the Secretary of Defense
(OSD), the Military Departments, the Organization of the Joint Chiefs of
Staff (OJCS), the Unified Commands, the Defense Agencies, and the DoD
Field Activities. For the purpose of this Directive, OSD, OJCS, the
Unified Commands, and the DoD Field Activities are considered a single
''DoD Component.'' The other DoD Components referred to herein are the
Military Departments, Defense Communications Agency (DCA), Defense
Contract Audit Agency (DCAA), Defense Intelligence Agency (DIA), Defense
Investigative Service (DIS), Defense Logistics Agency (DLA), Defense
Mapping Agency (DMA), Defense Nuclear Agency (DNA), and the National
Security Agency/Central Security Service (NSA/CSS).
(b) The NSA/CSS records are subject to this part unless the records
are exempt under Pub. L. 86-36.
32 CFR 285.3 Definitions.
The terms used in this part are defined in 32 CFR part 286.
32 CFR 285.4 Policy.
It is DoD policy to:
(a) Promote public trust by making the maximum amount of information
available to the public on the operation and activities of the
Department of Defense, consistent with DoD's responsibility to ensure
national security.
(b) Allow a requester to obtain records from the Department of
Defense that are available through other public information services
without invoking the FOIA.
(c) Make available, under the procedures established by 32 CFR part
286, those records that are requested by a member of the general public
who cites the FOIA.
(d) Answer promptly all other requests for information, records,
objects, and articles under established procedures and practices.
(e) Release records to the public unless those records are exempt
from mandatory disclosure as outlined in subpart C of 32 CFR part 286.
(f) Process requests by individuals for access to records about
themselves under the ''Privacy Act'' procedures as implemented by 32 CFR
part 286a and procedures outlined in this part as amplified by 32 CFR
part 286.
32 CFR 285.5 Responsibilities.
(a) The Assistant Secretary of Defense (Public Affairs) (ADS(PA))
shall:
(1) Direct and administer the DoD FOIA Program to ensure compliance
with policies and procedures that govern the administration of the
program.
(2) Issue a DoD FOIA regulation and other discretionary instructions
and guidance to ensure timely and reasonably uniform implementation of
the FOIA in the Department of Defense.
(3) Internally administer the FOIA Program for the OSD, the OJCS and,
as an exception to DoD Directive 5100.3 /4/ the Unified Commands (the
Specified Commands remain under the Military Departments for FOIA
matters).
(4) As the designee of the Secretary of Defense, serve as the sole
appellate authority for appeals to decisions of respective Initial
Denial Authorities identified in ASD(PA) supplementing instructions.
(b) The General Counsel, Department of Defense (GC, DoD) shall
provide uniformity in the legal interpretation of this Directive.
(c) The Heads of DoD Components shall:
(1) Publish in the Federal Register any instructions necessary for
the internal administration of this part within a DoD Component that are
not prescribed by this part or by other issuances of the ASD(PA). For
the guidance of the public, the information specified in 5 U.S.C.
552(a)(1) shall be published in accordance with 32 CFR part 296.
(2) Conduct training on the provisions of this part and 5 U.S.C., as
amended, for officials and employees who implement the FOIA.
(3) Submit the reports prescribed in Chapter VII of DoD 5400.7-R.
(4) Make available for public inspection and copying in an
appropriate facility or facilities, in accordance with rules published
in the Federal Register, the records specified in 5 U.S.C. 552(a)(2)
unless such records are published and copies are offered for sale.
(5) Maintain and make available for public inspection and copying
current indices of these records.
/4/ See footnote 1 to 286.1(a).
32 CFR 285.6 Information requirements.
The reporting requirements in Chapter VII of DoD 5400.7-R have been
assigned Report Control Symbol DD-PA(A)1365.
32 CFR 285.7 Effective date and implementation.
This part is effective May 13, 1988. Forward one copy of
implementing documents to the Assistant Secretary of Defense (Public
Affairs) within 120 days.
32 CFR 285.7 PART 286 -- DOD FREEDOM OF INFORMATION ACT PROGRAM REGULATION
32 CFR 285.7 Subpart A -- General Provisions
Sec.
286.1 Purpose.
286.2 Applicability.
286.3 DoD public information.
286.4 Control system.
286.5 Definitions.
286.7 Policy.
32 CFR 285.7 Subpart B -- FOIA Reading Rooms
286.9 Requirements.
286.11 Indexes.
32 CFR 285.7 Subpart C -- Exemptions
286.12 General provisions.
286.13 Exemptions.
32 CFR 285.7 Subpart D -- For Official Use Only
286.15 General provisions.
286.17 Markings.
286.19 Dissemination and transmission.
286.20 Safeguarding FOUO information.
286.23 Termination, disposal and unauthorized disclosures.
32 CFR 285.7 Subpart E -- Release and Processing Procedures
286.25 General provisions.
286.27 Initial determinations.
289.29 Appeals.
286.31 Judicial actions.
32 CFR 285.7 Subpart F -- Fee Schedule
286.33 General provisions.
286.35 Collection of fees and fee rates.
286.37 Collection of fees and fee rates for technical data.
32 CFR 285.7 Subpart G -- Reports
286.39 Reports control.
286.41 Annual report.
32 CFR 285.7 Subpart H -- Education and Training
286.43 Responsibility and purpose.
Appendix A to Part 286 -- Unified Commands -- Processing Procedures
For FOIA Appeals
Appendix B to Part 286 -- Addressing FOIA Requests
Appendix C to Part 286 -- Litigation Status Sheet
Appendix D to Part 286 -- Other Reason Categories
Appendix E to Part 286 -- Record of Freedom of Information (FOI)
Processing Cost (DD Form 2086)
Appendix F to Part 286 -- Record of Freedom of Information (FOI)
Processing Cost for Technical Data (DD Form 2086-1)
Appendix G to Part 286 -- Annual Report Freedom of Information Act
(DD Form 2564)
Appendix H to Part 286 -- DOD Freedom of Information Act Program
Components
Authority: 5 U.S.C. 552.
Source: 55 FR 53104, Dec. 26, 1990, unless otherwise noted.
32 CFR 285.7 Subpart A -- General Provisions
32 CFR 286.1 Purpose.
The purpose of this part is to provide policies and procedures for
the Department of Defense (DoD) implementation of the Freedom of
Information Act and DoD Directive 5400.7 /1/ and to promote uniformity
in the DoD Freedom of Information Act (FOIA) Program.
/1/ Copies may be obtained, at cost, from the National Technical
Information Service (NTIS), 5285 Port Royal Road, Springfield, VA 22161.
32 CFR 286.2 Applicability.
(a) This part applies to the Office of the Secretary of Defense (OSD)
which includes for the purpose of this part the Chairman, Joint Chiefs
of Staff and Joint Staff, Unified Commands, the Military Departments,
the Defense Agencies, and the DoD Field Activities (hereafter referred
to as ''DoD Components''), and takes precedence over all DoD Component
regulations that supplement the DoD FOIA Program. A list of DoD
Components is in appendix H to this part.
(b) The National Security Agency records are subject to the
provisions of this part, only to the extent the records are not exempt
under Public Law 86-36.
32 CFR 286.3 DoD public information.
The public has a right to information concerning the activities of
its Government. DoD policy is to conduct its activities in an open
manner and provide the public with a maximum amount of accurate and
timely information concerning its activities, consistent always with the
legitimate public and private interests of the American people. A DoD
record requested by a member of the public who follows rules established
by proper authority in the Department of Defense shall be withheld only
when it is exempt from mandatory public disclosure under the FOIA. In
order that the public may have timely information concerning DoD
activities, records requested through public information channels by
news media representatives that would not be withheld if requested under
the FOIA should be released upon request. Prompt responses to requests
for information from news media representatives should be encouraged to
eliminate the need for these requesters to invoke the provisions of the
FOIA and thereby assist in providing timely information to the public.
Similarly, requests from other members of the public for information
should continue to be honored through appropriate means even though the
request does not qualify under FOIA requirements.
32 CFR 286.4 Control system.
A request for records that invokes the FOIA shall enter a formal
control system designed to ensure compliance with the FOIA. A release
determination must be made and the requester informed within the time
limits specified in this part. Any request for DoD records that either
explicitly or implicitly cites the FOIA shall be processed under the
provisions of this part, unless otherwise required by 286.7(m).
32 CFR 286.5 Definitions.
As used in this part, the following terms and meanings shall be
applicable:
(a) FOIA request. A written request for DoD records, made by any
person, including a member of the public (U.S. or foreign citizen), an
organization, or a business, but not including a Federal agency or a
fugitive from the law that either explicitly or implicitly invokes the
FOIA, DoD Directive 5400.7, this part, or DoD Component supplementing
regulations or instructions.
(b) Agency record. (1) The products of data compilation, such as all
books, papers, maps, and photographs, machine readable materials or
other documentary materials, regardless of physical form or
characteristics, made or received by an agency of the United States
Government under Federal law in connection with the transaction of
public business and in DoD's possession and control at the time the FOIA
request is made.
(2) The following are not included within the definition of the word
''record'':
(i) Objects or articles, such as structures, furniture, vehicles and
equipment, whatever their historical value, or value as evidence.
(ii) Administrative tools by which records are created, stored, and
retrieved, if not created or used as sources of information about
organizations, policies, functions, decisions, or procedures of a DoD
Component. Normally, computer software, including source code, object
code, and listings of source and object codes, regardless of medium are
not agency records. (This does not include the underlying data which is
processed and produced by such software and which may in some instances
be stored with the software.) Exceptions to this position are outlined
in paragraph (b)(3) of this section.
(iii) Anything that is not a tangible or documentary record, such as
an individual's memory or oral communication.
(iv) Personal records of an individual not subject to agency creation
or retention requirements, created and maintained primarily for the
convenience of an agency employee, and not distributed to other agency
employees for their official use.
(v) Information stored within a computer for which there is no
existing computer program for retrieval of the requested information.
(3) In some instances, computer software may have to be treated as an
agency record and processed under the FOIA. These situations are rare,
and shall be treated on a case-by-case basis. Examples of when computer
software may have to be treated as an agency record are:
(i) When the data is embedded within the software and cannot be
extracted without the software. In this situation, both the data and
the software must be reviewed for release or denial under the FOIA.
(ii) Where the software itself reveals information about
organizations, policies, functions, decisions, or procedures of a DoD
Component, such as computer models used to forecast budget outlays,
calculate retirement system costs, or optimization models on travel
costs.
(iii) See subpart C of this part for guidance on release
determinations of computer software.
(iv) A record must exist and be in the possession and control of the
Department of Defense at the time of the request to be considered
subject to this part and the FOIA. There is no obligation to create,
compile, or obtain a record to satisfy a FOIA request.
(v) If unaltered publications and processed documents, such as
regulations, manuals, maps, charts, and related geophysical materials
are available to the public through an established distribution system
with or without charge, the provisions of 5 U.S.C. 552 (a)(3) normally
do not apply and they need not be processed under the FOIA. Normally,
documents disclosed to the public by publication in the Federal Register
also require no processing under the FOIA. In such cases, Components
should direct the requester to the appropriate source, to obtain the
record.
(c) DoD Component. An element of the Department of Defense, as
defined in 286.1, authorized to receive and act independently on FOIA
requests. A DoD Component has its own initial denial authority (IDA) or
appellate authority, and general counsel.
(d) Initial Denial Authority (IDA). An official who has been granted
authority by the head of a DoD Component to withhold records requested
under the FOIA for one or more of the nine categories of records exempt
from mandatory disclosure.
(e) Appellate authority. The Head of the DoD Component or the
Component head's designee having jurisdiction for this purpose over the
record.
(f) Administrative appeal. A request by a member of the general
public, made under the FOIA, asking the appellate authority of a DoD
Component to reverse an IDA decision to withhold all or part of a
requested record or to deny a request for waiver or reduction of fees.
(g) Public interest. Public interest is official information that
sheds light on an agency's performance of its statutory duties because
it falls within the statutory purpose of the FOIA in informing citizens
about what their government is doing. That statutory purpose, however,
is not fostered by disclosure of information about private citizens that
is accumulated in various governmental files that reveals little or
nothing about an agency's or official's own conduct.
(h) Electronic data. Electronic data are those records and
information which are created, stored, and retrievable by electronic
means. This does not include computer software, which is the tool by
which to create, store, or retrieve electronic data. See paragraph
(b)(2) (ii) and (iii) of this section for a discussion of computer
software.
32 CFR 286.7 Policy.
(a) Compliance with the FOIA. DoD personnel are expected to comply
with the FOIA and this part in both letter and spirit. This strict
adherence is necessary to provide uniformity in the implementation of
the DoD FOIA Program and to create conditions that will promote public
trust.
(b) Openness with the public. The Department of Defense shall
conduct its activities in an open manner consistent with the need or
security and adherence to other requirements of law and regulation.
Records not specifically exempt from disclosure under the Act shall,
upon request, be made readily accessible to the public in accordance
with rules promulgated by competent authority, whether or not the Act is
invoked.
(c) Avoidance of procedural obstacles. DoD Components shall ensure
that procedural matters do not unnecessarily impede a requester from
obtaining DoD records promptly. Components shall provide assistance to
requesters to help them understand and comply with procedures
established by this part and any supplemental regulations published by
the DoD Components.
(d) Prompt action on requests. When a member of the public complies
with the procedures established in this part for obtaining DoD records,
the request shall receive prompt attention; a reply shall be dispatched
within 10 working days, unless a delay is authorized. When a Component
has a significant number of requests, e.g., 10 or more, the requests
shall be processed in order of receipt. However, this does not preclude
a Component from completing action on a request which can be easily
answered, regardless of its ranking within the order of receipt. A DoD
Component may expedite action on a request regardless of its ranking
within the order of receipt upon a showing of exceptional need or
urgency. Exceptional need or urgency is determined at the discretion of
the Component processing the request.
(e) Use of FOIA exemptions. It is DoD policy to make records
publicly available, unless they qualify for exemption under one or more
of the nine exemptions. Components may elect to make a discretionary
release, however, a discretionary release is generally not appropriate
for records exempt under exemptions 1, 3, 4, 6 and 7(C). Exemptions 4,
6 and 7(C) cannot be claimed when the requester is the submitter of the
information.
(f) Public domain. Nonexempt records released under the authority of
this part are considered to be in the public domain. Such records may
also be made available in Components' reading rooms to facilitate public
access. Exempt records released pursuant to this part or other
statutory or regulatory authority, however, may be considered to be in
the public domain only when their release constitutes a waiver of the
FOIA exemption. When the release does not constitute such a waiver,
such as when disclosure is made to a properly constituted advisory
committee or to a Congressional Committee, the released records do not
lose their exempt status. Also, while authority may exist to disclose
records to individuals in their official capacity, the provisions of
this part apply if the same individual seeks the records in a private or
personal capacity.
(g) Creating a record. (1) A record must exist and be in the
possession and control of the Department of Defense at the time of the
search to be considered subject to this part and the FOIA. Mere
possession of a record does not presume departmental control and such
records, or identifiable portions thereof, would be referred to the
originating Agency for direct response to the requester. There is no
obligation to create nor compile a record to satisfy an FOIA request. A
DoD Component, however, may compile a new record when so doing would
result in a more useful response to the requester, or be less burdensome
to the agency than providing existing records, and the requester does
not object. Cost of creating or compiling such a record may not be
charged to the requester unless the fee for creating the record is equal
to or less than the fee which would be charged for providing the
existing record. Fee assessments shall be in accordance with Subpart D
of this part.
(2) With respect to electronic data, the issue of whether records are
actually created or merely extracted from an existing database is not
always readily apparent. Consequently, when responding to FOIA requests
for electronic data where creation of a record, programming, or
particular format are questionable, Components should apply a standard
of reasonableness. In other words, if the capability exists to respond
to the request, and the effort would be a business as usual approach,
then the request should be processed. However, the request need not be
processed where the capability to respond does not exist without a
significant expenditure of resources, thus not being a normal business
as usual approach.
(h) Description of requested record. (1) Identification of the
record desired is the responsibility of the member of the public who
requests a record. The requester must provide a description of the
desired record, that enables the Government to locate the record with a
reasonable amount of effort. The Act does not authorize ''fishing
expeditions.'' When a DoD Component receives a request that does not
''reasonably describe'' the requested record, it shall notify the
requester of the defect. The defect should be highlighted in a
specificity letter, asking the requester to provide the type of
information outlined in paragraph (h)(2) of this section. Components
are not obligated to act on the request until the requester responds to
the specificity letter. When practicable, Components shall offer
assistance to the requester in identifying the records sought and in
reformulating the request to reduce the burden on the agency in
complying with the Act.
(2) The following guidelines are provided to deal with ''fishing
expedition'' requests and are based on the principle of reasonable
effort. Descriptive information about a record may be divided into two
broad categories.
(i) Category I is file-related and includes information such as type
of record (for example, memorandum), title, index citation, subject
area, date the record was created, and originator.
(ii) Category II is event-related and includes the circumstances that
resulted in the record being created or the date and circumstances
surrounding the event the record covers.
(iii) Generally, a record is not reasonably described unless the
description contains sufficient Category I information to permit the
conduct of an organized, nonrandom search based on the Component's
filing arrangements and existing retrieval systems, or unless the record
contains sufficient Category II information to permit inference of the
Category I elements needed to conduct such a search.
(iv) The following guidelines deal with requests for personal
records. Ordinarily, when personal identifiers are provided only in
connection with a request for records concerning the requester, only
records retrievable by personal identifiers need be searched. Search
for such records may be conducted under Privacy Act procedures. No
record may be denied that is releasable under the FOIA.
(v) The previous guidelines notwithstanding, the decision of the DoD
Component concerning reasonableness of description must be based on
knowledge of its files. If the description enables DoD Component
personnel to locate the record with reasonable effort, the description
is adequate.
(i) Referrals. (1) A request received by a DoD Component having no
records responsive to a request shall be referred routinely to another
DoD Component, if the other Component confirms that it has the requested
record, and this belief can be confirmed by the other DoD Component. In
cases where the Component receiving the request has reason to believe
that the existence or nonexistence of the record may in itself be
classified, that Component shall consult the DoD Component having
cognizance over the record in question before referring the request. If
the DoD Component that is consulted determines that the existence or
nonexistence of the record is in itself classified, the requester shall
be so notified by the DoD Component originally receiving the request,
and no referral shall take place. Otherwise, the request shall be
referred to the other DoD Component, and the requester shall be notified
of any such referral. Any DoD Component receiving a request that has
been misaddressed shall refer the request to the proper address and
advise the requester.
(2) Whenever a record or a portion of a record is, after prior
consultation, referred to another DoD Component or to a Government
agency outside of the Department of Defense for a release determination
and direct response, the requester shall be informed of the referral.
Referred records shall only be identified to the extent consistent with
security requirements.
(3) A DoD Component shall refer an FOIA request for a classified
record that it holds to another DoD Component or agency outside the
Department of Defense, if the record originated in the other DoD
Component or outside agency or if the classification is derivative. In
this situation, provide the record and a release recommendation on the
record with the referral action.
(4) A DoD Component may refer a request for a record that it
originated to another DoD Component or agency when the record was
created for the use of the other DoD Component or agency. The DoD
Component or agency for which the record was created may have an equally
valid interest in withholding the record as the DoD Component that
created the record. In such situations, provide the record and a
release recommendation on the record with the referral action. An
example of such a situation is a request for audit reports prepared by
the Defense Contract Audit Agency. These advisory reports are prepared
for the use of contracting officers and their release to the audited
contractor shall be at the discretion of the contracting officer. Any
FOIA request shall be referred to the appropriate contracting officer
and the requester shall be notified of the referral.
(5) Within the Department of Defense, a Component shall ordinarily
refer an FOIA request for a record that it holds, but that was
originated by another DoD Component or that contains substantial
information obtained from another DoD Component, to that Component for
direct response, after direct coordination and obtaining concurrence
from the Component. The requester then shall be notified of such
referral. DoD Components shall not, in any case, release or deny such
records without prior consultation with the other DoD Component.
(6) DoD Components that receive referred requests shall answer them
in accordance with the time limits established by the FOIA and this
part. Those time limits shall begin to run upon receipt of the referral
by the official designated to respond.
(7) Agencies outside the Department of Defense that are subject to
the FOIA:
(i) A Component may refer an FOIA request for any record that
originated in an agency outside the DoD or that is based on information
obtained from an outside agency to the agency for direct response to the
requester after coordination with the outside agency, if that agency is
subject to FOIA. Otherwise, the Component must respond to the request.
(ii) A DoD Component shall refer to the agency that provided the
record any FOIA request for investigative, intelligence, or any other
type of records that are on loan to the Department of Defense for a
specific purpose, if the records are restricted from further release and
so marked. However, if for investigative or intelligence purposes, the
outside agency desires anonymity, a Component may only respond directly
to the requester after coordination with the outside agency.
(iii) Notwithstanding anything to the contrary in paragraph (i)(1) of
this section, a Component shall notify requesters seeking National
Security Council (NSC) or White House documents that they should write
directly to the NSC or White House for such documents. DoD documents in
which the NSC or White House has a concurrent reviewing interest shall
be forwarded to the Office of the Assistant Secretary of Defense (Public
Affairs) (OASD(PA)), ATTN: Directorate For Freedom of Information and
Security Review (DF0ISR), which shall effect coordination with the NSC
or White House, and return the documents to the originating agency after
NSC review and determination. NSC or White House documents discovered
in Components' files which are responsive to the FOIA request shall be
forwarded to the ASD(PA), ATTN: DF0ISR, for subsequent coordination
with the NSC or White House, and returned to the Component with a
release determination.
(8) To the extent referrals are consistent with the policies
expressed by this paragraph, referrals between offices of the same DoD
Component are authorized.
(9) On occasion, the Department of Defense receives FOIA requests for
General Accounting Office (GAO) documents containing DoD information.
Even though the GAO is outside the Executive Branch, and not subject to
the FOIA, all requests for GAO documents containing DoD information
received either from the public or referral from the GAO, will be
processed under the provision of the FOIA.
(j) Authentication. Records provided under this part shall be
authenticated with an appropriate seal, whenever necessary, to fulfill
an official Government or other legal function. This service, however,
is in addition to that required under the FOIA and is not included in
the FOIA fee schedule. DoD Components may charge for the service at a
rate of $5.20 for each authentication.
(k) Unified and Specified Commands. (1) The Unified Commands are
placed under the jurisdiction of the OSD, instead of the administering
Military Department, only for the purpose of administering the DoD FOIA
Program. This policy represents and exception to the policies directed
in DoD Directive 5100.3 /2/ ; it authorizes and requires the Unified
Commands to process Freedom of Information (FOI) requests in accordance
with DoD Directive 5400.7 and this part. The Unified Commands shall
forward directly to the OASD(PA), all correspondence associated with the
appeal of an initial denial for records under the provisions of the
FOIA. Procedures to effect this administrative requirement are outlined
in Appendix A of this part.
(2) The Specified Commands remain under the jurisdiction of the
administering Military Department. The Commands shall designate IDAs
within their headquarters; however, the appellate authority shall
reside with the Military Department.
(l) Records management. FOIA records shall be maintained and
disposed of in accordance with DoD Component Disposition instructions
and schedules.
(m) Relationship between the FOIA and the Privacy Act (PA). Not all
requesters are knowledgeable of the appropriate statutory authority to
cite when requesting records. In some instances, they may cite neither
Act, but will imply one or both Acts. For these reasons, the following
guidelines are provided to ensure that requesters receive the greatest
amount of access under both Acts:
(1) Requesters who seek records about themselves contained in a PA
system of records and who cite or imply the PA, will have their requests
processed under the provisions of the PA.
(2) Requesters who seek records about themselves which are not
contained in a PA system of records and who cite or imply the PA, will
have their requests processed under the provisions of the FOIA, since
they have no access under the PA.
(3) Requesters who seek records about themselves which are contained
in a PA system of records and who cite or imply the FOIA or both acts
will have their requests processed under the time limits of the FOIA and
the exemptions and fees of the PA. This is appropriate since greater
access will be received under the PA.
(4) Requesters who seek access to agency records and who cite or
imply the PA and FOIA, will have their requests processed under the
FOIA.
(5) Requesters who seek access to agency records and who cite or
imply the FOIA, will have their requests processed under the FOIA.
(6) Requesters should be advised in final responses why their request
was processed under a particular Act.
/2/ See footnote 1 to 286.1
32 CFR 286.7 Subpart B -- FOIA Reading Rooms
32 CFR 286.9 Requirements.
(a) Reading room. Each Component shall provide an appropriate
facility or facilities where the public may inspect and copy or have
copied the materials described in the following paragraphs. In addition
to the materials described in the following paragraphs, Components may
elect to place other documents in their reading rooms as a means to
provide public access to such documents. DoD Components may share
reading room facilities if the public is not unduly inconvenienced.
When appropriate, the cost of copying may be imposed on the person
requesting the material in accordance with the provisions of subpart D
of this part.
(b) Material availability. The FOIA requires that so-called
''(a)(2)'' materials shall be made available in the FOI reading room for
inspection and copying, unless such materials are published and copies
are offered for sale. Identifying details that, if revealed, would
create a clearly unwarranted invasion of personal privacy may be deleted
from ''(a)(2)'' materials made available for inspection and copying. In
every case, justification for the deletion must be fully explained in
writing. However, a DoD Component may publish in the Federal Register a
description of the basis upon which it will delete identifying details
of particular types of documents to avoid clearly unwarranted invasions
of privacy. In appropriate cases, the DoD Component may refer to this
description rather than write a separate justification for each
deletion. So-called ''(a)(2)'' materials are:
(1) Final opinions, including concurring and dissenting opinions, and
orders made in the adjudication of cases, as defined in 5 U.S.C. 551,
that may be cited, used, or relied upon as precedents in future
adjudications.
(2) Statements of policy and interpretations that have been adopted
by the agency and are not published in the Federal Register.
(3) Administrative staff manuals and instructions, or portions
thereof, that establish DoD policy or interpretations of policy that
affect a member of the public. This provision does not apply to
instructions for employees on tactics and techniques to be used in
performing their duties, or to instructions relating only to the
internal management of the DoD Component. Examples of manuals and
instructions not normally made available are:
(i) Those issued for audit, investigation, and inspection purposes,
or those that prescribe operational tactics, standards of performance,
or criteria for defense, prosecution, or settlement of cases.
(ii) Operations and maintenance manuals and technical information
concerning munitions, equipment, systems, and foreign intelligence
operations.
32 CFR 286.11 Indexes.
(a) ''(a)(2)'' materials. (1) Each DoD Component shall maintain in
each facility prescribed in 286.9(a) an index of materials described in
286.9(b), that are issued, adopted, or promulgated, after July 4, 1967.
No ''(a)(2)'' materials issued, promulgated, or adopted after July 4,
1967 that are not indexed and either made available or published may be
relied upon, used or cited as precedent against any individual unless
such individual has actual and timely notice of the contents of such
materials. Such materials issued, promulgated, or adopted before July
4, 1967, need not be indexed, but must be made available upon request if
not exempted under this part.
(2) Each DoD Component shall promptly publish quarterly or more
frequently, and distribute, by sale or otherwise, copies of each index
of ''(a)(2)'' materials or supplements thereto unless it publishes in
the Federal Register an order containing a determination that
publication is unnecessary and impracticable. A copy of each index or
supplement not published shall be provided to a requester at a cost not
to exceed the direct cost of duplication as set forth in subpart D of
this part.
(3) Each index of ''(a)(2)'' materials or supplement thereto shall be
arranged topically or by descriptive words rather than by case name or
numbering system so that members of the public can readily locate
material. Case name and numbering arrangements, however, may also be
included for DoD Component convenience.
(b) Other materials. (1) Any available index of DoD Component
material published in the Federal Register, such as material required to
be published by section 552(a)(1) of the FOIA, shall be made available
in DoD Component FOIA reading rooms.
(2) Although not required to be made available in response to FOIA
requests or made available in FOIA Reading Rooms, ''(a)(1)'' materials
shall, when feasible, be made available in FOIA reading rooms for
inspection and copying. Examples of ''(a)(1)'' materials are:
descriptions of an agency's central and field organization, and to the
extent they affect the public, rules of procedures, descriptions of
forms available, instruction as to the scope and contents of papers,
reports, or examinations, and any amendment, revision, or report of the
aforementioned.
32 CFR 286.11 Subpart C -- Exemptions
32 CFR 286.12 General provisions.
Records that meet the exemption criteria in 286.13 may be withheld
from public disclosure and need not be published in the Federal
Register, made available in a library reading room, or provided in
response to an FOIA request.
32 CFR 286.13 Exemptions.
(a) FOIA exemptions. The following types of records may be withheld
in whole or in part from public disclosure under the FOIA, unless
otherwise prescribed by law. A discretionary release (see also
286.7(e)) to one requester may preclude the withholding of the same
record under a FOIA exemption if the record is subsequently requested by
someone else. In applying exemptions, the identity of the requester and
the purpose for which the record is sought are irrelevant with the
exception that an exemption may not be invoked where the particular
interest to be protected is the requester's interest.
(1) Number 1. Those properly and currently classified in the
interest of national defense or foreign policy, as specifically
authorized under the criteria established by executive order and
implemented by regulations, such as DoD 5200.1-R. /3/ Although material
is not classified at the time of the FOIA request, a classification
review may be undertaken to determine whether the information should be
classified. The procedures in DoD 5200.1-R, Section 2-204f., apply. In
addition, this exemption shall be invoked when the following situations
are apparent:
(i) The fact of the existence or nonexistence of a record would
itself reveal classified information. In this situation, Components
shall neither confirm or deny the existence or nonexistence of the
record being requested. A ''refusal to confirm or deny'' response must
be used consistently, not only when a record exists, but also when a
record does not exist. Otherwise, the pattern of using a ''no record''
response when a record does not exist, and a ''refusal to confirm or
deny'' when a record does exist will itself disclose national security
information.
(ii) Information that concerns one or more of the classification
categories established by executive order and DoD 5200.1-R shall be
classified if its unauthorized disclosure, either by itself or in the
context of other information, reasonably could be expected to cause
damage to the national security.
(2) Number 2. Those related solely to the internal personnel rules
and practices of DoD or any of its Components. This exemption has two
profiles, high b2 and low b2.
(i) Records qualifying under high b2 are those containing or
constituting statutes, rules, regulations, orders, manuals, directives,
and instructions the release of which would allow circumvention of these
records thereby substantially hindering the effective performance of a
significant function of the Department of Defense. Examples include:
(A) Those operating rules, guidelines, and manuals for DoD
investigators, inspectors, auditors, or examiners that must remain
privileged in order for the DoD Component to fulfill a legal
requirement.
(B) Personnel and other administrative matters, such as examination
questions and answers used in training courses or in the determination
of the qualifications of candidates for employment, entrance on duty,
advancement, or promotion.
(C) Computer software meeting the standards of 286.5(b)(3), the
release of which would allow circumvention of a statute or DoD rules,
regulations, orders, manuals, directives, or instructions. In this
situation, the use of the software must be closely examined to ensure a
circumvention possibility exists.
(ii) Records qualifying under the low b2 profile are those that are
trivial and housekeeping in nature for which there is no legitimate
public interest or benefit to be gained by release, and it would
constitute an administrative burden to process the request in order to
disclose the records. Examples include rules of personnel's use of
parking facilities or regulation of lunch hours, statements of policy as
to sick leave, and trivial administrative data such as file numbers,
mail routing stamps, initials, data processing notations, brief
references to previous communications, and other like administrative
markings.
(3) Number 3. Those concerning matters that a statute specifically
exempts from disclosure by terms that permit no discretion on the issue,
or in accordance with criteria established by that statute for
withholding or referring to particular types of matters to be withheld.
Examples of statutes are:
(i) National Security Agency Information Exemption, Public Law 86-36,
Section 6.
(ii) Patent Secrecy, 35 U.S.C. 181-188. Any records containing
information relating to inventions that are the subject of patent
applications on which Patent Secrecy Orders have been issued.
(iii) Restricted Data and Formerly Restricted Data, 42 U.S.C. 2162.
(iv) Communication Intelligence, 18 U.S.C. 798.
(v) Authority to Withhold From Public Disclosure Certain Technical
Data, 10 U.S.C. 130 and DoD Directive 5230.25. /4/
(vi) Confidentiality of Medical Quality Records: Qualified Immunity
Participants, 10 U.S.C. 1102.
(vii) Physical Protection of Special Nuclear Material: Limitation on
Dissemination of Unclassified Information, 10 U.S.C. 128.
(viii) Protection of Intelligence Sources and Methods, 50 U.S.C.
403(d)(3).
(4) Number 4. Those containing trade secrets or commercial or
financial information that a DoD Component receives from a person or
organization outside the Government with the understanding that the
information or record will be retained on a privileged or confidential
basis in accordance with the customary handling of such records.
Records within the exemption must contain trade secrets, or commercial
or financial records, the disclosure of which is likely to cause
substantial harm to the competitive position of the source providing the
information; impair the Government's ability to obtain necessary
information in the future; or impair some other legitimate government
interest. Examples include:
(i) Commercial or financial information received in confidence in
connection with loans, bids, contracts, or proposals, as well as other
information received in confidence or privileged, such as trade secrets,
inventions, discoveries, or other proprietary data. See also 32 CFR
part 286h, ''Release of Acquisition-Related Information.''
(ii) Statistical data and commercial or financial information
concerning contract performance, income, profits, losses, and
expenditures, if offered and received in confidence from a contractor or
potential contractor.
(iii) Personal statements given in the course of inspections,
investigations, or audits, when such statements are received in
confidence from the individual and retained in confidence because they
reveal trade secrets or commercial or financial information normally
considered confidential or privileged.
(iv) Financial data provided in confidence by private employers in
connection with locality wage surveys that are used to fix and adjust
pay schedules applicable to the prevailing wage rate of employees within
the Department of Defense.
(v) Scientific and manufacturing processes or developments concerning
technical or scientific data or other information submitted with an
application for a research grant, or with a report while research is in
progress.
(vi) Technical or scientific data developed by a contractor or
subcontractor exclusively at private expense, and technical or
scientific data developed in part with Federal funds and in part at
private expense, wherein the contractor or subcontractor has retained
legitimate proprietary interests in such data in accordance with 10
U.S.C. 2320-2321 and DoD Federal Acquisition Regulation Supplement
(DFARS), 48 CFR Subpart 27.4. Technical data developed exclusively with
Federal funds may be withheld under Exemption Number 3 if it meets the
criteria of 10 U.S.C. 130 and 32 CFR part 250 (see 286.13(a)(3)(v)).
(vii) Computer software meeting the conditions of 286.5(b)(3), which
is copyrighted under the Copyright Act of 1976 (17 U.S.C. 106), the
disclosure of which would have an adverse impact on the potential market
value of a copyrighted work.
(5) Number 5. Except as provided in 286.13(a)(5) (ii) through (v),
internal advice, recommendations, and subjective evaluations, as
contrasted with factual matters, that are reflected in records
pertaining to the decision-making process of an agency, whether within
or among agencies (as defined in 5 U.S.C. 552(e)), or within or among
DoD Components. Also exempted are records pertaining to the
attorney-client privilege and the attorney work-product privilege.
(i) Examples include:
(A) The nonfactual portions of staff papers, to include after-action
reports and situation reports containing staff evaluations, advice,
opinions, or suggestions.
(B) Advice, suggestions, or evaluations prepared on behalf of the
Department of Defense by individual consultants or by boards,
committees, councils, groups, panels, conferences, commissions, task
forces, or other similar groups that are formed for the purpose of
obtaining advice and recommendations.
(C) Those nonfactual portions of evaluations by DoD Component
personnel of contractors and their products.
(D) Information of a speculative, tentative, or evaluative nature or
such matters as proposed plans to procure, lease or otherwise acquire
and dispose of materials, real estate, facilities or functions, when
such information would provide undue or unfair competitive advantage to
private personal interests or would impede legitimate government
functions.
(E) Trade secret or other confidential research development, or
commercial information owned by the Government, where premature release
is likely to affect the Government's negotiating position or other
commercial interest.
(F) Records that are exchanged among agency personnel and within and
among DoD Components or agencies as part of the preparation for
anticipated administrative proceeding by an agency or litigation before
any Federal, state, or military court, as well as records that qualify
for the attorney-client privilege.
(G) Those portions of official reports of inspection, reports of the
Inspector Generals, audits, investigations, or surveys pertaining to
safety, security, or the internal management, administration, or
operation of one or more DoD Components, when these records have
traditionally been treated by the courts as privileged against
disclosure in litigation.
(H) Computer software meeting the standards of 286.5(b)(3), which is
deliberative in nature, the disclosure of which would inhibit or chill
the decision making process. In this situation, the use of software
must be closely examined to ensure its deliberative nature.
(I) Planning, programming, and budgetary information which is
involved in the defense planning and resource allocation process.
(ii) If any such intra or inter-agency record or reasonably
segregable portion of such record hypothetically would be made available
routinely through the ''discovery process'' in the course of litigation
with the agency, i.e., the process by which litigants obtain information
from each other that is relevant to the issues in a trial or hearing,
then it should not be withheld from the general public even though
discovery has not been sought in actual litigation. If, however, the
information hypothetically would only be made available through the
''discovery process'' by special order of the court based on agency
maintaining its confidentiality, then the record or document need not be
made available under this part. Consult with legal counsel to determine
whether FOIA exemption 5 material would be routinely made available
through the discovery process.
(iii) Intra or inter-agency memoranda or letters that are factual, or
those reasonably segregable portions that are factual, are routinely
made available through ''discovery,'' and shall be made available to a
requester, unless the factual material is otherwise exempt from release,
inextricably intertwined with the exempt information, so fragmented as
to be uninformative, or so redundant of information already available to
the requester as to provide no new substantive information.
(iv) A direction or order from a superior to a subordinate, though
contained in an internal communication, generally cannot be withheld
from a requester if it constitutes policy guidance or a decision, as
distinguished from a discussion of preliminary matters or a request for
information or advice that would compromise the decision-making process.
(v) An internal communication concerning a decision that subsequently
has been made a matter of public record must be made available to a
requester when the rationale for the decision is expressly adopted or
incorporated by reference in the record containing the decision.
(6) Number 6. Information in personnel and medical files, as well as
similar personal information in other files, that, if disclosed to the
requester would result in a clearly unwarranted invasion of personal
privacy. Release of information about an individual contained in a
Privacy Act System of records that would constitute a clearly
unwarranted invasion if privacy is prohibited, and could subject the
releaser to civil and criminal penalties.
(i) Examples of other files containing personal information similar
to that contained in personnel and medical files include:
(A) Those compiled to evaluate or adjudicate the suitability of
candidates for civilian employment or membership in the Armed Forces,
and the eligibility of individuals (civilian, military, or contractor
employees) for security clearances, or for access to particularly
sensitive classified information.
(B) Files containing reports, records, and other material pertaining
to personnel matters in which administrative action, including
disciplinary action, may be taken.
(ii) Home addresses are normally not releasable without the consent
of the individuals concerned. In addition, lists of DoD military and
civilian personnel's names and duty addressees who are assigned to units
that are sensitive, routinely deployable, or stationed in foreign
territories can constitute a clearly unwarranted invasion of personal
privacy.
(A) Privacy interest. A privacy interest may exist in personal
information even though the information has been disclosed at some place
and time. If personal information is not freely available from sources
other than the Federal Government, a privacy interest exists in its
nondisclosure. The fact that the Federal Government expended funds to
prepare, index and maintain records on personal information, and the
fact that a requester invokes FOIA to obtain these records indicates the
information is not freely available.
(B) Published telephone directories, organization charts, rosters and
similar materials for personnel assigned to units that are sensitive,
routinely deployable, or stationed in foreign territories may be
withheld under this exemption.
(iii) This exemption shall not be used in an attempt to protect the
privacy of a deceased person, but it may be used to protect the privacy
of the deceased person's family.
(iv) Individuals' personnel, medical, or similar file may be withheld
from them or their designated legal representative only to the extent
consistent with DoD Directive 5400.11.
(v) A clearly unwarranted invasion of the privacy of the persons
identified in a personnel, medical or similar record may constitute a
basis for deleting those reasonable segregable portions of that record,
even when providing it to the subject of the record. When withholding
personal information from the subject of the record, legal counsel
should first be consulted.
(7) Number 7. Records or information compiled for law enforcement
purposes; i.e., civil, or military law, including the implementation of
executive orders or regulations issued pursuant to law. This exemption
may be invoked to prevent disclosure of documents not originally created
for, but later gathered for law enforcement purposes.
(i) This exemption applies, however, only to the extent that
production of such law enforcement records or information could result
in the following:
(A) Could reasonably be expected to interfere with enforcement
proceeding.
(B) Would deprive a person of the right to a fair trial or to an
impartial adjudication.
(C) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy of a living person, including surviving
family members of an individual identified in such a record.
(1) This exemption also applies when the fact of the existence or
nonexistence of a responsive record would itself reveal personally
private information, and the public interest in disclosure is not
sufficient to outweigh the privacy interest. In this situation,
Components shall neither confirm nor deny the existence or nonexistence
of the record being requested.
(2) A ''refusal to confirm or deny'' response must be used
consistently, not only when a record exists, but also when a record does
not exist. Otherwise, the pattern of using a ''no records'' response
when a record does not exist and a ''refusal to confirm or deny'' when a
record does exist will itself disclose personally private information.
(3) Refusal to confirm or deny should not be used when
(i) The person whose personal privacy is in jeopardy has provided the
requester with a waiver of his or her privacy rights; or
(ii) The person whose personal privacy is in jeopardy is deceased,
and the agency is aware of that fact.
(D) Could reasonably be expected to disclose the identity of a
confidential source, including a source within the Department of
Defense, a State, local, or foreign agency or authority, or any private
institution which furnishes the information on a confidential basis.
(E) Could disclose information furnished from a confidential source
and obtained by a criminal law enforcement authority in a criminal
investigation or by an agency conducting a lawful national security
intelligence investigation.
(F) Would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law.
(G) Could reasonably be expected to endanger the life or physical
safety of any individual.
(ii) Examples include:
(A) Statements of witnesses and other material developed during the
course of the investigation and all materials prepared in connection
with related government litigation or adjudicative proceedings.
(B) The identity of firms or individuals being investigated for
alleged irregularities involving contracting with the Department of
Defense when no indictment has been obtained nor any civil action filed
against them by the United States.
(C) Information obtained in confidence, expressed or implied, in the
course of a criminal investigation by a criminal law enforcement agency
or office with a DoD Component, or a lawful national security
intelligence investigation conducted by an authorized agency or office
within a DoD Component. National security intelligence investigations
include background security investigations and those investigations
conducted for the purpose of obtaining affirmative or
counterintelligence information.
(iii) The right of individual litigants to investigative records
currently available by law (such as, the Jencks Act, 18 U.S.C. 3500) is
not diminished.
(iv) When the subject of an investigative record is the requester of
the record, it may be withheld only as authorized by DoD Directive
5400.11.
(v) Exclusions. Excluded from the previous exemption are the
following two situations applicable to the Department of Defense:
(A) Whenever a request is made which involves access to records or
information compiled for law enforcement purposes, and the investigation
or proceedings involves a possible violation of criminal law where there
is reason to believe that the subject of the investigation or
proceedings is unaware of its pendency, and the disclosure of the
existence of the records could reasonably be expected to interfere with
enforcement proceedings, Components may, during only such times as that
circumstance continues, treat the records or information as not subject
to the FOIA. In such situation, the response to the requester will
state that no records were found.
(B) Whenever informant records maintained by a criminal law
enforcement organization within a DoD Component under the informant's
name or personal identifier are requested by a third party using the
informant's name or personal identifier, the Component may treat the
records as not subject to the FOIA, unless the informant's status as an
informant has been officially confirmed. If it is determined that the
records are not subject to exemption 7, the response to the requester
will state that no records were found.
(8) Number 8. Those contained in or related to examination,
operation or condition reports prepared by, on behalf of, or for the use
of any agency responsible for the regulation or supervision of financial
institutions.
(9) Number 9. Those containing geological and geophysical
information and data (including maps) concerning wells.
(55 FR 53104, Dec. 26, 1990, as amended at 56 FR 21300, May 8, 1991)
/3/ See footnote 1 to 286.1
/4/ See footnote 1 to 286.1
32 CFR 286.13 Subpart D -- For Official Use Only
32 CFR 286.15 General provisions.
(a) General. Information that has not been given a security
classification pursuant to the criteria of an Executive Order, but which
may be withheld from the public for one or more of the reasons cited in
FOIA Exemptions 2 through 9 shall be considered as being for official
use only. No other material shall be considered or marked ''For
Official Use Only'' (FOUO) and FOUO is not authorized as an anemic form
of classification to protect national security interests.
(b) Prior FOUO application. The prior application of FOUO markings
is not a conclusive basis for withholding a record that is requested
under the FOIA. When such a record is requested, the information in it
shall be evaluated to determine whether, under current circumstances,
FOIA exemptions apply in withholding the record or portions of it. If
any exemption or exemptions apply or applies, it may nonetheless be
released when it is determined that no governmental interest will be
jeopardized by its release.
(c) Historical papers. Records such as notes, working papers, and
drafts retained as historical evidence of DoD Component actions enjoy no
special status apart from the exemptions under the FOIA.
(d) Time to mark records. The marking of records at the time of
their creation provides notice of FOUO content and facilitates review
when a record is requested under the FOIA. Records requested under the
FOIA that do not bear such markings, shall not be assumed to be
releasable without examination for the presence of information that
requires continued protection and qualifies as exempt from public
release.
(e) Distribution statement. Information in a technical document that
requires a distribution statement pursuant to DoD Directive 5230.24 /5/
shall bear that statement and may be marked FOUO, as appropriate.
/5/ See footnote 1 to 286.1
32 CFR 286.17 Markings.
(a) An unclassified document containing FOUO information shall be
marked ''For Official Use Only'' at the bottom on the outside of the
front cover (if any), on each page containing FOUO information, and on
the outside of the back.
(b) Within a classified document, an individual page that contains
both FOUO and classified information shall be marked at the top and
bottom with the highest security classification of information appearing
on the page.
(c) Within a classified document, an individual page that contains
FOUO information but no classified information shall be marked ''For
Official Use Only'' at the bottom of the page.
(d) Other records, such as, photographs, films, tapes, or slides,
shall be marked ''For Official Use Only'' or ''FOUO'' in a manner that
ensures that a recipient or viewer is aware of the status of the
information therein.
(e) FOUO material transmitted outside the Department of Defense
requires application of an expanded marking to explain the significance
of the FOUO marking. This may be accomplished by typing or stamping the
following statement on the record prior to transfer:
This document contains information EXEMPT FROM MANDATORY DISCLOSURE
under the FOIA. Exemptions * * * apply.
32 CFR 286.19 Dissemination and transmission.
(a) Release and transmission procedures. Until FOUO status is
terminated, the release and transmission instructions that follow apply:
(1) FOUO information may be disseminated within DoD Components and
between officials of DoD Components and DoD contractors, consultants,
and grantees to conduct official business for the Department of Defense.
Recipients shall be made aware of the status of such information, and
transmission shall be by means that preclude unauthorized public
disclosure. Transmittal documents shall call attention to the presence
of FOUO attachments.
(2) DoD holders of FOUO information are authorized to convey such
information to officials in other departments and agencies of the
executive and judicial branches to fulfill a government function, except
to the extent prohibited by the Privacy Act. Records thus transmitted
shall be marked ''For Official Use Only'', and the recipient shall be
advised that the information has been exempted from public disclosure,
pursuant to the FOIA, and that special handling instructions do or do
not apply.
(3) Release of FOUO information to Members of Congress is governed by
DoD Directive 5400.4. /6/ Release to the GAO is governed by DoD
Directive 7650.1. /7/ Records released to the Congress or GAO should be
reviewed to determine whether the information warrants FOUO status. If
not, prior FOUO markings shall be removed or effaced. If withholding
criteria are met, the records shall be marked FOUO and the recipient
provided an explanation for such exemption and marking. Alternatively,
the recipient may be requested, without marking the record, to protect
against its public disclosure for reasons that are explained.
(b) Transporting FOUO information. Records containing FOUO
information shall be transported in a manner that precludes disclosure
of the contents. When not commingled with classified information, FOUO
information may be sent via first-class mail or parcel post. Bulky
shipments, such as distributions of FOUO Directives or testing
materials, that otherwise qualify under postal regulations may be sent
by fourth-class mail.
(c) Electrically transmitted messages. Each part of electrically
transmitted messages containing FOUO information shall be marked
appropriately. Unclassified messages containing FOUO information shall
contain the abbreviation ''FOUO'' before the beginning of the text.
Such messages shall be transmitted in accordance with communications
security procedures.
/6/ See footnote 1 to 286.1
/7/ See footnote 1 to 286.1
32 CFR 286.20 Safeguarding FOUO information.
(a) During duty hours. During normal working hours, records
determined to be FOUO shall be placed in an out-of-sight location if the
work area is accessible to nongovernmental personnel.
(b) During nonduty hours. At the close of business, FOUO records
shall be stored so as to preclude unauthorized access. Filing such
material with other unclassified records in unlocked files or desks,
etc., is adequate when normal U.S. Government or government contractor
internal building security is provided during nonduty hours. When such
internal security control is not exercised, locked buildings or rooms
normally provide adequate after-hours protection. If such protection is
not considered adequate, FOUO material shall be stored in locked
receptacles such as file cabinets, desks, or bookcases. FOUO records
that are subject to the provisions of Public Law 86-36 shall meet the
safeguards outlined for that group of records.
32 CFR 286.23 Termination, disposal and unauthorized disclosures.
(a) Termination. The originator or other competent authority, e.g.,
initial denial and appellate authorities, shall terminate ''For Official
Use Only'' markings or status when circumstances indicate that the
information no longer requires protection from public disclosure. When
FOUO status is terminated, all known holders shall be notified, to the
extent practical. Upon notification, holders shall efface or remove the
''For Official Use Only'' markings, but records in file or storage need
not be retrieved solely for that purpose.
(b) Disposal. (1) Nonrecord copies of FOUO materials may be
destroyed by tearing each copy into pieces to preclude reconstructing,
and placing them in regular trash containers. When local circumstances
or experience indicates that this destruction method is not sufficiently
protective of FOUO information, local authorities may direct other
methods but must give due consideration to the additional expense
balanced against the degree of sensitivity of the type of FOUO
information contained in the records.
(2) Record copies of FOUO documents shall be disposed of in
accordance with the disposal standards established under 44 U.S.C.
chapter 33, as implemented by DoD Component instructions concerning
records disposal.
(c) Unauthorized disclosure. The unauthorized disclosure of FOUO
records does not constitute an unauthorized disclosure of DoD
information classified for security purposes. Appropriate
administrative action shall be taken, however, to fix responsibility for
unauthorized disclosure whenever feasible, and appropriate disciplinary
action shall be taken against those responsible. Unauthorized
disclosure of FOUO information that is protected by the Privacy Act may
also result in civil and criminal sanctions against responsible persons.
The DoD Component that originated the FOUO information shall be
informed of its unauthorized disclosure.
32 CFR 286.23 Subpart E -- Release and Processing Procedures
32 CFR 286.25 General provisions.
(a) Public information. (1) Since the policy of the Department of
Defense is to make the maximum amount of information available to the
public consistent with its other responsibilities, written requests for
a DoD record made under the FOIA may be denied only when:
(i) The record is subject to one or more of the exemptions in subpart
C of this part.
(ii) The record has not been described well enough to enable the DoD
Component to locate it with a reasonable amount of effort by an employee
familiar with the files.
(iii) The requester has failed to comply with the procedural
requirements, including the written agreement to pay or payment of any
required fee imposed by the instructions of the DoD Component concerned.
When personally identifiable information in a record is requested by
the subject of the record or his attorney, notarization of the request
may be required.
(2) Individuals seeking DoD information should address their FOI
requests to one of the addresses listed in appendix B of this part.
(b) Requests from private parties. The provisions of the FOIA are
reserved for persons with private interests as opposed to federal or
foreign governments seeking official information. Requests from private
persons will be made in writing, and will clearly show all other
addressees within the Federal Government to whom the request was also
sent. This procedure will reduce processing time requirements, and
ensure better inter and intraagency coordination. Components are under
no obligation to establish procedures to receive hand delivered
requests. Release of records to individuals under the FOIA is
considered public release of information, except as provided for in
286.7(f) and 286.13(a).
(c) Requests from government officials. Requests from officials of
State, or local Governments for DoD Component records shall be
considered the same as any other requester. Requests from members of
Congress not seeking records on behalf of a Congressional Committee,
Subcommittee, either House sitting as a whole, or made on behalf of
their constituents shall be considered the same as any other requester
(See also 286.7(f) and 286.25(d)). Requests from officials of foreign
governments shall be considered the same as any other requester.
Requests from officials of foreign governments that do not invoke the
FOIA shall be referred to appropriate foreign disclosure channels and
the requester so notified.
(d) Privileged release to U.S. government officials. (1) Subject to
32 CFR part 159a, applicable to classified information, 32 CFR part
286a, applicable to personal privacy, or other applicable law, records
exempt from release under Subpart C of this part may be authenticated
and released, without requiring release to other FOIA requesters, in
accordance with DoD Component regulations to U.S. government officials
requesting them on behalf of, Federal governmental bodies, whether
legislative, executive, administrative, or judicial, as follows:
(i) To a Committee or Subcommittee of Congress, or to either House
sitting as a whole in accordance with DoD Directive 5400.4.
(ii) To the Federal courts, whenever ordered by officers of the court
as necessary for the proper administration of justice.
(iii) To other Federal Agencies, both executive and administrative,
as determined by the Head of a DoD Component or designee.
(2) DoD Components shall inform officials receiving records under the
provisions of paragraph (d)(1) of this section, that those records are
exempt from public release under the FOIA and are privileged. DoD
Components also shall advise officials of any special handling
instructions.
32 CFR 286.27 Initial determinations.
(a) Initial denial authority. (1) Components shall limit the number
of IDAs appointed. In designating its IDAs, a DoD Component shall
balance the goals of centralization of authority to promote uniform
decisions and decentralization to facilitate responding to each request
within the time limitations of the FOIA.
(2) The initial determination of whether to make a record available
upon request may be made by any suitable official designated by the DoD
Component in published regulations. The presence of the marking ''For
Official Use Only'' does not relieve the designated official of the
responsibility to review the requested record for the purpose of
determining whether an exemption under this part is applicable and
should be invoked.
(3) The officials designated by DoD Components to make initial
determinations should consult with public affairs officers (PAOs) to
become familiar with subject matter that is considered to be newsworthy,
and advise PAOs of all requests from news media representatives. In
addition, the officials should inform PAOs in advance when they intend
to withhold or partially withhold a record, if it appears that the
withholding action may be challenged in the media.
(b) Reasons for not releasing a record. There are seven reasons for
not complying with a request for a record:
(1) The request is transferred to another DoD Component, or to
another federal agency.
(2) The DoD Component determines through knowledge of its files and
reasonable search efforts that it neither controls nor otherwise
possesses the requested record.
(3) A record has not been described with sufficient particularity to
enable the DoD Component to locate it by conducting a reasonable search.
(4) The requester has failed unreasonably to comply with procedural
requirements, including payment of fees, imposed by this part or DoD
Component supplementing regulations.
(5) The request is withdrawn by the requester.
(6) The information requested is not a record within the meaning of
the FOIA and this part.
(7) The record is denied in accordance with procedures set forth in
the FOIA and this part.
(c) Denial tests. To deny a requested record that is in the
possession or control of a DoD Component, it must be determined that the
record is included in one or more of the nine categories of records
exempt from mandatory disclosure as provided by the FOIA and outlined in
Subpart C of this part.
(d) Reasonably segregable portions. Although portions of some
records may be denied, the remaining reasonably segregable portions must
be released to the requester when it reasonably can be assumed that a
skillful and knowledgeable person could not reconstruct the excised
information. When a record is denied in whole, the response advising
the requester of that determination will specifically state that it is
not reasonable to segregate portions of the record for release.
(e) Response to requester. (1) Initial determinations to release or
deny a record normally shall be made and the decision reported to the
requester within 10 working days after receipt of the request by the
official designated to respond.
(2) When a decision is made to release a record, a copy should be
made available promptly to the requester once he has complied with
preliminary procedural requirements.
(3) When a request for a record is denied in whole or in part, the
official designated to respond shall inform the requester in writing of
the name and title or position of the official who made the
determination, and shall explain to the requester the basis for the
determination in sufficient detail to permit the requester to make a
decision concerning appeal. The requester specifically shall be
informed of the exemptions on which the denial is based. When the
initial denial is based in whole or in part on a security
classification, the explanation should include a summary of the
applicable criteria for classification, as well as an explanation, to
the extent reasonably feasible, of how those criteria apply to the
particular record in question. The requester shall also be advised of
the opportunity and procedures for appealing an unfavorable
determination to a higher final authority within the DoD Component.
(4) The response to the requester should contain information
concerning the fee status of the request, consistent with the provisions
of Subpart F of this part.
(5) The explanation of the substantive basis for a denial shall
include specific citation of the statutory exemption applied under
provisions of this part. Merely referring to a classification or to a
''For Official Use Only'' marking on the requested record does not
constitute a proper citation or explanation of the basis for invoking an
exemption.
(6) When the time for response becomes an issue, the official
responsible for replying shall acknowledge to the requester the date of
the receipt of the request.
(f) Extension of time. (1) In unusual circumstances, when additional
time is needed to respond, the DoD Component shall acknowledge the
request in writing within the 10-day period, describe the circumstances
requiring the delay, and indicate the anticipated date for substantive
response that may not exceed 10 additional working days. Unusual
circumstances that may justify delay are:
(i) The requested record is located in whole or in part at places
other than the office processing the request.
(ii) The request requires the collection and evaluation of a
substantial number of records.
(iii) Consultation is required with other DoD Components or agencies
having substantial interest in the subject matter to determine whether
the records requested are exempt from disclosure in whole or in part
under provisions of this part or should be released as a matter of
discretion.
(2) The statutory extension of time for responding to an initial
request must be approved on a case-by-case basis by the final appellate
authority for the DoD Component, or in accordance with regulations of
the DoD Component, or in accordance with regulations of the DoD
Component that establish guidance governing the circumstances in which
such extensions may be granted.
(3) In these unusual cases where the statutory time limits cannot be
met and no informal extension of time has been agreed to, the inability
to process any part of the request within the specified time should be
explained to the requester with a request that he agree to await a
substantive response by an anticipated date. It should be made clear
that any such agreement does not prejudice the right of the requester to
appeal the initial decision after it is made. Components are reminded
that the requester still retains the right to treat this delay as a
defacto denial with full administrative remedies.
(4) As an alternative to the taking of formal extensions of time as
described in paragraphs (f), (f)(1), (f)(2), and (f)(3) of this section,
the negotiation by the cognizant FOIA coordinating office of informal
extensions in time with requesters is encouraged where appropriate.
(g) Misdirected requests. Misdirected requests shall be forwarded
promptly to the DoD Component with the responsibility for the records
requested. The period allowed for responding to the request misdirected
by the requester shall not begin until the request is received by the
DoD Component that manages the records requested.
(h) Records of non-U.S. Government source. (1) When a request is
received for a record that was obtained from a non-U.S. Government
source, or for a record containing information clearly identified as
having been provided by a non-U.S. Government source, the source of the
record or information (also known as ''the submitter'' for matters
pertaining to proprietary data under 5 U.S.C. 552(b)(4), 286.13(a)(4),
and 31 U.S.C. 3717) shall be notified promptly of that request and
afforded reasonable time (e.g. 30 calendar days) to present any
objections concerning the release, unless it is clear that there can be
no valid basis for objection. This practice is required for those FOIA
requests for data not deemed clearly exempt from disclosure under FOIA
exemption (b)(4). If, for example, the record or information was
provided with actual or presumptive knowledge of the non-U.S. Government
source and established that it would be made available to the public
upon request, there is no obligation to notify the source. Any
objections shall be evaluated. The final decision to disclose
information claimed to be exempt under FOIA exemption (b)(4) shall be
made by an official equivalent in rank to the official who would make
the decision to withhold that information under the FOIA. When a
substantial issue has been raised, the DoD Component may seek additional
information from the source of the information and afford the source and
requester reasonable opportunities to present their arguments on the
legal and substantive issues involved prior to making an agency
determination. When the source advises it will seek a restraining order
or take court action to prevent release of the record or information,
the requester shall be notified, and action on the request normally
shall not be taken until after the outcome of that court action is
known. When the requester brings court action to compel disclosure, the
submitter shall be promptly notified of this action.
(2) The coordination provisions of this paragraph apply to any
non-U.S. Government record in the possession and control of the
Department of Defense from multi-national organizations, such as North
Atlantic Treaty Organization (NATO) and North American Aerospace Defense
Command (NORAD), or foreign governments. Coordination with foreign
governments under the provisions of this paragraph shall be made through
Department of State.
(i) File of initial denials. Copies of all initial denials shall be
maintained by each DoD Component in a form suitable for rapid retrieval,
periodic statistical compilation, and management evaluation.
(j) Special mail services. Components are authorized to use
registered mail, certified mail, certificates of mailing and return
receipts. However, their use should be limited to instances where it
appears advisable to establish proof of dispatch or receipt of FOIA
correspondence.
(k) Receipt accounts. The Treasurer of the United States has
established two accounts for FOIA receipts. These accounts, which are
described in the following, shall be used for depositing all FOIA
receipts, except receipts for industrially funded and nonappropriated
funded activities. Components are reminded that the following account
numbers must be preceded by the appropriate disbursing office two digit
prefix. Industrially funded and nonappropriated funded activity FOIA
receipts shall be deposited to the applicable fund.
(1) Receipt Account 3210 Sale of Publications and Reproductions,
Freedom of Information Act. This account shall be used when depositing
funds received from providing existing publications and forms that meet
the Receipt Account Series description found in Federal Account Symbols
and Titles.
(2) Receipt Account 3210 Fees and Other Charges for Services, Freedom
of Information Act. This account is used to deposit search fees, fees
for duplicating and reviewing (in the case of commercial requesters)
records to satisfy requests that could not be filled with existing
publications or forms.
(55 FR 53104, Dec. 26, 1990, as amended at 56 FR 21300, May 8, 1991)
32 CFR 286.29 Appeals.
(a) General. If the official designated by the DoD Component to make
initial determinations on requests for records declines to provide a
record because the official considers it exempt, that decision may be
appealed by the requester, in writing, to a designated appellate
authority. The appeal should be accompanied by a copy of the letter
denying the initial request. Such appeals should contain the basis for
disagreement with the initial refusal. Appeal procedures also apply to
the disapproval of a request for waiver or reduction of fees, and for no
record determinations when the requester considers such a response
adverse in nature. Appeals of denials of Office of the Secretary of
Defense and Joint Staff documents or fee waivers may be sent to the
address in paragraph 2a of appendix B to part 286.
(b) Time of receipt. An FOI appeal has been received by a DoD
Component when it reaches the office of an appellate authority having
jurisdiction. Misdirected appeals should be referred expeditiously to
the proper appellate authority.
(c) Time limits. (1) The requester shall be advised to file an
appeal so that it reaches the appellate authority no later than 60
calendar days after the date of the initial denial letter. At the
conclusion of this period, the case may be considered closed; however,
such closure does not preclude the requester from filing litigation. In
cases where the requester is provided several incremental determinations
for a single request, the time for the appeal shall not begin until the
requester receives the last such notification. Records which are denied
shall be retained for a period of six years to meet the statute of
limitations of claims requirement.
(2) Final determinations on appeals normally shall be made within 20
working days after receipt.
(d) Delay in responding to an appeal. (1) If additional time is
needed due to the unusual circumstances described in paragraph
286.27(f) the final decision may be delayed for the number of working
days (not to exceed 10), that were not used as additional time for
responding to the initial request.
(2) If a determination cannot be made and the requester notified
within 20 working days, the appellate authority shall acknowledge to the
requester, in writing, the date of receipt of the appeal, the
circumstances surrounding the delay, and the anticipated date for
substantive response. Requesters shall be advised that, if the delay
exceeds the statutory extension provision or is for reasons other than
the unusual circumstances identified in 286.27(f), they may consider
their administrative remedies exhausted. They may, however, without
prejudicing their right of judicial remedy, await a substantive
response. The DoD Component shall continue to process the case
expeditiously, whether or not the requester seeks a court order for
release of the records, but a copy of any response provided subsequent
to filing of a complaint shall be forwarded to the Department of
Justice.
(e) Response to the requester. (1) When an appellate authority makes
a determination to release all or a portion of records withheld by an
IDA, a copy of the records so released should be forwarded promptly to
the requester after compliance with any preliminary procedural
requirements, such as payment of fees.
(2) Final refusal to provide a requested record or to approve a
request for waiver or reduction of fees must be made in writing by the
Head of the DoD Component or by a designated representative. The
response, at a minimum, shall include the following:
(i) The basis for the refusal shall be explained to the requester, in
writing, both with regard to the applicable statutory exemption or
exemptions invoked under provisions of this part.
(ii) When the final refusal is based in whole or in part on a
security classification, the explanation shall include a determination
that the record meets the cited criteria and rationale of the governing
Executive Order, and that this determination is based on a
declassification review, with the explanation of how that review
confirmed the continuing validity of the security classification.
(iii) The final denial shall include the name and title or position
of the official responsible for the denial.
(iv) The response shall advise the requester that the material being
denied does not contain meaningful portions that are reasonably
segregable.
(v) The response shall advise the requester of the right to judicial
review.
(f) Consultation. (1) Final refusal, involving issues not previously
resolved or that the DoD Component knows to be inconsistent with rulings
of other DoD Components, ordinarily should not be made before
consultation with the Office of the General Counsel of the Department of
Defense.
(2) Tentative decisions to deny records that raise new or significant
legal issues of potential significance to other agencies of the
Government shall be provided to the Department of Justice, ATTN: Office
of Legal Policy, Office of Information and Policy, Washington, DC 20530.
(55 FR 53104, Dec. 26, 1990, as amended at 56 FR 21300, May 8, 1991)
32 CFR 286.31 Judicial actions.
(a) General. (1) This section states current legal and procedural
rules for the convenience of the reader. The statements of rules do not
create rights or remedies not otherwise available, nor do they bind the
Department of Defense to particular judicial interpretations or
procedures.
(2) A requester may seek an order from a United States District Court
to compel release of a record after administrative remedies have been
exhausted; i.e., when refused a record by the head of a Component or an
appellate designee or when the DoD Component has failed to respond
within the time limits prescribed by the FOIA and in this part.
(b) Jurisdiction. The requester may bring suit in the United States
District Court in the district in which the requester resides or is the
requesters place of business, in the district in which the record is
located, or in the District of Columbia.
(c) Burden of proof. The burden of proof is on the DoD Component to
justify its refusal to provide a record. The court shall evaluate the
case de novo (anew) and may elect to examine any requested record in
camera (in private) to determine whether the denial was justified.
(d) Actions by the court. (1) When a DoD Component has failed to
make a determination within the statutory time limits but can
demonstrate due diligence in exceptional circumstances, the court may
retain jurisdiction and allow the Component additional time to complete
its review of the records.
(2) If the court determines that the requester's complaint is
substantially correct, it may require the United States to pay
reasonable attorney fees and other litigation costs.
(3) When the court orders the release of denied records, it may also
issue a written finding that the circumstances surrounding the
withholding raise questions whether DoD Component personnel acted
arbitrarily and capriciously. In these cases, the special counsel of
the Merit System Protection Board shall conduct an investigation to
determine whether or not disciplinary action is warranted. The DoD
Component is obligated to take the action recommended by the special
counsel.
(4) The court may punish the responsible official for contempt when a
DoD Component fails to comply with the court order to produce records
that it determines have been withheld improperly.
(e) Non-United States government source information. A requester may
bring suit in a U.S. District Court to compel the release of records
obtained from a nongovernment source or records based on information
obtained from a nongovernment source. Such source shall be notified
promptly of the court action. When the source advises that it is
seeking court action to prevent release, the DoD Component shall defer
answering or otherwise pleading to the complainant as long as permitted
by the Court or until a decision is rendered in the court action of the
source, whichever is sooner.
(f) Litigation status sheet. FOIA managers at DoD Component level
shall be aware of litigation under the FOIA. Such information will
provide management insights into the use of the nine exemptions by
Component personnel. The Litigation Status Sheet at Appendix C provides
a standard format for recording information concerning FOIA litigation
and forwarding that information to the Office of the Secretary of
Defense. Whenever a complaint under the FOIA is filed in a U.S.
District Court, the DoD Component named in the complaint shall forward a
Litigation Status Sheet, with items 1 through 6 completed, and a copy of
the complaint to the OASD(PA), ATTN: DFOISR, with an information copy
to the General Counsel, Department of Defense, ATTN: Office of Legal
Counsel. A revised Litigation Status Sheet shall be provided at each
stage of the litigation.
32 CFR 286.31 Subpart F -- Fee Schedule
32 CFR 286.33 General provisions.
(a) Authorities. The Freedom of Information Act (5 U.S.C. 552), as
amended; by the Freedom of Information Reform Act of 1986; the
Paperwork Reduction Act (44 U.S.C. 35); the Privacy Act of 1974 (5
U.S.C. 552a); the Budget and Accounting Act of 1921 (31 U.S.C. 1 et
seq.); the Budget and Accounting Procedures Act (31 U.S.C. 67 et seq.);
the Defense Authorization Act for FY 87, Section 954 (Pub.L. 99-661),
as amended by the Defense Technical Corrections Act of 1987 (Pub.L.
100-26).
(b) Application. (1) The fees described in this Subpart apply to
FOIA requests, and conform to the Office of Management and Budget
Uniform Freedom of Information Act Fee Schedule and Guidelines. They
reflect direct costs for search, review (in the case of commercial
requesters); and duplication of documents, collection of which is
permitted by the FOIA. They are neither intended to imply that fees
must be charged in connection with providing information to the public
in the routine course of business, nor are they meant as a substitute
for any other schedule of fees, such as 32 CFR part 288, which does not
supersede the collection of fees under the FOIA. Nothing in this
Subpart shall supersede fees chargeable under a statute specifically
providing for setting the level of fees for particular types of records.
A ''statute specifically providing for setting the level of fees for
particular types of records'' (5 U.S.C. 552)(a)(4)(a)(vi)) means any
statute that enables a Government Agency such as the Government Printing
Office (GPO) or the National Technical Information service (NTIS), to
set and collect fees. Components should ensure that when documents that
would be responsive to a request are maintained for distribution by
agencies operating statutory-based fee schedule programs such as the GPO
or NTIS, they inform requesters of the steps necessary to obtain records
from those sources.
(2) The term direct costs means those expenditures a Component
actually makes in searching for, reviewing (in the case of commercial
requesters), and duplicating documents to respond to an FOIA request.
Direct costs include, for example, the salary of the employee performing
the work (the basic rate of pay for the employee plus 16 percent of that
rate to cover benefits), and the costs of operating duplicating
machinery. These factors have been included in the fee rates prescribed
at 286.35(a). Not included in direct costs are overhead expenses such
as costs of space, heating or lighting the facility in which the records
are stored.
(3) The term search includes all time spent looking for material that
is responsive to a request. Search also includes a page-by-page or
line-by-line identification (if necessary) of material in the document
to determine if it, or portions thereof are responsive to the request.
Components should ensure that searches are done in the most efficient
and least expensive manner so as to minimize costs for both the
Component and the requester. For example, Components should not engage
in line-by-line searches when duplicating an entire document known to
contain responsive information would prove to be the less expensive and
quicker method of complying with the request. Time spent reviewing
documents in order to determine whether to apply one or more of the
statutory exemptions is not search time, but review time. See paragraph
(b)(5) of this section, for the definition of review, and 286.35(b)(2),
for information pertaining to computer searches.
(4) The term duplication refers to the process of making a copy of a
document in response to an FOIA request. Such copies can take the form
of paper copy, microfiche, audiovisual, or machine readable
documentation (e.g., magnetic tape or disc), among others. Every effort
will be made to ensure that the copy provided is in a form that is
reasonably usable, the requester shall be notified that their copy is
the best available and that the agency's master copy shall be made
available for review upon appointment. For duplication of computer
tapes and audiovisual, the actual cost, including the operator's time,
shall be charged. In practice, if a Component estimates that assessable
duplication charges are likely to exceed $25.00, it shall notify the
requester of the estimate, unless the requester has indicated in advance
his or her willingness to pay fees as high as those anticipated. Such a
notice shall offer a requester the opportunity to confer with Component
personnel with the object of reformulating the request to meet his or
her needs at a lower cost.
(5) The term review refers to the process of examining documents
located in response to an FOIA request to determine whether one or more
of the statutory exemptions permit withholding. It also includes
processing the documents for disclosure, such as excising them for
release. Review does not include the time spent resolving general legal
or policy issues regarding the application of exemptions. It should be
noted that charges for commercial requesters may be assessed only for
the initial review. Components may not charge for reviews required at
the administrative appeal level of an exemption already applied.
However, records or portions of records withheld in full under an
exemption which is subsequently determined not to apply may be reviewed
again to determine the applicability of other exemptions not previously
considered. The costs for such a subsequent review would be properly
assessable.
(c) Fee restrictions. (1) No fees may be charged by any DoD
Component if the costs of routine collection and processing of the fee
are likely to equal or exceed the amount of the fee. With the exception
of requesters seeking documents for a commercial use, Components shall
provide the first two hours of search time, and the first one hundred
pages of duplication without charge. For example, for a request (other
than one from a commercial requester) that involved two hours and ten
minutes of search time, and resulted in one hundred and five pages of
documents, a Component would determine the cost of only ten minutes of
search time, and only five pages of reproduction. If this processing
cost was equal to, or less than the cost to the Component for billing
the requester and processing the fee collected, no charges would result.
(2) Requesters receiving the first two hours of search and the first
one hundred pages of duplication without charge are entitled to such
only once per request. Consequently, if a Component, after completing
its portion of a request, finds it necessary to refer the request to a
subordinate office, another DoD Component, or another Federal Agency to
action their portion of the request, the referring Component shall
inform the recipient of the referral of the expended amount of search
time and duplication cost to date.
(3) The elements to be considered in determining the ''cost of
collecting a fee'' are the administrative costs to the Component of
receiving and recording a remittance, and processing the fee for deposit
in the Department of Treasury's special account. The cost to the
Department of Treasury to handle such remittance is negligible and shall
not be considered in Components' determinations.
(4) For the purposes of these restrictions, the word pages refers to
paper copies of a standard size, which will normally be ''8 1/2 x 11''
or ''11 x 14''. Thus, requesters would not be entitled to 100
microfiche or 100 computer disks, for example. A microfiche containing
the equivalent of 100 pages or 100 pages of computer printout; however,
might meet the terms of the restriction.
(5) In the case of computer searches, the first two free hours will
be determined against the salary scale of the individual operating the
computer for the purposes of the search. As an example, when the direct
costs of the computer central processing unit, input-output devices, and
memory capacity equal $24.00 (two hours of equivalent search at the
clerical level), amounts of computer costs in excess of that amount are
chargeable as computer search time.
(d) Fee waivers. (1) Documents shall be furnished without charge, or
at a charge reduced below fees assessed to the categories of requesters
in paragraph (e) of this section when the Component determines that
waiver or reduction of the fees is in the public interest because
furnishing the information is likely to contribute significantly to
public understanding of the operations or activities of the Department
of Defense and is not primarily in the commercial interest of the
requester.
(2) When assessable costs for an FOIA request total $15.00 or less,
fees shall be waived automatically for all requesters, regardless of
category.
(3) Decisions to waive or reduce fees that exceed the automatic
waiver threshold shall be made on a case-by-case basis, consistent with
the following factors:
(i) Disclosure of the information ''is in the public interest because
it is likely to contribute significantly to public understanding of the
operations or activities of the Government.''
(A) The subject of the request. Components should analyze whether
the subject matter of the request involves issues which will
significantly contribute to the public understanding of the operations
or activities of the Department of Defense. Requests for records in the
possession of the Department of Defense which were originated by
nongovernment organizations and are sought for their intrinsic content,
rather than informative value will likely not contribute to public
understanding of the operations or activities of the Department of
Defense. An example of such records might be press clippings, magazine
articles, or records forwarding a particular opinion or concern from a
member of the public regarding a DoD activity. Similarly, disclosures
of records of considerable age may or may not bear directly on the
current activities of the Department of Defense; however, the age of a
particular record shall not be the sole criteria for denying relative
significance under this factor. It is possible to envisage an
informative issue concerning the current activities of the Department of
Defense, based upon historical documentation. Requests of this nature
must be closely reviewed consistent with the requester's stated purpose
for desiring the records and the potential for public understanding of
the operations and activities of the Department of Defense.
(B) The informative value of the information to be disclosed. This
factor requires a close analysis of the substantive contents of a
record, or portion of the record, to determine whether disclosure is
meaningful, and shall inform the public on the operations or activities
of the Department of Defense. While the subject of a request may
contain information which concerns operations or activities of the
Department of Defense, it may not always hold great potential for
contributing to a meaningful understanding of these operations or
activities. An example of such would be a heavily redacted record, the
balance of which may contain only random words, fragmented sentences, or
paragraph headings. A determination as to whether a record in this
situation will contribute to the public understanding of the operations
or activities of the Department of Defense must be approached with
caution, and carefully weighed against the arguments offered by the
requester. Another example is information already known to be in the
public domain. Disclosure of duplicative, or nearly identical
information already existing in the public domain may add no meaningful
new information concerning the operations and activities of the
Department of Defense.
(C) The contribution to an understanding of the subject by the
general public likely to result from disclosure. The key element in
determining the applicability of this factor is whether disclosure will
inform, or have the potential to inform the public, rather than simply
the individual requester or small segment of interested persons. The
identity of the requester is essential in this situation in order to
determine whether such requester has the capability and intention to
disseminate the information to the public. Mere assertions of plans to
author a book, researching a particular subject, doing doctoral
dissertation work, or indigence are insufficient without demonstrating
the capacity to further disclose the information in a manner which will
be informative to the general public. Requesters should be asked to
describe their qualifications, the nature of their research, the purpose
of the requested information, and their intended means of dissemination
to the public.
(D) The significance of the contribution to public understanding. In
applying this factor, Components must differentiate the relative
significance or impact of the disclosure against the current level of
public knowledge, or understanding which exists before the disclosure.
In other words, will disclosure on a current subject of wide public
interest be unique in contributing previously unknown facts, thereby
enhancing public knowledge, or will it basically duplicate what is
already known by the general public. A decision regarding significance
requires objective judgment, rather than subjective determination, and
must be applied carefully to determine whether disclosure will likely
lead to a significant public understanding of the issue. Components
shall not make value judgments as to whether the information is
important enough to be made public.
(ii) Disclosure of the information ''is not primarily in the
commercial interest of the requester.''
(A) The existence and magnitude of a commercial interest. If the
request is determined to be of a commercial interest, Components should
address the magnitude of that interest to determine if the requester's
commercial interest is primary, as opposed to any secondary personal or
non-commercial interest. In addition to profit-making organizations,
individual persons or other organizations may have a commercial interest
in obtaining certain records. Where it is difficult to determine
whether the requester is of a commercial nature, Components may draw
inference from the requester's identity and circumstances of the
request. In such situations, the provisions of 286.33(e), apply.
Components are reminded that in order to apply the commercial standards
of the FOIA, the requester's commercial benefit must clearly override
any personal or non-profit interest.
(B) The Primary interest in disclosure. Once a requester's
commercial interest has been determined, Components should then
determine if the disclosure would be primarily in that interest.
This requires a balancing test between the commercial interest of the
request against any public benefit to be derived as a result of that
disclosure. Where the public interest is served above and beyond that
of the requester's commercial interest, a waiver or reduction of fees
would be appropriate. Conversely, even if a significant public interest
exists, and the relative commercial interest of the requester is
determined to be greater than the public interest, then a waiver or
reduction of fees would be inappropriate. As examples, news media
organizations have a commercial interest as business organizations;
however, their inherent role of disseminating news to the general public
can ordinarily be presumed to be of a primary interest. Therefore, any
commercial interest becomes secondary to the primary interest in serving
the public. Similarly, scholars writing books or engaged in other forms
of academic research, may recognize a commercial benefit, either
directly, or indirectly (through the institution they represent);
however, normally such pursuits are primarily undertaken for educational
purposes, and the application of a fee charge would be inappropriate.
Conversely, data brokers or others who merely compile government
information for marketing can normally be presumed to have an interest
primarily of a commercial nature.
(4) Components are reminded that the above factors and examples are
not all inclusive. Each fee decision must be considered on a
case-by-case basis and upon the merits of the information provided in
each request. When the element of doubt as to whether to charge or
waive the fee cannot be clearly resolved, Components should rule in
favor of the requester.
(5) In addition, the following additional circumstances describe
situations where waiver or reduction of fees are most likely to be
warranted:
(i) A record is voluntarily created to preclude an otherwise
burdensome effort to provide voluminous amounts of available records,
including additional information not requested.
(ii) A previous denial of records is reversed in total, or in part,
and the assessable costs are not substantial (e.g. $15.00-$30.00).
(e) Fee assessment. (1) Fees may not be used to discourage
requesters, and to this end, FOIA fees are limited to standard charges
for direct document search, review (in the case of commercial
requesters) and duplication.
(2) In order to be as responsive as possible to FOIA requests while
minimizing unwarranted costs to the taxpayer, Components shall adhere to
the following procedures:
(i) Analyze each request to determine the category of the requester.
If the Component determination regarding the category of the requester
is different than that claimed by the requester, the Component shall:
(A) Notify the requester that he should provide additional
justification to warrant the category claimed, and that a search for
responsive records will not be initiated until agreement has been
attained relative to the category of the requester. Absent further
category justification from the requester, and within a reasonable
period of time (i.e., 30 calendar days), the Component shall render a
final category determination, and notify the requester of such
determination, to include normal administrative appeal rights of the
determination.
(B) Advise the requester that, notwithstanding any appeal, a search
for responsive records will not be initiated until the requester
indicates a willingness to pay assessable costs appropriate for the
category determined by the Component.
(ii) Requesters must submit a fee declaration appropriate for the
below categories.
(A) Commercial. Requesters must indicate a willingness to pay all
search, review and duplication costs.
(B) Educational or Noncommercial Scientific Institution or News
Media. Requesters must indicate a willingness to pay duplication
charges in excess of 100 pages if more 100 pages of records are desired.
(C) All Others. Requesters must indicate a willingness to pay
assessable search and duplication costs if more than two hours of search
effort or 100 pages of records are desired.
(iii) If the above conditions are not met, then the request need not
be processed and the requester shall be so informed.
(iv) In the situations described by paragraphs (e)(2) (i) and (ii) of
this section, Components must be prepared to provide an estimate of
assessable fees if desired by the requester. While it is recognized
that search situations will vary among Components, and that an estimate
is often difficult to obtain prior to an actual search, requesters who
desire estimates are entitled to such before committing to a willingness
to pay. Should Component estimates exceed the actual amount of the
estimate or the amount agreed to by the requester, the amount in excess
of the estimate or the requester's agreed amount shall not be charged
without the requester's agreement.
(v) No DoD Component may require advance payment of any fee; i.e.,
payment before work is commenced or continued on a request, unless the
requester has previously failed to pay fees in a timely fashion, or the
agency has determined that the fee will exceed $250.00. As used in this
sense, a timely fashion is 30 calendar days from the date of billing
(the fees have been assessed in writing) by the Component.
(vi) Where a Component estimates or determines that allowable charges
that a requester may be required to pay are likely to exceed $250.00,
the Component shall notify the requester of the likely cost and obtain
satisfactory assurance of full payment where the requester has a history
of prompt payments, or require an advance payment of an amount up to the
full estimated charges in the case of requesters with no history of
payment.
(vii) Where a requester has previously failed to pay a fee charged in
a timely fashion (i.e., within 30 calendar days from the date of the
billing), the Component may require the requester to pay the full amount
owed, plus any applicable interest, or demonstrate that he or she has
paid the fee, and to make an advance payment of the full amount of the
estimated fee before the Component begins to process a new or pending
request from the requester. Interest will be at the rate prescribed in
31 U.S.C. 3717, and confirmed with respective Finance and Accounting
Offices.
(viii) After all work is completed on a request, and the documents
are ready for release, Components may request payment before forwarding
the documents if there is no payment history on the requester, or if the
requester has previously failed to pay a fee in a timely fashion (i. e.,
within 30 calendar days from the date of the billing). In the case of
the latter, the provisions of paragraph (e)(2)(vii) of this section
apply. Components may not hold documents ready for release pending
payment from requesters with a history of prompt payment.
(ix) When Components act under paragraphs (e) (i) through (vii) of
this section, the administrative time limits of the FOIA (i.e., 10
working days from receipt of initial requests, and 20 working days from
receipt of appeals, plus permissible extensions of these time limits)
will begin only after the Component has received a willingness to pay
fees and satisfaction as to category determination, or fee payments (if
appropriate).
(x) Components may charge for time spent searching for records, even
if that search fails to locate records responsive to the request.
Components may also charge search and review (in the case of commercial
requesters) time if records located are determined to be exempt from
disclosure. In practice, if the Component estimates that search charges
are likely to exceed $25.00 it shall notify the requester of the
estimated amount of fees, unless the requester has indicated in advance
his or her willingness to pay fees as high as those anticipated. Such a
notice shall offer the requester the opportunity to confer with
Component personnel with the object of reformulating the request to meet
his or her needs at a lower cost.
(3) Commercial Requesters. Fees shall be limited to reasonable
standard charges for document search, review and duplication when
records are requested for commercial use. Requesters must reasonably
describe the records sought (see 286.7(h)).
(i) The term ''commercial use'' request refers to a request from, or
on behalf of one who seeks information for a use or purpose that
furthers the commercial, trade, or profit interest of the requester or
the person on whose behalf the request is made. In determining whether
a requester properly belongs in this category, Components must determine
the use to which a requester will put the documents requested.
Moreover, where a Component has reasonable cause to doubt the use to
which a requester will put the records sought, or where that use is not
clear from the request itself, Components should seek additional
clarification before assigning the request to a specific category.
(ii) When Components receive a request for documents for commercial
use, they should assess charges which recover the full direct costs of
searching for, reviewing for release, and duplicating the records
sought. Commercial requesters (unlike other requesters) are not
entitled to two hours of free search time, nor 100 free pages of
reproduction of documents. Moreover, commercial requesters are not
normally entitled to a waiver or reduction of fees based upon an
assertion that disclosure would be in the public interest. However,
because use is the exclusive determining criteria, it is possible to
envision a commercial enterprise making a request that is not for
commercial use. It is also possible that a non-profit organization
could make a request that is for commercial use. Such situations must
be addressed on a case-by-case basis.
(4) Educational institution requesters. Fees shall be limited to
only reasonable standard charges for document duplication (excluding
charges for the first 100 pages) when the request is made by an
educational institution whose purpose is scholarly research. Requesters
must reasonably describe the records sought (see 286.7(h)). The term
''educational institution'' refers to a preschool, a public or private
elementary or secondary school, an institution of graduate high
education, an institution of undergraduate higher education, an
institution of professional education, and an institution of vocational
education, which operates a program or programs of scholarly research.
(5) Non-commercial scientific institution requesters. Fees shall be
limited to only reasonable standard charges for document duplication
(excluding charges for the first 100 pages) when the request is made by
a non-commercial scientific institution whose purpose is scientific
research. Requesters must reasonably describe the records sought (see
286.7(h)). The term ''noncommercial scientific institution'' refers to
an institution that is not operated on a ''commercial'' basis as defined
in paragraph (e)(3) of this section and which is operated solely for the
purpose of conducting scientific research, the results of which are not
intended to promote any particular product or industry.
(6) Components shall provide documents to requesters in paragraphs
(e) (4) and (5) of this section, for the cost of duplication alone,
excluding charges for the first 100 pages. To be eligible for inclusion
in these categories, requesters must show that the request is being made
under the auspices of a qualifying institution and that the records are
not sought for commercial use, but in furtherance of scholarly (from an
educational institution) or scientific (from a non-commercial scientific
institution) research.
(7) Representatives of the news media. Fees shall be limited to only
reasonable standard charges for document duplication (excluding charges
for the first 100 pages) when the request is made by a representative of
the news media. Requesters must reasonably describe the records sought
(see 286.7(h)).
(i) The term ''representative of the news media'' refers to any
person actively gathering news for an entity that is organized and
operated to publish or broadcast news to the public. The term ''news''
means information that is about current events or that would be of
current interest to the public. Examples of news media entities include
television or radio stations broadcasting to the public at large, and
publishers of periodicals (but only in those instances when they can
qualify as disseminators of ''news'') who make their products available
for purchase or subscription by the general public. These examples are
not meant to be all inclusive. Moreover, as traditional methods of news
delivery evolve (e. g., electronic dissemination of newspapers through
telecommunications services), such alternative media would be included
in this category. In the case of ''freelance'' journalists, they may be
regarded as working for a news organization if they can demonstrate a
solid basis for expecting publication through that organization, even
through not actually employed by it. A publication contract would be
the clearest proof, but Components may also look to the past publication
record of a requester in making this determination.
(ii) To be eligible for inclusion in this category, a requester must
meet the criteria in paragraph (e)(7)(i) of this section, and his or her
request must not be made for commercial use. A request for records
supporting the news dissemination function of the requester shall not be
considered to be a request that is for a commercial use. For example, a
document request by a newspaper for records relating to the
investigation of a defendant in a current criminal trial of public
interest could be presumed to be a request from an entity eligible for
inclusion in this category, and entitled to records at the cost of
reproduction alone (excluding charges for the first 100 pages).
(iii) ''Representative of the news media'' does not include private
libraries, private repositories of Government records, or middlemen,
such as information vendors or data brokers.
(8) All other requesters. Components shall charge requesters who do
not fit into any of the above categories, fees which recover the full
direct cost of searching for and duplicating records, except that the
first two hours of search time and the first 100 pages of duplication
shall be furnished without charge. Requesters must reasonably describe
the records sought (see 286.7(h)). Requests from subjects about
themselves will continue to be treated under the fee provisions of the
Privacy Act of 1974, which permit fees only for duplication. Components
are reminded that this category of requester may also be eligible for a
waiver or reduction of fees if disclosure of the information is in the
public interest as defined under paragraph (d) of this section (see also
paragraph (e)(3)(ii)) of this section.
(f) Aggregating requests. Except for requests that are for a
commercial use, a Component may not charge for the first two hours of
search time or for the first 100 pages of reproduction. However, a
requester may not file multiple requests at the same time, each seeking
portions of a document or documents, solely in order to avoid payment of
fees. When a Component reasonably believes that a requester or, on rare
occasions, a group of requesters acting in concert, is attempting to
break a request down into a series of requests for the purpose of
avoiding the assessment of fees, the agency may aggregate any such
requests and charge accordingly. One element to be considered in
determining whether a belief would be reasonable is the time period in
which the requests have occurred. For example, it would be reasonable
to presume that multiple requests of this type made within a 30 day
period had been made to avoid fees. For requests made over a longer
period; however, such a presumption becomes harder to sustain and
Components should have a solid basis for determining that aggregation is
warranted in such cases. Components are cautioned that before
aggregating requests from more than one requester, they must have a
concrete basis on which to conclude that the requesters are acting in
concert and are acting specifically to avoid payment of fees. In no
case may Components aggregate multiple requests on unrelated subjects
from one requester.
(g) Effect of the Debt Collection Act of 1982 (Pub. L. 97-365). The
Debt Collection Act of 1982 (Pub. L. 97-365) provides for a minimum
annual rate of interest to be charged on overdue debts owed the Federal
Government. Components may levy this interest penalty for any fees that
remain outstanding 30 calendar days from the date of billing (the first
demand notice) to the requester of the amount owed. The interest rate
shall be as prescribed in 31 U.S.C. 3717. Components should verify the
current interest rate with respective Finance and Accounting Offices.
After one demand letter has been sent, and 30 calendar days have lapsed
with no payment, Components may submit the debt to respective Finance
and Accounting Offices for collection pursuant to the Debt Collection
Act of 1982.
(h) Computation of fees. The fee schedule in this Subpart shall be
used to compute the search, review (in the case of commercial
requesters) and duplication costs associated with processing a given
FOIA request. Costs shall be computed on time actually spent. Neither
time-based nor dollar-based minimum charges for search, review and
duplication are authorized.
32 CFR 286.35 Collection of fees and fee rates.
(a) Collection of fees. Collection of fees will be made at the time
of providing the documents to the requester or recipient when the
requester specifically states that the costs involved shall be
acceptable or acceptable up to a specified limit that covers the
anticipated costs. Collection of fees may not be made in advance unless
the requester has failed to pay previously assessed fees within 30
calendar days from the date of the billing by the DoD Component, or the
Component has determined that the fee will be in excess of $250 (see
286.33(e)).
(b) Search time -- (1) Manual search.
(2) Computer search. Computer search is based on direct cost of the
central processing unit, input-output devices, and memory capacity of
the actual computer configuration. The salary scale (equating to
paragraph (a)(1) of this section) for the computer operator/programmer
determining how to conduct and subsequently executing the search will be
recorded as part of the computer search.
(c) Duplication.
(d) Review time (in the case of commercial requesters).
(e) Audiovisual documentary materials. Search costs are computed as
for any other record. Duplication cost is the actual direct cost of
reproducing the material, including the wage of the person doing the
work. Audiovisual materials provided to a requester need not be in
reproducible format or quality.
(f) Other records. Direct search and duplication cost for any record
not described above shall be computed in the manner described for
audiovisual documentary material.
(g) Costs for special services. Complying with requests for special
services is at the discretion of the Components. Neither the FOIA, nor
its fee structure cover these kinds of services. Therefore, Components
may recover the costs of special services requested by the requester
after agreement has been obtained in writing from the requester to pay
for one or more of the following services:
(1) Certifying that records are true copies.
(2) Sending records by special methods such as express mail, etc.
32 CFR 286.37 Collection of fees and fee rates for technical data.
(a) Fees for technical data. (1) Technical data, other than
technical data that discloses critical technology with military or space
application, if required to be released under the FOIA, shall be
released after the person requesting such technical data pays all
reasonable costs attributed to search, duplication and review of the
records to be released. Technical data, as used in this section, means
recorded information, regardless of the form or method of the recording
of a scientific or technical nature (including computer software
documentation). This term does not include computer software, or data
incidental to contract administration, such as financial and/or
management information. DoD Components shall retain the amounts
received by such a release, and it shall be merged with and available
for the same purpose and the same time period as the appropriation from
which the costs were incurred in complying with request. All reasonable
costs as used in this sense are the full costs to the Federal Government
of rendering the service, or fair market value of the service, whichever
is higher. Fair market value shall be determined in accordance with
commercial rates in the local geographical area. In the absence of a
known market value, charges shall be based on recovery of full costs to
the Federal Government. The full costs shall include all direct and
indirect costs to conduct the search and to duplicate the records
responsive to the request. This cost is to be differentiated from the
direct costs allowable under 286.35 for other types of information
released under the FOIA.
(2) Waiver. Components shall waive the payment of costs required in
286.37(a)(1), which are greater than the costs that would be required
for release of this same information under 286.35 if:
(i) The request is made by a citizen of the United States or a United
States corporation, and such citizen or corporation certifies that the
technical data requested is required to enable it to submit an offer, or
determine whether it is capable of submitting an offer to provide the
product to which the technical data relates to the United States or a
contractor with the United States. However, Components may require the
citizen or corporation to pay a deposit in an amount equal to not more
than the cost of complying with the request, which will be refunded upon
submission of an offer by the citizen or corporation;
(ii) The release of technical data is requested in order to comply
with the terms of an international agreement; or,
(iii) The Component determines in accordance with 286.373(d)(1),
that such a waiver is in the interest of the United States.
(3) Fee Rates -- (i) Search time. (A) Manual search.
Professional and Executive (To be established at actual hourly rate
prior to search. A minimum charge will be established at 1/2 hourly
rates).
(B) Computer search is based on the total cost of the central
processing unit, input-output devices, and memory capacity of the actual
computer configuration. The wage (based upon the scale in paragraph
(a)(3)(i) of this section) for the computer operator and/or programmer
determining how to conduct, and subsequently executing the search will
be recorded as part of the computer search.
(ii) Duplication.
(iii) Review time.
Professional and Executive (To be established at actual hourly rate
prior to review. A minimum charge will be established at 1/2 hourly
rates).
(4) Other technical data records. Charges for any additional
services not specifically provided in 286.37(a)(3), consistent with DoD
Instruction 7230.7, /8/ shall be made by Components at the following
rates:
/8/ See footnote 1 to 286.1
32 CFR 286.37 Subpart G -- Reports
32 CFR 286.39 Reports control.
The reporting requirement outlined in this Subpart is assigned Report
Control Symbol DD-PA(A)1365.
32 CFR 286.41 Annual report.
(a) Reporting time. Each DoD component shall prepare statistics and
accumulate paperwork for the preceding calendar year on those items
prescribed for the annual report and submit them in duplicate to the
ASD(PA) on or before each February 1. Existing DoD standards and
registered date elements are to be used for all data requirements to the
greatest extent possible in accordance with the provisions of DoD
Directive 5000.11. /9/ The standard data elements are contained in DoD
Directive 5000.12 -M. /10/
(b) Annual report content. The following instructions and attached
format shall be used in preparing the annual report:
(1) Item 1. (i) Total requests. Enter the total number of FOIA
requests responded to during the calendar year.
(ii) Granted in full. Enter the total number of FOIA requests
responded to and granted in full during the calendar year. (This may
include requests granted by your office, yet still requiring action by
another office.)
(iii) Denied in part. Enter the total number of FOIA requests
responded to and denied in part based on one or more of the nine FOIA
exemptions. (Do not report denial of fee waivers.)
(iv) Denied in full. Enter the total number of FOIA requests
responded to and denied in full based on one or more of the nine FOIA
exemptions. (Do not report denial of fee waivers.)
(v) ''Other Reason'' responses. Enter the total number of FOIA
requests in which you were unable to provide all or part of the
requested information based on an ''Other Reason'' response. Paragraph
(b)(2) of this section explains the six possible ''Other Reasons''.
(vi) Total actions. Enter the total number of FOIA actions taken
during the calendar year. This number will be the sum of paragraphs
(b)(1)(i) through (v) of this section.
(2) Item 2 -- (i) Exemptions invoked on initial determinations.
Enter the number of times an exemption was claimed for each request that
was denied in full or in part. Since more than one exemption may be
claimed when responding to a single request, this number will be equal
to or greater than the sum of paragraph (b)(1) (iii) and (iv) of this
section.
(ii) ''(b)(3)'' statutes invoked on initial determinations. Identify
the statutes cited and number of times invoked when you claimed an FOIA
(b)(3) exemption. The total number of instances will be equal to the
total in paragraph (b)(2)(i) of this section. Cite the specific
sections when invoking the Atomic Energy Act of 1954 or the National
Security Act of 1947. To qualify as an FOIA (b)(3) exemption, the
statute must contain clear wording that the information covered will not
be disclosed. The following examples are not FOIA (b)(3) statutes:
(A) 5 U.S.C. 552a -- Privacy Act.
(B) 17 U.S.C. 101 et seq. -- Copyright Act.
(C) 18 U.S.C. 793 -- Gathering, Transmitting or Losing Defense
Information.
(D) 18 U.S.C. 794 -- Gathering or Delivery Defense Information to Aid
Foreign Governments.
(E) 18 U.S.C. 1905 -- Trade Secrets Act.
(F) 28 U.S.C. 1498 -- Patent and Copyright Cases.
(iii) ''Other Reasons'' cited on initial determinations. Identify
the ''Other Reason'' response cited when responding to a FOIA request
and enter the number of times each was claimed.
(A) Transferred request. Enter the number of times a request was
transferred to another DoD component or Federal Agency for action.
(B) Lack of records. Enter the number of times a search of files
failed to identify records responsive to subject request and there was
no statutory obligation to create a record.
(C) Failure of requester to reasonably describe record. Enter the
number of times a FOIA request could not be acted upon since the
requester failed to reasonably describe the record(s) being sought.
(D) Other failures by requester to comply with published rules and/or
directives. Enter the number of times a requester failed to follow
published rules concerning time, place, fees, and procedures.
(E) Request withdrawn by requester. Enter the number of times a
requester withdrew a request and/or appeal.
(F) Not an agency record. Enter the number of times a requester was
provided a response indicating the requested information was not an
agency record.
(G) Total. Enter the sum of paragraphs (b)(2) (i) through (iii) of
this section. This number will be equal to or greater than the number
in paragraph (b)(1)(v) of this section, since more than one reason may
be claimed for each ''Other Reason'' response.
(3) Item 3 -- Initial denial authorities by participation. Enter the
name, title, and activity of each individual who signed a partial or
total denial response and give the number of instances of participation.
The total number of instances will equal the sum of paragraphs (b)(1)
(iii) and (iv) of this section. For military show the rank
(abbreviated) with the name; for civilians use Mr., Mrs., Ms., Hon.,
etc. Show the individual's full title and complete organization (do not
use acronyms or abbreviations, other than US). See example shown.
BG John G. Smith, Director, Personnel and Administration, US
European Command
(4) Item 4 -- (i) Total requests. Enter the total number of FOIA
appeals responded to during the calendar year.
(ii) Granted in full. Enter the total number of FOIA appeals
responded to and granted in full during the year.
(iii) Denied in part. Enter the total number of FOIA appeals
responded to and denied in part based on one or more of the nine FOIA
exemptions.
(iv) Denied in full. Enter the total number of FOIA appeals
responded to and denied in full based on one or more of the nine FOIA
exemptions.
(v) ''Other Reason'' responses. Enter the total number of FOIA
appeals in which you were unable to provide the requested information
based on an ''Other Reason'' response. Paragraph (b)(2)(ii) of this
section explains the six possible ''Other Reasons''.
(vi) Total actions. Enter the total number of FOIA appeal actions
taken during the calendar year. This number will be the sum of
paragraphs (b)(4) (ii) through (v) of this section.
(5) Item 5 -- (i) Exemptions invoked on appeal determinations. Enter
the number of times an exemption was claimed for each appeal that was
denied in full or in part. Since more than one exemption may be claimed
when responding to a single request, this number will be equal to or
greater than the sum of paragraphs (b)(4) (iii) and (iv) of this
section.
(ii) ''(b)(3)'' statutes invoked on appeal determinations. Identify
the statutes cited and number of times invoked when you claimed an FOIA
(b)(3) exemption. The total number of instances will be equal to the
total in paragraph (b)(5)(i) of this section. Cite the specific
sections when invoking the Atomic Energy Act of 1954 or the National
Security Act of 1947. To qualify as an FOIA (b)(3) exemption, the
statute must contain clear wording that the information covered will not
be disclosed. Examples which are not FOIA (b)(3) statutes are listed in
paragraph (b)(2)(ii) of this section.
(iii) ''Other Reasons'' cited on appeal determinations. Identify the
''Other Reason'' response cited when responding to a FOIA appeal and
enter the number of times each was claimed. See paragraph (b)(2)(iii)
of this section for description of ''Other Reasons''.
(6) Item 6 -- Appeal denial authorities by participation. Enter the
name, title, and activity of each individual who signed a partial or
total appeal denial response and give the number of instances of
participation. The total number of instances will equal the sum of
paragraphs (b)(4) (iii) and (iv) of this section. For military show the
rank (abbreviated) with the name; for civilians use Mr., Mrs., Ms.,
Hon., etc. Show the full title and complete organization (do not use
acronyms or abbreviations, other than US). See paragraph (b)(3)(i) of
this section for example shown.
(7) Item 7 -- Court opinions and Actions taken. Briefly describe the
results of each suit the Judge Advocate General and/or the General
Counsel participated in during the calendar year. See example in
paragraph (b)(7)(i) of this section. Armed Forces Relief and Benefit
Association v. Department of Defense, Department of the Army,
Department of the Air Force and Department of the Navy, C.A. 89-0689,
U.S.D.C. D.C., March 15, 1989. Plaintiff filed suit for defendant's
refusal to release servicemen's name and duty addresses. Information
was held pursuant to 5 USC 552 (b)(2) and (b)(6). Plaintiff voluntarily
dismissed suit June 19, 1989.
(8) Item 8 -- FOIA implementation rules or regulations. List all
changes or revisions of FOIA rules or regulations affecting the
implementation of the FOIA program, followed by the Federal Register
reference (volume number, date, and page) that announces the change or
revision to the public. Append a copy of each. See example shown.
DoD 5400.7-R ''DoD Freedom of Information Act Program'' -- 32 CFR
286, Vol 54, No. 155, pg. 33190, 14 Aug 89.
(9) Item 9 -- Fees collected from the public. Enter the total amount
of fees collected from the public during the calendar year. This
includes search, review and reproduction costs only.
(10) Item 10 -- (i) Availability of records. Report all new
categories or segregable portions of records now being released upon
request. (Since this item is very seldom used, it does not appear on
the form. Report any such records on a separate sheet of paper.)
(ii) FOI program costs -- (A) Personnel costs. Paragraphs
(b)(10)(ii)(A) (1) and (2) of this section are used to capture man-years
and salary costs of personnel primarily involved in planning, program
management and/or administrative handling of FOIA requests. Determine
salaries for military personnel by using the Composite Standard Pay
Rates (DoD 7220.9-M, /11/ ''Department of Defense Accounting Manual'').
For civilian personnel use Office of Personnel Management salary table
and add 16 percent for benefits. A sample computation is shown in the
following table.
(1) Estimated manyears. Add the total percentages of time for
personnel involved in administering the FOI program and divide by 100.
In the example shown previously (10+30+50)/100=.9 manyears.
(2) Manyear costs. Total costs associated with salaries of
individuals involved in administering FOIA program. In the example
shown previously, the total cost is $40,790.
(3) Estimated manhour costs by category. This section accounts for
all other personnel not reported in paragraphs (b)(10)(ii) (1) and (2)
of this section who are involved in processing FOIA requests. Enter the
total hourly cost for each of the five areas described in the following:
(i) Search time. This includes only those direct costs associated
with time spent looking for material that is responsive to a request,
including line-by-line identification of material within a document to
determine if it is responsive to the request. Searches may be done
manually or by computer using existing programming.
(ii) Review and excising. This includes all direct costs incurred
during the process of examining documents located in response to a
request to determine whether any portion of any document located is
permitted to be withheld. It also includes excising documents to
prepare them for release. It does not include time spent resolving
general legal or policy issues regarding the application of exemptions.
(iii) Coordination and approval. This includes all costs involved in
coordinating the release/denial of documents requested under the FOIA.
(iv) Correspondence/form preparation. This includes all costs
involved in typing responses, filling out forms, etc., to respond to a
FOIA request.
(v) Other activities. This includes all other processing costs not
covered above, such as processing time by the mail room.
(vi) Total. Enter the sum of paragraphs (b)(10)(ii)(A)(3) (i)
through (v) of this section.
(4) Overhead. This is the cost of supervision, space, and
administrative support. It is computed as 25 percent of the sum of
paragraphs (b)(10) (ii) and (iii) of this section.
(5) Total. Enter the sum of paragraphs (b)(10) (ii), (iii) and (iv)
of this section.
(B) Other Case-Related Costs. Using the fee schedule, enter the
total amounts incurred in each of the areas in the following.
(1) Computer search time. This includes cost of central processing
unit, input/output devices, memory, etc. of the computer system used,
as well as the wage of the machine's operator/programmer.
(2) Office copy reproduction. This is the cost of reproducing normal
documents with office copying equipment.
(3) Microfiche reproduction. This is the cost of reproducing records
and providing microfiche.
(4) Printed records. This is the cost of providing reproduced copies
of forms, publications, or reports.
(5) Computer copy. This is the actual cost of duplicating magnetic
tapes, floppy diskettes, computer printouts, etc.
(6) Audiovisual materials. This is the actual cost of duplicating
audio or video tapes or like materials, to include the wage of the
person doing the work.
(7) Other. Report all other costs which are easily identifiable,
such as per diem, operation of courier vehicles, training courses,
printing (indexes and forms), long distance telephone calls, special
mail services, use of indicia, etc.
(8) Subtotal. Enter the sum of paragraphs (b)(10)(ii)(B) (1) through
(7) of this section.
(9) Overhead. This is the cost of supervision, space, and
administrative support. It is computed as 25 percent of(b)(10)(B)(8) of
this section.
(10) Total. Enter the sum of paragraphs (b)(10)(ii)(B) (8) and (9)
of this section.
(C) Cost of routine requests processed. This item is optional. Some
reporting activities may find it economical to develop an average cost
factor for processing repetitive routine requests rather than tracking
costs on each request as it is processed. Care should be exercised so
that costs are comprehensive to include a 25 percent overhead, yet are
not duplicated elsewhere in the report. Multiply the number of routine
requests processed times the cost factor to compute this amount.
(D) Total costs. Enter the sum of paragraphs (b)(10)(ii)(C) (1)
through (3) of this section. Formal time limit extensions. Enter the
total number of instances in which it was necessary to seek a formal 10
working day time extension for one of the reasons explained below.
(1) Location. The need to search for and collect the requested
records from another activity that was separate from the office
processing the request.
(2) Volume. The need to search for, collect, and appropriately
examine a voluminous amount of separate and distinct records indicated
in a single request.
(3) Consultation. The need for consultation with another agency
having a substantial interest in the material requested.
(4) Court Involvement. Where court actions were taken on the basis
of exhaustion of administrative procedures because the
department/activity was unable to comply with the request within the
applicable time limits, and in which a court allowed additional time
upon a showing of exceptional circumstances, provide a copy of each
court opinion and court order containing such an extension of time.
(5) Total. Enter the sum of paragraphs (b)(10) (ii)(D)(1) through
(iv) of this section.
/9/ See footnote 1 to 286.1
/10/ See footnote 1 to 286.1
/11/ See footnote 1 286.1.
32 CFR 286.41 Subpart H -- Education and Training
32 CFR 286.43 Responsibility and purpose.
(a) Responsibility. The Head of each DoD Component is responsible
for the establishment of educational and training programs on the
provisions and requirements of this part. The educational programs
should be targeted toward all members of the DoD Component, developing a
general understanding and appreciation of the DoD FOIA Program;
whereas, the training programs should be focused toward those personnel
who are involved in the day-to-day processing of FOI requests, and
should provide a thorough understanding of the procedures outlined in
this part.
(b) Purpose. The purpose of the educational and training programs is
to promote a positive attitude among DoD personnel and raise the level
of understanding and appreciation of the DoD FOIA Program, thereby
improving the interaction with members of the public and improving the
public trust in the Department of Defense.
(c) Scope and principles. Each Component shall design its FOIA
educational and training programs to fit the particular requirements of
personnel dependent upon their degree of involvement in the
implementation of this part. The program should be designed to
accomplish the following objectives:
(1) Familiarize personnel with the requirements of the FOIA and its
implementation by this part.
(2) Instruct personnel, who act in FOI matters, concerning the
provisions of this part, advising them of the legal hazards involved and
the strict prohibition against arbitrary and capricious withholding of
information.
(3) Provide for the procedural and legal guidance and instruction, as
may be required, in the discharge of the responsibilities of initial
denial and appellate authorities.
(4) Advise personnel of the penalties for noncompliance with the
FOIA.
(d) Implementation. To ensure uniformity of interpretation, all
major educational and training programs concerning the implementation of
this Regulation should be coordinated with the Director, Freedom of
Information and Security Review, OASD(PA).
(e) Uniformity of legal interpretation. In accordance with DoD
Directive 5400.7, the General Counsel of the Department of Defense shall
ensure uniformity in the legal position and interpretation of the DoD
FOIA Program.
32 CFR 286.43 Pt. 286, App. A
a. In accordance with DoD Directive 5400.7 and this part, the Unified
Commands are placed under the jurisdiction of the Office of the
Secretary of Defense, instead of the administering Military Department,
only for the purpose of administering the Freedom of Information Act
(FOIA) Program. This policy represents an exception to the policies in
DoD Directive 5100.3.
b. The policy change above authorizes and requires the Unified
Commands to process FOIA requests in accordance with DoD Directive
5400.7 and DoD Instruction 5400.10 /1/ and to forward directly to the
OASD(PA) all correspondence associated with the appeal of an initial
denial for information under the provisions of the FOIA.
Unified Commanders in Chief shall:
a. Designate the officials authorized to deny initial FOI requests
for records.
b. Designate an office as the point-of-contact for FOI matters.
c. Refer FOIA cases to the OASD(PA) for review and evaluation when
the issues raised are of unusual significance, precedent setting, or
otherwise require special attention or guidance.
d. Consult with other OSD and DoD Components that may have a
significant interest in the requested record prior to a final
determination. Coordination with agencies outside of the Department of
Defense, if required, is authorized.
e. Coordinate proposed denials of records with the appropriate
Unified Command's Office of the Staff Judge Advocate.
f. Answer any request for a record within 10 working days of receipt.
The requester shall be notified that his request has been granted or
denied. In unusual circumstances, such notification may state that
additional time, not to exceed 10 working days, is required to make a
determination.
g. Provide to the OASD(PA) when the request for a record is denied in
whole or in part, a copy of the response to the requester or his
representative, and any internal memoranda that provide background
information or rationale for the denial.
h. State in the response that the decision to deny the release of the
requested information, in whole or in part, may be appealed to the
Assistant Secretary of Defense (Public Affairs), the Pentagon,
Washington, DC 20301-1400.
i. Upon request, submit to OASD(PA) a copy of the records that were
denied. ASD(PA) shall make such requests when adjudicating appeals.
The fees charged for requested records shall be in accordance with
subpart F of this part.
Excellent communication capabilities currently exist between the
OASD(PA) and the Public Affairs Offices of the Unified Commands. This
communication capability shall be used for FOI cases that are time
sensitive.
a. The Unified Commands shall submit to the OASD(PA) an annual
report. The instructions for the report are outlined in Subpart F of
this part.
b. The annual report shall be submitted in duplicate to the OASD(PA)
not later than each February 1. This reporting requirement is assigned
Report Control Symbol DD-PA(A) 1365.
/1/ Copies may be obtained, at cost, from the National Technical
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
32 CFR 286.43 Pt. 286, App. B
a. The Department of Defense includes the Office of the Secretary of
Defense and the Joint Staff, the Military Departments, the Unified
Commands, the Defense Agencies, and the DoD Field Activities.
b. The Department of Defense does not have a central repository for
DoD records. FOIA requests, therefore, should be addressed to the DoD
Component that has custody of the record desired. In answering
inquiries regarding FOIA requests, DoD personnel shall assist requesters
in determining the correct DoD Component to address their requests. If
there is uncertainty as to the ownership of the record desired, the
requester shall be referred to the DoD Component that is most likely to
have the record.
a. Office of the Secretary of Defense and the Joint Staff. Send all
requests for records from the below listed offices to: Office of the
Assistant Secretary of Defense (Public Affairs), ATTN: Directorate for
Freedom of Information and Security Review, Room 2C757, The Pentagon,
Washington, DC 20301-1400.
Executive Secretariat
Under Secretary of Defense (Policy)
Assistant Secretary of Defense (International Security Affairs)
Assistant Secretary of Defense (International Security Policy)
Assistant Secretary of Defense (Special Operations/Low-Intensity
Conflict)
Principal Deputy Under Secretary of Defense (Strategy and Resources)
Deputy Under Secretary of Defense (Trade Security Policy)
Deputy Under Secretary of Defense (Security Policy)
Director of Net Assessment
Director, Defense Security Assistance Agency
Defense Technology Security Administration
Under Secretary of Defense (Acquisition)
Assistant Secretary of Defense (Production & Logistics)
Assistant Secretary of Defense for Command, Control, Communications,
and Intelligence
Assistant to the Secretary of Defense (Atomic Energy)
Director of Defense Research and Engineering
Director of Small and Disadvantaged Business Utilization
Comptroller of the Department of Defense
Assistant Secretary of Defense (Force Management & Personnel)
Assistant Secretary of Defense (Health Affairs)
Assistant Secretary of Defense (Legislative Affairs)
Assistant Secretary of Defense (Public Affairs)
Assistant Secretary of Defense (Program Analysis and Evaluation)
Assistant Secretary of Defense (Reserve Affairs)
General Counsel, Department of Defense
Director, Operational Test and Evaluation
Assistant to the Secretary of Defense (Intelligence Oversight)
Assistant to the Secretary of Defense (Intelligence Policy)
Defense Advanced Research Projects Agency
Strategic Defense Initiative Organization
Defense Systems Management College
National Defense University
Armed Forces Staff College
Department of Defense Dependents Schools
Uniformed Services University of the Health Sciences
b. Department of the Army. Army records may be requested from those
Army officials who are listed in 32 CFR part 518, appendix B. Send
requests to the Chief, Freedom of Information and Privacy Acts Division,
Information Systems Command, ATTN: ASQNS-OP-F, Room 1146, Hoffman I,
2461 Eisenhower Avenue, Alexandria, VA 22331-0301 for records of the
Headquarters, U.S. Army, or if there is uncertainty as to which Army
activity may have the records.
c. Department of the Navy. Navy and Marine Corps records may be
requested from any Navy or Marine Corps activity by addressing a letter
to the Commanding Officer and clearly indicating that it is an FOI
request. Send requests to Chief of Naval Operations, Code OP-09B30,
Room 5E521, Pentagon, Washington, DC 20350-2000, for records of the
Headquarters, Department of the Navy, and to Freedom of Information and
Privacy Act Office, Code MI-3, HQMC, Room 4327, Washington, DC
20308-0001, for records of the U.S. Marine Corps, or if there is
uncertainty as to which Navy or Marine activities may have the records.
d. Department of the Air Force. Air Force records may be requested
from the Commander of any Air Force installation, major command, or
separate operating agency (ATTN: FOIA Office). For Air Force records
of Headquarters, United States Air Force, or if there is uncertainty as
to which Air Force activity may have the records, send requests to
Secretary of the Air Force, ATTN: SAF/AAIS(FOIA), Pentagon, Room
4A1088C Washington, DC 20330-1000.
e. Defense Contract Audit Agency (DCAA). DCAA records may be
requested from any of its regional offices or from its Headquarters.
Requesters should send FOI requests to the Defense Contract Audit
Agency, ATTN: CMR, Cameron Station, Alexandria, VA 22304-6178, for
records of its headquarters or if there is uncertainty as to which DCAA
region may have the records sought.
f. Defense Communications Agency (DCA). DCA records may be requested
from any DCA field activity or from its Headquarters. Requesters should
send FOI requests to Defense Communications Agency, Code ADR,
Washington, DC 20305-2000.
g. Defense Intelligence Agency (DIA). FOI requests for DIA records
may be addressed to Defense Intelligence Agency, ATTN: RTS-1,
Washington, DC 20340-3299.
h. Defense Investigative Service (DIS). All FOI requests for DIS
records should be sent to the Defense Investigative Service, ATTN:
V0020, 1900 Half St., SW., Washington, DC 20324-1700.
i. Defense Logistics Agency (DLA). DLA records may be requested from
its headquarters or from any of its field activities. Requesters should
send FOI requests to Defense Logistics Agency, ATTN: DLA-XAM, Cameron
Station, Alexandria, VA 22304-6100.
j. Defense Mapping Agency (DMA). FOI requests for DMA records may be
sent to the Defense Mapping Agency, 8613 Lee Highway, Fairfax, VA
22031-2137.
k. Defense Nuclear Agency (DNA). FOI requests for DNA records may be
sent to the Defense Nuclear Agency, Public Affairs Office, Room 113,
6801 Telegraph Road, Alexandria, VA 22310-3398.
l. National Security Agency (NSA). FOI requests for NSA records may
be sent to the National Security Agency/Central Security Service, ATTN:
Q-43, Fort George G. Meade, MD 20755-6000.
m. Office of the Inspector General, Department of Defense (OIG, DoD).
FOI requests for IG, DoD records may be sent to the Department of
Defense Office of the Inspector General, Assistant Inspector General for
Investigations, ATTN: Deputy Director FOIA/PA Division, 400 Army Navy
Drive, Arlington, VA 22202-2884.
n. Defense Finance and Accounting Service (DFAS). DFAS records may
be requested from any of its regional offices or from its Headquarters.
Requesters should send FOI requests to Defense Finance and Accounting
Service, Crystal Mall 3, room 416, Washington, DC 20376-5001 for records
of its Headquarters, or if there is uncertainty as to which DFAS region
may have records sought.
3. Other Addresses. Although the below organizations are OSD and
Joint Staff Components for the purposes of the FOIA, requests may be
sent directly to the addresses indicated.
a. Office of Civilian Health and Medical Program of the Uniformed
Services (OCHAMPUS). Director, OCHAMPUS, ATTN: Freedom of Information
Officer, Aurora, CO 80045-6900.
b. Chairman, Armed Services Board of Contract Appeals (ASBCA).
Chairman, Armed Services Board of Contract Appeals, Skyline Six, 5109
Leesburg Pike, Falls Church, VA 22041-3208.
c. U.S. Central Command. U.S. Central Command/CCJ1/AG, MacDill Air
Force Base, FL 33608-7001.
d. U.S. European Command. Headquarters, U.S. European
Command/ECJ1-AR(FOIA), APO New York 09128-4209.
e. U.S. Southern Command. U.S. Commander-in-Chief, Southern
Command/SCSJA, APO Miami 34003-0007.
f. U.S. Pacific Command. U.S. Commander-in-Chief, Pacific Command,
USPACOM FOIA Coordinator (J18A), Administrative Support Division, Joint
Secretariat, Box 28, Camp H. M. Smith, HI 96861-5025.
g. U.S. Special Operations Command. U.S. Special Operations Command,
ATTN: Freedom of Information Officer, ATTN: SOJ6-SI (FOI Officer),
MacDill Air Force Base FL 33608.
h. U.S. Atlantic Command. Commander-in-Chief, Atlantic Command, Code
J02P, Norfolk, VA 23511-5100.
i. U.S. Space Command. Chief, Records Management Division,
Directorate of Administration, United States Space Command, Peterson Air
Force Base, CO 80914-5001.
j. U.S. Transportation Command. U.S. Commander-in-Chief,
Transportation Command, ATTN: TCDA-RM, Scott Air Forces Base, IL
62225-7001.
4. National Guard Bureau. FOI requests for National Guard Bureau
records may be sent to the Chief, National Guard Bureau (NGB-DAI),
Pentagon, Room 2C362, Washington, DC 20310-2500.
5. Miscellaneous. If there is uncertainty as to which DoD Component
may have the DoD record sought, the requester may address a Freedom of
Information request to the Office of the Assistant Secretary of Defense
(Public Affairs), ATTN: Directorate for Freedom of Information and
Security Review, Room 2C757, The Pentagon, Washington, DC 20301-1400.
(55 FR 53105, Dec. 26, 1990, as amended at 56 FR 21300, May 8, 1991)
32 CFR 286.43 Pt. 286, App. C
1. Case Number /1/
2. Requester
3. Document Title or Description
4. Litigation
a. Date Complaint Filed
b. Court
c. Case File Number
5. Defendants (agency and individual)
6. Remarks: (brief explanation of what the case is about)
7. Court Action
a. Court's Finding
b. Disciplinary Action (as appropriate)
8. Appeal (as appropriate)
a. Date Complaint Filed
b. Court
c. Case File Number
d. Court's Finding
e. Disciplinary Action (as appropriate)
/1/ Number used by Component for reference purposes
32 CFR 286.43 Pt. 286, App. D
This category applies when responsibility for making a determination
or a decision on categories 2, 3, or 4 below is shifted from one
Component to another, or to another Federal Agency.
This category covers those situations wherein the requester is
advised the DoD Component has no record or has no statutory obligation
to create a record.
This category is specifically based on Section 552(a)(3)(a) of the
FOIA.
This category is based on section 552(a)(3)(b) of the FOIA and
includes instances of failure to follow published rules concerning time,
place, fees, and procedures.
This category covers those situations wherein the requester asks an
agency to disregard the request (or appeal) or pursues the request
outside FOIA channels.
This category.covers situations where the information requested is
not an agency record within the meaning of the FOIA and this part.
32 CFR 286.43 Pt. 286, App. E
32 CFR 286.43 Appendix E to Part 286 -- Record of Freedom of
Information (FOI) Processing Cost (DD Form 2086)
Insert Illus 112
Insert Illus 113
32 CFR 286.43 Pt. 286, App. F
32 CFR 286.43 Appendix F to Part 286 -- Record of Freedom of
Information (FOI) Processing Cost for Technical Data (DD Form 2086-1)
Insert Illus 115
Insert Illus 116
32 CFR 286.43 Pt. 286, App. G
32 CFR 286.43 Appendix G to Part 286 -- Annual Report Freedom of
Information (DD Form 2564)
Insert Illus 118
Insert Illus 119
32 CFR 286.43 Pt. 286, App. H
Office of the Secretary of Defense/Chairman, Joint Chiefs of Staff
and Joint Staff/Unified Commands, Defense Agencies, and the DoD Field
Activities
Department of the Army
Department of the Navy
Department of the Air Force
Defense Communications Agency
Defense Contract Audit Agency
Defense Intelligence Agency
Defense Investigative Service
Defense Logistics Agency
Defense Mapping Agency
Defense Nuclear Agency
National Security Agency
Office of the Inspector General, Department of Defense
Defense Finance and Accounting Service
(55 FR 53104, Dec. 26, 1990, as amended at 56 FR 21300, May 8, 1991)
32 CFR 286.43 PART 286h -- RELEASE OF ACQUISITION-RELATED INFORMATION
Sec.
286h.1 Purpose.
286h.2 Applicability and scope.
286h.3 Policy.
286h.4 Responsibilities.
Authority: Public Law 101-189.
Source: 55 FR 28614, July 12, 1990, unless otherwise noted.
32 CFR 286h.1 Purpose.
This part sets forth Department of Defense (DoD) policy for the
release of acquisition-related information.
32 CFR 286h.2 Applicability and scope.
(a) This part applies to the Office of the Secretary of Defense
(OSD), the Military Departments, the Chairman, Joint Chiefs of Staff and
Joint Staff (CJCS), the Unified and Specified Commands, and the Defense
Agencies (hereafter referred to collectively as ''DoD Components'').
(b) This part is issued pursuant to section 822 of Public Law
101-189, which requires the Department of Defense to prescribe a single
uniform regulation for dissemination of, and access to, acquisition
information.
32 CFR 286h.3 Policy.
(a) General. It is the Department of Defense's policy to make the
maximum amount of acquisition-related information available to the
public, and to respond promptly to specific requests from the public for
such information, except for the information identified in paragraph (b)
of this section, for which release is restricted.
(b) Information for Which Release is Restricted. The information
identified below may be released only as set forth herein.
(1) Release Subject to Statutory Restrictions. This information may
be released only in accordance with the applicable statutory
requirements. Once the statutory requirements have been satisfied, the
information may be released unless it falls within one of the categories
described in the following paragraphs, in which case the policies
governing release of information within those categories shall be
followed.
(2) Classified Information. (i) Any information or material,
regardless of its physical form or characteristics, that is owned by,
produced by or for, or under the control of the United States
Government, and which, for national security purposes, must be protected
against unauthorized disclosure and is so designated or marked with the
appropriate classification.
(ii) Release, access, and dissemination of classified information
shall be made through existing security channels in accordance with DoD
5220.22-R; /1/ DoD 5220.22-M; /2/ and DoD 5200.1-R, /3/ which are
implementing publications for safeguarding classified information
release, access, and dissemination to United States and foreign
concerns.
(3) Contractor Bid or Proposal Information. (i) This is information
prepared by or on behalf of an offeror and submitted to the Government
as a part of or in support of the offeror's bid or proposal to enter
into a contract with the Government, the disclosure of which would place
the offeror at a competitive disadvantage or jeopardize the integrity or
the successful completion of the procurement. Contractor bid or
proposal information includes cost or pricing data, profit data,
overhead and direct labor rates, and manufacturing processes and
techniques. Contractor bid or proposal information does not include
information that is available to the public.
(ii) (A) Sealed Bids. (1) Prior to bid opening, no release or
disclosure of contractor bid information shall be made to anyone other
than those who are involved in the evaluation of the bids or to other
individuals authorized by the Head of the DoD Component, or his or her
designee.
(2) After contract award, contractor bid information may be released
or disclosed by those authorized by the Head of the DoD Component, or
his or her designee, to make such release or disclosure, if the
information to be released or disclosed is not subject to a restrictive
legend authorized by Federal Acquisition Regulation (FAR) 52.215-12 or
release is not otherwise restricted by law.
(3) Negotiated Procurements. Prior to contract award, no release or
disclosure of contractor proposal information shall be made to anyone
other than those who are involved in the evaluation of the proposals or
the source selection or to other individuals authorized by the Head of
the DoD Component, or his or her designee. DoD Components shall adopt
procedures in accordance with FAR 15.413 to protect against release or
disclosure of contractor proposal information. After contract award,
contractor proposal information may be released or disclosed by those
authorized by the Head of the DoD Component, or his or her designee, to
make such release or disclosure, if the information to be released or
disclosed is not subject to a restrictive legend authorized by FAR
15.509 or FAR 52.215-12 or release is not otherwise restricted by law.
(4) Source Selection Information. (i) This is information prepared
or developed for use by the Government in connection with the selection
of a bid or proposal for the award of a contract. Only the following
information, including copies or extracts thereof, is source selection
information:
(A) Bid prices submitted in response to a Government solicitation for
sealed bids or lists of such bid prices (applicable prior to bid opening
only);
(B) Proposed costs or prices submitted in response to a Government
solicitation prior to award of the contract, a list of proposed costs or
prices;
(C) Source selection plans;
(D) Technical evaluation plans;
(E) Technical evaluations of competing proposals;
(F) Cost or price evaluations of competing proposals;
(G) Competitive range determinations;
(H) Rankings of competitors;
(I) The reports and evaluations or source selection boards, advisory
councils, or the source selection authority (SSA); and
(J) Any other information which:
(1) If disclosed, would give an offeror a competitive advantage or
jeopardize the integrity or successful completion of the procurement;
and
(2) Is marked with the legend ''Source Selection Information.''
(ii) Release of or Access to Source Selection Information (SSI) --
(A) Access to SSI. The SSA (including the contracting officer when the
contracting officer is the SSA) shall restrict access to source
selection information to only those Government employees directly
involved in the source selection process or to those individuals who
have been authorized by the Head of the DoD Component, or his or her
designee, to have access to such information. If the contracting
officer or the SSA have not been appointed, the Head of the DoD
Component, or his or her designee, shall assure access to such
information is properly restricted. Employees supervising or managing
employees directly involved in the source selection process are not
themselves by virtue of their positions directly involved in the source
selection process.
(B) Release of SSI -- (1) Prior to Contract Award. Source selection
information shall not be released prior to contract award unless the
Head of the DoD Component, or his or her designee, determines that
release is in the public interest and would not jeopardize the integrity
or successful completion of the procurement. The information to be
released shall only be released by the contracting officer. The
contracting officer shall make release in a manner that does not provide
any potential offeror with a competitive advantage.
(2) After Contract Award. The need to protect source selection
information generally ends with contract award. The contracting officer
may release, or authorize the release of, any source selection
information related to that contract award except: Source selection
information specifically developed or prepared for use with more than
one solicitation when there is a continuing need to protect that
information; unless otherwise permitted by law, source selection
information containing contractor data or extracts thereof which are
protected by law; information which would reveal the relative merits or
technical standing of the competitors or the evaluation scoring; and
any pre-decisional or other information not subject to release under the
Freedom of Information Act. Debriefings to unsuccessful offerors shall
be conducted in accordance with FAR 15.1003 and Defense Federal
Acquisition Regulation Supplement (DFARS) 215.1003(a).
(5) Planning, Programming, and Budgetary Information. (i) Planning,
Programming, and Budgeting System (PPBS) documents and supporting data
bases are not to be disclosed outside the Department of Defense (DoD)
and other governmental agencies directly involved in the defense
planning and resource allocation process (e.g., the Office of Management
and Budget). PPBS papers and associated data set forth the details of
proposed programs and plans. Access to this material by those not
directly involved in the PPBS process undermines the confidentiality
necessary for the Secretary and Deputy Secretary to obtain candid advice
on the content of the defense program. Also, access to PPBS information
by private firms seeking contracts with the Department may pose ethical,
even criminal, problems for those involved and reduce effective
competition in the contract awards process.
(ii)(A) Requests for exceptions to this limitation may be granted on
a case-by-case basis to meet compelling needs, after coordination with
the Office of General Counsel, by the Head of the OSD office responsible
for the PPBS phase to which the document or data base pertains; the
Under Secretary of Defense (Policy) for the planning phase; the
Assistant Secretary of Defense (Program Analysis and Evaluation) for
programming; and the Comptroller, DoD for budgeting. A list of the
current major documents and data bases for each PPBS phase is in
paragraph (B)(5)(11)(C) of this section; all other PPBS materials are
also controlled under this policy.
(B) Disclosure of PPBS information to Congress and the General
Accounting Office (GAO) is covered by statute and other procedures.
(C) Major PPBS Documents and Data Bases by Phase.
/1/ Copies may be obtained, at cost, from the National Technical
Information Services, 5285 Port Royal Road, Springfield, VA 22161.
/2/ Copies may be obtained, at cost, from the Government Printing
Office, ATTN: Superintendent of Documents, Washington, DC 20402.
/3/ See footnote 1 to 286h.3(b)(2)(ii).
32 CFR 286h.3 Planning Phase
(1) Defense Planning Guidance.
32 CFR 286h.3 Programming Phase
(2) Fiscal Guidance (when separate from Defense Planning Guidance);
(3) Program Objective Memoranda (POM);
(4) POM Defense Program (formerly FYDP) documents (POM Defense
Program, Procurement Annex, RDT&E Annex);
(5) Program Review Proposals;
(6) Issue Papers (aka, Major Issue Papers, Tier II Issue Papers,
Cover Briefs);
(7) Proposed Military Department Program Reductions (or Program
Offsets);
(8) Tentative Issue Decision Memoranda;
(9) Program Decision Memoranda;
32 CFR 286h.3 Budgeting Phase
(10) Defense Program (formerly FYDP) documents for September and
President's Budget Estimate submissions including Defense Program
Procurement, RDT&E and Construction Annexes;
(11) Classified P-1, R-1 and C-1;
(12) Program Budget Decisions/Defense Management Review Decisions;
(13) Reports Generated by the Automated Budget Review System (BRS);
(14) DD Form 1414 Base for Programming;
(15) DD Form 1416 Report of Programs;
(16) Contract Award Reports;
(17) Congressional Data Sheets.
(ii) Contractor requests for information contained in the National
Military Strategy Document (including annexes) and the Chairman's
Program Assessment Document (including annexes and comments) shall be
forwarded to the CJCS who shall determine on a case-by-case basis what
information, if any, is releasable to the contractor.
(6) Documents That Disclose the Government's Negotiating Position.
Documents that would disclose the government's negotiating position
(such as pre-negotiation business clearances and positions and
government cost estimates) or would adversely impact the government
negotiating strategy shall not be released.
(7) Drafts and Working Papers. Drafts and working papers that would
otherwise be releasable under paragraph 286h.3(a) shall not be released
where their release would inhibit the development of agency positions,
jeopardize the free exchange of information that is part of the
deliberative process, or compromise the decision-making process.
(c) Freedom of Information Act. Where a request for information, the
release of which is restricted under paragraph 286h.3(b) is made under
the Freedom of Information Act, the request shall be forwarded to the
appropriate official for disposition in accordance with DoD 5400.7-R.
/4/ Requests for contractor bid or proposal information pursuant to the
Freedom of Information Act shall be subject to subparagraph 5-207 a. of
DoD 5400.7-R, which requires notice to a non-United States Government
source of a record.
/4/ See footnote 1 to 286h.3(b)(2)(ii).
32 CFR 286h.4 Responsibilities.
(a) The Under Secretary of Defense (Acquisition) shall be responsible
for establishing uniform policies and procedures for the release of
acquisition-related information.
(b) The Under Secretary of Defense (Policy), Assistant Secretary of
Defense (Program Analysis and Evaluation) and Comptroller, DoD are
responsible for adjudicating requests for access to Planning,
Programming and Budgeting information pertaining to their respective
phases of the PPB system.
(c) The Head of each DoD Component shall assure that procedures for
the release of acquisition-related information are consistent with the
policy contained in this Directive and shall not impose any additional
restrictions on release of such information. These procedures shall
specifically identify the individuals authorized to release and transmit
acquisition-related information.
32 CFR 286h.4 PART 287 -- DEFENSE COMMUNICATIONS AGENCY (DCA) FREEDOM
OF INFORMATION ACT PROGRAM
287.1 Purpose.
287.2 Applicability.
287.3 Authority.
287.4 Responsibilities.
287.5 Fees.
287.6 Reports.
287.7 Questions.
287.8 ''For Official Use Only'' Records.
Authority: 5 U.S.C. 552a.
Source: 55 FR 31829, Aug. 6, 1990, unless otherwise noted.
32 CFR 287.1 Purpose.
This part delineates responsibility for making available to the
public the maximum amount of information concerning the operations and
activities of the Defense Communications Agency (DCA). It is to be used
in conjunction with 32 CFR part 286 ''DoD Freedom of Information Act
Program.''
32 CFR 287.2 Applicability.
This part applies to Headquarters, DCA, and DCA field activities.
32 CFR 287.3 Authority.
This part is published in accordance with the authority contained in
32 CFR part 285 as promulgated by 32 CFR part 286.
32 CFR 287.4 Responsibilities.
(a) The Office of the Chief of Staff, Corporate Exchange Branch,
(CEB) at DCA Headquarters, Eight Street and South Courthouse Rd,
Arlington, VA, will:
(1) Make the material described in Chapter II, section 2-101,
paragraph (a)(2) of the Freedom of Information Act available for public
inspection and reproduction. A current index of this material will be
maintained in accordance with chapter II, section 2-101, paragraph
(a)(2) of the Freedom of Information Act.
(2) Establish education and training programs for all DCA military
members and employees who contribute to DCA's implementation of the
Freedom of Information Act.
(3) Arrange for the publication in the Federal Register, after
coordinating with the DCA General Counsel, of appropriate material
detailing where, how, and by what authority DCA performs its functions
as well as informing all interested persons how to deal effectively with
the Agency.
(b) The Deputy Directors and the Chief of Staff, DCA, will:
(1) Furnish the CEB with copies of the material to be published in
the Federal Register.
(2) Furnish the CEB, when requested, with DCA documentary material
which qualifies as a record in accordance with 32 CFR part 286, for the
purpose of responding to FOIA requests. All such requests for
information will be referred to the CEB office.
(c) The Directors, Commanders, and Chiefs of DCA field activities
will develop supplemental instructions to DCAI 210-225-1, /1/ as
required, to cover requests for information from the public which are
received regularly and which usually pertain to information that may be
released without question. Supplemental instructions will be submitted
to the CEB for review and approval prior to implementation.
(d) The CEB, Headquarters, DCA, is vested with the authority, within
DCA, to release records for all requests coming to Headquarters, DCA,
and to the field activities in the Metropolitan Washington area, and
will:
(1) Respond to all requests for records from private persons in
accordance with 32 CFR part 286 whether the requests are received
directly by Headquarters, DCA or by DCA field activities. Coordinate
such release with the General Counsel in any case in which release is,
or may be, controversial.
(2) By the DCA principal point of contact and coordination with the
office of the Assistant Secretary of Defense (Public Affairs)
(OASD(PA)).
(3) Ensure the cooperation of DCA with the OASD (PA) in fulfilling
responsibilities for monitoring the implementation of 32 CFR part 286.
(4) Refer cases of significance to the OASD (PA) for review and
evaluation, after coordination with the General Counsel and with the
approval of the Chief of Staff, when the issues raised are unusual,
precedent setting, or otherwise require special attention or guidance.
(5) Advise the OASD (PA), prior to the denial of a request or prior
to an appeal when two or more DoD components are affected by the
request, for a particular record and when circumstances suggest a
potential public controversy.
(6) Be responsible for the annual reporting requirements contained in
32 CFR part 286.
(e) Within DCA, the sole authority to deny, in whole or in part, a
request for records is vested in the DCA General Counsel (Code AL) or,
in his absence, in the Deputy General Counsel. A denial by the DCA
General Counsel is appealable solely to the Director, or to the Vice
Director acting in the absence of the Director. The General Counsel,
DCA, will:
(1) Make the decision, whenever a request for a record is to be
denied in whole or in part, in accordance with the criteria provided in
32 CFR part 286.
(2) Inform the person denied a record of the basis for the denial of
the request and of his or her right to appeal the decision to the
Director, DCA via written correspondence.
(3) Ensure that if such an appeal is taken, that the basis for the
determination by the Director, DCA refuse to release the record will be
in writing, will state the reasons for the denial, and will inform the
requester or his or her right to a judicial review in the appropriate
U.S. district court.
(f) The Chief of Staff, Headquarters, DCA, will, on behalf of the
Director, DCA, respond to the corrective or disciplinary action
recommended by the Special Counsel, Merit System Protection Board for
arbitrary or capricious withholding of records requested, pursuant to
the Freedom of Information Act, by military members or employees of DCA.
This action will be coordinated with the General Counsel, DCA.
/1/ This instruction is available from Defense Communications Agency,
Washington, D.C. 20305.
32 CFR 287.5 Fees.
Fees charged to the requester are contained in 32 CFR part 286.
32 CFR 287.6 Reports.
Each major staff element and field activity on the distribution list
of this DCA Instruction will furnish an annual report to the CEB,
Headquarters, DCA, in accordance with 32 CFR part 286.
32 CFR 287.7 Questions.
Questions on both the substance and procedures of the Freedom of
Information Act and the DCA implementation thereof should be addressed
to the CEB by the most expeditious means possible, including telephone
calls. Freedom of Information Act requests should be addressed as
follows: Defense Communications Agency, Attention: Code ADA,
Washington, DC 20305-2000. Calls should be made to (202) 692-2006.
32 CFR 287.8 ''For Official Use Only'' Records.
The designation ''For Official Use Only'' will be applied to
documents and other material only as authorized by 32 CFR part 286.
32 CFR 287.8 PART 290 -- DEFENSE CONTRACT AUDIT AGENCY (DCAA) FREEDOM
OF INFORMATION ACT PROGRAM
Sec.
290.1 Purpose.
290.2 Cancellation.
290.3 Applicability and scope.
290.4 Policy.
290.5 Definitions.
290.6 Responsibilities.
290.7 Procedures.
290.8 Fees.
Appendix A to Part 290 -- DCAA's Organization and Mission
Appendix B to Part 290 -- DCAA's FOIA Points of Contact
Appendix C to Part 290 -- For Official Use Only
Appendix D to Part 290 -- Audit Working Papers
Authority: 5 U.S.C. 552.
Source: 56 FR 49685, Oct. 1, 1991, unless otherwise noted.
32 CFR 290.1 Purpose.
This part assigns responsibilities and establishes policies and
procedures for a uniform DCAA Freedom of Information Act (FOIA) program
pursuant to the provisions of the Freedom of Information Act, 5 U.S.C.
552, as implemented by DoD Directive 5400.7 /1/ and DoD 5400.7-R. /2/
/1/ Copies may be obtained, at cost, from the National Technical
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
/2/ See footnote 1 to 290.1.
32 CFR 290.2 Cancellation.
DCAA Regulation 5410.8, DCAA Freedom of Information Act (FOIA)
Program, dated 17 May 1989; DCAAR 5200.1, Control and Protection of
''For Official Use Only'' Information, dated 12 November 1985; and DCAA
HQ Instruction 5200.9, Physical Security of ''For Official Use Only''
Information within Headquarters, DCAA, dated 20 November 1974, are
superseded.
32 CFR 290.3 Applicability and scope.
This rule applies to all DCAA organizational elements, and is to
govern written responses by DCAA officials for requests from members of
the public for permission to examine, or to be provided with copies of
DCAA records. This rule also addresses Agency policies and procedures
for handling ''For Official Use Only'' information, including Field
Detachment sensitive information.
32 CFR 290.4 Policy.
It is the policy of DCAA to:
(a) Promote public trust by making the maximum amount of information
available to the public, upon request, pertaining to the operation and
activities of the Agency.
(b) Allow a requester to obtain records from the Agency that are
available through other public information services without invoking the
FOIA.
(c) Make available, under the procedures established by DCAAP
5410.14, /3/ those records that are requested by a member of the general
public who cites the FOIA.
(d) Answer promptly all other requests for information and records
under established procedures and practices.
/3/ Copies may be obtained, if needed, from the Defense Contract
Audit Agency, Attn: CMO, Cameron Station, Alexandria, VA 22304-6178.
32 CFR 290.5 Definitions.
The terms used in this rule with the exception of the following are
defined in DCAAP 5410.14.
(a) Initial Denial Authorities (IDAs). The regional directors, and
the Chief, Information Resources Management Branch (CMR), have been
delegated the authority by the Director, DCAA, to make initial
determinations as to the releasability of DCAA records to the public,
including Defense contractors. This authority may not be redelegated.
(b) Appellate Authority. The Assistant Director, Resources, or his
designee.
(c) Electronic Data. Electronic data are those records and
information which are created, stored, and retrievable by electronic
means. This does not include computer software, which is the tool by
which to create, store, or retrieve electronic data.
(d) FOIA Request. A written request for DCAA records, made by any
person, including a member of the public (U.S. or foreign citizen), an
organization, or a business, but not including a Federal agency or a
fugitive from the law that either explicitly or implicitly invokes the
FOIA, DoD 5400.7-R, DCAAR 5410.8, /4/ or regional instruction on the
FOIA.
(e) Administrative Appeal. A request by a member of the general
public, made under the FOIA, asking the appellate authority to reverse
an IDA decision to withhold all or part of a requested record or to deny
a request for waiver or reduction of fees.
/4/ See footnote 3 to 290.4(c).
32 CFR 290.6 Responsibilities.
(a) Headquarters. (1) The Assistant Director, Resources is
responsible for:
(i) The overall Agency-wide administration of the DCAA FOIA Program
through the Information Resources Management Branch (CMR), Information
and Privacy Advisor, to ensure compliance with the policies and
procedures that govern the program.
(ii) Acting as the designee for the Director, DCAA, serving as the
sole appellate authority for appeals to decisions of respective IDAs.
(iii) Advising the Assistant Secretary of Defense (Public Affairs)
(ASD(PA)) of cases of public interest, particularly those on appeal,
when the issues raised are unusual or precedent setting, matters of
disagreement among DoD components, are of concern to agencies outside
the Department of Defense, or may otherwise require special attention or
guidance.
(iv) Advising the ASD(PA) and the Executive Officer, DCAA, concurrent
with the denial of a request or an appeal, when circumstances suggest a
news media interest.
(v) Conferring with the General Counsel; the Assistant Director,
Operations; and the Assistant Director, Policy and Plans, on the
desirability of reconsidering a final decision to deny a record, if that
decision becomes a matter of special concern because it involves either
an issue of public concern or DoD-wide consequences.
(vi) Accomplishing program overview, in cooperation with the General
Counsel, to ensure coordinated guidance to components, and to provide
the means of assessing the overall conduct of the Agency's FOIA Program.
(vii) Responding to corrective action recommended by the Special
Counsel of the Merit Systems Protection Board for arbitrary or
capricious withholding of records by designated employees of the Agency.
(2) The Chief, Information Resources Management Branch, CMR, under
the supervision and guidance of the Chief, Administrative Management
Division (CM) is responsible for:
(i) Establishing, issuing, and updating policies for the DCAA FOIA
Program; monitoring compliance with this rule; and providing policy
guidance for the FOIA program.
(ii) Resolving conflicts that may arise regarding implementation of
DCAA FOIA policy.
(iii) Designating an Agency FOIA Advisor, as a single point of
contact, to coordinate on matters concerning Freedom of Information Act
policy.
(3) The DCAA Information and Privacy Advisor, under the supervision
and guidance of the Chief, Information Resources Management Branch is
responsible for:
(i) Managing the DCAA FOIA Program in accordance with this rule,
DCAAP 5410.14, applicable DCAA policies as well as DoD and Federal
regulations.
(ii) Providing guidelines for managing, administering, and
implementing the DCAA FOIA program. This would include issuing the DCAA
FOIA rule, developing and conducting training for those individuals who
implement the FOIA, and publishing in the Federal Register any
instructions necessary for the administration of the FOIA program. This
also includes serving as the informational point of contact for regional
FOIA coordinators.
(iii) Maintaining and publishing DCAA Pamphlet 5410.12, /5/ ''Freedom
of Information Act, A Manager's Guide to a Complex Law'', and DCAA
Pamphlet 5410.14, ''DCAA Freedom of Information Act Processing Guide''.
(iv) Preparing the Annual Freedom of Information Report to Congress
as required by DoD 5400.7-R.
(v) Establishing and maintaining a control system for assigning FOIA
case numbers to FOIA requests received by Headquarters and regional
offices.
(vi) Maintaining a record of FOIA requests received by Headquarters.
This record is to contain the requester's identification, the date of
the request, type of information requested, and type of information
furnished. This record will be maintained and disposed of in accordance
with DCAA records maintenance and disposition regulations and schedules.
(vii) Preparing and submitting the quarterly FOIA status report.
(viii) Making available for public inspection and copying in an
appropriate facility or facilities, in accordance with rules published
in the Federal Register the records specified in paragraph (a)(2) of 5
U.S.C. 552, unless such records are published and copies are offered for
sale. Maintain and make available for public inspection and copying
current indices of these records.
(4) Heads of Principal Staff Elements are responsible for:
(i) Reviewing all regulations or other policy and guidance issuances
for which they are the proponent to ensure consistency with the
provisions of this rule.
(ii) Ensuring that the provisions of DCAAP 5410.14 and this rule are
followed in processing requests for records.
(iii) Forwarding to the DCAA Information and Privacy Advisor, any
FOIA requests received directly from a member of the public so that the
request may be administratively controlled and processed.
(iv) Ensuring the prompt review of all FOIA requests, and when
required, coordinating those requests with other organizational
elements.
(v) Providing recommendations regarding the releasability of DCAA
records to members of the public, along with the responsive documents.
(vi) Providing the appropriate documents, along with a written
justification for any denial, in whole or in part, of a request for
records. Those portions to be excised should be bracketed in red
pencil, and the specific exemption or exemptions cited which provide the
basis for denying the requested records.
(vii) Ensuring that documents are marked FOUO at the time of their
creation if information contained within is considered exempt from
disclosure.
(5) The General Counsel is responsible for:
(i) Ensuring uniformity is maintained in the legal position, and the
interpretation of the Freedom of Information Act, DoD 5400.7-R, and this
rule.
(ii) Consulting with General Counsel, DoD on final denials that are
inconsistent with decisions of other DoD components, involving issues
not previously resolved, or raise new or significant legal issues of
potential significance to other Government agencies.
(iii) Providing advice and assistance to the Assistant Director,
Resources; Regional Directors; and the Regional FOIA Coordinators,
through the DCAA Information and Privacy Advisor, as required, in the
discharge of their responsibilities.
(iv) Coordinating Freedom of Information Act litigation with the
Department of Justice.
(v) Coordinating on Headquarters denials of initial requests and
administrative appeals.
(vi) Ensuring that documents are marked FOUO at the time of their
creation if information contained within is considered exempt from
disclosure.
(6) The Executive Officer shall serve as the coordinator for the
release of information to the news media.
(b) Each Regional Director is responsible for the overall management
of the Freedom of Information Act program within his respective region.
Under his direction, the Regional Resources Manager is responsible for
the management and staff supervision of the program and for designating
a regional FOIA Coordinator. (1) Regional Directors are responsible
for:
(i) Implementing and administering the Freedom of Information Act
program throughout the region.
(ii) Making the initial determination pertaining to the releasability
of DCAA records to members of the public. This authority cannot be
delegated.
(iii) Delegating signature authority for FOIA correspondence which is
considered only to be routine in nature, e.g., referrals and the release
of information.
(iv) Ensuring that documents are marked FOUO at the time of their
creation if information contained within is considered exempt from
disclosure.
(2) FOIA Coordinators are responsible for:
(i) Issuing regional instructions that are consistent with the
policies and procedures defined in DCAAP 5410.14 and this rule.
(ii) Conducting training on the FOIA program to the FAOs.
(iii) Submitting a DCAA Form 5410-4, ''Freedom of Information Case
Summary'', to the DCAA Information and Privacy Advisor at the completion
of each FOIA case to facilitate the preparation of the annual FOIA
report to Congress. All case summaries must be submitted no later than
January 10th for cases completed during the previous calendar year.
(iv) Establishing and maintaining a control system to ensure proper
accountability and processing of FOIA requests.
(v) Contacting the DCAA Information and Privacy Act Advisor for a
FOIA case number upon receipt of a FOIA request.
(c) Managers, Field Audit Offices (FAOs) are responsible for:
(1) Overall management and administration of the FOIA program within
organizations under their cognizance.
(2) Ensuring that the regional FOIA Coordinator promptly receives all
incoming FOIA requests. Use of facsimile transmission is appropriate
for all requests received directly by the FAO.
(3) Ensuring that documents are marked FOUO at the time of their
creation if information contained within is considered exempt from
disclosure.
/5/ See footnote 3 to 290.4(c).
32 CFR 290.7 Procedures.
(a) Procedures for processing material in accordance with the FOIA
are outlined in DCAAP 5410.14. General provisions are outlined in the
following paragraphs.
(b) Requests for Audit Reports. Audit reports prepared by DCAA are
the property of and are prepared for the use of DoD contracting
officers. As a result, their release should be at the sole discretion
of the DoD contracting activity. Requesters seeking audit reports
should send their requests directly to the DoD contracting activity to
avoid administrative delay. Typically, requests for copies of DCAA
audit reports may be identified by requesting those that relate to a
specific contract number (e.g. DLA600-89-P0222). DoD contract numbers
may be easily matched to the cognizant DoD contracting activity by
referring to 48 CFR, ''DoD FAR Supplement'' Appendix N.
Note: Although DCAA can make a release determination on audit
reports produced for non-DoD agencies, administrative procedure
routinely dictates coordination with that agency prior to responding to
the request. Requesters seeking expeditious processing should forward
their requests directly to the cognizant contracting officer for
processing.
(c) Requests for Audit Working Papers. Audit working papers, as
described in appendix D, may be sought occasionally in conjunction with
an audit report or as an independent demand. Normally, the release of
such records is entirely dependent on the releasability of the related
audit report. (Note: The procedures for determining the releasability
of audit reports is provided in general in the aforementioned paragraph
and in more detail in DCAAP 5410.14). Since the content of audit working
paper files can be quite diverse and often voluminous, FOIA Coordinators
should work closely with the requester to ensure that the records
produced are narrowly defined and entirely responsive to the requester's
needs.
(d) Public Inspection and Copying. Section (a)(2) of the Freedom of
Information Act requires agencies to make available for public
inspection and copying, final opinions made in the adjudication of
cases, statements of policy not yet published in the Federal Register,
and administrative manuals and instructions. This requirement is
satisfied by the quarterly publication of DCAAI 5025.2, /6/ ''DCAA Index
of Publications'' and DCAAI 5025.13, /7/ ''Index of DCAA Memorandums for
Regional Directors''.
(e) Requests for the Examination or copies of Records. (1) Members
of the public may make written requests for copies of DCAA records or
for permission to examine such records during normal business hours.
Such requests must be in writing and either explicitly or implicitly
invoke the Freedom of Information Act, or this rule. These requests
should be submitted directly to the appropriate DCAA organizational
element listed in Appendix B of this rule. If the appropriate DCAA
organizational element is either unknown or cannot be ascertained, and
the record is likely to be in the possession of DCAA, the request may be
submitted to Headquarters, DCAA, ATTN: CMR, Cameron Station,
Alexandria, Virginia 22304-6178.
(2) When submitting requests, requesters should:
(i) Identify each record sought with sufficient detail to facilitate
the location and easy access to the record requested. Information as to
where the record originated, subject, date, number, or any other
identifying particulars should be provided whenever possible. DCAA
organizational elements receiving requests which do not reasonably
describe the record requested will advise the requester accordingly.
Generally, a record is not reasonably described unless the requester
provides information permitting an organized, nonrandom search of DCAA
files and/or information systems. In providing descriptions based on
events, the requester must provide information which permits DCAA
organizational elements to, at least, infer the specific record sought.
(ii) Identify all other Federal agencies subject to the provisions of
the FOIA to which the request has been sent. This will reduce both
processing and coordination time between agencies and redundant
referrals.
(iii) Provide a statement of their willingness to pay assessable
charges. The statement must include a specific monetary amount if the
assessable fees are likely to exceed the fee waiver threshold of $15.00
or a specific justification for any waiver or reduction of fees sought
based on public interest in release or disclosure. DCAA organizational
elements will notify requesters of deficiencies in fee declarations, and
provide them the opportunity to amend initial declarations.
Determinations on the adequacy of requester fee declarations are not
subject to appeal unless: The DCAA organizational element has denied a
specific request for the assessment of fees under one of the established
requester categories; or has denied a request for the waiver or
reduction of fees in the public interest.
(3) When a DCAA organizational element has no records responsive to a
request, the requester will be notified promptly that should he or she
determine such request to be adverse in nature, he or she may exercise
their appeal rights. In cases where the request has been misdirected
and the DCAA organizational element is aware of the appropriate FOIA
respondent, they shall refer the request to the appropriate DCAA
organizational element or other Federal agency through FOIA channels,
and notify the requester of the referral. The 10 working day period
allowed for responding to requests will not begin until the DCAA
organizational element having the responsive records receives a request
complying with procedural requirements of this rule, including
statements on the payment of fees.
(4) The provisions of the FOIA are intended for parties with private
interests. Officials seeking documents or information on behalf of
foreign governments, other Federal agencies, and state or local agencies
should be encouraged to employ official channels. The release of
records to individuals under the FOIA is a public release of
information. DCAA organizational elements will consider FOIA requests
from such officials as made in a private, rather than official capacity,
and will make disclosure and fee determinations accordingly.
(f) Referrals. (1) Records originating in or based on information
obtained from other Federal agencies subject to the FOIA may be referred
to that agency. In processing FOIA requests for such records, DCAA
elements, after coordinating with the originating agency, may refer the
request, along with a copy of the responsive records in its possession,
to that agency for direct response. The requester is to be notified of
the referral. However, if for investigative or intelligence purposes,
the outside agency desires anonymity, FOIA Coordinators may only respond
directly to the requester after coordination with the agency.
(2) Referral of Audit Reports. Audit reports prepared by DCAA are
the property of and are prepared for the use of the DoD contracting
officers. Their release is at the discretion of the DoD contracting
activity. Therefore any FOIA request for audit reports prepared for DoD
components should be referred to the cognizant DoD contracting activity
and the requester notified of the referral. To avoid the delay
associated with the referral process, requesters should be advised to
send requests for audit reports directly to the cognizant DoD
contracting activity. Requests for audit reports prepared for non-DoD
agencies should be treated as requests for DCAA records.
(3) Referral of Work Papers. When a requester seeks workpapers, the
cognizant contracting officer must furnish a notice of disposition to
the appropriate activity pertaining to the releasability of the audit
report. The notice of disposition will then be used to determine
releasability of the workpapers. Details concerning the appropriate
processing procedures may be found in DCAAP 5410.14.
(4) All other requests should be directed to the appropriate regional
director, if known. When the location of the record is not known, the
request should be directed to the DCAA Information and Privacy Advisor.
(5) Time Limits. DCAA organizational elements are to respond
promptly to requesters complying with the procedural requirements
outlined in this rule. When a significant number of requests are being
processed, e.g. 10 or more, the requests shall be completed in order of
receipt. However, this does not preclude completing action on a request
which can be easily answered, regardless of its ranking within the order
of receipt. Action may be expedited on a request regardless of its
ranking within the order of receipt upon a showing of exceptional need
or urgency. Exceptional need or urgency is determined at the discretion
of the FOIA Coordinator.
(i) Upon receipt of a properly submitted FOIA request, DCAA
organizational elements should contact the DCAA Information and Privacy
Advisor for a FOIA case number. IDAs should:
(A) Locate and assemble responsive records.
(B) Determine releasability under the provisions of this rule.
(C) Determine the appropriate fees to be charged and
(D) Advise the requester accordingly. Initial determinations on
either the release or denial of records, and notice to requesters, must
be provided within 10 working days following receipt of the request by
the cognizant DCAA organizational element.
(ii) In certain cases, IDAs may need to exercise an extension to the
normal 10 working day period cited above. IDAs are to notify the
requester, within the initial 10 working day period, of the extension,
the circumstances necessitating it, and the anticipated date of a
determination. Approved extensions are not to exceed 10 working days,
and all extensions should be indicated on DCAA Form 5410-4, section 6.
Circumstances where such extensions may be approved include:
(A) The record(s) sought are geographically located at places other
than the DCAA organizational element processing the request.
(B) The request requires the collection and review of a substantial
number of records.
(C) The disclosure determination requires consultation with another
DCAA organizational element or other Federal agency with a substantial
interest.
(iii) As an alternative to the previously mentioned, DCAA
organizational elements may seek informal agreements with requesters for
extensions in unusual circumstances when time limits become an issue in
the response to the request.
(iv) Misdirected requests should be referred within 10 working days
to the proper Federal agency or DCAA organizational elment through FOIA
channels, and the requester notified of the referral. The 10 working
day period allowed for responding to requests will not begin until the
DCAA organizational element having the responsive records receives the
request.
(6) Initial Disclosure Determinations. (i) Initial determinations to
make records available may only be made by those IDAs designated in this
rule.
Note: Requests for audit reports should be directed to the cognizant
contracting officer for release determination. (See 290.7(b)).
When a decision is made to release records in response to a FOIA
request, DCAA organizational elements will promptly make the records
available to the requester. When the request is for the examination of
releasable records, DCAA organizational elements will advise the
requester when and where he/she may appear. Examinations will be held
during normal business hours. If a record is not provided in response
to a FOIA request, the IDA will advise the requester, in writing, of the
rationale for not providing the record.
(ii) IDAs should consult the Executive Officer, prior to releasing
records on matters considered newsworthy or when releasing records to
media representatives. Copies of all media requests should be submitted
to the Executive Officer.
(iii) The following reasons, other than the statutory exemptions
cited in the FOIA, are provided for not releasing a record in response
to a FOIA request.
(A) The request is transferred to another DoD component, or to
another Federal agency.
(B) The Agency determines through knowledge of its files and
reasonable search efforts that it neither controls nor otherwise
possesses the requested record.
(C) A record has not been described with sufficient particularity to
enable the Agency to locate it by conducting a reasonable search.
(D) The requester has failed unreasonably to comply with procedural
requirements, including payment of fees, imposed by this rule.
(E) The request is withdrawn by the requester.
(F) The information requested is not a record within the meaning of
the FOIA and this rule.
(7) Denials. (i) A record in the possession and control of DCAA may
be withheld only when the record falls within one or more of the nine
categories of records exempt from mandatory disclosure under the FOIA,
and the use of discretionary authority to release the record is
determined to be unwarranted. (Note: Since audit reports are prepared
for the use of DoD contracting officers, their release is at the
discretion of the DoD contracting activity. To facilitate an expeditious
response, requesters should send their requests directly to the DoD
contracting activity. (See 290.7(b)). The specific exemptions are
detailed in DCAAP 5410.14.
(ii) Although exempt portions of records may be denied, nonexempt
portions must be released to the requester when it can reasonably be
assumed that the excised information could not be reconstructed. When a
record is denied in whole, based on distortion or reconstruction
potential, the IDA will prepare a response advising the requester of the
determination, and the response will specifically state that it is not
possible to reasonably segregate meaningful portions for release.
(iii) When a request for a record is denied in whole or in part, the
IDA will inform the requester in writing of the specific exemption(s) on
which the denial is based and explain the determination in sufficient
detail to permit the requester to make a decision concerning appeal.
The determination will also inform the requester of his/her appeal
rights. All appeals should be made within 60 calendar days from the
date of the initial denial, contain the reasons for the requester's
disagreement with the determination, and be addressed to the Assistant
Director, Resources, Headquarters, DCAA, Cameron Station, Alexandria, VA
22304-6178.
(iv) Records or portions of records which have been previously
released become part of the public domain, and cannot be denied
thereafter.
(8) Administrative Appeals of Denials. (i) If the IDA declines to
provide a record because he/she considers it exempt, that decision may
be appealed by the requester, in writing, to the Assistant Director,
Resources, DCAA.
Note: Normally, IDAs would not issue denials for requests for audit
reports. The denial authority for such records generally rests with the
cognizant DoD contracting activity. (See 290.7(b)). The appeal should
be accompanied by a copy of the letter denying the initial request.
Such appeals should contain the basis for disagreement with the initial
refusal. Appeal procedures also apply to the disapproval of a request
for waiver or reduction of fees. A ''no record'' finding may be
appealed which allows the requester to challenge the adequacy of the
Agency's search. Records which are denied should be retained during the
time permitted for appeal.
(ii) IDAs shall advise the requester that an appeal should be filed
so that it reaches the designated appellate authority no later than 60
calendar days after the date of the initial denial letter. At the
conclusion of this period, except for good cause shown as to why the
appeal was not timely, the case may be considered closed; however, such
closure does not preclude the requester from filing litigation for
denial of his appeal. If the requester has been provided a series of
determinations for a single request, the time for appeal will begin on
the date of the last determination of the series. Records which are
denied shall be retained for a period of six years to meet the statute
of limitations of claims requirement.
(iii) Final determinations normally shall be made within 20 working
days of receipt of an appropriately submitted appeal.
(9) Delay in Responding to an Appeal. (i) When additional time is
required to respond to the appeal, the final determination may be
delayed for the number of working days (not to exceed 10 days) that were
not utilized as additional time for responding to the initial request.
Requesters shall be advised that, if the delay exceeds the statutory
extension provision or is for reasons other than the unusual
circumstances previously described, they may consider their
administrative remedies exhausted. They may, however, without
prejudicing their right of judicial remedy, await a substantive
response. DCAA shall continue to process the case expeditiously,
whether or not the requester seeks a court order for release of the
records, but a copy of any response provided subsequent to filing a
complaint shall be forwarded to the Department of Justice through the
DCAA General Counsel.
(ii) When the Assistant Director, Resources, DCAA, makes a
determination to release all or a portion of the records on appeal, the
records shall be made available promptly to the requester after
compliance with procedural requirements. The final denial of a request
will be made in writing, explain the exemption(s) invoked, advise that
the material being denied does not contain meaningful portions that are
reasonably segregable, and also advise the requester of the right of
judicial review.
(10) Judicial Action. A requester will be deemed to have exhausted
his administrative remedies after he has been denied the requested
record by the Assistant Director, Resources, or when the Agency fails to
respond to his request within the time limits prescribed by the FOIA and
this rule. The requester may then seek an order from a U.S. District
Court in the district in which he resides or has his principal place of
business; the district in which the record is situated; or in the U.S.
District Court for the District of Columbia, enjoining the Agency from
withholding the record and ordering its production.
(56 FR 49685, Oct. 1, 1991, as amended at 56 FR 56932, Nov. 7, 1991;
57 FR 15254, Apr. 27, 1992)
/6/ See footnote 3 to 290.4(c).
/7/ See footnote 3 to 290.4(c).
32 CFR 290.8 Fees.
(a) Fees shall be determined in accordance with the DoD fee schedule,
which is detailed in DCAAP 5410.14. Fees reflect direct costs for
search, review (in the case of commercial requesters), and duplication
of documents, collection of which is permitted by the FOIA. Fees are
subject to limitations on the nature of assessable fees based on the
category of the requester; statutory and automatic waivers based on the
category determination and cost of routine collection; and either the
waiver or reduction of fees when disclosure serves the public interest.
(b) Fees will not be charged when direct costs for a FOIA request are
$15.00 or less, the automatic fee waiver threshold, regardless of
category.
(c) Fee Assessment. In order to be as responsive as possible to FOIA
requests, DCAA organizational elements should adhere to the following
when assessing fees:
(1) Evaluate each request to determine the requester category and
adequacy of the fee declaration. An adequate fee declaration requires a
willingness by the requester to pay fees in an amount equal to, or
greater than, the assessable charges for the request.
(2) Provide requesters an opportunity to amend inadequate fee
declarations and provide estimates of prospective charges when required.
When a requester fails to provide an adequate fee declaration within 30
days after notification of a deficiency, the request for information
will be considered withdrawn.
(3) A requester's claims for assessment of fees under a specific
category will be carefully considered. The IDA may require a requester
to substantiate a claim for assessment under a claimed category. In the
absence of requester claims, the IDA will determine the category into
which a requester falls, basing its determination on all available
information.
(4) When a DCAA organizational element disagrees with a requester
claim for fee assessment under a specific category, the IDA will provide
the requester with written determination indicating the following:
(i) The requester should furnish additional justification to warrant
the category claimed.
(ii) A search for responsive records will not be initiated until
agreement has been attained relative to the category of the requester.
(iii) If further category information has not been received within a
reasonable period of time, the component will render a final category
determination; and
(iv) The determination may be appealed to the Assistant Director,
Resources, within 60 calendar days of the date of the determination.
(d) When a DCAA organizational element estimates or determines that
allowable charges that a requester may be required to pay are likely to
exceed $250.00, they shall notify the requester of the likely cost and
obtain satisfactory assurance of full payment. This fee declaration
generally applies when the requester has a history of prompt payments,
however, an advance payment may be required of an amount up to the full
estimated charges in the case of requesters with no history of payment.
(e) Where a requester has previously failed to pay a fee charged
within 30 calendar days from the date of billing, DCAA organizational
elements may require the requester to pay the full amount due, plus any
applicable interest or demonstrate satisfaction of the debt, and to make
an advance payment of the full amount of estimated fees, before
processing begins on a new or pending request.
(f) After all work is completed on a request, and the documents are
ready for release, DCAA organizational elements may request payment
before forwarding the documents if there is no payment history on the
requester, or if the requester has previously failed to pay a fee in a
timely fashion (i.e., within 30 calendar days from the date of billing).
Documents may not be held for release pending payment from requesters
with a history of prompt payment.
(g) The administrative time limits for responding to a request will
begin only after the DCAA organizational element has received an
adequate declaration from the requester stating a willingness to pay
fees, and satisfaction that all outstanding debts have been paid.
(h) DCAA organizational elements can bill requesters for services
provided in responding to a request. Payment of fees may be made by
personal check, bank draft drawn on a U.S. bank, or by U.S. Postal money
order. All payments of this type are to be made payable to the U.S.
Treasurer.
(i) Aggregating Requests. Occasionally, a requester may file
multiple requests at the same time, each seeking portions of a document
or documents, solely to avoid payments of fees. When a DCAA
organizational element reasonably believes that a requester is
attempting to do so, the DCAA organizational element may aggregate such
requests and charge accordingly. One element to be considered would be
the time period in which the requests have occurred. In no case may
DCAA organizational elements aggregate multiple requests on unrelated
subjects from one requester.
(j) Fee Waivers. (1) The determination to waive fees is at the
discretion of IDAs designated in this rule. When direct costs for a
FOIA request total the automatic fee waiver threshold, or is less, fees
shall be waived automatically for all requesters, regardless of
category.
(2) Documents will be furnished without charge, or at a charge
reduced below fees assessed to the categories of requesters, when the
IDA determines that a waiver or reduction of fees is in the public
interest because furnishing the information is likely to contribute
significantly to public understanding of the operations of DCAA, and is
not primarily in the commercial interest of the requester. DCAA
organizational elements should refer to DCAAP 5410.14 for factors to
consider in applying fee waivers due to public interest. Each fee
decision must be considered on a case-by-case basis and upon the merits
of the information provided in each request. When the question of
whether to charge or waive the fee cannot be clearly resolved, DCAA
organizational elements should rule in favor of the requester.
32 CFR 290.8 Pt. 290, App. A
(a) Purpose. This section implements 5 U.S.C. 552 by describing the
central and field organizations of DCAA.
(b) Origin and Authority. DCAA was established by the Secretary of
Defense under Department of Defense (DoD) Directive 5105.36 /1/ (32 CFR
part 357) and began operating on July 1, 1965. Its Director reports to
the Comptroller of the Department of Defense.
(c) Objective. Assist in achieving the objective of prudent
contracting by providing DoD officials responsible for procurement and
contract administration with financial information and advice on
proposed or existing contracts and contractors, as appropriate.
(d) Mission. (1) DCAA performs all necessary contract audits for the
Department of Defense, and provides accounting and financial advisory
service regarding contracts to all DoD components responsible for
procurement and contract administration. These services are provided in
connection with negotiation, administration, and settlement of contracts
and subcontracts. It also furnishes advisory contract audit service to
a number of other government agencies under agreements between the
Department of Defense and such agencies.
(2) DCAA audits contractors' and subcontractors' accounts, records,
documents, and other evidence; systems of internal control, accounting,
costing, estimating, and general business practices and procedures to
give advice and recommendations to procurement and contract
administration personnel on: acceptability of costs incurred under
cost, redetermination, incentive, and similar type contracts;
acceptability of estimates of costs to be incurred as represented by
contractors incident to the award, negotiation, and modification of
contracts; and adequacy of contractors' accounting and financial
management systems and estimating procedures. DCAA also performs
post-award audits of contracts for compliance with the provisions of
Public Law 87-653 (Truth in Negotiations), and reviews contractor
compliance with the Cost Accounting Standards.
(3) DCAA assists responsible procurement or contract administration
activities in their surveys of the purchasing-procurement systems of
major contractors; and cooperates with other DoD components on reviews,
audits, analyses, or inquiries involving contractors' financial
positions or financial and accounting policies, procedures, or
practices. DCAA also maintains liaison auditors at major procuring and
contract administration offices and provides assistance in the
development of procurement policies and regulations.
(e) Composition. (1) DCAA consists of six major organizational
elements: A Headquarters and six regions. The five regional offices
manage over 400 field audit offices (FAOs) and suboffices located
throughout the United States and overseas. An FAO is identified as
either a branch office or a resident office. Suboffices are established
by regional directors as extensions of FAOs when required to furnish
contract audit service more economically. A suboffice is dependent on
its parent FAO for release of audit reports and other administrative
support.
(2) The Headquarters located at Cameron Station, Alexandria, Virginia
consists of:
(i) The Director who exercises worldwide direction and control of
DCAA.
(ii) The Deputy Director who serves as principal assistant to the
Director and acts for the Director in his absence.
(iii) The Assistant Director, Operations, authorized to act for the
Director and Deputy Director in their absence, is responsible for staff
functions related to audit management, and technical audit programs,
supervises the Technical Services Center in Memphis, Tennessee and the
procurement/contract administration liaison offices.
(iv) The Assistant Director, Policy and Plans, is responsible for
audit policy and procedures and related liaison functions, and
supervises the Defense Contract Audit Institute in Memphis, Tennessee.
(v) The Assistant Director, Resources, is responsible for the
programs and procedures related to the management and administration of
resources required to support the audit mission.
(vi) The General Counsel provides legal and legislative advice to the
Director and all members of the Agency staff.
(vii) The Executive Officer performs a variety of special projects
and assignments for the Director and Deputy Director.
(viii) The Special Assistant for Quality reviews the Agency's
compliance with established audit quality control standards, policies,
and procedures and other internal control requirements.
(3) Regional offices are located in Smyrna, GA; Lexington, MA;
Irving, TX; La Mirada, CA; and Philadelphia, PA. Regional directors
direct and administer the DCAA audit mission, and manage personnel and
other resources assigned to the regions; manage the contract audit
program; and direct the operation of FAOs within their region.
Principal elements of regional offices are the Regional Director, Deputy
Regional Director, Regional Audit Managers, Regional Special Programs
Manager, and Regional Resources Manager.
(4) A resident office is established at a contractor's location when
the amount of audit workload justifies the assignment of a permanent
staff of auditors and support staff. A resident office may also perform
procurement or contract administration liaison functions.
(5) A branch office is established at a strategically situated
location within the region, responsible for performing all contract
audit service within the assigned geographical area, exclusive of
contract audit service performed by a resident or liaison office within
the area. A branch office may also perform procurement or contract
administration liaison functions.
(6) If requested, a DCAA liaison office is established at a DoD
procurement or contract administration office when required on a
full-time basis to provide effective communication and coordination
among procurement, contract administration, and contract audit elements.
Liaison offices assist in effective utilization of contract audit
services.
/1/ Copies may be obtained, at cost, from the National Technical
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
32 CFR 290.8 Pt. 290, App. B
DCAA Western Regional Office, Attn: RCI-4 (FOIA Coordinator), 16700
Valley View Avenue, suite 300, La Mirada, CA 90638-5830, (714) 228-7017
Geographical Area of Responsibility: Alaska, California, Hawaii,
Idaho, Montana, Nevada, Oregon, Washington, and Wyoming.
Pacific Ocean and Asian Islands.
Asia except the Middle East.
Australia.
DCAA Eastern Regional Office, Attn: RCI-1 (FOIA Coordinator), 2400
Lake Park Drive, suite 300, Smyrna, GA 30080-7644, (404) 319-4510
Geographical Area of Responsibility: Alabama, Florida, Georgia,
Indiana, Kentucky, Louisiana, Mississippi, North Carolina, Ohio,
Tennessee, Virginia, West Virginia, Central America, South America,
Bermuda, Puerto Rico and nearby Islands, and Mexico.
DCAA Northeastern Regional Office, Attn: RCI-2 (FOIA Coordinator),
83 Hartwell Avenue, Lexington, MA 02173-3163, (617) 377-9756
Geographical Area of Responsibility: Connecticut, Maine,
Massachusetts, New Hampshire, Rhode Island, Vermont, Michigan (excluding
the Upper Peninsula), all New York Counties except Steuben, Schuyler,
Cheming, Tompkins, Tioga, Broome, Chenango, Otsego, Delaware, and
Sullivan.
Africa and Adjacent Islands.
Europe and Adjacent Islands.
Middle East and Adjacent Islands.
Greenland.
Iceland.
DCAA Mid-Atlantic Regional Office, Attn: RCI-6 (FOIA Coordinator),
600 Arch St., Room 4400, Philadelphia, PA 19106-1604, (215) 597-5403
Geographical Area of Responsibility: Delaware, District of Columbia,
Maryland, and New Jersey.
New York Counties of Steuben, Schuyler, Chemung, Tompkins, Tioga,
Broome, Chenango, Otsego, Delaware, and Sullivan. The IBM Suboffice
located at Tarrytown, New York.
Pennsylvania Counties East of and including Tioga, Lycoming, Union,
Mifflin, Juniata, and Franklin.
Virginia Counties East and North of and including Stafford,
Culpepper, Rappahannock, Page, Shenandoah, and Frederick.
DCAA Central Regional Office, Attn: RCI-3 (FOIA Coordinator), 106
Decker Court, suite 300, Irving, TX 75062-2795, (214) 650-4893
Geographical Area of Responsibility: Arizona, Arkansas, Colorado,
Illinois, Iowa, Kansas, Minnesota, Missouri, Nebraska, New Mexico, North
Dakota, Oklahoma, South Dakota, Texas, Utah, Wisconsin, and Louisiana
Parishes North of and including Vernon, Rapides, and Avoyelles.
DCAA Headquarters, Attn: CMR (Information and Privacy Advisor),
Cameron Station, Alexandria, VA 22304-6178, (703) 274-4400
(a) MISCELLANEOUS
(1) The following publications, may be obtained from the Defense
Contract Audit Agency, ATTN: CMO, Cameron Station, Alexandria, VA
22304-6178. Since these materials are publicly available, requesters
need not invoke the Freedom of Information Act to obtain copies of the
publications selected.
(i) DCAAI 5025.2, ''Index of Numbered Publications lists Agency
publications''.
(ii) DCAAP 1421.3 /1/ , ''Catalog of Training Courses lists training
courses available from the Defense Contract Audit Institute''.
(2) Although the following publication is publicly available, the
memorandums listed may or may not be subject to withholding under the
Freedom of Information Act. As a result, requests for these records
should be sought under the auspices of the Freedom of Information Act.
(i) DCAAI 5025.13, ''Index of DCAA Memorandums for Regional Directors
(MRDs),'' lists numbered memorandums pertaining to Agency policy,
procedure, and informational topics.
/1/ Copies may be obtained, if needed, from the Defense Contract
Audit Agency, Attn: CMO, Cameron Station, Alexandria, VA 22304-6178.
32 CFR 290.8 Pt. 290, App. C
(a) General. Information that has not been given a security
classification pursuant to the criteria of an Executive Order, but which
may be withheld from the public for one or more of the reasons cited in
FOIA Exemptions 2 through 9 shall be considered as being for official
use only. No other material shall be considered or marked ''For
Official Use Only'' (FOUO). FOUO is not authorized as an anemic form of
classification to protect national security interests.
(b) Prior FOUO Application. The prior application of FOUO markings
is not a conclusive basis for withholding a record that is requested
under the FOIA. When such a record is requested, the information in it
shall be evaluated to determine whether, under current circumstances,
FOIA exemptions apply in withholding the record or portions of it. If
any exemption or exemptions apply or applies, it may nonetheless be
released when it is determined that no governmental interest will be
jeopardized by its release. (1) Historical Papers. Records such as
notes, working papers, and drafts retained as historical evidence of
Agency actions enjoy no special status apart from the exemptions under
the FOIA.
(2) Time to Mark Records. The marking of records at the time of
their creation provides notice of FOUO content and facilitates review
when a record is requested under the FOIA. Records requested under the
FOIA that do not bear such markings, shall not be assumed to be
releasable without examination for the presence of information that
requires continued protection and qualifies as exempt from public
release.
(3) Distribution Statement. Information in a technical document that
requires a distribution statement pursuant to DoD Directive 5230.24 /1/
shall bear that statement and may be marked FOUO, as appropriate.
(c) Markings. (1) Location of Markings. (i) An unclassified
document containing FOUO information shall be marked ''For Official Use
Only'' at the bottom on the outside of the front cover (if any), on each
page containing FOUO information, and on the outside of the back cover
(if any).
(ii) Within a classified document, an individual page that contains
both FOUO and classified information shall be marked at the top and
bottom with the highest security classification of information appearing
on the page.
(iii) Within a classified document, an individual page that contains
FOUO information but no classified information shall be marked ''For
Official Use Only'' at the bottom of the page.
(iv) Other records, such as, photographs, films, tapes, or slides,
shall be marked ''For Official Use only'' or ''FOUO'' in a manner that
ensures that a recipient or viewer is aware of the status of the
information therein.
(v) FOUO material transmitted outside the Department of Defense
requires application of an expanded marking to explain the significance
of the FOUO marking. This may be accomplished by typing or stamping the
following statement on the record prior to transfer:
This document contains information
EXEMPT FROM MANDATORY DISCLOSURE
Under the FOIA. Exemptions . . . . . apply.
(2) Instructions for marking DCAA audit reports are contained in
Chapter 10 of the Contract Audit Manual (CAM) /2/ .
(d) Dissemination and Transmission. (1) Release and Transmission
Procedures. Until FOUO status is terminated, the release and
transmission instructions that follow apply:
(i) FOUO information may be disseminated within the Agency and
between officials of DoD Components and DoD contractors, consultants,
and grantees to conduct official business for the Department of Defense.
Recipients shall be made aware of the status of such information, and
transmission shall be by means that preclude unauthorized public
disclosure. Transmittal documents shall call attention to the presence
of FOUO attachments.
(ii) Agency and DoD holders of FOUO information are authorized to
convey such information to officials in other departments and agencies
of the executive and judicial branches to fulfill a government function,
except to the extent prohibited by the Privacy Act. Records thus
transmitted shall be marked ''For Official Use Only'', and the recipient
shall be advised that the information has been exempted from public
disclosure, pursuant to the FOIA, and that special handling instructions
do or do not apply.
(iii) Release of FOUO information to Members of Congress is governed
by DoD Directive 5400.4 /3/ Release to the GAO is governed by DoD
Directive 7650.1 /4/ Records released to the Congress or GAO should be
reviewed to determine whether the information warrants FOUO status. If
not, prior FOUO markings shall be removed or effaced. If withholding
criteria are met, the records shall be marked FOUO and the recipient
provided an explanation for such exemption and marking. Alternatively,
the recipient may be requested, without marking the record, to protect
against its public disclosure for reasons that are explained.
(iv) Records or documents containing FOUO information will be
transported between offices in such a manner as to preclude disclosure
of the contents. First-class mail and ordinary parcel post may be used
for transmission of FOUO information. The double envelope system
required for classified material may be used when it is considered
desirable to exclude examination by mail handling personnel. In such
cases, the inner envelope should be addressed to the intended recipient
by title or name and contain a statement that the envelope is to be
opened by the addressee only.
(v) FOUO material prepared on personal computers or other data
processing equipment should be password protected at origination.
(vi) Requests for Field Detachment sensitive information must be
coordinated with the Director, Field Detachment, through Headquarters,
DCAA.
(2) Transporting FOUO Information. Records containing FOUO
information shall be transported in a manner that precludes disclosure
of the contents. When not commingled with classified information, FOUO
information may be sent via first-class mail or parcel post. Bulky
shipments, such as distributions of FOUO Directives or testing
materials, that otherwise qualify under postal regulations may be sent
by fourth-class mail.
(3) Electrically Transmitted Messages. Each part of electrically
transmitted messages containing FOUO information shall be marked
appropriately. Unclassified messages containing FOUO information shall
contain the abbreviation ''FOUO'' before the beginning of the text.
Such messages shall be transmitted in accordance with communications
security procedures in Allied Communication Publication 121 (U.S. Supp
1) for FOUO information.
(e) Safeguarding FOUO Information. (1) During Duty Hours. During
normal working hours, records determined to be FOUO shall be placed in
an out-of-sight location if the work area is accessible to
nongovernmental personnel.
(2) During Nonduty Hours. At the close of business, FOUO records
shall be stored so as to preclude unauthorized access. Filing such
material with other unclassified records in unlocked files or desks,
etc., is adequate when normal U.S. Government or Government-contractor
internal building security is provided during nonduty hours. When such
internal security control is not exercised, locked buildings or rooms
normally provide adequate after hours protection. If such protection is
not considered adequate, FOUO material shall be stored in locked
receptacles such as file cabinets, desks, or bookcases. FOUO records
that are subject to the provisions of Public Law 86-36 shall meet the
safeguards outlined for that group of records.
(3) Field audit offices located in contractor owned facilities will
ensure that material marked FOUO is stored in a locked receptacle to
which the contractor does not have access during nonduty hours.
(f) Termination, Disposal and Unauthorized Disclosures. (1)
Termination. The originator or other competent authority, e.g., initial
denial and appellate authorities, shall terminate ''For Official Use
Only'' markings or status when circumstances indicate that the
information no longer requires protection from public disclosure. When
FOUO status is terminated, all known holders shall be notified, to the
extent practical. Upon notification, holders shall efface or remove the
''For Official Use Only'' markings, but records in file or storage need
not be retrieved solely for that purpose.
(2) Disposal. (i) Nonrecord copies of FOUO materials may be
destroyed by tearing each copy into pieces to preclude reconstructing,
and placing them in regular trash containers. When local circumstances
or experience indicates that this destruction method is not sufficiently
protective of FOUO information, local authorities may direct other
methods but must give due consideration to the additional expense
balanced against the degree of sensitivity of the type of FOUO
information contained in the records.
(ii) Record copies of FOUO documents shall be disposed of in
accordance with the disposal standards established under 44 U.S.C.
chapter 33, as implemented by DCAAM 5015.1 /5/ , ''Files Maintenance and
Disposition Manual''.
(3) Unauthorized Disclosure. The unauthorized disclosure of FOUO
records does not constitute an unauthorized disclosure of DoD
information classified for security purposes. Appropriate
administrative action shall be taken, however, to fix responsibility for
unauthorized disclosure whenever feasible, and appropriate disciplinary
action shall be taken against those responsible. Unauthorized
disclosure of FOUO information that is protected by the Privacy Act may
also result in civil and criminal sanctions against responsible persons.
The DCAA organizational element or DoD component that originated the
FOUO information shall be informed of its unauthorized disclosure.
(g) Protection of Field Detachment Sensitive Information. (1)
Definition. All communication, which qualifies for withholding under
Exemptions (2) through (9), between regular DCAA organizational elements
and Field Detachment offices is sensitive information and, as a minimum,
shall be marked: FOR OFFICIAL USE ONLY (FOUO).
(2) Markings. (i) Communications, which qualify for withholding
under Exemptions (2) through (9) initiated by a Field Detachment office,
will bear the following marking:
Access limited to addressee and his/her designated representative(s)
with a need-to-know.
This document may not be reproduced or further disseminated without
the approval of the Director, Field Detachment, DCAA.
(ii) All correspondence specifically exempt under Exemptions (2)
through (9), including assist audit requests, generated by a regular
(non-FD) DCAA office, which is addressed to the Field Detachment, either
Headquarters or a field audit office, will be marked FOR OFFICIAL USE
ONLY and will be limited within the FAO to one protected office copy.
(3) Storage. (i) All Field Detachment sensitive information in the
possession of a regular DCAA office will be stored in a classified
container, if available. If a classified container is not available,
the sensitive information shall be stored in a locked container
controlled by the FAO manager.
(ii) Permanent files currently maintained by regular DCAA offices,
which are available to all FAO personnel, should not contain any
detailed information on Field Detachment audit interest. That
information shall be protected as sensitive information and stored in
accordance with paragraph (g)(3)(i) of this Appendix.
(4) Dissemination. (i) Access to Field Detachment sensitive
information by other DCAA audit and administrative personnel within the
office shall be on a strict need-to-know basis as determined by the FAO
manager.
(ii) Requests by non-DCAA personnel for access to Field Detachment
sensitive information must be coordinated with the Director, Field
Detachment, through Headquarters, DCAA.
/1/ Copies may be obtained, at cost, from the National Technical
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
/2/ Copies may be obtained, if needed, from the Defense Contract
Audit Agency, Attn: CMO, Cameron Station, Alexandria, VA 22304-6178.
/3/ See footnote 1 to paragraph (b)(3).
/4/ See footnote 1 to paragraph (b)(3).
/5/ See footnote 2 to paragraph (c)(2).
32 CFR 290.8 Pt. 290, App. D
32 CFR 290.8 Appendix D to Part 290 -- Audit Working Papers
(a) Definition
(1) Audit working papers contain information from accounting and
statistical records, personal observations, the results of interviews
and inquiries, and other available sources. Audit working papers may
also include contract briefs, copies of correspondence, excerpts from
corporate minutes, organization charts, copies of written policies and
procedures, and other substantiating documentation. The extent and
arrangement of working paper files will depend to a large measure on the
nature of the audit assignment.
(2) Working papers are generally classified in two categories: the
permanent file and the current file.
(i) Permanent file.
(A) The permanent file on each contractor is a central repository of
information gathered during the course of an audit which has continuing
value and use to subsequent audits expected to be performed at the same
contractor. Permanent files are useful in preparing the audit program
and in determining the appropriate scope of subsequent audits. They
also provide ready means for auditors to become familiar with the
contractor's operations and any existing audit problems or contractor
system weaknesses. While summary information on the contractor's
organization, financial structure and policies may sometimes be included
in permanent files for smaller contractors, such information on large
contractors with continuing audit activity is generally maintained in
the field audit office at the central reference library.
(B) Items which would logically be included in the permanent file as
having continuing value in future audit assignments include:
(1) Internal control questionnaire.
(2) Internal control review update control log.
(3) Vulnerability assessment.
(4) MAARs control log.
(5) Disclosure statement and revisions in accordance with CAS rules
and regulations, and
(6) CAS compliance control schedules and a noncompliance summary
schedule.
(ii) Current File. The current file usually consists of working
papers which have limited use on future assignments. DCAA Forms 7640-19
a, b, and c are the Agencywide Working Paper Indexes and provide a
concise summary of items generally found in audit working papers.
(b) Explanation.
(1) The preparation of working papers assists the auditor in
accomplishing the objectives of an audit assignment. Working papers
serve as the basis for the conclusions in the audit report; provide a
record of the work done for use as substantiating data in negotiations,
appeals, and litigation; provide guidance for subsequent examinations;
and serve as a basis for the review and evaluation of the work
performed.
(2) Audit working papers are generally prepared at the time audit
work is performed and are maintained on a current basis. Working papers
normally reflect the progress of the audit and are designed to ensure
continuity of the audit effort.
(3) Working papers should be relevant to the audit assignment and not
include extraneous pages. Superseded working papers should be clearly
marked as such and retained as part of the working paper package.
(4) The nature of audit working papers requires that proper control
and adequate safeguards be maintained at all times. Working papers
frequently reflect information considered confidential by the contractor
and are marked ''For Official Use Only'' or are classified for
government security purposes.
(56 FR 56932, Nov. 7, 1991)
32 CFR 290.8 PART 291 -- DEFENSE NUCLEAR AGENCY (DNA) FREEDOM OF
INFORMATION ACT PROGRAM
Sec.
291.1 Purpose.
291.2 Applicability.
291.3 Definitions.
291.4 Policy.
291.5 Responsibilities.
291.6 Procedures.
291.7 Administrative instruction.
291.8 Exemptions.
291.9 For official use only (FOUO).
Appendix A to Part 291 -- Freedom of Information Act Request (DNA
Form 524)
Authority: 5 U.S.C. 552.
Source: 56 FR 9842, Mar. 8, 1991, unless otherwise noted.
32 CFR 291.1 Purpose.
This part establishes policies and procedures for the DNA FOIA
program.
32 CFR 291.2 Applicability.
This part applies to Headquarters, Defense Nuclear Agency (HQ, DNA),
Field Command, Defense Nuclear Agency (FCDNA), and the Armed Forces
Radiobiology Research Institute (AFRRI).
32 CFR 291.3 Definitions.
(a) FOIA Request. A written request for DNA records made by any
person, including a member of the public (U.S. or foreign citizen), an
organization, or a business, but not including a Federal agency or a
fugitive from the law that either explicitly or implicitly invokes the
FOIA (5 U.S.C. 552), 32 CFR part 285, 286, or this part.
(b) Agency Record. (1) The products of data compilation, such as all
books, papers, maps, and photographs, machine readable materials or
other documentary materials, regardless of physical form or
characteristics, made or received by an agency of the United States
Government under Federal law in connection with the transaction of
public business and in DNA's possession and control at the time the FOIA
request is made.
(2) The following are not included within the definition of the word
record:
(i) Objects or articles, such as structures, furniture, vehicles and
equipment, whatever their historical value, or value as evidence.
(ii) Administrative tools by which records are created, stored, and
retrieved, if not created or used as sources of information about
organizations, policies, functions, decisions, or procedures of a DNA
organization. Normally, computer software, including source code,
object code, and listings of source and object codes, regardless of
medium are not agency records. (This does not include the underlying
data which is processed and produced by such software and which may in
some instances be stored with the software.) Exceptions to this position
are outlined in paragraph (b)(3) of this section.
(iii) Anything that is not a tangible or documentary record, such as
an individual's memory or oral communication.
(iv) Personal records of an individual not subject to agency creation
or retention requirements, created and maintained primarily for the
convenience of an agency employee, and not distributed to other agency
employees for their official use.
(v) Information stored within a computer for which there is no
existing computer program for retrieval of the requested information.
(3) In some instances, computer software may have to be treated as an
agency record and processed under the FOIA. These situations are rare,
and shall be treated on a case-by-case basis. Examples of when computer
software may have to be treated as an agency record are:
(i) When the data is embedded within the software and cannot be
extracted without the software. In this situation, both the data and
the software must be reviewed for release or denial under the FOIA.
(ii) Where the software itself reveals information about
organizations, policies, functions, decisions, or procedures of a DNA
office, such as computer models used to forecast budget outlays,
calculate retirement system costs, or optimization models on travel
costs.
(iii) Refer to 291.8(b) exemptions 2, 4 and 5 for guidance on
release determinations of computer software.
(4) If unaltered publications and processed documents, such as
regulations, manuals, maps, charts, and related geophysical materials
are available to the public through an established distribution system
with or without charge, the provisions of 5 U.S.C. 552(a)(3) normally do
not apply and they need not be processed under the FOIA. Normally,
documents disclosed to the public by publication in the Federal Register
also require no processing under the FOIA. In such cases, PAO will
direct the requester to the appropriate source, to obtain the record.
(d) Initial Denial Authority (IDA). The Deputy Director (DDIR), DNA,
has the authority to withhold records requested under the FOIA for one
or more of the nine categories (set forth 291.8) of records exempt from
mandatory disclosure.
(e) Appellate Authority. The Director, DNA.
(f) Administrative Appeal. A request by a member of the general
public, made under the FOIA, asking the appellate authority of a DoD
Component (Director, DNA) to reverse an IDA decision to withhold all or
part of a requested record or to deny a request for a waiver or
reduction of fees.
(g) Public Interest. Public interest is official information that
sheds light on an agency's performance of its statutory duties because
it falls within the statutory purpose of the FOIA in informing citizens
about what their government is doing. That statutory purpose, however,
is not fostered by disclosure of information about private citizens that
is accumulated in various governmental files that reveals little or
nothing about an agency's or official's own conduct.
(h) Electronic Data. Electronic data are those records and
information which are created, stored, and retrievable by electronic
means. This does not include computer software, which is the tool by
which to create, store, or retrieve electronic data. Refer to
paragraphs (b) (2) and (3) of this section for a discussion of computer
software.
32 CFR 291.4 Policy.
(a) Compliance with the FOIA. DNA personnel are expected to comply
with the FOIA and this part in both letter and spirit. This strict
adherence is necessary to provide uniformity in the implementation of
the DNA FOIA Program and to create conditions that will promote public
trust. It is DNA policy to fully and completely respond to public
requests for information concerning its operations and activities,
consistent with national security objectives.
(b) Openness with the Public. 32 CFR part 286 states that all DoD
employees shall conduct DoD activities in an open manner consistent with
the need for security and adherence to other requirements of law and
regulation. Records that are not specifically exempt from disclosure
under the Act shall, upon request, be made readily accessible to the
public in accordance with rules promulgated by competent authority,
whether or not the Act is invoked.
(c) Avoidance of Procedural Obstacles. DNA offices shall ensure that
procedural matters do not unnecessarily impede a requester from
obtaining DNA records promptly. PAO shall provide assistance to
requesters to help them understand and comply with procedures
established by this Instruction, the 32 CFR part 286 and any
supplemental regulations published by DoD.
(d) Prompt Action on Requests. When a member of the public complies
with the procedures established for obtaining DNA records, the request
shall receive prompt attention; a reply shall be dispatched within 10
working days, unless a delay is authorized. When PAO has a significant
number of requests, e.g., 10 or more, the requests shall be processed in
order of receipt.
However, this does not preclude PAO from completing action on a
request which can be easily answered, regardless of its ranking within
the order of receipt. In addition, PAO may expedite action on a request
regardless of its ranking within the order of receipt upon a showing of
exceptional need or urgency. Exceptional need or urgency is determined
at the discretion of the PAO.
(e) Use of Exemptions. It is DoD/DNA policy to make records publicly
available, unless they qualify for exemption under one or more of the
nine exemptions. Components may elect to make a discretionary release;
however, a discretionary release is generally not appropriate for
records exempt under exemptions 1, 3, 4, 6 and 7(C). Exemptions 4, 6
and 7(C) cannot be claimed when the requester is the submitter of the
information.
(f) Public Domain. Nonexempt records released under the authority of
this part are considered to be in the public domain. Such records may
also be made available through the reading room channel to facilitate
public access. Exempt records released pursuant to this part or other
statutory or regulatory authority, however, may be considered to be in
the public domain when their release constitutes a waiver of the FOIA
exemption. When the release does not constitute such a waiver, such as
when disclosure is made to a properly constituted advisory committee or
to a Congressional committee, the released records do not lose their
exempt status. Also, while authority may exist to disclose records to
individuals in their official capacity, the provisions of this part
apply if the same individual seeks the records in a private or personal
capacity.
(g) Creating a Record. (1) A record must exist and be in the
possession of and in control of the DNA at the time of the search to be
considered subject to this part and the FOIA. Mere possession of a
record does not presume agency control, and such records, or
identifiable portions thereof, would be referred to the originating
agency for direct response to the requester. There is no obligation to
create or compile a record to satisfy a FOIA request. However, a DNA
employee may compile a new record when so doing would result in a more
useful response to the requester, or be less burdensome to the agency
than providing existing records, and the requester does not object. The
cost of creating or compiling such a record may not be charged to the
requester unless the fee for creating the record is equal to or less
than the fee which would be charged for providing the existing record.
(2) With respect to electronic data, the issue of whether records are
actually created or merely extracted from an existing database is not
always readily apparent. Consequently, when responding to FOIA requests
for electronic data where creation of a record, programming, or
particular format are questionable, offices should apply a standard of
reasonableness. In other words, if the capability exists to respond to
the request, and the effort would be a business as usual approach, then
the request should be processed. However, the request need not be
processed where the capability to respond does not exist without a
significant expenditure of resources, thus not being a normal business
as usual approach.
(h) Description of Requested Record. (1) Identification of the
record desired is the responsibility of the member of the public who
requests a record. The requester must provide a description of the
desired record that will enable the Government to locate the record with
a reasonable amount of effort. The Act does not authorize ''fishing
expeditions.'' When DNA receives a request that does not ''reasonably
describe'' the requested record, PAO shall notify the requester of the
defect. The defect should be highlighted in a specificity letter,
asking the requester to provide the type of information outlined in
paragraph (h)(2) of this section. DNA is not obligated to act on the
request until the requester responds to the specificity letter. When
practical, PAO shall offer assistance to the requester in identifying
the records sought and in reformulating the request to reduce the burden
on the Agency in complying with the Act.
(2) The following guidelines are provided to deal with ''fishing
expedition'' requests and are based on the principle of reasonable
effort. Descriptive information about a record may be divided into two
broad categories.
(i) Category I is file-related and includes information such as type
of record (for example, memorandum), title, index citation, subject
area, date the record was created, and originator.
(ii) Category II is event-related and includes the circumstances that
resulted in the record being created or the date and circumstances
surrounding the event the record covers.
(3) Generally, a record is not reasonably described unless the
description contains sufficient Category I information to permit the
conduct of an organized, nonrandom search based on DNA's filing
arrangements and existing retrieval systems, or unless the record
contains sufficient Category II information to permit inference of the
Category I elements needed to conduct such a search.
(4) The following guidelines deal with requests for personal records.
Ordinarily, when personal identifiers are provided only in connection
with a request for records concerning the requester, only records
retrievable by personal identifiers need be searched. Search for such
records may be conducted under Privacy Act procedures. No record may be
denied that is releaseable under the FOIA.
(5) The above guidelines notwithstanding, the decision of an office
concerning reasonableness of description must be based on knowledge of
its files. If the description enables office personnel to locate the
record with reasonable effort, the description is adequate.
(i) Reasons for not Releasing a Record. (1) The request is
transferred to another DoD component, or to another Federal agency.
(2) The request is withdrawn by the requester.
(3) The information requested is not a record within the meaning of
the FOIA and 32 CFR part 286.
(4) A record has not been described with sufficient particularity to
enable DNA to locate it by conducting a reasonable search.
(5) The requester has failed reasonably to comply with procedural
requirements, including payment of fees, imposed by 32 CFR part 286 or
this part.
(6) The DNA determines, through knowledge of its files and reasonable
search efforts, that it neither controls nor otherwise possesses the
requested record.
(7) The record is subject to one or more of the nine exemptions set
forth in 291.8, and a significant and legitimate government purpose is
served by withholding.
32 CFR 291.5 Responsibilities.
(a) The Director, DNA, as appellate authority, is responsible for
reviewing and making the final decision on FOIA appeals.
(b) The DDIR, as IDA, is responsible for reviewing all initial
denials to FOIA requests and has sole responsibility for withholding
that information.
(c) The DNA FOIA Officer, who is also the Public Affairs Officer,
manages and implements the DNA FOIA program. In this regard, the Public
Affairs Officer serves as the FOIA point-of-contact and liaison between
DNA and the Office of the Assistant Secretary of Defense (Public
Affairs) (OASD(PA)), Directorate for Freedom of Information and Security
Review (DFOI/SR). The Public Affairs Officer is responsible for:
(1) Advising OASD(PA), DFOI/SR, of any DNA denial of a request for
records or appeals that may affect another DoD component.
(2) Ensuring publication of this part in the Federal Register.
(3) Ensuring that the Command Services Directorate publishes in the
Federal Register a notice of where, how and by what authority DNA
performs its functions.
(4) Ensuring that the Command Services Directorate, publishes an
index of DNA instructions in the Federal Register.
(5) Coordinating all FOIA actions, except routine, interim replies
indicating initial receipt of a FOIA request through the appropriate DNA
offices and the DNA General Counsel (GC).
(6) Forwarding all fees collected under the FOIA to the HQ, DNA,
Finance and Accounting Officer for further processing.
(7) Coordinating action on FOIA requests that involve other
government organizations (e.g., when DNA is not the original classifier
for a classified document) with those organizations.
(8) Ensuring FOIA briefings are presented annually for DNA personnel.
(9) Submitting an annual report to OASD(PA), DFOI/SR, in accordance
with the requirements of DoD Directive 5400.11. /1/
(d) The Commander, FCDNA, is responsible for determining, based on
current directives and instruction, what information in FCDNA custody
may be released to FOIA requesters. (This responsibility may be
delegated.) The Commander, FCDNA, is responsible for designating a
representative to process FOIA requests. The Commander has the
authority to release documents in response to the FOIA. When FCDNA
releases information under the FOIA, it will forward a copy of the
request, the response and the appropriate cost sheet to HQ, DNA, ATTN:
PAO (FOIA). FCDNA will not deny requests for information under the
FOIA; instead, it will forward to HQ, DNA, PAO a recommendation and
justification for denying the FOIA request.
(e) The Director, AFRRI, is responsible for designating a
representative to process FOIA requests and to forward them to HQ, DNA,
(PAO) for coordination and preparation of a final response.
(f) The DNA GC shall coordinate on all DNA FOIA response except
routine interim letters which acknowledge receipt of the FOIA request.
That office shall also ensure uniformity in the legal position and
interpretation by DNA of the FOIA, and coordinate with the DoD GC, as
necessary.
(g) The HQ, DNA, Finance and Accounting Officer will ensure that fees
collected under the FOIA are forwarded to the Finance and Accounting
Office, U.S. Army, to be submitted to the Treasury of the United States.
(h) HQ, DNA, Assistant Director for Intelligence and Security,
Classification Management Division (ISCM), will conduct security reviews
of classified documents requested under the FOIA. ISCM will determine
whether the document.
(1) Contains information that meets requirements for withholding
under Exemption 1 Executive Order 12356.
(2) Has information that meets requirements for withholding under
Exemption 3, to include Restricted Data and Formerly Restricted Data, 42
U.S.C. 2162.
(3) Has information that may be declassified or sanitized. ISCM is
also responsible for sanitizing DNA classified information from
documents requested under the FOIA (refer to 291.6(b)(5)). In addition,
ISCM is responsible for advising the Assistant Director for Technical
Information (CSTI) to notify the appropriate authorities when
information has been reclassified as a result of a DNA FOIA review.
(i) HQ, DNA, CSLE will, upon request, ensure that photocopies are
made of 50-page or larger documents being processed under the FOIA.
(Copies are required only when documents are not available from other
sources.)
(j) CSTI, Technical Library Division (TITL), will, upon notification
from PAO that a document has been cleared for public release under the
FOIA, retain the marked up document in its files, annotate the FOIA case
number in the computerized data base and ensure that the document is
made available to the public through the National Technical Information
Service (NTIS).
(k) Commander, FCDNA; Director, AFRRI; and directors and chiefs of
staff elements at HQ, DNA, will ensure that personnel are familiar with
the procedures and contents of this part prior to acting on FOIA
requests. They will also make sure that FOIA actions forwarded to their
offices for processing are closely monitored to ensure accountability
and that their input to PAO is provided in a timely manner and in
accordance with this part. (Refer to 291.7(b)(2)). If the office(s)
cannot meet the FOIA suspense, they must request an extension. In
addition, they will ensure that, upon request by PAO, appropriate
technical personnel sanitize information such as unclassified technical
data, that is determined to be exempt from disclosure under the FOIA.
(Refer to 291.7(b)(5)).
/1/ Copies may be obtained, at cost, from the National Technical
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
32 CFR 291.6 Procedures.
(a) If HQ, DNA personnel receive a FOIA request that has not been
logged and processed through PAO, they will immediately handcarry the
request to PAO. TDNM and AFRRI personnel will forward all FOIA requests
to HQ, DNA, Attn: PAO. FCDNA will adhere to paragraph 6d and FCDNA
Supplement to DNA Instruction 5400.7C. /2/
(b) When a FOIA request is received by PAO, HQ, DNA, the following
procedures apply:
(1) The request will be date stamped, reviewed to determine if it
meets the requirements of 5 U.S.C. 552, logged in, assigned an action
number, suspensed, and attached to a FOIA cover sheet with instructions
for forwarding to the appropriate office. A copy of DD Form 2086 or DD
Form 2086-1 will also be attached to the FOIA request.
(2) A copy of the request will be handcarried by PAO to the
designated HQ, DNA, action office(s) or forwarded to AFRRI or FCDNA, as
appropriate. The office or component providing input for the FOIA
request must keep track of the request and meet the PAO suspense. The
HQ, DNA input, or negative response, if there are no records available,
will be handcarried to PAO. AFRRI will send the recommended response in
daily distribution. FCDNA will telefax the proposed response in
addition to mailing the original. All FOIA actions must include a
completed DD Form 2086 or 2086-1. Each office acting on FOIA requests
will indicate on the form the search, review/excise and coordination
time spent processing the FOIA action, and provide the number of pages
copied.
(3) The DNA PAO will prepare the response to the requester and
coordinate it with the offices that provided input, the GC, and if
appropriate, ISCM, the IDA, the Director, DNA, OASD(PA), and outside
agencies, if involved. The PAO will maintain files of all FOIA actions
per DNA Instruction 5015.4B.
(4) If a request is received by a DNA office which does not have
records responsive but office personnel believe another office would
have the records requested, they must contact the other office to
confirm the existence of the documents, forward the FOIA action to that
office and notify PAO.
(5) FOIAs involving classified information. When ISCM or contractor
security reviewers receive a classified document from PAO for processing
under the FOIA, they will conduct a security review to determine if the
document may be sanitized or declassified. Most DNA documents requested
under the FOIA are queued on a first-come, first-served basis and shall
be reviewed in that order. When security reviewers determine that part
or all of the information in a classified document may be sanitized or
declassified, they will ensure that the appropriate copies are ordered
from the Defense Technical Information Center (DTIC). The DTIC copy
will be marked up during review. Cases not placed in queue will be
suspensed by PAO. They may include documents with less than 10 pages or
documents under suspense from other organizations which require a DNA
review. All DNA documents reviewed will be marked with a special pen
that does not permit photocopying of the classified portions. Security
review must include a detailed response providing the appropriate
exemption(s) and justification for withholding.
When the Field Command Security Division (FCSS) receives a classified
document for processing under the FOIA, they will conduct a security
review to determine if the document may be sanitized or declassified.
When FCSS determines that part or all of the information in a classified
document may be sanitized or declassified, FCSS will make a copy which
will be marked up during review. Upon completion of its review, FCSS
will provide the marked up document and a sanitized version of the
document to PAO. FCSS review must include a detailed response providing
the appropriate exemption(s) and justification for withholding. When
ISCM/FCSS completes its review, ISCM/FCSS will forward the master copy
to the appropriate technical office(s) for review. That office will
determine whether the remaining unclassified information is releaseable
and provide its response to ISCM/FCSS. If the office recommends that
part or all of the information be withheld, then it must forward a
detailed response providing the appropriate exemption(s) and
justification for withholding. The technical office will return
documents with results of their review to ISCM. ISCM will forward the
results of both reviews to PAO for further processing. If either
ISCM/FCSS or the DNA office reviewing the action recommends additional
review by another agency, they will provide the full name and address of
that agency with a technical point-of-contact, if known. PAO will
forward the action to that organization for further review. When PAO
receives that organization's review determination, it will forward the
results to ISCM/FCSS. After all reviews are completed, ISCM/FCSS will
sanitize the document and handcarry (FCSS will forward) the sanitized as
well as the marked up copy to PAO for final processing.
(6) FOIAs involving unclassified information. The appropriate
technical office(s) will review unclassified documents for release under
the FOIA. If the office(s) determines that part or all of the document
should be withheld, it must provide PAO a written recommendation with
the appropriate exemption(s) ( 291.8) and detailed reasons for
withholding the information. Upon PAO request, the technical office(s)
will sanitize the unclassified information that is being withheld.
Sanitization will be done on a photocopy of the document or on a
document that has been obtained from DTIC.
/2/ Copies can be obtained from Defense Nuclear Agency PAO or SSAB,
Defense Nuclear Agency, 6801 Telegraph Road, Alexandria, VA 22310-3398.
32 CFR 291.7 Administrative instruction.
(a) FOIA requesters shall clearly mark their requests as such, both
on the envelope and in the body of the letter. Identification of the
record desired is the responsibility of the FOIA requester. The
requester must provide a description of the desired record that enables
DNA to locate it with a reasonable amount of effort. The Act does not
authorize ''fishing expeditions.'' FOIA requests should be sent to the
following address: Public Affairs Officer, Defense Nuclear Agency,
Attention: FOIA, 6801 Telegraph Road, Alexandria, VA 22310-3398.
Requester failure to comply with this section shall not be sole grounds
of denial for requested information.
(b) FOIA appeals must be clearly marked as such, both on the envelope
and in the body of the letter. Persons appealing DNA denial letters
should include a copy of the denial letter, the case number, a statement
of the relief sought and the grounds upon which it is brought. Appeals
should be sent to the following address: Director, Defense Nuclear
Agency, 6801 Telegraph Road, Alexandria, VA 22310-3398.
(c) The time limitations for responding to legitimate FOIA requests
are:
(1) Determinations to release, deny or transfer a record shall be
made and the decision reported to the requester within 10 working days
after the request is received in PAO.
(2) If additional time is needed to respond to a request, the
requester will be notified within the 10-day period. When PAO has a
significant number of requests, e.g., 10 or more, the requests shall be
processed in order of receipt. However, this does not preclude PAO from
completing action on a request which can be easily answered, regardless
of its ranking within the order of receipt. PAO may expedite action on
a request regardless of its ranking within the order of receipt upon a
showing of exceptional need or urgency. Exceptional need or urgency is
determined at the discretion of the Public Affairs Officer.
(3) If a request for a record is denied and the requester appeals the
decision of the IDA, the requester should file the appeal so that it
reaches DNA no later than 60 calendar days after the date of the initial
denial letter. At the conclusion of this period, the case may be
considered closed; however, such closure does not preclude the
requester from filing litigation. In cases where the requester is
provided several incremental determinations for a single request, the
time for the appeal shall not begin until the requester receives the
last such notification. A final determination on the appeal normally
shall be made within 20 working days after receipt. If additional time
is needed due to unusual circumstances, the final decision may be
delayed for the number of working days (not to exceed 10), that were not
utilized as additional time for responding to the initial request. If
an appeal is denied, the Director, DNA, will notify the requester of the
right to judicial review of the decision. Appeal procedures also apply
to the disapproval of a request for waiver or reduction of fees.
(d) If DNA denies the requested document in whole or in part, the
response must include detailed rationale for withholding information and
the specific exemption that applies so the requester can make a decision
concerning appeal. When the initial denial is based in whole or in part
on a security classification, the explanation should include a summary
of the applicable criteria for classification, as well as an
explanation, to the extent reasonably feasible, of how those criteria
apply to the particular record in question. Denial letters must also
include the name and title of the IDA, and cite the name and address of
the Director, DNA, as the appellate authority.
(e) All final responses will address the status of fees collectible
under the FOIA. Fees of $15 or less will be waived, regardless of
category of requester.
(f) A formal reading room for the public, as defined in 32 CFR part
286, does not exist at DNA (HQ, FCDNA or AFRRI) because of security
requirements. However, the PAO will arrange for a suitable location and
escort, if required, for members of the public to review DNA documents
released under the FOIA. In addition, most reports released under the
FOIA are sent to the National Technical Information Service (NTIS).
32 CFR 291.8 Exemptions.
(a) General. Records that meet the exemption criteria listed in
paragraph (b) below may be withheld from public disclosure and will not
be published in the Federal Register, made available in a library,
reading room, or provided in response to a FOIA request.
(b) FOIA Exemptions. The following types of records may be withheld
in whole or in part from public disclosure under the FOIA, unless
otherwise prescribed by law. A discretionary release (see also
291.4(e)) to one requester may preclude the withholding of the same
record under a FOIA exemption if the record is subsequently requested by
someone else. In applying exemptions, the identity of the requester and
the purpose for which the record is sought are irrelevant with the
exception that an exemption may not be invoked where the particular
interest to be protected is the requester's interest.
(1) Number 1. Those properly and currently classified in the
interest of national defense or foreign policy, as specifically
authorized under the criteria established by executive order and
implemented by regulations, such as DoD 5200.1-R. /3/ Although material
is not classified at the time of the FOIA request, a classification
review may be undertaken to determine whether the information should be
classified. The procedures in DoD 5200.1-R, section 2-204f., apply. In
addition, this exemption shall be invoked when the following situations
are apparent:
(i) The fact of the existence or nonexistence of a record would
itself reveal classified information. In this situation, DNA shall
neither confirm nor deny the existence or nonexistence of the record
being requested. A ''refusal to confirm or deny'' response must be used
consistently, not only when a record exists, but also when a record does
not exist. Otherwise, the pattern of using a ''no record'' response
when a record does not exist, and a ''refusal to confirm or deny'' when
a record does exist will itself disclose national security information.
(ii) Information that concerns one or more of the classification
categories established by executive order and DoD 5200.1-R shall be
classified if its unauthorized disclosure, either by itself or in the
context of other information, reasonably could be expected to cause
damage to the national security.
(2) Number 2. Those related solely to the internal personnel rules
and practices of DNA. This exemption has two profiles, high b2 and low
b2.
(i) Records qualifying under high b2 are those containing or
constituting statutes, rules, regulations, orders, manuals, directives,
and instructions, the release of which would allow circumvention of
these records, thereby substantially hindering the effective performance
of a significant function of the DNA. Examples include:
(A) Those operating rules, guidelines and manuals for DNA
investigators, inspectors, auditors, or examiners that must remain
privileged in order for the DNA office to fulfill a legal requirement.
(B) Personnel and other administration matters, such as examination
questions and answers used in training courses or in the determination
of the qualifications of candidates for employment, entrance on duty,
advancement, or promotion.
(C) Computer software meeting the standards of paragraph
291.3(b)(2)(iii), the release of which would allow circumvention of a
statute or DoD rules, regulations, orders, manuals, directives, or
instructions. In this situation, the use of the software must be
clearly examined to ensure a circumvention possibility exists.
(ii) Records qualifying under the low b2 profile are those that are
trivial and housekeeping in nature for which there is no legitimate
public interest or benefit to be gained by release, and it would
constitute an administrative burden to process the request in order to
disclose the records. Examples include: Rules of personnel's use of
parking facilities or regulation of lunch hours, statements of policy as
to sick leave, and trivial administrative data such as file numbers,
mail routing stamps, initials, data processing notations, brief
references to previous communications, and other like administrative
markings.
(3) Number 3. Those containing matters that a statute specifically
exempts from disclosure by terms that permit no discretion on the issue,
or in accordance with criteria established by that statute for
withholding or referring to particular types of matters to be withheld.
Examples of statutes are:
(i) National Security Agency Information Exemption, Public Law 86-36,
section 6.
(ii) Patent Secrecy, 35 U.S.C. 181-188. Any records containing
information relating to inventions that are the subject of patent
applications on which Patent Secrecy Orders have been issued.
(iii) Restricted Data and Formerly Restricted Data, 42 U.S.C. 2162.
(iv) Communication Intelligence, 18 U.S.C. 798.
(v) Authority to Withhold from Public Disclosure Certain Technical
Data, 10 U.S.C. 130 and DoD Directive 5230.25. /4/
(vi) Confidentiality of Medical Quality Records: Qualified Immunity
Participants, 10 U.S.C. 1102.
(vii) Physical Protection of Special Nuclear Material: Limitation on
Dissemination of Unclassified Information, 10 U.S.C. 128.
(viii) Protection of Intelligence Sources and Methods, 50 U.S.C. 403
(d)(3).
(4) Number 4. Those containing trade secrets or commercial or
financial information that DNA receives from a person or organization
outside the government with the understanding that the information or
record will be retained on a privileged or confidential basis in
accordance with the customary handling of such records. Records within
the exemption must contain trade secrets, or commercial or financial
records, the disclosure of which is likely to cause substantial harm to
the competitive position of the source providing the information;
impair the Government's ability to obtain necessary information in the
future; or impair some other legitimate government interest. Examples
include:
(i) Commercial or financial information received in confidence in
connection with loans, bids, contracts, or proposals, as well as other
information received in confidence or privileged, such as trade secrets,
inventions, discoveries, or other proprietary data. See 32 CFR part
286h, ''Release of Acquisition-Related Information.''
(ii) Statistical data and commercial or financial information
concerning contract performance, income, profits, losses and
expenditures, if offered and received in confidence from a contractor or
potential contractor.
(iii) Personal statements given in the course of inspections,
investigations, or audits, when such statements are received in
confidence from the individual and retained in confidence because they
reveal trade secrets or commercial or financial information normally
considered confidential or privileged.
(iv) Financial data provided in confidence by private employers in
connection with locality wage surveys that are used to fix and adjust
pay schedules applicable to the prevailing wage rate of employees within
the Department of Defense.
(v) Scientific and manufacturing processes or developments concerning
technical or scientific data or other information, submitted with an
application for a research grant, or with a report, while research is in
progress.
(vi) Technical or scientific data developed by a contractor or
subcontractor exclusively at private expense, and technical or
scientific data developed in part with Federal funds and in part at
private expense, wherein the contractor or subcontractor has retained
legitimate proprietary interests in such data in accordance with title
10, U.S.C. 2320-2321 and DoD Federal Acquisition Regulation Supplement
(DFARS), subpart 27.4. Technical data developed exclusively with Federal
funds may be withheld under Exemption Number 3 if it meets the criteria
of 10 U.S.C. 130 and DoD Directive 5230.25 (refer to paragraph
(b)(3)(v)).
(vii) Computer software meeting the conditions of section 4 (b)(3),
which is copyrighted under the Copyright Act of 1976 (17 U.S.C. 106),
the disclosure of which would have an adverse impact on the potential
market value of a copyrighted work.
(5) Number 5. Except as provided in paragraphs (b)(5)(i) through (v)
of this section, internal advice, recommendations, and subjective
evaluations, as contrasted with factual matters, that are reflected in
records pertaining to the decisionmaking process of any agency, whether
within or among agencies (as defined in 5 U.S.C. 552(e)) or within or
among DoD/DNA offices. Also exempted are records pertaining to the
attorney-client privilege and the attorney work-product privilege.
(i) Examples include:
(A) The nonfactual portions of staff papers, to include after-action
reports and situation reports containing staff evaluations, advice,
opinions or suggestions.
(B) Advice, suggestions, or evaluations prepared on behalf of the DNA
by individual consultants or by boards, committees, councils, groups,
panels, conferences, commissions, task forces, or other similar groups
that are formed for the purpose of obtaining advice and recommendations.
(C) Those nonfactual portions of evaluations by DNA personnel of
contractors and their products.
(D) Information of a speculative, tentative, or evaluative nature or
such matters as proposed plans to procure, lease or otherwise acquire
and dispose of materials, real estate, facilities or functions, when
such information would provide undue or unfair competitive advantage to
private personal interests or would impede legitimate government
functions.
(E) Trade secret or other confidential research, development, or
commercial information owned by the Government, where premature release
is likely to affect the Government's negotiating position or other
commercial interests.
(F) Records that are exchanged among agency personnel as part of the
preparation for anticipated administrative proceedings by DNA, or
litigation before any federal, state, or military court, as well as
records that qualify for the attorney-client privilege.
(G) Those portions of official reports of inspection, reports of the
Inspector General, audits, investigations, or surveys pertaining to
safety, security, or the internal management, administration, or
operation of DNA when these records have traditionally been treated by
the courts as privileged against disclosure in litigation.
(H) Computer software meeting the standards of paragraph
291.3(b)(2)(iii), which is deliberative in nature, the disclosure of
which would inhibit or chill the decision-making process. In this
situation, the use of software must be closely examined to ensure its
deliberative nature.
(I) Planning, programming, and budgetary information which is
involved in the defense planning and resource allocation process.
(ii) If any such intra- or inter-agency record or reasonably
segregable portion of such record hypothetically would be made available
routinely through the ''discovery process'' in the course of litigation
with DNA, i.e., the process by which litigants obtain information from
each other that is relevant to the issues in trial or hearing, then it
should not be withheld from the general public even though ''discovery''
has not been sought in actual litigation. If, however, the information
hypothetically would only be made available through the discovery
process by special order of the court based on the particular needs of a
litigant, balanced against the interests of the agency in maintaining
its confidentiality, then the record or document need not be made
available under this part. Consult with legal counsel to determine
whether exemption 5 material would be routinely made available through
the ''discovery process''.
(iii) Intra- or inter-agency memoranda or letters that are factual,
or those reasonably segregable portions that are factual, are routinely
made available through ''discovery,'' and shall be made available to a
requester, unless the factual material is otherwise exempt from release,
inextricably intertwined with the exempt information, so fragmented as
to be uninformative, or so redundant of information already available to
the requester as to provide no new substantive information.
(iv) A direction or order from a superior to a subordinate, though
contained in an internal communication, generally cannot be withheld
from a requester if it constitutes policy guidance or a decision, as
distinguished from a discussion of preliminary matters or a request for
information or advice that would compromise the decision-making process.
(v) An internal communication concerning a decision that subsequently
has been made a matter of public record must be made available to a
requester when the rationale for the decision is expressly adopted or
incorporated by reference in the record containing the decision.
(6) Number 6. Information in personnel and medical files, as well as
similar personal information in other files, that, if disclosed to the
requester would result in a clearly unwarranted invasion of personal
privacy. Release of information about an individual contained in a
Privacy Act System of Records that would constitute a clearly
unwarranted invasion of privacy is prohibited, and could subject the
releaser to civil and criminal penalties.
(i) Examples of other files containing personal information similar
to that contained in personnel and medical files include:
(A) Those compiled to evaluate or adjudicate the suitability of
candidates for civilian employment or membership in the Armed Forces,
and the eligibility of individuals (civilian, military, or contractor
employees) for security clearances, or for access to particularly
sensitive classified information.
(B) Files containing reports, records, and other material pertaining
to personnel matters in which administrative action, including
disciplinary action, may be taken.
(ii) Home addresses are normally not releasable without the consent
of the individuals concerned. In addition, lists of DoD military and
civilian personnel's names and duty addresses who are assigned to units
that are sensitive, routinely deployable, or stationed in foreign
territories can constitute a clearly unwarranted invasion of personal
privacy.
(A) Privacy interest. A privacy interest may exist in personal
information even though the information has been disclosed at some place
and time. If personal information is not freely available from sources
other than the Federal Government, a privacy interest exists in its
nondisclosure. The fact that the Federal Government expended funds to
prepare, index and maintain records on personal information, and the
fact that a requester invokes FOIA to obtain these records indicates the
information is not freely available.
(B) Published telephone directories, organizational charts, rosters
and similar materials for personnel assigned to units that are
sensitive, routinely deployable, or stationed in foreign territories are
withholdable under this exemption.
(iii) This exemption shall not be used in an attempt to protect the
privacy of a deceased person, but it may be used to protect the privacy
of the deceased person's family.
(iv) Individuals' personnel, medical, or similar file may be withheld
from them or their designated legal representative only to the extent
consistent with DoD Directive 5400.11.
(v) A clearly unwarranted invasion of the privacy of the persons
identified in a personnel, medical or similar record may constitute a
basis for deleting those reasonably segregable portions of that record,
even when providing it to the subject of the record. When withholding
personal information from the subject of the record, legal counsel
should first be consulted.
(7) Number 7. Records or information compiled for law enforcement
purposes; i.e., civil, criminal, or military law, including the
implementation of executive orders or regulations issued pursuant to
law. This exemption may be invoked to prevent disclosure of documents
not originally created for, but later gathered for law enforcement
purposes.
(i) This exemption applies, however, only to the extent that
production of such law enforcement records or information could result
in the following:
(A) Could reasonably be expected to interfere with enforcement
proceedings.
(B) Would deprive a person of the right to a fair trial or to an
impartial adjudication.
(C) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy of a living person, including surviving
family members of an individual identified in such a record.
(1) This exemption also applies when the fact of the existence or
nonexistence of a responsive record would itself reveal personally
private information, and the public interest in disclosure is not
sufficient to outweigh the privacy interest. In this situation, DNA
shall neither confirm nor deny the existence or nonexistence of the
record being requested.
(2) A ''refusal to confirm or deny'' response must be used
consistently, not only when a record exists, but also when a record does
not exist. Otherwise, the pattern of using a ''no records'' response
when a record does not exist and a ''refusal to confirm or deny'' when a
record does exist will itself disclose personally private information.
(3) Refusal to confirm or deny should not be used when the person
whose personal privacy is in jeopardy has provided the requester with a
waiver of his or her privacy rights; or the person whose personal
privacy is in jeopardy is deceased, and DNA is aware of that fact.
(D) Could reasonably be expected to disclose the identity of a
confidential source including a source within DNA, a state, local or
foreign agency or authority, or any private institution which furnishes
the information on a confidential basis.
(E) Could disclose confidential information furnished from a
confidential source and obtained by a criminal law enforcement authority
in a criminal investigation or by an agency conducting a lawful national
security intelligence investigation.
(F) Would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law.
(G) Could reasonably be expected to endanger the life, or the
physical safety of any individual.
(ii) Examples include:
(A) Statements of witnesses and other material developed during the
course of the investigation and all materials prepared in connection
with related government litigation or adjudicative proceedings.
(B) The identity of firms or individuals being investigated for
alleged irregularities involving contracting with DNA when no indictment
has been obtained nor any civil action filed against them by the United
States.
(C) Information obtained in confidence, expressed or implied, in the
course of a criminal investigation by a criminal law enforcement agency
or office within DNA, or a lawful national security intelligence
investigation conducted by an authorized agency or office within DNA.
National security intelligence investigations include background
security investigations and those investigations conducted for the
purpose of obtaining affirmative or counterintelligence information.
(iii) The right of individual litigants to investigative records
currently available by law (such as, the Jencks Act, 18 U.S.C. 3500 is
not diminished.
(iv) When the subject of an investigative record is the requester of
the record, it may be withheld only as authorized by DoD Directive
5400.11.
(v) Exclusions. Excluded from the previous exemptions are the
following two situations applicable to the Department of Defense.
(A) Whenever a request is made which involves access to records or
information compiled for law enforcement purposes and the investigation
or proceedings involves a possible violation or criminal law where there
is reason to believe that the subject of the investigation or
proceedings is unaware of its pendency, and the disclosure of the
existence of the records could reasonably be expected to interfere with
enforcement proceedings. Components may, during only such times as that
circumstance continues, treat the records or information as not subject
to the FOIA. In such situation, the response to the requester will
state that no records were found.
(B) Whenever informant records maintained by a criminal law
enforcement organization within a DoD component under the informant's
name or personal identifier are requested by a third party using the
informant's name or personal identifier, the Component may treat the
records as not subject to the FOIA, unless the informant's status as an
informant has been officially confirmed. If it is determined that the
records are not subject to exemption 7, the response to the requester
will state that no records were found.
(8) Number 8. Those contained in or related to examination,
operation or condition reports prepared by, on behalf of, or for the use
of any agency responsible for the regulation or supervision of financial
institutions.
(9) Number 9. Those containing geological and geophysical
information and data (including maps) concerning wells.
/3/ See footnote 1 to 291.5(c)(9).
/4/ See footnote 1 to 291.5(c)(9).
32 CFR 291.9 For official use only (FOUO).
Information that has not been given a security classification
pursuant to the criteria of an Executive Order, but which may be
withheld from the public for one or more of the reasons cited in FOIA
exemptions 2 through 9 shall be considered as being for official use
only. No other material shall be considered or marked ''For Official
Use Only'' (FOUO) and FOUO is not authorized as an anemic form of
classification to protect national security interests. See DNA
Instruction 5230.2A /5/ for additional information regarding FOUO
policy.
(a) Prior FOUO Application. The prior application of FOUO markings
is not a conclusive basis for withholding a record that is requested
under the FOIA. When such a record is requested, the information in it
shall be evaluated to determine whether, under current circumstances,
FOIA exemptions apply in withholding the record or portions of it. If
any exemption or exemptions apply or applies, it may nonetheless be
released when it is determined that no governmental interest will be
jeopardized by its release.
(b) Historical Papers. Records, such as notes, working papers, and
drafts retained as historical evidence of DNA actions enjoy no special
status apart from the exemptions under the FOIA.
(c) Time to Mark Records. The marking of records at the time of
their creation provides notice of FOUO content and facilitates review
when a record is requested under the FOIA. Records requested under the
FOIA that do not bear such markings, shall not be assumed to be
releaseable without examination for the presence of information that
requires continued protection and qualifies as exempt from public
release.
(d) Distribution Statement. Information in a technical document that
requires a distribution statement pursuant to DNA Instruction 5230.24A
shall bear that statement and may be marked FOUO, as appropriate.
(e) Termination. The originator or other competent authority, e.g.,
initial denial and appellate authorities, shall terminate ''For Official
Use Only'' markings or status when circumstances indicate that the
information no longer requires protection from public disclosure. When
FOUO status is terminated, all known holders shall be notified, to the
extent practical. Upon notification, holders shall efface or remove the
''For Official Use Only'' markings, but records in file or storage need
not be retrieved solely for that purpose.
(f) Disposal. (1) Nonrecord copies of FOUO materials may be
destroyed by tearing each copy into pieces to preclude reconstructing,
and placing them in regular trash containers. When local circumstances
or experience indicates that this destruction method is not sufficiently
protective of FOUO information, local authorities may direct other
methods but must give due consideration to the additional expense
balanced against the degree of sensitivity of the type of FOUO
information contained in the records.
(2) Record copies of FOUO documents shall be disposed of in
accordance with the disposal standards established under 44 U.S.C.
chapter 33, as implemented by DNA instructions concerning records
disposal.
(g) Unauthorized Disclosure. The unauthorized disclosure of FOUO
records does not constitute an unauthorized disclosure of DNA
information classified for security purposes. Appropriate
administrative action shall be taken, however, to fix responsibility for
unauthorized disclosure whenever feasible, and appropriate disciplinary
action shall be taken against those responsible. Unauthorized
disclosure of FOUO information that is protected by the Privacy Act, may
also result in civil and criminal sanctions against responsible persons.
The DNA office that originated the FOUO information shall be informed
of its unauthorized disclosure.
/5/ See footnote 2, to 291.6(a)
32 CFR 291.9 Pt. 291, App. A
32 CFR 291.9 Appendix A to Part 291 -- Freedom of Information Act
Request (DNA Form 524)
Date
Information Required in PAO NLT
FOIA Case No.
To:
Special Instructions:
Please conduct a search within your organization to determine if
there is information/documents responsive to the attached FOIA request.
If you recommend withholding information from the documents
requested, please refer to the FOIA exemptions listed on the reverse.
If this request is for a technical proposal, please provide the name
and address for the contact person at the company which was awarded the
contract and the name and office symbol to the TM.
Record time spent on this request and the number of pages copied on
the enclosed DD Form 2086.
If you believe other DNA offices should be involved in processing
this request, please advise PAO ASAP.
If you have any questions call PAO, 57095 or 57306. Do not place
this FOIA action in distribution.
Enclosures:
DNA Form 524 (28 June 90) Previous Editions Obsolete.
(b)(1) Applies to information which is currently and properly
classified pursuant to an Executive Order in the interest of national
defense or foreign policy. (See Executive Order 12356, DoD Regulation
5200.1-R and DNA Instruction 5400-7C.)
(b)(2) Applies to information which pertains solely to the internal
rules and practices of the Agency; this exemption has two profiles,
''high'' and ''low.'' The ''high'' profile permits withholding of a
document which, if released, would allow circumvention of an agency
rule, policy, or statute, thereby impeding the agency in the conduct of
its mission. The ''low'' profile permits withholding if there is no
public interest in the document, and it would be an administrative
burden to process the request.
(b)(3) Applies to information specifically exempted by a statute
establishing particular criteria for withholding. The language of the
statute must clearly state that the information will not be disclosed.
(b)(4) Applies to information such as trade secrets and commercial or
financial information obtained from a company on a privileged or
confidential basis which, if released, would result in competitive harm
to the company.
(b)(5) Applies to inter- and intra-agency memoranda which are
deliberative in nature; this exemption is appropriate for internal
documents which are part of the decision making process, and contain
subjective evaluations, opinions and recommendations.
(b)(6) Applies to information release of which could reasonably be
expected to constitute a clearly unwarranted invasion of the personal
privacy of individuals; and
(b)(7) Applies to records or information compiled for law enforcement
purposes that (A) could reasonably be expected to interfere with law
enforcement proceedings, (B) would deprive a person of a right to a fair
trial or impartial adjudication, (C) could reasonably be expected to
constitute an unwarranted invasion of the personal privacy of others,
(D) disclose the identity of a confidential source, (E) disclose
investigative techniques and procedures, or (F) could reasonably be
expected to endanger the life or physical safety or any individual.
(b)(8) Permits the withholding of matters contained in, or related
to, examination, operating or conditions reports prepared by, on behalf
of, or for the use of, an agency responsible for the regulation and
supervision of financial institutions.
(b)(9) Permits the withholding of geological information and data
including maps, concerning wells.
32 CFR 291.9 PART 292 -- DEFENSE INTELLIGENCE AGENCY (DIA) FREEDOM OF
INFORMATION ACT PROGRAM
Sec.
292.1 Purpose.
292.2 Applicability.
292.3 Indices.
292.4 Basic policy.
292.5 Specific policy.
292.6 How the public submits requests for records.
292.7 FOIA exemptions.
292.8 Filing an appeal for refusal to make records available.
292.9 Responsibilities.
Authority: 5 U.S.C. 552.
Source: 53 FR 25157, July 5, 1988, unless otherwise noted.
32 CFR 292.1 Purpose.
This part implements the ''Freedom of Information Act (FOIA),'' 5
U.S.C. 552, as amended, within the DIA and outlines policy governing
release of records to the public.
32 CFR 292.2 Applicability.
The provisions of this part apply to all DIA elements, and govern the
public release of records of these elements. This part is effective on
July 5, 1988.
32 CFR 292.3 Indices.
The DIA does not originate final orders, opinions, statements of
policy, interpretations, staff manuals or instructions that affect
members of the public of the type covered by the indexing requirement of
5 U.S.C. 552 (a)(2) or required to be published for the guidance of the
public under 5 U.S.C. 552 (a)(1). The Director, DIA, has therefore
determined, pursuant to pertinent statutory and Executive Order
requirements, that it is unnecessary and impracticable to publish an
index of the type required by 5 U.S.C. 552 as amended.
32 CFR 292.4 Basic policy.
(a) Upon receipt of a written request, the DIA will release to the
public records concerning its operations and activities which are
rightfully public information. Generally, information, other than that
exempted by 5 U.S.C. 552(b), will be provided to the public. The
following policy will be followed in the conduct of this program.
(1) The provisions of the FOIA, as implemented by DoD 5400.7-R and
this part, will be supported in both letter and spirit.
(2) Requested records will be withheld only when a significant and
legitimate governmental purpose is served by withholding them. Records
which require protection against unauthorized release in the interest of
the national defense or foreign relations of the United States will not
be provided.
(3) Requests from Members of Congress will be governed by DoD 5400.4,
from the General Accounting Office by DoD 7650.1, and from other
agencies and courts by DoD 5400.7-R.
(4) Records will not be withheld solely because their release might
result in criticism of DoD or this Agency.
(5) The applicability of the FOIA depends on the existence of an
''identifiable record'' (5 U.S.C. 552 (a)(3)). Accordingly, if the DIA
has no record containing information requested by a member of the
public, it is under no obligation to compile information to create such
a record.
(6) The mission of the DIA does not encompass regulatory or
decisionmaking matters in the sense of a public use agency; therefore,
extensive reading room material for the general public is not available.
However, unclassified DIA regulations and related material have been
placed in the joint reading room managed by DoD Public Affairs.
(7) Pursuant to 5 U.S.C. 552(a)(4)(A) fees may apply with regard to
services rendered the public under the Freedom of Information Act. With
regard to fees, the specific guidance of Dod, as set forth in DoD
Regulation 5400.7-R, will be followed. This schedule of fees is found
at 286.60 et seq. Remittances will be personal check or bank draft on
a bank in the United States or by U.S. postal money order. Remittances
will be made payable to the ''Treasurer of the United States'' and
forwarded to the address listed in 292.6(b).
(b) This basic policy is subject to the exemptions recognized in 5
U.S.C. 552(b) and discussed in 292.7 of this part. Even where denial
is authorized by 5 U.S.C. 552(b) and 292.7 of this part, requested
records will be provided if no significant and legitimate Government
purpose is served by withholding them.
32 CFR 292.5 Specific policy.
(a) Definition of a Record. The products of data compilation,
regardless of physical form or characteristics, made or received by the
DIA in connection with the transaction of public business and preserved
by the DIA primarily as evidence of the organization, policies.
functions, decisions, or procedures of this Agency.
(b) The following are not included within the definition of the word
''record:''
(1) Library or museum material made, acquired, and preserved solely
for reference or exhibition.
(2) Objects or articles, such as structures, furniture, paintings,
sculpters, three-dimensional models, vehicles and equipment, whatever
their historical value or value as evidence.
(3) Commercially exploitable resources, including but not limited to:
(i) Maps, charts, map compilation manuscripts, map research materials
and data, if not created or used as primary sources of information,
about organizations, policies, functions, decisions, or procedures of a
DoD Component.
(ii) Computer software and related software documentation, if not
created or used as primary sources of information about organizations,
policies, functions, decisions, or procedures of a DoD Component. (This
does not include the underlying data which is processed and produced by
such software and which may in some instances be stored with the
software).
(4) Unaltered publications and processed documents, such as
regulations, manuals, maps, charts, and related geophysical materials,
that are available to the public through an established distribution
system with or without charges.
(5) Any thing that is not a tangible or documentary record, such as
an individual's memory or oral communication.
(6) Personal notes of an individual not subject to Agency creation or
retention requirements, created and maintained primarily for the
convenience of an Agency employee, and not distributed to other Agency
employees for their official use.
(7) Information stored within a computer for which there is no
existing computer program or printout.
(c) The prior application of FOR OFFICIAL USE ONLY (FOUO) markings is
not conclusive basis for withholding a record that is requested under
the FOIA. When such a record is requested, the information in it will
be evaluated to determine whether, under current circumstances, FOIA
exemptions apply and whether a significant and legitimate Government
purpose is served by withholding the record or portions of it.
(d) A record must exist and be in the possession or control of the
DIA at the time of the request to be considered subject to this
regulation. There is no obligation to create, compile, or obtain a
record to satisfy an FOIA request.
(e) Identification of the Record. (1) Identification of the record
desired is the responsibility of the member of the public who requests a
record. The requester must provide a description of the desired record
that enables the DIA to locate the record with a reasonable amount of
effort. The Act does not authorize ''fishing expeditions.'' When the
DIA receives a request that does not ''reasonably describe'' the
requested record, it will notify the requester of the defect. The
defect should be highlighted in a spcificity letter, asking the
requester to provide the type of information outlined below. This
Agency is not obligated to act on the request until the requester
responds to the specificity letter. When practicable, the DIA will
offer assistance to the requester in identifying the records sought and
in reformulating the request to reduce the burden on the Agency in
complying with the Act.
(2) The following guidelines are provided to deal with ''fishing
expedition'' requests and are based on the principle of reasonable
effort. Descriptive information about a record may be divided into two
broad categories.
(i) Category I is file-related and includes information such as type
of record (for example, memorandum), title, index citation, subject
area, date the record was created, and originator.
(ii) Category II is event-related and includes the circumstances that
resulted in the record being created or the date and circumstances
surrounding the event the record covers.
(3) Generally, a record is not reasonably described unless the
description contains sufficient Category I information to permit the
conduct of an organized, non-random search based on the DIA's filing
arrangements and existing retrieval systems, or unless the record
contains sufficient Category II information to permit inferences of the
Category I elements needed to conduct such a search.
(f) Requests for records may be denied only when the official
designated in 292.9 determines that such denial is authorized by this
part and the Freedom of Information Act (5 U.S.C. 552).
(g) Initial availability, releasability, and cost determinations will
normally be made within 10 working days of the date on which a written
request for an identifiable record is received by the DIA. If, due to
unusual circumstances, additional time is needed, a written notification
of the delay will be forwarded to the requester within the 10 working
days period. This notification will briefly explain the circumstances
for the delay and indicate the anticipated date for a substantive
response. The period of delay, by law, may not exceed 10 additional
working days.
32 CFR 292.6 How the public submits requests for records.
(a) Requests to obtain copies of records must be made in writing.
The request should contain at least the following information:
(1) Reasonable identification of the desired record as specified in
292.5, including (if known) title or description, date, and the issuing
office.
(2) With respect to matters of official records concerning civilian
or military personnel, the first name, middle name or initial, surname,
date of birth, and social security number of the individual concerned,
if known.
(b) Persons desiring records should direct their inquiry to: Defense
Intelligence Agency, ATTN: DSP-1A (FOIA), Washington, DC 20340-3299.
(53 FR 25157, July 5, 1988, as amended at 56 FR 55088, Oct. 24, 1991)
32 CFR 292.7 FOIA exemptions.
The following types of records may be withheld in whole or in part
from public disclosure unless othewise prescribed by law.
(a) Exemption (b)(1). Those properly and currently classified in the
interest of national defense or foreign policy, as specifically
authorized under the criteria established by Executive Order and
implemented by regulations, such as DoD 5200.1-R. Although material is
not classified at the time of the FOIA request, a classification review
may be undertaken to determine whether the information should be
classified.
(b) Exemption (b)(2). Those containing or constituting rules,
regulations, orders, manuals, directives, and instructions relating to
the internal rules or practices of the DIA if their release to the
public would substantially hinder the effective performance of a
significant function of the DoD, and they do not impose requirements
directly on the general public.
(c) Exemption (b)(3). Those concerning matters that a statute
specifically exempts from disclosure by terms that permit no discretion
on the issue, or in accordance with criteria established by that statute
for withholding or referring to particular types of matters to be
withheld.
(d) Exemption (b)(4). Those containing trade secrets or commercial
or financial information that the DIA receives from a person or
organization outside the Government with the understanding that the
information or record will be retained on a privileged or confidential
basis in accordance with the customary handling of such records.
Records within the exemption must contain trade secrets or commercial or
financial records the disclosure of which is likely to cause substantial
harm to the competitive position of the source providing the
information, impair the Government's ability to obtain necessary
information in the future, or impair some other legitimate Government
interest.
(e) Exemption (b)(5). Those concerning internal advice,
recommendations, and subjective evaluations, as contrasted with factual
matters, that are reflected in records pertaining to the decisionmaking
process of an agency, whether within or among agencies or within or
among DoD components.
(f) Exemption (b)(6). Information in personnel and medical files, as
well as similar personal information in other files, that, if disclosed
to the requester, would result in a clearly unwarranted invasion of
personal privacy.
(g) Exemption (b)(7). Those investigative records compiled for the
purpose of enforcing civil, criminal, or military law, including the
implementation of Executive Orders or regulations issued pursuant to
law.
32 CFR 292.8 Filing an appeal for refusal to make records available.
(a) A requester may appeal an initial decision to withhold a record.
Appeals should be addressed to: Defense Intelligence Agency, ATTN:
DSP-1A (FOIA), Washington, DC 20340-3299.
(b) Final determination on appeals normally will be made within 20
working days of receipt of the appeal at the above address. If
additional time is needed to decide the appeal because of unusual
circumstances, the final determination may be delayed for the number of
working days, not to exceed 10, which were not utilized as additional
time for responding to the initial request.
(c) When an appeal is denied, the requester will be apprised of the
following:
(1) The basis for the refusal shall be explained to the requester, in
writing, both with regard to the applicable statutory exemption or
exemptions invoked under provisions of this part.
(2) When the final refusal is based in whole or in part on a security
classification, the explanation shall include a determination that the
record meets the criteria and rationale of the governing Executive
Order, and that this determination is based on a declassification
review.
(3) The final denial shall include the name and title or position of
the official responsible for the denial.
(4) The response shall advise the requester with regard to denied
information whether or not any reasonably segregable portions were
found.
(5) The response shall advise the requester of the right to judicial
review.
(53 FR 25157, July 5, 1988, as amended at 56 FR 55088, Oct. 24, 1991)
32 CFR 292.9 Responsibilities.
When a request of material is received, the following will apply:
(a) DSP-1A
(1) Receives requests and assigns tasking.
(2) Maintains appropriate suspenses and authorizes all extensions of
response time.
(3) Acts as the responsible operating office for all Agency actions
related to the FOIA.
(4) Drafts and transmits responses on:
(i) The release of records and/or information.
(ii) Obtaining supplemental information from the requester.
(iii) Informing the requester of any fees required.
(iv) The transfer to another element or agency of the initial
request.
(5) Fulfills the annual reporting requirement and maintains
appropriate records.
(6) Acts as the responsible official for all initial denials of
access to the public.
(b) All DIA elements:
(1) When identified by DSP-1A as the Office of Primary Responsibility
(OPR):
(i) Search files for any relevant records, and/or
(ii) Review records for possible public release within the time
constraints assigned, and
(iii) Prepare a documented response in all cases of nonrelease.
(2) All employees are required to read this part to ensure
familiarity with the requirements of the FOIA as implemented.
(c) The General Counsel.
(1) Ensures uniformity in the FOIA legal positions within the DIA and
with DoD.
(2) Secures coordination when necessary with the DoD General Counsel
on denials of public requests.
(3) Acts as the focal point in all judicial actions.
(4) Reviews all final denials.
(d) The Director, and on his behalf the Chief of Staff.
(1) Exercises overall staff supervision of the FOIA activities of the
Agency.
(2) Acts as the responsible officials for all denials of appeals.
(53 FR 25157, July 5, 1988, as amended at 56 FR 55088, Oct. 24, 1991)
32 CFR 292.9 PART 293 -- DEFENSE MAPPING AGENCY (DMA) FREEDOM OF
INFORMATION ACT PROGRAM
Sec.
293.1 Purpose.
293.2 Applicability.
293.3 Scope.
293.4 Definitions.
293.5 Policy.
293.6 Responsibilities.
293.7 Procedures.
293.8 Information requirements.
Appendix A to Part 293 -- Sample Letter Complying with Request
Appendix B to Part 293 -- Sample Letter Notifying Requester of
Extension of Time
Appendix C to Part 293 -- Sample Letter Denying Request or Partial
Denial for Access to or for Obtaining Copy of Records
Appendix D to Part 293 -- Sample Letter Notifying Requester of
Misdirected Request
Authority: 5 U.S.C. 552.
Source: 56 FR 26614, June 10, 1991, unless otherwise noted.
Redesignated at 56 FR 58179, Nov. 18, 1991; 56 FR 59217, Nov. 25,
1991.
32 CFR 293.1 Purpose.
(a) To prescribe Defense Mapping Agency (DMA) policy and procedures
for handling requests under the Freedom of Information Act (FOIA).
(b) To implement 5 U.S.C. 552, and 32 CFR part 285.
(56 FR 26614, June 10, 1991. Redesignated and amended at 56 FR 58179,
Nov. 18, 1991; 56 FR 59217, Nov. 25, 1991)
32 CFR 293.2 Applicability.
The provisions of this part apply to all elements of DMA.
32 CFR 293.3 Scope.
This part does not apply to requests from members of Congress, who
are governed by DoD Directive 5400.4 /1/ or from the General Accounting
Office, which is governed by DoD Directive 7650.1. /2/
/1/ Copies may be obtained, at cost, from the National Technical
Information Service, 5285 Port Royal Road, Springfield, VA 22161
/2/ See footnote 1 to 293.3
32 CFR 293.4 Definitions.
(a) FOIA record. (1) The products of data compilation, such as all
books, papers, maps, and photographs, machine readable materials or
other documentary materials, regardless of physical form or
characteristics, made or received by DMA in connection with the
transaction of public business and in DMA's possession and control at
the time of the FOIA request, are considered agency records. For items
not considered an agency record, see paragraph 1-402 of DoD 5400.7-R.
/3/
(2) Normally, computer software, including source code, object code,
and listings of source and object codes, regardless of medium are not
agency records. (See paragraph 1-402 of DoD 5400.7-R for a complete
definition of an agency record.)
(3) If unaltered publications and processed documents, such as
regulations, manuals, maps, charts and related geophysical materials,
are available to the public through an established distribution system
with or without charge, the provisions of 5 U.S.C. 552(a)(3) normally do
not apply, and they need not be processed under the FOIA. Normally,
documents disclosed to the public by publication in the Federal Register
also require no processing under the FOIA. In such cases, the requester
should be directed to the appropriate source to obtain the record.
(b) FOIA request. A FOIA request is a written request for DMA
records, made by any person, including a member of the public (U.S. or
foreign citizen), an organization, or a business, but not including a
Federal agency or a fugitive from law, that either explicitly or
implicitly invokes the FOIA, DoD Directive 5400.7, /4/ DoD 5400.7-R, or
this part.
(c) Pertinent records. For the purpose of this part, records shall
be considered pertinent if they concern either an individual who is, or
foreseeably may become, involved in litigation involving the United
States or a matter which is, or foreseeably may become, the subject of
litigation involving the United States.
(56 FR 26614, June 10, 1991. Redesignated and amended at 56 FR 58179,
Nov. 18, 1991; 56 FR 59217, Nov. 25, 1991)
/3/ See footnote 1 to 293.3
/4/ See footnote 1 to 293.3
32 CFR 293.5 Policy.
(a) Creating a record. A record must exist and be in the possession
and control of DMA at the time of a request to be charged for providing
the existing record. (See paragraph 1-506 of DoD 5400.7-R.)
(b) Public requests. It is DMA policy to make available to the
public the maximum amount of information concerning its operations and
activities. Exemptions to this policy are stated in 5 U.S.C. 552 and
DoD 5400.7-R. However, exempt records may be released to the public when
their disclosure would not be inconsistent with the Privacy Act, DMA
Instruction 5400.11, /5/ or any other statutory requirements, and when
no legitimate government purpose would be served by withholding them.
DoD 5400.7-R provides additional policy guidance regarding the release
of DMA records.
(c) News media requests. Requests from news media for records that
would not be withheld under FOIA shall be released promptly in order to
provide timely information to the public and eliminate the need to
invoke the provisions of FOIA.
(d) Contract requests. Guidance for the release of information
received from a non-U.S. Government source is contained in paragraph
5-207 of DoD 5400.7-R.
(e) Classified records. If classified records are requested, see
additional guidance outlined in Chapter VII, DMA Manual 5200.1. /6/
(f) FOUO records. (1) Information that has not been given a security
classification pursuant to the criteria of an Executive order, but which
may be withheld from the public for one or more of the reasons cited in
FOIA Exemptions 2 through 9 shall be considered as being for official
use only. No other material shall be considered or marked FOR OFFICIAL
USE ONLY (FOUO), and FOUO is not authorized as an anemic form of
classification to protect national security interests.
(2) The prior application of FOUO markings is not a conclusive basis
for withholding a record that is requested under FOIA. When such a
record is requested, the information in it shall be evaluated to
determine whether under current circumstances, FOIA exemptions apply in
withholding the record or portions of it. If any exemption(s) apply,
the record may be released when it is determined that no governmental
interest will be jeopardized by its release.
(g) Historical papers. Records such as notes, working papers, and
drafts retained as historical evidence of DoD component actions enjoy no
special status apart from the exemptions under the FOIA.
(h) Fees. Chapter VI, DoD 5400.7-R, should be consulted before fees
are assessed. Fee application is discussed in paragraph 6-101, fee
restrictions in paragraph 6-102, fee waivers in paragraph 6-103 and fee
assessment in paragraph 6-104.
(56 FR 26614, June 10, 1991. Redesignated and amended at 56 FR 58179,
Nov. 18, 1991; 56 FR 59217, Nov. 25, 1991)
/5/ Copies may be obtained by written request to the Defense Mapping
Agency, Attn: AO (Stop A-2) 8613 Lee Highway, Fairfax, VA 22031-2138
/6/ See footnote 5 to 293.5(b)
32 CFR 293.6 Responsibilities.
(a) The Director, Public Affairs (DMA(PA)), is designated Freedom of
Information Officer (FOIO) and is responsible for administering the FOIA
program within DMA. The DMA(PA) is also denial authority for ''no
record'' FOIAs. HQ DMA(PA) will:
(1) Receive, log, and determine administrative action required on all
FOIA requests received at HQ DMA. If a record is held by DMA, the FOIO
will forward a copy of the FOIA request to the custodian of the record
for comments regarding releasability of the requested record. Following
receipt of the custodian's comments and a copy of the requested
documents, FOIO will review the comments, make a preliminary
releasability determination, and prepare the initial response with
coordination by HQ DMA(GC). If it is apparent to the custodian that the
material will be released, two copies of the requested record will be
forwarded to HQ DMA(PA) (one for release and one for record keeping).
(2) Prepare DD Form 2564, ''Annual Report -- Freedom of Information
Act,'' and forward it to the Office of the Assistant Secretary of
Defense (Public Affairs) (OASD(PA)), as directed.
(b) The Chief of Staff, the Deputy General Counsel and the DMA
Freedom of Information of Information Act Officer (DMA(PA)) are
delegated authority to initially deny release of DMA records. This
denial authority is also delegated to Component Directors and Associate
General Counsels (AGC) as follows:
(1) AGC AC for the DMA Aerospace Center (DMAAC).
(2) AGC HTC for the DMA Hydrographic/Topographic Center (DMAHTC), DMA
Combat Support Center (DMACSC), and the Defense Mapping School (DMS).
(3) AGC SC -- for the DMA Reston Center (DMARC), DMA Systems Center
(DMASC), and DMA Technical Services Center (DMATSC).
(4) AGC(KL) (DMA Contract Law Office) for contract related issues.
This authority may not be redelegated. A copy of all Component
denial letters will be forwarded to HQ DMA(GC).
(c) General Counsel:
(1) HQ DMA(GC) is responsible for all appeals to FOIA actions and
will provide HQ DMA(PA) with a copy of the initial appeal letter and
DMA's response to it. The DMA Deputy Director (DD) and HQ DMA(GC) are
delegated authority to make final determinations on appeals in
accordance with the provisions of section 3, chapter V of DoD 5400.7-R.
(2) Coordination with Department of Justice:
(i) HQ DMA(GC) will notify the appropriate United States Attorney
prior to the release of any FOIA request for records which are pertinent
to pending litigation against the United States.
(ii) The office holding records sought under the FOIA shall notify
the FOIO whether such records are pertinent to pending or potential
litigation involving the United States. The records holder may request
the assistance of Counsel in making a determination. The record holder
shall advise the FOIO, in writing, whether any of the requested records
have been determined to be pertinent to such litigation. Prior to
release of such records, HQ DMA(PA) shall notify HQ DMA(GC) of the
request. Component FOIOs shall notify the appropriate Associate General
Counsel who will notify the United States Attorney, and shall coordinate
the release of such records with HQ DMA(GC) and the Department of
Justice.
(d) The DMA Director of Human Resources Management (HR) will
establish and implement appropriate procedures for responding to any
corrective actions recommended by the Office of Personnel Management in
cases involving arbitrary or capricious withholding of records by DMA
officials pursuant to section 4, chapter V, DoD 5400.7-R. HQ DMA(HR) and
HQ DMA(PA) shall implement training and information requirements as
outlined in chapter VII, DoD 5400.7-R.
(e) Component PAs will serve as FOIO at the Component level.
Components without PAs will appoint a FOIO. Component FOIOs will:
(1) Receive, log, and determine administrative action required for
all FOIA requests received at the Component, except those concerning DMA
contracts. (See 293.6(e)(2)). If a record is held by the Component, the
FOIO will forward a copy of the FOIA request to the custodian of the
record for comments regarding releasability of the requested record.
Following receipt of the custodian's comments and a copy of the
requested documents, the FOIO will review the comments, make a
preliminary releasability determination, and prepare the initial
response for coordination by the appropriate Associate General Counsel
as identified in 293.6(b). If it is apparent to the records custodian
that the material will be released two copies of the requested record
will be forwarded to HQ DMA(PA) (one for release and one for record
keeping).
(2) Refer all FOIA requests concerning DMA contracts not held at the
Component level to DMAHTC(PA), which has the responsibility for
processing such requests and for interfacing with the DMA Directorate
for Acquisition, Installations and Logistics HQ DMA(AQ) and the DMA
Contract Law Office (KL) located at DMAHTC.
(3) Submit DD Form 22564, ''Annual Report -- Freedom of Information
Act'' to HQ DMA(PA) by January 15 each year. (See chapter VII of DoD
5400.7-R for guidance.)
(f) All DMA organizations will:
(1) Upon receipt of correspondence which either explicitly or
implicitly invokes the FOIA immediately forward such correspondence to
HQ DMA(PA) or the Component FOIO.
(2) The record holder will, upon receipt of a FOIA action,
immediately review the requested records to determine the releasability
or denial under the nine FOIA exemptions contained in 5 U.S.C. 552, as
amended. Written comments regarding the releasability of records must
be provided to the FOIO forwarding the action within the timeframes
specified. Consultation with the FOIO, HQ DMA(GC), and Component AGCs
as appropriate, is recommended.
(56 FR 26614, June 10, 1991. Redesignated and amended at 56 FR 58179,
Nov. 18, 1991; 56 FR 59217, Nov. 25, 1991)
32 CFR 293.7 Procedures.
(a) Mandatory expeditious handling -- (1) Record released. The
initial determination of whether to release a record upon request will
normally be made and a decision reported to the requester within 10
working days. The record requested will be forwarded promptly, usually
with the initial response, provided the requester has met the criteria
for release. A sample letter is shown at appendix A to this part 293.
(2) Interim response. If the requested record cannot be made
available within 10 working days, an interim response will be forwarded.
Any delay beyond the initial 10 working days may not exceed 10
additional working days and will be authorized only for the reasons
described in section 2, chapter V, DoD 5400.7-R. A sample letter is
shown at appendix B to this part 293.
(3) No record. When providing a ''no record'' response in answer to
a request, the requester must be advised that such a response may be
considered to be adverse, and if so interpreted, may be appealed using
normal appeal procedures (see 293.7(a)(4)). An additional records
search shall be conducted based on the receipt of an appeal to a ''no
record'' response as part of the appellate process.
(4) Record denied. If a request for a record is denied, in whole or
in part, the requester will be given a written explanation for such a
determination by an official designated in 293.6. The requester will
also be advised of his/her right to appeal the denial to the HQ DMA(GC)
within 60 calendar days from the date of the denial letter. The letter
will also include the name and address of the official responsible for
the denial. A sample letter is at appendix C to this part 293. All
denials must have benefit of a legal review prior to signature.
(5) Request appealed. Final determination on appeals will normally
be made within 20 working days of receipt by the Deputy Director or
General Counsel. If, due to unusual circumstances, additional time is
needed to decide the appeal, the final determination may be delayed for
the number of working days, not to exceed 10, which were not used as
additional time for responding to the initial request. Final denials to
provide a requested record will be made in writing by the Deputy
Director or General Counsel in accordance with the appeal procedures
prescribed in section 3, chapter V, DoD 5400.7-R.
(6) Request referred. If the record requested was originated by
another agency or Component, it will be referred promptly to the
originating agency or Component for disposition. The period allowed for
responding to a request misdirected by the requester will not begin
until it is received by the referral. A sample letter is shown at
appendix D to this part 293.
(b) Facilities for inspection and copying records. (1) The handling
of all requests from the public to inspect and copy records will be in
strict accordance with the procedures prescribed in DoD 5400.7-R.
Subject to exemptions contained in 5 U.S.C. 552, as amended, DMA will
ensure easy access by the public for inspection and copying of records
described in 5 U.S.C. 552, unless such records have been published and
copies offered for sale. This inspection and copying will take place in
appropriate rooms designated by HQ DMA(PA) and Components.
(2) HQ DMA and Components will make available current indexes which
identify material described in paragraph (a)(2) of 5 U.S.C. 552, as
amended.
(3) Use of DMA inspection and copying facilities by the public will
be made by appointment only. Appointments will normally be requested by
letter to FOIA officers or those acting in that capacity.
(56 FR 26614, June 10, 1991. Redesignated and amended at 56 FR 58179,
58180, Nov. 18, 1991; 56 FR 59217, Nov. 25, 1991)
32 CFR 293.8 Information requirements.
Reporting requirements prescribed by this part have been assigned
Report Control Symbol DD-PA(A)1365. (See chapter VII, DoD 5400.7-R.)
32 CFR 293.8 Pt. 293, App. A
Dear XXXXX:
This is in response to your letter of XXXXXX in which you requested
XXXXXX under the Freedom of Information Act, 5 U.S.C. 552, as amended.
After careful review and consideration of your request, we have
determined that the record(s) you seek is(are) releasable and is(are)
enclosed. Search and duplication costs have been waived. (See Chapter
VI, DoD 5400-7-R for guidance on fee assessment.)
Sincerely,
(Signed)
--
(Signature block of authorized official)
Enclosure.
As stated.
(56 FR 26614, June 10, 1991. Redesignated and amended at 56 FR 58179,
58180, Nov. 18, 1991; 56 FR 59217, Nov. 25, 1991)
32 CFR 293.8 Pt. 293, App. B
Dear XXXXX:
This is in response to your letter of XXXXXX in which you requested
XXXXXX under the Freedom of Information Act, 5 U.S.C. 552, as amended.
In order to process your request for XXXXXX under FOIA, an extension
of time will be necessary because of (use one of the following
explanations):
a. The need to search for, collect, and properly examine a voluminous
amount of separate and distinct records covered by your request;
b. The need to search for and collect the requested records from
geographically separated elements within the Defense Mapping Agency;
c. The need for consultation, which will be conducted with all
practicable speed, with another agency or geographically separated
element of the Defense Mapping Agency having a substantial interest in
the determination of your request;
d. Other.
A determination regarding your request will be made by
(date) XXXXXX.
Sincerely,
(Signed)
--
(Signature block of authorized official)
Note: Specify a date that will not result in an extension of time
more than the authorized 10 working days.
(56 FR 26614, June 10, 1991. Redesignated and amended at 56 FR 58179,
58180, Nov. 18, 1991; 56 FR 59217, Nov. 25, 1991)
32 CFR 293.8 Pt. 293, App. C
Dear XXXXXX:
This is in response to your letter of XXXXXX in which you requested
XXXXXX under the Freedom of Information Act, 5 U.S.C. 552, as amended.
After careful review and consideration of your request, we have
determined that (the) (a portion of) document(s) you seek is (are)
exempt from disclosure under FOIA. It is not releasable because it
contains information that a (copy or paraphrase the applicable exemption
set forth in DoD 5400.7-R.
The decision to withhold release of this (these) record(s) may be
appealed in writing to the General Counsel, Defense Mapping Agency,
within 60 calendar days from the date of this letter. You should
include in your appeal any reasons for reconsideration you wish to
present. A copy of this letter should be enclosed with your appeal, and
forwarded to the Defense Mapping Agency, ATTN: GC (A-7), 8613 Lee
Highway, Fairfax, VA 22031-2137.
Note: If this is a partial denial, add the paragraph below if copies
of releasable records are to be sent to the requester.
Copies of the releasable portion of the requested record(s) (are
enclosed) (will be sent promptly under separate cover).
Sincerely,
(Signed)
--
(Signature block of authorized denial authority)
Note: Any deletions made in the records should be justified on the
grounds of the exemptions provided in DoD 5400.7-R. This format should
be varied to fit the situation.
(56 FR 26614, June 10, 1991. Redesignated and amended at 56 FR 58179,
58180, Nov. 18, 1991; 56 FR 59217, Nov. 25, 1991)
32 CFR 293.8 Pt. 293, App. D
Dear XXXXX:
This is in response to your letter of XXXXXX in which you requested
XXXXXX under the Freedom of Information Act, 5 U.S.C., section 552, as
amended.
Your letter was misdirected to this Agency. We have forwarded same
to (activity or agency to which the request was referred). You may
expect to hear from them shortly.
For future reference, any other requests for similar records should
be addressed to (name and address of agency).
Sincerely,
(Signed)
--
(Signature block of authorized authority)
(56 FR 26614, June 10, 1991. Redesignated and amended at 56 FR 58179,
58180, Nov. 18, 1991; 56 FR 59217, Nov. 25, 1991)
32 CFR 293.8 PART 295 -- OFFICE OF THE INSPECTOR GENERAL, FREEDOM OF
INFORMATION ACT PROGRAM
Sec.
295.1 Purpose.
295.2 Applicability.
295.3 Definition of OIG records.
295.4 Other definitions.
295.5 Policy.
295.6 Responsibilities.
295.7 Procedures.
295.8 Annual report.
295.9 Organization and mission.
Appendix A to Part 295 -- For Official Use Only (FOUO)
Appendix B to Part 295 -- Exemptions
Authority: 5 U.S.C. 552.
Source: 56 FR 49694, Oct. 1, 1991, unless otherwise noted.
32 CFR 295.1 Purpose.
This part establishes the policy and sets forth the procedures by
which the public may obtain information and records from the Inspector
General (IG) under the Freedom on Information Act (FOIA). It implements
title 5, United States Code (U.S.C.) section 552, as amended by the
Freedom of Information Reform Act of 1986, 32 CFR part 285 and 32 CFR
part 286.
32 CFR 295.2 Applicability.
The provisions of this Part are applicable to all components of the
Office of the Inspector General (OIG) and govern the procedures by which
FOIA requests for information will be processed and records may be
released under the FOIA.
32 CFR 295.3 Definition of OIG records.
(a) The products of data compilation, such as books, papers, maps,
and photographs, machine readable materials or other documentary
materials, regardless of physical form or characteristics, made or
received by an agency of the United States Government under Federal law
in connection with the transaction of public business and in the OIG's
possession and control at the time the FOIA request is made.
(b) The following are not included within the definition of the word
''record'':
(1) Objects or articles, such as structures, furniture, vehicles and
equipment, whatever their historical value, or value as evidence.
(2) Administrative tools by which records are created, stored, and
retrieved, if not created or used as sources of information about
organizations, policies, functions, decisions, or procedures of the OIG.
Normally, computer software, including source code, object code, and
listings of source and object codes, regardless of medium are not agency
records. (This does not include the underlying data which is processed
and produced by such software and which may in some instances be stored
with the software.) Exceptions to this position are outlined in
295.4(c).
(3) Anything that is not a tangible or documentary record, such as an
individual's memory or oral communication.
(4) Personal records of an individual not subject to agency creation
or retention requirements, created and maintained primarily for the
convenience of an OIG employee, and not distributed to any other OIG
employee for their official use, or otherwise disseminated for official
use.
(5) Information stored within a computer for which there is no
existing computer program for retrieval of the requested information.
(c) In some instances, computer software may have to be treated as an
agency record and processed under the FOIA. These situations are rare,
and shall be treated on a case-by-case basis. Examples of when computer
software may have to be treated as an agency record are:
(1) When the data is embedded within the software and can not be
extracted without the software. In this situation, both the data and
the software must be reviewed for release or denial under the FOIA.
(2) Where the software itself reveals information about
organizations, policies, functions, decisions, or procedures of the OIG,
such as computer models used to forecase budget outlays, calculate
retirement system costs, or optimization models on travel costs.
(3) See appendix B to this part for further information on release
determinations of computer software.
(d) If unaltered publications and processed documents, such as
regulations, manuals, maps, charts, and related geophysical materials
are available to the public through an established distribution system
with or without charge, the provisions of 5 U.S.C. 552(a)(3) normally do
not apply and they need not be processed under the FOIA. Normally,
documents disclosed to the public by publication in the Federal Register
also require no processing under the FOIA. In such cases, the OIG will
direct the requester to the appropriate source to obtain the record.
32 CFR 295.4 Other definitions.
(a) FOIA Request. A written request for OIG records, made by any
person, including a member of the public (U.S. or foreign citizen), an
organization, or a business, but not including a Federal agency or a
fugitive from the law that either explicitly or implicitly invokes the
FOIA, 32 CFR part 285 and 32 CFR part 286, or this part.
(b) Initial Denial Authority (IDA). The official who has been
granted authority to withhold records requested under the FOIA, for one
or more of the nine categories of records exempt from mandatory
disclosure, by the head of the OIG Component designated by the IG to
administer the IG FOIA Program.
(c) Appellate Authority. The IG or his or her designee having
jurisdiction for this purpose over the record.
(d) Administrative Appeal. A request by a member of the general
public, made under the FOIA, asking the appellate authority of the OIG
to reverse an IDA decision to withhold all or part of a requested record
or an IDA decision to deny a request for waiver or reduction of fees.
(e) Public Interest. Public interest is official information that
sheds light on an agency's performance of its statutory duties because
the information falls within the statutory purpose of the FOIA of
informing citizens about what their Government is doing. That statutory
purpose, however, is not fostered by disclosure of information about
private citizens that is accumulated in various governmental files that
reveals little or nothing about an agency's or official's own conduct.
32 CFR 295.5 Policy.
(a) General. (1) It is the policy of the OIG to promote public trust
by conducting its activities in an open manner, and by providing the
public with the maximum amount of accurate and timely information
concerning those activities, consistent with the need for security and
adherence to other requirements of law and regulation.
(2) Records not specifically exempt from disclosure under the FOIA or
prohibited by statutory or other regulatory requirements will, upon
request, be made readily accessible to the public.
(3) Records that are specifically exempt from disclosure under the
FOIA or prohibited by statutory or other regulatory requirements will be
withheld from the public only upon the determination of the initial
Denial Authorities identified in 295.6 of this part, or the designated
Appellate Authority.
(b) News Media Requests. (1) Requests from news media
representatives for records that would not be withheld if requested
under the FOIA or prohibited from release under other statutory or
regulatory authority, will be released promptly by the OIG element
originating the record.
(2) Requests from news media representatives for records that are
exempt from release under the FOIA, or prohibited from release under
other statutory or regulatory authority will be provided to the Freedom
of Information Act and Privacy Act (FOIA/PA) Division, Office of the
Assistant Inspector General for Investigations, along with the requested
records, for review and a release determination and the news media
representatives will be so advised.
(3) Extracts of the nonexempt portions of such records may be
prepared in response to a specific request from a news media
representative but shall be coordinated for release with the FOIA/PA
Division. Extracts shall be prepared in accordance with the sample at
appendix to 295.5.
(c) Control System. (1) A request for OIG records that invokes the
FOIA shall enter a formal control system designed to ensure compliance
with the FOIA. A release determination must be made and the requester
informed within the time limits specified in this part.
(2) Any request for OIG records that either explicitly or implicitly
cites the FOIA will be processed under the provisions set forth in this
part, unless otherwise required by 295.5(m) of this part. All such
requests shall be forwarded to the FOIA/PA Division.
(d) Promptness of Response. (1) A request from a member of the
public for OIG records will be responded to within 10 working days of
the date of its receipt in the FOIA/PA Division, unless a delay is
authorized.
(2) Receipt of the request will be acknowledged and the requester
will be promptly advised of any additional information needed to assure
compliance with procedures established in this part. In the event there
are a significant number of requests, e.g., 10 or more, the requests
will be processed in order of date of receipt. This does not preclude
the OIG from completing action on a request which can be easily
answered, regardless of its ranking within the order of receipt. The
OIG may expedite action on a request regardless of its ranking within
the order of receipt upon a showing of exceptional need or urgency.
Exceptional need will be determined at the discretion of the OIG.
(3) These provisions also apply to a request received on referral
from another DoD Component or government agency and time limits will
begin on the date of receipt in the OIG FOIA/PA Division.
(e) Use of Exemptions. It is OIG policy to make records publicly
available unless they qualify for exemption under one or more of the
nine exemptions. The OIG may elect to make a discretionary release,
however, a discretionary release is generally not appropriate for
records exempt under exemptions (b)(1), (b)(3), (b)(4), (b)(6) and
(b)(7)(C). Exemptions (b)(4), (b)(6) and (b)(7)(C) can not be claimed
when the requester is the submitter of the information. The categories
of records which are exempt from release are identified in appendix B of
this part.
(f) For Official Use Only (FOUO). The use of FOUO markings will be
accomplished in accordance with the provisions of appendix A of this
part, and exemptions (b)(2) through (b)(9) as set forth in appendix B of
this part. Additional guidance will be provided to OIG elements, as
needed, by the FOIA/PA Division.
(g) Public Domain. Nonexempt records released under the authority of
this part are considered to be in the public domain. Such records may
also be made available in the OIG Reading Room located in the FOIA/PA
Division. Exempt records released pursuant to this part or other
statutory or regulatory authority, however, may be considered to be in
the public domain only when their release constitutes a waiver of the
FOIA exemption. When the release does not constitute such a waiver,
such as when disclosure is made to a properly constituted advisory
committee or to a Congressional Committee, or to an individual to whom
the record pertains, the released records do not lose their exempt
status. Also, while authority may exist to disclose records to
individuals in their official capacity, the provisions of this part
apply if the same individual seeks to use the records in a private or
personal capacity.
(h) Creation of Records. (1) A record must exist and be in the
possession or control of the OIG at the time of the request to be
considered subject to release under this part and the FOIA. Mere
possession of a record does not presume OIG control and such records, or
identifiable portions thereof, will be referred to the originating
agency for a release determination and/or direct response to the
requester. There is no obligation to create nor compile a record to
satisfy a FOIA request; however, the OIG may compile a new record when
doing so would result in a more useful response to the requester, or be
less burdensome to the OIG than providing the existing records, and the
requester does not object. The cost of creating or compiling such a
record will not be charged to the requester unless the fee is equal to,
or less than, the fee that would be charged for providing the existing
record. Any fee assessments will be made in accordance with chapter IV
of DoD 5400.7-R (32 CFR part 286).
(2) With respect to electronic data, the issue of whether records are
actually created or merely extracted from an existing database is not
always readily apparent. Consequently, when responding to FOIA requests
for electronic data where creation of a record, programming, or
particular format are questionable, the OIG will apply a standard of
reasonableness. In other words, if the capability exists to respond to
the request, and the effort would be a business as usual approach, then
the request will be processed. However, the request will not be
processed where the capability to respond does not exist without a
significant expenditure of resources, thus not be a normal business as
usual approach.
(i) Describing Records Sought. (1) It is the responsibility of the
member of the public requesting records to adequately identify the
records. A member of the public must describe the records sought with
sufficient information to permit the OIG to locate the records with a
reasonable amount of effort, since the FOIA does not authorize ''fishing
expeditions.'' Descriptive information about a record may be divided
into two broad categories:
(i) Category I is file-related and includes information such as type
of record (for example, memorandum), title, index citation, subject
area, date the record was created, and originator.
(ii) Category II is event-related and includes the circumstances that
resulted in the record being created or the date and circumstances
surrounding the event the record covers.
(2) When the OIG receives a request that does not ''reasonably
describe'' the requested record with sufficient Category I information
to permit the conduct of an organized nonrandom search, or sufficient
Category II information to permit inference of the Category I elements
needed to conduct such a search, the requester will be notified in
writing of the defect and of the need for more specific identification
of the records sought. The specificity letter will provide guidance in
identifying the records sought and in reformulating the request to
reduce the burden on the OIG in complying with the FOIA. The OIG is not
obligated to act on requests until an adequate description is provided
by the requester.
(3) When the OIG receives a request in which only personal
identifiers, e.g., name and Social Security Account Number, are provided
in connection with the request for records concerning the requester,
only records retrievable by personal identifiers will be searched. The
search for such records may be conducted under Privacy Act procedures.
No record will be denied that is releasable under the FOIA.
(j) Referrals. (1) The OIG has the responsibility of protecting the
identity of individuals who make protected disclosures of wrongdoing on
the part of others, under the ''Whistleblower Protection Acts''. When a
FOIA requester has identified himself/herself as the ''Whistleblower''
in the matter for which records are being sought, in accordance with
295.7(b)(3) of this part, or the FOIA/PA Division can reasonably
determine that the FOIA requester is the ''Whistleblower'', the
individual's identity will continue to be protected in all of the
following circumstances involving referrals, except to the extent that
such protection will impede the release of responsive records to the
requester. In such event, the requester will be advised of the
impedance and offered the option of allowing himself/herself to be
identified solely for the purpose of obtaining maximum release of
records responsive to the FOIA request. If the requester chooses to
continue anonymity, the request will be processed only to the extent
that will allow continued protection of the individual's identity.
(2) The OIG will refer a FOIA request to another DoD Component or to
a Government agency outside the DoD when the OIG has no records
responsive to the request, but believes the other DoD Component or
outside agency may have, and the other DoD Component or outside agency
has confirmed that it holds the record. When the other DoD Component or
outside agency agrees to the referral, the requester will be advised of
the referral and that the OIG has no responsive records, with the
following exceptions:
(i) If it is determined by the other DoD Component or outside agency
that the existence or nonexistence of the record itself is classified,
the OIG will inform the requester only that the OIG has no responsive
record and no referral will take place.
(ii) If the record falls under one or more of the ''Exclusions''
under the FOIA (see appendix B of this part), as determined by the other
DoD Component or outside agency, the OIG will advise the requester only
that the OIG has no responsive record and no referral will take place.
(3) The OIG will refer a record, or portions of a record that holds
but that was originated by another DoD Component or outside agency, or
for a record that contains substantial information that originated with
another DoD Component or outside agency, to that Component or agency
(unless the agency is not subject to the FOIA) for a release
determination and/or direct response to the requester. In any such
case, direct coordination will be effected and concurrence obtained from
the other Component or agency prior to the referral. A copy of the
record will be provided to the Component or agency with the referral,
and the requester will be notified of the referral, consistent with any
security requirements or ''Exclusion'' provisions of the FOIA. The OIG
will not, in any case, release or deny such records without prior
consultation with the other DoD Component or outside agency. If the
requester is the ''Whistleblower'', the record or portion of the record
will be provided to the DoD Component or agency, with a request for a
release determination and return of the record to the OIG for response
to the requester.
(4) The OIG will refer a FOIA request for a classified record that it
holds, but did not originate, to the originating DoD Component or
outside agency (unless the agency is not subject to the FOIA). If the
record originated with the OIG but the classification is derivative,
i.e., contains classified information that originated elsewhere and was
incorporated in the OIG record, the record will be referred to the
originating authority with a recommendation for release; or, after
consultation with the originating authority, with a request for a
declassification review and/or release determination and return of the
record. If the requester is the ''Whistleblower'', the record will be
provided to the originating authority with a request for a release
determination and return of the record to the OIG for response to the
requester.
(5) The OIG may also refer a request for a record that was originated
by the OIG for the use of another DoD Component or outside agency, to
that Component or agency with a recommendation for release, after any
necessary coordination. The requester will be notified of such action
consistent with any security requirements or ''Exclusion'' provisions of
the FOIA.
(6) A FOIA request for investigative, intelligence, or any other type
of record on loan from another DoD Component or outside agency to the
OIG for a specific purpose will be referred to the DoD Component or
outside agency that provided the records, if the records are restricted
from further release and so marked. However, if for investigative or
intelligence purposes, the outside Component or agency desires anonymity
as determined through coordination, the OIG will respond directly to the
requester.
(7) A FOIA request for a record, or portions of a record, held by the
OIG, that originated with a non-U.S. government agency that is not
subject to the FOIA, will be responded to by the OIG.
(8) Notwithstanding anything to the contrary in this section, all
requesters seeking National Security Council (NSC) or White House
documents will be advised that they should write directly to the NSC or
White House for such documents. Should the requester insist upon an OIG
search for these records, the OIG will conduct an appropriate search
pursuant to the FOIA. OIG/DoD documents in which the NSC or White House
has a concurrent reviewing interest will be forwarded by the FOIA/PA
Division to the Director, Freedom of Information and Security Review
(DFOISR), Office of the Assistant Secretary of Defense (Public Affairs)
(OASD(PA)), which shall effect coordination with the NSC or White House,
and return the documents to the originating agency after NSC review and
determination. The FOIA/PA Division will forward any documents found in
OIG files that are responsive to the FOIA request to DFOISR, OASD(PA)
for their coordination with the NSC or White House, and return to the
OIG with a release determination for final processing of the request.
(9) On occasion, the OIG receives FOIA requests for General
Accounting Office (GAO) documents containing OIG information. Even
though the GAO is outside of the Executive Branch, and not subject to
the FOIA, all FOIA requests for GAO documents containing DoD information
received directly from the public, or on referral from the GAO, will be
processed under the provisions of the FOIA.
(k) Authentication of Records. Records provided under this Part will
be authenticated, upon written request, to fulfill an official
Government or other legal function. This service is in addition to that
required under the FOIA and is not included in the FOIA fee schedule;
therefore, a fee of $5.20 may be charged for each such authentication.
(l) Records Management. FOIA records shall be maintained and
disposed of in accordance with Inspector General Defense Manual (IGDM)
5015.2, /1/ ''Records Management Program''.
(m) Relationship Between the FOIA and the Privacy Act (PA). Not all
requesters are knowledgeable of the appropriate statutory authority to
cite when requesting records. In some instances, they may cite neither
Act, but will imply one or both Acts. For these reasons, the following
guidelines are provided to ensure that requesters receive the greatest
amount of access rights under both Acts:
(1) Where requesters seek records about themselves which are
contained in a PA system of records and cite or imply the PA, the OIG
will process their requests under the provisions of the PA.
(2) Where requesters seek records about themselves which are not
contained in a PA system of records and cite or imply the PA, the
requests will be processed under the provisions of the FOIA, since they
have no access under the PA.
(3) Where requesters seek records about themselves that are contained
in a PA system of records and cite or imply the FOIA or both Acts, the
requests will be processed under the time limits of the FOIA and the
exemptions and fees of the PA. This is appropriate since greater access
will generally be received under the PA.
(4) Where requesters seek agency records (as opposed to personal
records) and cite or imply the PA and FOIA, or where requesters cite or
imply only the FOIA, the requests will be processed under the FOIA.
(5) Requesters will be advised in the final responses to their
requests why a particular Act was used in processing their requests.
(n) Index and ''(a)(2)'' Materials. (1) No order, opinion, statement
of policy, interpretation, staff manual or instruction (except as
indicated below) issued after July 4, 1967, which is not indexed and
either made available or published, may be relied upon, used, or cited
as a precedent against any member of the public unless that individual
has actual and timely notice of the contents of such materials. Such
actual and timely notice may not be after-the-fact; i.e., after the
individual has suffered some adverse effect. Materials identified as
''(a)(2)'' are:
(i) Final opinions, including concurring and dissenting opinions, and
orders made in the adjudication of cases, as defined in 5 U.S.C. 551,
that may be cited, used, or relied upon as precedents in future
adjudications.
(ii) Statements of policy and interpretations that have been adopted
by the agency and are not published in the Federal Register.
(iii) Administrative staff manuals and instructions, or portions
thereof, that establish OIG policy or interpretations of policy that
affect a member of the public. This provision does not apply to
instructions for employees on tactics and techniques to be used in
performing their duties, or to instructions relating only to the
internal management of the OIG. Examples of manuals and instructions
not normally made available are:
(A) Those issued for audit, investigation, and inspection purposes,
or those that prescribe operational tactics, standards of performance,
or criteria for defense, prosecution, or settlement of cases.
(B) Operations and maintenance manuals and technical information
concerning munitions, equipment, systems, and foreign intelligence
operations.
(2) Thus, materials considered to meet the preceding definition of
the FOIA ''(a)(2)'' requirements will be made available for public
inspection and copying upon written request to the address indicated in
295.7(b)(1) of this part, unless such materials have been published and
are offered for sale or subscription. Upon receipt of the request,
arrangements will be made at a time convenient to both the requester and
the OIG, for the review and copying. If the publishing activity is out
of stock of the published, for sale material and does not intend to
reprint, then the preceding procedure will apply to the published
material as well.
(3) When appropriate, the cost of copying any ''(a)(2)'' materials
will be imposed upon the individual requesting the copy in accordance
with chapter VI of DoD 5400.7-R (32 CFR part 286).
(4) The OIG will prepare an index of ''(a)(2)'' materials, or
supplement thereto, arranged topically or by descriptive words rather
than by case name or numbering system so that members of the public can
readily locate material. Separate case name and numbering arrangements
may be added for OIG convenience.
(5) The IG has determined that it is not practical nor feasible to
prepare an index of the ''(a)(2)'' materials on a quarterly basis, nor
to publish the annual ''IG Publications Index'' in the Federal Register
because of the volume. This index is available to the public at no cost
upon written request to: Acquisition and Resources Administration
Directorate, Publications Management Branch, room 413, 400 Army Navy
Drive, Arlington, Virginia 22202-2884. It may be necessary to deny all
or portions of some documents listed in the index that fall within one
or more exemptions of the FOIA.
(o) Fees and Fee Waivers. (1) Fees will be assessed under the FOIA
as set forth in chapter VI of DoD 5400.7-R (32 CFR part 286).
(2) Requesters must indicate their willingness to pay fees in their
initial FOIA request. If a waiver of fees is requested, a statement
regarding their willingness to pay fees in the event a waiver or
reduction of fees is denied is still required. Any requests not
containing a statement regarding a willingness to pay assessed fees will
not be processed and the requester will be so advised.
(3) Fees will not be required to be paid in advance of processing the
request for release of the records requested except:
(i) When the requester is known to be in default of payment of fees
incurred in connection with a previous request.
(ii) When the total amount of estimated fees assessable to the
requester exceeds $250.00 and waiver is not appropriate, a ''good
faith'' deposit of half of the amount of the estimated fees may be
required before completing the processing of the request, or providing
the requested records, in the case of a requester with no history of
payment. Where the requester has a history of prompt payment, the OIG
will notify the requester of the likely cost and obtain satisfactory
assurance of full payment.
(4) When the OIG has completed all work on a request and the
documents are ready for release, advance payment may be requested before
forwarding the documents if there is no payment history on the
requester. Where there is a history of prompt payment by the requester,
the OIG will not hold documents ready for release pending payment.
(5) Fee waivers will be granted on a case-by-case basis when the OIG
determines that waiver or reduction of the fees is in the public
interest because furnishing the information is likely to contribute
significantly to public understanding of the operations or activities of
the OIG and the Department of Defense and is not primarily in the
commercial interest of the requester. In any request for waiver of
fees, the requester must provide sufficient information to enable the
IDA to make a proper determination of whether or not the fees should be
waived.
(6) In cases where the requester fails to provide sufficient
persuasive information upon which to make a determination for waiver of
the fees, the requester shall be so informed and given the opportunity
to submit additional justification. Absent such justification, the
requester may be required to pay fees appropriate to his/her category,
if provision of the information is determined not to be in the public
interest or benefit.
(7) Payments of fees must be by check or U.S. Postal money order made
payable to the Treasurer of the United States. Cash payments cannot be
accepted.
(p) Appeals and Judicial Action. (1) If the designated IDA declines
to provide a requested record because the official considers it exempt
from disclosure under one or more of the nine exemptions of the FOIA,
that decision may be appealed by the requester to the designated
Appellate Authority. The appeal should be submitted in writing by the
requester within 60 calendar days after the date of the initial denial
letter. In cases where incremental release actions have been taken on
an initial request, the time for the appeal will not begin until the
date of the last denial of release letter.
(2) A ''no record'' finding may be considered to be adverse, and if
so interpreted by the requester, may be appealed using the normal OIG
appeal procedures. The OIG will conduct an additional search of files,
based on the receipt of an appeal to a ''no record'' response, as a part
of the appellate process.
(3) All final decisions rendered on appeals will be made to the
requesters in writing by the Appellate Authority, after consultation
with the Office of General Counsel (OGC) representative to the OIG, and
other appropriate OIG elements.
(4) Final determinations on appeals normally shall be made within 20
working days after receipt. The appeal will be deemed to have been
received when it reaches the FOIA/PA Division, for administrative
processing on behalf of the Appellate Authority. Misdirected appeals
are to be referred expeditiously to the FOIA/PA Division.
(5) A requester will be deemed to have exhausted his/her
administrative remedies after he/she has been denied the requested
record or waiver/reduction of fees, by the designated Appellate
Authority, or when the OIG FOIA/PA Division fails to respond to the
request within the time limits prescribed by the FOIA, DoD 5400.7-R (32
CFR part 286) and this part. The requester may then seek judicial
action from a U.S. Distrist Court in the district in which the requester
resides, has a principal place of business, in the district in which the
record is located, or in the District of Columbia.
(6) Records that are denied on appeal shall be retained for a period
of six years, in accordance with IGDM 5015.2, /2/ ''Records Management
Manual,'' to meet the statute of limitations of claims requirements.
The material contained herein is an Extract of information from (Name
of Original Document), which has been determined to be in the public
domain. The remaining material not provided herein may be requested
under the provisions of the Freedom of Information Act.
/1/ Copies may be obtained, if needed, from the Information and
Operations Support Directorate, Publications Management Branch, room
420, 400 Army Navy Drive, Arlington, VA 22202-2884.
/2/ See footnote 1 to 295.5(1).
32 CFR 295.6 Responsibilities.
(a) The Assistant Inspector General (AIG) for Investigations is
responsible for the overall implementation and administration of the
FOIA program in the OIG, and for the designation of the IDAs.
(b) The Director, Investigative Support is designated as an IDA and
is responsible for the overall operation of the FOIA program in the OIG.
(c) The Assistant Director, FOIA/PA Division, Investigative Support
Directorate is designated as an IDA and will:
(1) Serve as the point of contact on all FOIA matters for the OIG.
(2) Coordinate and respond to all requests received from the public
for records in accordance with the policy established and procedures set
forth in this part, and in all applicable DoD directives, regulations
and instructions.
(3) Coordinate requests received from the public for records to the
extent considered necessary, with the DFOISR, OASD(PA), other DoD
Components, other Federal agencies, and other OIG elements.
(4) Arrange for the collection of fees are prescribed by the policy
as established in this part.
(5) Maintain the FOIA case files in accordance with IGD Manual (IGDM)
5015.2, /3/ ''Records Management Program''.
(6) Recommend action to be taken on all appeals of fees, appeals of
fee waiver denials, and appeals of denials to access of records
requested, to the Appellate Authority.
(7) Review OIG publications to assure that those which meet the FOIA
''(a)(1)'' and ''(a)(2)'' requirements for publication in the Federal
Register are prepared in proper form and transmitted promptly for
publication in the Federal Register.
(8) Maintain copies of material required to be made available under
the ''(a)(2)'' provisions of the FOIA for examination and copying by the
public, and provide the required FOIA Reading Room for use by the public
in doing so.
(9) Establish a training program for OIG personnel who are involved
in preparing responsive records for release to the public under the
FOIA.
(10) Prepare the Annual Report on the FOIA for forwarding to DFOISR,
OASD(PA) as required by 32 CFR part 286.
(d) The AIGs and the Director, IG Regional Office-Europe will:
(1) Comply with, and assure compliance by all of their subcomponents
with, the policy established and the procedures set forth in this part.
(2) Appoint a Point of Contact (POC) to interact with the FOIA/PA
Division on all FOIA matters, and notify the FOIA/PA Division of any
changes in the appointment.
(3) Provide all records responsive to a request as directed by the
FOIA/PA Division.
(4) Recommend release/denial action to be taken, indicate applicable
exemptions, and provide appropriate rationales.
(e) The Freedom of Information Act Appellate Authority is designated
by the Inspector General and will:
(1) Determine the action to be taken on all appeals made by the
public of fees, fee waiver/reduction denials, and access denials in
accordance with chapter V, section 3, of DoD 5400.7-R (32 CFR part 286).
(2) Coordinate all appellate decisions with the Office of General
Counsel, Assistant General Counsel (Fiscal and Inspector General).
(f) The AIG for Administration and Information Management will:
(1) Prepare annually an index of IG publications, statements and
documents pertaining to any matter issued, adopted, or promulgated and
required to be made available to the public by publication or sale.
(2) Establish and implement any necessary procedures to effect
disciplinary action recommended by the Special Counsel of the Merit
Systems Protection Board in cases involving the arbitrary and capricious
withholding of information and records requested under the FOIA as
required by chapter V, section 4, of DoD 5400.7-R (32 CFR part 286).
/3/ See footnote 1 to 295.5(1).
32 CFR 295.7 Procedures.
(a) General. The provisions of the FOIA are reserved for persons
with private interests as opposed to Federal governmental agencies
seeking official information. The procedures for making requests,
whether as a private party or governmental representative, are set forth
below.
(b) Requests From Private Parties. (1) Members of the public may
make requests in writing for copies of records, or permission to examine
or copy records, directly to the FOIA/PA Division addressed to:
Assistant Director, FOIA/PA Division, OAIG for Investigations, 400 Army
Navy Drive, Arlington, VA 22202-2884.
(2) Requests must identify each record sought with sufficient
specificity to enable the custodian to locate the record with a
reasonable amount of effort. Requesters should provide such information
as where the record originated and by whom, its subject matter, its
approximate date or timeframe, which element of the OIG is likely to
have custodianship, or any other similar information that would assist
in locating the record. Requests must also contain a statement
regarding willingness to pay fees.
(3) A request from an individual who made an allegation of wrongdoing
to the IG, or any protected disclosure under the ''Whistleblower
Protection Acts,'' and who is seeking the results of any investigation
or inquiry conducted into the allegation, should identify him/herself as
the ''Whistleblower'' in the request. The request should indicate
whether he/she wishes to continue anonymity, should be notarized to
avoid the risk of losing the anonymity, and should contain a statement
regarding willingness to pay fees.
(4) A request for a personal record or investigative record
pertaining to the individual making the request, that is in a system of
records whether nonexempt or exempted from mandatory release under the
Privacy Act, must be notarized to avoid the risk of invasion of personal
privacy. In any such request, the individual may designate another
individual to act as his/her representative in making the request and in
receiving the records on his/her behalf; however, the authorization
must be in writing, specifically name the representative and kinds of
records authorized to be provided, and be notarized to avoid the risk of
invasion of personal privacy.
(5) A request for a record that was obtained from a non-U.S.
Government source, and that is subject to exemption (b)(4) under the
FOIA, will be released to the individual or firm making the request
without further exception, if:
(i) The individual or firm is clearly the submitter of the
information and/or is clearly acting on behalf of the submitter in
making the request.
(ii) The request contains a statement from a company official or
other representative of the submitter clearly capable of certifying that
the requester is acting on behalf of the submitter of the information in
making the request; i.e., a Vice-President certifies on his/her company
letterhead that XYZ Law Firm is acting on behalf of the company in
requesting copies of documents submitted to the government by the
company. A mere assertion by the requester that the requester is acting
on behalf of the submitter in making the request will not be honored, if
it cannot be readily verified through records available to the OIG.
(c) Requests From Government Officials. (1) Requests from officials
of State, or local Governments for OIG records will be considered the
same as any other requester, except where the request is for a personal
record in a system of records subject to the Privacy Act, in which case
the provisions of DoD 5400.11-R (32 CFR part 286a) apply.
(2) Requests from members of Congress, or their staffs, not seeking
records on behalf of a Congressional Committee, Subcommittee, or either
House sitting as a whole, will be considered the same as any other
requester. Requests from members of Congress, or their staffs, made on
behalf of their constituents will also be considered the same as any
other requester.
(3) Requests from officials of foreign governments shall be
considered the same as any other requester. Requests from officials of
foreign governments that do not invoke the FOIA shall be referred to
appropriate foreign disclosure channels and the requester so notified.
(d) Misdirected Requests. Requests misdirected to other OIG elements
will be forwarded promptly to the FOIA/PA Division. The statutory
period allowed for response to a request misdirected by the requester
shall not begin until the request is received in the FOIA/PA Division.
The OIG components and field elements receiving misdirected requests
should advise the requester that the request is being forwarded to the
office having the authority to act on and respond to the request.
(e) Privileged Release to Officials. (1) Subject to DoD 5200.1-R,
/4/ ''Information Security Program Regulation'', applicable to
classified information, DoD Directive 5400.11 (32 CFR part 286a),
applicable to personal privacy or other applicable law, records exempt
from release under appendix B of this part may be authenticated and
released, without requiring release to other FOIA requesters, in
accordance with OIG rules to U.S. Government officials requesting them
on behalf of Federal governmental bodies, whether legislative,
executive, administrative, or judicial, as follows:
(i) To a Committee or Subcommittee of Congress, or to either House
sitting as a whole in accordance with DoD Directive 5400.4, /5/
''Provision of Information to Congress,'' and this Part.
(ii) To the Federal courts whenever ordered by officers of the court
as necessary for the proper administration of justice
(iii) To other Federal agencies both executive and administrative as
determined by the IG or the IG's designee.
(2) On all such releases, the officials receiving records under the
above provisions will be informed in writing that the records are exempt
from public release under the FOIA and are privileged. The OIG
components will also advise the receiving officials of any special
handling instructions.
(f) Processing Requests. (1) Upon receipt in the FOIA/PA Division, a
request for records will be assigned a control number, logged, and
reviewed for adequacy and compliance with the procedures for submitting
requests outlined in 295.7(b).
(2) If the request does not meet the adequacy of description test,
contain a statement regarding fees, or contain a notarized
signature/authorization or a certification of submitter representation,
if applicable; the request will be acknowledged as having been received
and the requester will be notified of the defect and advised of the
means necessary to correct the defect and comply with the procedures.
If the requester does not correct the defect within the time allowed
(generally 30 calendar days) in the defect notice, the following actions
will be taken:
(i) Where the request does not meet the adequacy of description test,
the request will be administratively closed and the requester so
advised.
(ii) Where the request meets the adequacy of description test but
fails to comply with the remaining procedural requirements, and the time
allowed in the defect notice for compliance by the requester has
elapsed, the request will be processed to the extent possible consistent
with DoD 5400.7-R (32 CFR part 286) and this part.
(3) When it is determined that a request complies with all applicable
procedures, the necessary search and collection of responsive records
will be initiated through the Component(s) of the OIG likely to have
custodianship of the sought records.
(4) Where the appropriate OIG Component has determined that no record
responsive to the request exists, the POC for the OIG Component will so
advise the FOIA/PA Division within the due date assigned to the POC.
The requester will be notified in writing by the IDA, within 10 working
days from the date of receipt of the request, that no responsive records
exist; and, of the right and means by which to appeal the no record
response as an adverse determination.
(5) When it is determined that the records sought are part of an
ongoing audit, inspection, or investigation, the requester will be
advised of such (subject to the ''Exclusions'' under the FOIA identified
in appendix B, of this part). The requester will be informed of the
estimated timeframe for completion of the ongoing audit, inspection, or
investigation and asked if he/she wishes to withdraw the request and
resubmit it upon completion of the ongoing process. If the requester
chooses not to withdraw the request, the processing will be continued
and an appropriate release determination will be made, consistent with
the statutory provisions of the FOIA.
(6) When responsive records have been located, the POC for the OIG
element having the records will forward the records to the FOIA/PA
Division with a recommendation for release on SD Form 472, ''Request
Information Sheet,'' along with a completed DD Form 2086. ''Record of
Freedom of Information (FOI) Processing Cost.'' The records will be
reviewed and an initial determination to release or deny will be made.
(g) Initial Determinations. (1) The initial determination of whether
to make a record available upon request may be made only by the IDAs
designated by the IG in this part. Further, the number of IDAs
designated by the IG will be limited and based on a balance of the goals
of centralization of authority to promote uniform decisions and
decentralization to facilitate responding to each request within the
time limitations of the FOIA.
(2) Other than statutory denials, there are six other reasons for not
complying with a request for a record:
(i) The request is transferred to another DoD Component or Federal
agency.
(ii) The request is withdrawn by the requester.
(iii) The information requested is not a record within the meaning of
the FOIA and 295.3(a) of this part.
(iv) A record has not been described with sufficient particularity to
enable those that OIG to locate it by conducting a reasonable search.
(v) The requester has failed unreasonably to comply with the
procedural requirements, including the payment of fees, imposed by 32
CFR part 286 and this part.
(vi) The OIG has determined through knowledge of its files and
reasonable search efforts that it neither controls nor possesses the
requested record.
(3) Initial determinations to release or deny a record normally will
be made and the decision reported to the requester within 10 working
days, provided that the requester has complied with the preliminary
procedural requirements.
(4) When requests are denied in whole in part, the requester will be
informed in writing of the reasons for the denial, the identity of the
official making the denial, the right of appeal of the decision, and the
identity and address of the official to whom an appeal may be made.
(5) The explanation of the substantive basis for a denial will
include specific citation of the statutory exemption applied under
provisions of the FOIA. Mere reference to a classification or to a
''For Official Use Only'' marking will not constitute a basis for
invoking an exemption. When the initial denial is based in whole or in
part on a security classification, the explanation will include a
summary of the applicable criteria for the classification.
(h) Denial Tests. (1) To deny a requested record that is in the
possession and control of the OIG, it must be determined that the record
is included in one or more of the nine categories of records exempt from
mandatory disclosure as provided by the FOIA and outlined in chapter III
of DoD 5400.7-R (32 CFR part 286), and this part. No OIG record may be
otherwise withheld from the public, whether in whole or in part, except
as determined by the designated IDAs in accordance with FOIA exemptions.
(2) Although portions of some records may be denied, the remaining
reasonably segregable portions will be released to the requester when it
can be assumed that a skillful and knowledgeable person could not
reconstruct the excised information. When a record is denied in whole,
the IDA will advise the requester of that determination.
(i) Extension of Time. (1) In unusual circumstances, responsive
records may be located by the office having custodianship over the
record, but the records can not be made immediately available to the
FOIA/PA Division, or the FOIA/PA Division can not make them immediately
available to the requester. The unusual circumstances justifying the
delay will be the result of the following:
(i) The requested record is located in whole or in part at another
geographic location than that of the FOIA/PA Division.
(ii) The request requires the collection and/or evaluation of a
substantial number of records.
(iii) Consultation is required with other DoD Components or agencies
having substantial interest in the subject matter to determine whether
the records requested are exempt from disclosure in whole or in part
under provisions of the FOIA and this Part or should be released as a
matter of discretion.
(2) In any such event, efforts will be made to negotiate an informal
extension in time with the requester by the FOIA/PA Division. If the
requester chooses not to agree informally to an extension in time, a
written explanation of the reasons for delay will be provided to the
requester and the requester will be asked to await a substantive
response by an anticipated date.
(j) Fee Assessments. (1) When it is determined that the fees
assessable to a request undergoing final processing may exceed the limit
established by the requester, or may be in excess of $250, the
processing will be discontinued and the requester notified so that
he/she may advise of his/her desire to continue.
(2) If a ''good faith'' deposit is required, the requester will be
allowed a reasonable time (generally 30 calendar days) in which to
provide payment. If the requester fails to provide the ''good faith''
deposit within the time allowed, the request will be closed and the
requester so notified.
(3) In all other cases, the requester will be notified of any fees
due at the time the requested records are provided to the requester, and
allowed a reasonable time (generally 30 calendar days) in which to pay
the fees.
(4) If the requester fails to pay the fees in the time allowed, a
notice of nonpayment will be placed in the formal control system and no
further FOIA requests from the requester will be honored until the fees
have been paid.
(k) Records on Non-U.S. Government Sources. (1) When it is
determined that the records or data contained within the records
responsive to a request were obtained from a non-U.S. Government source
by the OIG, and the requester is not the submitter of the non-U.S.
Government record nor acting as the submitter's representative; and it
is further determined the source or submitter may have a valid objection
to release of the material, the submitter will be promptly notified of
the request and afforded a reasonable time (generally 30 calendar days)
to present any objections to the release.
(2) This procedure is required for those FOIA requests for data not
deemed clearly exempt from disclosure under exemption (b)(4). If, for
example, the record or data was submitted by the non-U.S. Government
source with the actual or presumptive knowledge of the source, and
established that it would be made available to the public upon request,
there is no requirement to notify the source.
(3) All objections will be evaluated. When a substantial issue has
been raised, the OIG may seek additional information and afford the
source and requester reasonable opportunities to present their arguments
on the legal and substantive issues involved prior to making a
determination.
(4) The OIG will not ordinarily exercise its discretionary authority
to release information clearly meeting the exemption (b)(4) criteria.
Further, the final decision to disclose information not deemed to
clearly meet exemption (b)(4) criteria will be made by an official
equivalent in rank or greater to the official who would make the
decision to withhold that data under a FOIA appeal.
(5) When the source or submitter advises of the intent to seek a
restraining order or to take court action to prevent release of the
data, the requester will be notified and action will not be taken on the
request until after the outcome of the court action is known. When the
requester brings court action to compel disclosure, the source shall be
promptly notified of this action.
(6) These procedures also apply to any non-U.S. Government record in
the possession and control of the OIG from multi-national organizations,
such as the North Atlantic Treaty Organization (NATO) and the North
American Aerospace Defense Command (NORAD), or foreign governments.
Coordination of such FOIA requests with foreign governments will be made
through the Department of State by the FOIA/PA Division.
(l) Coordination With Department of Justice. (1) Where the custodian
of an OIG element determines that records responsive to a FOIA request
are pertinent to pending or potential litigation involving the United
States, the FOIA/PA POC for the element shall promptly notify the
FOIA/PA Division so that the necessary coordination can be effected with
the Office of General Counsel (OGC) representative to the IG.
(2) The OGC representative shall effect all necessary coordination
with the United States Attorney and/or Department of Justice prior to
any release of such records.
(m) Procedures for Appeals. (1) A requester may appeal the initial
decision to deny access to requested records, in writing, to the
designated OIG Appellate Authority. The requester may also appeal a no
record determination, any fees assessed and the denial of a request for
waiver/reduction of fees. All such appeals should be made no later than
60 calendar days after the date of the initial denial letter or letter
of advisement regarding fees.
(2) All appeals should provide sufficient information and
justification upon which a determination may be made by the Appellate
Authority as to whether to grant or deny the appeal; or, in the event
of a ''no record determination'' sufficient information and/or
justification upon which additional record searches may be based. A
copy of the initial request and initial denial, and ''no record'' or fee
advisement letter should be included.
(3) The FOIA/PA Division administers the appeals for the Appellate
Authority. All appeals should be addressed to the Assistant Director,
FOIA/PA Division, OAIG for investigations, 400 Army Navy Drive,
Arlington, VA 22202-2884.
(4) Upon receipt in the FOIA/PA Division, the appeal will be assigned
a control number, logged, and prepared for provision to the Appellate
Authority for a final determination. Receipt will be acknowledged in
writing within 10 working days and the requester advised of any
additional time needed due to the unusual circumstances described in
295.7(i) of this part.
(5) If additional time is required, the final decision may be delayed
for the number of working days (not to exceed 10) that were not used as
additional time for responding to the initial request. If no additional
time is required, the requester will be advised in writing of the final
decision within 20 working days.
(6) If the appeal is approved in part or in whole, or responsive
records located upon additional search, the requester will be informed
and promptly provided any records determined to be releasable.
(7) If ''no records'' can be located in response to the appeal, the
requester will be informed that no records were located, of the identity
of the official making the final determination, and of the right to
judicial review.
(8) If the appeal of the initial denial of responsive records is
denied in part or in whole, the requester will be advised of the
applicable statutory exemption or exemptions invoked under the
provisions of the FOIA for the denial, the identity of the official
making the final determination, that meaningful portions of any denied
records were not reasonably segregable, and of the right to judicial
review.
(9) When the final refusal is based in whole or in part on a security
classification, the explanation shall include a determination that the
record meets the cited criteria and rationale of the governing Executive
Order, and that this determination is based on a declassification
review, with an explanation of how that review confirmed the continuing
validity of the security classification.
(10) Final refusal involving issues not previously resolved or that
the OIG knows to be inconsistent with rulings of other DoD components
ordinarily will not be made before consultation with the Assistant
General Counsel (Fiscal and Inspector General), OGC, DoD.
(11) Tentative decisions to deny records that raise new or
significant legal issues of potential significance to other agencies of
the Government shall be provided to the Department of Justice, Attn:
Office of Legal Policy, Office of Information and Policy, Washington, DC
20530 after coordination with the Assistant General Counsel (Fiscal and
Inspector General), OGC, DoD.
/4/ Copies may be obtained, at cost, from the National Technical
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
/5/ See footnote 4 to 295.7(e).
32 CFR 295.8 Annual report.
The FOIA Annual Report, assigned Report Control System DD-PA (A)
1365, will be prepared by the FOIA/PA Division for the preceding
calendar year and submitted to the Assistant Secretary of Defense (PA)
on or before February 1 of each year. The report will be compiled and
formatted in accordance with chapter VII, DoD 5400.7-R (32 CFR part
286).
32 CFR 295.9 Organization and mission.
(a) The organization of the OIG includes the Headquarters located in
Arlington, Virginia, consisting of the Inspector General, Deputy
Inspector General, the Offices of the Assistant Inspector General (AIG)
for Analysis and Followup, the AIG for Audit Policy and Oversight, the
AIG for Auditing with its subordinate field elements located throughout
the Continental United States (CONUS), the AIG for investigations with
its field elements located throughout the CONUS and Europe, the AIG for
Administration and Information Management, the AIG for Departmental
Inquiries, the AIG for Inspections, and the Director, IG Regional
Office-Europe (IGROE) located in Wiesbaden, Germany. The IGROE has
representatives assigned from the Offices of the AIG for Investigations,
the AIG for Inspections, the AIG for Auditing and the AIG for
Departmental Inquiries, who fulfill the missions of their respective
components.
(b) The ''Organization and Staff Listing'' (Inspector General,
Defense List (IGDL) 1400.7), /6/ provides organization charts for the
OIG elements and mailing addresses of all OIG operating locations and
will be made available to the public upon written request.
(c) As an independent and objective office in the Department of
Defense (DoD) the mission of the OIG is to:
(1) Conduct, supervise, monitor, and initiate audits, inspections and
investigations relating to programs and operations of the DoD.
(2) Provide leadership and coordination and recommend policies for
activities designed to promote economy, efficiency, and effectiveness in
the administration of, and to prevent and detect fraud and abuse in,
such programs and operations.
(3) Provide a means for keeping the Secretary of Defense and the
Congress fully and currently informed about problems and deficiencies
relating to the administration of such programs and operations and the
necessity for and progress of corrective action.
(4) Further information regarding the responsibilities and functions
of the IG is encompassed in Public Law 95-452, the ''Inspector General
Act of 1978,'' as amended and 32 CFR part 373.
/6/ See footnote 1 to 295.5(i).
32 CFR 295.9 Pt. 295, App. A
32 CFR 295.9 Appendix A to Part 295 -- For Official Use Only (FOUO)
Information that has not been given a security classification
pursuant to the criteria of an Executive Order, but which may be
withheld from the public for one or more of the reasons cited in FOIA
exemptions (b)(2) through (b)(9) shall be considered as being for
official use only. No other material shall be considered or marked
''For Official Use Only'' (FOUO), and FOUO is not authorized as an
anemic form of classification to protect national security interests.
The prior application of FOUO markings is not a conclusive basis for
withholding a record that is requested under the FOIA. When such a
record is requested, the information in it shall be evaluated to
determine whether, under current circumstances, FOIA exemptions apply in
withholding the record or portions of it. If any exemption or
exemptions apply or applies, it may nonetheless be released when it is
determined that no governmental interest will be jeopardized by its
release.
Records such as notes, working papers, and drafts retained as
historical evidence of actions enjoy no special status apart from the
exemptions under the FOIA.
The marking of records at the time of their creation provides notice
of FOUO content and facilitates review when a record is requested under
the FOIA. Records requested under the FOIA that do not bear such
markings, shall not be assumed to be releasable without examination for
the presence of information that requires continued protection and
qualifies as exempt from public release.
Information in a technical document that requires a distribution
statement pursuant to DoD Directive 5230.24, /1/ ''Distribution
Statements on Technical Documents'', shall bear that statement and may
be marked FOUO, as appropriate.
(1) An unclassified document containing FOUO information shall be
marked ''For Official Use Only'' at the bottom on the outside of the
front cover (if any), on each page continuing FOUO information, and on
the outside of the back cover (if any).
(2) Within a classified document, an individual page that contains
both FOUO and classified information shall be marked at the top and
bottom with the highest security classification of information appearing
on the page.
(3) Within a classified document, an individual page that contains
FOUO information but no classified information shall be marked ''For
Official Use Only'' at the bottom of the page.
(4) Other records, such as, photographs, films, tapes, or slides,
shall be marked ''For Official Use Only'' or ''FOUO'' in a manner that
ensures that a recipient or viewer is aware of the status of the
information therein.
(5) The FOUO material transmitted outside the Department of Defense
requires application of an expanded marking to explain the significance
of the FOUO marking. This may be accomplished by typing or stamping the
following statement on the record prior to transfer:
This document contains information
EXEMPT FROM MANDATORY DISCLOSURE
under the FOIA. Exemptions . . . . . apply
Until FOUO status is terminated, the release and transmission
instructions that follow apply:
(1) The FOUO information may be disseminated within DoD Components
and between officials of DoD Components and DoD contractors,
consultants, and grantees to conduct official business for the
Department of Defense. Recipients shall be made aware of the status of
such information, and transmission shall be by means that preclude
unauthorized public disclosure. Transmittal documents shall call
attention to the presence of FOUO attachments.
(2) The DoD holders of FOUO information are authorized to convey such
information to officials in other departments and agencies of the
executive and judicial branches to fulfill a Government function, except
to the extent prohibited by the Privacy Act. Records thus transmitted
shall be marked ''For Official Use Only'', and the recipient shall be
advised that the information has been exempted from public disclosure,
pursuant to the FOIA, and that special handling instructions do or do
not apply.
(3) Release of FOUO information to Members of Congress is governed by
DoD Directive 5400.4, /2/ ''Provision of Information to Congress''.
Release to the GAO is governed by DoD Directive 7650.1, /3/ ''General
Accounting Office Access to Records''. Records released to the Congress
or GAO should be reviewed to determine whether the information warrants
FOUO status. If not, prior FOUO markings shall be removed or effaced.
If withholding criteria are met, the records shall be marked FOUO and
the recipient provided an explanation for such exemption and marking.
Alternatively, the recipient may be requested, without marking the
record, to protect against its public disclosure for reasons that are
explained.
Records containing FOUO information shall be transported in a manner
that precludes disclosure of the contents. When not commingled with
classified information, FOUO information may be sent via first-class
mail or parcel post. Bulky shipments, such as distributions of FOUO
Directives or testing materials, that otherwise qualify under postal
regulations may be sent by fourth-class mail.
Each part of electrically transmitted messages containing FOUO
information shall be marked appropriately. Unclassified messages
containing FOUO information shall contain the abbreviated ''FOUO''
before the beginning of the text. Such messages shall be transmitted in
accordance with communications security procedures in ACP-121 (United
States Supplement 1) for FOUO information.
During normal working hours, records determined to be FOUO shall be
placed in an out-of-sight location if the work area is accessible to
non-governmental personnel.
At the close of business, FOUO records shall be stored so as to
preclude unauthorized access. Filing such material with other
unclassified records in unlocked files or desks, etc., is adequate when
normal U.S. Government or government-contractor internal building
security is provided during nonduty hours. When such internal security
control is not exercised, locked buildings or rooms normally provide
adequate after-hours protection. If such protection is not considered
adequate, FOUO material shall be stored in locked receptacles such as
file cabinets, desks, or bookcases. FOUO records that are subject to
the provisions of Public Law 86-36, National Security Agency Act shall
meet the safeguards outlined for that group of records.
The originator or other component authority, e.g., initial denial and
appellate authorities, shall terminate ''For Official Use Only''
markings or status when circumstances indicate that the information no
longer requires protection from public disclosure. When FOUO status is
terminated, all known holders shall be notified, to the extent
practical. Upon notification, holders shall efface or remove the ''For
Official Use Only'' markings, but records in file or storage need not be
retrieved solely for that purpose.
(1) Nonrecord copies of FOUO materials may be destroyed by tearing
each copy into pieces to preclude reconstructing, and placing them in
regular trash containers. When local circumstances or experience
indicates that this destruction method is not sufficiently protective of
FOUO information, local authorities may direct other methods but give
due consideration to the additional expense balanced against the degree
of sensitivity of the type of FOUO information contained in the records.
(2) Record copies of FOUO documents shall be disposed of in
accordance with the disposal standards established under 44 U.S.C.
Chapter 33, as implemented by Inspector General Defense Manual (IGDM)
5015.2, /4/ ''Records Management Program''.
The unauthorized disclosure of FOUO records does not constitute an
unauthorized disclosure of DoD information classified for security
purposes. Appropriate administrative action shall be taken, however, to
fix responsibility for unauthorized disclosure whenever feasible, and
appropriate disciplinary action shall be taken against those
responsible. Unauthorized disclosure of FOUO information that is
protected by the Privacy Act may also result in civil and criminal
sanctions against responsible persons. The DoD Component that
originated the FOUO information shall be informed of its unauthorized
disclosure.
/1/ Copies may be obtained, at cost, from the National Technical
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
/2/ See footnote 1 to section I.E. of this appendix.
/3/ See footnote 1 to section I.E. of this appendix.
/4/ Copies may be obtained, if needed, from the Information and
Operations Support Directorate, Publications Management Branch, room
420, 400 Army Navy Drive, Arlington, VA 22202-2884.
32 CFR 295.9 Pt. 295, App. B
32 CFR 295.9 Appendix B to Part 295 -- Exemptions
The exemptions listed apply to categories of records that may be
withheld in whole or in part from public disclosure, unless otherwise
prescribed by law. A discretionary release (see also 295.5(e) of this
part) to one requester may preclude the withholding of the same record
under a FOIA exemption if the record is subsequently requested by
someone else. In applying the exemptions, the identity of the requester
and the purpose for which the record is sought are irrelevant with the
exception that an exemption may not be invoked where the particular
interest to be protected is the requester's interest. The examples
provided of the types of records that may be exempted from release are
not at all inclusive.
Those properly and currently classified in the interest of national
defense or foreign policy, as specifically authorized under the criteria
established by executive order and implemented by regulations, such as
DoD 5200.1-R /1/ (32 CFR part 159a), ''Information Security Program
Regulation''. Although material is not classified at the time of the
FOIA request, a classification review may be undertaken to determine
whether the information should be classified. The procedures in DoD
5200.1-R, section 2-204f, apply, In addition, this exemption shall be
invoked when the following situations are apparent:
(1) The fact of the existence or nonexistence of a record would
itself reveal classified information. In this situation, the OIG shall
neither confirm nor deny the existence or nonexistence of the record
being requested. A ''refusal to confirm or deny'' response will be used
consistently, not only when a record exists, but also when a record does
not exist. Otherwise, the pattern of using a ''no record'' response
when a record does not exist will itself disclose national security
information.
(2) Information that concerns one or more of the classification
categories established by executive order and DoD 5200.1-R (32 CFR part
159a) shall be classified if its unauthorized disclosure, either by
itself or in the context of other information, reasonably could be
expected to cause damage to the national security.
Those related solely to the internal personnel rules and practices of
DoD or the OIG. This exemption has two profiles, high (b)(2) and low
(b)(2).
(1) Records qualifying under high (b)(2) are those containing or
constituting statutes, rules, regulations, orders, manuals, directives,
and instructions the release of which would allow circumvention of these
records, thereby substantially hindering the effective performance of a
significant function of the DoD or OIG. Examples include:
(a) Those operating rules, guidelines, and manuals, for DoD and OIG
investigators, inspectors, auditors, or examiners that must remain
privileged in order for the OIG to fulfill a legal requirement.
(b) Personnel and other administrative matters, such as examination
questions and answers used in training courses or in the determination
of the qualification of candidates for employment, entrance on duty,
advancement, or promotion.
(c) Computer software meeting the standards of 295.3(c) of this
part, the release of which would allow circumvention of a statute or DoD
rules, regulations, orders, manuals, directives, or instructions. In
this situation, the use of the software must be closely examined to
ensure a circumvention possibility exists.
(2) Records qualifying under the low (b)(2) profile are those that
are trivial and housekeeping in nature for which there is no legitimate
public interest or benefit to be gained by release, and it would
constitute an administrative burden to process the request in order to
disclose the records. Examples include: rules of personnel's use of
parking facilities or regulation of lunch hours, statements of policy as
to sick leave, and trivial administrative data such as file numbers,
mail routing stamps, initials, data processing notations, brief
references to previous communications, and other like administrative
markings.
Those concerning matters that a statute specifically exempts from
disclosure by terms that permit no discretion on the issue, or in
accordance with criteria established by that statute for withholding or
referring to particular types of matters to be withheld. Examples of
statutes are:
(1) National Security Agency Act information exemption, Public Law
86-36, section 6.
(2) Patent Secrecy, 35 U.S.C. 181-188. Any records containing
information relating to inventions that are the subject of patent
applications on which Patent Secrecy Orders have been issued.
(3) Restricted Data and Formerly Restricted Data, 42 U.S.C. 2162.
(4) Communication intelligence, 18 U.S.C. 798.
(5) Authority to Withhold from Public Disclosure Certain Technical
Data, 10 U.S.C. 130, and 32 CFR part 250.
(6) Confidentiality of Medical Quality Records: Qualified Immunity
Participants, 10 U.S.C. 1102.
(7) Physical Protection of Special Nuclear Material: Limitation on
Dissemination of Unclassified Information, 10 U.S.C. 128.
(8) Protection of Intelligence Sources and Methods, 50 U.S.C.
403(d)(3).
Those containing trade secrets or commercial or financial information
that the OIG receives from a person or organization outside the
Government with the understanding that the information or record will be
retained on a privileged or confidential basis in accordance with the
customary handling of such records. Records within the exemption must
contain trade secrets, or commercial or financial records, the
disclosure of which is likely to cause substantial harm to the
competitive position of the source providing the information; impair
the Government's ability to obtain necessary information in the future;
or impair some other legitimate Government interest. Examples include:
(1) Commercial or financial information received in confidence in
connection with loans, bids, contracts, or proposals, as well as other
information received in confidence or privileged, such as trade secrets,
inventions, discoveries, or other proprietary data. See also 32 CFR
part 286h, ''Release of Acquisition-Related Information''.
(2) Statistical data and commercial or financial information
concerning contract performance, income, profits, losses, and
expenditures, if offered and received in confidence from a contractor or
potential contractor.
(3) Personal statements given in the course of inspections,
investigations, or audits, when such statements are received in
confidence from the individual and retained in confidence because they
reveal trade secrets or commercial or financial information normally
considered confidential or privileged.
(4) Financial data provided in confidence by private employers in
connection with locality wage surveys that are used to fix and adjust
pay schedules applicable to the prevailing wage rate of employees within
the Department of Defense.
(5) Scientific and manufacturing processes or developments concerning
technical or scientific data or other information submitted with an
application for a research grant, or with a report while research is in
progress.
(6) Technical or scientific data developed by a contractor or
subcontractor exclusively at private expense, and technical or
scientific data developed in part with Federal funds and in part at
private expense, wherein the contractor or subcontractor has retained
legitimate proprietary interest in such data in accordance with title
10, U.S.C. 2320-2321 and DoD Federal Acquisition Regulation Supplement
(DFARS), subpart 27.4 (see section C.(5) of this appendix).
(7) Computer software meeting the conditions of 295.3(c), which is
copyrighted under the Copyright Act of 1976 (17 U.S.C. 106), the
disclosure of which would have an adverse impact on the potential market
value of a copyrighted work.
Except as provided in subsections (2) through (5), below, internal
advice, recommendations, and subjective evaluations, as contrasted with
factual matters, that are reflected in records pertaining to the
decision-making process of an agency, whether within or among agencies
(as defined in 5 U.S.C. 552(e)), DoD Components or OIG components. Also
exempted are records pertaining to attorney-client privilege and the
attorney work-product privilege.
(1) Examples include:
(a) The nonfactual portions of staff papers, to include after-action
reports and situation reports containing staff evaluations, advice,
opinions, or suggestions.
(b) Advice, suggestions, or evaluations prepared on behalf of the
Department of Defense by individual consultants or by boards,
committees, councils, groups, panels, conferences, commissions, task
forces, or other similar groups that are formed for the purpose of
obtaining advice and recommendations.
(c) Those non-factual portions or evaluations by DoD or OIG
Components personnel of contractors and their products.
(d) Information of a speculative, tentative, or evaluative nature of
such matters as proposed plans to procure, lease or otherwise acquire
and dispose of materials, real estate, facilities or functions, when
such information would provide undue or unfair competitive advantage to
private personal interests or would impede legitimate Government
functions.
(e) Trade secret or other confidential research development, or
commercial information owned by the Government, where premature release
is likely to affect the Government's negotiating position or other
commercial interests.
(f) Records that are exchanged among agency personnel and within and
among DoD Components or agencies as part of the preparation for
anticipated administrative proceeding by an agency or litigation before
any Federal, state, or military court, as well as records that qualify
for the attorney-client privilege.
(g) Those portions of official reports of inspection, reports of the
Inspector General, audits, investigations, or surveys pertaining to
safety, security, or the internal management, administration, or
operation of one or more DoD Components, when these records have
traditionally been treated by the courts as privileged against
disclosure in litigation.
(h) Computer software meeting the standards of 295.3(c), which is
deliberative in nature, the disclosure of which would inhibit or chill
the decision-making process. In this situation, the use of software
must be closely examined to ensure its deliberative nature.
(i) Planning, programming, and budgetary information which is
involved in the defense planning and resource allocation process.
(2) If any such intra or interagency record or reasonably segregable
portion of such record hypothetically would be made available routinely
through the ''discovery process'' in the course of litigation with the
agency, i.e., the process by which litigants obtain information from
each other that is relevant to the issues in a trial or hearing, then it
should not be withheld from the general public even though discovery has
not been sought in actual litigation. If, however, the information
hypothetically would only be made available through the discovery
process by special order of the court based on the particular needs of a
litigant, balanced against the interests of the agency in maintaining
its confidentiality, then the record or document need not be made
available under this part. Consult with legal counsel to determine
whether exemption 5 material would be routinely made available through
the discovery process.
(3) Intra or interagency memoranda or letters that are factual, or
those reasonably segregable portions that are factual, are routinely
made available through ''discovery,'' and shall be made available to a
requester, unless the factual material is otherwise exempt from release,
inextricably intertwined with the exempt information, so fragmented as
to be uninformative, or so redundant of information already available to
the requester as to provide no new substantive information.
(4) A direction or order from a superior to a subordinate, though
contained in an internal communication, generally cannot be withheld
from a requester if it constitutes policy guidance or a decision, as
distinguished from a discussion of preliminary matters or a request for
information or advice that would compromise the decision-making process.
(5) An internal communication concerning a decision that subsequently
has been made a matter of public record must be made available to a
requester when the rationale for the decision is expressly adopted or
incorporated by reference in the record containing the decision.
Information in personnel and medical files, as well as similar
personal information in other files, that, if disclosed to the requester
would result in a clearly unwarranted invasion of personal privacy.
Release of information about an individual contained in a Privacy Act
System of records would constitute a clearly unwarranted invasion of
privacy is prohibited, and could subject the releaser to civil and
criminal penalties.
(1) Examples of other files containing personal information similar
to that contained in personnel and medical files include:
(a) Those compiled to evaluate or adjudicate the suitability of
candidates for civilian employment or membership in the Armed Forces,
and the eligibility of individuals (civilian, military, or contractor
employees) for security clearances, or for access to particularly
sensitive classified information.
(b) Files containing reports, records, and other material pertaining
to personnel matters in which administrative action, including
disciplinary action, may be taken.
(2) Home addresses are normally not releasable without the consent of
the individuals concerned. In addition, the release of lists of DoD
military and civilian personnel's names and duty addresses who are
assigned to units that are sensitive, routinely deployable, or stationed
in foreign territories can constitute a clearly unwarranted invasion of
personal privacy.
(a) Privacy interest. A privacy interest may exist in personal
information even though the information has been disclosed at some place
and time. If personal information is not freely available from sources
other than the Federal Government, a privacy interest exists in its
nondisclosure. The fact that the Federal Government expended funds to
prepare, index and maintain records on personal information, and the
fact that a requester invokes FOIA to obtain these records indicates the
information is not freely available.
(b) Published telephone directories, organizational charts, rosters
and similar materials for personnel assigned to units that are
sensitive, routinely deployable, or stationed in foreign territories are
withholdable under this exemption.
(3) This exemption shall not be used in an attempt to protect the
privacy of a deceased person, but it may be used to protect the privacy
of the deceased person's family.
(4) Individuals' personnel, medical, or similar file may be withheld
from them or their designated legal representative only to the extent
consistent with DoD Directive 5400.11 (32 CFR part 286a).
(5) A clearly unwarranted invasion of the privacy of the persons
identified in a personnel, medical or similar record may constitute a
basis for deleting those reasonably segregable portions of that record,
even when providing it to the subject of the record. When withholding
personal information from the subject of the record, legal counsel
should first be consulted.
G. Exemption (b)(7)
Records or information compiled for law enforcement purposes; i.e.,
civil, criminal, or military law, including the implementation of
executive orders or regulations issued pursuant to law. This exemption
may be invoked to prevent disclosure of documents not originally created
for, but later gathered for law enforcement purposes.
(1) This exemption applies, however, only to the extent that
production of such law enforcement records or information could result
in the following:
(a) Could reasonably be expected to interfere with enforcement
proceedings.
(b) Would deprive a person of the right to a fair trial or to an
impartial adjudication.
(c) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy of a living person, including surviving
family members of an individual identified in such a record.
(i) This exemption also applies when the fact of the existence or
nonexistence of a responsive record would itself reveal personally
private information and the public interest in disclosure is not
sufficient to outweigh the privacy interest. In this situation, the OIG
shall neither confirm nor deny the existence or nonexistence of the
record being requested.
(ii) A ''refusal to confirm or deny'' response must be used
consistently, not only when a record exists, but also when a record does
not exist. Otherwise, the pattern of using a ''no records'' response
when a record does not exist and a ''refusal to confirm or deny'' when a
record does exist will itself disclose personally private information.
(iii) Refusal to confirm or deny should not be used when (1) the
person whose personal privacy is in jeopardy has provided the requester
with a waiver of his or her privacy rights; or (2) the person whose
personal privacy is in jeopardy is deceased, and the OIG is aware of
that fact.
(d) Could reasonably be expected to disclose the identity of a
confidential source, including a source within the Department of
Defense, a State, local, or foreign agency or authority, or any private
institution which furnishes the information on a confidential basis.
(e) Could disclose information furnished from a confidential source
and obtained by a criminal law enforcement authority in a criminal
investigation or by an agency conducting a lawful national security
intelligence investigation.
(f) Would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law.
(g) Could reasonably be expected to endanger the life or physical
safety of any individual.
(2) Examples include:
(a) Statements of witnesses and other material developed during the
course of the investigation and all materials prepared in connection
with related government litigation or adjudicative proceedings.
(b) The identity of firms or individuals being investigated for
alleged irregularities involving contracting with Department of Defense
when no indictment has been obtained nor any civil action filed against
them by the United States.
(c) Information obtained in confidence, expressed or implied, in the
course of a criminal investigation by a criminal law enforcement agency
or office within a DoD Component, or a lawful national security
intelligence investigation conducted by an authorized agency or office
within a DoD Component. National security intelligence investigations
include background security investigations and those investigations
conducted for the purpose of obtaining affirmative or
counterintelligence information.
(3) The right of individual litigants to investigative records
currently available by law (such as, the Jencks Act, 18 U.S.C. 3500) is
not diminished.
(4) When the subject of an investigative record is the requester of
the record, it may be withheld only as authorized by DoD Directive
5400.11 (32 CFR part 286a).
(5) Exclusions. Excluded from the above exemptions are the following
two situations as applicable to the Department of Defense and the OIG:
(a) Whenever a request is made which involves access to records or
information compiled for law enforcement purposes, and the investigation
or proceeding involves possible violation of criminal law where there is
reason to believe that the subject of the investigation or proceeding is
unaware of its pendency, and the disclosure of the existence of the
records could reasonably be expected to interfere with enforcement
proceedings, the OIG may, during only such times as that circumstance
continues, treat the records or information as not subject to the FOIA.
In such situation, the response to the requesters will state that no
records were found.
(b) Whenever informant records maintained by a criminal law
enforcement organization within the OIG under the informant's name or
personal identifier are requested by a third party using the informant's
name or personal identifier, the OIG may treat the records as not
subject to the FOIA, unless the informant's status as an informant has
been officially confirmed. If it is determined that the records are
subject to exemption (b)(7), the response to the requester will state
that no records were found.
Those contained in or related to examination, operation or condition
reports prepared by, on behalf of, or for the use of any agency
responsible for the regulation or supervision of financial institutions.
Those containing geological and geophysical information and data
(including maps) concerning wells.
/1/ Copies may be obtained, at cost, from the National Technical
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
32 CFR 295.9 PART 298 -- DEFENSE INVESTIGATIVE SERVICE, FREEDOM OF
INFORMATION PRACTICES
Sec.
298.1 Purpose.
298.2 Organization.
298.3 Records maintained by DIS.
298.4 Procedure for release of DIS records.
298.5 Information requirements.
Authority: 5 U.S.C. 552, as amended by Pub. L. 93-502.
Source: 53 FR 36968, Sept. 23, 1988, unless otherwise noted.
Redesignated at 56 FR 58180, Nov. 16, 1991.
32 CFR 298.1 Purpose.
The purpose of this part is to establish the policy and set forth
procedures for the public to obtain information from the Defense
Investigative Service (DIS).
32 CFR 298.2 Organization.
(a) The organization of DIS includes a DIS Headquarters located in
Washington, DC, eight Regions with approximately 400 subordinate
operating locations throughout the Continental United States (CONUS),
Alaska, Hawaii, and Puerto Rico; the Defense Industrial Security
Clearance Office (DISCO) Columbus, Ohio; the Personnel Investigations
Center (PIC) Baltimore, Maryland; the Office of Industrial Security,
International Europe (OISI-E), located in Brussels, Belgium with a
subordinate office in Mannheim, West Germany; and the Office of
Industrial Security International Far East (OISI-FE) located in
Yokohama, Japan with a subordinate office in Seoul, Korea.
(b) A copy of the DIS Mailing List showing the addresses of all
offices, is available to the public upon request, and may be obtained by
following the procedures outlined in 298.4.
(53 FR 36968, Sept. 23, 1988. Redesignated and amended at 56 FR
58180, Nov. 16, 1991)
Editorial Note: At 56 FR 58180, Nov. 16, 1991, 298.2(b) was
amended by changing ''298b.4'' to ''298.4''. However, the designation
was incorrectly published as ''298.b''. The agency will publish a
correction at a later date.
32 CFR 298.3 Records maintained by DIS.
It is the policy of DIS to make publicly available all information
which may be released under the Freedom of Information Act (FOIA), with
due regard to protecting individual privacy. DIS maintains the
following records which may be of interest to the public.
(a) DIS maintains the Defense Central Index of Investigations (DCII),
which contains references to investigative records created and held by
DoD Components. The records indexed are primarily those prepared by the
investigative agencies of the DoD, covering criminal, fraud,
counterintelligence, and personnel security information. This index
also includes adjudication determinations made by the Army, Air Force,
and the Directorate for Industrial Security Clearance Review, Defense
Legal Services Agency. Information in the DCII is not usually available
to the general public, since general release would violate the privacy
of individuals whose names are indexed therein.
(b) Records required by 32 CFR part 361, including personnel security
and law enforcement investigative records and industrial security
records.
(c) Publications listed in DIS Regulation 00-1, ''Indexes of Defense
Investigative Service Publications.'' While this regulation will be
provided for the convenience of possible users of the materials, such
release does not constitute a determination that all or any of the
publications listed affect the public or have been cleared for public
release.
32 CFR 298.4 Procedure for release of DIS records.
The following procedures are applicable to requests for records by
the public.
(a) All requests will be submitted in writing and addressed to:
Defense Investigative Service, Office of Information and Public Affairs
(V0020), 1900 Half Street SW., Washington, DC 20324-1700. Requests
directed to Headquarters or field elements will be forwarded to the
Office of Information and Public Affairs.
(b) All requests shall contain the following information:
(1) As complete an identification as possible of the desired
material, including to the extent known, the title, description, and
date. Reference does not authorize ''fishing expeditions.'' When DIS
receives a request which is not ''reasonably described,'' (see 32 CFR
part 286) the requester will be notified of the defect.
(2) The request must contain the first name, middle name or initial,
surname, date and place of birth, social security number of the
individual concerned, and, if applicable, military service number with
respect to material concerning investigations of an individual.
(3) A statement as to whether the requester wishes to inspect the
record or obtain a copy of it.
(4) A statement that all cost for search, duplication and review (in
the case of commercial requester), will be borne by the requester even
if no records, or no releasable records, are found, if appropriate.
(5) The full address (including ZIP code) of the requester.
(c) A notarized request by an individual requesting investigative or
other personal records may be required to avoid the risk of invasion of
privacy. Requesters will be notified and furnished appropriate forms if
this requirement is deemed necessary.
(d) When a request is incomplete or fails to include all of the
information required, the requester will be contacted for additional
information prior to beginning release procedures.
(e) DIS will dispatch responses to requests within 10 working days
after receipt by the Office of Information and Public Affairs, unless an
extension is required and the requester is notified in writing.
(f) When the release of information has been approved, a statement of
estimated costs computed in accordance with the DoD Fee Schedule (32 CFR
part 286), or a statement waiving the fee, will be included in the
notification of approval. Records approved for release will generally
be mailed immediately following the receipt of fees. Fees may be waived
or reduced in accordance with paragraph 6-103, DoD 5400.7-R (32 CFR part
286). Remittances should be in the form of a personal check, bank
draft, or postal money order. Remittances are to be made payable to the
Treasurer of the United States. Certified documents may be requested
for an official government or legal function, and will be provided at a
rate established by DoD 5400.7-R (32 CFR part 286) for each
authentication.
(g) When requests are denied in whole or in part, the requester will
be advised of the identity of the official making the denial, the reason
for the denial, the right of appeal of the decision, and the identity of
the person to whom an appeal may be addressed.
(h) Facilities for the review or reproduction of records following
approval of the request or appeal are available at the Defense
Investigative Service, Office of Information and Public Affairs, Room
5222, 1900 Half Street, SW., Washington, DC 20324. All other
transactions will be conducted by mail.
(i) Appeal of Denial of DIS Records and Information:
(1) All appeals will be submitted in writing and addressed to:
Director, Defense Investigative Service (V0000), 1900 Half Street, SW.,
Washington, DC 20324-1700.
(2) All appeals will contain at least the same identification of the
records requested as the original request, and a copy of the letter
denying the request, if available.
(3) All appeals will be reviewed by the Director, DIS or the Special
Assistant to the Director, DIS. Responses to appeals will be dispatched
within 20 working days after receipt, unless an extension is required
and the appellant is notified. When a request is approved on appeal,
the procedures set forth in 298.4(f) will be followed.
(53 FR 36968, Sept. 23, 1988. Redesignated and amended at 56 FR
58180, Nov. 16, 1991)
32 CFR 298.5 Information requirements.
The Office of Information and Public Affairs will be responsible for
preparation of the annual ''Freedom of Information Act Statistical
Reports'' and the triannual ''Freedom of Information Act Cost Reports.''
Both reports have been assigned report control symbol PA (TRA & AN)
1365. No forms or publications are required by this part.
32 CFR 298.5 PART 299 -- NATIONAL SECURITY AGENCY (NSA) FREEDOM OF
INFORMATION ACT PROGRAM
Sec.
299.1 Purpose.
299.2 Organization and requests for information.
299.3 Indexes.
299.4 Procedures for request of records.
299.5 Appeals.
299.6 Effective date.
Authority: 5 U.S.C. 552.
32 CFR 299.1 Purpose.
Pursuant to the requirements of the Freedom of Information Act as
amended (5 U.S.C. 552), the following rules of procedure are established
with respect to public access to the records of the National Security
Agency/Central Security Service.
(56 FR 15047, Apr. 15, 1991)
32 CFR 299.2 Organization and requests for information.
The Headquarters of the National Security Agency/Central Security
Service is located at Fort George G. Meade, Md. Requests for
information and decisions and other submittals may be addressed to the
Chief, Office of Policy, National Security Agency/Central Security
Service, Fort George G. Meade, Md. 20755.
(40 FR 7300, Feb. 19, 1975, as amended at 46 FR 26482, May 13, 1981)
32 CFR 299.3 Indexes.
The NSA/CSS does not originate final orders, opinions, statements of
policy, interpretations, staff manuals or instructions that affect a
member of the public of the type covered by the indexing requirement of
5 U.S.C. 552(a)(2) or required to be published for the guidance of the
public under 5 U.S.C. 552(a)(1). The Director, NSA/Chief, CSS, has
therefore determined, pursuant to pertinent statutory and Executive
order requirements, that it is unnecessary and impracticable to publish
an index of the type required by 5 U.S.C. 552 as amended by Pub. L.
93-502.
(40 FR 7300, Feb. 19, 1975)
32 CFR 299.4 Procedures for request of records.
(a) Requests. Requests for access to records of the National
Security Agency/Central Security Service may be filed by mail addressed
to the Chief, Office of Policy, National Security Agency/Central
Security Service, Fort George G. Meade, Md. 20755. Requests need not
be made on any special form but may be by letter or other written
statement identifying the request as a Freedom of Information Act
request and setting forth sufficient information reasonably describing
the requested record.
(b) Determination and notification. When the requested record has
been located and identified, the Information Officer shall determine
whether the record is one which, consistent with statutory requirements,
Executive orders and appropriate directives, may be released or should
be exempted under the provisions of 5 U.S.C. 552. The Chief, Office of
Policy, shall notify the requester of his determination within 10
working days of his receipt of the request.
(c) Extension of response time. Where the requested record cannot be
located within the initial response period of 10 days because of unusual
circumstances, the Chief, Office of Policy shall notify the requester in
writing within the initial response period of the delay, the reasons
therefore, and a date, not to exceed 10 working days, on which a
determination is expected to be dispatched.
(d) Fees. (1) General. As a component of the Department of Defense,
the applicable published Departmental rules and schedules with respect
to the schedule of fees chargeable and waiver of fees will also be the
policy of NSA/CSS. See 286.33 et seq.
(2) Advance payments. (i) Where a total fee to be assessed is
estimated to exceed $250, advance payment of the estimated fee will be
required before processing of the request, except where assurances of
full payment are received from a requester with a history of prompt
payment. Where a requester has previously failed to pay a fee within 30
days of the date of billing, the requester will be required to pay the
full amount owned as well as make an advance payment of the full amount
of any estimated fee before processing of the request continues.
(ii) For all other requests, advance payment, i.e., a payment made
before work is commenced, will not be required. Payment owed for work
already completed is not an advance payment, however, responses will not
be held pending receipt of fees from requesters with a history of prompt
payment. Fees should be paid by certified check or postal money order
forwarded to the Chief, Office of Policy, and made payable to the
Treasurer of the United States.
(40 FR 7300, Feb. 19, 1975, as amended at 46 FR 26482, May 13, 1981;
56 FR 15047, Apr. 15, 1991)
32 CFR 299.5 Appeals.
Any person denied access to records, or denied a fee waiver may,
within 60 days after notification of such denial, file an appeal to the
Freedom of Information Act Appeals Authority, National Security
Agency/Central Security Service. Such an appeal shall be in writing
addressed to the Freedom of Information Act Appeals Authority, National
Security Agency/Central Security Service, Fort George G. Meade, Md.
20755-6000, shall reference the initial denial and shall contain in
sufficient detail and particularity the grounds upon which the requester
believes release of the information, or granting of the fee waiver is
required. The Freedom of Information Act Appeals Authority shall
respond to the appeal within 20 working days after receipt of the
appeal.
(56 FR 15047, Apr. 15, 1991)
32 CFR 299.6 Effective date.
This notice shall become effective upon May 13, 1981.
(46 FR 26482, May 13, 1981)
32 CFR 299.6 SUBCHAPTER O -- PRIVACY PROGRAM
32 CFR 299.6 PART 310 -- DOD PRIVACY PROGRAM
32 CFR 299.6 Pt. 310
32 CFR 299.6 Subpart A -- General Provisions
Sec.
310.1 Reissuance and purpose.
310.2 Applicability and scope.
310.3 Definitions.
310.4 Policy.
310.5 Organization.
310.6 Responsibilities
32 CFR 299.6 Subpart B -- Systems of Records
310.10 General.
310.11 Standards of accuracy.
310.12 Government contractors.
310.13 Safeguarding personal information.
32 CFR 299.6 Subpart C -- Collecting Personal Information
310.20 General considerations.
310.21 Forms.
32 CFR 299.6 Subpart D -- Access by Individuals
310.30 Individual access to personal information.
310.31 Denial of individual access.
310.32 Amendment of records.
310.33 Reproduction fees.
32 CFR 299.6 Supart E -- Disclosure of Personal Information to Other
Agencies and Third Parties
310.40 Conditions of disclosure.
310.41 Nonconsensual disclosures.
310.42 Disclosures to commercial enterprises.
310.43 Disclosures to the public from health care records.
310.44 Disclosure accounting.
32 CFR 299.6 Subpart F -- Exemptions
310.50 Use and establishment of exemptions.
310.51 General exemptions.
310.52 Specific exemptions.
32 CFR 299.6 Subpart G -- Publication Requirements
310.60 Federal Register publication.
310.61 Exemption rules.
310.62 System notices.
310.63 New and altered record systems.
310.64 Amendment and deletion of systems notices.
32 CFR 299.6 Subpart H -- Training Requirements
310.70 Statutory training requirements.
310.71 OMB training guidelines.
310.72 DoD training programs.
310.73 Training methodology and procedures.
310.74 Funding for training.
32 CFR 299.6 Subpart I -- Reports
310.80 Requirement for reports.
310.81 Suspense for submission of reports.
310.82 Reports control symbol.
32 CFR 299.6 Subpart J -- Inspections
310.90 Privacy Act inspections.
310.91 Inspection reporting.
32 CFR 299.6 Subpart K -- Privacy Act Enforcement Actions
310.100 Administrative remedies.
310.101 Civil actions.
310.102 Civil remedies.
310.103 Criminal penalties.
310.104 Litigation status sheet.
32 CFR 299.6 Subpart L -- Matching Program Procedures
310.110 OMB Matching guidelines.
310.111 Requesting matching programs.
310.112 Time limits for submitting matching reports.
310.113 Matching programs among DoD Components.
310.114 Annual review of systems of records.
Appendix A to Part 310 -- Special Considerations for Safeguarding
Personal Information in ADP Systems
Appendix B to Part 310 -- Special Considerations for Safeguarding
Personal Information During Word Processing
Appendix C to Part 310 -- DoD Blanket Routine Uses
Appendix D to Part 310 -- Provisions of the Privacy Act from which a
General or Specific Exemption May be Claimed
Appendix E to Part 310 -- Sample of New or Altered System of Records
Notice in Federal Register Format
Appendix F to Part 310 -- Format for New or Altered System Report
Appendix G to Part 310 -- Sample Deletions and Amendments to Systems
Notices in Federal Register Format
Appendix H to Part 310 -- Litigation Status Sheet
Appendix I to Part 310 -- Office of Management and Budget (OMB)
Matching Guidelines
Authority: Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 552a).
Source: 51 FR 2364, Jan. 16, 1986, unless otherwise noted.
Redesignated at 56 FR 55631, Oct. 29, 1991.
32 CFR 299.6 Subpart A -- General Provisions
32 CFR 310.1 Reissuance and purpose.
(a) This part is reissued to consolidate into a single document (32
CFR part 310) Department of Defense (DoD) policies and procedures for
implementing the Privacy Act of 1974, as amended (5 U.S.C. 522a,) by
authorizing the development, publication and maintenance of the DoD
Privacy Program set forth by DoD Directive 5400.11, June 9, 1982, and
5400.11-R, August 31, 1983, both entitled: ''Department of the Defense
Privacy Program.''
(b) Its purpose is to delegate authorities and assign
responsibilities for the administration of the DoD Privacy Program and
to prescribe uniform procedures for DoD Components consistent with DoD
5025.1-M, ''Directives Systems Procedures,'' April 1981.
(51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29,
1991, and amended at 56 FR 57800, Nov. 14, 1991)
32 CFR 310.2 Applicability and scope.
(a) The provisions of this part apply to the Office of the Secretary
of Defense, the Military Departments, the Organization of the Joint
Chiefs of Staff, the Unified and Specified Commands, and the Defense
Agencies (hereafter referred to collectively as ''DoD Components'').
This part is mandatory for use by all DoD Components. Heads of DoD
Components may issue supplementary instructions only when necessary to
provide for unique requirements within their Components. Such
instructions will not conflict with the provisions of this part.
(b) The DoD Privacy Program is applicable, but not limited, to the
following DoD Components:
(1) Office of the Secretary of Defense and its field activities;
(2) Department of the Army;
(3) Department of the Navy;
(4) Department of the Air Force;
(5) U.S. Marine Corps;
(6) Organization of the Joint Chiefs of Staff;
(7) Unified and Specified Commands;
(8) Office of the Inspector General, DoD;
(9) Defense Advanced Research Projects Agency;
(10) Defense Communications Agency;
(11) Defense Contract Audit Agency;
(12) Defense Intelligence Agency;
(13) Defense Investigative Service;
(14) Defense Logistics Agency;
(15) Defense Mapping Agency;
(16) Defense Nuclear Agency;
(17) Defense Security Assistance Agency;
(18) National Security Agency/Central Security Service;
(19) Uniformed Services University of the Health Sciences.
(c) The provisions of this part shall be made applicable by contract
or other legally binding action to U.S. Government contractors whenever
a DoD contract is let for the operation of a system of records. For
purposes of liability under the Privacy Act of 1974 (5 U.S.C. 552a) the
employees of the contractor are considered employees of the contracting
DoD Component. See also 310.12.
(d) This part does not apply to:
(1) Requests for information from records maintained by the National
Security Agency pursuant to Pub. L. 86-36, ''National Security
Information Exemption,'' May 29, 1959, and Pub. L. 88-290, ''Personnel
Security Procedures in the National Security Agency,'' March 26, 1964.
All other systems of records maintained by the Agency are subject to the
provisions of this part.
(2) Requests for information from systems of records controlled by
the Office of Personnel Management (OPM), although maintained by a DoD
Component. These are processed under the applicable parts of the OPM's
Federal Personnel Manual (5 CFR part 297).
(3) Requests for personal information from the General Accounting
Office (GAO). These are processed in accordance with DoD Directive
7650.1, ''General Accounting Office Access to Records,'' August 26,
1982.
(4) Requests for personal information from Congress. These are
processed in accordance with DoD Directive 5400.4, ''Provisions of
Information to Congress,'' January 30, 1978, except for those specific
provisions in Subpart E -- Disclosure of Personal Information to Other
Agencies and Third Parties.
(5) Requests for information made under the Freedom of Information
Act (5 U.S.C. 552). These are processed in accordance with ''DoD Freedom
of Information Act Program'' (32 CFR part 286).
(51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29,
1991, and amended at 56 FR 57800, Nov. 14, 1991)
32 CFR 310.3 Definitions.
Access. The review of a record or a copy of a record or parts thereof
in a system of records by any individual (see also paragraph (h) of this
section).
Agency. For the purposes of disclosing records subject to the Privacy
Act among DoD Components, the Department of Defense is considered a
single agency. For all other purposes to include applications for
access and amendment, denial of access or amendment, appeals from
denials, and record keeping as regards release to non-DoD agencies;
each DoD Component is considered an agency within the meaning of the
Privacy Act.
Confidential source. A person or organization who has furnished
information to the federal government under an express promise that the
person's or the organization's identity will be held in confidence or
under an implied promise of such confidentialness if this implied
promise was made before September 27, 1975.
Disclosure. The transfer of any personal information from a system of
records by any means of communication (such as oral, written,
electronic, mechanical, or actual review) to any person, private entity,
or government agency, other than the subject of the record, the
subject's designated agent or the subject's legal guardian.
Individual. A living citizen of the United States or an alien
lawfully admitted to the United States for permanent residence. The
legal guardian of an individual has the same rights as the individual
and may act on his or her behalf. All members of U.S. Armed Forces are
considered individuals for Privacy Act purposes. No rights are vested
in the representative of a dead person under this part and the term
''individual'' does not embrace an individual acting in an interpersonal
capacity, for example, sole proprietorship or partnership.
Individual access. Access to information pertaining to the
individual by the individual or his designated agent or legal guardian.
Law enforcement activity. Any activity engaged in the enforcement of
criminal laws, including efforts to prevent, control, or reduce crime or
to apprehend criminals, and the activities of prosecutors, courts,
correctional, probation, pardon, or parole authorities.
Maintain. Includes maintain, collect, use or disseminate.
Official use. Within the context of this part, this term is used
when officials and employees of a DoD Component have a demonstrated need
for the use of any record or the information contained therein in the
performance of their official duties, subject to the ''DoD Information
Security Program Regulation'': (32 CFR part 159).
Personal information. Information about an individual that is
intimate or private to the individual, as distinguished from information
related solely to the individual's official functions or public life.
Privacy Act. The Privacy Act of 1974, as amended (5 U.S.C. 552a).
Privacy Act request. A request from an individual for notification
as to the existence of, access to, or amendment of records pertaining to
that individual. These records must be maintained in a system of
records.
Member of the public. Any individual or party acting in a private
capacity to include federal employees or military personnel.
Record. Any item, collection, or grouping of information about an
individual that is maintained by an agency, including, but not limited
to, the individual's education, financial transactions, medical history,
and criminal or employment history and that contains the individual's
name, or the identifying number, symbol, or other identifying particular
assigned to the individual, such as a finger or voice print or a
photograph.
Risk assessment. An analysis considering information sensitivity,
vulnerabilities, and the cost to a computer facility or word processing
activity in safeguarding personal information processed or stored in the
facility or activity.
Routine use. The disclosure of a record outside the Department of
Defense for a use that is compatible with the purpose for which the
information was collected and maintained by the Department of Defense.
The routine use must be included in the published system notice for the
system of records involved.
Statistical record. A record maintained only for statistical
research or reporting purposes and not used in whole or in part in
making determinations about specific individuals.
System of records. A group of records under the control of a DoD
Component from which information is retrieved by the individual's name
or by some identifying number, symbol, or other identifying particular
assigned to the individual. System notices for all Privacy Act systems
of records must be published in the Federal Register.
Word processing system. A combination of equipment employing
automated technology, systematic procedures, and trained personnel for
the primary purpose of manipulating human thoughts and verbal or written
or graphic presentations intended to communicate verbally or visually
with another individual.
Word processing equipment. Any combination of electronic hardware
and computer software integrated in a variety of forms (firmware,
programable software, handwiring, or similar equipment) that permits the
processing of textual data. Generally, the equipment contains a device
to receive information, a computer-like processor with various
capabilities to manipulate the information, a storage medium, and an
output device.
32 CFR 310.4 Policy.
(a) General policy. It is the policy of the Department of Defense to
safeguard personal information contained in any system of records
maintained by DoD Components and to make that information available to
the individual to whom it pertains to the maximum extent practicable.
(b) Permit individual access and amendment. Individuals are
permitted:
(1) To determine what records pertaining to them are being collected,
maintained, used, or disseminated.
(2) To gain access to the information pertaining to them maintained
in any system of records, and to correct or amend that information.
(3) To obtain an accounting of all disclosures of the information
pertaining to them except when disclosures are made to:
(i) DoD personnel in the course of their official duties;
(ii) Under the ''DoD Freedom of Information Act Program'' (32 CFR
part 286);
(iii) To another agency or to an instrumentality of any governmental
jurisdiction within or under control of the United States for civil or
criminal law enforcement activity if the activity is authorized by law,
and if the head of the agency or instrumentality has made a written
request to the DoD activity which maintains the record specifying the
particular portion desired and the law enforcement activity for which
the record is sought.
(4) To appeal any refusal to grant access to or amend any record
pertaining to them, and to file a statement of disagreement with the
record in the event amendment is refused.
(c) Limit collection, maintenance, use, and dissemination of personal
information. DoD Components are required:
(1) To collect, maintain, use, and disseminate personal information
only when it is relevant and necessary to achieve a purpose required by
statute or Executive Order.
(2) To collect personal information directly from the individual to
whom it pertains to the greatest extent practical.
(3) To inform individuals who are asked to supply personal
information for inclusion in any system of records:
(i) The authority for the solicitation;
(ii) Whether furnishing the information is mandatory or voluntary;
(iii) The intended uses of the information;
(iv) The routine disclosures of the information that may be made
outside the Department of Defense; and
(v) The effect on the individual of not providing all or any part of
the requested information.
(4) To ensure that all records used in making determinations about
individuals are accurate, relevant, timely, and complete.
(5) To make reasonable efforts to ensure that records containing
personal information are accurate, relevant, timely, and complete for
the purposes for which the record is being maintained before making them
available to any recipients outside the Department of Defense, other
than a federal agency, unless the disclosure is made under 32 CFR part
286.
(6) To keep no record that describes how individuals exercise their
rights guaranteed by the First Amendment of the U.S. Constitution,
unless expressly authorized by statute or by the individual to whom the
records pertains, or the record is pertinent to and within the scope of
an authorized law enforcement activity.
(7) To make reasonable efforts, when appropriate, to notify
individuals whenever records pertaining to them are made available under
compulsory legal process, if such process is a matter of public record.
(8) To establish safeguards to ensure the security of personal
information and to protect this information from threats or hazards that
might result in substantial harm, embarrassment, inconvenience, or
unfairness to the individual.
(9) To establish rules of conduct for DoD personnel involved in the
design, development, operation, or maintenance of any system of records
and to train them in these rules of conduct.
(d) Required public notice and publication. DoD Components are
required to publish in the Federal Register:
(i) A notice of the existence and character of every system of
records maintained.
(ii) A notice of the establishment of any new or revised system of
records.
(iii) At least 30 days before adoption, advance notice for public
comment of any new or intended changes to the routine uses of the
information in existing system of records including the categories of
users and the purposes of such use.
(e) Permit exempting eligible systems of records. DoD Components may
exempt from certain specific provisions of the Privacy Act (5 U.S.C.
552a) eligible systems of records, but only when there is an important
public purpose to be served and specific statutory for the exemption
exists.
(f) May require annual and other reports. DoD Components shall
furnish the Privacy Office that information required to complete any
reports required by the Office of Management and Budget or other
authorities.
32 CFR 310.5 Organization.
(a) Defense Privacy Board. Membership of the board shall consist of
the Executive Secretary and representatives designated by the
Secretaries of the Military Departments; the Assistant Secretary of
Defense (Comptroller) (whose designee shall serve as chairman); the
Assistant Secretary of Defense (Force Management and Personnel); the
General Counsel, Department of Defense; and the Director, Defense
Logistics Agency;
(b) The Defense Privacy Office. The office shall consist of a
Director, who shall also function as the Executive Secretary of the
Defense Privacy Board, and his staff.
(c) The Defense Privacy Board Legal Committee. The committee shall
be composed of a legal counsel from each of the DoD Components
represented on the DoD Privacy Board. The legal counsels shall be
appointed by the Executive Secretary in coordination with the
Secretaries of the Military Department or the head of the appropriate
DoD Components. Other DoD legal counsels may be appointed by the
Executive Secretary, after coordination with the appropriate
representative of the DoD Component concerned, to serve on the
committee.
32 CFR 310.6 Responsibilities.
(a) The Assistant Secretary of Defense (Comptroller) (ASD(C)), or his
designee, the Deputy Assistant Secretary of Defense (Administration)
(DASD(A)), shall:
(1) Direct and administer the DoD Privacy Program.
(2) Develop and maintain DoD Directive 5400.11 and DoD Regulation
5400.11-R (32d CFR part 310) consistent with DoD 5025.1-M and other
guidance, to ensure timely and uniform implementation of the DoD Privacy
Program.
(3) Serve as chairman of the Defense Privacy Board.
(b) Chairman and members of the Defense Privacy Board shall:
(1) Serve as the principal policymakers for the DoD Privacy Program
and the focal point for implementation of this part.
(2) Ensure that all DoD Components actively participate in
establishing policies, procedures, and practices in carrying out the DoD
Privacy Program.
(c) Director, Defense Privacy Office, shall:
(1) Serve as Executive Secretary and a Member of the Defense Privacy
Board.
(2) Monitor implementation of the DoD Privacy Program for the Defense
Privacy Board.
(3) Serve as the focal point for the coordination of Privacy Act
matters with the Defense Privacy Board; the Defense Privacy Board Legal
Committee; the Office of Management and Budget; the General Accounting
Office; the Office of the Federal Register, in conjunction with the OSD
Federal Register Liaison Officer, and other federal agencies, as
required;
(4) Develop and maintain the DoD Privacy Program, DoD Directive
5400.11 and DoD 5400.11-R (32 CFR part 310) consistent with DoD
5025.1-M.
(5) Review DoD Component instructions and related issuances
pertaining to the DoD Privacy Program and provide overall guidance to
avoid conflict with DoD Privacy Program policy and procedures.
(6) Supervise the implementation of the Right to Financial Privacy
Act of 1978 (12 U.S.C. 3401 et seq.); DoD Directive 5400.12,
''Obtaining Information from Financial Institutions'' (32 CFR part 294)
and any other legislation that impacts directly on individual privacy.
(7) In conjunction with the Office of the Assistant Secretary of
Defense (Force Management and Personnel), the Office of the General
Counsel, DoD; and other DoD Components:
(i) Ensure that training programs regarding DoD Privacy Program
policies and procedures are established for all DoD personnel whose
duties involve design, development, operation, and maintenance of any
system of records.
(ii) Coordinate on all DoD personnel policies that may affect the DoD
Privacy Program.
(8) In conjuction with the Office of the Deputy Assistant Secretary
of Defense (Management Systems), Office of the ASD(C), and other DoD
Components, ensure that:
(i) All information requirements developed to collect or maintain
personal data conform with DoD Privacy Program standards;
(ii) Procedures are developed to protect personal information while
it is being processed or stored in automated data processing or word
processing centers.
(9) In conjuction with the Office of the ASD (FM&P), the Defense
Manpower Data Center (Defense Logistics Agency), and other DoD
Components, ensure that procedures developed to collect or maintain
personal data for research purposes conform both to the requirements of
the research and DoD Privacy Program standards.
(d) Members of Defense Privacy Board Legal Committee shall:
(1) Consider legal questions referred to it by the Board regarding
the application of the Privacy Act (5 U.S.C. 552a); DoD Directive
5400.11; and DoD 5400.11-R, (this part) and the implementation of the
DoD Privacy Program.
(2) Render advisory opinions to the DoD Privacy Board, subject to
approval by the General Counsel, Department of Defense.
(e) The General Counsel, Department of Defense, shall:
(1) Review the advisory opinions of the Defense Privacy Board Legal
Committee to ensure uniformity in legal positions and interpretations
rendered.
(2) Be the final approving authority on all advisory legal opinions
rendered by the Defense Privacy Board or the Defense Privacy Board Legal
Committee regarding the Privacy Act (5 U.S.C. 552a) or its
implementation.
(f) The Head of each DoD Component shall implement the DoD Privacy
Program by carrying out the specific responsibilities set forth in
310.4(c) and shall:
(1) Establish an active program to implement the DoD Privacy Program.
(2) Provide adequate funds and personnel to support the Privacy
Program.
(3) Designate a senior official to serve as the principal point of
contact for DoD Privacy matters and to monitor compliance with the
program.
(4) Ensure that DoD Privacy Program compliance is reviewed during the
internal inspections conducted by Inspectors General or equivalent
inspectors.
(5) Ensure that the DoD Component head, a designee, or an appellant
reviews all appeals from denials or refusals by Component officials to
amend personal records.
(6) Establish rules of conduct to ensure that:
(i) Only personal information that is relevant and necessary to
achieve a purpose required by statute or Executive Order is collected,
maintained, used or disseminated.
(ii) Personal information is collected to the greatest extent
practicable directly from the individual to whom it pertains.
(iii) No records are maintained describing how individuals exercise
their rights guaranteed by the First Amendment to the U.S. Constitution
unless expressly authorized by statute or the individual to whom they
pertain or unless the records pertain to and are within the scope of an
authorized law enforcement activity.
(iv) Individuals are granted access to records which pertain to them
in systems of records unless the system has been exempted from the
access provisions of the Privacy Act (5 U.S.C. 552a).
(v) No system of records subject to the Privacy Act (5 U.S.C. 552a)
is maintained, used, or disseminated without prior publication of a
system notice in the Federal Register.
(vi) All personal information contained in any system of records is
safeguarded against unwarranted and unauthorized disclosure.
(vii) Procedures are established that permit an individual to seek
the correction or amendment of any record in a system of records
pertaining to the individual unless system of records has been exempted
from the amendment procedures of the Privacy Act (5 U.S.C. 552a).
(viii) All personnel whose duties involve design, development,
operation, and maintenance of any system of records are trained in the
rules of conduct established.
(ix) Assist, upon request, the Defense Privacy Board on matters of
special interest.
(g) The System Manager for any system of records shall:
(1) Ensure that all personnel who either have access to the system of
record or who are engaged in developing or supervising procedures for
handling records in the system of records in the system of records are
aware of their responsibilities for protecting personal information
established by the DoD Privacy Program.
(2) Prepare promptly any required new, amended, or altered system
notices for the system of records and submit them through channels for
publication in the Federal Register.
(3) Notify all Automated Data Processing (ADP) or word processing
managers who process information from the system of records that the
information is subject to the DoD Privacy Program and the applicable
routine uses for the information in the system.
(4) Coordinate with ADP and word processing managers providing
services to ensure an adequate risk analysis is conducted.
(5) Coordinate with the servicing ADP and word processing managers to
ensure that the system manager is notified when there are changes to
processing equipment, hardware or software, and the data base that may
require submission of an amended system notice.
(h) Automated Data Processing (ADP) or Word Processing Managers, who
process information from any system of records, shall:
(1) Ensure that each system manager provides a current system notice
or information as to the contents of the system notice for each system
of records from which information is to be processed.
(2) Ensure that all personnel who have access to information from a
system of records during processing or who are engaged in developing
procedures for processing such information are aware of the provisions
of the DoD Privacy Program policies and procedures.
(3) Notify promptly the system manager whenever there are changes to
processing equipment, hardware or software, and the data base that may
require the submission of an amended system notice for any system of
records.
(i) DoD employees shall:
(1) Not disclosure any personal information contained in any system
of records except as authorized in this part.
(2) Not maintain any official files which are retrievable by name or
other personal identifier without first ensuring that a notice for the
system has been published in the Federal Register.
(3) Report any disclosures of personal information from a system of
records or the maintenance of any system of records that are not
authorized by this part to the appropriate Privacy Act officials for his
or her action.
(51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29,
1991, and amended at 56 FR 57800, Nov. 14, 1991)
32 CFR 310.6 Subpart B -- Systems of Records
32 CFR 310.10 General.
(a) System of records. To be subject to the provisions of this part
a ''system of records'' must:
(1) Consist of ''records'' (as defined in 310.3(n)) that are
retrieved by the name of an individual or some other personal
identifier, and
(2) Be under the control of a DoD Component.
(b) Retrieval practices. (1) Records in a group of records that may
be retrieved by a name or personal identifier are not covered by this
part even if the records contain personal data and are under control of
a DoD Component. The records must be, in fact, retrieved by name or
other personal identifier to become a system of records for the purpose
of this part.
(2) If files that are not retrieved by name or personal identifier
are rearranged in such manner that they are retrieved by name or
personal identifier, a new systems notice must be submitted in
accordance with 310.63(c) of subpart G.
(3) If records in a system of records are rearranged so that
retrieval is no longer by name or other personal identifier, the records
are no longer subject to this part and the system notice for the records
shall be deleted in accordance with 310.64(c) of subpart G.
(c) Relevance and necessity. Retain in a system of records only that
personal information which is relevant and necessary to accomplish a
purpose required by a federal statute or an Executive Order.
(d) Authority to establish systems of records. Identify the specific
statute or the Executive Order that authorize maintaining personal
information in each system of records. The existance of a statute or
Executive order mandating the maintenance of a system of records does
not abrogate the responsibility to ensure that the information in the
system of records is relevant and necessary.
(e) Exercise of First Amendment rights. (1) Do not maintain any
records describing how an individual exercises his or her rights
guaranteed by the First Amendment of the U.S. Constitution except when:
(i) Expressly authorized by federal statute;
(ii) Expressly authorized by the individual; or
(iii) Maintenance of the information is pertinent to and within the
scope of an authorized law enforcement activity.
(2) 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.
(f) System manager's evaluation. (1) Evaluate the information to be
included in each new system before establishing the system and evaluate
periodically the information contained in each existing system of
records for relevancy and necessity. Such a review shall also occur
when a system notice amendment or alteration is prepared (see 310.63
and 310.64 of subpart G).
(2) Consider the following:
(i) The relationship of each item of information retained and
collected to the purpose for which the system is maintained;
(ii) The specific impact on the purpose or mission of not collecting
each category of information contained in the system;
(iii) The possibility of meeting the information requirements through
use of information not individually identifiable or through other
techniques, such as sampling;
(iv) The length of time each item of personal information must be
retained;
(v) The cost of maintaining the information; and
(vi) The necessity and relevancy of the information to the purpose
for which it was collected.
(g) Discontinued information requirements. (1) Stop collecting
immediately any category or item of personal information from which
retention is no longer justified. Also excise this information from
existing records, when feasible.
(2) Do not destroy any records that must be retained in accordance
with disposal authorizations established under 44 U.S.C. 303a,
''Examination by the Administrator of General Services of Lists and
Schedules of Records Lacking Preservation Value, Disposal of Records.''
(51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29,
1991, and amended at 56 FR 57800, Nov. 14, 1991)
32 CFR 310.11 Standards of accuracy.
(a) Accuracy of information maintained. Maintain all personal
information that is used or may be used to make any determination about
an individual with such accuracy, relevance, timeliness, and
completeness as is reasonably necessary to ensure fairness to the
individual in making any such determination.
(b) Accuracy determination before dissemination. Before
disseminating any personal information from a system of records to any
person outside the Department of Defense, other than a federal agency,
make reasonable efforts to ensure that the information to be disclosed
is accurate, relevant, timely, and complete for the purpose it is being
maintained (see also 310.30(d), subpart D and 310.40(d), subpart E).
(51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29,
1991, and amended at 56 FR 57800, Nov. 14, 1991)
32 CFR 310.12 Government contractors.
(a) Applicability to government contractors. (1) When a DoD
Component contracts for the operation or maintenance of a system of
records or a portion of a system of records by a contractor, the record
system or the portion of the record system affected are considered to be
maintained by the DoD Component and are subject to this part. The
Component is responsible for applying the requirements of this part to
the contractor. The contractor and its employees are to be considered
employees of the DoD Component for purposes of the sanction provisions
of the Privacy Act during the performance of the contract. Consistent
with the Defense Acquisition Regulation (DAR), 1.327, ''Protection of
Individual Privacy'' contracts requiring the maintenance of a system of
records or the portion of a system of records shall identify
specifically the record system and the work to be performed and shall
include in the solicitation and resulting contract such terms as are
prescribed by the DAR.
(2) If the contractor must use or have access to individually
identifiable information subject to this part to perform any part of a
contract, and the information would have been collected and maintained
by the DoD Component but for the award of the contract, these contractor
activities are subject to this Regulation.
(3) The restriction in paragraphs (a) (1) and (2) of 310.12 do not
apply to records:
(i) Established and maintained to assist in making internal
contractor management decisions, such as records maintained by the
contractor for use in managing the contract;
(ii) Maintained as internal contractor employee records even when
used in conjunction with providing goods and services to the Department
of Defense; or
(iii) Maintained as training records by an educational organization
contracted by a DoD Component to provide training when the records of
the contract students are similar to and comingled with training records
of other students (for example, admission forms, transcripts, academic
counselling and similar records);
(iv) Maintained by a consumer reporting agency to which records have
been disclosed under contract in accordance with the Federal Claims
Collection Act of 1966, 31 U.S.C. 952(d).
(4) DoD Components must publish instruction that:
(i) Furnish DoD Privacy Program guidance to their personnel who
solicit, award, or administer government contracts;
(ii) Inform prospective contractors of their responsibilities
regarding the DoD Privary Program; and
(iii) Establish an internal system of contractor performance review
to ensure compliance with the DoD Privacy Program.
(b) Contracting procedures. The Defense Systems Acquisition
Regulatory Council (DSARC) is responsible for developing the specific
policies and procedures to be followed when soliciting bids, awarding
contracts or administering contracts that are subject to this part.
(c) Contractor compliance. Through the various contract surveillance
programs, ensure contractors comply with the procedures established in
accordance with paragraph (b) above of this subpart.
(d) Disclosure of records to contractors. Disclosure of personal
records to a contractor for the use in the performance of any DoD
contrtact by a DoD Component is considered a disclosure within the
Department of Defense (see 310.40(b), subpart E). The contractor is
considered the agent of the contracting DoD Component and to be
maintaining and receiving the records for that Component.
(51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29,
1991, and amended at 56 FR 57800, Nov. 14, 1991)
32 CFR 310.13 Safeguarding personal information.
(a) General responsibilities. Establish appropriate administrative,
technical and physical safeguards to ensure that the records in every
system of records are protected from unauthorized alteration or
disclosure and that their confidentiality is protected. Protect the
records against reasonably anticipated threats or hazards that could
result in substantial harm, embarrassment, inconvenience, or unfairness
to any individual about whom information is kept.
(b) Minimum standards. (1) Tailor system safeguards to conform to
the type of records in the system, the sensitivity of the personal
information stored, the storage medium used and, to a degree, the number
of records maintained.
(2) Treat all unclassified records that contain personal information
that normally would be withheld from the public under Exemption Numbers
6 and 7, of 286.31, subpart D of 32 CFR part 286 (DoD Freedom of
Information Act Program) as if they were designated ''For Official Use
Only'' and safeguard them in accordance with the standards established
by subpart E of 32 CFR part 286 (DoD FOIA Program) even if they are not
actually marked ''For Official Use Only.''
(3) Afford personal information that does not meet the criteria
discussed in paragraph (c)(3) of this section that degree of security
which provides protection commensurate with the nature and type of
information involved.
(4) Special administrative, physical, and technical procedures are
required to protect data that is stored or being processed temporarily
in an automated data processing (ADP) system or in a word processing
activity to protect it against threats unique to those environments (see
Appendices A and B).
(5) Tailor safeguards specifically to the vulnerabilities of the
system.
(c) Records disposal. (1) Dispose of records containing personal
data so as to prevent inadvertent compromise. Disposal methods such as
tearing, burning, melting, chemical decomposition, pulping, pulverizing,
shredding, or mutilation are considered adequate if the personal data is
rendered unrecognizable or beyond reconstruction.
(2) The transfer of large quantities of records containing personal
data (for example, computer cards and printouts) in bulk to a disposal
activity, such as the Defense Property Disposal Office, is not a release
of personal information under this part. The sheer volume of such
transfers make it difficult or impossible to identify readily specific
individual records.
(3) When disposing of or destroying large quantities of records
containing personal information, care must be exercised to ensure that
the bulk of the records is maintained so as to prevent specific records
from being readily identified. If bulk is maintained, no special
procedures are required. If bulk cannot be maintained or if the form of
the records make individually identifiable information easily available,
dispose of the record in accordance with paragraph (c)(1) of this
section.
32 CFR 310.13 Subpart C -- Collecting Personal Information
32 CFR 310.20 General considerations.
(a) Collect directly from the individual. Collect to the greatest
extent practicable personal information directly from the individual to
whom it pertains if the information may be used in making any
determination about the rights, privileges, or benefits of the
individual under any federal program (see also paragraph (c) of this
section).
(b) Collecting Social Security Numbers (SSNs). (1) It is unlawful
for any federal, state, or local governmental agency to deny an
individual any right, benefit, or privilege provided by law because the
individual refuses to provide his or her SSN. However, if a federal
statute requires that the SSN be furnished or if the SSN is required to
verify the identity of the individual in a system of records that was
established and in use before January 1, 1975, and the SSN was required
as an identifier by a statute or regulation adopted before that date,
this restriction does not apply.
(2) When an individual is requested to provide his or her SSN, he or
she must be advised:
(i) The uses that will be made of the SSN;
(ii) The statute, regulation, or rule authorizing the solicitation of
the SSN; and
(iii) Whether providing the SSN is voluntary or mandatory.
(3) Include in any systems notice for any system of records that
contains SSNs a statement indicating the authority for maintaining the
SSN and the sources of the SSNs in the system. If the SSN is obtained
directly from the individual indicate whether this is voluntary or
mandatory.
(4) Executive Order 9397, ''Numbering System For Federal Accounts
Relating to Individual Persons,'' November 30, 1943, authorizes
solicitation and use of SSNs as numerical identifier for individuals in
most Federal records systems. However, it does not provide mandatory
authority for soliciting SSNs.
(5) Upon entrance into military service or civilian employment with
the Department of Defense, individuals are asked to provide their SSNs.
The SSN becomes the service or employment number for the individual and
is used to establish personnel, financial, medical, and other official
records. Provide the notification in paragraph (b)(2) of this section
to the individual when originally soliciting his or her SSN. After an
individual has provided his or her SSN for the purpose of establishing a
record, the notification in paragraph (b)(2) is not required if the
individual is only requested to furnish or verify the SSNs for
identification purposes in connection with the normal use of his or her
records. However, if the SSN is to be written down and retained for any
purpose by the requesting official, the individual must be provided the
notification required by paragraph (b)(2) of this section.
(6) Consult the Office of Personnel Management, Federal Personnel
Manual (5 CFR parts 293, 294, 297 and 735) when soliciting SSNs for use
in OPM records systems.
(c) Collecting personal information from third parties. It may not
be practical to collect personal information directly from the
individual in all cases. Some examples of this are:
(1) Verification of information through third party sources for
security or employment suitability determinations;
(2) Seeking third party opinions such as supervisory comments as to
job knowledge, duty performance, or other opinion-type evaluations;
(3) When obtaining the needed information directly from the
individual is exceptionally difficult or may result in unreasonable
costs; or
(4) Contacting a third party at the request of the individual to
furnish certain information such as exact periods of employment,
termination dates, copies of records, or similar information.
(d) Privacy Act Statements. (1) When an individual is requested to
furnish personal information about himself or herself for inclusion in a
system of records, a Privacy Act Statement is required regardless of the
medium used to collect the information (forms, personal interviews,
stylized formats, telephonic interviews, or other methods). The Privacy
Act Statement consists of the elements set forth in paragraph (d)(2) of
this section. The statement enables the individual to make an informed
decision whether to provide the information requested. If the personal
information solicited is not to be incoporated into a system of records,
the statement need not be given. However, personal information obtained
without a Privacy Act Statement shall not be incorporated into any
system of records. When soliciting SSNs for any purpose, see paragraph
(b)(2) of this section.
(2) The Privacy Act Statement shall include:
(i) The specific federal statute or Executive Order that authorizes
collection of the requested information (see paragraph (d) of 310.10).
(ii) The principal purpose or purposes for which the information is
to be used;
(iii) The routine uses that will be made of the information (see
310.41(e), Subpart E);
(iv) Whether providing the information is voluntary or mandatory (see
paragraph (e) of this section); and
(v) The effects on the individual if he or she chooses not to provide
the requested information.
(3) The Privacy Act Statement shall be concise, current, and easily
understood.
(4) The Privacy Act statement may appear as a public notice (sign or
poster), conspicuously displayed in the area where the information is
collected, such as at check-cashing facilities or identification
photograph facilities.
(5) The individual normally is not required to sign the Privacy Act
Statement.
(6) Provide the individual a written copy of the Privacy Act
Statement upon request. This must be done regardless of the method
chosen to furnish the initial advisement.
(e) Mandatory as opposed to voluntary disclosures. Include in the
Privacy Act Statement specifically whether furnishing the requested
personal data is mandatory or voluntary. A requirement to furnish
personal data is mandatory only when a federal statute, Executive Order,
regulation, or other lawful order specifically imposes a duty on the
individual to provide the information sought, and the individual is
subject to a penalty if he or she fails to provide the requested
information. If providing the information is only a condition of or
prerequisite to granting a benefit or privilege and the individual has
the option of requesting the benefit or privilege, providing the
information is always voluntary. However, the loss or denial of the
privilege, benefit, or entitlement sought may be listed as a consequence
of not furnishing the requested information.
(51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29,
1991, and amended at 56 FR 57800, Nov. 14, 1991)
32 CFR 310.21 Forms.
(a) DoD forms. (1) DoD Directive 5000.21, ''Forms Management
Program'' provides guidance for preparing Privacy Act Statements for use
with forms (see also paragraph (b)(1) of this section).
(2) When forms are used to collect personal information, the Privacy
Act Statement shall appear as follows (listed in the order of
preference):
(i) In the body of the form, preferably just below the title so that
the reader will be advised of the contents of the statement before he or
she begins to complete the form;
(ii) On the reverse side of the form with an appropriate annotation
under the title giving its location;
(iii) On a tear-off sheet attached to the form; or
(iv) As a separate supplement to the form.
(b) Forms issued by non-DoD activities. (1) Forms subject to the
Privacy Act issued by other federal agencies have a Privacy Act
Statement attached or included. Always ensure that the statement
prepared by the originating agency is adequate for the purpose for which
the form will be used by the DoD activity. If the Privacy Act Statement
provided is inadequate, the DoD Component concerned shall prepare a new
statement or a supplement to the existing statement before using the
form.
(2) Forms issued by agencies not subject to the Privacy Act (state,
municipal, and other local agencies) do not contain Privacy Act
Statements. Before using a form prepared by such agencies to collect
personal data subject to this part, an appropriate Privacy Act Statement
must be added.
32 CFR 310.21 Subpart D -- Access by Individuals
32 CFR 310.30 Individual access to personal information.
(a) Individual access. (1) The access provisions of this part are
intended for use by individuals about whom records are maintained in
systems of records. Release of personal information to individuals
under this part is not considered public release of information.
(2) Make available to the individual to whom the record pertains all
of the personal information that can be released consistent with DoD
responsibilities.
(b) Individual requests for access. Individuals shall address
requests for access to personal information in a system of records to
the system manager or to the office designated in the DoD Component
rules or the system notice.
(c) Verification of identity. (1) Before granting access to personal
data, an individual may be required to provide reasonable verification
of his or her identity.
(2) Identity verification procedures shall not:
(i) Be so complicated as to discourage unnecessarily individuals from
seeking access to information about themselves; or
(ii) Be required of an individual seeking access to records which
normally would be available under the ''DoD Freedom of Information Act
Program'' (32 CFR part 286).
(3) Normally, when individuals seek personal access to records
pertaining to themselves, identification is made from documents that
normally are readily available, such as employee and military
identification cards, driver's license, other licenses, permits or
passes used for routine identification purposes.
(4) When access is requested by mail, identity verification may
consist of the individual providing certain minimum identifying data,
such as full name, date and place of birth, or such other personal
information necessary to locate the record sought. If the information
sought is of a sensitive nature, additional identifying data may be
required. If notarization of requests is required, procedures shall be
established for an alternate method of verification for individuals who
do not have access to notary services, such as military members
overseas.
(5) If an individual wishes to be accompanied by a third party when
seeking access to his or her records or to have the records released
directly to a third party, the individual may be required to furnish a
signed access authorization granting the third party access.
(6) An individual shall not be refused access to his or her record
solely because he or she refuses to divulge his or her SSN unless the
SSN is the only method by which retrieval can be made. (See
310.20(b)).
(7) The individual is not required to explain or justify his or her
need for access to any record under this part.
(8) Only a denial authority may deny access and the denial must be in
writing and contain the information required by paragraph (b) of
310.31.
(d) Granting individual access to records. (1) Grant the individual
access to the original record or an exact copy of the original record
without any changes or deletions, except when changes or deletions have
been made in accordance with paragraph (e) of this section. For the
purpose of granting access, a record that has been amended under
310.31(b) is considered to be the original. See pargraph (e) of this
section for the policy regarding the use of summaries and extracts.
(2) Provide exact copies of the record when furnishing the individual
copies of records under this part.
(3) Explain in terms understood by the requestor any record or
portion of a record that is not clear.
(e) Illegible, incomplete, or partially exempt records. (1) Do not
deny an individual access to a record or a copy of a record solely
because the physical condition or format of the record does not make it
readily available (for example, deteriorated state or on magnetic tape).
Either prepare an extract or recopy the document exactly.
(2) If a portion of the record contains information that is exempt
from access, an extract or summary containing all of the information in
the record that is releasable shall be prepared.
(3) When the physical condition of the record or its state makes it
necessary to prepare an extract for release, ensure that the extract can
be understood by the requester.
(4) Explain to the requester all deletions or changes to the records.
(f) Access to medical records. (1) Disclose medical records to the
individual to whom they pertain, even if a minor, unless a judgment is
made that access to such records could have an adverse effect on the
mental or physical health of the individual. Normally, this
determination shall be made in consultation with a medical doctor.
(2) If it is determined that the release of the medical information
may be harmful to the mental or physical health of the individual:
(i) Send the record to a physician named by the individual; and
(ii) In the transmittal letter to the physician explain why access by
the individual without proper professional supervision could be harmful
(unless it is obvious from the record).
(3) Do not require the physician to request the records for the
individual.
(4) If the individual refuses or fails to designate a physician, the
record shall not be provided. Such refusal of access is not considered
a denial for Privacy Act reporting purposes. (See paragraph (a) of
310.31).
(5) Access to a minor's medical records may be granted to his or her
parents or legal guardians. However, observe the following procedures:
(i) In the United States, the laws of the particular state in which
the records are located may afford special protection to certain types
of medical records (for example, records dealing with treatment for drug
or alcohol abuse and certain psychiatric records). Even if the records
are maintained by a military medical facilities these statutes may
apply.
(ii) For the purposes of parental access to the medical records and
medical determinations regarding minors at overseas installation the age
of majority is 18 years except when:
(A) A minor at the time he or she sought or consented to the
treatment was between 15 and 17 years of age;
(B) The treatment was sought in a program which was authorized by
regulation or statute to offer confidentiality of treatment records as a
part of the program;
(C) The minor specifically requested or indicated that he or she
wished the treatment record to be handled with confidence and not
released to a parent or guardian; and
(D) The parent or guardian seeking access does not have the written
authorization of the minor or a valid court order granting access.
(iii) If all four of the above conditions are met, the parent or
guardian shall be denied access to the medical records of the minor. Do
not use these procedures to deny the minor access to his or her own
records under this part or any other statutes.
(6) All members of the Military Services and all married persons are
not considered minors regardless of age, and the parents of these
individuals do not have access to their medical records without written
consent of the individual.
(g) Access to information compiled in anticipation of civil action.
(1) An individual is not entitled under this part to gain access to
information compiled in reasonable anticipation of a civil action or
proceeding.
(2) The term ''civil proceeding'' is intended to include
quasi-judicial and pretrial judicial proceedings that are the necessary
preliminary steps to formal litigation.
(3) Attorney work products prepared in conjunction with
quasi-judicial pretrial, and trial proceedings, to include those
prepared to advise DoD Component officials of the possible legal
consequences of a given course of action, are protected.
(h) Access to investigatory records. (1) Requests by individuals for
access to investigatory records pertaining to themselves and compiled
for law enforcement purposes are processed under this part of the DoD
Freedom of Information Program (32 CFR part 286) depending on which part
gives them the greatest degree of access.
(2) Process requests by individuals for access to investigatory
record pertaining to themselves compiled for law enforcement purposes
and in the custody of law enforcement activities that have been
incorporated into systems of records exempted from the access provisions
of this part in accordance with section B of Chapter 5 under reference
(f). Do not deny an individual access to the record solely because it
is in the exempt system, but give him or her automatically the same
access he or she would receive under the Freedom of Information Act (5
U.S.C. 552). (See also paragraph (h) of this section.)
(3) Process requests by individuals for access to investigatory
records pertaining to themselves that are in records systems exempted
from access provisions under paragraph (a) of 310.52, Subpart F, under
this part, or the DoD Freedom of Information Act Program (32 CFR part
286) depending upon which regulation gives the greatest degree of access
(see also paragraph (j) of this section).
(4) Refer individual requests for access to investigatory records
exempted from access under a general exemption temporarily in the hands
of a noninvestigatory element for adjudicative or personnel actions to
the originating investigating agency. Inform the requester in writing
of these referrals.
(i) Nonagency records. (1) Certain documents under the physical
control of DoD personnel and used to assist them in performing official
functions, are not considered ''agency records'' within the meaning of
this Regulation. Uncirculated personal notes and records that are not
disseminated or circulated to any person or organization (for example,
personal telephone lists or memory aids) that are retained or discarded
at the author's discretion and over which the Component exercises no
direct control, are not considered agency records. However, if
personnel are officially directed or encouraged, either in writing or
orally, to maintain such records, they may become ''agency records,''
and may be subject to this part.
(2) The personal uncirculated handwritten notes of unit leaders,
office supervisors, or military supervisory personnel concerning
subordinates are not systems of records within the meaning of this part.
Such notes are an extension of the individual's memory. These notes,
however, must be maintained and discarded at the discretion of the
individual supervisor and not circulated to others. Any established
requirement to maintain such notes (such as, written or oral directives,
regulations, or command policy) make these notes ''agency records'' and
they then must be made a part of a system of records. If the notes are
circulated, they must be made a part of a system of records. Any action
that gives personal notes the appearance of official agency records is
prohibited, unless the notes have been incorporated into a system of
records.
(j) Relationship between the Privacy Act and the Freedom of
Information Act. (1) Process requests for individual access as follows:
(i) Requests by individuals for access to records pertaining to
themselves made under the Freedom of Information Act (5 U.S.C. 552) or
the DoD Freedom of Information Act Program (32 CFR part 286) or DoD
Component instuctions implementing the DoD Freedom of Information Act
Program are processed under the provisions of that reference.
(ii) Requests by individuals for access to records pertaining to
themselves made under the Privacy Act of 1971 (5 U.S.C. 552a), this
part, or the DoD Component instructions implementing this part are
processed under this part.
(iii) Requests by individuals for access to records about themselves
that cite both Acts or the implementing regulations and instructions for
both Acts are processed under this part except:
(A) When the access provisions of the DoD Freedom of Information Act
Program (32 CFR part 286) provide a greater degree of access; or
(B) When access to the information sought is controlled by another
federal statute.
(C) If the former applies, follow the provisions of 32 CFR part 286;
and if the later applies, follow the access procedures established under
the controlling statute.
(iv) Requests by individuals for access to information about
themselves in systems of records that do not cite either Act or the
implementing regulations or instructions for either Act are processed
under the procedures established by this part. However, there is no
requirement to cite the specific provisions of this part or the Privacy
Act (5 U.S.C. 552a) when responding to such requests. Do not count
these requests as Privacy Act request for reporting purposes (see
Subpart I).
(2) Do not deny individuals access to personal information concerning
themselves that would otherwise be releasable to them under either Act
solely because they fail to cite either Act or cite the wrong Act,
regulation, or instruction.
(3) Explain to the requester which Act or procedures have been used
when granting or denying access under either Act (see also paragraph
(j)(1)(iv) of this section).
(k) Time limits. Normally acknowledge requests for access within 10
working days after receipt and provide access within 30 working days.
(l) Privacy case file. Establish a Privacy Act case file when
required (see paragraph (p) of 310.32 of this subpart).
(51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29,
1991, and amended at 56 FR 57800, Nov. 14, 1991)
32 CFR 310.31 Denial of individual access.
(a) Denying individual access. (1) An individual may be denied
formally access to a record pertaining to him or her only if the record:
(i) Was compiled in reasonable anticipation of civil action (see
paragraph (g) of 310.30)
(ii) Is in a system of records that has been exempted from the access
provisions of this regulation under one of the permitted exemptions (see
Subpart F).
(iii) Contains classified information that has been exempted from the
access provision of this part under blanket exemption for such material
claimed for all DoD records system (see 310.50(c) of Subpart F).
(iv) Is contained in a system of records for which access may be
denied under some other federal statute.
(2) Only deny the individual access to those portions of the records
from which the denial of access serves some legitimate governmental
purpose.
(b) Other reasons to refuse access. (1) An individual may be refused
access if:
(i) The record is not described well enough to enable it to be
located with a reasonable amount of effort on the part of an employee
familiar with the file; or
(ii) Access is sought by an individual who fails or refuses to comply
with the established procedural requirements, including refusing to name
a physician to receive medical records when required (see paragraph (f)
of 310.30) or to pay fees (see 310.33 of this subpart).
(2) Always explain to the individual the specific reason access has
been refused and how he or she may obtain access.
(c) Notifying the individual. Formal denials of access must be in
writing and include as a minimum:
(1) The name, title or position, and signature of a designated
Component denial authority;
(2) The date of the denial;
(3) The specific reason for the denial, including specific citation
to the appropriate sections of the Privacy Act (5 U.S.C. 552a) or other
statutes, this part, DoD Component instructions or Code of Federal
Regulations (CFR) authorizing the denial;
(4) Notice to the individual of his or her right to appeal the denial
through the Component appeal procedure within 60 calendar days; and
(5) The title or position and address of the Privacy Act appeals
official for the Component.
(d) DoD Component appeal procedures. Establish internal appeal
procedures that, as a minimum, provide for:
(1) Review by the head of the Component or his or her designee of any
appeal by an individual from a denial of access to Component records.
(2) Formal written notification to the individual by the appeal
authority that shall:
(i) If the denial is sustained totally or in part, include as a
minimum:
(A) The exact reason for denying the appeal to include specific
citation to the provisions of the Act or other statute, this part,
Component instructions or the CFR upon which the determination is based;
(B) The date of the appeal determination;
(C) The name, title, and signature of the appeal authority;
(D) A statement informing the applicant of his or her right to seek
judicial relief.
(ii) If the appeal is granted, notify the individual and provide
access to the material to which access has been granted.
(3) The written appeal notification granting or denying access is the
final Component action as regards access.
(4) The individual shall file any appeals from denial of access
within no less than 60 calendar days of receipt of the denial
notification.
(5) Process all appeals within 30 days of receipt unless the appeal
authority determines that a fair and equitable review cannot be made
within that period. Notify the applicant in writing if additional time
is required for the appellate review. The notification must include the
reasons for the delay and state when the individual may expect an answer
to the appeal.
(e) Denial of appeals by failure to act. A requester may consider
his or her appeal formally denied if the authority fails:
(1) To act on the appeal within 30 days;
(2) To provide the requester with a notice of extension within 30
days; or
(3) To act within the time limits established in the Component's
notice of extension (see paragraph (d)(5) of this section).
(f) Denying access to OPM records held by DoD Components. (1) The
records in all systems of records maintained in accordance with the OPM
government-wide system notices are technically only in the temporary
custody of the Department of Defense.
(2) All requests for access to these records must be processed in
accordance with the Federal Personnel Manual (5 CFR parts 293, 294, 297
and 735) as well as the applicable Component procedures.
(3) When a DoD Component refuses to grant access to a record in an
OPM system, the Component shall instruct the individual to direct his or
her appeal to the appropriate Component appeal authority, not the Office
of Personnel Management.
(4) The Component is responsible for the administrative review of its
denial of access to such records.
(51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29,
1991, and amended at 56 FR 57800, Nov. 14, 1991)
32 CFR 310.32 Amendment of records.
(a) Individual review and correction. Individuals are encouraged to
review the personnel information being maintained about them by DoD
Components periodically and to avail themselves of the procedures
established by this part and any other Component regulations to update
their records.
(b) Amending records. (1) An individual may request the amendment of
any record contained in a system of records pertaining to him or her
unless the system of record has been exempted specifically from the
amendment procedures of this part under paragraph (b) of 310.50,
Subpart F. Normally, amendments under this part are limited to
correcting factual matters and not matters of official judgment, such as
performance ratings, promotion potential, and job performance
appraisals.
(2) While a Component may require that the request for amendment be
in writing, this requirement shall not be used to discourage individuals
from requesting valid amendments or to burden needlessly the amendment
process.
(3) A request for amendment must include:
(i) A description of the item or items to be amended;
(ii) The specific reason for the amendment;
(iii) The type of amendment action sought (deletion, correction, or
addition); and
(iv) Copies of available documentary evidence supporting the request.
(c) Burden of proof. The applicant must support adequately his or
her claim.
(d) Identification of requesters. (1) Individuals may be required to
provide identification to ensure that they are indeed seeking to amend a
record pertaining to themselves and not, inadvertently or intentionally,
the record of others.
(2) The indentification procedures shall not be used to discourage
legitimate requests or to burden needlessly or delay the amendment
process. (See paragraph (c) of 310.30).
(e) Limits on attacking evidence previously submitted. (1) The
amendment process is not intended to permit the alteration of evidence
presented in the course of judicial or quasi-judicial proceedings. Any
amendments or changes to these records normally are made through the
specific procedures established for the amendment of such records.
(2) Nothing in the amendment process is intended or designed to
permit a collateral attack upon what has already been the subject of a
judicial or quasi-judicial determination. However, while the individual
may not attack the accuracy of the judicial or quasi-judicial
determination under this part, he or she may challenge the accuracy of
the recording of that action.
(f) Sufficiency of a request to amend. Consider the following
factors when evaluating the sufficiency of a request to amend:
(1) The accuracy of the information itself; and
(2) The relevancy, timeliness, completeness, and necessity of the
recorded information for accomplishing an assigned mission or purpose.
(g) Time limits. (1) Provide written acknowledgement of a request to
amend within 10 working days of its receipt by the appropriate systems
manager. There is no need to acknowledge a request if the action is
completed within 10 working days and the individual is so informed.
(2) The letter of acknowledgement shall clearly identify the request
and advise the individual when he or she may expect to be notified of
the completed action.
(3) Only under the most exceptional circumstances shall more than 30
days be required to reach a decision on a request to amend. Document
fully and explain in the Privacy Act case file (see paragraph (p) of
this section) any such decision that takes more than 30 days to resolve.
(h) Agreement to amend. If the decision is made to grant all or part
of the request for amendment, amend the record accordingly and notify
the requester.
(i) Notification of previous recipients. (1) Notify all previous
recipients of the information, as reflected in the disclosure accounting
records, that an amendment has been made and the substance of the
amendment. Recipients who are known to be no longer retaining the
information need not be advised of the amendment. All DoD Components
and federal agencies known to be retaining the record or information,
even if not reflected in a disclosure record, shall be notified of the
amendment. Advise the requester of these notifications.
(2) Honor all requests by the requester to notify specific federal
agencies of the amendment action.
(j) Denying amendment. If the request for amendment is denied in
whole or in part, promptly advise the individual in writing of the
decision to include:
(1) The specific reason and authority for not amending;
(2) Notification that he or she may seek further independent review
of the decision by the head of the Component or his or her designee;
(3) The procedures for appealing the decision citing the position and
address of the official to whom the appeal shall be addressed; and
(4) Where he or she can receive assistance in filing the appeal.
(k) DoD Component appeal procedures. Establish procedures to ensure
the prompt, complete, and independent review of each amendment denial
upon appeal by the individual. These procedures must ensure that:
(1) The appeal with all supporting materials both that furnished the
individual and that contained in Component records is provided to the
reviewing official, and
(2) If the appeal is denied completely or in part, the individual is
notified in writing by the reviewing official that:
(i) The appeal has been denied and the specific reason and authority
for the denial;
(ii) The individual may file a statement of disagreement with the
appropriate authority and the procedures for filing this statement;
(iii) If filed properly, the statement of disagreement shall be
included in the records, furnished to all future recipients of the
records, and provided to all prior recipients of the disputed records
who are known to hold the record; and
(iv) The individual may seek a judicial review of the decision not to
amend.
(3) If the record is amended, ensure that:
(i) The requester is notified promptly of the decision;
(ii) All prior known recipients of the records who are known to be
retaining the record are notified of the decision and the specific
nature of the amendment (see paragraph (i) of this section); and
(iii) The requester is notified as to which DoD Components and
federal agencies have been told of the amendment.
(4) Process all appeals within 30 days unless the appeal authority
determines that a fair review cannot be made within this time limit. If
additional time is required for the appeal, notify the requester, in
writing, of the delay, the reason for the delay, and when he or she may
expect a final decision on the appeal. Document fully all requirements
for additional time in the Privacy Case File. (See paragraph (p) of
this section)
(l) Denying amendment of OPM records held by DoD Components. (1) The
records in all systems of records controlled by the Office of Personnel
Management (OPM) government-wide system notices are technically only
temporarily in the custody of the Department of Defense.
(2) All requests for amendment of these records must be processed in
accordance with the OPM Federal Personnel Manual (5 CFR parts 293, 294,
297 and 735). The Component denial authority may deny a request.
However, the appeal process for all such denials must include a review
by the Assistant Director for Agency Compliance and Evaluation, Office
of Personnel Management, 1900 E Street NW, Washington, DC 20415.
(3) When an appeal is received from a Component's denial of amendment
of the OPM controlled record, process the appeal in accordance with the
OPM Federal Personnel Manual (5 CFR parts 293, 294, 297 and 735) and
notify the OPM appeal authority listed above.
(4) The individual may appeal any Component decision not to amend the
OPM records directly to OPM.
(5) OPM is the final review authority for any appeals from a denial
to amend the OPM records.
(m) Statements of disagreement submitted by individuals. (1) If the
reviewing authority refuses to amend the record as requested, the
individual may submit a concise statement of disagreement setting forth
his or her reasons for disagreeing with the decision not to amend.
(2) If an individual chooses to file a statement of disagreement,
annotate the record to indicate that the statement has been filed (see
paragraph (n) of this section).
(3) Furnish copies of the statement of disagreement to all DoD
Components and federal agencies that have been provided copies of the
disputed information and who may be maintaining the information.
(n) Maintaining statements of disagreement. (1) When possible,
incorporate the statement of disagreement into the record.
(2) If the statement cannot be made a part of the record, establish
procedures to ensure that it is apparent from the records that a
statement of disagreement has been filed and maintain the statement so
that it can be obtained readily when the disputed information is used or
disclosed.
(3) Automated record systems that are not programed to accept
statements of disagreement shall be annotated or coded so that they
clearly indicate that a statement of disagreement is on file, and
clearly identify the statement with the disputed information in the
system.
(4) Provide a copy of the statement of disagreement whenever the
disputed information is disclosed for any purpose.
(o) DoD Component summaries of reasons for refusing to amend. (1) A
summary of reasons for refusing to amend may be included with any record
for which a statement of disagreement is filed.
(2) Include in this summary only the reasons furnished to the
individual for not amending the record. Do not include comments on the
statement of disagreement. Normally, the summary and statement of
disagreement are filed together.
(3) When disclosing information for which a summary has been filed, a
copy of the summary may be included in the release, if the Component
desires.
(p) Privacy Case Files. (1) Establish a separate Privacy Case File
to retain the documentation received and generated during the amendment
or access process.
(2) The Privacy Case File shall contain as a minimum:
(i) The request for amendment or access;
(ii) Copies of the DoD Component's reply granting or denying the
request;
(iii) Any appeals from the individual;
(iv) Copies of the action regarding the appeal with supporting
documentation which is not in the basic file; and
(v) Any other correspondence generated in processing the appeal, to
include coordination documentation.
(3) Only the items listed in paragraphs (p)(4) and (s) of this
section may be included in the system of records challenged for
amendment or for which access is sought. Do not retain copies of
unamended records in the basic record system if the request for
amendment is granted.
(4) The following items relating to an amendment request may be
included in the disputed record system:
(i) Copies of the amended record.
(ii) Copies of the individual's statement of disagreement (see
paragraph (m) of this section).
(iii) Copies of Component summaries (see paragraph (o) of this
section).
(iv) Supporting documentation submitted by the individual.
(5) The following items relating to an access request may be included
in the basic records system:
(i) Copies of the request;
(ii) Copies of the Component's action granting total access.
Note. -- A separate Privacy case file need not be created in such
cases.
(iii) Copies of the Component's action denying access;
(iv) Copies of any appeals filed;
(v) Copies of the reply to the appeal.
(6) There is no need to establish a Privacy case file if the
individual has not cited the Privacy Act (reference (b)), this part, or
the Component implementing instruction for this part.
(7) Privacy case files shall not be furnished or disclosed to anyone
for use in making any determination about the individual other than
determinations made under this part.
(51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29,
1991, and amended at 56 FR 57800, Nov. 14, 1991)
32 CFR 310.33 Reproduction fees.
(a) Assessing fees. (1) Charge the individual only the direct cost
of reproduction.
(2) Do not charge reproduction fees if copying is:
(i) The only means to make the record available to the individual
(for example, a copy of the record must be made to delete classified
information); or
(ii) For the convenience of the DoD Component (for example, the
Component has no reading room where an individual may review the record,
or reproduction is done to keep the original in the Component's file).
(3) No fees shall be charged when the record may be obtained without
charge under any other regulation, directive, or statute.
(4) Do not use fees to discourage requests.
(b) No minimum fees authorized. Use fees only to recoup direct
reproduction costs associated with granting access. Minimum fees for
duplication are not authorized and there is no automatic charge for
processing a request.
(c) Prohibited fees. Do not charge or collect fees for:
(1) Search and retrieval of records;
(2) Review of records to determine releasability;
(3) Copying records for DoD Component convenience or when the
individual has not specifically requested a copy;
(4) Transportation of records and personnel; or
(5) Normal postage.
(d) Waiver of fees. (1) Normally, fees are waived automatically if
the direct costs of a given request is less than $30. This fee waiver
provision does not apply when a waiver has been granted to the
individual before, and later requests appear to be an extension or
duplication of that original request. A DoD Component may, however, set
aside this automatic fee waiver provision when on the basis of good
evidence it determines that the waiver of fees is not in the public
interest.
(2) Decisions to waiver or reduce fees that exceed the automatic
waiver threshold shall be made on a case-by-case basis.
(e) Fees for members of Congress. Do not charge members of Congress
for copying records furnished even when the records are requested under
the Privacy Act on behalf of a constituent (see 310.41(k) of Subpart
E). When replying to a constituent inquiry and the fees involved are
substantial, consider suggesting to the Congressman that the constituent
can obtain the information directly by writing to the appropriate
offices and paying the costs. When practical, suggest to the
Congressman that the record can be examined at no cost if the
constituent wishes to visit the custodian of the record.
(f) Reproduction fees computation. Compute fees using the
appropriate portions of the fee schedule in Subpart G of the DoD Freedom
of Information Program (32 CFR part 286).
(51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29,
1991, and amended at 56 FR 57800, Nov. 14, 1991)
32 CFR 310.33 Subpart E -- Disclosure of Personal Information to Other Agencies and Third Parties
32 CFR 310.40 Conditions of disclosure.
(a) Disclosures to third parties. (1) The Privacy Act only compels
disclosure of records from a system of records to the individuals to
whom they pertain.
(2) All requests by individual for personal information about other
individuals (third parties) shall be processed under the DoD Freedom of
Information Program (32 CFR part 286), except for requests by the
parents of a minor, or legal guardians of an individual, for access to
the records pertaining to the minor or individual.
(b) Disclosures among DoD Components. For the purposes of disclosure
and disclosure accounting, the Department of Defense is considered a
single agency (see 310.41(a)).
(c) Disclosures outside the Department of Defense. Do not disclose
personal information from a system of records outside the Department of
Defense unless:
(1) The record has been requested by the individual to whom it
pertains.
(2) The written consent of the individual to whom the record pertains
has been obtained for release of the record to the requesting agency,
activity, or individual, or
(3) The release is for one of the specific nonconsensual purposes set
forth in 310.41 of this part.
(d) Validation before disclosure. Except for releases made in
accordance with the Freedom of Information Act (5 U.S.C. 552), before
disclosing any personal information to any recipient outside the
Department of Defense other than a federal agency or the individual to
whom it pertains:
(1) Ensure that the records are accurate, timely, complete, and
relevant for agency purposes;
(2) Contact the individual, if reasonably available, to verify the
accuracy, timeliness, completeness, and relevancy of the information, if
the cannot be determined from the record; or
(3) If the information is not current and the individual is not
reasonably available, advise the recipient that the information is
believed accurate as of a specific date and any other known factors
bearing on its accuracy and relevancy.
(51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29,
1991, and amended at 56 FR 57800, Nov. 14, 1991)
32 CFR 310.41 Nonconsensual disclosures.
(a) Disclosures within the Department of Defense. (1) Records
pertaining to an individual may be disclosed without the consent of the
individual to any DoD official who has need for the record in the
performance of his or her assigned duties.
(2) Rank, position, or title alone do not authorize access to
personal information about others. An official need for the information
must exist before disclosure.
(b) Disclosures under the Freedom of Information Act. (1) All
records must be disclosed if their release is required by the Freedom of
Information Act (5 U.S.C 552) see also the DoD Freedom of Information
Program (32 CFR part 286). The Freedom of Information Act requires that
records be made available to the public unless exempted from disclosure
by one of the nine exemptions found in the Act. It follows, therefore,
that if a record is not exempt from disclosure it must be disclosed.
(2) The standard for exempting most personal records, such as
personnel records, medical records, and similar records, is found in
Exemption Number 6 of 32 CFR 286.31. Under that exemption, release of
personal information can only be denied when its release would be a
''clearly unwarranted invasion of personal privacy.''
(3) Release of personal information in investigatory records
including personnel security investigation records is controlled by the
broader standard of an ''unwarranted invasion of personal privacy''
found in Exemption Number 7 of 32 CFR 286.31. This broader standard
applies only to investigatory records.
(4) See 32 CFR part 286 for the standards to use in applying these
exemptions.
(c) Personal information that is normally releasable -- (1) DoD
civilian employees. (i) Some examples of personal information regarding
DoD civilian employees that normally may be released without a clearly
unwarranted invasion of personal privacy include:
(A) Name.
(B) Present and past postion titles.
(C) Present and past grades.
(D) Present and past salaries.
(E) Present and past duty stations.
(F) Office or duty telephone numbers.
(ii) All disclosures of personal information regarding federal
civilian employees shall be made in accordance with the Federal
Personnel Manual (FPM) 5 CFR parts 293, 294, 297 and 735.
(2) Military members. (i) While it is not possible to identify
categorically information that must be released or withheld from
military personnel records in every instance, the following items of
personal information regarding military members normally may be
disclosed without a clearly unwarranted invasion of their personal
privacy:
(A) Full name.
(B) Rank.
(C) Date of rank.
(D) Gross salary.
(E) Past duty assignments.
(F) Present duty assignment.
(G) Future assignments that are officially established.
(H) Office of duty telephone numbers.
(I) Source of commission.
(J) Promotion sequence number.
(K) Awards and decorations.
(L) Attendance at professional military schools.
(M) Duty status at any given time.
(ii) All releases of personal information regarding military members
shall be made in accordance with the standards established by 32 CFR
part 286.
(3) Civilian employees not under the FPM. (i) While it is not
possible to identify categorically those items of personal information
that must be released regarding civilian employees not subject to the
Federal Personnel Manual (5 CFR parts 293, 294, 297 and 735), such as
nonappropriated fund employees, normally the following items may be
released without a clearly unwarranted invasion of personal privacy:
(A) Full name.
(B) Grade or position.
(C) Date of grade.
(D) Gross salary.
(E) Present and past assignments.
(F) Future assignments, if officially established.
(G) Office or duty telephone numbers.
(ii) All releases of personal information regarding civilian
personnel in this category shall be made in accordance with the
standards established by 32 CFR part 286, the DoD Freedom of Information
Program.
(d) Release of home addresses and home telephone numbers. (1) The
release of home addresses and home telephone numbers normally is
considered a clearly unwarranted invasion of personal privacy and is
prohibited. However, these may be released without prior specific
consent of the individual if:
(i) The individual has indicated previously that he or she interposes
no objection to their release (see paragraphs (d)(3) and (4) of this
section);
(ii) The source of the information to be released is a public
document such as commercial telephone directory or other public listing;
(iii) The release is required by federal statute (for example,
pursuant to federally-funded state programs to locate parents who have
defaulted on child support payments (42 U.S.C. 653); or
(iv) The releasing official releases the information under the
provisions of the DoD Freedom of Information Act Program (32 CFR part
286).
(2) A request for a home address or telephone number may be referred
to the last known address of the individual for a direct reply by him or
her to the requester. In such cases the requester shall be notified of
the referral.
(3) When collecting lists of home addresses and telephone numbers,
the individual may be offered the option of authorizing the information
pertaining to him or her to be disseminated without further permission
for specific purposes, such as locator services. In these cases, the
information may be disseminated for the stated purpose without further
consent. However, if the information is to be disseminated for any
other purpose, a new consent is required. Normally such consent for
release is in writing and signed by the individual.
(4) Before listing home addresses and home telephone numbers in DoD
telephone directories, give the individuals the opportunity to refuse
such a listing. Excuse the individual from paying any additional cost
that may be associated with maintaining an unlisted number for
government-owned telephone services if the individual requests his or
her number not be listed in the directory under this part.
(5) Do not sell or rent lists of individual names and addresses
unless such action is specifically authorized.
(e) Disclosures for established routine uses. (1) Records may be
disclosed outside the Department of Defense without consent of the
individual to whom they pertain for an established routine use.
(2) A routine use shall:
(i) Be compatible with and related to the purpose for which the
record was compiled;
(ii) Identify the persons or organizations to whom the record may be
released;
(iii) Identify specifically the uses to which the information may be
put by the receiving agency; and
(iv) Have been published previously in the Federal Register (see
310.62(i), subpart G).
(3) Establish a routine use for each user of the information outside
the Department of Defense who need official access to the records.
(4) Routine uses may be established, discontinued, or amended without
the consent of the individuals involved. However, new or changed
routine uses must be published in the Federal Register at least 30 days
before actually disclosing any records under their provisions (see
subpart G).
(5) In addition to the routine uses established by the individual
system notices, common blanket routine uses for all DoD-maintained
systems of records have been established (see Appendix C). These
blanket routine uses are published only at the beginning of the listing
of system notices for each Component in the Federal Register (see
paragraph 310.62(a)(1), subpart G). Unless a system notice
specifically excludes a system from a given blanket routine use, all
blanket routine uses apply.
(6) If the recipient has not been identified in the Federal Register
or a use to which the recipient intends to put the record has not been
published in the system notice as a routine use, the written permission
of the individual is required before release or use of the record for
that purpose.
(f) Disclosures to the Bureau of the Census. Records in DoD systems
of records may be disclosed without the consent of the individuals to
whom they pertain to the Bureau of the Census for purposes of planning
or carrying out a census survey or related activities pursuant to the
provisions of 13 U.S.C. 8.
(g) Disclosures for statistical research and reporting. (1) Records
may be disclosed for statistical research and reporting without the
consent of the individuals to whom they pertain. Before such
disclosures the recipient must provide advance written assurance that:
(i) The records will be used as statistical research or reporting
records;
(ii) The records will only be transferred in a form that is not
individually identifiable; and
(iii) The records will not be used, in whole or in part, to make any
determination about the rights, benefits, or entitlements of specific
individuals.
(2) A disclosure accounting (see paragraph (a) of 310.44) is not
required when information that is not identifiable individually is
released for statistical research or reporting.
(h) Disclosures to the National Archives and Records Administration
(NARA) General Services Administration. (1) Records may be disclosed
without the consent of the individual to whom they pertain to the NARA
if they:
(i) Have historical or other value to warrant continued preservation;
or
(ii) For evaluation by the NARA to determine if a record has such
historical or other value.
(2) Records transferred to a Federal Records Center (FRC) for
safekeeping and storage do not fall within this category. These remain
under the control of the transferring Component, and the FRC personnel
are considered agents of the Component which retains control over the
records. No disclosure accounting is required for the transfer of
records to the FRCs.
(i) Disclosures for law enforcement purposes. (1) Records may be
disclosed without the consent of the individual to whom they pertain to
another agency or an instrumentality of any governmental jurisdiction
within or under the control of the United States for a civil or criminal
law enforcement activity, provided:
(i) The civil or criminal law enforcement activity is authorized by
law;
(ii) The head of the law enforcement activity or a designee has made
a written request specifying the particular records desired and the law
enforcement purpose (such as criminal investigations, enforcement of a
civil law, or a similar purpose) for which the record is sought; and
(iii) There is no federal statute that prohibits the disclosure of
the records.
(2) Normally, blanket requests for access to any and all records
pertaining to an individual are not honored.
(3) When a record is released to a law enforcement activity under
paragraph (i)(1) of this section, maintain a disclosure accounting.
This disclosure accounting shall not be made available to the individual
to whom the record pertains if the law enforcement activity requests
that the disclosure not be released.
(4) The blanket routine use for Law Enforcement (Appendix C, section
A.) applies to all DoD Component systems notices (see paragraph (e)(5)
of this section). Only by including this routine use can a Component,
on its own initiative, report indications of violations of law found in
a system of records to a law enforcement activity without the consent of
the individual to whom the record pertains (see paragraph (i)(1) of this
section when responding to requests from law enforcement activities).
(j) Emergency disclosures. (1) Records may be disclosed without the
consent of the individual to whom they pertain if disclosure is made
under compelling circumstances affecting the health or safety of any
individual. The affected individual need not be the subject of the
record disclosed.
(2) When such a disclosure is made, notify the individual who is the
subject of the record. Notification sent to the last known address of
the individual as reflected in the records is sufficient.
(3) The specific data to be disclosed is at the discretion of
releasing authority.
(4) Emergency medical information may be released by telephone.
(k) Disclosures to Congress and the General Accounting Office. (1)
Records may be disclosed without the consent of the individual to whom
they pertain to either House of the Congress or to any committee, joint
committee or subcommittee of Congress if the release pertains to a
matter within the jurisdiction of the committee. Records may also be
disclosed to the General Accounting Office (GAO) in the course of the
activities of GAO.
(2) The blanket routine use for ''Congressional Inquiries'' (see
Appendix C, section D.) applies to all systems; therefore, there is no
need to verify that the individual has authorized the release of his or
her record to a congressional member when responding to a congressional
constituent inquiry.
(3) If necessary, accept constituent letters requesting a member of
Congress to investigate a matter pertaining to the individual as written
authorization to provide access to the records to the congressional
member or his or her staff.
(4) The verbal statement by a congressional staff member is
acceptable to establish that a request has been received from the person
to whom the records pertain.
(5) If the constituent inquiry is being made on behalf of someone
other than the individual to whom the record pertains, provide the
congressional member only that information releasable under the Freedom
of Information Act (5 U.S.C. 552). Advise the congressional member that
the written consent of the individual to whom the record pertains is
required before any additional information may be released. Do not
contact individuals to obtain their consents for release to
congressional members unless a congressional office specifically
requests that this be done.
(6) Nothing in paragraph (k)(2) of this section prohibits a
Component, when appropriate, from providing the record directly to the
individual and notifying the congressional office that this has been
done without providing the record to the congressional member.
(7) See paragraph (e) of 310.33 for the policy on assessing fees for
Members of Congress.
(8) Make a disclosure accounting each time a record is disclosed to
either House of Congress, to any committee, joint committee, or
subcommittee of Congress, to any congressional member, or GAO.
(l) Disclosures under court orders. (1) Records may be disclosed
without the consent of the person to whom they pertain under a court
order signed by a judge of a court of competent jurisdiction. Releases
may also be made under the compulsory legal process of federal or state
bodies having authority to issue such process.
(2) When a record is disclosed under this provision, make reasonable
efforts to notify the individual to whom the record pertains, if the
legal process is a matter of public record.
(3) If the process is not a matter of public record at the time it is
issued, seek to be advised when the process is made public and make
reasonable efforts to notify the individual at that time.
(4) Notification sent to the last known address of the individual as
reflected in the records is considered reasonable effort to notify.
(5) Make a disclosure accounting each time a record is disclosed
under a court order or compulsory legal process.
(m) Disclosures to consumer reporting agencies. (1) Certain personal
information may be disclosed to consumer reporting agencies as defined
by the Federal Claims Collection Act of 1966, as amended (31 U.S.C.
952(d)).
(2) Under the provisions of paragraph (m)(1) of this section, the
following information may be disclosed to a consumer reporting agency:
(i) Name, address, taxpayer identification number (SSN), and other
information necessary to establish the identity of the individual.
(ii) The amount, status, and history of the claim.
(iii) The agency or program under which the claim arose.
(3) The Federal Claims Collection Act of 1966, as amended (31 U.S.C.
952(d)) specifically requires that the system notice for the system of
records from which the information will be disclosed indicates that the
information may be disclosed to a ''consumer reporting agency.''
(51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29,
1991, and amended at 56 FR 57800, Nov. 14, 1991)
32 CFR 310.42 Disclosures to commercial enterprises.
(a) General policy. (1) Make releases of personal information to
commercial enterprises under the criteria established by the DoD Freedom
of Information Program (32 CFR part 286).
(2) The relationship of commercial enterprises to their clients or
customers and to the Department of Defense are not changed by this part.
(3) The DoD policy on personal indebtedness for military personnel is
contained in 32 CFR part 43a and for civilian employees in the Office of
Personnel Management, Federal Personnel Manual (5 CFR part 550).
(b) Release of personal information. (1) Any information that must
be released under the Freedom of Information (5 U.S.C. 552) may be
released to a commercial enterprise without the individual's consent
(see paragraph (b) of 310.41 of this subpart).
(2) Commercial enterprises may present a signed consent statement
setting forth specific conditions for release of personal information.
Statements such as the following, if signed by the individual, are
considered valid:
I hereby authorize the Department of Defense to verify my Social
Security Number or other identifying information and to disclose my home
address and telephone number to authorized representatives of (name of
commercial enterprise) so that they may use this information in
connection with my commercial dealings with that enterprise. All
information furnished will be used in connection with my financial
relationship with (name of commercial enterprise).
(3) When a statement of consent as outlined in paragraph (b)(2) of
this section is presented, provide the requested information if its
release is not prohibited by some other regulation or statute.
(4) Blanket statements of consent that do not identify specifically
the Department of Defense or any of its Components, or that do not
specify exactly the type of information to be released, may be honored
if it is clear that the individual in signing the consent statement
intended to obtain a personal benefit (for example, a loan to buy a
house) and was aware of the type information that would be sought. Care
should be exercised in these situations to release only the minimum
amount of personal information essential to obtain the benefit sought.
(5) Do not honor request from commercial enterprises for official
evaluation of personal characteristics, such as evaluation of personal
financial habits.
32 CFR 310.43 Disclosures to the public from health care records.
(a) Section applicability. This section applies to the release of
information to the news media or the public concerning persons treated
or hospitalized in DoD medical facilities and patients of nonfederal
medical facilities for whom the cost of the care is paid by the
Department of Defense.
(b) General disclosure. Normally, the following may be released
without the patient's consent.
(1) Personal information concerning the patient. See 32 CFR part
286, The DoD Freedom of Information Act Program and paragraph (c) of
310.41.
(2) Medical condition:
(i) Date of admission or disposition;
(ii) The present medical assessment of the individual's condition in
the following terms if the medical doctor has volunteered the
information:
(A) The individual's condition is presently (stable) (good) (fair)
(serious) or (critical), and
(B) Whether the patient is conscious, semiconscious, or unconscious.
(c) Individual consent. (1) Detailed medical and other personal
information may be released in response to inquiries from the news media
and public if the patient has given his or her informed consent to such
a release.
(2) If the patient is not conscious or competent, no personal
information except that required by the Freedom of Information Act (5
U.S.C. 552) shall be released until there has been enough improvement in
the patient to ensure he or she can give informed consent or a guardian
has been appointed legally for the patient and the guardian has given
consent on behalf of the patient.
(3) The consent described in paragraph (c)(1) of this section
regarding patients who are minors must be given by the parent of legal
guardian.
(d) Information that may be released with individual consent. (1)
Any item of personal information may be released, if the patient has
given his or her informed consent to its release.
(2) Releasing medical information about patients shall be done with
discretion, so as not to embarrass the patient, his or her family, or
the Department of Defense, needlessly.
(e) Disclosures to other government agencies. This subpart does not
limit the disclosures of personal medical information to other
government agencies for use in determining eligibility for special
assistance or other benefits.
(51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29,
1991, and amended at 56 FR 57800, Nov. 14, 1991)
32 CFR 310.44 Disclosure accounting.
(a) Disclosure accountings. (1) Keep an accurate record of all
disclosures made from any system of records except disclosures:
(i) To DoD personnel for use in the performance of their official
duties; or
(ii) Under 32 CFR part 286, The DoD Freedom of Information Program.
(2) In all other cases a disclosure accounting is required even if
the individual has consented to the disclosure of the information
pertaining to him or her.
(3) Disclosure accountings:
(i) Permit individuals to determine to whom information has been
disclosed;
(ii) Enable the activity to notify past recipients of disputed or
corrected information ( 310.32(i)(1), subpart D); and
(iii) Provide a method of determining compliance with paragraph (c)
of 310.40.
(b) Contents of disclosure accountings. As a minimum, disclosure
accounting shall contain:
(1) The date of the disclosure.
(2) A description of the information released.
(3) The purpose of the disclosure.
(4) The name and address of the person or agency to whom the
disclosure was made.
(c) Methods of disclosure accounting. Use any system of disclosure
accounting that will provide readily the necessary disclosure
information (see paragraph (a)(3) of this section).
(d) Accounting for mass disclosures. When numerous similar records
are released (such as transmittal of payroll checks to a bank), identify
the category of records disclosed and include the data required by
paragraph (b) of this section in some form that can be used to construct
an accounting disclosure record for individual records if required (see
paragraph (a)(3) of this section).
(e) Disposition of disclosure accounting records. Retain disclosure
accounting records for 5 years after the disclosure or the life of the
record, whichever is longer.
(f) Furnishing disclosure accountings to the individual. (1) Make
available to the individual to whom the record pertains all disclosure
accountings except when:
(i) The disclosure has been made to a law enforcement activity under
paragraph (i) of 310.41 and the law enforcement activity has requested
that disclosure not be made; or
(ii) The system of records has been exempted from the requirement to
furnish the disclosure accounting under the provisions of 310.50(b),
subpart F.
(2) If disclosure accountings are not maintained with the record and
the individual requests access to the accounting, prepare a listing of
all disclosures (see paragraph (b) of this section) and provide this to
the individual upon request.
(51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29,
1991, and amended at 56 FR 57800, Nov. 14, 1991)
32 CFR 310.44 Subpart F -- Exemptions
32 CFR 310.50 Use and establishment of exemptions.
(a) Types of exemptions. (1) There are two types of exemptions
permitted by the Privacy Act.
(i) General exemptions that authorize the exemption of a system of
records from all but certain specifically identified provisions of the
Act.
(ii) Specific exemptions that allow a system of records to be
exempted only from certain designated provisions of the Act.
(2) Nothing in the Act permits exemption of any system of records
from all provisions of the Act (see Appendix D).
(b) Establishing exemptions. (1) Neither general nor specific
exemptions are established automatically for any system of records. The
head of the DoD Component maintaining the system of records must make a
determination whether the system is one for which an exemption properly
may be claimed and then propose and establish an exemption rule for the
system. No system of records within the Department of Defense shall be
considered exempted until the head of the Component has approved the
exemption and an exemption rule has been published as a final rule in
the Federal Register (see 310.60(e), subpart G).
(2) Only the head of the DoD Component or an authorized designee may
claim an exemption for a system of records.
(3) A system of records is considered exempt only from those
provisions of the Privacy Act (5 U.S.C. 552a) which are identified
specifically in the Component exemption rule for the system and which
are authorized by the Privacy Act.
(4) To establish an exemption rule, see 310.61 of subpart G.
(c) Blanket exemption for classified material. (1) Include in the
Component rules a blanket exemption under 5 U.S.C. 552a(k)(1) of the
Privacy Act from the access provisions (5 U.S.C. 552a(d)) and the
notification of access procedures (5 U.S.C. 522a(e)(4)(H)) of the Act
for all classified material in any system of records maintained.
(2) Do not claim specifically an exemption under section 552a(k)(1)
of the Privacy Act for any system of records. The blanket exemption
affords protection to all classified material in all systems of records
maintained.
(d) Provisions from which exemptions may be claimed. (1) The head of
a DoD Component may claim an exemption from any provision of the Act
from which an exemption is allowed (see Appendix D).
(2) Notify the Defense Privacy Office ODASD(A) before claiming an
exemption for any system of records from the following:
(i) The exemption rule publication requirement (5 U.S.C. 552a(j)) of
the Privacy Act.
(ii) The requirement to report new systems of records (5 U.S.C.
552a(o)); or
(iii) The annual report requirement (5 U.S.C. 552a(p)).
(e) Use of exemptions. (1) Use exemptions only for the specific
purposes set forth in the exemption rules (see paragraph (b) of 310.61,
subpart G).
(2) Use exemptions only when they are in the best interest of the
government and limit them to the specific portions of the records
requiring protection.
(3) Do not use an exemption to deny an individual access to any
record to which he or she would have access under the Freedom of
Information Act (5 U.S.C. 552).
(f) Exempt records in nonexempt systems. (1) Exempt records
temporarily in the hands of another Component are considered the
property of the originating Component and access to these records is
controlled by the system notices and rules of the originating Component.
(2) Records that are actually incorporated into a system of records
may be exempted only to the extent the system of records into which they
are incorporated has been granted an exemption, regardless of their
original status or the system of records for which they were created.
(3) If a record is accidentally misfiled into a system of records,
the system notice and rules for the system in which it should actually
be filed will govern.
(51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29,
1991, and amended at 56 FR 57800, Nov. 14, 1991)
32 CFR 310.51 General exemptions.
(a) Use of the general exemptions. (1) No DoD Component is
authorized to claim the exemption for records maintained by the Central
Intelligence Agency established by 5 U.S.C. 552a(j)(1) of the Privacy
Act.
(2) The general exemption established by 5 U.S.C. 552a(j)(2) of the
Privacy Act may be claimed to protect investigative records created and
maintained by law-enforcement activities of a DoD Component.
(3) To qualify for the (j)(2) exemption, the system of records must
be maintained by an element that performs as its principal function
enforcement of the criminal law, such as U.S. Army Criminal
Investigation Command (CIDC), Naval Investigative Service (NIS), the Air
Force Office of Special Investigations (AFOSI), and military police
activities. Law enforcement includes police efforts to detect, prevent,
control, or reduce crime, to apprehend or identify criminals; and the
activities of correction, probation, pardon, or parole authorities.
(4) Information that may be protected under the (j)(2) exemption
include:
(i) Records compiled for the purpose of identifying criminal
offenders and alleged offenders consisting only of identifying data and
notations of arrests, the nature and disposition of criminal charges,
sentencing, confinement, release, parole, and probation status
(so-called criminal history records);
(ii) Reports and other records compiled during criminal
investigations, to include supporting documentation.
(iii) Other records compiled at any stage of the criminal law
enforcement process from arrest or indictment through the final release
from parole supervision, such as presentence and parole reports.
(5) The (j)(2) exemption does not apply to:
(i) Investigative records prepared or maintained by activities
without primary law-enforcement missions. It may not be claimed by any
activity that does not have law enforcement as its principal function.
(ii) Investigative records compiled by any activity concerning
employee suitability, eligibility, qualification, or for individual
access to classified material regardless of the principal mission of the
compiling DoD Component.
(6) The (j)(2) exemption claimed by the law-enforcement activity will
not protect investigative records that are incorporated into the record
system of a nonlaw enforcement activity or into nonexempt systems of
records (see paragraph (f)(2) of 310.50). Therefore, all system
managers are cautioned to comply with the various regulations
prohibiting or limiting the incorporation of investigatory records into
system of records other than those maintained by law-enforcement
activities.
(b) Access to records for which a (j)(2) exemption is claimed.
Access to investigative records in the hands of a law-enforcement
activity or temporarily in the hands of a military commander or other
criminal adjudicative activity shall be processed under 32 CFR part 286,
The DoD Freedom of Information Act Program, provided that the system of
records from which the file originated is a law enforcement record
system that has been exempted from the access provisions of this part
(see paragraph (h) of 310.30, subpart D).
(51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29,
1991, and amended at 56 FR 57800, Nov. 14, 1991)
32 CFR 310.52 Specific exemptions.
(a) Use of the specific exemptions. The specific exemptions permit
certain categories of records to be exempted from certain specific
provisions of the Privacy Act (see Appendix D). To establish a specific
exemption, the records must meet the following criteria (parenthetical
references are to the appropriate subsection of the Privacy Act (5
U.S.C. 552a(k)):
(1) The (k)(1). Information specifically authorized to be classified
under the DoD Information Security Program Regulation, 32 CFR part 159.
(see also paragraph (c) of this section).
(2) The (k)(2). Investigatory information compiled for
law-enforcement purposes by nonlaw enforcement activities and which is
not within the scope of 310.51(a). If an individual is denied any
right, privilege or benefit that he or she is otherwise entitled by
federal law or for which he or she would otherwise be eligible as a
result of the maintenance of the information, the individual will be
provided access to the information except to the extent that disclosure
would reveal the identity of a confidential source. This subsection
when claimed allows limited protection of investigative reports
maintained in a system of records used in personnel or administrative
actions.
(3) The (k)(3). Records maintained in connection with providing
protective services to the President and other individuals under 18
U.S.C. 3506.
(4) The (k)(4). Records maintained solely for statistical research
or program evaluation purposes and which are not used to make decisions
on the rights, benefits, or entitlement of an individual except for
census records which may be disclosed under 13 U.S.C. 8.
(5) The (k)(5). Investigatory material compiled solely for the
purpose of determining suitability, eligibility, or qualifications for
federal civilian employment, military service, federal contracts, or
access to classified information, but only to the extent such material
would reveal the identity of a confidential source. This provision
allows protection of confidential sources used in background
investigations, employment inquiries, and similar inquiries that are for
personnel screening to determine suitability, eligibility, or
qualifications.
(6) The (k)(6). Testing or examination material used solely to
determine individual qualifications for appointment or promotion in the
federal or military service, if the disclosure would compromise the
objectivity or fairness of the test or examination process.
(7) The (k)(7). Evaluation material used to determine potential for
promotion in the Military Services, but only to the extent that the
disclosure of such material would reveal the identity of a confidential
source.
(b) Promises of confidentiality. (1) Only the identity of sources
that have been given an express promise of confidentiality may be
protected from disclosure under paragraphs (a)(2), (5) and (7) of this
section. However, the identity of sources who were given implied
promises of confidentiality in inquiries conducted before September 27,
1975, may also be protected from disclosure.
(2) Ensure that promises of confidentiality are used on a limited
basis in day-to-day operations. Establish appropriate procedures and
identify fully those categories of individuals who may make such
promises. Promises of confidentiality shall be made only when they are
essential to obtain the information sought.
(c) Access to records for which specific exemptions are claimed.
Deny the individual access only to those portions of the records for
which the claimed exemption applies.
(51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29,
1991, and amended at 56 FR 57800, Nov. 14, 1991)
32 CFR 310.52 Subpart G -- Publication Requirements
32 CFR 310.60 Federal Register publication.
(a) What must be published in the Federal Register. (1) Three types
of documents relating to the Privacy Program must be published in the
Federal Register:
(i) DoD Component Privacy Program rules;
(ii) Component exemption rules; and
(iii) System notices.
(2) See DoD 5025.1-M, ''Directives Systems Procedures,'' and DoD
Directive 5400.9, (32 CFR part 296) ''Publication of Proposed and
Adopted Regulations Affecting the Public'' for information pertaining to
the preparation of documents for publication in the Federal Register.
(b) The effect of publication in the Federal Register. Publication
of a document in the Federal Register constitutes official public notice
of the existence and content of the document.
(c) DoD Component rules. (1) Component Privacy Program procedures
and Component exemption rules are subject to the rulemaking procedures
prescribed in 32 CFR part 296.
(2) System notices are not subject to formal rulemaking and are
published in the Federal Register as ''Notices,'' not rules.
(3) Privacy procedural and exemption rules are incorporated
automatically into the Code of Federal Regulations (CFR). System
notices are not published in the CFR.
(d) Submission of rules for publication. (1) Submit to the Defense
Privacy Office, ODASD(A), all proposed rules implementing this part in
proper format (see Appendices E, F and G) for publication in the Federal
Register.
(2) This part has been published as a final rule in the Federal
Register (32 CFR part 310). Therefore, incorporate it into your
Component rules by reference rather than by republication.
(3) DoD Component rules that simply implement this part need only be
published as final rules in the Federal Register (see DoD 5025.1-M,
''Directives System Procedures,'' and DoD Directive 5400.9,
''Publication of Proposed and Adopted Regulations Affecting the
Public,'' (32 CFR part 296).
(4) Amendments to Component rules are submitted like the basic rules.
(5) The Defense Privacy Office ODASD(A) submits the rules and
amendments thereto to the Federal Register for publication.
(e) Submission of exemption rules for publication. (1) No system of
records within the Department of Defense shall be considered exempt from
any provision of this part until the exemption and the exemption rule
for the system has been published as a final rule in the Federal
Register (see paragraph (c) of this section).
(2) Submit exemption rules in proper format to the Defense Privacy
Office ODASD(A). After review, the Defense Privacy Office will submit
the rules to the Federal Register for publication.
(3) Exemption rules require publication both as proposed rules and
final rules (see DoD Directive 5400.9, 32 CFR part 296).
(4) Section 310.61 of this subpart discusses the content of an
exemption rule.
(5) Submit amendments to exemption rules in the same manner used for
establishing these rules.
(f) Submission of system notices for publication. (1) While system
notices are not subject to formal rulemaking procedures, advance public
notice must be given before a Component may begin to collect personal
information or use a new system of records. The notice procedures
require that:
(i) The system notice describes the contents of the record system and
the routine uses for which the information in the system may be
released.
(ii) The public be given 30 days to comment on any proposed routine
uses before implementation; and
(iii) The notice contain the data on which the system will become
effective.
(2) Submit system notices to the Defense Privacy Office in the
Federal Register format (see Appendix E). The Defense Privacy Office
transmits the notices to the Federal Register for publication.
(3) Section 310.62 of this subpart discusses the specific elements
required in a system notice.
(51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29,
1991, and amended at 56 FR 57800, Nov. 14, 1991)
32 CFR 310.61 Exemption rules.
(a) General procedures. Paragraph (b)(1) of 310.50, subpart F,
provides the general guidance for establishing exemptions for systems of
records.
(b) Contents of exemption rules. (1) Each exemption rule submitted
for publication must contain the following:
(i) The record system identification and title of the system for
which the exemption is claimed (see 310.62 of this subpart);
(ii) The specific subsection of the Privacy Act under which
exemptions for the system are claimed (for example, 5 U.S.C.
552a(j)(2), 5 U.S.C. 552a(k)(3); or 5 U.S.C. 552a(k)(7);
(iii) The specific provisions and subsections of the Privacy Act from
which the system is to be exempted (for example, 5 U.S.C. 552a(c)(3),
or 5 U.S.C. 552a(d)(1)-(5)) (see Appendix D); and
(iv) The specific reasons why an exemption is being claimed from each
subsection of the Act identified.
(2) Do not claim an exemption for classified material for individual
systems of records, since the blanket exemption applies (see paragraph
(c) of 310.50 of subpart F).
(51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29,
1991, and amended at 56 FR 57800, Nov. 14, 1991)
32 CFR 310.62 System notices.
(a) Contents of the system notices. (1) The following data captions
are included in each system notice:
(i) System identification (see paragraph (b) of this section).
(ii) System name (see paragraph (c) of this section).
(iii) System location (see paragraph (d) of this section).
(iv) Categories of individuals covered by the system (see paragraph
(e) of this section).
(v) Categories of records in the system (see paragraph (f) of this
section).
(vi) Authority for maintenance of the system (see paragraph (g) of
this section).
(vii) Purpose(s) (see paragraph (h) of this section).
(viii) Routine uses of records maintained in the system, including
categories of users, uses, and purposes of such uses (see paragraph (i)
of this section).
(ix) Policies and practices for storing, retrieving, accessing,
retaining, and disposing of records in the system (see paragraph (j) of
this section).
(x) Systems manager(s) and address (see paragraph (k) of this
section).
(xi) Notification procedure (see paragraph (l) of this section).
(xii) Record access procedures (see paragraph (m) of this section).
(xiii) Contesting records procedures (see paragraph (n) of this
section.)
(xiv) Record source categories (see paragraph (o) of this section).
(xv) Systems exempted from certain provision of the Act (see
paragraph (p) of this section).
(2) The captions listed in paragraph (a)(1) of this section have been
mandated by the Office of Federal Register and must be used exactly as
presented.
(3) A sample system notice is shown in Appendix E.
(b) System identification. The system identifier must appear on all
system notices and is limited to 21 positions, including Component code,
file number and symbols, punctuation, and spacing.
(c) System name. (1) The name of the system should reasonably
identify the general purpose of the system and, if possible, the general
categories of individuals involved.
(2) Use acronyms only parenthetically following the title or any
portion thereof, such as, ''Joint Uniform Military Pay System (JUMPS).''
Do not use acronyms that are not commonly known unless they are preceded
by an explanation.
(3) The system name may not exceed 55 character positions including
punctuation and spacing.
(d) System location. (1) For systems maintained in a single location
provide the exact office name, organizational identity, and address or
routing symbol.
(2) For geographically or organizationally decentralized systems,
specify each level of organization or element that maintains a segment
of the system.
(3) For automated data systems with a central computer facility and
input/output terminals at several geographically separated locations,
list each location by category.
(4) When multiple locations are identified by type of organization,
the system location may indicate that official mailing addresses are
contained in an address directory published as an appendix to the
Component system notices in the Federal Register. Information
concerning format requirements for preparation of an address directory
may be obtained from the project officer, Air Force 1st Information
Systems Group (AF/1ISG/GNR), Washington, DC 20330-6345.
(5) If no address directory is used or the addresses in the directory
are incomplete, the address of each location where a segment of the
record system is maintained must appear under the ''System Location''
caption.
(6) Classified addresses are not listed, but the fact that they are
classified is indicated.
(7) Use the standard U.S. Postal Service two letter state
abbreviation symbols and zip codes for all domestic addresses.
(e) Categories of individuals covered by the system. (1) Set forth
the specific categories of individuals to whom records in the system
pertain in clear, easily understood, nontechnical terms.
(2) Avoid the use of broad over-general descriptions, such as ''all
Army personnel'' or ''all military personnel'' unless this actually
reflects the category of individuals involved.
(f) Categories of records in the system. (1) Describe in clear,
nontechnical terms the types of records maintained in the system.
(2) Only documents actually retained in the system of records shall
be described, not source documents that are used only to collect data
and then destroyed.
(g) Authority for maintenance of the system. (1) Cite the specific
provision of the federal statute or Executive Order that authorizes the
maintenance of the system.
(2) Include with citations for statutes the popular names, when
appropriate (for example, Title 51, U.S. Code, section 2103,
''Tea-Tasters Licensing Act''), and for Executive Orders, the official
title (for example, Executive Order No. 9397, ''Numbering System for
Federal Accounts Relating to Individual Persons'').
(3) Cite the statute or Executive Order establishing the Component
for administrative housekeeping records.
(4) If the Component is chartered by a DoD Directive, cite that
Directive as well as the Secretary of Defense authority to issue the
Directive. For example, ''Pursuant to the authority contained in the
National Security Act of 1947, as amended (10 U.S.C. 133d), the
Secretary of Defense has issued DoD Directive 5105.21, the charter of
the Defense Intelligence Agency (DIA) as a separate Agency of the
Department of Defense under his control. Therein, the Director, DIA, is
charged with the responsibility of maintaining all necessary and
appropriate records.''
(h) Purpose or purposes. (1) List the specific purposes for
maintaining the system of records by the Component.
(2) Include the uses made of the information within the Component and
the Department of Defense (so-called ''internal routine uses'').
(i) Routine uses. (1) The blanket routine uses (Appendix C) that
appear at the beginning of each Component compilation apply to all
systems notices unless the individual system notice specifically states
that one or more of them do not apply to the system. List the blanket
routine uses at the beginning of the Component listing of system notices
(see paragraph (e)(5) of 310.41 of subpart E).
(2) For all other routine uses, when practical, list the specific
activity to which the record may be released, to include any routine
automated system interface (for example, ''to the Department of Justice,
Civil Rights Compliance Division,'' ''to the Veterans Administration,
Office of Disability Benefits,'' or ''to state and local health
agencies'').
(3) For each routine user identified, include a statement as to the
purpose or purposes for which the record is to be released to that
activity (see 310.41(e) of subpart E). The routine uses should be
compatible with the purpose for which the record was collected or
obtained (see 310.3(p), subpart A).
(4) Do not use general statements, such as, ''to other federal
agencies as required'' or ''to any other appropriate federal agency.''
(j) Policies and practices for storing, retiring, accessing,
retaining, and disposing of records. This caption is subdivided into
four parts:
(1) Storage. Indicate the medium in which the records are
maintained. (For example, a system may be ''automated'', maintained on
magnetic tapes or disks, ''manual'', maintained in paper files, or
''hybrid'', maintained in a combination of paper and automated form.)
Storage does not refer to the container or facility in which the records
are kept.
(2) Retrievability. Specify how the records are retrieved (for
example, name and SSN, name, SSN) and indicate whether a manual or
computerized index is required to retrieve individual records.
(3) Safeguards. List the categories of Component personnel having
immediate access and those responsible for safeguarding the records from
unauthorized access. Generally identify the system safeguards (such as
storage in safes, vaults, locked cabinets or rooms, use of guards,
visitor registers, personnel screening, or computer ''fail-safe''
systems software). Do not describe safeguards in such detail so as to
compromise system security.
(4) Retention and disposal. Indicate how long the record is
retained. When appropriate, also state the length of time the records
are maintained by the Component, when they are transferred to a Federal
Records Center, length of retention at the Record Center and when they
are transferred to the National Archivist or are destroyed. A reference
to a Component regulation without further detailed information is
insufficient.
(k) System manager(s) and address. (1) List the title and address of
the official responsible for the management of the system.
(2) If the title of the specific official is unknown, such as for a
local system, specify the local commander or office head as the systems
manager.
(3) For geographically separated or organizationally decentralized
activities for which individuals may deal directly with officials at
each location in exercising their rights, list the position or duty
title of each category of officials responsible for the system or a
segment thereof.
(4) Do not include business or duty addresses if they are listed in
the Component address directory.
(l) Notification procedures. (1) If the record system has been
exempted from subsection (e)(4)(G) of the Privacy Act (5 U.S.C. 552a)
(see 310.50)(d), so indicate.
(2) For all nonexempt systems, describe how an individual may
determine if there are records pertaining to him or her in the system.
The procedural rules may be cited, but include a brief procedural
description of the needed data. Provide sufficient information in the
notice to allow an individual to exercise his or her rights without
referral to the formal rules.
(3) As a minimum, the caption shall include:
(i) The official title (normally the system manager) and official
address to which the request is to be directed;
(ii) The specific information required to determine if there is a
record of the individual in the system.
(iii) Identification of the offices through which the individual may
obtain access; and
(iv) A description of any proof of identity required (see
310.30(c)(1)).
(4) When appropriate, the individual may be referred to a Component
official who shall provide this data to him or her.
(m) Record access procedures. (1) If the record system has been
exempted from subsection (e)(4)(H) of the Privacy Act (5 U.S.C. 552a)
(see 310.50(d)), so indicate.
(2) For all nonexempt records systems, describe the procedures under
which individuals may obtain access to the records pertaining to them in
the system.
(3) When appropriate, the individual may be referred to the system
manager or Component official to obtain access procedures.
(4) Do not repeat the addresses listed in the Component address
directory but refer the individual to that directory.
(n) Contesting record procedures. (1) If the record system has been
exempted from subsection (e)(4)(H) of the Privacy Act (5 U.S.C. 552a)
(see 310.50(d)), so indicate.
(2) For all nonexempt systems of records, state briefly how an
individual may contest the content of a record pertaining to him or her
in the system.
(3) The detailed procedures for contesting record accuracy, refusal
of access or amendment, or initial review and appeal need not be
included if they are readily available elsewhere and can be referred to
by the public. (For example, ''The Defense Mapping Agency rules for
contesting contents and for appealing initial determinations are
contained in DMA Instruction 5400.11 (32 CFR part 295c).'')
(4) The individual may also be referred to the system manager to
determine these procedures.
(o) Record source categories. (1) If the record system has been
exempted from subsection (e)(4)(I) of the Privacy Act (5 U.S.C. 552a)
(see 310.50(d), subpart F), so indicate.
(2) For all nonexempt systems of records, list the sources of the
information in the system.
(3) Specific individuals or institutions need not be identified by
name, particularly if these sources have been granted confidentiality
(see 310.52(b), subpart F).
(p) System exempted from certain provisions of the Act. (1) If no
exemption has been claimed for the system, indicate ''None.''
(2) If there is an exemption claimed indicate specifically under
which subsection of the Privacy Act (5 U.S.C. 552a) it is claimed.
(3) Cite the regulation and CFR section containing the exemption rule
for the system. (For example, ''Parts of this record system may be
exempt under Title 5 U.S. Code, 552a(k)(2) and (5), as applicable. See
exemption rules contained in Army Regulation 340-21 (32 CFR part
505).'')
(q) Maintaining the master DoD system notice registry. (1) The
Defense Privacy Office, ODASD(A) maintains a master registry of all DoD
record systems notices.
(2) Coordinate with the Defense Privacy Office, ODASD(A) to ensure
that all new systems are added to the master registry and all amendments
and alterations are incorporated into the master registry.
(51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29,
1991, and amended at 56 FR 57800, Nov. 14, 1991)
32 CFR 310.63 New and altered record systems.
(a) Criteria for a new record system. (1) A new system of records is
one for which there has been no system notice published in the Federal
Register.
(2) If a notice for a system of records has been canceled or deleted
before reinstating or reusing the system, a new system notice must be
published in the Federal Register.
(b) Criteria for an altered record system. A system is considered
altered whenever one of the following actions occurs or is proposed:
(1) A significant increase or change in the number or type of
individuals about whom records are maintained.
(i) Only changes that alter significantly the character and purpose
of the record system are considered alterations.
(ii) Increases in numbers of individuals due to normal growth are not
considered alterations unless they truly alter the character and purpose
of the system;
(iii) Increases that change significantly the scope of population
covered (for example, expansion of a system of records covering a single
command's enlisted personnel to include all of the Component's enlisted
personnel would be considered an alteration).
(iv) A reduction in the number of individuals covered is not an
alteration, but only an amendment (see paragraph (a) of 310.64 of this
subpart).
(v) All changes that add new categories of individuals to system
coverage require a change to the ''Categories of individuals covered by
the system'' caption of the notice ( 310.62(e)) and may require changes
to the ''Purpose(s)'' caption ( 310.62(h)).
(2) An expansion in the types or categories of information
maintained.
(i) The addition of any new category of records not described under
the ''Categories of Records in System'' caption is considered an
alteration.
(ii) Adding a new data element which is clearly within the scope of
the categories of records described in the existing notice is an
amendment (see 310.64(a) of this subpart).
(iii) All changes under this criterion require a change to the
''Categories of Records in System'' caption of the notice (see
310.62(f) of this subpart).
(3) An alteration in the manner in which the records are organized or
the manner in which the records are indexed and retrieved.
(i) The change must alter the nature of use or scope of the records
involved (for example, combining records systems in a reorganization).
(ii) Any change under this criteria requires a change in the
''Retrievability'' caption of the system notice (see 310.62(j)(2) of
this subpart).
(iii) If the records are no longer retrieved by name or personal
identifier cancel the system notice (see 310.10(a) of subpart B).
(4) A change in the purpose for which the information in the system
is used.
(i) The new purpose must not be compatible with the existing purposes
for which the system is maintained or a use that would not reasonably be
expected to be an alteration.
(ii) If the use is compatible and reasonably expected, there is no
change in purpose and no alteration occurs.
(iii) Any change under this criterion requires a change in the
''Purpose(s)'' caption (see 310.62(h) of this subpart) and may require
a change in the ''Authority for maintenance of the system'' caption (see
310.62(g) of this subpart).
(5) Changes that alter the computer environment (such as changes to
equipment configuration, software, or procedures) so as to create the
potential for greater or easier access.
(i) Increasing the number of offices with direct access is an
alteration.
(ii) Software releases, such as operating systems and system
utilities that provide for easier access are considered alterations.
(iii) The addition of an on-line capability to a previously
batch-oriented system is an alteration.
(iv) The addition of peripheral devices such as tape devices, disk
devices, card readers, printers, and similar devices to an existing ADP
system constitute an amendment if system security is preserved (see
paragraph (a) of 310.64 of this subpart).
(v) Changes to existing equipment configuration with on-line
capability need not be considered alterations to the system if:
(A) The change does not alter the present security posture; or
(B) The addition of terminals does not extend the capacity of the
current operating system and existing security is preserved;
(vi) The connecting of two or more formerly independent automated
systems or networks together creating a potential for greater access is
an alteration.
(vii) Any change under this caption requires a change to the
''Storage'' caption element of the systems notice (see 310.62(j)(1) of
this subpart).
(c) Reports of new and altered systems. (1) Submit a report of a new
or altered system to the Defense Privacy Office before collecting
information for or using a new system or altering an existing system
(see Appendix F and paragraph (d) of this section).
(2) The Defense Privacy Office, ODASD(A) coordinates all reports of
new and altered systems with the Office of the Assistant Secretary of
Defense (Legislative Affairs) and the Office of the General Counsel,
Department of Defense.
(3) The Defense Privacy Office prepares for the DASD(A)'s approval
and signature the transmittal letters sent to OMB and Congress (see
paragraph (e) of this section).
(d) Time restrictions on the operation of a new or altered system.
(1) All time periods begin from the date the DASD(A) signs the
transmittal letters (see paragraph (c)(3) of this section). The
specific time limits are:
(i) 60 days must elapse before data collection forms or formal
instructions pertaining to the system may be issued.
(ii) 60 days must elapse before the system may become operational;
(that is, collecting, maintaining, using, or disseminating records from
the system) (see also 310.60(f) of this subpart).
(iii) 60 days must elapse before any public issuance of a Request for
Proposal or Invitation to Bid for a new ADP or telecommunication system.
Note: Requests for delegation of procurement authority may be
submitted to the General Services Administration during the 60 days'
waiting period, but these shall include language that the Privacy Act
reporting criteria have been reviewed and that a system report is
required for such procurement.
(iv) Normally 30 days must elapse before publication in the Federal
Register of the notice of a new or altered system (see 310.60(f) of
this subpart) and the preamble to the Federal Register notice must
reflect the date the transmittal letters to OMB and Congress were signed
by DASD(A).
(2) Do not operate a system of records until the waiting periods have
expired (see 310.103 of subpart K).
(e) Outside review of new and altered systems reports. If no
objections are received within 30 days of a submission to the President
of the Senate, Speaker of the House of Representatives, and the
Director, OMB, of a new or altered system report it is presumed that the
new or altered systems have been approved as submitted.
(f) Exemptions for new systems. See 310.60(e) of this subpart for
the procedures to follow in submitting exemption rules for a new system
of records.
(g) Waiver of time restrictions. (1) The OMB may authorize a federal
agency to begin operation of a system of records before the expiration
of time limits set forth in 310.63(d) of this subpart.
(2) When seeking such a waiver, include in the letter of transmittal
to the Defense Privacy Office, ODASD(A) an explanation why a delay of 60
days in establishing the system of records would not be in the public
interest. The transmittal must include:
(i) How the public interest will be affected adversely if the
established time limits are followed; and
(ii) Why earlier notice was not provided.
(3) When appropriate, the Defense Privacy Office, ODASD(A) shall
contact OMB and attempt to obtain the waiver.
(i) If a waiver is granted, the Defense Privacy Office, ODASD(A)
shall notify the subcommittee and submit the new or altered system
notice along with any applicable procedural or exemption rules for
publication in the Federal Register.
(ii) If the waiver is disapproved, the Defense Privacy Office,
ODASD(A) shall process the system the same as any other new or altered
system and notify the subcommittee of the OMB decision.
(4) Under no circumstances shall the routine uses for new or altered
system be implemented before 30 days have elapsed after publication of
the system notice containing the routine uses in the Federal Register.
This period cannot be waived.
(51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29,
1991, and amended at 56 FR 57800, Nov. 14, 1991)
32 CFR 310.64 Amendment and deletion of systems notices.
(a) Criteria for an amended system notice. (1) Certain minor changes
to published systems notices are considered amendments and not
alterations (see 310.63(b) of this subpart).
(2) Amendments do not require a report of an altered system (see
310.63(c) of this subpart), but must be published in the Federal
Register.
(b) System notices for amended systems. When submitting an amendment
for a system notice for publication in the Federal Register include:
(1) The system identification and name (see paragraph (b) and (c) of
310.62 of this subpart).
(2) A description of the nature and specific changes proposed.
(3) The full text of the system notice is not required if the master
registry contains a current system notice for the system (see 310.62(q)
of this subpart).
(c) Deletion of system notices. (1) Whenever a system is
discontinued, combined into another system, or determined no longer to
be subject to this part, a deletion notice is required.
(2) The notice of deletion shall include:
(i) The system identification and name.
(ii) The reason for the deletion.
(3) When the system is eliminated through combination or merger,
identify the successor system or systems in the deletion notice.
(d) Submission of amendments and deletions for publication. (1)
Submit amendments and deletions to the Defense Privacy Office, ODASD(A)
for transmittal to the Federal Register for publication.
(2) Include in the submission at least one original (not a reproduced
copy) in proper Federal Register format (see Appendix G).
(3) Multiple deletions and amendments may be combined into a single
submission.
(51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29,
1991, and amended at 56 FR 57801, Nov. 14, 1991)
32 CFR 310.64 Subpart H -- Training Requirements
32 CFR 310.70 Statutory training requirements.
The Privacy Act of 1974, as amended (5 U.S.C. 552a), requires each
agency to establish rules of conduct for all persons involved in the
design, development, operation, and maintenance of any system of record
and to train these persons with respect to these rules.
32 CFR 310.71 OMB training guidelines.
The OMB guidelines require all agencies additionally to:
(a) Instruct their personnel in their rules of conduct and other
rules and procedures adopted in implementing the Act, and inform their
personnel of the penalties for noncompliance.
(b) Incorporate training on the special requirements of the Act into
both formal and informal (on-the-job) training programs.
32 CFR 310.72 DoD training programs.
(a) To meet these training requirements, establish three general
levels of training for those persons who are involved in any way with
the design, development, operation, or maintenance of any system of
records. These are:
(1) Orientation. Training that provides basic understanding of this
Regulation as it applies to the individual's job performance. This
training shall be provided to personnel, as appropriate, and should be a
prerequisite to all other levels of training.
(2) Specialized training. Training that provides information as to
the application of specific provisions of this part to specialized areas
of job performance. Personnel of particular concern include, but are
not limited to personnel specialists, finance officers, special
investigators, paperwork managers, and other specialists (reports,
forms, records, and related functions), computer systems development
personnel, computer systems operations personnel, statisticians dealing
with personal data and program evaluations, and anyone responsible for
implementing or carrying out functions under this part.
(3) Management. Training designed to identify for responsible
managers (such as, senior system managers, denial authorities,
decision-makers, and the managers of the functions described in 310.70
of this subpart) considerations that they shall take into account when
making management decisions regarding the Defense Privacy Program.
(b) Include Privacy Act training in courses of training when
appropriate. Stress individual responsibilities and advise individuals
of their rights and responsibilities under this part.
(51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29,
1991, and amended at 56 FR 57801, Nov. 14, 1991)
32 CFR 310.73 Training methodology and procedures.
(a) Each DoD Component is responsible for the development of training
procedures and methodology.
(b) The Defense Privacy Office, ODASD(A) will assist the Components
in developing these training programs and may develop Privacy training
programs for use by all DoD Components.
(c) All training programs shall be coordinated with the Defense
Privacy Office, ODASD(A) to avoid duplication and to ensure maximum
effectiveness.
32 CFR 310.74 Funding for training.
Each DoD Component shall fund its own Privacy training program.
32 CFR 310.74 Subpart I -- Reports
32 CFR 310.80 Requirements for reports.
The Defense Privacy Office, ODASD(A) shall establish requirements for
DoD Privacy Reports and DoD Components may be required to provide data.
32 CFR 310.81 Suspense for submission of reports.
The suspenses for submission of all reports shall be established by
the Defense Privacy Office, ODASD(A).
32 CFR 310.82 Reports control symbol.
Any report established by this subpart in support of the Defense
Privacy Program shall be assigned Report Control Symbol DD-COMP(A)1379.
Special one-time reporting requirements shall be licensed separately in
accordance with DoD Directive 5000.19 ''Policies for the Management and
Control of Information Requirements'' and DoD Directive 5000.11, ''Data
Elements and Data Codes Standardization Program.''
32 CFR 310.82 Subpart J -- Inspections
32 CFR 310.90 Privacy Act inspections.
During internal inspections, Component inspectors shall be alert for
compliance with this part and for managerial, administrative, and
operational problems associated with the implementation of the Defense
Privacy Program.
32 CFR 310.91 Inspection reporting.
(a) Document the findings of the inspectors in official reports that
are furnished the responsible Component officials. These reports, when
appropriate, shall reflect overall assets of the Component Privacy
Program inspected, or portion thereof, identify deficiencies,
irregularities, and significant problems. Also document remedial
actions taken to correct problems identified.
(b) Retain inspections reports and later follow-up reports in
accordance with established records disposition standards. These
reports shall be made available to the Privacy Program officials
concerned upon request.
32 CFR 310.91 Subpart K -- Privacy Act Enforcement Actions
32 CFR 310.100 Administrative remedies.
Any individual who feels he or she has a legitimate complaint or
grievance against the Department of Defense or any DoD employee
concerning any right granted by this part shall be permitted to seek
relief through appropriate administrative channels.
32 CFR 310.101 Civil actions.
An individual may file a civil suit against a DoD Component or its
employees if the individual feels certain provisions of the Act have
been violated (see 5 U.S.C. 552a(g), of the Privacy Act.
32 CFR 310.102 Civil remedies.
In addition to specific remedial actions, subsection (g) of the
Privacy Act (5 U.S.C. 552a) provides for the payment of damages, court
cost, and attorney fees in some cases.
32 CFR 310.103 Criminal penalties.
(a) The Act also provides for criminal penalties (see 5 U.S.C.
552a(i). Any official or employee may be found guilty of a misdemeanor
and fined not more than $5,000 if he or she willfully:
(1) Discloses personal information to anyone not entitled to receive
the information (see subpart E); or
(2) Maintains a system of records without publishing the required
public notice in the Federal Register (see subpart G).
(b) A person who requests or obtains access to any record concerning
another individual under false pretenses may be found guilty of
misdemeanor and fined up to $5,000.
32 CFR 310.104 Litigation status sheet.
Whenever a complaint citing the Privacy Act is filed in a U.S.
District Court against the Department of Defense, a DoD Component, or
any DoD employee, the responsible system manager shall notify promptly
the Defense Privacy Office, ODASD(A). The litigation status sheet at
Appendix H provides a standard format for this notification. The
initial litigation status sheet forwarded shall, as a minimum, provide
the information required by items 1 through 6. A revised litigation
status sheet shall be provided at each stage of the litigation. When a
court renders a formal opinion or judgment, copies of the judgment and
opinion shall be provided to the Defense Privacy Office with the
litigation status sheet reporting that judgment or opinion.
32 CFR 310.104 Subpart L -- Matching Program Procedures
32 CFR 310.110 OMB Matching guidelines.
The OMB has issued special guidelines to be followed in programs that
match the personal records in the computerized data bases of two or more
federal agencies by computer (see Appendix I). These guidelines are
intended to strike a balance between the interest of the government in
maintaining the integrity of federal programs and the need to protect
individual privacy expectations. They do not authorize matching
programs as such and each matching program must be justified
individually in accordance with the OMB guidelines.
32 CFR 310.111 Requesting matching programs.
(a) Forward all requests for matching programs to include necessary
routine use amendments (see 310.62(i) of subpart G) and analysis and
proposed matching program reports (see subsection E.6. of Appendix I) to
the Defense Privacy Office, ODASD(A).
(b) The Defense Privacy Office shall review each request and
supporting material and forward the report and system notice amendments
to the Federal Register, OMB, and Congress, as appropriate.
(c) Changes to existing matching programs shall be processed in the
same manner as a new matching program report.
32 CFR 310.112 Time limits for submitting matching reports.
(a) No time limits are set by the OMB guidelines. However, in order
to establish a new routine use for a matching program, the amended
system notice must have been published in the Federal Register at least
30 days before implementation (see 310.60(f) of subpart G).
(b) Submit the documentation required by 310.111(a) of this subpart
to the Defense Privacy Office at least 45 days before the proposed
initiation date of the matching program.
(c) The Defense Privacy Office may grant waivers to the 45 days'
deadline for good cause shown. Requests for waivers shall be in writing
and fully justified.
(51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29,
1991, and amended at 56 FR 57801, Nov. 14, 1991)
32 CFR 310.113 Matching programs among DoD Components.
(a) For the purpose of the OMB guidelines, the Department of Defense
and all DoD Components are considered a single agency.
(b) Before initiating a matching program using only the records of
two or more DoD Components, notify the Defense Privacy Office that the
match is to occur. The Defense Privacy Office may request further
information from the Component proposing the match.
(c) There is no need to notify the Defense Privacy Office of computer
matches using only the records of a single Component.
32 CFR 310.114 Annual review of systems of records.
The system manager shall review annually each system of records to
determine if records from the system are being used in matching programs
and whether the OMB Guidelines have been complied with.
32 CFR 310.114 Pt. 310, App. A
32 CFR 310.114 Appendix A to Part 310 -- Special Considerations for
Safeguarding Personal Information in ADP Systems
1. The Automated Data Processing (ADP) environment subjects personal
information to special hazards as to unauthorized compromise alteration,
dissemination, and use. Therefore, special considerations must be given
to safeguarding personal information in ADP systems.
2. Personal information must also be protected while it is being
processed or accessed in computer environments outside the data
processing installation (such as, remote job entry stations, terminal
stations, minicomputers, microprocessors, and similar activities).
3. ADP facilities authorized to process classified material have
adequate procedures and security for the purposes of this Regulation.
However, all unclassified information subject to this Regulation must be
processed following the procedures used to process and access
information designated ''For Official Use Only'' (see ''DoD Freedom of
Information Act Program'' (32 CFR part 286)).
1. Establish administrative, technical, and physical safeguards that
are adequate to protect the information against unauthorized disclosure,
access, or misuse (see Transmittal Memorandum No. 1 to OMB Circular A-71
-- Security of Federal Automated Information Systems).
2. Technical and physical safeguards alone will not protect against
unintentional compromise due to errors, omissions, or poor procedures.
Proper administrative controls generally provide cheaper and surer
safeguards.
3. Tailor safeguards to the type of system, the nature of the
information involved, and the specific threat to be countered.
The minimum safeguarding standards as set forth in paragraph (b) of
310.13, subpart B apply to all personal data within any ADP system. In
addition:
1. Consider the following when establishing ADP safeguards:
a. The sensitivity of the data being processed, stored and accessed;
b. The installation environment;
c. The risk of exposure;
d. The cost of the safeguard under consideration.
2. Label or designate output and storage media products (intermediate
and final) containing personal information that do not contain
classified material in such a manner as to alert those using or handling
the information of the need for special protection. Designating
products ''For Official Use Only'' in accordance with subpart E of 32
CFR part 286, ''DoD Freedom of Information Act Program,'' satisfies this
requirement.
3. Mark and protect all computer products containing classified data
in accordance with the DoD Information Security Program Regulation (32
CFR part 159) and the ADP Security Manual (DoD 5200.28-M).
4. Mark and protect all computer products containing ''For Official
Use Only'' material in accordance with subpart E of 32 CFR part 286.
5. Ensure that safeguards for protected information stored at
secondary sites are appropriate.
6. If there is a computer failure, restore all protected information
being processed at the time of the failure using proper recovery
procedures to ensure data integrity.
7. Train all ADP personnel involved in processing information subject
to this part in proper safeguarding procedures.
1. For all unclassified facilities, areas, and devices that process
information subject to this part, establish physical safeguards that
protect the information against reasonably identifiable threats that
could result in unauthorized access or alteration.
2. Develop access procedures for unclassified computer rooms, tape
libraries, micrographic facilities, decollating shops, product
distribution areas, or other direct support areas that process or
contain personal information subject to this part that control
adequately access to these areas.
3. Safeguard on-line devices directly coupled to ADP systems that
contain or process information from systems of records to prevent
unauthorized disclosure use or alteration.
4. Dispose of paper records following appropriate record destruction
procedures.
1. The use of encryption devices solely for the purpose of protecting
unclassified personal information transmitted over communication
circuits or during processing in computer systems is normally
discouraged. However, when a comprehensive risk assessment indicates
that encryption is cost-effective it may be used.
2. Remove personal data stored on magnetic storage media by methods
that preclude reconstruction of the data.
3. Ensure that personal information is not inadvertently disclosed as
residue when transferring magnetic media between activities.
4. When it is necessary to provide dial-up remote access for the
processing of personal information, control access by computer-verified
passwords. Change passwords periodically or whenever compromise is
known or suspected.
5. Normally the passwords shall give access only to those data
elements (fields) required and not grant access to the entire data base.
6. Do not rely totally on proprietary software products to protect
personnel data during processing or storage.
a. Notify the ADP manager whenever personal information subject to
this Regulation is to be processed by an ADP facility.
b. Prepare and submit for publication all system notices and
amendments and alterations thereto (see paragraph (f) of 310.60 of
subpart G).
c. Identify to the ADP manager those activities and individuals
authorized access to the information and notify the manager of any
changes to the access authorizations.
a. Permit only authorized individuals access to the information.
b. Adhere to the established information protection procedures and
rules of conduct.
c. Notify the system manager and ADP manager whenever unauthorized
personnel seek access to the information.
a. Maintain an inventory of all computer program applications used to
process information subject to this part to include the identity of the
systems of records involved.
b. Verify that requests for new programs or changes to existing
programs have been published as required (see paragraphs (a) and (b) of
310.63, subpart G).
c. Notify the system manager whenever changes to computer
installations, communications networks, or any other changes in the ADP
environment occur that require an altered system report be submitted
(see paragraph (b) of 310.63, subpart G).
1. Dispose of records subject to this part so as to prevent
compromise (see paragraph (c) of 310.13 of subpart B). Magnetic tapes
or other magnetic medium, may be cleared by degaussing, overwriting, or
erasing. Unclassified carbon ribbons are considered destroyed when
placed in a trash receptacle.
2. Do not use respliced waste computer products containing personal
data.
1. A separate risk assessment is not required for ADP installations
that process classified material. A simple certification by the
appropriate ADP official that the facility is cleared to process a given
level of classified material (such as, Top Secret, Secret, or
Confidential) and that the procedures followed in processing ''For
Official Use Only'' material are to be followed in processing personal
data subject to this Regulation is sufficient to meet the risk
assessment requirement.
2. Prepare a formal risk assessment for each ADP installation (to
include those activities with terminals and devices having access to ADP
facilities) that processes personal information subject to this part and
that do not process classified material.
3. Address the following in the risk assessment:
a. Identify the specific systems of records supported and determine
their impact on the mission of the user.
b. Identify the threats (internal, external, and natural) to the
data.
c. Determine the physical and operational (to include software)
vulnerabilities.
d. Evaluate the relationships between vulnerabilities and threats.
e. Assess the impact of unauthorized disclosure or modification of
the personal information.
f. Identify possible safeguards and their relationships to the
threats to be countered.
g. Analyze the economic feasibility of adopting the identified
safeguards.
h. Determine the safeguard to be used and develop implementation
plans.
i. Discuss contingency plans including operational exercise plans.
j. Determine if procedures proposed are consistent with those
identified in the system notices for system of records concerned.
k. Include a vulnerability assessment.
3. The risk assessment shall be reviewed by the appropriate Component
officials.
4. Conduct a risk assessment at least every 5 years or when there is
a change to the installation, its hardware, software, or administrative
procedures that increase or decrease the likelihood of compromise or
present new threats to the information.
5. Protect the risk assessment as it is a sensitive document.
6. Retain a copy of the risk assessment at the installation and make
it available to appropriate inspectors and authorized personnel.
7. Include a summary of the current risk assessment with any report
of new or altered system submitted in accordance with paragraph (c) of
310.63, subpart G, for any system from which information will be
processed.
8. Complete a formal risk assessment at the beginning of the design
phase for each new unclassified ADP installation and before beginning
the processing of personal data on a regular basis in existing ADP
facility that do not process classified data.
(51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29,
1991, and amended at 56 FR 57801, Nov. 14, 1991)
32 CFR 310.114 Pt. 310, App. B
32 CFR 310.114 Appendix B to Part 310 -- Special Considerations for
Safeguarding Personal Information During Word Processing
1. Normally, word processing support is provided under two general
concepts. They are:
a. Word processing centers (WPCs), and
b. Work groups or clusters.
2. A WPC generally provides support to one or more functional areas.
Characteristically, the customer delivers (by written draft or
dictation) the information to be processed to the WPC. The WPC process
the information and returns it to the customer. There are generally two
types of WPCs.
a. A WPC may operate independent of the customer's functon, providing
service in much the same manner as a data processing installation
provides ADP support, or a message center provides electronic message
service, or
b. A WPC may work within a customer's function providing support to
that function. The support being centralized in a WPC to take advantage
of increased productivity.
3. A work group or cluster generally consists of one or more pieces
of word processing equipment that are integrated into the functional
office support system. The overall word processing and functional
management may be one and the same. Depending on the size of the
support job, there may be a work group or cluster manager. Normally,
however, they will be located within or in close proximity to the
functional area supported. Information flows in and out of the work
group or cluster by normal office routine and the personnel are an
integral part of the office staff.
1. Regardless of configuration (WPC or work group), all personal data
processed using word processing equipment shall be afforded the
standards of protection required by paragaph (b) of 310.13, subpart B.
2. The remaining special considerations discussed in this Appendix
are primarily for WPCs operating independent of the customer's function.
However, managers of other WPCs, work groups, and work clusters are
encouraged to consider and adopt, when appropriate, the special
considerations discussed herein.
3. WPCs that are not independent of a customer's function, work
groups, and work clusters are not required to prepare formal written
risk assessments (see section H., below).
1. In analyzing procedures required to safeguard adequately personal
information in a WPC, the basic elements of WPC information flow and
control must be considered. These are:
a. Information receipt.
b. Information processing.
c. Information return.
d. Information storage or filing.
2. WPCs do not control information acquisition or its ultimate use by
the customers and, therefore, these are not addressed.
1. The word processing manager shall establish procedures.
a. That require each customer who requests that information subject
to this part be processed to identify specifically that information to
the WPC personnel. This may be done by:
(1) Providing a check-off type entry on the WPC work requests;
(2) Requiring that the WPC work requests be stamped with a special
legend, or that a special notation be made on the work requests;
(3) Predesignating specifically a class of documents as coming within
the provisions of this part (such as, all officer effectiveness reports,
all recall rosters, and all medical protocols).
(4) Using a special cover sheet both to alert the WPC personnel as to
the type information, and to protect the document during transmittal;
(5) Requiring an oral warning on all dictation; or
(6) Any other procedures that ensure the WPC personnel are alerted to
the fact that personal data subject to this part is to be processed.
b. To ensure that the operators or other WPC personnel receiving data
for processing that has not been identified to be under the provisions
of this part but that appear to be personal promptly call the
information to the attention of the WPC supervisor or the customer;
c. To ensure that any request for the processing of personal data
that the customer has not identified as being in a system of records and
that appears to meet the criteria set forth in paragraph (a) of 310.10,
subpart B is called to the attention of the appropriate supervisory
personnel and system manager.
2. The WPC supervisor shall ensure that personal information is not
inadvertently compromised within the WPC.
1. Each WPC supervisor shall establish internal safeguards that shall
protect personal data from compromise while it is being processed.
2. Physical safeguards may include:
a. Controls on individual access to the center;
b. Machine configurations that reduce external access to the
information being processed, or arrangements that alert the operator to
the presence of others;
c. Using certain specific machines to process personal data;
d. Any other physical safeguards, to include special technical
arrangements that will protect the data during processing.
3. Other safeguards may include:
a. Using only certain selected operators to process personal data;
b. Processing personal data only at certain times during the day
without the WPC manager's specific authorization;
c. Using only certain tapes or diskettes to process and store
personal data;
d. Using continuous tapes for dictation of personal data;
e. Requiring all WPC copies of documents to be marked specifically so
as to prevent inadvertent compromise;
f. Returning extra copies and mistakes to the customer with the
product;
g. Disposing of waste containing personal data in a special manner;
h. Any other local procedures that provide adequate protection to the
data being processed.
1. The WPC shall protect the data until it is returned to the
customer or placed into a formal distribution channel.
2. In conjunction with the appropriate administrative support
personnel and the WPC customers, the WPC manager shall establish
procedures that protect the information from the time word processing is
completed until it is returned to the customer.
3. Safeguarding procedures may include:
a. Releasing products only to specifically identifiable individuals;
b. Using sealed envelopes to transmit products to the customer;
c. Using special cover sheets to protect products similar to the one
discussed in subparagraph D.1.a.(4), above;
d. Handcarrying products to the customers;
e. Using special messengers to return the products;
f. Any other procedures that protect adequately products from
compromise while they are awaiting return or being returned to the
customer.
1. The WPC manager shall ensure that all personal data retained in
the center for any purpose (including samples) are protected properly.
2. Safeguarding procedures may include:
a. Marking all hard copies retained with special legends or
designators;
b. Storing media containing personal data in separate files or areas;
c. Marking the storage containers for media containing personal data
with special legends or notations;
d. Restricting the reuse of media used to process personal data or
erasing automatically the media before reuse;
e. Establishing special criteria for the WPC retention of media used
to store and process personal data;
f. Returning the media to the customer for retention with the file
copies of the finished products;
g. Discouraging, when practical, the long-term storage of personal
data in any form within the WPC;
h. Any other filing or storage procedures that safeguard adequately
any personal information retained or filed within the WPC.
1. Each WPC manager shall ensure that a formal, written risk
assessment is prepared for each WPC that processes personal information
subject to this part.
2. The assessment shall address the areas discussed in sections D.,
E., F., and G. of this Appendix, as well as any special risks that the
WPC location, configuration, or organization may present to the
compromise or alteration of personal data being processed or stored.
3. A risk assessment shall be conducted at least every 5 years or
whenever there is a change of equipment, equipment configuration, WPC
location, WPC configuration or modification of the WPC facilities that
either increases or decreases the likelihood of compromise of personal
data.
4. Copies of the assessment shall be retained by the WPC manager and
made available to appropriate inspectors, as well as to personnel
studying equipment for facility upgrading or modification.
5. Every new WPC shall have a formal risk assessment completed before
beginning the processing of personal data.
Procedures shall be established to ensure that all personnel involved
in the design of WPCs or the acquisition of word processing equipment
are aware of the special considerations required when processing
personal data subject to this part.
(51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29,
1991, and amended at 56 FR 57801, Nov. 14, 1991)
32 CFR 310.114 Pt. 310, App. C
32 CFR 310.114 Appendix C to Part 310 -- DoD Blanket Routine Uses
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.
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.
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 tothe requesting agency's decision on the matter.
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.
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 OMB in connection with the review of private relief
legislation as set forth in OMB Circular A-19 (reference (u)) at any
stage of the legislative coordination and clearance process as set forth
in that Circular.
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.
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.
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.
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.
Information as to current military addresses and assignments may be
provided to military banking facilities who provide banking services
overseas and who are reimbursed by the Government for certain checking
and loan losses. For personnel separated, discharged, or retired from
the Armed Forces, information as to last known residential or home of
record address may be provided to the military banking facility upon
certification by a banking facility officer that the facility has a
returned or dishonored check negotiated by the individual or the
individual has defaulted on a loan and that if restitution is not made
by the individual, the U.S. Government will be liable for the losses the
facility may incur.
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.
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.
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.
(51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29,
1991, and amended at 56 FR 57801, Nov. 14, 1991)
32 CFR 310.114 Pt. 310, App. D
(51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29,
1991, and amended at 56 FR 57801, Nov. 14, 1991)
32 CFR 310.114 -- Pt. 310, App. E
32 CFR 310.114 -- Appendix E to Part 310 -- Sample of New or Altered
System of Records Notice in ''Federal Register'' Format
(See paragraph (f) of 310.60, Subpart G)
DEPARTMENT OF DEFENSE
Defense Nuclear Agency
Privacy Act of 1974; New System of Records
agency: Defense Nuclear Agency (DNA).
action: Notice of a new record system.
summary: The Defense Nuclear Agency is adding a new system of
records to its inventory of systems of records subject to the Privacy
Act of 1974. The system notice for the new system is set forth below.
dates: This system shall be effective (30 days after publication in
the Federal Register) unless comments are received which result in a
contrary determination.
address: Send comments to the System Manager identified in the
system notice.
for further information contact: Robert L. Brittigan, General
Counsel, Defense Nuclear Agency, Washington, DC 20305, Telephone (202)
325-7681.
supplementary information: The Defense Nuclear Agency record system
notice as prescribed by the Privacy Act of 1974 (5 U.S.C. 552a), as
amended, have appeared in the Federal Register on September 28, 1981 (46
FR 51073) and February 16, 1982 (47 FR 6829).
The Defense Nuclear Agency has submitted a new system report on March
27, 1982, for this system of records under the provisions of 5 U.S.C.
552a(o) of the Privacy Act.
Patricia H. Means,
OSD Federal Register Liaison Officer, Department of Defense.
System name: Personnel Exposed to Radiation from Nuclear Tests.
System Location: Headquarters, Defense Nuclear Agency, Washington,
DC 20305, Main computer location.
Categories of individuals covered by the system: All DoD and
DoD-affiliated personnel, military and civilian, who participated in the
U.S. Government atmospheric nuclear test programs in the Pacific and at
the Nevada Test Site.
Categories of records in the system: Personal information consisting
of name, rank, service number, last known or current address, dates of
test participation, exposure and unit of assignment.
Authority for maintenance of the system: 10 U.S.C. Section 133,
Powers of an Executive Department of a Military Department to Prescribe
Departmental Regulations; 10 U.S.C. Section 133, Secretary of Defense:
Appointment, Powers, Duties and Delegation by; DoD Directive 5105.31,
''Defense Nuclear Agency (DNA).''
Purpose(s): To identify those individuals who may have been exposed
to radiation from nuclear atmospheric test conducted by the U.S.
Government in the Pacific or at the Nevada Test Site.
Information is provided to the medical services of all the Military
Departments to identify military and retired personnel who were exposed
to ionizing radiator during testing.
Routine uses of records maintained in the system including categories
of users, and the purpose of such uses:
To the National Research Council and Center for Disease Control to
determine the effects of ionizing radiation for the limited purpose of
conducting epidemiological studies of the atmospheric nuclear weapons
tests on DoD participants in those tests.
To the Department of Energy (DoE) to identify DoE contractor
personnel exposed to ionizing radiation during nuclear testing for the
limited purpose of conducting epidemiological studies of radiation
effects of individuals so identified.
To the Department of Transportation (DoT) for the limited purpose of
identifying DoT and DoT-affiliated personnel exposed to ionizing
radiation during nuclear testing.
To the Veterans Administration to make determinations on
service-connected disability for the purpose of resolving claims.
Policies and Practices for storing, retrieving, accessing, retaining,
and disposing of records in the system.
Storage: Paper records in file folders; computer magnetic tape
disks and printouts in secure computer facility.
Retrievability: Paper records filed in folders and computer magnetic
tape and disk retrieved by name.
Safeguards: Paper records are filed in folders stored in locked
security safes. Magnetic tapes stored in a vault in a secure computer
area.
Retention and disposal: Paper records are retained until information
is transferred to magnetic tapes; then destroyed. Magnetic tapes and
disks are retained indefinitely.
System manager(s) and address: Director, Defense Nuclear Agency,
Attn.: Privacy Act Officer, Washington, DC 20305, telephone (202)
325-7681.
Notification procedure: Information may be obtained from the System
Manager.
Record access procedures: Requests should be addressed to the System
Manager.
Contesting record procedures: The agency's rules for contesting
contents and appealing initial determinations are contained in DNA
Instruction 5400.11 (32 CFR part 318). Additional information may be
obtained from the System Manager.
Record source categories: DNA records, searches of DoD records by
other DoD Components, and from individuals voluntarily contacting DNA by
telephone or mail.
Systems exempted from certain provision of the Act: None.
(51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29,
1991, and amended at 56 FR 57801, Nov. 14, 1991)
32 CFR 310.114 -- Pt. 310, App. F
32 CFR 310.114 -- Appendix F to Part 310 -- Format for New or Altered
System Report
The report on a new or altered system shall consist of a transmittal
letter, a narrative statement, and include supporting documentation.
A. Transmittal Letter. The transmittal letter to the Director,
Defense Privacy Office, ODASD(A), shall include any request for waivers
as set forth in paragraph (g) of 310.63, subpart G. The narrative
statement shall be attached thereto.
B. Narrative Statement. The narrative statement is typed in double
space on standard bond paper in the format shown at attachment 1. The
statement includes:
1. System identification and name. This caption sets forth the
identification and name of the system (see paragraphs (b) and (c) of
310.62, subpart G).
2. Responsible official. The name, title, address, and telephone
number of the privacy official responsible for the report and to whom
inquiries and comments about the report may be directed by Congress, the
Office of Management and Budget, or Defense Privacy Office.
3. Purpose of the system or nature of the change proposed. Describe
the purpose of the new system. For an altered system, describe the
nature of the change being proposed.
4. Authority for the system. See paragraph (g) of 310.62, subpart
G.
5. Number of individuals. The approximate number of individuals
about whom records are to be maintained.
6. Information on First Amendment activities. Describe any
information to be kept on the exercise of individual's First Amendment
rights and the basis for maintaining it as provided for in paragraph (e)
of 310.10, subpart B.
7. Measures to ensure information accuracy. If the system is to be
used to make determinations about the rights, benefits, or entitlements
of individuals; describe the measures being established to ensure the
accuracy, currency, relevance, and completeness of the information used
for these purposes.
8. Other measures to ensure system security: Describe the steps
taken to minimize the risk of unauthorized access to the system. A more
detailed assessment of security risks and specific administrative,
technical, and physical safeguards shall be available for review upon
request.
9. Relationship to state and local government activities. Describe
the relationship of the system to state or local government activities
that are the sources, recipients, or users of the information in the
system.
C. Supporting Documentation. Item 10 of the narrative is captioned
Supporting Documents. A positive statement for this caption is
essential for those enclosures that are not required to be enclosed.
For example, ''No changes to the existing Army procedural or exemption
rules (32 CFR Part 505) are required for this proposed system.'' List in
numerical sequence only those enclosures that are actually furnished.
The following are typical enclosures that may be required:
1. For a new system, an advance copy of the system notice which is
proposed for publication. For an altered system (see paragraph (d) of
310.64, subpart G) an advance copy of the notice reflecting the specific
changes proposed.
2. An advance copy of any new rules or changes to the published
Component rules to be issued for the new or altered system. If no
change to existing rules is required, so state in the narrative.
3. An advance copy of any proposed exemption rule if the new or
altered system is to be exempted in accordance with subpart F. If there
is no exemption, so state in the narrative.
4. Any other supporting documentation that may be pertinent or
helpful in understanding the need for the system or clarifying its
intended use. While not required, such documentation, when available,
is helpful in evaluating the new or altered system.
(Indicate none or not applicable, as appropriate.)
1. System Identification and name:
2. Responsible official:
3. Purpose(s) of the System: (for a new system only) or Nature of
the Change(s) Proposed: (for altered system).
4. Authority for the System:
5. Number of Individuals:
6. Information on First Amendment Activities:
7. Measures to Ensure Information Accuracy:
8. Other Measures to Ensure System Security:
9. Relations to State or Local Government Activities:
10. Supporting Documentation: (Indicate here, as a positive
statement, those enclosures not required as set forth in section C. of
the format instructions.)
1. System Identification and Name: HDNA 609-03, entitled ''Personnel
Exposed To Radiation From Nuclear Tests.''
2. Responsible Official: Robert L. Brittigan, General Counsel,
Defense Nuclear Agency, Washington, DC 20305. Telephone: Area Code 202
325-7781.
3. Purpose(s) of the System: To consolidate into one system the
names, addresses, and exposures of all DoD or DoD-assoicated personnel
who may have been exposed to ionizing radiation during the atmospheric
nuclear testing programs in the Pacific and at the Nevada Test Site.
4. Authority for the System: See ''Authority for Maintenance of the
System'' caption of the attached proposed system notice.
5. Number of Individuals: Approximately 300,00 individuals will be
affected by this new system, since the system includes all DoD and
DoD-affiliated participants in the atmospheric nuclear tests program.
6. Information on First Amendment Activities: None.
7. Measures to Ensure Information Accuracy: Records consist of
personal data to be provided by the individual such as name, rank,
service number, last known or current address, dates of test
participation, exposure date, if available, and unit of assignment.
When the information has been obtained from sources other than the
individual, follow-up is attempted to ensure accuracy.
8. Other Measures to Ensure System Security:
a. Paper records before processing for computer storage are retained
in locked filing cabinets located in limited access facilities at DNA
Headquarters and the Armed Forces Radiobiology Research Institute.
b. Privacy data in the Headquarters, DNA, ADP facility is afforded
the same protection as classified data in that the DNA computer system
employs a File Security System (FSS) to protect classified and privacy
data files from being accessed by unauthorized user.
9. Relations to State and Local Government Activities: None
10. Supporting Documentation: No changes to existing procedural or
exemption rules are required for this proposed new system.
Robert L. Brittigan
General Counsel
1. Advance copy of proposed system notice.
2. Copy of tasking memorandum from the Assistant Secretary of Defense
(Manpower, Reserve Affairs, and Logistics) to the Director, Defense
Nuclear Agency, ''DoD Personnel Participation in Atmosperic Nuclear
Weapons Testing,'' January 28, 1978.
Note: Enclosures are not included in the sample, above.
(51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29,
1991, and amended at 56 FR 57801, Nov. 14, 1991)
32 CFR 310.114 -- Pt. 310, App. G
32 CFR 310.114 -- Appendix G to Part 310 -- Sample Deletions and
Amendments to Systems Notices in ''Federal Register'' Format
Privacy Act of 1974; Deletions and Amendments to Systems of Records
Notices
Agency: Department of the Air Force, DoD.
Action: Notice of deletions and amendments to systems of records.
Summary: The Air Force proposes to delete three and amend two
notices for systems of records subject to the Privacy Act of 1974. The
specific changes to the notices being amended are set forth below
followed by the system notices, as amended, published in their entirety.
Dates: These systems notices shall be amended as proposed without
further notice on (30 days after publication in the Federal Register
unless comments are received that would result in a contrary
determination.
Address: Send comments to the system manager identified in the
particular system notice concerned.
For Further Information Contact: Mr. Jon E. Updike, HQ USAF/DAQD,
The Pentagon, Washington, DC 20330-5024, Telephone: (202) 694-3431
Autovon: 224-3431
Supplementary Information: The Air Force sytems of records notices
inventory subject to the Privacy Act of 1974 (5 U.S.C. 552a), as
amended, have been published to date in the Federal Register as follows:
FR Doc. 80-28255 (46 FR 50785) September 28, 1980
FR Doc. 80-31218 (46 FR 56774) October 28, 1980
FR Doc. 80-32284 (46 FR 58195) November 8, 1980
FR Doc. 80-33780 (46 FR 59996) November 23, 1980
The proposed amendments are not within the purview of the provisions
of 5 U.S.C. 552a(o) which requires the submission of an altered system
report.
Patricia H. Means,
OSD Federal Register Liaison Officer, Department of Defense.
System name: Human Reliability for Special Missions.
Reason: This system is covered by F03004 AFDPMDB Advanced Personnel
Data System (APDS) (46 FR 50821) August 28, 1981.
System name: Cadet Promotion List.
Reason: This system has been incorporated into F03502 AFA A Cadet
Management System (46 FR 50875) July 28, 1981.
System name: Locator or Personnel Data file.
Reason: This sytem is covered by F01102 DAYX A Base, Unit, and
Organizational Military and Civilian Personnel Locator Files (46 FR
50800) October 28, 1981.
System name: Military Personnel Records System.
Changes:
System Location: In line 8, change ''Adjustment'' to Adjutant''.
External users, uses and purposes:
Add at end:
''American National Red Cross. Information to local Red Cross
offices for emergency assistance to military members, dependents,
relatives, or other persons if conditions are compelling.''
''Drug Enforcement Administration'' (added to those agencies listed
under Department of Justice).
''Department of Labor: Bureau of Employees' Compensation -- medical
information for claims of civilian employees formerly in military
service; Employment and Training Administration -- verification of
service-related information for unemployment compensation claims;
Labor-Management Services Administration -- for investigations of
possible violations of labor laws and preemployment investigations;
National Research Council -- for medical research purposes; U.S.
Soldiers' and Airmen's Home -- service information to determine
eligibility.''
System name: Assessments Screening Records.
Changes:
System location: In line 1, change ''3700 Personnel Processing
Group'' to ''3507 Airman Classification Squadron.''
Retention and disposal: Delete entry and substitute: ''Records on
airmen accepted for sensitive or high risk assignments are retained in
the office files for 18 months, then destroyed. Records of nonselectees
are retained in office files for 1 year, then destroyed. Destruction is
by tearing into pieces, shredding, pulping, macerating, or burning.''
Systems manager: In line 1, change ''3700 PPGP (CCO),'' to ''3507
Airman Classification Squadron.''
Record source categories: Add at end, ''peers, character references,
and the individual member.''
(51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29,
1991, and amended at 56 FR 57801, Nov. 14, 1991)
32 CFR 310.114 -- Appendix H to Part 310 -- Litigation Status Sheet
32 CFR 310.114 -- Pt. 310, App. H
1. Case Number. /1/
2. Requester.
3. Document Title or Description. /2/
4. Litigation:
a. Date Complaint Filed.
b. Court.
c. Case File Number /1/
5. Defendants (DoD Component and individual).
6. Remarks (brief explanation of what the case is about).
7. Court Action:
a. Court's Finding.
b. Disciplinary Action (as appropriate).
8. Appeal (as appropriate):
a. Date Complaint Filed.
b. Court.
c. Case File Number. /5/
d. Court's Finding.
e. Disciplinary Action (as appropriate).
(51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29,
1991, and amended at 56 FR 57801, Nov. 14, 1991)
/1/ Number used by the Component for reference purposes
/2/ Indicate the nature of the case, such as, ''Denial of access,''
''Refusal to amend,'' ''Incorrect records,'' or other violations of the
Act (specify).
32 CFR 310.114 -- Pt. 310, App. I
32 CFR 310.114 -- Appendix I to Part 310 -- Office of Management and
Budget (OMB) Matching Guidelines
A. Purpose. These guidelines supplement and shall be used in
conjunction with OMB Guidelines on the Administration of the Privacy Act
of 1974, issued on July 1, 1975, and supplemented on November 21, 1975.
They replace earlier guidance on conducting computerized matching
programs issued on March 30, 1979. They are intended to help agencies
relate the procedural requirements of the Privacy Act to the operational
requirements of computerized matching. They are designed to address the
concerns expressed by the Congress in the Privacy Act of 1974 that ''the
increasing use of computers and sophisticated information technology,
while essential to the efficient operation of the Government, has
greatly magnified the harm to individual privacy that can occur from any
collection, maintenance, use, or dissemination of personal
information.'' These guidelines do not authorize activities that are not
permitted by law, nor do they prohibit activities expressly required to
be performed by law. Complying with these guidelines, however, does not
relieve a federal agency of the obligation to comply with the provisions
of the Privacy Act, including any provisions not cited in these
guidelines.
B. Scope. These guidelines apply to all agencies subject to the
Privacy Act of 1974 (5 U.S.C. 552a) and to all matching programs:
1. Performed by a federal agency, whether the personal records used
in the match are federal or nonfederal.
2. For which a federal agency discloses any personal records for use
in a matching program performed by any other federal agency or any
nonfederal organization.
C. Effective Date. These guidelines are effective on May 11, 1982.
D. Definitions. For the purposes of the Guidelines, all the terms
defined in the Privacy Act of 1974 apply.
1. Personal Record. Any information pertaining to an individual that
is stored in an automated system of records; for example, a data base
which contains information about individuals that is retrieved by name
or some other personal identifier.
2. Matching Program. A procedure in which a computer is used to
compare two or more automated systems of records or a system of records
with a set of nonfederal records to find individuals who are common to
more than one system or set. The procedure includes all of the steps
associated with the match, including obtaining the records to be
matched, actual use of the computer, administrative and investigative
action on the hits, and disposition of the personal records maintained
in connection with the match. It should be noted that a single matching
program may involve several matches among a number of participants.
Matching programs do not include the following:
a. Matches that do not compare a substantial number of records, such
as, comparison of the Department of Education's defaulted student loan
data base with the Office of Personnel Management's federal employee
data base would be covered; comparison of six individual student loan
defaultees with the OPM file would not be covered.
b. Checks on specific individuals to verify data in an application
for benefits done reasonably soon after the application is received.
c. Checks on specific individuals based on information which raises
questions about an individual's eligibility for benefits or payments
done reasonably soon after the information is received.
d. Matches done to produce aggregate statistical data without any
personal identifiers.
e. Matches done to support any research or statistical project when
the specific data are not to be used to make decisions about the rights,
benefits, or privileges of specific individuals.
f. Matches done by an agency using its own records.
3. Matching Agency. The federal agency which actually performs the
match.
4. Source Agency. The federal agency which discloses records from a
system of records to be used in the match. Note that in some
circumstances a source agency may be the instigator and ultimate
beneficiary of the matching program, as when an agency lacking computer
resources uses another agency to perform the match. The disclosure of
records to the matching agency and any later disclosure of ''hits'' (by
either the matching or the source agencies) must be done in accordance
with the provisions of paragraph (b) of the Privacy Act.
5. Hit. The identification, through a matching program, of a specific
individual.
E. Guidelines for Agencies Participating in Matching Programs.
Agencies should acquire and disclose matching records and conduct
matching programs in accordance with the provisions of this section and
the Privacy Act.
1. Disclosing Personal Records for Matching Programs.
a. To another federal agency. Source agencies are responsible for
determining whether or not to disclose personal records from their
systems and for making sure they meet the necessary Privacy Act
disclosure provisions when they do. Among the factors source agencies
should consider are:
(1) Legal authority for the match;
(2) Purpose and description of the match;
(3) Description of the records to be matched;
(4) Whether the record subjects have consented to the match; or
whether disclosure of records for the match would be compatible with the
purpose for which the records were originally collected; that is,
whether disclosure under a ''routine use'' would be appropriate;
whether the soliciting agency is seeking the records for a legitimate
law enforcement activity -- whichever is appropriate; or any other
provision of the Privacy Act under which disclosure may be made;
(5) Description of additional information which may be subsequently
disclosed in relation to ''hits'';
(6) Subsequent actions expected of the source (for example,
verification of the identity of the ''hits'' or follow-up with
individuals who are ''hits'');
(7) Safeguards to be afforded the records involved, including
disposition.
b. If the agency is satisfied that disclosure of the records would
not violate its responsibilities under the Privacy Act, it may proceed
to make the disclosure to the matching agency. It should ensure that
only the minimum information necessary to conduct the match is provided.
If disclosure is to be made pursuant to a ''routine use'' (Section
(b)(3) of the Privacy Act), it should ensure that the system of records
contains such a use, or it should publish a routine use notice in the
Federal Register. The agency should also be sure to maintain an
accounting of the disclosures pursuant to Section (c) of the Privacy
Act.
c. To a nonfederal entity. Before disclosing records to a nonfederal
entity for a matching program to be carried out by that entity, a source
agency should, in addition to all of the consideration in paragraph
E.1.a., above, also make reasonable efforts, pursuant to Section (e)(6)
of the Privacy Act, to ''assure that such records are accurate,
complete, timely, and relevant for agency purposes.''
2. Written Agreements. Before disclosing to either a federal or
nonfederal entity, the source agency should require the matching entity
to agree in writing to certain conditions governing the use of the
matching file; for example, that the matching file will remain the
property of the source agency and be returned at the end of the matching
program (or destroyed as appropriate); that the file will be used and
accessed only to match the file or files previously agreed to; that it
will not be used to extract information concerning ''non-hit''
individuals for any purpose, and that it will not be duplicated or
disseminated within or outside the matching agency unless authorized in
writing by the source agency.
3. Performing Matching Programs. (a) Matching agencies should
maintain reasonable administrative, technical, and physical security
safeguards on all files involved in the matching program.
(b) Matching agencies should insure that they have appropriate
systems of records including those containing ''hits,'' and that such
systems and any routine uses have been appropriately noticed in the
Federal Register and reported to OMB and the Congress, as appropriate.
4. Disposition of Records. a. Matching agencies will return or
destroy source matching files (by mutual agreement) immediately after
the match.
b. Records relating to hits will be kept only so long as an
investigation, either criminal or administrative, is active, and will be
disposed of in accordance with the requirements of the Privacy Act and
the Federal Records Schedule.
5. Publication Requirements. a. Agencies, before disclosing records
outside the agency, will publish appropriate ''routine use'' notices in
the Federal Register, if necessary.
b. If the matching program will result in the creation of a new or
the substantial alteration of an existing system of records, the agency
involved should publish the appropriate Federal Register notice and
submit the requisite report to OMB and the Congress pursuant to OMB
Circular No. A-108.
6. Reporting Requirements. a. As close to the initiation of the
matching program as possible, matching agencies shall publish in the
Federal Register a brief public notice describing the matching program.
The notice should include:
(1) The legal authority under which the match is being conducted;
(2) A description of the matching program including whether the
program is one time or continuing, the organizations involved, the
purpose or purposes for which the program is being conducted, and the
procedures to be used in matching and following up on the ''hits'';
(3) A complete description of the personal records to be matched,
including the source or sources, system of records identifying data,
date or dates and page number of the most recent Federal Register full
text publication when appropriate;
(4) The projected start and ending dates of the program;
(5) The security safeguards to be used to protect against
unauthorized access or disclosure of the personal records; and
(6) Plans for disposition of the source records and ''hits.''
7. Agencies should send a copy of this notice to the Congress and to
OMB at the same time it is sent to the Federal Register.
a. Agencies should report new or altered systems of records as
described in paragraph E.5.b., above, as necessary.
b. Agencies should also be prepared to report on matching programs
pursuant to the reporting requirements of either the Privacy Act or the
Paperwork Reduction Act. Reports will be solicited by the Office of
Information and Regulatory Affairs and will focus on both the protection
of individual privacy and the government's effective use of information
technology. Reporting instructions will be disseminated to the agencies
as part of either the reports required by paragraph (p) of the Privacy
Act, or Section 3514 of Pub. L. 96-511.
8. Use of Contractors. Matching programs should, as far as
practicable, be conducted ''in-house'' by federal agencies using agency
personnel, rather than by contract. When contractors are used, however,
a. The matching agency should, consistent with paragraph (m) of the
Privacy Act, cause the requirements of that Act to be applied to the
contractor's performance of the matching program. The contract should
include the Privacy Act clause required by Federal Personnel Regulation
Amendment 155 (41 CFR 1-1.337-5);
b. The terms of the contract should include appropriate privacy and
security provisions consistent with policies, regulations, standards,
and guidelines issued by OMB, GSA, and the Department of Commerce;
c. The terms of the contract should preclude the contractor from
using, disclosing, copying, or retaining records associated with the
matching program for the contractor's own use;
d. Contractor personnel involved in the matching program shall be
made explicitly aware of their obligations under the Act and of these
guidelines, agency rules, and any special safeguards in relation to each
specific match performed.
e. Any disclosures of records by the agency to the contractor should
be made pursuant to a ''routine use'' (5 U.S.C. 552a(b)(3)).
F. Implementation and Oversight. OMB will oversee the implementation
of these guidelines and shall interpret and advise upon agency proposals
and actions within their scope, consistent with section 6 of the Privacy
Act.
(51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29,
1991, and amended at 56 FR 57801, Nov. 14, 1991)
32 CFR 310.114 -- PART 311 -- OSD PRIVACY PROGRAM
Sec.
311.1 Reissuance and purpose.
311.2 Applicability and scope.
311.3 Definitions.
311.4 Policy.
311.5 Responsibilities.
311.6 Procedures.
311.7 Procedures for exemptions.
311.8 Information requirements.
Authority: Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 552a)
Source: 51 FR 7070, Feb. 28, 1986, unless otherwise noted.
Redesignated at 56 FR 55631, Oct. 29, 1991.
32 CFR 311.1 Reissuance and purpose.
This part reissues Administrative Instruction No. 81 to update and
implement basic policies and procedures outlined in Privacy Act of 1974,
DoD 5400.11-R, OMB Circular No. A-108 (TM No. 4) and to provide
guidance and procedures for use in establishing the Privacy Program in
the Office of the Secretary of Defense (OSD) and those organizations
assigned to OSD for administrative support.
32 CFR 311.2 Applicability and scope.
(a) This part applies to the OSD, Joint Staff, Defense Advanced
Research Projects Agency (DARPA), Uniformed Services University of the
Health Sciences (USUHS) and other activities assigned to OSD for
administrative support (hereafter referred to collectively as ''OSD
Components'').
(b) This part covers record systems maintained by OSD Components and
governs the maintenance, access, change, and release of information
contained in OSD Component record systems, from which information
pertaining to an individual is retrieved by a personal identifier.
(51 FR 7070, Feb. 28, 1986, as amended at 54 FR 2101, Jan. 19, 1989.
Redesignated at 56 FR 55631, Oct. 29, 1991)
32 CFR 311.3 Definitions.
Access. Any individual's review of a record or a copy of a record or
parts of a system of records.
Disclosure. The transfer of any personal information from a system of
records by any means of oral, written, electronic, mechanical, or other
communication, to any person, private entity, or Government agency,
other than the subject of the record, the subject's designated agent, or
the subject's legal guardian.
Individual. A living citizen of the United States or an alien
lawfully admitted to the United States for permanent residence. The
legal guardian of an individual has the same rights as the individual
and may act on his or her behalf.
Individual access. Access to information pertaining to the
individual or his or her designated agent or legal guardian.
Maintain. Includes maintenance, collection, use or dissemination.
Personal information. Information about an individual that is
intimate or private, as distinguished from information related solely to
the individual's official functions or public life.
32 CFR 311.4 Policy.
(a) It is DoD policy to protect the privacy of individuals involved
in any phase of the personnel management process and to permit any
individual to know what existing records pertain to him or her in any
OSD Component covered by this part.
(b) Each office maintaining records and information about individuals
shall ensure that their privacy is protected from unauthorized
disclosure. These offices shall permit individuals to have access to,
and to have a copy made of, all or any portion of records pertaining to
them (except those referred to in Chapters 3 and 5, DoD 5400.11-R and to
have an opportunity to request that such records be amended as provided
by the Privacy Act of 1974. Individuals requesting access to their
records shall receive concurrent consideration under the Privacy Act of
1974 and the Freedom of Information Act as amended, if appropriate.
(c) The heads of OSD Components shall maintain any record of an
identifiable personal nature in a manner that is necessary and lawful.
Any information collected must be as accurate, relevant, timely, and
complete as is reasonable to ensure fairness to the individual.
Adequate safeguards must be provided to prevent misuse or unauthorized
release of such information.
32 CFR 311.5 Responsibilities.
(a) The Director of Administration and Management (DA&M) shall:
(1) Direct and administer the DoD Privacy Program for OSD Components.
(2) Establish standards and procedures to ensure implementation of
and compliance with the Privacy Act of 1974, OMB Circular No. A-108 (TM
No. 4), and DoD 5400.11-R.
(3) Serve as the appellate authority within OSD when a requester
appeals a denial for amendment of a record or initiates legal action to
correct a record.
(4) Evaluate and decide, in coordination with the General Counsel
(GC), DoD, appeals resulting from denials of correction and/or
amendments to records by OSD Components.
(5) Designate the Records Management Division, Correspondence and
Directives Directorate, Washington Headquarters Services (WHS), as the
office responsible for all aspects of the Privacy Act, except that
portion pertaining to receiving and acting on public requests for
personal records. As such, the Records Management Division, shall:
(i) Exercise oversight and administrative control of the Privacy Act
Program in OSD and those organizations assigned to OSD for
administrative support.
(ii) Provide guidance and training to organizational entities as
required by the Privacy Act of 1974 and OMB Circular A-108 (TM No. 4).
(iii) Collect and consolidate data from OSD Components, and submit an
annual report to the Defense Privacy Office, as required by the Privacy
Act of 1974, OMB Circular A-108 (TM No. 4) and DoD 5400.11-R.
(iv) Coordinate and consolidate information for reporting all record
systems, as well as changes to approved systems, to the Office of
Management and Budget (OMB), the Congress, and the Federal Register, as
required by the Privacy Act of 1974, OMB Circular No. A-108 (TM No. 4)
and DoD 5400.11-R.
(v) Collect information from OSD Components, and prepare consolidated
reports required by the Privacy Act of 1974 and DoD 5400.11-R.
(b) The Assistant Secretary of Defense (Public Affairs) ASD(PA)
shall:
(1) Designate the Director for Freedom of Information and Security
Review, OASD(PA), as the point of contact for individuals requesting
information or access to records and copies concerning themselves.
(2) Serve as the authority within OSD when requesters seek
reconsideration of previously denied requests for access to records, and
in coordination with the GC, DoD, and the DA&M, evaluate and decide on
such requests.
(c) The Director for Freedom of Information and Security Review
shall:
(1) Forward requests for information or access to records to the
appropriate OSD Component having primary responsibility for any
pertinent system of records under the Privacy Act of 1974 or to OSD
Components, under the Freedom of Information Act as amended.
(2) Maintain deadlines to ensure that responses are made within the
time limits prescribed in DoD 5400.7-R, DoD Directive 5400.10 and this
part.
(3) Collect fees charged and assessed for reproducing requested
materials.
(4) Refer all matters concerning amendments of records and general
and specific exemptions under the Privacy Act of 1974 to the proper OSD
components.
(5) Authorize a specific field activity of an OSD Component to act as
the point of contact for individuals requesting information or access to
records or copies, under the Privacy Act of 1974 for which the field
activity has primary responsibility. All authorizations by the ASD(PA)
shall be coordinated with the heads of the OSD Component concerned.
(d) The General Counsel, DoD, shall:
(1) Coordinate with the Department of Justice (DoJ) on all OSD final
denials of appeals for amending records, and review actions to confirm
denial of access to records.
(2) Provide advice and assistance to the DA&M in the discharge of
appellate and review responsibilities, and to the ASD(PA) on all access
matters.
(3) Provide advice and assistance to OSD Components on legal matters
pertaining to the Privacy Act of 1974.
(e) The Head of OSD Components shall:
(1) Designate an individual as the point of contact for Privacy Act
matters; designate an official to deny initial requests for access to
an individual's records or changes to records; and advise both DA&M and
ASD(PA) of names of officials so designated.
(2) Report any new record system, or changes to an existing system,
to the OSD Records Administrator, WHS, at least 90 days before the
intended use of the system.
(3) Review all contracts that provide for maintaining records
systems, by or on behalf of his or her office, to ensure within his or
her authority, that language is included that provides that such systems
shall be maintained in a manner consistent with the Privacy Act of 1974.
(4) Revise procurement guidance to ensure that any contract providing
for the maintenance of a records system, by or on behalf of his or her
office, includes language that ensures that such system will be
maintained in accordance with the Privacy Act of 1974.
(5) Revise computer and telecommunications procurement policies to
ensure that agencies review all proposed contracts for equipment and
services to comply with the Privacy Act of 1974.
(6) Coordinate with Automatic Data Processing (ADP) and word
processing managers providing services to ensure that an adequate risk
analysis is conducted to comply with DoD 5400.11-R.
(7) Review all Directives that require forms or other methods used to
collect information about individuals to ensure that the Privacy Act of
1974 is complied with.
(8) Establish administrative systems in OSD Component organizations
to comply with the procedures listed in this part and DoD 5400.11-R.
(9) Coordinate with the Office of the General Counsel (OGC) on all
proposed denials of access to records.
(10) Provide justification to the ASD(PA) when access to a record is
denied in whole or in part.
(11) Provide the record to the ASD(PA) when the initial denial of a
request for access to such record has been appealed by the requester, or
at the time of initial denial when appeal seems likely.
(12) Maintain an accurate account of the actions resulting in a
denial for access to a record or for the correction of a record. This
account should be maintained so that it can be readily certified as the
complete record of proceedings if litigation occurs.
(13) Ensure that all personnel who either have access to the system
of records, of who are engaged in developing or supervising procedures
for handling records in the system, are aware of their responsibilities
for protecting personal information as established in the Privacy Act
and DoD 5400.11-R.
(14) Forward all requests for access to records received directly
from an individual to the ASD(PA) for appropriate suspense control and
recording.
(15) Provide ASD(PA) with a copy of the requested record when the
request is granted.
(f) The Director for Space Management and Services (SM&S), WHS,
shall:
Upon request of the OSD Records Administrator, provide the necessary
automated services through the OSD support system for publishing of data
in the Federal Register as required by the Privacy Act of 1974.
(g) The Requester is responsible for:
(1) Submitting a request for access to a record or information, in
person or in writing, to the Directorate for Freedom of Information and
Security Review, (DFOI/SR), OASD(PA), Room 2C757, Pentagon, Washington,
D.C. 20301-1155. The Requester must also:
(i) Establish his or her identity as outlined in DoD 5400.11-R.
(ii) Describe the record sought, and provide sufficient information
to enable the material to be located (e.g., identification of system or
records, approximate date it was initiated, originating organization,
and type of document).
(iii) Comply with procedures provided in DoD 5400.11-R for inspecting
and/or obtaining copies of requested records.
(2) Submitting a written request to amend the record to the system
manager or to the office designated in the system notice.
(51 FR 7070, Feb. 28, 1986, as amended at 54 FR 2101, Jan. 19, 1989.
Redesignated at 56 FR 55631, Oct. 29, 1991, and amended at 56 FR 57801,
Nov. 14, 1991)
32 CFR 311.6 Procedures.
(a) Publication of Notice in the Federal Register. (1) A notice
shall be published in the Federal Register of any record system meeting
the definition of a system of records defined in DoD 5400.11-R.
(2) Regarding new or revised records systems, each OSD Component
shall provide the DA&M with 90 days advance notice of any anticipated
new or revised system of records. This material shall be submitted to
the Office of Management and Budget (OMB) and to Congress at least 60
days before use and to the Federal Register at least 30 days before
being put into use, in order to provide an opportunity for interested
persons to submit written data, views, or arguments to the OSD
Components. Instructions on content and preparation are outlined in DoD
Regulation 5400.11-R.
(b) Access to information on Records Systems. (1) Upon request, and
as provided by the Privacy Act, records shall be disclosed only to the
individual they pertain to and under whose individual name or identifier
they are filed, unless exempted by provisions stated in DoD 5400.11-R.
(2) There is no requirement under the Privacy Act of 1974 that a
record be created or that an individual be given access to records that
are not retrieved by name or other individual identifier.
(3) Granting access to a record containing personal information shall
not be conditioned upon any requirement that the individual state a
reason or otherwise justify the need to gain access.
(4) No verification of identity shall be required of an individual
seeking access to records that are otherwise available to the public.
(5) Individuals shall not be denied access to a record in a system of
records pertaining to themselves because those records are exempted from
disclosure under DoD 5400.7-R. This regulation states that ''an exempted
record shall be made available upon request of any individual when, in
the judgment of the releasing Component or higher authority, no
significant, legitimate, governmental purpose would be served by
withholding it under an applicable exemption.''
(6) Individuals shall not be denied access to their records for
refusing to disclose their Social Security Numbers (SSNs), unless
disclosure of the SSN is required by statute, by regulation adopted
before January 1, 1975, or if the record's filing identifier and only
means of retrieval is by SSN.
(7) Any individual may request access to a record pertaining to him
or her, in person or by mail, in accordance with the procedures outlined
in paragraph (b)(8) of this section.
(8) Information necessary to identify a record is: the individual's
name, date of birth, place of birth, identification of the records
system as listed in the Federal Register, or sufficient information to
identify the type of records being sought, and the approximate date the
records might have been created. Any individual making a request for
access to records in person shall come to the Directorate for Freedom of
Information and Security Review, DFOI/SR, OASD(PA) Room 2C757, Pentagon,
Washington, DC 20301-1155; and shall provide personal identification
acceptable to the Director, DFOI/SR, to verify the individual's identity
(e.g., driver's license, other licenses, permits, or passes used for
routine identification purposes).
(9) If an individual wishes to be accompanied by a third party when
seeking access to records or wishes to have the record released directly
to a third party, the individual may be required to furnish a signed
access authorization granting the third party access.
(10) Any individual submitting a request by mail for access to
information shall address such request to the Directorate for Freedom of
Information and Security Review, OASD(PA), Pentagon, Room 2C757,
Washington, D.C. 20301-1155. The request shall include a signed
notarized statement to verify his or her identity or an alternate
verification for individuals, such as military members overseas who do
not have access to notary services.
(11) The following procedures shall apply to requests for access to
investigatory records:
(i) Individuals requesting access to investigatory records pertaining
to themselves and for law enforcement purposes are processed under DoD
5400.11-R or DoD 5400.7-R depending on which regulation gives them the
greater degree of access.
(ii) Individual requests for access to investigatory records
pertaining to themselves compiled for law enforcement purposes (and in
the custody of law enforcement activities) that have been incorporated
into the records system, exempted from the access provisions of DoD
5400.11-R, will be processed in accordance with Section B, Chapter 5,
DoD 5400.11-R. Individuals shall not be denied access to records solely
because they are in the exempt system, but they will have the same
access that they would receive under DoD 5400.7-R. (Also see subsection
A.10., Chapter 3, DoD 5400.11-R).
(iii) Requests by individuals for access to investigatory records
pertaining to themselves that are in records systems exempted from
access provisions will be processed under subsection C.1. of Chapter 5,
DoD 5400.11-R or DoD 5400.7-R, depending upon which regulation gives the
greater degree of access. (See also subsection A.10., Chapter 3, DoD
5400.11-R).
(iv) Individual requests for access to investigatory records exempted
from access under Section B, Chapter 5, DoD 5400.11-R that are
temporarily in the hands of a noninvestigatory element for adjudicative
or personnel actions, will be referred to the originating investigating
agency. The requester will be informed in writing of these referrals.
(12) The following procedures shall apply to requests for illegible,
incomplete, or partially exempt records:
(i) An individual shall not be denied access to a record or a copy of
a record solely because the physical condition or format of the record
does not make it readily available (e.g., deteriorated state or on
magnetic tape). The document will be prepared as an extract, or it will
be exactly recopied.
(ii) If a portion of the record contains information that is exempt
from access, an extract or summary containing all of the information in
the record that is releasable shall be prepared.
(iii) When the physical condition of the record makes it necessary to
prepare an extract for release, the extract shall be prepared so that it
will be understood by the requester.
(iv) The requester shall be informed of all deletions or changes to
records.
(13) Medical records shall be disclosed to the individual they
pertain to, unless a determination is made in consultation with a
medical doctor, that the disclosure could have adverse effects on the
individual's physical or mental health. Such information may be
transmitted to a medical doctor named by the individual concerned.
(14) The individual may be charged reproduction fees for copies or
records as outlined in DoD 5400.11-R.
(c) Request to amend personal information in Records Systems and
disputes. (1) The Head of an OSD Component, or the designated official,
shall allow individuals to request amendment to their records to the
extent that such amendment does not violate existing statutes,
regulations, or administrative procedures. Requests should be as brief
and as simple as possible and should contain, as a minimum, identifying
information to locate the record, a description of the items to be
amended, and the reason for the change. A request shall not be rejected
nor required to be resubmitted unless additional information is
essential to process the request. Requesters shall be required to
provide verification of their identity as stated in paragraph (b)(8) of
this section to ensure that they are seeking to amend records pertaining
to themselves, and not, inadvertently or intentionally, the records of
others.
(2) The appropriate system manager shall mail a written
acknowledgment to an individual's request to amend a record within 10
days after receipt, excluding Saturdays, Sundays, and legal public
holidays. Such acknowledgment shall identify the request and may, if
necessary, request any additional information needed to make a
determination. No acknowledgment is necessary if the request can be
reviewed, processed, and if the individual can be notified of compliance
or denial within the 10-day period. Whenever practical, the decision
shall be made within 30 working days. For requests presented in person,
written acknowledgment may be provided at the time the request is
presented.
(3) The Head of an OSD Component, or designated official, shall
promptly take one of the following actions on requests to amend the
records:
(i) If the OSD Component official agrees with any portion or all of
an individual's request, he or she will proceed to amend the records in
accordance with existing statutes, regulations, or administrative
procedures, and inform the requester of the action taken. The OSD
Component official shall also notify all previous holders of the record
that the amendment has been made, and shall explain the substance of the
correction.
(ii) If he or she disagrees with all or any portion of a request, the
individual shall be informed promptly of the refusal to amend a record,
the reason for the refusal, and the procedure established by OSD for an
appeal as outlined in paragraph (c)(6) of this section.
(iii) If the request for an amendment pertains to a record controlled
and maintained by another Federal agency, the request shall be referred
to the appropriate agency, and the requester advised of this.
(4) The following procedures shall be used when reviewing records
under dispute:
(i) In response to a request for an amendment to records, officials
shall determine the accuracy, relevance, timeliness, or completeness of
the requested record. The Head of an OSD Component, or designated
official, shall develop tolerances for accuracy, relevance, and
timeliness by giving consideration as to whether such tolerances could
result in consequences adverse to the individual.
(ii) The Head of an OSD Component, or designated official, shall
limit the review of a record to those items of information that clearly
bear on any determination to amend the records and shall ensure that all
those elements are present before determination is made.
(5) If the Head of an OSD Component, or designated official, after an
initial review of a request to amend a record, disagrees with all or any
portion of a record, he or she shall:
(i) Advise the individual of the denial and the reason for it.
(ii) Inform the individual that he or she may request a further
review.
(iii) Describe the procedures for requesting such review including
the name and address of the official to whom the request should be
directed. The procedures should be as brief and simple as possible and
should indicate where the individual can seek advice or assistance in
obtaining such review.
(iv) Furnish a copy of the justification of any denial to amend a
record to DA&M.
(6) If an individual disagrees with the initial OSD determination, he
or she may file a request for further review of the record. The request
should be sent to the Director of Administration and Management,
Department of Defense, The Pentagon, Washington, DC 20301-1155, if the
record is created and maintained by an OSD Component.
(7) If, after review, the DA&M further refuses to amend the record as
requested, the DA&M shall advise the individual:
(i) Of the refusal and the reason for it.
(ii) Of his or her right to file a statement of the reason for
disagreeing with the DA&M's decision.
(iii) Of the procedures for filing a statement of disagreements.
(iv) That the statement filed shall be made available to anyone the
record is disclosed to, together with a brief statement, at the
discretion of the OSD Component, summarizing its reasons for refusing to
amend the records.
(v) That prior recipients of copies of disputed records shall be
provided a copy of any statement of dispute to the extent that an
accounting of disclosure is maintained.
(vi) Of his or her right to seek judicial review of the DASD(A)'s
refusal to amend a record.
(8) If, after the review, the DA&M determines that the record should
be amended in accordance with the individual's request, the OSD
Component shall amend the record, advise the individual, and inform
previous recipients where an accounting of disclosure has been
maintained.
(9) The final OSD determination on an individual's request for a
review of the DA&M's refusal to amend the record must be concluded
within 30 days (excluding Saturdays, Sundays, and legal public holidays)
after receipt by the proper office. If the DA&M determines that a fair
and equitable review cannot be made within that time, the individual
will be informed in writing of the reasons for the delay and of the
approximate date the review is expected to be completed.
(d) Disclosure of disputed information. (1) After the DA&M has
refused to amend a record and the individual has filed a statement under
paragraph (c)(7) of this section, the OSD Component shall clearly
annotate the record so that the proceeding is clear to any authorized
person to whom the record is disclosed. The notation itself shall be
integral to the record. Where an accounting of a disclosure has been
made, the OSD Component shall advise previous recipients that the record
has been disputed, and shall provide a copy of the individual's
statement where requested.
(i) This statement shall be maintained to permit ready retrieval
whenever the disputed portion of the record is to be disclosed.
(ii) When information that is the subject of a statement of dispute
is subsequently disclosed, the OSD Component's designated official shall
note which information is disputed and provide a copy of the
individual's statement.
(2) The OSD Component shall include a brief summary of its reasons
for not making a correction when disclosing disputed information. Such
statement shall normally be limited to the reasons given to the
individual for not amending the record.
(3) Copies of the OSD Component's summary will be treated as part of
the individual's record; however, it will not be subject to the
amendment procedure outlined in paragraph (c)(3) of this section.
(4) Paragraph B of Chapter 11, DoD 5400.11-R, prescribes that all
requests for participation in a matching program (either as a matching
agency or a source agency) be submitted to the Defense Privacy Office
for review and compliance. OSD Components will submit these requests
through the Records Management Division.
(e) Penalties -- (1) Civil action. (i) An individual may file a
civil suit against the United States for:
(A) Refusal to amend a record.
(B) Improper denial of the access to a record.
(C) Failure to maintain a record accurately.
(ii) An individual may also file a suit against the United States for
failure to implement a provision of the Privacy Act when such failure
leads to an adverse determination.
(iii) If the individual's suit is upheld, the court may direct the
United States to pay the court costs and lawyer's fees.
(iv) When the individual can show that personal damage was done
because an OSD officer or employee failed to comply with the provisions
of the Privacy Act of 1974, the United States may be assessed damages by
the court at a minimum of $1,000.
(2) Criminal action. (i) Criminal penalties may be imposed against
an OSD officer or employee for willful unauthorized disclosure of
information in the records, for failure to publish a notice of the
existence of a record system in the Federal Register, or for gaining
access to the individual's record under false pretenses (i.e., against
any person who knowingly and willfully requests or obtains any record
concerning another individual without legal authorization).
(ii) An OSD officer or employee may be fined up to $5,000 for a
violation as outlined in paragraph (e)(2)(i) of this section.
(3) Litigation status sheet. Whenever a complaint citing the Privacy
Act of 1974 is filed in a U.S. District Court against the Department of
Defense, a DoD Component, or any DoD employee, the responsible system
manager shall promptly notify the Defense Privacy Office. The
litigation status sheet in DoD 5400.11-R provides a standard format for
this notification. (The initial litigation status sheet shall, as a
miniumum, provide the information required by items 1 through 6.) A
revised litigation status sheet shall be provided at each stage of the
litigation. When a court renders a formal opinion or judgment, copies
of the judgment or opinion shall be provided to the Defense Privacy
Office with the litigation status sheet reporting that judgment or
opinion.
(51 FR 7070, Feb. 28, 1986, as amended at 54 FR 2101, Jan. 19, 1989;
Redesignated at 56 FR 55631, Oct. 29, 1991, and amended at 56 FR 57801,
Nov. 14, 1991)
32 CFR 311.7 Procedures for exemptions.
(a) General information. The Secretary of Defense designates those
Office of the Secretary of Defense (OSD) systems of records which will
be exempt from certain provisions of the Privacy Act. There are two
types of exemptions, general and specific. The general exemption
authorizes the exemption of a system of records from all but a few
requirements of the Act. The specific exemption authorizes exemption of
a system of records or portion thereof, from only a few specific
requirements. If an OSD Component originates a new system of records
for which it proposes an exemption, or if it proposes an additional or
new exemption for an existing system of records, it shall submit the
recommended exemption with the records system notice as outlined in
311.6. No exemption of a system of records shall be considered automatic
for all records in the system. The systems manager shall review each
requested record and apply the exemptions only when this will serve
significant and legitimate Government purpose.
(b) General exemptions. The general exemption provided by 5 U.S.C.
552a(j)(2) may be invoked for protection of systems of records
maintained by law enforcement activities. Certain functional records of
such activities are not subject to access provisions of the Privacy Act
of 1974. Records identifying criminal offenders and alleged offenders
consisting of identifying data and notations of arrests, the type and
disposition of criminal charges, sentencing, confinement, release,
parole, and probation status of individuals are protected from
disclosure. Other records and reports compiled during criminal
investigations, as well as any other records developed at any stage of
the criminal law enforcement process from arrest to indictment through
the final release from parole supervision are excluded from release.
(1) System Identification and Name -- DWHS P42.0, ''DPS Incident
Reporting and Investigations Case Files''.
Exemption -- Portions of this system that fall within 5 U.S.C.
552a(j)(2) are exempt from the following provisions of 5 U.S.C. 552a,
Sections (c) (3) and (4); (d)(1) through (d)(5); (e)(1) through
(e)(3); (e)(5); (f)(1) through (f)(5); (g)(1) through (g)(5); and
(h) of the Act.
Authority -- 5 U.S.C. 552a(j)(2).
Reason -- The Defense Protective Service is the law enforcement body
for the jurisdiction of the Pentagon and immediate environs. The nature
of certain records created and maintained by the DPS requires exemption
from access provisions of the Privacy Act of 1974. The general
exemption, 5 U.S.C. 552a(j)(2), is invoked to protect ongoing
investigations and to protect from access criminal investigation
information contained in this record system, so as not to jeopardize any
subsequent judicial or administrative process taken as a result of
information contained in the file.
(2) System Identification and Name -- JS006.CND, Department of
Defense Counternarcotics C4I System.
Exemption -- Portions of this system that fall within 5 U.S.C.
552a(j)(2) are exempt from the following provisions of 5 U.S.C. 552a,
section (c) (3) and (4); (d)(1) through (d)(5); (e)(1) through (e)(3);
(e)(4)(G) and (e)(4)(H); (e)(5); (f)(1) through (f)(5); (g)(1)
through (g)(5) of the Act.
Authority: 5 U.S.C. 552a(j)(2).
Reason -- 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
USSOUTHCOM's criminal law enforcement.
For subsections (c)(4) and (d) because notification would alert a
subject to the fact that an investigation of that individual is taking
place, and might weaken the on-going investigation, reveal investigatory
techniques, and place confidential informants in jeopardy.
From subsections (e)(4) (G) and (H) because this system of records is
exempt from the access provisions of subsection (d) pursuant to
subsection (j).
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 criminal 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.
For compatibility with the exemption claimed from subsection (f), the
civil remedies provisions of subsection (g) must be suspended for this
record system. Because of the nature of criminal investigations,
standards of accuracy, relevance, timeliness and completeness cannot
apply to this record system. Information gathered in criminal
investigations is often fragmentary and leads relating to an individual
in the context of one investigation may instead pertain to a second
investigation.
From subsection (e)(1) because the nature of the criminal
investigative function creates unique problems in prescribing a specific
parameter in a particular case with respect to what information is
relevant or necessary. Also, due to USSOUTHCOM's close liaison and
working relationships with the other Federal, as well as state, local
and foreign country law enforcement agencies, information may be
received which may relate to a case under the investigative jurisdiction
of another agency. The maintenance of this information may be necessary
to provide leads for appropriate law enforcement purposes and to
establish patterns of activity which may relate to the jurisdiction of
other cooperating agencies.
From subsection (e)(2) because collecting information to the greatest
extent possible directly from the subject individual may or may not be
practicable in a criminal investigation. The individual may choose not
to provide information and the law enforcement process will rely upon
significant information about the subject from witnesses and informants.
From subsection (e)(3) because supplying an individual with a form
containing a Privacy Act Statement would tend to inhibit cooperation by
many individuals involved in a criminal investigation. The effect would
be somewhat inimical to established investigative methods and
techniques.
From subsection (e)(5) because the requirement that records be
maintained with attention to accuracy, relevance, timeliness, and
completeness would unfairly hamper the criminal investigative process.
It is the nature of criminal law enforcement for investigations to
uncover the commission of illegal acts at diverse stages. It is
frequently impossible to determine initially what information is
accurate, relevant, timely, and least of all complete. With the passage
of time, seemingly irrelevant or untimely information may acquire new
significant as further investigation brings new details to light.
From subsection (e)(8) because the notice requirements of this
provision could present a serious impediment to criminal law enforcement
by revealing investigative techniques, procedures, and existence of
confidential investigations.
(c) Specific exemptions. All systems of records maintained by any
OSD Component shall be exempt from the requirements of 5 U.S.C. 552a(d)
pursuant to subsection (k)(1) of that section to the extent that the
system contains any information properly classified under Executive
Order 11265, ''National Security Information,'' dated June 28, 552a(d)
pursuant to subsection (k)(1) of that section to the extent that the
system contains any information properly classified under E.O. 11265,
''National Security Information,'' dated June 28, 1979, as amended, and
required by the Executive Order to be kept classified in the interest of
national defense or foreign policy. This exemption, which may be
applicable to parts of all systems of records, is necessary because
certain record systems not otherwise specifically designated for
exemptions may contain isolated information which has been properly
classified. The Secretary of Defense has designated the following OSD
system of records described below specifically exempted from the
appropriate provisions of the Privacy Act pursuant to the designated
authority contained therein:
(1) SYSID-DWHS P26, SYSNAME. Protective Services File. Exemption.
This system of records is exempt from subsections (c)(3), (d), (e)(1),
(e)(4), (G), (H), (I), and (f) of 5 U.S.C. 552a, which would require the
disclosure of investigatory material compiled for law enforcement
purposes; or a record maintained in connection with providing
protective services to the President of the United States or other
individuals pursuant to 18 U.S.C. 3056. If any individual is denied any
right, privilege, or benefit that he would otherwise be entitled by
Federal law, or otherwise be eligible, as a result of the maintenance of
the material compiled for law enforcement purposes, the material shall
be provided to that individual, except to the extent that its disclosure
would reveal the identity of a source who furnished information to the
Government under an express promise or, prior to September 27, 1975,
under an implied promise that the identity of the source would be held
in confidence. At the time of the request for a record, a determination
will be made concerning whether a right, privilege, or benefit is denied
or specific information would reveal the identity of a source.
Authority. 5 U.S.C. 552a(k) (2) and (3).
Reasons. These exemptions are necessary to maintain the
confidentiality of the records compiled for the purpose of law
enforcement, or protecting the President of the United States or others
pursuant to 18 U.S.C. 3056.
(2) SYSID-DWHS P28, SYSNAME. The Office of the Secretary of Defense
Clearance File:
Exemption. This system of records is exempt from subsections (c)(3)
and (d) of 5 U.S.C. 552a, which would require the disclosure of
investigatory material compiled solely for the purpose of determining
access to classified information but only to the extent that disclosure
of such material would reveal the identity of a source who furnished
information to the Government under an expressed promise that the
identity of the source would be held in confidence or, prior to
September 27, 1975, under an implied promise that the identity of the
source would be held in confidence. A determination will be made at the
time of the request for a record concerning the specific information
which would reveal the identity of the source.
Authority. 5 U.S.C. 552a(k)(5).
Reasons. This exemption is required to protect the confidentiality of
the sources of information compiled for the purpose of determining
access to classified information. This confidentiality helps maintain
the Government's continued access to information from persons who would
otherwise refuse to give it.
(3) SYSID-DGC 04, SYSNAME. Industrial Personnel Security Clearance
Case Files.
Exemption. All portions of this system which fall under 5 U.S.C.
552a(k)(5) are exempt from the following provisions of Title 5 U.S.C.
552a: (c)(3); (d).
Authority. 5 U.S.C. 552a(k)(5).
Reasons. This system of records is exempt from subsections (c)(3) and
(d) of Section 552a of 5 U.S.C. which would require the disclosure of
investigatory material compiled solely for the purpose of determining
access to classified information, but only to the extent that the
disclosure of such material would reveal the identity of a source who
furnished information to the Government under an expressed promise that
the identity of the source would be held in confidence, or prior to
September 27, 1975, under an implied promise that the identity of the
source would be held in confidence. A determination will be made at the
time of the request for a record concerning whether specific information
would reveal the identity of a source. This exemption is required in
order to protect the confidentiality of the sources of information
compiled for the purpose of determining access to classified
information. This confidentiality helps maintain the Government's
continued access to information from persons who would otherwise refuse
to give it.
(4) SYSID-DWHS P32, SYSNAME. Standards of Conduct Inquiry File.
Exemption. This system of records is exempted from subsections (c)(3)
and (d) of 5 U.S.C. 552a, which would require the disclosure of:
investigatory material compiled for law enforcement purposes; or
investigatory material compiled solely for the purpose of determining
suitability, eligibility, or qualifications for Federal civilian
employment, military service, or Federal contracts, but only to the
extent that the disclosure of such material would reveal the identity of
a source who furnished information to the Government under an express
promise or, prior to September 27, 1975, under an implied promise that
the identity of the source would be held in confidence. If any
individual is denied any right, privilege, or benefit that he would
otherwise be entitled by Federal law, or otherwise be eligible, as a
result of the maintenance of investigatory material compiled for law
enforcement purposes, the material shall be provided to that individual,
except to the extent that its disclosure would reveal the identity of a
source who furnished information to the Government under an express
promise or, prior to September 27, 1975, under an implied promise that
the identity of the source would be held in confidence. At the time of
the request for a record, a determination will be made concerning
whether a right, privilege, or benefit is denied or specific information
would reveal the identity of a source.
Authority. 5 U.S.C. 552a(k) (2) and (5).
Reasons. These exemptions are necessary to protect the
confidentiality of the records compiled for the purpose of: enforcement
of the conflict of interest statutes by the Department of Defense
Standards of Conduct Counselor, General Counsel, or their designees;
and determining suitability, eligibility or qualifications for Federal
civilian employment, military service, or Federal contracts of those
alleged to have violated or caused others to violate the Standards of
Conduct regulations of the Department of Defense.
(5) SYSID-DUSDP 02, SYSNAME. Special Personnel Security Cases.
Exemption. All portions of this system which fall under 5 U.S.C.
552a(k)(5) are exempt from the following provisions of 5 U.S.C. 552a:
(c)(3); (d).
Authority: 5 U.S.C. 552a(k)(5).
Reasons. This system of records is exempt from subsections (c)(3) and
(d) of 5 U.S.C. 552a which would require the disclosure of investigatory
material compiled solely for the purpose of determining access to
classified information, but only to the extent that the disclosure of
such material would reveal the identity of a source who furnished
information to the Government under an expressed promise that the
identity of the source would be held in confidence or, prior to
September 27, 1975, under an implied promise that the identity of the
source would be held in confidence. A determination will be made at the
time of the request for a record concerning whether specific information
would reveal the identity of a source. This exemption is required in
order to protect the confidentiality of the sources of information
compiled for the purpose of determining access to classified
information. This confidentiality helps maintain the Government's
continued access to information from persons who would otherwise refuse
to give it.
(6) System Identification and Name -- DODDS 02.0, Educator
Application Files.
Exemption -- All portions of this system which fall within 5 U.S.C.
552a(k)(5) may be exempt from the following provisions of Title 5 U.S.C.
552a: (c)(3); (d).
Authority -- 5 U.S.C. 552a(k)(5).
Reasons -- It is imperative that the confidential nature of
evaluation and investigatory material on teacher application files
furnished the Department of Defense Dependent Schools (DoDDS) under
promises of confidentiality be exempt from disclosure to the individual
to insure the candid presentation of information necessary to make
determinations involving applicants suitability for DoDDS teaching
positions.
(7) System Identification and Name -- DODDS 25.0, DoDDS Internal
Review Office Project File.
Exemption -- Portions of this system that fall within the provisions
of 5 U.S.C. 552a(k)(2) are exempt from the following subsections (c)(3),
(d), (e)(4)(G), (e)(4)(H), and (f).
Authority -- 5 U.S.C. 552a(k)(2).
Reasons -- From subsection (c)(3) because the release of a disclosure
accounting 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 cooperating agencies. This would greatly impede the IRO's
criminal law enforcement effectiveness.
From subsection (e)(4)(G) and (e)(4)(H), because notification would
alert a subject to the fact that an investigation of that individual is
taking place, and might weaken the on-going investigation, reveal
investigatory techniques, and place confidential informants in jeopardy.
From subsection (d) and (f), because access to records and agency
rules for access and amendment of records unfairly impede the DoDDS IRO
criminal investigation activities. Requiring DoDDS IRO to confirm or
deny the existence of a record pertaining to a requesting individual may
in itself provide an answer to the individual relating to an on-going
criminal investigation. The conduct of a successful investigation
leading to the indictment of a criminal offender would be jeopardized by
agency rules requiring verification of record disclosure of the record
to the subject, and record amendment procedures, as normally apply under
the requirements of 5 U.S.C. 533(b)(1), (2), and (3), (c) and (e).
(51 FR 7070, Feb. 28, 1986, as amended at 55 FR 25303, June 21, 1990;
56 FR 25629, June 5, 1991; 56 FR 32966, July 18, 1991. Redesignated
at 56 FR 55631, Oct. 29, 1991, and amended at 56 FR 57801, Nov. 14,
1991; 57 FR 24547, June 10, 1992)
32 CFR 311.8 Information requirements.
The Defense Privacy Office shall establish requirements and deadlines
for DoD privacy reports. These reports shall be licensed in accordance
with DoD Directive 5000.19.
32 CFR 311.8 PART 312 -- OFFICE OF THE INSPECTOR GENERAL (OIG) PRIVACY
PROGRAM
Sec.
312.1 Purpose.
312.2 Definitions.
312.3 Procedure for requesting information.
312.4 Requirements for identification.
312.5 Access by subject individuals.
312.6 Fees.
312.7 Request for correction or amendment.
312.8 OIG review of request for amendment.
312.9 Appeal of initial amendment decision.
312.10 Disclosure of OIG records to other than subject.
312.11 Penalties.
312.12 Exemptions.
312.13 Ownership of OIG investigative records.
312.14 Referral of records.
Authority: Pub. L. 93-579, 88 Stat 1896 (5 U.S.C. 552a).
Source: 56 FR 51976, Oct. 17, 1991, unless otherwise noted.
32 CFR 312.1 Purpose.
Pursuant to the requirements of the Privacy Act of 1974 (5 U.S.C.
552a) and 32 CFR part 286a-DoD Privacy Program, the following rules of
procedures are established with respect to access and amendment of
records maintained by the Office of the Inspector General (OIG) on
individual subjects of these records.
32 CFR 312.2 Definitions.
(a) All terms used in this part which are defined in 5 U.S.C. 552a
shall have the same meaning herein.
(b) As used in this part, the term ''agency'' means the Office of the
Inspector General (OIG), Department of Defense.
32 CFR 312.3 Procedure for requesting information.
Individuals should submit inquiries regarding all OIG files by mail
to the Assistant Inspector General for Investigations, ATTN: FOIA/PA
Division, 400 Army Navy Drive, Arlington, VA 22202-2884. All personal
visits will require some form of common identification.
32 CFR 312.4 Requirements for identification.
Only upon proper identification will any individual be granted access
to records which pertain to him/her. Identification is required both
for accurate record identification and to avoid disclosing records to
unauthorized individuals. Requesters must provide their full name and
as much information as possible in order that a proper search for
records can be accomplished. Requests made by mail should be
accompanied by a notarized signature. Inclusion of a telephone number
for the requester is recommended to expedite certain matters.
Requesters applying in person must provide an identification with
photograph, such as a driver's license, military identification card,
building pass, etc.
32 CFR 312.5 Access by subject individuals.
(a) No individual will be allowed access to any information compiled
or maintained in reasonable anticipation of civil or criminal actions or
proceedings or otherwise exempt under 312.12. Requests for pending
investigations will be denied and the requester instructed to forward
another request giving adequate time for the investigation to be
completed. Requesters shall be provided the telephone number so they
can call and check on the status in order to know when to resubmit the
request.
(b) Any individual may authorize OIG to provide a copy of his/her
records to a third party. This authorization must be in writing and
should be provided OIG with the initial request along with a notarized
signature.
32 CFR 312.6 Fees.
Requesters will be charged only for the reproduction of requested
documents and special postal methods, such as express mail, if
applicable. There will be no charge for the first copy of a record
provided to any individual. Thereafter, fees will be computed as set
forth in appropriate DoD Directives and Regulations.
32 CFR 312.7 Request for correction or amendment.
(a) Requests to correct or amend a file shall be addressed to the
system manager in which the file is located. The request must
reasonably describe the record to be amended, the items to be changed as
specifically as possible, the type of amendment (e.g., deletion,
correction, amendment), and the reason for amendment. Reasons should
address at least one of the following categories: Accuracy, relevance,
timeliness, completeness, fairness. The request should also include
appropriate evidence which provide a basis for evaluating the request.
Normally all documents submitted, to include court orders, should be
certified. Amendments under this part are limited to correcting factual
matters and not matters of official judgment or opinions, such as
performance ratings, promotion potential, and job performance
appraisals.
(b) Requirements of identification as outlined in 312.4 apply to
requests to correct or amend a file.
(c) Incomplete requests shall not be honored, but the requester shall
be contacted for the additional information needed to process the
request.
(d) The amendment process is not intended to permit the alteration of
evidence presented in the course of judicial or quasi-judicial
proceedings. Any amendments or changes to these records normally are
made through the specific procedures established for the amendment of
such records.
(e) Nothing in the amendment process is intended or designed to
permit a collateral attack upon what has already been the subject of a
judicial or quasi-judicial determination. However, while the individual
may not attack the accuracy of the judicial or quasi-judicial
determination, he or she may challenge the accuracy of the recording of
that action.
32 CFR 312.8 OIG review of request for amendment.
(a) A written acknowledgement of the receipt of a request for
amendment of a record will be provided to the requester within 10
working days, unless final action regarding approval or denial will
constitute acknowledgement.
(b) Where there is a determination to grant all or a portion of a
request to amend a record, the record shall be promptly amended and the
requesting individual notified. Individuals, agencies or DoD components
shown by disclosure accounting records to have received copies of the
record, or to whom disclosure has been made, will be notified of the
amendment by the responsible OIG official.
(c) Where there is a determination to deny all or a portion of a
request to amend a record, OIG will promptly advise the requesting
individual of the specifics of the refusal and the reasons; and inform
the individual that he/she may request a review of the denial(s) from
the OIG designated official.
32 CFR 312.9 Appeal of initial amendment decision.
(a) All appeals of an initial amendment decision should be addressed
to the Assistant Inspector General for Investigations, ATTN: FOIA/PA
Division, 400 Army Navy Drive, Arlington, VA 22202-2884. The appeal
should be concise and should specify the reasons the requester believes
that the initial amendment action by the OIG was not satisfactory. Upon
receipt of the appeal, the designated official will review the request
and make a determination to approve or deny the appeal.
(b) If the OIG designated official decides to amend the record, the
requester and all previous recipients of the disputed information will
be notified of the amendment. If the appeal is denied, the designated
official will notify the requester of the reason of the denial, of the
requester's right to file a statement of dispute disagreeing with the
denial, that such statement of dispute will be retained in the file,
that the statement will be provided to all future users of the file, and
that the requester may file suit in a federal district court to contest
the OIG decision not to amend the record.
(c) The OIG designated official will respond to all appeals within 30
working days or will notify the requester of an estimated date of
completion if the 30 day limit cannot be met.
32 CFR 312.10 Disclosure of OIG records to other than subject.
No record containing personally identifiable information within a OIG
system of records shall be disclosed by any means to any person or
agency outside the Department of Defense, except with the written
consent of the individual subject of the record or as provided for in
the Act and DoD 5400.11-R (32 CFR part 286a).
32 CFR 312.11 Penalties.
(a) An individual may bring a civil action against the OIG to correct
or amend the record, or where there is a refusal to comply with an
individual request or failure to maintain any records with accuracy,
relevance, timeliness and completeness, so as to guarantee fairness, or
failure to comply with any other provision of the Privacy Act. The
court may order correction or amendment of records. The court may
enjoin the OIG from withholding the records and order the production of
the record.
(b) Where it is determined that the action was willful or intentional
with respect to 5 U.S.C. 552a(g)(1) (C) or (D), the United States shall
be liable for the actual damages sustained, but in no case less than the
sum of $1,000 and the costs of the action with attorney fees.
(c) Criminal penalties may be imposed against an officer or employee
of the OIG who discloses material, which he/she knows is prohibited from
disclosure, or who willfully maintains a system of records without
compliance with the notice requirements.
(d) Criminal penalties may be imposed against any person who
knowingly and willfully requests or obtains any record concerning
another individual from an agency under false pretenses.
(e) All of these offenses are misdemeanors with a fine not to exceed
$5,000.
32 CFR 312.12 Exemptions.
(a) Exemption for classified records. Any record in a system of
records maintained by the Office of the Inspector General which falls
within the provisions of 5 U.S.C. 552a(k)(1) may be exempt from the
following subsections of 5 U.S.C. 552a: (c)(3), (d), (e)(1), (e)(4)
(G-I) and (f) to the extent that a record system contains any record
properly classified under Executive Order 12356 and that the record is
required to be kept classified in the interest of national defense or
foreign policy. This specific exemption rule, claimed by the Inspector
General under authority of 5 U.S.C. 552a(k)(1), is applicable to all
systems of records maintained, including those individually designated
for an exemption herein as well as those not otherwise specifically
designated for an exemption, which may contain isolated items of
properly classified information
(b) The Inspector General of the Department of Defense claims an
exemption for the following record systems under the provisions of 5
U.S.C. 552a(j) and (k)(1)-(7) from certain indicated subsections of the
Privacy Act of 1974. The exemptions may be invoked and exercised on a
case by case basis by the Deputy Assistant Inspector General for
Investigations or the Director, Investigative Support Directorate and
Freedom of Information Act/Privacy Act Division Chief which serves as
the Systems Program Managers. Exemptions will be exercised only when
necessary for a specific, significant and legitimate reason connected
with the purpose of the records system.
(c) No personal records releasable under the provisions of The
Freedom of Information Act (5 U.S.C. 552) will be withheld from the
subject individual based on these exemptions.
(d) System Identifier: CIG-04
(1) System name: Case Control System.
(2) Exemption: Any portion of this system which falls within the
provisions of 5 U.S.C. 552a(j)(2) may be exempt from the following
subsections of 5 U.S.C. 552a: (c)(3), (c)(4), (d), (e)(1), (e)(2),
(e)(3), (e)(4)(G), (H), (I), (e)(5), (e)(8), (f), and (g).
(3) Authority: 5 U.S.C. 552a(j)(2).
(4) Reasons: From subsection (c)(3) because the release of
accounting of disclosure would inform a subject that he or she is under
investigation. This information would provide considerable advantage to
the subject in providing him or her with knowledge concerning the nature
of the investigation and the coordinated investigative efforts and
techniques employed by the cooperating agencies. This would greatly
impede OIG's criminal law enforcement.
(5) From subsection (c)(4) and (d), because notification would alert
a subject to the fact that an open investigation on that individual is
taking place, and might weaken the on-going investigation, reveal
investigatory techniques, and place confidential informants in jeopardy.
(6) From subsection (e)(1) because the nature of the criminal and/or
civil investigative function creates unique problems in prescribing a
specific parameter in a particular case with respect to what information
is relevant or necessary. Also, due to OIG's close liaison and working
relationships with other Federal, state, local and foreign country law
enforcement agencies, information may be received which may relate to a
case under the investigative jurisdiction of another agency. The
maintenance of this information may be necessary to provide leads for
appropriate law enforcement purposes and to establish patterns of
activity which may relate to the jurisdiction of other cooperating
agencies.
(7) 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.
(8) 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.
(9) From subsection (e)(4) (G) through (I) because this system of
records is exempt from the access provisions of subsection (d).
(10) 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.
(11) 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.
(12) 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.
(13) For comparability with the exemption claimed from subsection
(f), the civil remedies provisions of subsection (g) must be suspended
for this record system. Because of the nature of criminal
investigations, standards of accuracy, relevance, timeliness, and
completeness cannot apply to this record system. Information gathered
in an investigation is often fragmentary and leads relating to an
individual in the context of one investigation may instead pertain to a
second investigation.
(e) System Identification: CIG-06.
(1) System name: Investigative Files.
(2) Exemption: Any portion of this system which falls within the
provisions of 5 U.S.C. 552a(j)(2) may be exempt from the following
subsections of 5 U.S.C. 552a (c)(3), (c)(4), (d), (e)(1), (e)(2),
(e)(3), (e)(4) (G), (H), (I), (e)(5), (e)(8), (f), and (g).
(3) Authority: 5 U.S.C. 552a(j)(2).
(4) Reasons: From subsection (c)(3) because the release of
accounting of disclosure would inform a subject that he or she is under
investigation. This information would provide considerable advantage to
the subject in providing him or her with knowledge concerning the nature
of the investigation and the coordinated investigative efforts and
techniques employed by the cooperating agencies. This would greatly
impede OIG's criminal law enforcement.
(5) From subsection (c)(4) and (d), because notification would alert
a subject to the fact that an open investigation on that individual is
taking place, and might weaken the on-going investigation, reveal
investigatory techniques, and place confidential informants in jeopardy.
(6) From subsection (e)(1) because the nature of the criminal and/or
civil investigative function creates unique problems in prescribing a
specific parameter in a particular case with respect to what information
is relevant or necessary. Also, due to OIG's close liaison and working
relationships with other Federal, state, local and foreign country law
enforcement agencies, information may be received which may relate to a
case under the investigative jurisdiction of another agency. The
maintenance of this information may be necessary to provide leads for
appropriate law enforcement purposes and to establish patterns of
activity which may relate to the jurisdiction of other cooperating
agencies.
(7) 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.
(8) 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.
(9) From subsection (e)(4) (G) through (I) because this system of
records is exempt from the access provisions of subsection (d).
(10) 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.
(11) 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.
(12) 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.
(13) For comparability with the exemption claimed from subsection
(f), the civil remedies provisions of subsection (g) must be suspended
for this record system. Because of the nature of criminal
investigations, standards of accuracy, relevance, timeliness, and
completeness cannot apply to this record system. Information gathered
in an investigation is often fragmentary and leads relating to an
individual in the context of one investigation may instead pertain to a
second investigation.
(f) System Identifier: CIG-15
(1) System name: Special Inquiries Investigative Case File and
Control System.
(2) Exemption: Any portions of this system which fall under the
provisions of 5 U.S.C. 552a(k)(2) may be exempt from the following
subsections of 5 U.S.C. 552a: (c)(3), (d), (e)(1), (e)(4)(G-H), and
(f).
(3) Authority: 5 U.S.C. 552a(k)(2).
(4) Reasons: From subsection (c)(3) because disclosures from this
system could interfere with the just, thorough and timely resolution of
the compliant or inquiry, and possibly enable individuals to conceal
their wrongdoing or mislead the course of the investigation by
concealing, destroying or fabricating evidence or documents.
(5) From subsection (d) because disclosures from this system could
interfere with the just thorough and timely resolution of the compliant
or inquiry, and possibly enable individuals to conceal their wrongdoing
or mislead the course of the investigation by concealing, destroying or
fabricating evidence or documents. Disclosures could also subject
sources and witnesses to harassment or intimidation which jeopardize the
safety and well-being of themselves and their families.
(6) From subsection (e)(1) because the nature of the investigation
function creates unique problems in prescribing specific parameters in a
particular case as to what information is relevant or necessary. Due to
close liaison and working relationships with other Federal, state, local
and foreign country law enforcement agencies, information may be
received which may relate to a case under the investigative jurisdiction
of another government agency. It is necessary to maintain this
information in order to provide leads for appropriate law enforcement
purposes and to establish patterns of activity which may relate to the
jurisdiction of other cooperating agencies.
(7) From subsection (e)(4) (G) through (H) because this system of
records is exempt from the access provisions of subsection (d).
(8) 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.
(g) System Identifier: CIG-16.
(1) System name: DOD Hotline Program Case Files.
(2) Exemption: Any portions of this system of records which fall
under the provisions of 5 U.S.C. 552a(k)(2) and (k)(5) may be exempt
from the following subsections of 5 U.S.C. 552a: (c)(3), (d), (e)(1),
(e)(4)(G), (H), and (f).
(3) Authority: 5 U.S.C. 552a(k)(2) and (k)(5).
(4) Reasons: From subsection (c)(3) because disclosures from this
system could interfere with the just, thorough and timely resolution of
the complaint or inquiry, and possibly enable individuals to conceal
their wrongdoing or mislead the course of the investigation by
concealing, destroying or fabricating evidence or documents.
(5) From subection (d) because disclosures from this system could
interfere with the just, thorough and timely resolution of the complaint
or inquiry, and possibly enable individuals to conceal their wrongdoing
or mislead the course of the investigation by concealing, destroying or
fabricating evidence or documents. Disclosures could also subject
sources and witnesses to harassment or intimidation which jeopardize the
safety and well-being of themselves and their families.
(6) From subsection (e)(1) because the nature of the investigation
functions creates unique problems in prescribing specific paramenters in
a particular case as to what information is relevant or necessary. Due
to close liaison and working relationships with other Federal, state,
local, and foreign country law enforcement agencies, information may be
received which may relate to a case under the investigative jurisdiction
of another government agency. It is necessary to maintain this
information in order to provide leads for appropriate law enforcment
purposes and to establish patterns of activity which may relate to the
jurisdiction of other cooperating agencies.
(7) From subsection (e)(4)(G) through (H) because this system of
records is exempt from the access provisions of subsection (d).
(8) 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.
(56 FR 51976, Oct. 17, 1991, as amended at 57 FR 24547, June 10,
1992)
32 CFR 312.13 Ownership of OIG investigative records.
(a) Criminal and or civil investigative reports shall not be retained
by DoD recipient organizations. Such reports are the property of OIG
and are on loan to the recipient organization for the purpose for which
requested or provided. All copies of such reports shall be destroyed
within 180 days after the completion of the final action by the
requesting organization.
(b) Investigative reports which require longer periods of retention
may be retained only with the specific written approval of OIG.
32 CFR 312.14 Referral of records.
An OIG system of records may contain records other DoD Components or
Federal agencies originated, and who may have claimed exemptions for
them under the Privacy Act of 1974. When any action is initiated on a
portion of any several records from another agency which may be exempt,
consultation with the originating agency or component will be affected.
Documents located within OIG system of records coming under the
cognizance of another agency will be referred to that agency for review
and direct response to the requester.
32 CFR 312.14 PART 313 -- THE CHAIRMAN OF THE JOINT CHIEFS OF STAFF AND
THE JOINT STAFF PRIVACY PROGRAM
Authority: Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 552a).
32 CFR 313.1 Source of regulations.
The Office of the Joint Chiefs of Staff is governed by the Privacy
Act implementation regulations of the Office of the Secretary of
Defense, 32 CFR part 311.
(40 FR 55535, Nov. 28, 1975. Redesignated at 56 FR 55631, Oct. 29,
1991, as amended at 56 FR 57802, Nov. 14, 1991)
32 CFR 313.1 PART 314 -- DEFENSE ADVANCED RESEARCH PROJECTS AGENCY,
PRIVACY ACT OF 1974
Authority: Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 552a).
32 CFR 314.1 Source of regulations.
The Defense Advanced Research Projects Agency is governed by the
Privacy Act implementation regulations of the Office of the Secretary of
Defense, 32 CFR part 311.
(40 FR 55535, Nov. 28, 1975. Redesignated at 56 FR 55631, Oct. 29,
1991, and amended at 56 FR 57802, Nov. 14, 1991)
32 CFR 314.1 PART 315 -- UNIFORMED SERVICES UNIVERSITY OF HEALTH
SCIENCES, PRIVACY ACT OF 1974
Authority: Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 552a).
32 CFR 315.1 Source of regulations.
The Uniformed Services University of the Health Sciences, is governed
by the Privacy Act implementation regulations of the Office of the
Secretary of Defense, 32 CFR part 311.
(40 FR 55535, Nov. 28, 1975. Redesignated at 56 FR 55631, Oct. 29,
1991, and amended at 56 FR 57802, Nov. 14, 1991)
32 CFR 315.1 PART 316 -- PERSONAL PRIVACY AND RIGHTS OF INDIVIDUALS
REGARDING THEIR PERSONAL RECORDS
Sec.
316.1 Purpose.
316.2 Applicability.
316.3 Authority.
316.4 Definitions.
316.5 Policy.
316.6 Procedures and responsibilities.
316.7 Questions.
316.8 Exemptions.
Authority: Pub. L. 93-579, 88 Stat. 1986 (5 U.S.C. 552a).
Source: 40 FR 55535, Nov. 28, 1975, unless otherwise noted.
Redesignated at 57 FR 6074, Feb. 20, 1992.
32 CFR 316.1 Purpose.
This part delineates responsibility and provides guidance for the
implementation of Pub. L. 93-579 (Privacy Act of 1974).
32 CFR 316.2 Applicability.
This part applies to Headquarters, DCA and DCA field activities.
32 CFR 316.3 Authority.
This part is published in accordance with the authority contained in
32 CFR part 310, August 1975.
(40 FR 55535, Nov. 28, 1975. Redesignated and amended at 57 FR 6074,
Feb. 20, 1992)
32 CFR 316.4 Definitions.
Add to the definitions contained in 32 CFR 310.6 the following:
System Manager: The DCA official who is responsible for policies and
procedures governing a DCA System of Record. His title and duty address
will be found in the paragraph entitled Sysmanager in DCA's Record
System Notices which are published in the Federal Register in compliance
with provisions of the Privacy Act of 1974.
(40 FR 55535, Nov. 28, 1975. Redesignated and amended at 57 FR 6074,
Feb. 20, 1992)
32 CFR 316.5 Policy.
It is the policy of DCA: (a) To preserve the personal privacy of
individuals, to permit an individual to know what records exist
pertaining to him in the DCA, and to have access to and have a copy made
of all or any portion of such records and to correct or amend such
records.
(b) To collect, maintain, use, or disseminate any record of
identifiable personal information in a manner that assures that such
action is for a necessary and lawful purpose; that the information is
timely and accurate for its intended use; and that adequate safeguards
are provided to prevent misuse of such information.
32 CFR 316.6 Procedures and responsibilities.
(a) The Counsel, DCA, is hereby designated the Privacy Act Officer
for DCA and is responsible for insuring that an internal DCA Privacy
Program is established and maintained. He will also insure that all
echelons of DCA effectively comply with and implement 32 CFR part 310.
(b) The Civilian Assistant to the Chief of Staff will be responsible
for the annual reporting requirements contained in 32 CFR 310.5.
(c) DCA System Managers and other appropriate DCA officials will:
(1) Insure compliance with the provisions of 32 CFR 310.9.
(2) Comply with the provisions of 32 CFR 286a.11. In this area the
Assistant to the Director for Administration will provide assistance.
(3) Adhere to the following:
(i) Within DCA, the System Manager of any record system will assure
that records pertaining to an individual will be disclosed, upon
request, to the individual to whom the record pertains. The individual
need not state a reason or otherwise justify the need to gain access. A
person of the individual's choosing may accompany the individual when
the record is disclosed. The System Manager may require the individual
to furnish a written statement authorizing discussion of the
individual's records in the presence of the accompanying person. If
requested, the System Manager will have a copy made of all or any
portion of the record pertaining to the individual in a form
comprehensible to the requester.
(ii) The System Manager may release records to the individual's
representative who has the written consent of the individual. The
System Manager will require reasonable identification of individuals to
assure that records are disclosed to the proper person. No verification
of identity will be required of an individual seeking access to records
which are otherwise available to any member of the public under the
Freedom of Information Act. Identification requirements should be
consistent with the nature of the records being disclosed. For
disclosure of records to an individual in person, the System Manager
will require that the individual show some form of identification. For
records disclosed to an individual in person or by mail, the System
Manager may require whatever identifying information is needed to locate
the record; i.e., name, social security number, date of birth. If the
sensitivity of the data warrants, the System Manager may require a
signed notarized statement of identity. The System Manager may compare
the signatures of the requester with those in the records to verify
identity. An individual will not be denied access to his record for
refusing to disclose his social security number unless disclosure is
required by statute or by regulation adopted before 1 January 1975. An
individual will not be denied access to records pertaining to him
because the records are exempted from disclosure under the provisions of
the Freedom of Information Act.
(iii) The System Manager will not deny access to a record or a copy
thereof to an individual solely because its physical presence is not
readily available (i.e. on magnetic tape) or because the context of the
record may disclose sensitive information about another individual. To
protect the personal privacy of other individuals who may be identified
in a record, the System Manager shall prepare an extract to delete only
that information which would not be releasable to the requesting
individual under the Freedom of Information Act.
(iv) When the System Manager is of the opinion that the disclosure of
medical information could have an adverse effect upon the individual to
whom it pertains, the System Manager will promptly request the
individual to submit the name and address of a doctor who will determine
whether the medical record may be disclosed directly to the individual.
The System Manager will then request the opinion of the doctor named by
the individual on whether a medical record may be disclosed to the
individual. The System Manager shall disclose the medical record to the
individual to whom it pertains unless, in the judgment of the doctor,
access to the record could have an adverse effect upon the individual's
physical or mental health. In this event the System Manager will
transmit the record to the doctor and immediately inform the individual.
(v) The fees to be charged, if any, to an individual for making
copies of his record, excluding the cost of any search for and review of
the record, will be in accordance with the ''Schedule of Fees'' as set
forth in 32 CFR 286.5 and 286.10.
(vi) The System Manager of the record will permit an individual to
request amendment of a record pertaining to the individual. Requests to
amend records shall be in person or in writing and shall be submitted to
the System Manager who maintains the records. Such requests should
contain as a minimum, identifying information needed to locate the
record, a brief description of the item or items of information to be
amended, and the reason for the requested change.
(vii) The System Manager will provide a written acknowledgment of the
receipt of a request to amend a record to the individual who requested
the amendment within 10 days (excluding Saturdays, Sundays, and legal
public holidays) after the date of receipt of such request. Such an
acknowledgment may, if necessary, request any additional information
needed to make a determination. No acknowledgment is required if the
request can be reviewed and processed and the individual notified of
compliance or denial within the 10 day period.
(viii) The System Manager will promptly take one of the following
actions on requests to amend records:
(A) Refer the request to the agency or office that has control of and
maintains the record in those instances where the record requested
remains the property of the controlling office or agency.
(B) In accordance with existing statute, regulation, or
administrative procedure, make any correction of any portion thereof
which the individual believes is not accurate, relevant, timely or
complete, or
(C) Inform the individual of the System Manager's refusal to amend
the record in accordance with the individual's request, the reason for
the refusal, and the individual's right to request a review of the
refusal by the Director, DCA, through the DCA Privacy Act Board.
(ix) The DCA Privacy Act Board will be comprised of the DCA Counsel,
as Chairman; the Assistant to the Director for Administration, and the
Assistant to the Director for Personnel; or in their absence, their
authorized representatives. The individual who disagrees with the
refusal of the System Manager to amend his record may request a review
of this refusal by the DCA Privacy Act Board. The request for the
review may be made orally or in writing and shall be made to the System
Manager. The System Manager will promptly forward the request for
review to the Chairman of the Board to make a proper review. The Board
will promptly review the matter. If, after review, the Board is
unanimous in its decision that the record be amended in accordance with
the request of the individual then the Chairman of the Board shall so
notify the System Manager. The System Manager will immediately make the
necessary corrections to the record and will promptly notify the
individual. The System Manager will, if an accounting of disclosure of
the record has been made, advise all previous recipients of the record,
which was corrected, of the correction and its substance. This will be
done in all instances when a record is amended. If, after review, the
Board decides that the request for amendment should be denied, it will
promptly forward its recommendation to the Director, DCA. A majority
vote of the members of the Board will constitute a recommendation to the
Director.
(x) The Director, DCA, upon receipt of the Board's recommendation,
will complete the review and make a final determination.
(xi) If the Director, DCA, after his review, agrees with the
individual's request to amend the record, he will, through the DCA
Counsel, so advise the individual in writing. The System Manager will
receive a copy of the Director's decision and will assure that the
record is corrected accordingly and that if an accounting of disclosure
of the record has been made, advise all previous recipients of the
record which was corrected of the correction and its substance.
(xii) If, after his review, the Director refuses to amend the records
as the individual requested, he will, through the DCA Counsel, advise
the individual of his refusal and the reasons for it; of the
individual's right to file a concise statement setting forth the reasons
for the individual's disagreement with the decision of the Director,
DCA; that the statement which is filed will be made available to anyone
to whom the record is subsequently disclosed together with, at the
discretion of the Agency, a brief statement by the Agency summarizing
its reasons for refusing to amend the record; that prior recipients of
the disputed record will be provided a copy of any statement of dispute
to the extent that an accounting of disclosures was maintained; and of
the individual's right to seek judicial review of the Agency's refusal
to amend a record.
(xiii) The Director's final determination on the individual's request
for a review of the System Manager's initial refusal to amend the record
must be concluded within 30 days (excluding Saturdays, Sundays, and
legal public holidays) from the date on which the individual requested
such review unless the Director determines that a fair and equitable
review cannot be made within that time. If additional time is required,
the individual will be informed in writing of reasons for the delay and
of the approximate date on which the review is expected to be completed.
(xiv) After the Director, DCA has refused to amend a record and the
individual has filed a statement setting forth the reasons for the
individual's disagreement with the decision of the Director, the System
Manager will clearly note any portion of the record which is disputed.
The System Manager's notation should make clear that the record is
disputed and this should be apparent to anyone who may subsequently have
access to, use, or disclose the record. When the System Manager has
previously disclosed or will subsequently disclose that portion of the
record which is disputed he will note that that portion of the record is
disputed and will provide the recipients of the record with a copy of
the individual's statement setting forth the reasons for the
individual's disagreement with the decision of the Director not to amend
the record. The System Manager will also provide recipients of the
disputed record with a brief summary of the Director's reasons for not
making the requested amendments to the record.
(xv) Nothing herein shall allow an individual access to any
information compiled in reasonable anticipation of a civil action or
proceeding.
(xvi) Any requests by an individual for access to or copies of his
records shall be processed in accordance with this part and 32 CFR part
310.
(d) DCA System Managers will be:
(1) Responsible for complying with the provisions contained in 32 CFR
310.8 relating to the disclosure to others of personal records,
obtaining the written consent of individuals to whom the record
pertains, and for keeping an accurate accounting of each disclosure of a
record.
(2) Responsible for providing to the Civilian Assistant to the Chief
of Staff the information requested in 32 CFR 310.5. However, the
information will be reported on a quarterly basis with the first report
due to the Civilian Assistant to the Chief of Staff by 31 December 1975.
(e) The Assistant to the Director for Administration, Headquarters,
DCA will:
(1) Be responsible for furnishing written guidelines to assist System
Managers and other DCA officials in evaluating and implementing
paperwork management procedures required under the Privacy Act of 1974.
In this regard it should be noted that the Act establishes a number of
requirements. Among these are the requirements:
(i) To disclose records contained in a system of records only under
conditions specified in the law, (ii) to maintain an accounting of such
disclosures, (iii) to establish procedures for the disclosure to an
individual of his record or information pertaining to him, (iv) for
reviewing a request concerning the amendment of such record, and (v) for
permitting individuals to file a statement of disagreement which will be
forwarded with subsequent disclosures. The guidelines will cover those
portions of the Privacy Act which requires paperwork systems for
implementation. In preparing those guidelines the Assistant to the
Director for Administration will make use of the ''Records Management
System for Implementing the Privacy Act'' as provided by the GSA
National Archives and Records Service, Office of Records Management.
The GSA procedures and guidelines will be adapted and modified as
required to meet DCA needs.
(2) Be responsible for providing the ''Forms'' which are required to
comply with 32 CFR 310.9(b).
(f) The Assistant to the Director for Personnel, Headquarters, DCA
will:
(1) Be responsible for development, within DCA, of an appropriate
training program for all DCA personnel whose duties involve
responsibilities for systems of records affected by the Privacy Act.
(2) Assure that DCA personnel involved in the design, development,
operation, or maintenance of any system of records, as defined in 32 CFR
310.6 are informed of all requirements to protect the privacy of the
individuals who are subjects of the records. The criminal penalties and
civil suit aspects of the Privacy Act will be emphasized.
(3) Assure that within DCA administrative and physical safeguards are
established to protect information from unauthorized or unintentional
access, disclosure, modification or destruction and to insure that all
persons whose official duties require access to or processing and
maintenance of personal information are trained in the proper
safeguarding and use of such information.
(40 FR 55535, Nov. 28, 1975. Redesignated and amended at 57 FR 6074,
Feb. 20, 1992)
32 CFR 316.7 Questions.
Questions on both the substance and procedure of the Privacy Act and
the DCA implementation thereof should be addressed to the DCA Counsel by
the most expeditious means possible, including telephone calls.
32 CFR 316.8 Exemptions.
Section 5 U.S.C. 552a (3)(j) and (3)(k) authorize an agency head to
exempt certain systems of records or parts of certain systems of records
from some of the requirements of the act. This part reserves to the
Director, DCA, as head of an agency, the right to create exemptions
pursuant to the exemption provisions of the act. All systems of records
maintained by DCA shall be exempt from the requirements of 5 U.S.C. 552a
(d) pursuant to 5 U.S.C. 552a(3)(k)(1) to the extent that the system
contains any information properly classified under Executive Order
11652, ''Classification and Declassification of National Security
Information and Material,'' dated March 8, 1972 (37 FR 10053, May 19,
1972) and which is required by the executive order to be kept secret in
the interest of national defense or foreign policy. This exemption,
which may be applicable to parts of all systems of records, is necessary
because certain record systems not otherwise specifically designated for
exemptions may contain isolated information which has been properly
classified.
(42 FR 20298, Apr. 19, 1977. Redesignated at 57 FR 6074, Feb. 20,
1992)
32 CFR 316.8 PART 317 -- DEFENSE CONTRACT AUDIT AGENCY, PRIVACY ACT OF
1974
Sec.
317.1 Purpose.
317.2 Applicability and scope.
317.3 Policy.
317.4 Authority and responsibilities.
317.5 Definitions.
317.6 Access by the individual.
317.7 Disclosure to others.
317.8 Collection of personal information from individuals.
317.9 Exemptions.
317.10 Systems of records.
317.11 Annual report.
Authority: Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 552a).
Source: 40 FR 55538, Nov. 28, 1975, unless otherwise noted.
Redesignated at 56 FR 55631, Oct. 29, 1991.
32 CFR 317.1 Purpose.
This part implements the Privacy Act of 1974 by prescribing:
(a) The procedures whereby individuals can be notified in response to
their requests if any system of records named by the individuals
contains a record pertaining to them.
(b) The requirements for verifying the identity of individuals who
request their records or information pertaining to them before the
record or information shall be made available to them.
(c) The procedures for granting access to individuals upon their
request of their records or information pertaining to them.
(d) The procedures for reviewing a request from individuals
concerning the amendment of any record or information pertaining to
them, for making a determination on the request, and for an appeal of an
initial adverse determination.
(e) The procedures and policies governing the collection,
safeguarding, maintenance, public notice, use and dissemination of
personal information.
(f) The conditions under which disclosure of personal information may
be made and procedures for exempting systems of records from certain
requirements of the Privacy Act of 1974.
32 CFR 317.2 Applicability and scope.
(a) The provisions of this part apply to all offices of DCAA,
hereinafter referred to singularly as ''element'' or collectively as
''elements.''
(b) Its provisions govern the collection, maintenance, use, and
dissemination of personal information by DCAA in accordance with 5
U.S.C. 552a. Requests for information under the Freedom of Information
Act, 5 U.S.C. 552, by an individual about another individual are
governed by the provisions of 32 CFR part 290. Requests for personal
information from the General Accounting Office are governed by DoD
Directive 7650.1, ''General Accounting Office Comprehensive Audits.''
Requests for personal information from the Congress are governed by DoD
Directive 5400.4, ''Provision of Information to Congress.'' Requests
from other agencies and the courts are governed by DoD Directive 5400.7,
''Availability to the Public of Department of Defense Information,'' as
well as the provisions of this part.
32 CFR 317.3 Policy.
The policy of DCAA is to:
(a) Preserve the personal privacy of individuals, permitting
individuals to know what records pertaining to them are collected,
maintained, used, or disseminated in DCAA, and to have access to and
have a comprehensible copy made of all or any portion of such records,
and to correct or amend such records.
(b) Collect, maintain, use, or disseminate any record of identifiable
personal information in a manner that assures that such action is for a
necessary and lawful purpose; that the information is timely and
accurate for its intended use; and that adequate safeguards are
provided to prevent misuse of such information.
32 CFR 317.4 Authority and responsibilities.
(a) A DCAA Privacy Board is hereby established for the purpose of
ensuring the preservation of individual privacy within DCAA. Privacy
programs and procedures shall be developed and coordinated by the Board
under the Chairmanship of the Assistant Director, Resources.
(1) Membership of the Board shall consist of the Records
Administrator, who shall serve as the Executive Secretary and Privacy
Act Coordinator; and representatives designated by the Assistant
Director, Operations and Professional Development; Counsel; Director
of Personnel; Security Officer; and Chief, Information Systems and
Services.
(2) The Board shall:
(i) Identify all DCAA systems of rec- ords affected by the Privacy
Act.
(ii) Obtain all data required by the act concerning each record
system so identified.
(iii) Review policies, practices, and procedures relating to each
identified system of records to ensure they are in conformity with the
act.
(iv) Supervise the preparation for publication in the Federal
Register of all required information on systems of records affected by
the act.
(v) Review for conformity with the act, all procedures, including
forms, which require an individual to furnish information, and formulate
corrective or supplementary provisions as necessary.
(vi) Recommend establishment of DCAA policies which will provide
safeguards to protect personal privacy.
(vii) Refer to the DoD Privacy Board for resolution, any requirement
for information from an individual which does not appear to be clearly
authorized by law or Executive Order.
(viii) Review proposed DCAA implementing instructions and related
issuances pertaining to the Privacy Act, as well as draft implementing
instructions of the DCAA Regional Offices in order to provide the
comprehensive guidance necessary for uniform compliance with the act by
all elements of DCAA.
(ix) Serve as the focal point on privacy matters for DCAA in
communications with the DoD Privacy Board, which serves as the focal
point in communications with the Office of Management and Budget, the
Privacy Protection Study Commission, and the Office of the Federal
Register for publication of systems notices.
(b) The Assistant Director, Resources, in conjunction with the DCAA
Privacy Board shall:
(1) Formulate DCAA policies to ensure that both manual and ADP record
systems contain appropriate safeguards to protect personal privacy.
(2) Ensure development throughout DCAA of an appropriate training
program for all personnel whose duties involve responsibilities for
systems of records affected by the act.
(c) Regional Managers, the Chief of Detachment A, and the Manager of
the Defense Contract Audit Institute shall:
(1) Designate a Privacy Act Coordinator to serve as the principal
point of contact on privacy matters.
(2) Establish and maintain an effective internal Privacy Program,
through all echelons, as prescribed herein.
32 CFR 317.5 Definitions.
(a) Individual: A citizen of the United States or an alien lawfully
admitted for permanent residence. A legal guardian or the parent of a
minor has the same rights as the individual and may act on behalf of the
individual.
(b) Maintain (records on individuals): Collect, use, or disseminate.
(c) Record: Any item, collection, or grouping of information about
an individual that is maintained by an element, including, but not
limited to, his education, financial transactions, medical history, and
criminal or employment history and that contains his name, or the
identifying number, symbol, or other identifying particular assigned to
the individual, such as a finger or voice print or a photograph.
(d) System of records: A group of any records under the control of
any element from which information is retrieved by the name of an
individual or by some identifying number, symbol or other identifying
particular assigned to the individual.
(e) Routine use: With respect to the disclosure of a record, the use
of such record for a purpose which is compatible with the purpose for
which it was collected. Routine use encompasses not only common or
ordinary uses, but also all the proper and necessary uses of the record,
even if such use occurs infrequently.
32 CFR 317.6 Access by the individual.
(a) Upon request, individuals shall be informed whether or not a
system of records contains a record pertaining to them. Accompanied by
a person of their own choosing, if so desired, they shall be permitted
to review their records, and to obtain a copy of such records in a form
that is comprehensible to them unless exempted in accordance with 317.9
or 317.6(a)(5), below. This part does not require that a record be
created or that an individual be given access to records which are not
retrieved by name or other individual identifier. Only costs of
reproduction may be charged; however, the first copy of a personnel
record maintained by a Personnel Office should be provided without
charge. If copying is the only means whereby the record can be made
available to the individual, reproduction fees will not be assessed;
i.e., when a copy must be made in order to delete information contained
on the record pertaining to another individual.
(1) The granting of access to a record containing personal
information shall not be conditioned upon any requirement that the
individual state a reason or otherwise justify the need to gain access.
(2) Prior to being granted access to personal information, an
individual may be required to provide reasonable verification of
identity.
(i) No verification of identity shall be required of an individual
seeking access to records which are otherwise available to any member of
the public under the Freedom of Information Act.
(ii) For the individual who seeks access in person, verification of
identity will normally be made by those documents which an individual is
likely to have readily available, such as an employee identification
card, driver's license, or medical card.
(iii) When access is requested by mail, verification of identity may
consist of the individual providing certain minimum identifying data,
such as name and date of birth or such other information deemed
necessary by the element having custody of the record. If the
sensitivity of the data warrants, a signed, notarized statement of
identity may be required.
(iv) An individual shall not be denied access to his record for
refusing to disclose his Social Security Number (SSN) unless disclosure
of his SSN is required by statute or by regulation adopted before
January 1, 1975.
(v) Individuals may not be denied access to a record pertaining to
themselves because those records are exempted from disclosure under the
provisions of the Freedom of Information Act.
(3) Access to a record or a copy thereof will not be denied solely
because the record's physical presence is not readily available, i.e.,
on magnetic tape, or because the context of the record may disclose
sensitive information about another individual. To protect the personal
privacy of other individuals who may be identified in a record, an
extract shall be prepared deleting only that information which would not
be released to the requesting individual under the Freedom of
Information Act.
(4) A medical record shall be disclosed to the individual to whom it
pertains unless, in the judgment of a physician, access to such record
could have an adverse effect upon the individual's physical or mental
health. When it has been determined that the disclosure of medical
information could have an adverse effect upon the individual to whom it
pertains, the information may be transmitted to a physician named by the
requesting individual.
(5) This part does not entitle an individual to have access to any
information compiled in reasonable anticipation of a civil action or
proceeding.
(6) An element may require an individual who wishes to be accompanied
by another person when receiving access to his records to furnish a
written statement authorizing discussion of the records in the presence
of the accompanying person.
(7) Any requests from individuals for access to or copies of their
own records shall be processed in accordance with this part and not the
Freedom of Information Act. Normally, requests for access to records
should be acknowledged within 10 working days of receipt and access
provided within 30 working days.
(8) Copies of investigatory records compiled by an investigative
organization, but in the temporary custody of an element requesting the
record for purposes of adjudication or other personnel action, are the
records of the originating investigative agency. Individuals seeking
access to such records shall be directed to the originating
investigative organization and should be instructed to direct all
requests submitted under the Privacy Act of 1974 to that organization.
Records concerning the adjudication, or other personnel actions based on
the investigative records, are originated by DCAA and are the records of
DCAA. All requests for these records shall be referred to the Security
Officer, DCAA who shall respond under this part concerning them.
(b) Amendment of personal information.
(1) Individuals shall be given the opportunity to request either in
person or through the mail that their records be amended; however, all
requests for such amendment must be made in writing. Instructions for
the preparation of a request and any forms employed should be as brief
and as simple as possible. Requests should contain as a minimum,
identifying information to locate the record, a description of the items
to be amended and the reason amendment is being requested. A request
shall not be rejected or required to be resubmitted unless additional
information is essential to process the request. Incomplete or
inaccurate requests shall not be rejected categorically; the individual
shall be asked to clarify the request as needed. Individuals shall be
required to provide identification of identity as in paragraph (a)(2) of
this section to assure that the requester is seeking to amend records
pertaining to him and not inadvertently or intentionally, the records of
another individual.
(2) A written acknowledgment of the receipt of a request for
amendment of a record must be provided to the individual within 10
working days (excluding Saturdays, Sundays, and legal public holidays)
after receipt by the proper office. The acknowledgment shall clearly
identify the request and advise the individual when he may expect to be
advised of action taken on the request. Whenever practicable the
decision shall be made within 30 working days. No separate
acknowledgment of receipt is necessary if the request can be either
approved or denied, and the individual advised within the 10-day period.
For requests presented in person, written acknowledgment may be
provided at the time the request is presented.
(3) If the element agrees with any portion or all of the individual's
request to amend a record, it shall promptly advise the individual and
amend the record accordingly. If a disclosure accounting has been made,
the element shall advise all previous recipients of the record that the
amendment has been made and the substance of the correction.
(4) If the element disagrees with all or any portion of a request to
amend a record, it shall promptly:
(i) Advise the individual of its refusal and the reasons therefor;
(ii) Inform the individual that he may request a further review by
the Assistant Director, Resources; and
(iii) Describe the procedures for requesting such a review, including
the name and address of the Assistant Director, Resources.
(5) A review of the initial refusal to amend a record shall be made
if requested by the individual.
(i) The Assistant Director, Resources, shall make a review of the
initial determination.
(ii) If, after conducting the review, the Assistant Director,
Resources, also refuses to amend the record in accordance with the
individual's request, the individual shall be notified:
(A) Of the refusal and the reasons therefor;
(B) Of the right to file a concise statement of reasons for
disagreeing with the decision of the agency;
(C) Of the procedures for filing a statement of disagreement; and
that such statement will be made available to anyone to whom the record
is subsequently disclosed;
(D) That prior recipients of the disputed record will be provided a
copy of the statement of disagreement to the extent that an accounting
of disclosures is maintained;
(E) Of his right to seek judicial review of the agency's refusal to
amend a record.
(iii) If the Assistant Director, Resources determines that the record
should be amended in accordance with the request, the element shall
amend the record, advise the individual and inform previous recipients
where an accounting of disclosures has been maintained.
(iv) A final determination on the individual's request for a review
of an initial refusal to amend a record must be completed within 30
working days after receipt by the proper office unless the Director,
DCAA determines that a fair and equitable review cannot be completed in
that time. If additional time is required, the individual shall be
informed in writing of the reasons for the delay and of the approximate
date on which the review is expected to be completed.
(6) When an individual files a statement of dispute, the element
shall clearly annotate the record so that the dispute is apparent to
anyone who may subsequently grant access to, use, or disclose the
record. The notation itself shall be integral to the record. Where an
accounting of disclosure has been made, the element shall advise
previous recipients that the record has been disputed and shall provide
a copy of the individual's statement.
(i) The individual's statement of dispute need not be filed as an
integral part of the record to which it pertains. It shall, however, be
maintained in such a manner as to permit ready retrieval whenever the
disputed portion of the record is to be disclosed. When information
which is the subject of a statement of dispute is subsequently
disclosed, the element shall note which information is disputed and
provide a copy of the individual's statement.
(ii) An element may include a brief summary of its reasons for not
making an amendment when disclosing disputed information. Summaries
normally will be limited to the reasons stated to the individual. The
element's summary will be treated as part of the individual's record;
however, it will not be subject to the amendment procedures.
(40 FR 55538, Nov. 28, 1975. Redesignated at 56 FR 55631, Oct. 29,
1991, and amended at 56 FR 57802, Nov. 14, 1991)
32 CFR 317.7 Disclosure to others.
(a) Except as prescribed in 317.6, this part does not require
disclosure of records to anyone other than the individual to whom the
records pertain.
(b) No record contained in a system of records maintained within DCAA
shall be disclosed by any means of communication to any person, or to
any agency outside DCAA, except pursuant to a written request by, or
with the prior written consent of, the individual to whom the record
pertains, unless disclosure of the record will be:
(1) To those officials and employees of DCAA who have a need for the
record in the performance of their duties and the use is compatible with
the purpose for which the record is maintained. This includes, for
example, transfer of information between DoD components when personnel
assigned to DCAA are processed by an activity of another component such
as the Defense Investigative Service, the Defense Supply Agency, or one
of the Military Departments.
(2) Required to be disclosed to a member of the public by the Freedom
of Information Act. Some examples of personal information pertaining to
civilian employees which are normally released without an unwarranted
invasion of privacy are: Name, present and past positions, office phone
number, and grade. However, disclosure of personal information
pertaining to civilian employees shall be made in accordance with the
Federal Personnel Manual and, therefore, all requests for such
information should be referred to the appropriate Personnel Office.
(3) For a routine use as defined in 317.5 and described in DCAA
record system notices.
(4) To the Bureau of the Census for purposes of planning or carrying
out a census or survey or related activity authorized by law.
(5) To a recipient who has provided DCAA with advance adequate
written assurance that: The record will be used solely as a statistical
research or reporting record; the record is to be transferred in a form
that is not individually identifiable, i.e., the identity of the
individual cannot be determined by combining various statistical
records; and will not be used to make any decisions about the rights,
benefits, or entitlements of an individual.
(6) To the National Archives of the United States as a record which
has sufficient historical or other value to warrant its continued
preservation by the United States Government, or for evaluation by the
Administrator of General Services or his designee to determine whether
the record has such value. A record transferred to a Federal records
center for safekeeping or storage does not fall within this category
since Federal records center personnel act on behalf of DCAA in this
instance and the records remain under the control of DCAA. No
disclosure accounting record of the transfer of records to Federal
records centers need be maintained.
(7) To another agency or to an instrumentality of any governmental
jurisdiction within or under the control of the United States for a
civil or criminal law enforcement activity if the activity is authorized
by law, and if the head of the agency or instrumentality has made a
written request to the element which maintains the record specifying the
particular portion desired and the law enforcement activity for which
the record is sought. Blanket requests for all records pertaining to an
individual will not be accepted. A record may also be disclosed to a
law enforcement agency at the initiative of the Counsel, DCAA when
criminal conduct is suspected, provided that such disclosure has been
established in advance as a routine use.
(8) To a person pursuant to a showing of compelling circumstances
affecting the health or safety of an individual if upon such disclosure
notification is transmitted to the last known address of the individual
to whom the record pertains.
(9) To either House of Congress, or, to the extent of matter within
its jurisdiction, any committee or subcommittee thereof, or any joint
committee. This does not authorize the disclosure of any record subject
to this part to members of Congress acting in their individual
capacities or on behalf of their constituents, unless the individual
consents.
(10) To the Comptroller General, or any of his authorized
representatives, in the course of the performance of the duties of the
General Accounting Office.
(11) Pursuant to the order of a court of competent jurisdiction.
(i) When a record is disclosed under compulsory legal process and
when the issuance of that order or subpoena is made public by the court
which issued it, make reasonable efforts to notify the individual to
whom the record pertains. This may be accomplished by notifying the
individual by mail at his most recent address as contained in the
element's records.
(ii) Upon being served with an order to disclose a record, the
element shall endeavor to determine whether the issuance of the order is
a matter of public record and, if it is not, seek to be advised when it
becomes public. An accounting of the disclosure shall be made at the
time the element complies with the order or subpoena.
(c) Each DCAA element, with respect to each system of records under
its control shall:
(1) Except for disclosures made under paragraphs (b)(1) and (b)(2) of
this section, keep an accurate accounting of the date, nature, and
purpose of each disclosure of a record to any person or to another
agency; and the name and address of the person or agency to whom the
disclosure is made. A DCAA element need not make a notation on a single
document of every disclosure of a particular record, provided it can
construct from its system the required accounting information when
required by the individual; when necessary to inform previous
recipients of any amended record; or when providing a cross reference
to the justification or basis upon which the disclosure was made,
including any written documentation as required in the case of the
release of records for statistical or law enforcement purposes.
(2) Retain the accounting made under paragraph (c)(1) of this
section, for at least 5 years after the last disclosure or the life of
the record, whichever is longer. No record of the disclosure of this
accounting need be maintained.
(3) Upon request of the individual to whom the record pertains, make
available to that individual all information in its accounting of
disclosures except that pertaining to disclosures for law enforcement
purposes pursuant to paragraph (b)(7) of this section.
(d)(1) An individual's name and address may not be sold or rented by
an element unless such action is specifically authorized by law. This
provision shall not be construed to require the withholding of names and
addresses otherwise permitted to be made public.
(2) Lists or compilations of names and home addresses, or single home
addresses will not be disclosed, without the consent of the individual
involved, to the public including, but not limited to, individual
congressmen, creditors, and commercial and financial institutions.
Requests for home addresses may be referred to the last known address of
the individual for reply at his discretion and the requester will be
notified accordingly. This prohibition may be waived when circumstances
of a case indicate compelling and overriding interests.
(40 FR 55538, Nov. 28, 1975. Redesignated at 56 FR 55631, Oct. 29,
1991, and amended at 56 FR 57802, Nov. 14, 1991)
32 CFR 317.8 Collection of personal information from individuals.
(a) Personal information shall be collected to the greatest extent
practicable directly from the individual when the information may result
in adverse determinations about an individual's rights, benefits, and
privileges under Federal programs. The collection of information from
third parties shall be minimized. Exceptions to this policy may be made
under certain circumstances, such as the following:
(1) There is a need to insure accuracy of information supplied by an
individual by verifying with a third party, such as in the case of
verifying information for a security clearance.
(2) The nature of the information is such that it can only be
obtained from a third party, such as an employee's performance in a
previous job or assignment.
(3) Obtaining the information from the individual would present
exceptional practical difficulties or would result in unreasonable cost.
(b) Each individual who is asked to supply personal information must
be told of the authority (statute or Executive Order) which authorizes
its solicitation; the principal purpose or purposes for which it is to
be used; the routine uses to be made of it; whether furnishing such
information is mandatory or voluntary; and the effects on him, if any,
of not providing it. This notice to the individual may be made on the
form used to collect the information or on a separate form which can be
retained by the individual. This advice must be given regardless of the
media used in requesting information, whether it is a ''form'' in the
usual sense, i.e., a preprinted document with a control number and an
edition date, or a format, questionnaire, survey sheet, or report
rendered on a blank sheet.
(1) Forms in use before September 27, 1975, which are to be used on
and after that date must meet the notice requirements by use of a
separate statement to accompany each form subject to the provisions of
the Privacy Act of 1974. The statement will be assigned the identifying
number used in collecting the information and the suffix ''Privacy Act
Statement,'' as follows:
(i) For forms in regularly issued, numbered series, the Privacy Act
Statement shall bear the same number as the form to which it pertains.
(ii) For unnumbered formats, questionnaires, survey forms, and
reports, the Privacy Act Statement will bear the report control symbol
or OMB Approval Number under the authority of which the information is
collected if applicable.
(2) As forms are revised or new ones issued, the Privacy Act
Statement shall be incorporated, if practical, in the body of each form,
format, questionnaire, survey sheet, or report initiated or revised on
or after September 27, 1975. Where feasible, the Privacy Act Statement
when incorporated on a form, format, etc. should be positioned in such
a manner that the individual will be informed of the information
required by the act before he begins to furnish any of the information
requested.
(3) (i) The proponent, i.e., the initiator, has the final
responsibility for determining whether a form, format, questionnaire,
survey, or report requires a Privacy Act Statement. Statements should
be sufficiently complete and specific, but, at the same time, be concise
and couched in easily understood language.
(ii) Forms and information management officers at all echelons of
DCAA must assure that Privacy Act Statements are available and that new
forms contain the Statement, if required.
(iii) No element may deny any individual any right, benefit, or
privilege provided by law because of such individual's refusal to
disclose his SSN, unless such disclosure is required by Federal statute
or to any element maintaining a system of records in existence and
operating before January 1, 1975, if such disclosure was required under
statute or regulation adopted prior to such date to verify the identity
of an individual. Executive Order 9397, November 22, 1943, authorizes
elements to use the SSN as a system of numerical identification of
individuals.
(iv) Any DCAA element which requests an individual to disclose the
SSN must inform that individual whether disclosure is mandatory or
voluntary, by what statutory or other authority such number is
solicited, and what uses will be made of it.
(c) If disclosure of the SSN is not required by Federal statute or is
not for a system of records in existence and operating prior to January
1, 1975, DCAA elements are not precluded from requesting it from the
individuals concerned. However, the separate Privacy Act Statement for
the SSN alone, or a merged Privacy Act Statement, covering not only the
SSN but also other items of personal information, must make clear that
the disclosure of the SSN is voluntary. If, in such instances, the
individual refuses to disclose it, the element concerned must be
prepared to identify him by alternate means.
32 CFR 317.9 Exemptions.
(a) The Director, DCAA reserves the right to designate the systems of
records maintained by this agency which are to be exempted from certain
provisions of the Privacy Act of 1974, and shall publish in the Federal
Register information specifying the name of each designated system, the
specific provisions of the act from which each system is to be exempted,
and the reasons for each exemption of the record system.
(b) To qualify for a general exemption, as defined in the Privacy Act
of 1974, the system of records must be maintained by an agency or
component thereof which performs as its principal function any activity
pertaining to the enforcement of criminal laws, including police efforts
to prevent, control, or reduce crime or to apprehend criminals, and the
activities of prosecutors, courts, correctional, probation, pardon, or
parole authorities. Such system of records must consist of:
(1) Information compiled for the purpose of identifying individual
criminal offenders and alleged offenders and containing only identifying
data and notations of arrests, the nature and disposition of criminal
charges, sentencing, confinement, release, and parole and probation
status;
(2) Information compiled for the purpose of a criminal investigation,
including reports of informants and investigators, and associated with
an identifiable individual; or
(3) Reports identifiable to an individual compiled at any state of
the process of enforcement of the criminal laws from arrest or
indictment through release from supervision.
(c) To qualify for a specific exemption, as defined by the Privacy
Act of 1974, the system of records must be:
(1) Specifically authorized under criteria established under an
Executive Order to be kept classified in the interest of national
defense or foreign policy and are in fact properly classified pursuant
to such Executive Order;
(2) Investigatory material compiled for law enforcement purposes,
other than material covered under a general exemption; however, an
individual shall not be denied access to information which has been used
to deny him a right or privilege unless disclosure would reveal a
confidential source. The Security Officer, DCAA, shall establish
procedures governing the granting of confidentiality;
(3) Maintained in connection with providing protective service to the
President of the United States or other individuals protected pursuant
to 18 U.S.C. 3056.
(4) Used only to generate aggregate data or for other similarly
evaluative or analytic purposes and which are not used to make decisions
on the rights, benefits, or entitlements of individuals except for the
disclosure of a census record permitted by 13 U.S.C. 8.
(5) Investigatory material compiled solely for the purpose of
determining suitability, eligibility, or qualifications for Federal
civilian employment, military service, Federal contracts, or access to
classified information, but only to the extent that the disclosure of
such material would reveal the identity of a source who furnished
information to the Government under an express promise that the identity
of the source would be held in confidence, or prior to September 27,
1975, under an implied promise that the identity of the source would be
held in confidence. The Security Officer, DCAA, shall establish
procedures governing the granting of confidentiality;
(6) Testing or examination material used solely to determine
individual qualifications for appointment or promotion in the Federal
service, the disclosure of which would compromise the objectivity or
fairness of the testing or examination process; or
(7) Evaluation material used to determine potential for promotion in
the Armed Services, but only to the extent that the disclosure of such
material would reveal the identity of a source who furnished information
to the Government under an express promise that the identity of the
source would be held in confidence or prior to September 27, 1975, under
an implied promise that the identity of the source would be held in
confidence.
(d) Section 5 U.S.C. 552a (j) and (k) authorize an agency head to
exempt certain systems of records or parts of certain systems of records
from some of the requirements of the act. All systems of records
maintained by the Defense Contract Audit Agency shall be exempt from the
requirements of 5 U.S.C. 552a(d) pursuant to 5 USC 552a(k)(1) to the
extent that the system contains any information properly classified
under Executive Order 11652, ''Classification and Declassification of
National Security Information and Material,'' dated March 8, 1972 (37 FR
10053, May 19, 1972) and which is required by the Executive Order to be
kept secret in the interest of national defense or foreign policy. This
exemption, which may be applicable to parts of all systems of records,
is necessary because certain record systems not otherwise specifically
designated for exemptions may contain isolated information which has
been properly classified.
(40 FR 55538, Nov. 28, 1975, as amended at 42 FR 35157, July 8, 1977)
32 CFR 317.10 Systems of records.
(a) (1) Each DCAA element shall maintain in its records systems only
such personal information as is relevant and necessary to accomplish a
purpose or mission required by statute or Executive Order of the
President.
(2) Each element shall identify the specific provision of law, or
Executive Order, which provides authority for the maintenance of
information in each system of records.
(3) Statutory or regulatory authority to establish and maintain a
system of records does not convey unlimited authority to collect and
maintain all information which may be useful or convenient to have. The
proponent of each system of records will evaluate each category of
information in a system for both necessity and relevance. In performing
this evaluation the following points will be considered:
(i) Relationship of each item of information to the statutory or
regulatory purpose for which the system is maintained.
(ii) Specific adverse consequences of not collecting each category of
information.
(iii) Possibility of meeting the information requirement through use
of information not individually identifiable or through sampling
techniques.
(iv) Length of time that the information is needed and, where
appropriate, techniques for purging parts of the record.
(v) Financial cost of information maintenance compared to risk or
adverse consequence of not maintaining it.
(vi) Necessity and relevance of this information to all individuals
included in the system.
(4) Collection will be discontinued for each category or item of
information which after the above evaluation does not appear to be
reasonably justifiable. Moreover, such information will be withdrawn
and destroyed provided it can be economically segregated from necessary
and relevant information.
(5) The evaluation described above will be performed by each
proponent of a system of records:
(i) During the design phase of a new system of records or a change in
an existing system of records.
(ii) Annually, prior to republication of all system notices in the
Federal Register.
(b) (1) The Privacy Act requires that a notice of the existence of
each system of records, as defined in 317.5, be published in the
Federal Register. Initial system notices will be submitted to the
Office of the Assistant Secretary of Defense (Comptroller) (OASD(C)) by
the Records Administrator.
(2) Notices for new systems must be published in the Federal Register
for public comment at least 30 days before the system may be legally
implemented. The proposed notices shall be submitted to the Records
Administrator at least 90 days before the proposed implementing date.
The Records Administrator shall submit the proposed system notices to
OASD(C) 60 days before the proposed implementing date.
(3) (i) The following proposed changes to an existing system must be
published in the Federal Register for public comment at least 30 days
before the changes are implemented:
(A) Those which expand the categories of individuals on whom records
are maintained.
(B) Those which add new categories or records to the system.
(C) Those which add new categories to the sources.
(D) New or changed routine uses which involve disclosure to a new
category of recipient.
(E) Changes in procedures governing access.
(ii) Notices of proposed changes to existing systems will be
submitted to the Records Administrator 90 days before implementation.
(4) Changes in records systems not stated in paragraph (b)(3)(i) of
this section, do not require advance publication, but must be submitted
for inclusion in the annual consolidated listing of records systems.
Accordingly, each DCAA element shall establish procedures to ensure that
all such changes are forwarded to the Records Administrator by May 1 of
each year for submission to the Office of the Assistant Secretary of
Defense (Comptroller) by May 31 for annual publication in the Federal
Register.
(5) Concurrently with paragraphs (b) (3) and (4) of this section, the
Office of the Assistant Secretary of Defense (Comptroller) shall provide
the Office of Management and Budget and the Privacy Protection Study
Commission advance notice of proposals to establish new systems or to
change routine uses of existing system.
(6) The Records Administrator shall ensure that information contained
in each system notice, as published in the Federal Register, is
incorporated in DCAA Manual 5015.1, Files Maintenance and Disposition.
DCAA elements shall take immediate action to either publish a system
notice, or discontinue any system of records not contained in the Files
Maintenance and Disposition Manual.
(c) (1) Records used by DCAA elements in making determinations about
an individual will be maintained with such accuracy, relevance,
timeliness, and completeness as is reasonably necessary to ensure
fairness to the individual in any determination.
(2) Prior to disseminating any record about an individual to any
person other than a Federal agency, unless the dissemination is made
pursuant to the Freedom of Information Act, reasonable efforts will be
made to ensure that such records are accurate, complete, timely, and
relevant for agency purposes.
(d) Maintenance of a system of records describing how individuals
exercise rights guaranteed by the First Amendment is prohibited unless
expressly authorized by Federal statute or by the individual concerned,
unless pertinent to and within the scope of an authorized law
enforcement activity. The exercise of these rights includes, but is not
limited to, religious and political beliefs, freedom of speech and the
press, and the right of assembly and to petition.
(e) The head of each DCAA element shall assure that persons,
including Government contractors or their employees, involved in the
design, development, operation, maintenance, or control of any system of
records, as defined in 317.5, are informed of all requirements to
protect the privacy of the individuals who are subjects of the records.
The following sanctions should be emphasized to personnel:
(1) There are criminal penalties for knowingly and willfully
disclosing a record about an individual without the written consent or
the written request of that individual, or unless disclosure is for one
of the reasons listed in 317.7.
(2) The agency may be subject to civil suit for failure to comply
with the Privacy Act of 1974.
(f) (1) Each DCAA element shall establish administrative and physical
safeguards to protect each system of records from unauthorized or
unintentional access, disclosure, modification, or destruction. These
safeguards shall apply to systems of records, in whatever medium in
which personal information is processed or stored. Such safeguards
shall be tailored to the requirements of each system of records.
(2) Access to personal information shall be restricted to those
persons whose official duties require access and the individual
concerned and in accordance with 317.7.
(3) Each DCAA element shall ensure that all persons whose official
duties require access to or processing and maintenance of personal
information are trained in the proper safeguarding and use of such
information.
(4) Personal records and documents shall be stored so as to
reasonably preclude unauthorized disclosure.
(5) Disposal of records containing personal information which are no
longer required will be accomplished in such a manner that will prevent
the contents from being disclosed, e.g., tearing the record into pieces
to prevent reconstruction, burning, or in the case of magnetic tapes, by
degaussing.
(40 FR 55538, Nov. 28, 1975. Redesignated at 56 FR 55631, Oct. 29,
1991, and amended at 56 FR 57802, Nov. 14, 1991)
32 CFR 317.11 Annual report.
(a) Each DCAA Region shall prepare an annual report for the preceding
calendar year on its implementation of the Privacy Act.
(b) Seven copies of the report shall be furnished to the Records
Administrator by March 15 of each year for transmittal in six copies to
the OASD(C) by March 31 of each year.
(c) The annual report shall contain the following:
(1) A brief management summary of the status of actions taken to
comply with the act, the results of these efforts, any problems
encountered and recommendations for any changes in legislation,
policies, or procedures.
(2) A summary of major accomplishments; i.e., improvements in
information practices and safeguards.
(3) A summary of major plans for activities in the upcoming year,
e.g., area of emphasis, additional securing of facilities.
(4) A list of systems which are exempted during the year from any of
the operative provisions of this law permitted under the terms of
subsections (j) and (k) of the Privacy Act of 1974, whether or not the
exemption was obtained during the year, the number of records in each
system exempted from each specific provision and reasons for invoking
the exemption.
(5) A brief summary of changes to the total inventory of personal
data systems subject to the provisions of the act, including reasons for
major changes, e.g., the extent to which review of the relevance of and
necessity for records has resulted in elimination of all or portions of
systems of records or any reduction in the number of individuals on whom
records are maintained.
(6) A general description of operational experiences including
estimates of the number of individuals (in relation to the total number
of records in the system) requesting information on the existence of
records pertaining to them, refusing to provide information, requesting
access to their records, appealing initial refusals to amend records,
and seeking redress through the courts.
(7) Any available data, or estimates, of the cost of administering
the Privacy Act of 1974.
32 CFR 317.11 PART 318 -- DEFENSE NUCLEAR AGENCY PRIVACY PROGRAM
Sec.
318.1 Purpose.
318.2 Applicability.
318.3 Designations.
318.4 Responsibilities.
318.5 Exemptions.
Authority: Pub. L. 93-597, 88 Stat. 1896 (5 U.S.C. 552a).
Source: 51 FR 12312, Apr. 10, 1986, unless otherwise noted.
Redesignated at 56 FR 55631, Oct. 29, 1991.
32 CFR 318.1 Purpose.
This rule implements the provisions of the Privacy Act of 1974, as
amended, and adopts the policies and procedures as set forth by the
Department of Defense Privacy Program, 32 CFR part 310.
(51 FR 12312, Apr. 10, 1986. Redesignated at 56 FR 55631, Oct. 29,
1991, and amended at 56 FR 57802, Nov. 14, 1991)
32 CFR 318.2 Applicability.
The provisions of this rule apply to Headquarters, Defense Nuclear
Agency (HQDNA), Field Command, Defense Nuclear Agency (FCDNA), and the
Armed Forces Radiobiology Research Institute (AFRRI).
32 CFR 318.3 Designations.
The General Counsel, HQDNA, is designated as the agency Privacy Act
Officer. The Privacy Act Officer is the principal point of contact for
privacy matters and is the agency Initial Denial Authority. The
Director, DNA, is the agency Appellate Authority.
32 CFR 318.4 Responsibilities.
(a) The Director, DNA is responsible for implementing the agency
Privacy Program in accordance with the specific requirements of 32 CFR
part 310.
(b) The Privacy Act Officer is responsible for monitoring and
ensuring agency compliance with the DoD Privacy Program in accordance
with 32 CFR part 310.
(c) Agency component and element responsibilities are set forth in
DNA Instruction 5400.11A, /1/ 3 March 1986.
(51 FR 12312, Apr. 10, 1986, as amended at 51 FR 15479, Apr. 24,
1986. Redesignated at 56 FR 55631, Oct. 29, 1991, and amended at 56 FR
57802, Nov. 14, 1991)
/1/ Copies may be obtained, if needed, from: HQ, Defense Nuclear
Agency, Office of General Counsel, Washington, DC 20305-1000.
32 CFR 318.5 Exemptions.
(a) HDNA 007 Security Operations;
(1) Specific exemption. Portions of this system of records are
exempt from the provisions of 5 U.S.C. 552a (c)(3); (d); (e)(4) (G),
(H), (I); and (f).
(2) Authority. 5 U.S.C. 552a(k)(5).
(3) Reason. To protect the identity of a source who furnished
information to the Government under an express promise that the identity
of the source would be held in confidence, or, prior to 27 September
1975, under an implied promise that identity of the source would be held
in confidence.
(b) In accordance with 32 CFR 310.50(c), the blanket exemption for
classified material is applicable to any agency system of records.
(51 FR 12312, Apr. 10, 1986. Redesignated at 56 FR 55631, Oct. 29,
1991, and amended at 56 FR 57802, Nov. 14, 1991)
32 CFR 318.5 PART 319 -- DEFENSE INTELLIGENCE AGENCY PRIVACY PROGRAM
Sec.
319.1 Authority.
319.2 Purpose.
319.3 Scope.
319.4 Definitions.
319.5 Procedures for requests pertaining to individual records in a
record system.
319.6 Disclosure of requested information to individuals.
319.7 Special procedures: Medical records.
319.8 Request for correction of amendment to record.
319.9 Agency review of request for correction or amendment of record.
319.10 Appeal of initial adverse Agency determination for access,
correction or amendment.
319.11 Fees.
319.12 General exemptions. (Reserved)
319.13 Specific exemptions.
Authority: Pub. L. 93-579, 88 Stat 1896 (5 U.S.C. 552a).
Source: 51 FR 44064, Dec. 8, 1986, unless otherwise noted.
Redesignated at 56 FR 56595, Nov. 6, 1991 and 56 FR 57799, Nov. 14,
1991.
32 CFR 319.1 Authority.
Pursuant to the requirements of section 553 of Title 5 of the United
States Code, the Defense Intelligence Agency promulgates its rules for
the implementation of the Privacy Act of 1974, Pub. L. 93-579, 5
U.S.C. 552a (f) and (k).
32 CFR 319.2 Purpose.
(a) To promulgate rules providing procedures by which individuals may
exercise their rights granted by the act to:
(1) Determine whether a Defense Intelligence Agency system of records
contains a record pertaining to themselves;
(2) Be granted access to all or portions thereof;
(3) Request administrative correction or amendment of such records;
(4) Request an accounting of disclosures from such records; and
(5) Appeal any adverse determination for access or
correction/amendment of records.
(b) To set forth Agency policy and fee schedule for cost of
duplication.
(c) To identify records subject to the provisions of these rules.
(d) To specify those systems of records for which the Director,
Defense Intelligence Agency, claims an exemption.
32 CFR 319.3 Scope.
(a) Any individual who is a citizen of the United States or an alien
lawfully admitted for permanent residence in the United States may
submit an inquiry to the Defense Intelligence Agency.
(b) These rules apply to those systems of records: (1) Maintained by
the Defense Intelligence Agency; (2) for which the Defense Intelligence
Agency prescribes the content and disposition pursuant to statute or
executive order of the President, which may be in the physical custody
of another Federal agency; (3) not exempted from certain provisions of
the act by the Director, Defense Intelligence Agency.
(c) The Defense Intelligence Agency may have physical custody of the
official records of another Federal agency which exercises dominion and
control over the records, their content, and access thereto. In such
cases, the Defense Intelligence Agency maintenance of the records is
considered subject to the rules of the other Federal agency. Except for
a request for a determination of the existence of the record, when the
Defense Intelligence Agency receives requests related to these records,
the DIA will immediately refer the request to the controlling agency for
all decisions regarding the request and will notify the individual
making the request of the referral.
(d) Records subject to provisions of the Act which are transferred to
the Washington National Records Center for storage shall be considered
to be maintained by the Defense Intelligence Agency. Disclosure from
such records -- to other than an element of the Defense Intelligence
Agency -- can only be made with the prior approval of the Defense
Intelligence Agency.
(e) Records subject to provisions of the act which are transferred to
the National Archives shall be considered to be maintained by the
National Archives and are no longer records of the Agency.
32 CFR 319.4 Definitions.
(a) All terms used in this part which are defined in 5 U.S.C. 552a
shall have the same meaning herein.
(b) As used in this part:
(1) The term Act means the Privacy Act of 1974, Pub. L. 93-579, 5
U.S.C. 552a.
(2) The term Agency means the Defense Intelligence Agency.
32 CFR 319.5 Procedures for requests pertaining to individual records
in a record system.
(a) An individual seeking notification of whether a system of
records, maintained by the Defense Intelligence Agency, contains a
record pertaining to himself/herself and who desires to review, have
copies made of such records, or to be provided an accounting of
disclosures from such records, shall submit his or her request in
writing. Requesters are encouraged to review the systems of records
notices published by the Agency so as to specifically identify the
particular record system(s) of interest to be accessed.
(b) In addition to meeting the requirements set forth in 319.5 of
this part, the individual seeking notification, review or copies, and an
accounting of disclosures will provide in writing his or her full name,
address, social security account number or date of birth and a telephone
number where the requester can be contacted should questions arise
concerning his or her request. This information will be used only for
the purpose of identifying relevant records in response to an
individual's inquiry. It is further recommended that individuals
indicate any present or past relationship or affiliations, if any, with
the Agency and the appropriate dates in order to facilitate a more
thorough search of the record system specified and any other system
which may contain information concerning the individual. A signed
notarized statement may also be required.
(c) An individual who wishes to be accompanied by another individual
when reviewing his or her records, must provide the Agency with written
consent authorizing the Agency to disclose or discuss such records in
the presence of the accompanying individual.
(d) A request for medical records must be submitted as set forth in
319.7, of this part.
(e) Individuals should mail their written request to the Defense
Intelligence Agency, DSP-1A, Washington, DC 20340-3299 and indicate
clearly on the outer envelope ''Privacy Act Request''.
(f) An individual who makes a request on behalf of a minor or legal
incompetent shall provide a signed notarized statement affirming the
relationship.
(g) When an individual wishes to authorize another person access to
his or her records, the individual shall provide a signed notarized
statement authorizing and consenting to access by the designated person.
(h) Except as provided by section 552a(b) of the act, 5 U.S.C.
552a(b), the written request or prior written consent of the individual
to whom a record pertains shall be required before such record is
disclosed to any person or to another agency outside the Department of
Defense.
(i) Any person who knowingly and willfully requests or obtains any
record concerning an individual from this Agency under false pretenses
shall be guilty of a misdemeanor and fined not more than $5,000.
(51 FR 44064, Dec. 8, 1986. Redesignated at 56 FR 56595, Nov. 6, 1991
and 56 FR 57799, Nov. 14, 1991, and amended at 56 FR 56595, Nov. 6,
1991)
32 CFR 319.6 Disclosure of requested information to individuals.
The Defense Intelligence Agency, upon receiving a request for
notification of the existence of a record or for access to a record,
shall:
(a) Determine whether such record exists;
(b) Determine whether access is available under the Privacy Act;
(c) Notify the requester of those determinations within 10 days
(excluding Saturday, Sunday and legal public holidays); and
(d) Provide access to information pertaining to that person which has
been determined to be available.
32 CFR 319.7 Special procedures: Medical records.
Medical records, requested pursuant to 319.5 of this part, will be
disclosed to the requester unless the disclosure of such records
directly to the requester could, in the judgment of a physician, have an
adverse effect on the physical or mental health or safety and welfare of
the requester or other persons with whom he may have contact. In such
an instance, the information will be transmitted to a physician named by
the requester or to a person qualified to make a psychiatric or medical
determination.
(51 FR 44064, Dec. 8, 1986. Redesignated at 56 FR 56595, Nov. 6, 1991
and 56 FR 57799, Nov. 14, 1991, and amended at 56 FR 56595, Nov. 6,
1991)
32 CFR 319.8 Request for correction or amendment to record.
(a) An individual may request that the Defense Intelligence Agency
correct, amend, or expunge any record, or portions thereof, pertaining
to the requester that he believes to be inaccurate, irrelevant,
untimely, or incomplete.
(b) Such requests shall be in writing and may be mailed to DSP-1A as
indicated in 319.5.
(c) The requester shall provide sufficient information to identify
the record and furnish material to substantiate the reasons for
requesting corrections, amendments or expurgation.
(51 FR 44064, Dec. 8, 1986. Redesignated at 56 FR 56595, Nov. 6, 1992
and 56 FR 57799, Nov. 14, 1991, and amended at 56 FR 56595, Nov. 6,
1991)
32 CFR 319.9 Agency review of request for correction or amendment of
record.
(a) The Agency will acknowledge a request for correction or amendment
of a record within 10 days (excluding Saturday, Sunday, and legal public
holidays) of receipt. The acknowledgment will be in writing and will
indicate the date by which the Agency expects to make its initial
determination.
(b) The Agency shall complete its consideration of requests to
correct or amend records within 30 days (excluding Saturday, Sunday, and
legal holidays) and inform the requester of its initial determination.
(c) If it is determined that records should be corrected or amended
in whole or in part, the Agency shall advise the requester in writing of
its determination; and correct or amend the records accordingly. The
Agency shall then advise prior recipients of the records of the fact
that a correction or amendment was made and provide the substance of the
change.
(d) If the Agency determines that a record should not be corrected or
amended, in whole or in part, as requested by the individual, the Agency
shall advise the requester in writing of its refusal to correct or amend
the records and the reasons therefor. The notification will inform the
requester that the refusal may be appealed administratively and will
advise the individual of the procedures for such appeals.
32 CFR 319.10 Appeal of initial adverse Agency determination for
access, correction or amendment.
(a) An individual who disagrees with the denial or partial denial of
his or her request for access, correction, or amendment of Agency
records pertaining to himself/herself, may file a request for
administrative review of such refusal within 30 days after the date of
notification of the denial or partial denial.
(b) Such requests should be in writing and may be mailed to RTS-1 as
indicated in 319.5.
(c) The requester shall provide a brief written statement setting
forth the reasons for his or her disagreement with the initial
determination and provide such additional supporting material as the
individual feels necessary to justify his or her appeal.
(d) Within 30 days (excluding Saturday, Sunday, and legal public
holidays) of the receipt of request for review, the Agency shall advise
the individual of the final disposition of his or her request.
(e) In those cases where the initial determination is reversed, the
individual will be so informed and the Agency will take appropriate
action.
(f) In those cases where the initial determinations are sustained,
the individual shall be advised:
(1) In the case of a request for access to a record, of the
individual's right to seek judicial review of the Agency refusal for
access.
(2) In the case of a request to correct or amend the record: (i) Of
the individual's right to file with record in question a concise
statement of his or her reasons for disagreeing with the Agency's
decision, (ii) of the procedures for filing a statement of disagreement,
and (iii) of the individual's right to seek judicial review of the
Agency's refusal to correct or amend a record.
(51 FR 44064, Dec. 8, 1986. Redesignated at 56 FR 56595, Nov. 6, 1991
and 56 FR 57799, Nov. 14, 1991, and amended at 56 FR 56595, Nov. 6,
1991)
32 CFR 319.11 Fees.
(a) The schedule of fees chargeable is contained at section 286.60 et
seq. As a component of the Department of Defense, the applicable
published Departmental rules and schedules with respect to fees will
also be the policy of DIA.
(b) Current employees of the Agency will not be charged for the first
copy of a record provided by the Agency.
(c) In the absence of an agreement to pay required anticipated costs,
the time for responding to a request begins on resolution of this
agreement to pay.
(d) The fees may be paid by check, draft or postal money order
payable to the Treasurer of the United States. Remittance will be
forwarded to the office designated in 319.5(e).
(51 FR 44064, Dec. 8, 1986. Redesignated at 56 FR 56595, Nov. 6, 1991
and 56 FR 57799, Nov. 14, 1991, and amended at 56 FR 56595, Nov. 6,
1991)
32 CFR 319.12 General exemptions (Reserved)
32 CFR 319.13 Specific exemptions.
(a) All systems of records maintained by the Director Intelligence
Agency shall be exempt from the requirements of 5 U.S.C. 552a(d)
pursuant to 5 U.S.C. 552a(k)(1) to the extent that the system contains
any information properly classified under Executive order to be kept
secret in the interest of national defense or foreign policy. This
exemption, which may be applicable to parts of all systems of records,
is necessary because certain record systems not specifically designated
for exemption may contain isolated information which has been properly
classified.
(b) The Director, Defense Intelligence Agency, designated the systems
of records listed below for exemptions under the specified provisions of
the Privacy Act of 1974, as amended (Pub. L. 93-579):
(c) System identification and name: LDIA 0271, Investigations and
Complaints.
(1) Exemption: Any portion of this record system which falls within
the provisions of 5 U.S.C. 552a(k) (2) and (5) may be exempt from the
following subsections of 5 U.S.C. 552a: (c)(3), (d), (e)(1), (e)(4)(G),
(e)(4)(H), and (e)(4)(I).
(2) Authority: 5 U.S.C. 552a(k) (2) and (5).
(3) Reasons: The reasons for asserting these exemptions are to
ensure the integrity of the Inspector General process within the Agency.
The execution requires that information be provided in a free and open
manner without fear of retribution or harassment in order to facilitate
a just, thorough and timely resolution of the complaint or inquiry.
Disclosures from this system can enable individuals to conceal their
wrongdoing or mislead the course of the investigation by concealing,
destroying or fabricating evidence or documents. Also, disclosures can
subject sources and witnesses to harassment or intimidation which may
cause individuals not to seek redress for wrongs through Inspector
General channels for fear of retribution or harassment.
(d) System identification and name: LDIA 0275, DoD Hotline
Referrals.
(1) Exemption: Any portion of this record system which falls within
the provisions of 5 U.S.C. 552a(k) (2) and (5) may be exempt from the
following subsections of 5 U.S.C. 552a: (c)(3), (d), (e)(1), (e)(4)(G),
(e)(4)(H), and (e)(4)(I).
(2) Authority: 5 U.S.C. 552a(k) (2) and (5).
(3) Reason: The reasons for asserting these exemptions are to ensure
that informants can report instances of fraud and mismanagement without
fear of reprisal or unauthorized disclosure of their identity. The
execution of this function requires that information be provided in a
free and open manner without fear of retribution of harassment in order
to facilitate a just, thorough and timely resolution of the case. These
records are privileged Director, DIA, documents and information
contained therein is not routinely released or disclosed to anyone.
(e) System identification and name: LDIA 0660, Security Files.
(1) Exemption: Any portion of this record system which falls within
the provisions of 5 U.S.C. 552a(k) (2) and (5) may be exempt from the
following subsections of 5 U.S.C. 552a: (c)(3), (d), (e)(1), (e)(4)(G),
(e)(4)(H), and (e)(4)(I).
(2) Authority: 5 U.S.C. 552a(k) (2) and (5).
(3) Reason: The reasons for asserting these exemptions are to ensure
the integrity of the adjudication process used by the Agency to
determine the suitability, eligibility or qualification for Federal
service with the Agency and to make determinations concerning the
questions of access to classified materials and activities. The proper
execution of this function requires that the Agency have the ability to
obtain candid and necessary information in order to fully develop or
resolve pertinent information developed in the process. Potential
sources, out of fear or retaliation, exposure or other action, may be
unwilling to provide needed information or may not be sufficiently frank
to be a value in personnel screening, thereby seriously interfering with
the proper conduct and adjudication of such matters.
(f) System identification and name: LDIA 0800, Operation Record
System.
(1) Exemption: Any portion of this record system which falls within
the provisions of 5 U.S.C. 552a(k) (2) and (5) may be exempt from the
following subsections of 5 U.S.C. 552a: (c)(3), (d), (e)(1), (e)(4)(G),
(e)(4)(H), and (e)(4)(I).
(2) Authority: 5 U.S.C. 552a(k) (2) and (5).
(3) Reason: The reasons for asserting these exemptions are to ensure
the integrity of ongoing foreign intelligence collection and/or training
activities conducted by the Defense Intelligence Agency and the
Department of Defense. The execution of these functions requires that
information in response to national level intelligence requirements be
provided in a free and open manner without fear of retribution or
unauthorized disclosure. Disclosures from this system can jeopardize
sensitive sources and methodology.
(56 FR 56595, Nov. 6, 1991)
32 CFR 319.13 PART 320 -- PERSONAL PRIVACY AND RIGHTS OF INDIVIDUALS
REGARDING THEIR PERSONAL RECORDS, DEFENSE MAPPING AGENCY
Sec.
320.1 Purpose and scope.
320.2 Definitions.
320.3 Procedures for requests for information pertaining to
individual records in a record system.
320.4 Disclosure of requested information to individuals.
320.5 Request for correction or amendment to record.
320.6 Agency review of request for correction or amendment of record.
320.7 Appeal of initial adverse agency determination on correction or
amendment.
320.8 Disclosure of record to person other than the individual to
whom it pertains.
320.9 Fees.
320.10 Penalties.
320.11 Specific exemptions.
Authority: Pub. L. 93-579, 88 Stat. 1986 (5 U.S.C. 552a).
Source: 40 FR 55543, Nov. 28, 1975, unless otherwise noted.
Redesignated at 57 FR 6074, Feb. 20, 1992.
32 CFR 320.1 Purpose and scope.
(a) This regulation is published pursuant to the Privacy Act of 1974,
Pub. L. 93-579, 88 Stat. 1896, 5 U.S.C. 552a (hereinafter the
''Privacy Act''). This regulation:
(1) Establishes or advises of procedures whereby an individual can:
(i) Request notification of whether the Defense Mapping Agency (DMA)
maintains or has disclosed a record pertaining to him in any nonexempt
system of records,
(ii) Request a copy or other access to such a record or to an
accounting of its disclosure,
(iii) Request that the record be amended and
(iv) Appeal any initial adverse determination of any such request;
(2) Specifies those systems of rec- ords which the Director,
Headquarters DMA has determined to be exempt from the procedures
established by this regulation and from certain provisions of the
Privacy Act. DMA policy encompasses the safeguarding of individual
privacy from any misuse of DMA records and the provision of the fullest
access practicable to individuals to DMA records concerning them.
32 CFR 320.2 Definitions.
As used in this part:
Individual means a natural person who is a citizen of the United
States or an alien lawfully admitted for permanent residence. A legal
guardian or the parent of a minor have the same rights as the individual
and may act on behalf of the individual.
Maintain means to collect, use or disseminate records on individuals.
Record means any item, collection or grouping of information about an
individual that is maintained by the DMA or a Component thereof,
including, but not limited to, his education, financial transactions,
medical history and criminal or employment history and that contains his
name or the identifying number, symbol or other identifying particulars
assigned to the individual such as a finger or voice print or a
photograph.
System of records means a group of any records under the control of
the DMA or a Component thereof from which information is retrieved by
the name of an individual or by some identifying number or symbol or
other identifying particular assigned to the individual.
Routine use means (with respect to the disclosure of a record), the
use of such record for a purpose which is compatible with the purpose
for which it was collected. Routine use encompasses not only common or
ordinary uses but also all the proper and necessary uses of the record
even if such use occurs infrequently.
32 CFR 320.3 Procedures for requests for information pertaining to
individual records in a record system.
(a) Upon request in person or by mail any individual, as defined in
320.2, shall be informed whether or not any DMA system of records
contains a record pertaining to him.
(b) Any individual requesting such information in person may present
himself at HQ DMA or at the principal office of the DMA Component
(please refer to the DMA address list at paragraph (e) of this section)
thought to maintain the record in question and shall provide:
(1) Information sufficient to identify the record, e.g., the
individual's own name, date of birth, place of birth, and, if possible,
an indication of the type of record believed to contain information
concerning the individual, and
(2) Acceptable identification to verify the individual's identity,
e.g., driver's license, employee identification card or medicare card.
(c) Any individual requesting such information by mail shall address
his request to the Director, Defense Mapping Agency, or to the Director
of the DMA Component (refer to 320.3(e) for address list) thought to
maintain the record in question and shall include in such request the
following:
(1) Information sufficient to identify the record, e.g., the
individual's own name, date of birth, place of birth, and, if possible,
an indication of the type of record believed to contain information
concerning the individual, and
(2) A signed, notarized statement to verify his identity, if, in the
opinion of the DMA custodian of the record, the sensitivity of the
material involved warrants.
(d) DMA Procedures on Requests for Information. Upon receipt of a
request for information made in accordance with these regulations,
notice of the existence or nonexistence of any records described in such
requests will be furnished to the requesting party within ten working
days of receipt.
(e) DMA Headquarters and Component address list:
(1) Director, Defense Mapping Agency, Building 56, U.S. Naval
Observatory, Washington, DC 20305.
(2) Director, DMA Aerospace Center, St. Louis Air Force Station,
Missouri 63118.
(3) Director, DMA Hydrographic Center, Washington, DC 20390.
(4) Director, DMA Topographic Center, 6500 Brooks Lane, NW,
Washington, DC 20315.
(5) Director, Defense Mapping School, Fort Belvoir, Virginia 22060.
(6) Director, Inter American Geodetic Survey, APO New York 09827.
(40 FR 55543, Nov. 28, 1975. Redesignated and amended at 57 FR 6074,
Feb. 20, 1992)
32 CFR 320.4 Disclosure of requested information to individuals.
(a) Upon request by an individual made in accordance with the
procedures set forth in this section, such individual shall be granted
access to any record pertaining to him which is contained in a nonexempt
DMA system of records. However, nothing in this section shall allow an
individual access to any information compiled by DMA in reasonable
anticipation of a civil or criminal action or proceeding.
(b) Procedures for requests for access to records. Any individual
may request access to a DMA record pertaining to him in person or by
mail.
(1) Any individual making such request in person shall present
himself at Headquarters Defense Mapping Agency, or at the principal
office of the DMA Component (refer to 320.3(e) for address list)
thought to maintain such record and shall provide identification to
verify the individuals' identity, e.g., driver's license, employee
identification card, or medicare card.
(2) Any individual making a request for access to records by mail
shall address such request to the Director, Defense Mapping Agency, or
the Director of the DMA Component (refer to 320.3(e) for address list)
thought to maintain the record in question, and shall include therein a
signed, notarized statement to verify his identity.
(3) Any individual requesting access to records under this section in
person may be accompanied by a person of his own choosing while
reviewing the record requested. If an individual elects to be so
accompanied he shall give notice of such election in his request and
shall provide a written statement authorizing disclosure of the record
in the presence of the accompanying person. Failure to so notify DMA in
a request for access shall be deemed to be a decision by the individual
not to be accompanied.
(c) DMA determination of requests for access. (1) Upon receipt of a
request made in accordance with this section, the Staff Director of the
Headquarters or Component Staff Element having responsibility for
maintenance of the record in question, or his delegate shall:
(i) Determine whether or not such request shall be granted.
(ii) Make such determination and provide notification within 30
working days after receipt of such request.
(iii) Notify the individual that fees for reproducing copies of
records will be assessed and should be remitted before the copies may be
delivered. Fee schedule and rules for assessing fees are contained in
320.9.
(iv) Requests for access to personal records may be denied only after
consultation with Council of a DMA Component, when available, or the
Counsel, Headquarters DMA, in all other cases, to determine that such
denial is authorized by the Act.
(2) If access to a record is denied because such information has been
compiled by DMA in reasonable anticipation of a civil or criminal action
or proceeding, the individual will be notified of such determination and
his right to judicial appeal under 5 U.S.C. 552a(g).
(d) Manner of providing access. (1) If access is granted, the
individual making the request shall notify the DMA whether the records
requested are to be copied and mailed to him.
(2) If the records are to be made available for personal inspection
the individual shall arrange for a mutually agreeable time and place for
inspection of the record. The DMA reserves the right to require the
presence of a DMA officer or employee during personal inspection of any
record pursuant to this section and to request of the individual that he
provide a signed acknowledgment of the fact that access to the record in
question was granted him by the DMA.
(40 FR 55543, Nov. 28, 1975. Redesignated and amended at 57 FR 6074,
Feb. 20, 1992)
32 CFR 320.5 Request for correction or amendment to record.
(a) Any individual may request amendment of a record pertaining to
him in accordance with the following procedure.
(b) After inspection of a record pertaining to him an individual may
file a request in writing with the Staff Director of the DMA
Headquarters or Component Staff Element having responsibility for
maintenance of the record in question for amendment of a record. Such
requests shall specify the particular portions of the record to be
amended, the desired amendments and the reasons, supported by
documentary proof, if available, therefor.
32 CFR 320.6 Agency review of request for correction or amendment of
record.
(a) Not later than 10 working days after receipt of a request to
amend a record, in whole or in part, the Staff Director of the DMA
Headquarters or Component Staff Element having responsibility for
maintenance of the record in question shall make any correction of any
portion of the record which the individual believes is not accurate,
relevant, timely or complete and thereafter inform the individual of
such correction; or inform the individual by certified mail, return
receipt requested, of refusal to amend the record setting forth the
reasons therefor and notifying the individual of his right to appeal the
decision to the Director, Defense Mapping Agency in accordance with
320.7.
(b) Requests for amendment of a record may be refused only after
consultation with Counsel at a DMA Component, when available, or the
Counsel, HQ DMA, in all other cases, to determine that such refusal is
authorized by the Act.
(c) Any person or other agency to whom the record has been previously
disclosed shall be informed of any correction or notation of dispute
with respect to such records.
(d) These provisions for amending records are not intended to permit
the alteration of evidence previously presented during any
administrative or quasi-judicial proceeding, such as an employee
grievance case. Any changes in such records should be made only through
the established procedures for such cases. Further, these provisions
are not designed to permit collateral attack upon what has already been
the subject of an administrative or quasi-judicial action. For example,
an individual may not use this procedure to challenge the final decision
on a grievance, but the individual would be able to challenge the fact
that such action has been incorrectly recorded in his file.
(40 FR 55543, Nov. 28, 1975. Redesignated and amended at 57 FR 6074,
Feb. 20, 1992)
32 CFR 320.7 Appeal of initial adverse agency determination on
correction or amendment.
(a) An individual whose request for amendment of a record pertaining
to him may further request a review of such determination in accordance
with this section.
(b) Not later than 30 working days following receipt of notification
of refusal to amend, an individual may file an appeal of such decision
with the Director, Defense Mapping Agency. The appeal shall be in
writing, mailed or delivered to Headquarters, Defense Mapping Agency,
Building 56, U.S. Naval Observatory, Washington, DC 20305. The appeal
shall identify the records involved, shall indicate the dates of the
request and adverse determination and shall indicate the express basis
for that determination. In addition, the letter of appeal shall state
briefly and succinctly the reasons why the adverse determination should
be reversed.
(c) Upon appeal from a denial to amend a record the Director, Defense
Mapping Agency shall make a determination whether or not to amend the
record and shall notify the individual of that determination by
certified mail, return receipt requested, not later than 10 working days
after receipt of such appeal, unless extended pursuant to paragraph (d)
of this section.
(1) The Director shall also notify the individual of the provisions
of the Privacy Act of 1974 (5 U.S.C. 552a(g)(1A)) regarding judicial
review of his determination.
(2) If on appeal the refusal to amend the record is upheld, the
individual shall be permitted to file a statement setting forth the
reasons for his disagreement with the Director's determination and such
statement shall be appended to the record in question.
(d) The Director may extend up to 30 days the time period prescribed
above within which to make a determination on an appeal from refusal to
amend a record for the reason that a fair and equitable review cannot be
completed within the prescribed time period.
32 CFR 320.8 Disclosure of record to person other than the individual
to whom it pertains.
(a) Subject to the conditions hereinafter set forth, no officer or
employee of the DMA will disclose any record which is contained in a
system of records, by any means of communication to any person or other
agency who is not an individual to whom the record pertains.
(b) Any such record may be disclosed to any person or other agency
only upon written request or with prior written consent of the
individual to whom the record pertains.
(c) In the absence of a written consent from the individual to whom
the record pertains, such record may be disclosed only provided such
disclosure is:
(1) To those officers and employees of the DoD who have a need for
the record in the performance of their duties.
(2) Required under the Freedom of Information Act.
(3) For a routine use as defined in 295.2 of this chapter.
(4) To the Bureau of Census for purposes of planning or carrying out
a census or survey or related activity under the provisions of Title 13
of the U.S. Code.
(5) To a recipient who has provided the DMA with adequate advance
written assurance that the record will be used solely as a statistical
research or reporting record and the record is transferred in a form
that is not individually identifiable and will not be used to make any
decisions about the rights, benefits or entitlements of an individual.
(6) To the National Archives of the United States as a record which
has sufficient historical or other value to warrant its continued
preservation by the U.S. Government or for evaluation by the
Administrator of the General Services Administration or his designee to
determine whether the record has such value.
(7) To another agency or to an instrumentality of any governmental
jurisdiction within or under the control of the U.S. for a civil or
criminal law enforcement activity authorized by law, provided the head
of the agency or instrumentality has made a prior written request to the
Director, Defense Mapping Agency specifying the particular record and
the law enforcement activity for which it is sought.
(8) To a person pursuant to a showing of compelling circumstances
affecting the health or safety of an individual, if upon such disclosure
notification is transmitted to the last known address of such
individual.
(9) To either house of Congress, and, to the extent of the matter
within its jurisdiction, any committee or subcommittee or joint
committee of Congress.
(10) To the Comptroller General or any of his authorized
representatives in the course of the performance of the duties of the
GAO.
(11) Under an order of a court of competent jurisdiction.
(d) Except for disclosures made pursuant to paragraphs (c) (1) and
(2) of this section, an accurate accounting will be kept of the data,
nature and purpose of each disclosure of a record to any person or
agency, and the name and address of the person or agency to whom the
disclosure was made. The accounting of disclosures will be made
available for review by the subject of a record at his request except
for disclosures made pursuant to paragraph (c)(7) of this section. If
an accounting of disclosure has been made, any person or agency
contained therein will be informed of any correction or notation of
dispute made pursuant to 320.6.
32 CFR 320.9 Fees.
(a) The following services are available with respect to requests
made under the provisions of this part for which fees will be charged as
provided in paragraphs (b) and (c) of this section.
(1) Copying of records/documents.
(2) Certification of copies of records/documents.
(b) The fees set forth below provide for documents to be mailed with
ordinary first-class postage prepaid. If a copy is to be transmitted,
at the individual's request, by registered, certified, air or special
delivery mail, postage therefor will be added to the basic fee. Also,
if special handling or packaging is required, costs thereof will be
added to the basic fee.
(1) Schedule of fees:
(2) Rules relating to charging fees:
(i) Fees may be charged to an individual only for the making of
copies when requested by the individual. When copies are made by the
DMA as a necessary incident to granting access to a record, a fee may
not be charged.
(ii) The individual may not be charged for time spent in searching
for requested records or for time spent in reviewing records to
determine if they fall within the disclosure requirements of the Act.
(iii) The fee charged may not exceed the direct cost of making the
copy.
(3) Certification and validation with the DMA seal of documents will
be available at $2.00 for each certification.
(c) Fees charged for the above services are payable in advance by
check, or money order payable to the Treasurer of the United States.
32 CFR 320.10 Penalties.
The Privacy Act of 1974 (5 U.S.C. 552a(i)(3)) makes it a misdemeanor
subject to a maximum fine of $5,000, to knowingly and willfully request
or obtain any record concerning an individual under false pretenses.
The Act also establishes similar penalties for violations by DMA
employees of the Act or regulations established thereunder.
32 CFR 320.11 Specific exemptions.
(a) The Director of the Defense Mapping Agency proposes to designate
the systems of records described in paragraphs (b) through (d) of this
section for exemptions under the specified provisions of the Privacy Act
of 1974.
(b) ID -- Manual.
SYSNAME -- 504-01 Personnel Security Files.
EXEMPTION -- Parts of this system of records are exempt from the
following provisions of Title 5, U.S. Code, section 552a: (d), (e) (1),
(e) (4) (G), (e) (4) (H), (e) (4) (I) and (f).
AUTHORITY -- 5 U.S.C. 552a(k)(5).
REASONS -- This system of records is maintained solely for the
purpose of determining an individual's qualifications, eligibility or
suitability for access to classified information. Portions of it are
considered relevant and necessary to making judicious determinations as
to such qualifications, eligibility or suitability and could only be
obtained by providing assurances to the source that his or her identity
would not be revealed to the subject of the record. Disclosure of all
or part of the record with the identity of the source removed would
likely reveal the identity of the source, e.g., the record could contain
information which could only have been furnished by one of several
individuals known to the subject.
(c) ID -- Manual.
SYSNAME -- 504-01-3 Personnel Security Investigative Files.
EXEMPTION -- Parts of this system of records are exempt from the
following provisions of Title 5, U.S. Code, section 552a: (d), (e) (1),
(e) (4) (G), (e) (4) (H), (e) (4) (I) and (f).
AUTHORITY -- 5 U.S.C. 552a(k)(5).
REASONS -- This system of records is maintained solely for the
purpose of determining an individual's qualifications, eligibility or
suitability for access to classified information. Portions of it are
considered relevant and necessary to making judicious determinations as
to such qualifications, eligibility or suitability and could only be
obtained by providing assurances to the source that his or her identity
would not be revealed to the subject of the record. Disclosure of all
or part of the record with the identity of the source removed would
likely reveal the identity of the source, e.g., the record could contain
information which could only have been furnished by one of several
individuals known to the subject.
(d) ID -- Manual.
SYSNAME -- 504-02 Special Security Briefing and Debriefing Files.
EXEMPTION -- Parts of this system of records are exempt from the
following provisions of Title 5, U.S. Code, section 552a: (d), (e) (1),
(e) (4) (G), (e) (4) (H), (e) (4) (I) and (f).
AUTHORITY -- 5 U.S.C. 552a(k)(5).
REASONS -- This system of records is maintained solely for the
purpose of determining an individual's qualifications, eligibility or
suitability for access to classified information. Portions of it are
considered relevant and necessary to making judicious determinations as
to such qualifications, eligibility or suitability and could only be
obtained by providing assurances to the source that his or her identity
would not be revealed to the subject of the record. Disclosure of all
or part of the record with the identity of the sources removed would
likely reveal the identity of the source, e.g., the record could contain
information which could only have been furnished by one of several
individuals known to the subject.
(e) In addition, all systems of records maintained by the DMA 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 such systems contain any information
properly classified under Executive Order 11652, 3 CFR Part 339, and
which is required by the said Executive Order to be kept secret in the
interest of national defense or foreign policy. This exemption, which
may be applicable to parts of all systems of records, is necessary
because certain record systems not otherwise specifically designated for
exemptions herein may contain isolated items of information which have
been properly classified.
32 CFR 320.11 PART 321 -- DEFENSE INVESTIGATIVE SERVICE, PRIVACY ACT OF
1974
Sec.
321.1 Purpose and applicability.
321.2 References.
321.3 Definitions.
321.4 Information and procedures for requesting notification.
321.5 Requirements for identification.
321.6 Access by subject individuals.
321.7 Medical records.
321.8 Request for correction or amendment.
321.9 DIS review of request for amendment.
321.10 Appeal of initial amendment decision.
321.11 Disclosure to other than subject.
321.12 Fees.
321.13 Penalties.
321.14 Exemption.
321.15 DIS implementation policies.
Authority: Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 552a).
Source: 40 FR 55546, Nov. 28, 1975, unless otherwise noted.
Redesignated at 56 FR 55631, Oct. 29, 1991.
32 CFR 321.1 Purpose and applicability.
(a) This part establishes rules, policies and procedures for the
disclosure of personal records in the custody of the Defense
Investigative Service (DIS) to the individual subjects, the handling of
requests for amendment or correction of such records, appeal and review
of DIS decisions on these matters, and the application of general and
specific exemptions, under the provisions of the Privacy Act of 1974.
It also prescribes other policies and procedures to effect compliance
with the Privacy Act of 1974 and DoD Directive 5400.11.
(b) The procedures set forth in this part do not apply to DIS
personnel seeking access to records pertaining to themselves which
previously have been available. DIS personnel will continue to be
granted ready access to their personnel, security, and other records by
making arrangements directly with the maintaining office. DIS personnel
should contact the Office of Information and Legal Affairs for access to
investigatory records pertaining to themselves or any assistance in
obtaining access to other records pertaining to themselves, and may
follow the procedures outlined in these rules in any case.
(40 FR 55546, Nov. 28, 1975, as amended at 46 FR 35640, July 10,
1981. Redesignated at 56 FR 55631, Oct. 29, 1991)
32 CFR 321.2 References.
(a) Pub. L. 93-579 (5 U.S.C. 552a) the Privacy Act of 1974.
(b) DoD Directive 5400.11, Personal Privacy and Rights of Individuals
Regarding Their Personal Records, dated 4 August 1975.
(c) DIS Regulation 28-1, ''The DIS Records Management Program.''
(d) DoD Directive 5400.7, DoD Freedom of Information Program.
(e) Office of Management and Budget Guidelines for Implementation of
the Privacy Act of 1974, dated 1 July 1975.
(f) DIS Manual for Personnel Security Investigations.
(40 FR 55546, Nov. 28, 1975, as amended at 46 FR 35640, July 10,
1981. Redesignated at 56 FR 55631, Oct. 29, 1991)
32 CFR 321.3 Definitions.
(a) All terms used in this part which are defined in 5 U.S.C. 552a
shall have the same meaning herein.
(b) As used in this part, the term agency means the Defense
Investigative Service.
(46 FR 35640, July 10, 1981. Redesignated at 56 FR 55631, Oct. 29,
1991)
32 CFR 321.4 Information and procedures for requesting notification.
(a) General. Any individual may request and receive notification of
whether he is the subject of a record in any system of records
maintained by DIS using the information and procedures described in this
section.
(1) Paragraphs (b) and (c) of this section give information that will
assist an individual in determining in what systems of DIS records (if
any) he may be the subject. This information is presented as a
convenience to the individual in that he may avoid consulting the
lengthy systems notices elsewhere in the Federal Register.
(2) Paragraph (d) of this section details the procedure an individual
should use to contact DIS and request notification. It will be helpful
if the individual states what his connection with DIS has or may have
been, and about what record system(s) he is inquiring. Such information
is not required, but its absence may cause some delay.
(b) DIS Record Systems. Following is a list of DIS records systems
pertaining to individuals. These systems are described in detail in the
DoD input to the Federal Register.
(c) Categories of individuals in DIS Record Systems. (1) If an
individual has ever been investigated by DIS, the investigative case
file should be a record in system DIS 5-01. An index to such files
should be in DIS 5-02.
(2) If an individual has ever made a formal request to DIS under the
Freedom of Information Act or the Privacy Act of 1974, a record
pertaining to that request under the name of the requester, or subject
matter, will be in system DIS 1-01.
(3) If an individual is or has ever been a member of DIS, i.e., a
civilian employee or appointee, or a military assignee, then he may be a
subject of any of the 22 record systems depending on his activities,
with the following exceptions:
(i) Civilian personnel will not be subjects of DIS 4-05.
(ii) Military personnel will not be subjects of systems DIS 4-06, 07,
08, or 09.
(4) Individuals who have been applicants for employment with DIS, or
nominees for assignment to DIS, but who have not completed their DIS
affiliation, may be subjects in systems DIS 4-02, 4-04, 5-01, 5-02, or
6-01.
(5) Any individual who is a subject, victim or cross-referenced
personally in an investigation by an investigative element of any DoD
component, may be referenced in the Defense Central Index of
Investigations, system DIS 5-02, in an index to the location, file
number, and custodian of the case record.
(6) Individuals who have ever presented a complaint to or have been
connected with a DIS Inspector General inquiry may be subjects of
records in system DIS 2-01.
(7) If an individual has ever attended the Defense Industrial
Security Institute, he should be subject of a record in DIS 7-01.
(8) If an individual has ever been a guest speaker or instructor at
the Defense Industrial Security Institute, he should be the subject of a
record in DIS 7-02.
(9) If an individual is an employee or major stockholder of a
government contractor or other DoD-affiliated company or agency and has
been issued, now possesses or has been processed for a security
clearance, he may be subject to a record in DIS 8-01.
(d) Procedures. The following procedures should be followed to
determine if an individual is a subject of records maintained by DIS,
and to request notification and access.
(1) Individuals should submit inquiries in person or by mail to the
Office of Information and Legal Affairs, 1900 Half St., SW, Washington,
DC 20325. Inquiries by personal appearance should be made Monday
through Friday from 8:30 to 11:30 a.m. and 1:00 to 4:00 p.m. The
information requested in 321.5 must be provided if records are to be
accurately identified. Telephonic requests for records will not be
honored. In a case where the system of records is not specified in the
request, only systems that would resonably contain records of the
individual will be checked, as described in 321.4(b).
(2) Only the Director, the Chief, Office of Information and Legal
Affairs, or the Director for Investigations may authorize exemptions to
notification of individuals in accordance with 321.14.
(40 FR 55546, Nov. 28, 1975, as amended at 46 FR 35640, July 10,
1981. Redesignated at 56 FR 55631, Oct. 29, 1991, and amended at 56 FR
57802, Nov. 14, 1991)
32 CFR 321.5 Requirements for identification.
(a) General. Only upon proper identification, made in accordance
with the provisions of this section, will any individual be granted
notification concerning and access to all releasable records pertaining
to him which are maintained in a DIS system.
(b) Identification. Identification of individuals is required both
for accurate record identification and to verify identity in order to
avoid disclosing records to unauthorized persons. Individuals who
request notification of, access to, or amendment of records pertaining
to themselves, must provide their full name (and additional names such
as aliases, maiden names, alternate spellings, etc., if a check of these
variants is desired), date and place of birth, and social security
account number (SSAN).
(1) Where reply by mail is requested, a mailing address is required,
and a telephone number is recommended to expedite certain matters. For
military requesters residing in the United States, home address or P.O.
Box number is preferred in lieu of duty assignment address.
(2) Signatures must be notarized on requests received by mail.
Exceptions may be made when the requester is well known to releasing
officials. For requests made in person, a photo identification card,
such as military ID, driver's licnse or building pass, must be
presented.
(3) While it is not required as a condition of receiving
notification, in many cases the SSAN may be necessary to obtain an
accurate search of DCII (DIS 5-02) records.
(c) A DIS Form 30 (Request for Notification of/Access to Personal
Records) will be provided to any individual inquiring about records
pertaining to himself whose mailed request was not notarized. This form
is also available at the Office of Information and Legal Affairs,
Washington, DC for those who make their requests in person.
(40 FR 55546, Nov. 28, 1975, as amended at 46 FR 35641, July 10,
1981. Redesignated at 56 FR 55631, Oct. 29, 1991)
32 CFR 321.6 Access by subject individuals.
(a) General. (1) Individuals may request access to records
pertaining to themselves in person or by mail in accordance with this
section. However, nothing in this section shall allow an individual
access to any information compiled or maintained by DIS in reasonable
anticipation of a civil or criminal action or proceeding, or otherwise
exempted under the provisions of 321.14.
(2) A request for a pending personnel security investigation will be
held in abeyance until completion of the investigation and the requester
will be so notified.
(b) Manner of access. (1) Requests by mail or in person for access
to DIS records should be made to the Offices specified in the record
systems notices published in the Federal Register by the Department of
Defense or to the Office of Information and Legal Affairs, 1900 Half St.
SW, Washington, DC 20324.
(2) Any individual who makes a request for access in person shall:
(i) Provide identification as specified in 321.5.
(ii) Complete and sign a request form.
(3) Any individual making a request for access to records by mail
shall include a signed and notarized statement to verify his identity,
which may be the DIS request form if he has received one.
(4) Any individual requesting access to records in person may be
accompanied by an identified person of his own choosing while reviewing
the record. If the individual elects to be accompanied, he shall make
this known in his written request, and include a statement authorizing
disclosure of the record contents to the accompanying person. Without
written authorization of the subject individual, records will not be
disclosed to third parties accompanying the subject.
(5) Members of DIS field elements may be given access to records
maintained by the field elements without referral to the Office of
Information or the records system manager at headquarters. An account
of such access will be kept for reporting purposes.
(6) In all requests for access, the requester must state whether he
or she desires access in person or mailed copies of records. During
personal access, where copies are made for retention, a fee for
reproduction and postage may be assessed as provided in 321.12. Where
copies are mailed because personal appearance is impractical, there will
be no fee.
(7) All individuals who are not affiliates of DIS will be given
access to records in the Office of Information and Legal Affairs, or by
means of mailed copies.
(40 FR 55546, Nov. 28, 1975, as amended at 46 FR 35641, July 10,
1981. Redesignated at 56 FR 55631, Oct. 29, 1991, and amended at 56 FR
57802, Nov. 14, 1991)
32 CFR 321.7 Medical records.
(a) General. Medical records that are part of DIS records systems
will generally be included with those records when access is granted to
the subject to which they pertain. However, if it is determined that
such access could have an adverse effect upon the individual's physical
or mental health, the medical record in question will be released only
to a physician named by the requesting individual.
(40 FR 55546, Nov. 28, 1975, as amended at 46 FR 35641, July 10,
1981. Redesignated at 56 FR 55631, Oct. 29, 1991)
32 CFR 321.8 Request for correction or amendment.
(a) General. Upon request and proper identification by any
individual who has been granted access to DIS records pertaining to
himself or herself, that individual may request, either in person or
through the mail, that the record be amended. Such a request must be
made in writing and addressed to the Office of Information and Legal
Affairs, 1900 Half St., SW, Washington, DC 20324.
(b) Content. The following information must be included to insure
effective action on the request:
(1) Description of the record. Requesters should specify the number
of pages and documents, the titles of the documents, form numbers if
there are any, dates on the documents and names of individuals who
signed them. Any reasonable description of the document is acceptable.
(2) Description of the items to be amended. The description of the
passages, pages or documents to be amended should be as clear and
specific as possible.
(i) Page, line and paragraph numbers should be cited where they
exist.
(ii) A direct quotation of all or a portion of the passage may be
made if it isn't otherwise easily identifiable. If the passage is long,
a quotation of its beginning and end will suffice.
(iii) In appropriate cases, a simple substantive request may be
appropriate, e.g., ''delete all references to my alleged arrest in July
1970.''
(iv) If the requester has received a copy of the record, he may
submit an annotated copy of documents he wishes amended.
(3) Type of amendment. The requester must clearly state the type of
amendment he is requesting.
(i) Deletion or expungement, i.e., a complete removal from the record
of data, sentences, passages, paragraphs or documents.
(ii) Correction of the information in the record to make it more
accurate, e.g., rectify mistaken identities, dates, data pertaining to
the individual, etc.
(iii) Additions to make the record more relevant, accurate or timely
may be requested.
(iv) Other changes may be requested; they must be specifically and
clearly described.
(4) Reason for amendment. Requests for amendment must be based on
specific reasons, included in writing. Categories of reasons are as
follows:
(i) Accuracy. Amendment may be requested where matters of fact are
believed incorrectly recorded, e.g., dates, names, addresses,
identification numbers, or any other information concerning the
individual. The request, whenever possible, should contain the accurate
information, copies of verifying documents, or indication of how the
information can be verified.
(ii) Relevance. Amendment may be requested when information in a
record is believed not to be relevant or necessary to the purposes of
the record system. (See DoD Federal Register Descriptions.)
(iii) Timeliness. Amendment may be requested when information is
thought to be so old as to no longer be pertinent to the stated purposes
of the records system. It may also be requested when there is recent
information of a pertinent type that is not included in the record.
(iv) Completeness. Amendment may be requested where information in a
record is incomplete with respect to its purpose. The data thought to
have been omitted should be included or identified with the request.
(v) Fairness. Amendment may be requested when a record is thought to
be unfair concerning the subject, in terms of the stated purposes of the
record. In such cases, a source of additional information to increase
the fairness of the record should be identified where possible.
(vi) Other reasons. Reasons for requesting amendment are not limited
to those cited above. The content of the records is authorized in terms
of their stated purposes which should be the basis for evaluating them.
However, any matter believed appropriate may be submitted as a basis of
an amendment request.
(vii) Court orders and statutes may require amendment of a file.
While they do not require a Privacy Act request for execution, such may
be brought to the attention of DIS by these procedures.
(c) (Reserved)
(d) Assistance. Individuals seeking to request amendment of records
pertaining to themselves that are maintained by DIS will be assisted as
necessary by DIS officials. Where a request is incomplete, it will not
be denied, but the requester will be contacted for the additional
information necessary to his request.
(e) This section does not permit the alteration of evidence presented
to courts, boards and other official proceedings.
(40 FR 55546, Nov. 28, 1975, as amended at 46 FR 35641, July 10,
1981. Redesignated at 56 FR 55631, Oct. 29, 1991)
32 CFR 321.9 DIS review of request for amendment.
(a) General. Upon receipt from any individual of a request to amend
a record pertaining to himself and maintained by the DIS, the Office of
Information and Legal Affairs will handle the request as follows:
(1) A written acknowledgment of the receipt of a request for
amendment of a record will be provided to the individual within 10
working days, unless final action regarding approval or denial can be
accomplished within that time. In that case, the notification of
approval or denial will constitute adequate acknowledgment.
(2) Where there is a determination to grant all or a portion of a
request to amend a record, the record shall be promptly amended and the
requesting individual notified. Individuals, agencies or components
shown by accounting records to have received copies of the record, or to
whom disclosure has been made, will be notified of the amendment by the
responsible official. Where a DoD recipient of an investigative record
cannot be located, the notification will be sent to the personnel
security element of the parent Component.
(3) Where there is a determination to deny all or a portion of a
request to amend a record, the office will promptly:
(i) Advise the requesting individual of the specifics of the refusal
and the reasons;
(ii) Inform the individual that he may request a review of the
denial(s) from ''Director, Defense Investigative Service, 1900 Half
Street, SW, Washington, DC 20324.'' The request should be brief, in
writing, and enclose a copy of the denial correspondence.
(b) DIS determination to approve or deny. Determination to approve
or deny and request to amend a record or portion thereof may necessitate
additional investigation or inquiry be made to verify assertions of
individuals requesting amendment. Coordination will be made with the
Director for Investigations and the Director of the Personnel
Investigations Center in such instances.
(40 FR 55546, Nov. 28, 1975, as amended at 46 FR 35641, July 10,
1981. Redesignated at 56 FR 55631, Oct. 29, 1991)
32 CFR 321.10 Appeal of initial amendment decision.
(a) General. Upon receipt from any individual of an appeal to review
a DIS refusal to amend a record, the Office of Information and Legal
Affairs will assure that such appeal is handled in compliance with the
Privacy Act of 1974 and DoD Directive 5400.11 and accomplish the
following:
(1) Review the record, request for amendment, DIS action on the
request and the denial, and direct such additional inquiry or
investigation as is deemed necessary to make a fair and equitable
determination.
(2) Recommend to the Director whether to approve or deny the appeal.
(3) If the determination is made to amend a record, advise the
individual and previous recipients (or an appropriate office) where an
accounting of disclosures has been made.
(4) Where the decision has been made to deny the individual's appeal
to amend a record, notify the individual:
(i) Of the denial and the reason;
(ii) Of his right to file a concise statement of reasons for
disagreeing with the decision not to amend the record;
(iii) That such statement may be sent to the Office of Information
and Legal Affairs, DIS (D0030), Washington, DC 20314, and that it will
be disclosed to users of the disputed record;
(iv) That prior recipients of the disputed record will be provided a
copy of the statement of disagreement, or if they cannot be reached
(e.g., through deactivation) the personnel security element of their DoD
component;
(v) And, that he may file a suit in a Federal District Court to
contest DIS's decision not to amend the disputed record.
(b) Time limit for review of appeal. If the review of an appeal of a
refusal to amend a record cannot be accomplished within 30 days, the
Office of Information and Legal Affairs will notify the individual and
advise him of the reasons, and inform him of when he may expect the
review to be completed.
(40 FR 55546, Nov. 28, 1975, as amended at 46 FR 35641, July 10,
1981. Redesignated at 56 FR 55631, Oct. 29, 1991)
32 CFR 321.11 Disclosure to other than subject.
(a) General. No record contained in a system of records maintained
by DIS shall be disclosed by any means to any person or agency outside
the Department of Defense, except with the written consent or request of
the individual subject of the record, except as provided in this
section. Disclosures that may be made without the request or consent of
the subject of the record are as follows:
(1) To those officials and employees of the Department of Defense who
have a need for the record in the performance of their duties, when the
use is compatible with the stated purposes for which the record is
maintained.
(2) Required to be disclosed by the Freedom of Information Act.
(3) For a routine use as described in DoD Directive 5400.11 and DoD
publication in the Federal Register.
(4) To the Census Bureau, National Archives, the U.S. Congress, the
Comptroller General or General Accounting Office under the conditions
specified in DoD Directive 5400.11.
(5) At the written request of the head of an agency outside DoD for a
law enforcement activity as authorized by DoD Directive 5400.11.
(6) For statistical purposes, in response to a court order, or for
compelling circumstances affecting the health or safety of an individual
as described in DoD Directive 5400.11.
(7) Legal guardians recognized by the Act.
(b) Accounting of disclosures. Except for disclosures made to
members of the DoD in connection with their routine duties, and
disclosures required by the Freedom of Information Act, an accounting
will be kept of all disclosures of records maintained in DIS systems
listed in 321.4b.
(1) Accounting entries will normally be kept on a DIS form, which
will be maintained in the record file jacket, or in a document that is
part of the record.
(2) Accounting entries will record the date, nature and purpose of
each disclosure, and the name and address of the person or agency to
whom the disclosure is made.
(3) An accounting of disclosures made to agencies outside the DoD of
records in the Defense Central Index of Investigations (DIS 5-02) will
be kept as prescribed by the Director of Systems, DIS.
(4) Accounting records will be maintained for at least 5 years after
the last disclosure, or for the life of the record, whichever is longer.
(5) Subjects of DIS records will be given access to associated
accounting records upon request, except as exempted under 321.14.
(40 FR 55546, Nov. 28, 1975, as amended at 46 FR 35641, July 10,
1981. Redesignated at 56 FR 55631, Oct. 29, 1991, and amended at 56 FR
57803, Nov. 14, 1991)
32 CFR 321.12 Fees.
Individuals may request copies for retention of any documents to
which they are granted access in DIS records pertaining to them.
Requestors will not be charged for the first copy of any records
provided; however, duplicate copies will require a charge to cover
costs of reproduction. Such charges will be computed in accordance with
DoD Directive 5400.11.
(46 FR 35641, July 10, 1981)
32 CFR 321.13 Penalties.
(a) An individual may bring a civil action against the DIS to correct
or amend the record, or where there is a refusal to comply with an
individual request or failure to maintain any record with accuracy,
relevance, timeliness and completeness, so as to guarantee fairness, or
failure to comply with any other provision of 5 U.S.C. 552a. The court
may order correction or amendment. It may assess against the United
States reasonable attorney fees and other costs, or may enjoin the DIS
from withholding the records and order the production to the
complainant.
(b) Where it is determined that the action was willful or intentional
with respect to 5 U.S.C. 552a(g)(1) (C) or (D), the United States shall
be liable for the actual damages sustained, but in no case less than the
sum of $1,000 and the costs of the action with attorney fees.
(c) Criminal penalties may be imposed against an officer or employee
of the DIS who fully discloses material, which he knows is prohibited
from disclosure, or who willfully maintains a system of records without
the notice requirements; or against any person who knowingly and
willfully requests or obtains any record concerning an individual from
an agency under false pretenses. These offenses shall be misdemeanors
with a fine not to exceed $5,000.
32 CFR 321.14 Exemptions.
(a) General. The Director of the Defense Investigative Service
establishes the following exemptions of records systems (or portions
thereof) from the provisions of these rules, and other indicated
portions of Pub. L. 93-579, in this section. They may be exercised
only by the Director, DIS and the Chief of the Office of Information and
Legal Affairs. Exemptions will be exercised only when necessary for a
specific, significant and legitimate reason connected with the purpose
of a records system, and not simply because they are authorized by
statute. Personal records releasable under the provisions of 5 U.S.C.
552 will not be withheld from subject individuals based on these
exemptions.
(b) All systems of records maintained by DIS shall be exempt from the
requirements of 5 U.S.C. 552a(d) pursuant to 5 U.S.C. 552a(k)(1) to the
extent that the system contains any information properly classified
under Executive Order 11652 and which is required by the Executive order
to be withheld in the interest of national defense or foreign policy.
This exemption, which may be applicable to parts of all systems of
records, is necessary because certain record systems not otherwise
specifically designated for exemptions herein may contain items of
information that have been properly classified.
(c) (Reserved)
(d) Investigative files -- DIS 5-01.
(1) Exemption. 5 U.S.C. 552a(c)(3); (d); (e)(1) and (4)(G), (H)
and (I); (f);
(2) Authority. 5 U.S.C. 552a(k)(2);
(3) Reasons. This exemption will permit the DIS to conduct certain
law enforcement investigations effectively, and without compromise, to
relay law enforcement information without compromise, and to protect the
identities of sources who would not otherwise provide information.
Investigatory material, including certain reciprocal investigations and
counterintelligence information, must be exempted until such time action
is taken regarding the allegations, but after that time only to the
extent that the information would identify a confidential source who
furnished information under an express promise that the source's
identity would be held in confidence (or prior to the effective date of
the Act, under an implied promise).
(e) Investigative files -- DIS 5-01.
(1) Exemption. 5 U.S.C. 552a(c)(3); (d); (e)(1) and (4)(G), (H)
and (I); (f);
(2) Authority. 5 U.S.C. 552a(k)(3);
(3) Reasons. DIS investigatory material exempted under this
authority is maintained in connection with assisting the U.S. Secret
Service (USSS) to provide protective services to the President of the
United States and other individuals pursuant to 18 U.S.C. 3056. This
exemption provision will enable the DIS to continue its statutory
support of this activity without compromising the contents of Secret
Service intelligence files or DIS investigative activities.
(f) Investigative files -- DIS 5-01.
(1) Exemption. 5 U.S.C. 552a(c)(3); (d) and (f);
(2) Authority. 5 U.S.C. 552a(k)(5);
(3) Reasons. Personnel security investigatory material is exempt to
the extent that the disclosure of such material would reveal the
identity of a source who furnished information under an express promise
that the source's identity would be held in confidence (or prior to the
effective date of the Act, under an implied promise). This exemption
provision will allow the DIS to collect information necessary for
personnel security investigations from certain sources who would
otherwise be unwilling to provide it. This exemption will be applied
only in those cases where it is clearly necessary to grant
confidentiality for the performance of an authorized investigative
function.
(40 FR 55546, Nov. 28, 1975, as amended at 46 FR 881, Jan. 5 , 1981;
46 FR 35641, July 10, 1981. Redesignated at 56 FR 55631, Oct. 29, 1991)
32 CFR 321.15 DIS implementation policies.
(a) General. The implementation of the Privacy Act of 1974 within
DIS is as prescribed by DoD Directive 5400.11. This section provides
special rules and information that extend or amplify DoD policies with
respect to matters of particular concern to the Defense Investigative
Service.
(b) Privacy Act rules application: Any request which cites neither
Act, concerning personal record information in a system or records, by
the individual to whom such information pertains, for access, amendment,
correction, accounting of disclosures, etc., will be governed by the
Privacy Act of 1974, DoD Directive 5400.11 and these rules exclusively.
Requests for like information which cite only the Freedom of Information
Act will be governed by the Freedom of Information Act DoD Regulation
5400.7R. Any denial or exemption of all or part of a record from
notification, access, disclosure, amendment or other provision, will
also be processed under these rules, unless court order or other
competent authority directs otherwise.
(c) (Reserved)
(d) First amendment rights. No DIS official or element may maintain
any information pertaining to the exercise by an individual of his
rights under the First Amendment without the permission of that
individual unless such collection is specifically authorized by statute
or necessary to and within the scope of an authorized law enforcement
activity.
(e) Standards of accuracy and validation of records. (1) All
individuals or elements within DIS which create or maintain records
pertaining to individuals will insure that they are reasonably accurate,
relevant, timely and complete to serve the purpose for which they are
maintained and to assure fairness to the individual to whom they
pertain. Information that is not pertinent to a stated purpose of a
system of records will not be maintained within those records.
Officials compiling investigatory records will make every reasonable
effort to assure that only reports that are impartial, clear, accurate,
complete, fair and relevant with respect to the authorized purpose of
such records are included, and that reports not meeting these standards
or serving such purposes are not included in such records.
(2) Prior to dissemination to an individual or agency outside DoD of
any record about an individual (except for a Freedom of Information Act
action or access by a subject individual under these rules) the
disclosing DIS official will by review, make a reasonable effort to
assure that such record is accurate, complete, timely, fair and relevant
to the purpose for which they are maintained.
(f) The defense central index of investigations (DCII). It is the
policy of DIS, as custodian, that each DoD component or element that has
direct access to or contributes records to the DCII (DIS 5-02), is
individually responsible for compliance with The Privacy Act of 1974 and
DoD Directive 5400.11 with respect to requests for notification,
requests for access by subject individuals, granting of such access,
request for amendment and corrections by subjects, making amendments or
corrections, other disclosures, accounting for disclosures and the
exercise of exemptions, insofar as they pertain to any record placed in
the DCII by that component or element. Any component or element of the
DoD that makes a disclosure of any record whatsoever to an individual or
agency outside the DoD, from the DCII, is individually responsible to
maintain an accounting of that disclosure as prescribed by The Privacy
Act of 1974 and DoD Directive 5400.11 and to notify the element placing
the record in the DCII of the disclosure. Use of and compliance with
the procedures of the DCII Disclosure Accounting System will meet these
requirements. Any component or element of DoD with access to the DCII
that, in response to a request concerning an individual, discovers a
record pertaining to that individual placed in the DCII by another
component or element, may refer the requester to the DoD component that
placed the record into the DCII without making an accounting of such
referral, although it involves the divulging of the existence of that
record. Generally, consultation with, and referral to, the component or
element placing a record in the DCII should be effected by any component
receiving a request pertaining to that record to insure appropriate
exercise of amendment or exemption procedures.
(g) Investigative operations. (1) DIS agents must be thoroughly
familiar with and understand these rules and the authorities, purposes
and routine uses of DIS investigative records, and be prepared to
explain them and the effect of refusing information to all sources of
investigative information, including subjects, during interview, in
response to questions that go beyond the required printed and oral
notices. Agents shall be guided by reference (f) 321.2, in this
respect.
(2) All sources may be advised that the subject of an investigative
record may be given access to it, but that the identities of sources may
be withheld under certain conditions. Such advisement will be made as
prescribed in 321.2(f), and the interviewing agent may not urge a
source to request a grant of confidentiality. Such pledges of
confidence will be given sparingly and then only when required to obtain
information relevant and necessary to the stated purpose of the
investigative information being collected.
(h) Non-system information on individuals. The following information
is not considered part of personal records systems reportable under the
Privacy Act of 1974 and may be maintained by DIS members for ready
identification, contact, and property control purposes only. If at any
time the information described in this paragraph is to be used for other
than these purposes, that information must become part of a reported,
authorized record system. No other information concerning individuals
except that described in the records systems notice and this paragraph
may be maintained within DIS.
(1) Identification information at doorways, building directories,
desks, lockers, nametags, etc.
(2) Identification in telephone directories, locator cards and
rosters.
(3) Geographical or agency contact cards.
(4) Property receipts and control logs for building passes,
credentials, vehicles, weapons, etc.
(5) Temporary personal working notes kept solely by and at the
initiative of individual members of DIS to facilitate their duties.
(i) Notification of prior recipients. Whenever a decision is made to
amend a record, or a statement contesting a DIS decision not to amend a
record is received from the subject individual, prior recipients of the
record identified in disclosure accountings will be notified to the
extent possible. In some cases, prior recipients cannot be located due
to reorganization or deactivations (e.g., U.S. Military Assistance
Command, Vietnam). In these cases, the personnel security element of
the receiving Defense Component will be sent the notification or
statement for appropriate action.
(j) Ownership of DIS Investigative Records. Personnel security
investigative reports shall not be retained by DoD recipient
organizations. Such reports are considered to be the property of the
investigating organization and are on loan to the recipient organization
for the purpose for which requested. All copies of such reports shall
be destroyed within 120 days after the completion of the final personnel
security determination and the completion of all personnel action
necessary to implement the determination. Reports that are required for
longer periods may be retained only with the specific written approval
of the investigative organization.
(k) Consultation and referral. DIS system of records may contain
records originated by other components or agencies which may have
claimed exemptions for them under the Privacy Act of 1974. When any
action that may be exempted is initiated concerning such a record,
consultation with the originating agency or component will be effected.
Where appropriate such records will be referred to the originating
component or agency for approval or disapproval of the action.
(40 FR 55546, Nov. 28, 1975, as amended at 46 FR 35641, July 10,
1981. Redesignated at 56 FR 55631, Oct. 29, 1991, and amended at 56 FR
57803, Nov. 14, 1991)
32 CFR 321.15 PART 322 -- PRIVACY ACT SYSTEMS OF RECORDS -- DISCLOSURES
AND AMENDMENT PROCEDURES -- SPECIFIC EXEMPTIONS, NATIONAL SECURITY
AGENCY
Sec.
322.1 Purpose and scope.
322.2 Definitions.
322.3 Procedures for requests concerning individual records in a
system of records.
322.4 Times, places and procedures for disclosures.
322.5 Medical or psychological records.
322.6 Parents or legal guardians acting on behalf of minor applicants
and employees.
322.7 Procedures for amendment.
322.8 Appeal determination.
322.9 Fees.
322.10 Specific exemptions.
Authority: Pub. L. 93-579; 88 Stat. 1896 (5 U.S.C. 552a).
Source: 40 FR 44294, Sept. 25, 1975, unless otherwise noted.
Redesignated at 56 FR 55631, Oct. 29, 1991.
32 CFR 322.1 Purpose and scope.
(a) The purpose of this rule is to comply with and implement title 5
U.S.C. 552a, sections (f) and (k), hereinafter identified as the Privacy
Act. It establishes the procedures by which an individual may be
notified whether a system of records contains information pertaining to
the individual; defines times, places and requirements for
identification of the individual requesting records, for disclosure of
requested records where appropriate; special handling for medical and
psychological records; for amendment of records; appeal of denials of
requests for amendment; and provides a schedule of fees to be charged
for making copies of requested records. In addition, this rule contains
the exemptions promulgated by the Director, NSA, pursuant to 5 U.S.C.
552a(k), to exempt Agency systems of records from subsections (c)(3);
(d); (e)(1); (e)(4)(G), (H), (I); and (f) of section 552a.
(b) The procedures established and exemptions claimed apply to
systems of records for which notice has been published in the Federal
Register pursuant to the Privacy Act. Requests from individuals for
records pertaining to themselves will be processed in accordance with
these procedures and consistent with the exemptions claimed. Requests
for records which do not specify the statute pursuant to which they are
made but which may be reasonably construed to be requests by an
individual for records pertaining to that individual will also be
processed in accordance with these procedures and consistent with
exemptions claimed. To the extent appropriate, these procedures apply
to records maintained by this Agency pursuant to system of records
notices published by the Civil Service Commission. The primary category
of records affected by a Commission notice is that maintained in
conjunction with the CSC system identified as ''CSC-Retirement Life
Insurance and Health Benefits Records System.'' Authority pursuant to 44
U.S.C. 3101 to maintain each system of records for which notice has been
published is implied in each ''authority for maintenance of a system''
of each systems notice.
32 CFR 322.2 Definitions.
(a) Access to the NSA headquarters: means current and continuing
daily access to those facilities making up the NSA headquarters.
(b) Individual: means a natural person who is a citizen of the
United States or an alien lawfully admitted for permanent residence.
(c) Request: means a request in writing for records pertaining to
the requester contained in a system of rec- ords and made pursuant to
the Privacy Act or if no statute is identified considered by the Agency
to be made pursuant to that Act.
(d) System of Records: means a grouping of records maintained by the
Agency for which notice has been published in the Federal Register
pursuant to section 552a(e)(4) of Title 5 U.S.C.
32 CFR 322.3 Procedures for requests concerning individual records in a
system of records.
(a)(1) Notification. Any individual may be notified in response to a
request if any system of records contains a record pertaining to the
requester by sending a request addressed to: Information Officer,
National Security Agency, Fort George G. Meade, Maryland 20755. Such
request shall be in writing, shall be identified on the envelope and the
request as a ''Privacy Act Request,'' shall designate the system or
systems of records using the names of the systems as published in the
system notices, shall contain the full name, present address, date of
birth, social security number and dates of affiliation or contact with
NSA/CSS of the requester and shall be signed in full by the requester.
(2) A request pertaining to records concerning the requester which
does not specify the Act pursuant to which the request is made shall be
processed as a Privacy Act request. A request which does not designate
the system or systems of records to be searched shall be processed by
checking the following systems of records: Applicants; Personnel;
Health, Medical and Safety.
(b)(1) Identification. Any individual currently not authorized
access to the National Security Agency headquarters who requests
disclosure of records shall provide the following information with the
written request for disclosure: full name, present address, date of
birth, social security number, and date of first affiliation or contact
with NSA/CSS and date of last affiliation or contact with NSA/CSS.
(2) Any individual currently authorized access to the National
Security Agency headquarters shall provide the following information
with the request for notification: full name, present organizational
assignment, date of birth, social security number.
(3) Such request shall be treated as a certification of the requester
that the requester is the individual named. Individuals should be aware
that the Privacy Act provides criminal penalties for any person who
knowingly and willfully requests or obtains any rec- ords concerning an
individual under false pretenses.
32 CFR 322.4 Times, places and procedures for disclosures.
(a) Individual not currently affiliated with NSA:
(1) Request procedure. Any individual currently not authorized
access to the National Security Agency headquarters shall make the
request for notification in writing and shall include the required
identifying data. Upon verification of the existence in systems of
records pertaining to the requester, a copy of the records located shall
be mailed to the requester subject to appropriate specific exemptions,
applicable Public Laws, special procedures pertaining to medical rec-
ords, including psychological records, and the exclusion for information
compiled in reasonable anticipation of a civil action or proceeding. If
the request cannot be processed within ten working days from the time of
receipt of the request, an acknowledgment of receipt of the request will
be sent to the requester.
(2) Appointment of other individual. If a requester wishes another
individual to obtain the requested records on his behalf, the requester
shall provide a written, signed, notarized statement appointing that
individual as his representative, certifying that the individual
appointed may have access to the records of the requester and that such
access shall not constitute an invasion of the privacy of the requester
nor a violation of his rights under the Privacy Act of 1974.
(b) Individual currently affiliated with NSA -- (1) Request
procedure. Any individual currently authorized access to the National
Security Agency headquarters may make the request for notification to
the appropriate official delegated responsibility for a system of
records pursuant to internal agency regulations pertaining to the
Privacy Act of 1974. In the alternative, such individual may direct the
request to the NSA Information Officer in writing in the same form and
including the data required in 322.4(a)(1) above. In the case of any
denial of notification by officials delegated responsibility for a
system the request shall be referred to the NSA Information Officer for
review.
(2) Appointment of other individual. If the requester makes a
request pursuant to this paragraph and wishes to designate another
individual to accompany him, the same procedures as provided in
paragraph (a)(2) of this section apply. If the individual appointed is
currently authorized access to the National Security Agency
headquarters, he may accompany the requester. If the individual
appointed is not currently authorized access, a copy of the records
located may be mailed to the appointed individual subject to appropriate
specific exemptions, applicable Public Laws, special procedures
pertaining to medical records including psychological records, and the
exclusion for information compiled in reasonable anticipation of a civil
action or proceeding.
(40 FR 44294, Sept. 25, 1975. Redesignated at 56 FR 55631, Oct. 29,
1991, and amended at 56 FR 57803, Nov. 14, 1991)
32 CFR 322.5 Medical or psychological records.
If the request includes records of a medical or psychological nature,
and if an Agency doctor makes the determination that the records
requested contain information which would have an adverse effect upon
the requester, the requester will be advised to appoint a medical doctor
in the appropriate discipline to receive the information. The
appointment of the doctor shall be in the same form as that indicated in
322.4(a)(2) and shall include a certification that the doctor appointed
is authorized to practice the appropriate specialty by virtue of a
license to practice same in the state which granted the license.
(40 FR 44294, Sept. 25, 1975. Redesignated at 56 FR 55631, Oct. 29,
1991, and amended at 56 FR 57803, Nov. 14, 1991)
32 CFR 322.6 Parents or legal guardians acting on behalf of minor
applicants and employees.
Parents or legal guardians acting on behalf of minors who request
records concerning NSA/CSS applicants or employees who are minors shall
be subject to the same requirements contained in 322.4(a)(1)
appointment of other individuals, including the requirement for written
authorization. Requests by parents or legal guardians acting on behalf
of minors will be processed in the same manner and in accordance with
the procedures established herein for individuals not currently
authorized access to the NSA headquarters.
(40 FR 44294, Sept. 25, 1975. Redesignated at 56 FR 55631, Oct. 29,
1991, and amended at 56 FR 57803, Nov. 14, 1991)
32 CFR 322.7 Procedures for amendment.
(a) Request procedure. Any request for amendment of a record or
records contained in a system of records shall be in writing addressed
to the Information Officer, National Security Agency, Fort George G.
Meade, Md. 20755, Attention: Privacy Act Amendment, and shall contain
sufficient details concerning the requested amendment, justification for
the amendment, and a copy of the record(s) to be amended or sufficient
identifying data concerning the affected record(s) to permit its timely
retrieval. Such requests may not be used to accomplish actions for
which other procedures have been established such as grievances,
performance appraisal protests, etc. In such cases the requester will
be advised of the appropriate procedures for such actions.
(b) Initial determination: The NSA Information Officer may make an
initial determination concerning the requested amendment within ten
working days or shall acknowledge receipt of the amendment request
within that period if a determination cannot be completed. The
determination shall advise the requester of action taken to make the
requested amendment or inform the requester of the rejection of the
request, the reason(s) for the rejection and the procedures established
by the Agency for review of rejected amendment requests.
(c) Request on appeal: A requester may appeal the rejection by the
NSA Information Officer of a request for amendment to the Executive for
Staff Services. Such appeal shall be in writing, addressed to the
Executive for Staff Services, National Security Agency, Fort George G.
Meade, Md. 20755, Attention: Privacy Act Amendment Appeal.
32 CFR 322.8 Appeal determination.
The Executive for Staff Services shall acknowledge receipt of the
appeal within ten working days. A determination concerning the appeal
shall be provided to the requester within 30 working days, unless the
Director, National Security Agency, extends the period for good cause.
The Executive for Staff Services shall advise the requester of the
action taken to make the requested amendment or inform the requester of
the rejection of the appeal, the right to submit for incorporation in
the file containing the disputed record(s) a concise statement of
disagreement, and notify the requester of the right of judicial review
of the denial pursuant to subsection (g)(1)(A) of 5 U.S.C. 552a.
32 CFR 322.9 Fees.
A fee may be charged for the reproduction of copies of any requested
rec- ords, provided one copy is made available without charge where
access is limited to mail service only. Fees shall be charged in
accordance with The Uniform Schedule of Fees established by the
Department of Defense pursuant to Pub. L. 93-502.
32 CFR 322.10 Specific exemptions.
(a)(1) The following National Security Agency systems of records,
published in the Federal Register, are specifically exempted from the
provisions of 5 U.S.C. 552a, subsections (c)(3), (d), (e)(1), (e)(4)(G),
(e)(4)(H), (e)(4)(I) and (f) pursuant to subsection (k) of section 552a
to the extent that each system contains individual records or files
within the category or categories provided by subsection (k). Notice is
hereby given that individual records and files within each NSA system of
records may be subject to specific provisions of Pub. L. 86-36, Pub.
L. 88-290 and Title 18 U.S.C. 798 and other laws limiting access to
certain types of information or application of laws to certain
categories of information.
(2) In addition, those records maintained pursuant to notice of
systems of records published by the CSC are exempted pursuant to Title 5
U.S.C. 552a(k)(1) to the extent that they contain classified information
in order to protect such information from unauthorized disclosure. Such
records may also be subject to other specific exemptions pursuant to
rules promulgated by the CSC.
(b) Systems of records subject to specific exemptions:
(1) System name: NSA/CSS Access, Authority and Release of
Information File.
Exemption: This system of records is exempted from the sections of
title 5 U.S.C. 552a cited in paragraph 322.10(a) and is subject to the
limitations noted in that paragraph.
Authority: 5 U.S.C. 552a(k)(1), (k)(5)
Reasons: This system of records is exempted from all subsections
cited pursuant to exemption (k)(1) to protect from unauthorized
disclosure classified information which may be contained in records and
files making up the system. The exemption does not limit access to that
portion of the rec- ords in the system which are not classified or
otherwise protected from unauthorized disclosure.
This system of records is also exempted from all subsections cited
pursuant to exemption (k)(5) to protect the identity of confidential
sources of information constituting investigatory material compiled
solely for the purpose of determining access to classified information.
The exemption does not limit access to that portion of the records in
the system which are not exempted, not otherwise protected from
unauthorized disclosure, and which would not undermine the integrity of
the controlled access system.
(2) System name: NSA/CSS Applicants
Exemption: This system of records is exempted from the sections of
Title 5 U.S.C. 552a cited in paragraph 322.10(a) and is subject to the
limitations noted in that paragraph.
Authority: 5 U.S.C. 552a(k)(1), (k)(5)
Reasons: This system of records is exempted from all subsections
cited pursuant to exemption (k)(1) to protect from unauthorized
disclosure classified information which may be contained in records and
files making up the system. The exemption does not limit access to that
portion of the rec- ords in the system which are not classified or
otherwise protected from unauthorized disclosure.
This system of records is also exempted from all subsections cited
pursuant to exemption (k)(5) to protect the identity of confidential
sources of information constituting investigatory material compiled
solely for the purposes of determining suitability; eligibility;
qualifications for Federal civilian employment; Federal contracts; or
access to classified information which may be contained in records and
files making up the system. The exemption does not limit access to that
portion of the records in the system which are not subject to this
exemption, nor otherwise protected from unauthorized disclosure.
(3) System name: NSA/CSS Correspondence, Cases, Complaints,
Visitors, Requests
Exemption: This system of records is exempted from the sections of
Title 5 U.S.C. 552a cited in 322.10(a) and is subject to the
limitations noted in that paragraph.
Authority: 5 U.S.C. 552a(k)(1), (k)(2), (k)(4), (k)(5)
Reasons: This system of records is exempted from all subsections
cited pursuant to exemption (k)(1) to protect from unauthorized
disclosure classified information which may be contained in records and
files making up the system. The exemption does not limit access to that
portion of the rec- ords in the system which are not classified or
otherwise protected from unauthorized disclosure.
This system of records is exempted from all subsections cited
pursuant to exemption (k)(2) to protect from unauthorized disclosure
individual records and files which constitute investigatory material
compiled for law enforcement purposes pursuant to a lawful national
security intelligence investigation and maintain the integrity of the
personnel security system required by Pub. L. 88-290. The exemption
does not limit access to that portion of the records in the system which
are not investigatory material which are not exempted or otherwise
protected from unauthorized disclosure.
This system is exempted from all subsections cited pursuant to
exemption (k)(4) where individual records and files are maintained and
used solely for statistical records in accordance with statutory
requirements to insure compliance with those requirements with a minimum
of administrative burden and expense.
This system is exempted from all subsections cited pursuant to
exemption (k)(5) to protect the identity of confidential sources of
information constituting investigatory material compiled solely for the
purpose of determining suitability; eligibility; qualifications for
Federal civilian employment, Federal contracts; or access to classified
information which may be contained in records and files making up the
system. The exemption does not limit access to that portion of the
records in the system which are not subject to this exemption or
otherwise protected from unauthorized disclosure.
(4) System name: NSA/CSS Cryptologic Reserve Mobilization Designee
List
Exemption: This system of records is exempted from the sections of
Title 5 U.S.C. 552a cited in 322.10(a) and is subject to the
limitations noted in that paragraph.
Authority: 5 U.S.C. 552a (k) (1), (k) (5)
Reasons: This system of records is exempted from all subsections
cited pursuant to exemption (k)(1) to prevent the unauthorized
disclosure of classified information concerning anticipated personnel
assignments to sensitive cryptologic positions during periods of
national emergency or war requiring reserve mobilization.
This system of records is also exempted from all subsections cited
pursuant to exemption (k)(5) to protect the identity of confidential
sources of information constituting investigatory material compiled
solely for the purpose of determining suitability, eligibility or
qualifications for designation for mobilization to fill a sensitive
cryptologic position or access to classified material as a result of
designation for mobilization.
(5) System name: NSA/CSS Equal Employment Opportunity Data
Exemption: This system of records is exempted from the sections of
Title 5 U.S.C. 552a cited in 322.10(a) and is subject to the
limitations noted in that paragraph.
Authority: 5 U.S.C. 552a(k) (1), (k) (2), (4)
Reasons: This system of records is exempted from all subsections
cited pursuant to exemption (k)(1) to protect from unauthorized
disclosure classified information which may be contained in records and
files making up the system. The exemption does not limit access to that
portion of the rec- ords in the system which are not classified or
otherwise protected from unauthorized disclosure.
This system of records is exempted from all subsections cited
pursuant to exemption (k)(4) to protect the integrity of those
statistical records compiled for Equal Employment Opportunity purposes.
This system of records is also exempted from all subsections cited
pursuant to exemption (k)(2) to the extent that individual records and
files are related to investigations to enforce the provisions of Pub.
L. 92-261 and consistent with the provisions of that statute with
respect to individual access to such records. The purpose of the
exemption is to protect the integrity of investigations conducted
pursuant to Pub. L. 92-261.
(6) System name: NSA/CSS Health, Medical and Safety Files
Exemption: This system of records is exempted from sections of Title
5 U.S.C. 552a cited in 322.10(a) and is subject to the statutory
limitations noted in that paragraph.
Authority: 5 U.S.C. 552a(k) (1), (k) (5), (k) (6).
Reasons: This system of records is exempted from all subsections
cited pursuant to exemption (k)(1) to protect from unauthorized
disclosure classified information which may be contained in records and
files making up the system. The exemption does not limit access to that
portion of the rec- ords in the system which are not classified or
otherwise protected from unauthorized disclosure.
This system of records is exempted from all subsections cited
pursuant to exemption (k)(5) to protect the identity of confidential
sources of information constituting investigatory material compiled
solely for the purpose of determining suitability, eligibility, or
qualifications for Federal civilian employment, Federal contracts or
access to classified information. The exemption does not limit access
to that portion of the records in the system which are not exempted or
otherwise protected from unauthorized disclosure.
This system of records is also exempted from all subsections cited
pursuant to exemption (k)(6) to protect those testing or examination
materials used solely to determine individual qualifications for
employment in the Federal service the disclosure of which would
compromise the objectivity or fairness of the testing or examination
process.
(7) System name: NSA/CSS Motor Vehicles and Carpools
Exemption: This system of records is exempted from the sections of
Title 5 U.S.C. 552a cited in 322.10(a) and is subject to the statutory
limitations noted in that paragraph.
Authority: 5 U.S.C. 552a(k)(1)
Reasons: This system of records is exempted from all subsections
cited pursuant to exemption (k)(1) to protect from unauthorized
disclosure any and all classified information which may be contained in
records and files making up the system. The exemption does not limit
access to that portion of the of the records in the system which are not
classified or otherwise protected from unauthorized disclosure.
(8) System name: NSA/CSS Payroll and Claims
Exemption: This system of records is exempted from the sections of
Title 5 U.S.C. 552a cited in 322.10(a) and is subject to the statutory
limitations noted in that paragraph.
Authority: 5 U.S.C. 552a(k) (1), (k) (2)
Reasons: This system of records is exempted from all subsections
cited pursuant to exemption (k)(1) to protect from unauthorized
disclosure classified information which may be contained in records and
files making up this system. The exemption does not limit access to
that portion of the records in the system which are not classified or
otherwise protected from unauthorized disclosure.
This system of records is also exempted from all subsections cited
pursuant to exemption (k)(2) to protect investigatory materials related
to the enforcement of laws with respect to claims against the
Government. The exemption does not limit access to that portion of the
records in the system not related to investigations of claims or
otherwise protected from unauthorized disclosure.
(9) System name: NSA/CSS Personnel File
Exemption: This system of records is exempted from the sections of
Title 5 U.S.C. 552a cited in 322.10(a) and is subject to the statutory
limitations noted in that paragraph.
Authority: 5 U.S.C. 552a(k) (1), (k) (5), (k) (6)
Reasons: This system of records is exempted from all subsections
cited pursuant to exemption (k)(1) to protect from unauthorized
disclosure classified information which may be contained in records and
files making up the system. The exemption does not limit access to that
portion of the rec- ords in the system which are not classified or
otherwise protected from unauthorized disclosure.
This system of records is exempted from all subsections cited
pursuant to exemption (k)(5) to protect the identity of confidential
sources of information constituting investigatory material compiled
solely for the purpose of determining suitability, eligibility, or
qualifications for Federal civilian employment, Federal contracts or
access to classified information. The exemption does not limit access
to that portion of the records in the system which are not exempted or
otherwise protected from unauthorized disclosure.
This system of records is also exempted from all subsections cited
pursuant to exemption (k)(6) to protect those testing or examination
materials used solely to determine individual qualifications for
employment in the Federal service the disclosure of which would
compromise the objectivity or fairness of the testing or examination
process.
(10) System name: NSA/CSS Personnel Security File
Exemption: This system of records is exempted from the sections of
Title 5 U.S.C. 552a cited in 322.10(a) and is subject to the
limitations noted in that paragraph.
Authority: 5 U.S.C. 552a (k)(1), (k)(2), (k)(5), and (k)(6)
Reasons: This system of records is exempted from all subsections
cited pursuant to exemption (k)(1) to protect from unauthorized
disclosure classified information which may be contained in records and
files making up the system. The exemption does not limit access to that
portion of the rec- ords in the system which are not classified or
otherwise protected from unauthorized disclosure.
This system of records is exempted from all subsections cited
pursuant to exemption (k)(2) to protect investigatory materials compiled
for purposes of enforcement of Pub. L. 88-290 and title 18 U.S.C. 798
as well as other appropriate criminal and civil laws related to the
protection of sensitive cryptologic information. Both statutes cited
require the Director, NSA, to observe special procedures and standards
in permitting access to sensitive cryptologic information and provide
statutory authority to act when those standards are breached. The
materials contained in this system are of an investigatory nature, are
maintained on a continuing basis and are used to insure compliance with
and enforcement of the cited statutes.
This system of records is exempted from all subsections cited
pursuant to exemption (k)(5) to protect the identity of confidential
sources of information constituting investigatory material compiled
solely for the purpose of determining suitability, eligibility, or
qualifications for Federal civilian employment, Federal contracts or
access to classified information. The exemption does not limit access
to that portion of the records in the system which are not exempted or
otherwise protected from unauthorized disclosure.
This system of records is exempted from all subsections cited
pursuant to exemption (k)(6) to protect testing or examination materials
and procedures, the disclosure of which would compromise the objectivity
or fairness of the testing or examination process.
(11) System name: NSA/CSS Time, Attendance, and Absence
Exemption: This system of records is exempted from the sections of
Title 5 U.S.C. 552a cited in 322.10(a) and is subject to the
limitations noted in that paragraph.
Authority: 5 U.S.C. 552a(k)(1)
Reasons: This system of records is exempted from all subsections
cited pursuant to exemption (k)(1) to protect from unauthorized
disclosure classified information which may be contained in records and
files making up the system. The exemption does not limit access to that
portion of the rec- ords in the system which are not classified or
otherwise protected from unauthorized disclosure.
(12) System name: NSA/CSS Training
Exemption: This system of records is exempted from the sections of
Title 5 U.S.C. 552a cited in 322.10(a) and is subject to the
limitations noted in that paragraph.
Authority: 5 U.S.C. 552a (k)(1), (k)(5), (k)(6).
Reasons: This system of records is exempted from all subsections
cited pursuant to exemption (k)(1) to protect from unauthorized
disclosure classified information which may be contained in records and
files making up the system. The exemption does not limit access to that
portion of the records in the system which are not classified or
otherwise protected from unauthorized disclosure.
This system of records is exempted from all subsections cited
pursuant to exemption (k)(5) to protect the identity of confidential
sources of information constituting investigatory material compiled
solely for the purpose of determining suitability, eligibility, or
qualifications for Federal civilian employment, Federal contracts or
access to classified information. The exemption does not limit access
to that portion of the records in the system which are not exempted or
otherwise protected from unauthorized disclosure.
This system of records is also exempted from all subsections cited
pursuant to exemption (k)(6) to protect those testing or examination
materials used solely to determine individual qualifications for
employment in the Federal service the disclosure of which would
compromise the objectivity or fairness of the testing or examination
process.
(13) System name: NSA/CSS Archival Records.
Exemption: This system is exempted from the sections of Title 5
U.S.C. 552a cited in 322.10(a) and is subject to the statutory
limitations noted in that paragraph.
Authority: 5 U.S.C. 552a(k)(1) and (k)(4).
Reasons: This system of records is exempted from all subsections
cited pursuant to exemption (k)(1) to protect from unauthorized
disclosure classified information which may be contained in records and
files making up the system. The exemption does not limit access to that
portion of the rec- ords in the system which are not classified or
otherwise protected from unauthorized disclosure.
This system is exempted from all subsections cited pursuant to
exemption (k)(4) where individual records and files are maintained and
used solely for statistical compliance with those requirements with a
minimum of administrative burden and expense.
(14) System Identification and Name -- GNSA14, entitled ''NSA/CSS
Library Patron File Control System''.
Exemption -- Portions of this system which fall within 5 U.S.C. 552a
(k)(1) and (k)(4) are exempt from the following provisions of 5 U.S.C.
552a, sections (c)(3), (d) (1)-(5), (e)(1), (e)(4) (G)-(I), and (f)
(1)-(5).
Authority -- 5 U.S.C. 552a (k)(1) and (k)(4).
Reasons -- This record system is exempted from all subsections
pursuant to exemption (k)(1) to protect from unauthorized disclosure
classified information which may be contained in records and files
making up the system. The exemption does not limit access to that
portion of the records in the system which are not classified or
otherwise protected from unauthorized disclosure.
This record system is exempted from all subsections pursuant to
exemption (k)(4) to protect from unauthorized disclosure records
maintained for statistical research or program evaluation. The
exemption does not limit access to that portion of the records in the
system which are not classified or otherwise protected from unauthorized
disclosure.
(15) System Identification and Name -- GNSA15, entitled ''NSA/CSS
Computer Users Control System''.
Exemption -- Portions of this system which fall within 5 U.S.C. 552a
(k)(1) and (k)(2) are exempt from the following provisions of 5 U.S.C.
552a, sections (c)(3), (d) (1)-(5), (e)(1), (e)(4) (G)-(I), and (f)
(1)-(5).
Authority -- 5 U.S.C. 552a (k)(1) and (k)(2).
Reasons -- This system of records is exempted from all subsections
pursuant to exemption (k)(1) to protect from unauthorized disclosure
classified information which may be contained in records and files
making up the system. The exemption does not limit access to that
portion of the records in the system which are not classified or
otherwise protected from unauthorized disclosure.
This system of records is exempted from all subsections cited
pursuant to exemption (k)(2) to the extent that individual records and
files are related to investigations to enforce the provisions of Pub.
L. 88-290 and consistent with the provisions of that statute with
respect to individual access to such records. The purpose of the
exemption is to protect the integrity of investigations conducted
pursuant to Pub. L. 88-290.
(16) System Identification and Name -- GNSA16, entitled ''NSA/CSS
Drug Testing Program''.
Exemption -- Portions of this system which fall within 5 U.S.C.
552a(k)(1) are exempt from the following provisions of 5 U.S.C. 552a,
sections (c)(3), (d) (1)-(5), (e)(1), (e)(4) (G)-(I), and (f) (1)-(5).
Authority -- 5 U.S.C. 552a(k)(1).
Reasons -- This system of records is exempted from all subsections
cited pursuant to exemption (k)(1) to protect from unauthorized
disclosure classified information which may be contained in records and
files making up the system.
(17) System Identification and Name -- GNSA17, entitled ''Employee
Assistance Service (EAS) Case Record System''.
Exemption -- Portions of this system which fall within 5 U.S.C. 552a
(k)(1), (k)(2), (k)(4) and (k)(5) are exempt from the following
provisions of 5 U.S.C. 552a, sections (c)(3), (d) (1)-(5), (e)(1),
(e)(4) (G)-(I), and (f) (1)-(5).
Authority -- 5 U.S.C. 552a (k)(1), (k)(2), (k)(4), and (k)(5).
Reasons -- This system of records is exempted from all subsections
cited pursuant to exemption (k)(1) to protect from unauthorized
disclosure classified information which may be contained in records and
files making up the system.
This system of records is exempted from all subsections cited
pursuant to exemption (k)(2) to the extent that individual records and
files are related to investigations to enforce the provisions of Public
Law 92-261 and consistent with the provisions of that statute with
respect to individual access to such records. The purpose of the
exemption is to protect the integrity of investigations conducted
pursuant to Public Law 92-261.
This record system is exempted from all subsections pursuant to
exemption (k)(4) to protect from unauthorized disclosure records
maintained for statistical research or program evaluation. The
exemption does not limit access to that portion of the records in the
system which are not classified or otherwise protected from unauthorized
disclosure.
This system of records is also exempted from all subsections cited
pursuant to exemption (k)(5) to protect the identity of confidential
sources of information constituting investigatory material compiled
solely for the purpose of determining suitability, eligibility, or
qualifications for federal civilian employment, federal contracts, or
access to classified information. The exemption does not limit access
to that portion of the records in the system which are not exempted or
otherwise protected from unauthorized disclosure.
(18) System identification and name -- GNSA18, NSA/CSS Operations
Files.
Exemption -- Portions of this record system may be exempted from
subsections of 5 U.S.C. 552a (c)(3), (d)(1) -- (5), (e)(4)(G) -- (I),
and (f)(1) -- (5).
Authority -- 5 U.S.C. 552a(k) (1), (2) and (5).
Reasons -- Subsection (c)(3) because there may be occasions when
making an accounting available to the individual named in the record at
his or her request, would reveal classified information. 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.
Subsection (d) because granting access and/or subsequent amendment to
the record would reveal classified information. It may also alert a
subject to the fact that an investigation of that individual is taking
place, and might weaken the on-going investigation, reveal investigatory
techniques, and place confidential informants in jeopardy. NSA/CSS may
refuse to confirm or deny the existence of a particular record because
to do so would reveal classified information.
Subsection (e)(4)(G), (e)(4)(H), and (e)(4)(I). Although NSA/CSS has
published procedures whereby an individual can be notified if a
particular record system contains information about themselves; how to
gain access to that information; and the source of the information,
there may be occasions when confirming that a record exists, granting
access, or giving out the source of the information would reveal
classified information.
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. The confirming or denying might,
in itself, provide an answer to that individual relating to an on-going
criminal 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. Also, because this record
system is exempt from the individual access provisions of subsection
(d).
(40 FR 44294, Sept. 25, 1975, as amended at 45 FR 80106, Dec. 3,
1980; 52 FR 41711, Oct. 30, 1987; 55 FR 34907, Aug. 27, 1990; 56 FR
16007, Apr. 19, 1991. Redesignated at 56 FR 55631, Oct. 29, 1991, and
amended at 56 FR 57803, Nov. 14, 1991)
32 CFR 322.10 PART 323 -- DEFENSE LOGISTICS AGENCY PRIVACY PROGRAM
Sec.
323.1 Purpose and scope.
323.2 Policy.
323.3 Definitions.
323.4 Responsibilities.
323.5 Procedures.
323.6 Forms and reports.
Appendix A to Part 323 -- Instructions for Preparation of System
Notices
Appendix B to Part 323 -- Criteria for New and Altered Record Systems
Appendix C to Part 323 -- Instructions for Preparation of Reports to
New or Altered Systems
Appendix D to Part 323 -- Word Processing Center (WPC) Safeguards
Appendix E to Part 323 -- OMB Guidelines for Matching Programs
Appendix F to Part 323 -- Litigation Status Sheet
Appendix G to Part 323 -- Privacy Act Enforcement Actions
Appendix H to Part 323 -- DLA Exemption Rules
Authority: Privacy Act of 1974, Pub. L. 93-579, Stat. 1896 (5
U.S.C. 552a).
Source: DLAR 5400.21, 51 FR 33595, Sept. 22, 1986, unless otherwise
noted. Redesignated at 56 FR 57803, Nov. 14, 1991.
32 CFR 323.1 Purpose and scope.
This part 323 implements the Privacy Act of 1974 (5 U.S.C. 552a) and
DoD Directive and DoD Regulation 5400.11, Department of Defense Privacy
Program (32 CFR part 286a). It applies to Headquarters, Defense
Logistics Agency (HQ DLA) and all DLA field activities.
32 CFR 323.2 Policy.
It is the policy of DLA to safeguard personal information contained
in any system of records maintained by DLA activities and to make that
information available to the individual to whom it pertains to the
maximum extent practicable. DLA policy specifically requires that DLA
activities:
(a) Collect, maintain, use, and disseminate personal information only
when it is relevant and necessary to achieve a purpose required by
statute or Executive Order.
(b) Collect personal information directly from the individuals to
whom it pertains to the greatest extent practical.
(c) Inform individuals who are asked to supply personal information
for inclusion in any system of records:
(1) The authority for the solicitation.
(2) Whether furnishing the information is mandatory or voluntary.
(3) The intended uses of the information.
(4) The routine disclosures of the information that may be made
outside DoD.
(5) The effect on the individual of not providing all of any part of
the requested information.
(d) Ensure that all records used in making determinations about
individuals are accurate, relevant, timely, and complete.
(e) Make reasonable efforts to ensure that records containing
personal information are accurate, relevant, timely, and complete for
the purposes for which they are being maintained before making them
available to any recipients outside DoD, other than a Federal agency,
unless the disclosure is made under DLAR 5400.14, Availability to the
Public of Official Information (32 CFR part 1285).
(f) Keep no record that describes how individuals exercise their
rights guaranteed by the First Amendment of the U.S. Constitution,
unless expressly authorized by statute or by the individual to whom the
records pertain or is pertinent to and within the scope of an authorized
law enforcement activity.
(g) Make reasonable efforts, when appropriate, to notify individuals
whenever records pertaining to them are made available under compulsory
legal process, if such process is a matter of public record.
(h) Establish safeguards to ensure the security of personal
information and to protect this information from threats or hazards that
might result in substantial harm, embarrassment, inconvenience, or
unfairness to the individual.
(i) Establish rules of conduct for DoD personnel involved in the
design, development, operation, or maintenance of any system of records
and train them in these rules of conduct.
(j) Assist individuals in determining what records pertaining to them
are being collected, maintained, used, or disseminated.
(k) Permit individual access to the information pertaining to them
maintained in any system of records, and to correct or amend that
information, unless an exemption for the system has been properly
established for an important public purpose.
(l) Provide, on request, an accounting of all disclosures of the
information pertaining to them except when disclosures are made:
(1) To DoD personnel in the course of their official duties.
(2) Under 32 CFR part 1285 (DLAR 5400.14).
(m) Advise individuals on their rights to appeal any refusal to grant
access to or amend any record pertaining to them, and to file a
statement of disagreement with the record in the event amendment is
refused.
32 CFR 323.3 Definitions.
(a) Access. The review of a record or a copy of a record or parts
thereof in a system of records by any individual.
(b) Agency. For the purpose of disclosing records subject to the
Privacy Act among DoD Components, the Department of Defense is
considered a single agency. For all other purposes including
applications for access and amendment, denial of access or amendment,
appeals from denials, and recordkeeping as regards release to non-DoD
agencies, DLA is considered an agency within the meaning of the Privacy
Act.
(c) Confidential source. A person or organization who has furnished
information to the Federal Government under an express promise that the
person's or the organization's identity will be held in confidence or
under an implied promise of such confidentiality if this implied promise
was made before September 27, 1975.
(d) Disclosure. The transfer of any personal information from a
system of records by any means of communication to any person, private
entity, or Government agency, other than the subject of the record, the
subject's designated agent or the subject's legal guardian.
(e) Individual. A living citizen of the United States or an alien
lawfully admitted to the United States for permanent residence. The
legal guardian of an individual has the same rights as the individual
and may act on his or her behalf.
(f) Individual access. Access to information pertaining to the
individual by the individual or his or her designated agent or legal
guardian.
(g) Maintain. Includes maintain, collect, use, or disseminate.
(h) Member of the public. Any individual or party acting in a
private capacity to include Federal employees or military personnel.
(i) Official use. Within the context of this part, this term is used
when officials and employees of a DLA activity have a demonstrated need
for the use of any record or the information contained therein in the
performance of their official duties.
(j) Personal information. Information about an individual that is
intimate or private to the individual, as distinguished from information
related solely to the individual's official functions or public life.
(k) Privacy Act. The Privacy Act of 1974, as amended, 5 U.S.C.
552a.
(l) Privacy Act request. A request from an individual for
notification as to the existence of, access to, or amendment of records
pertaining to that individual. These records must be maintained in a
system of records. The request must indicate that it is being made
under the Privacy Act to be considered a Privacy Act request.
(m) Record. Any item, collection, or grouping of information about
an individual that is maintained by DLA, including, but not limited to,
the individual's education, financial transactions, medical history, and
criminal or employment history, and that contains the individual's name,
or the identifying number, symbol, or other identifying particular
assigned to the individual, such as a finger or voice print or a
photograph.
(n) Risk assessment. An analysis considering information
sensitivity, vulnerabilities, and the cost to a computer facility or
word processing activity in safeguarding personal information processed
or stored in the facility or activity.
(o) Routine use. The disclosure of a record outside DoD for a use
that is compatible with the purpose for which the information was
collected and maintained by DoD. The routine use must be included in
the published system notice for the system of records involved.
(p) Statistical record. A record maintained only for statistical
research or reporting purposes and not used in whole or in part in
making determinations about specific individuals.
(q) System of Records. A group of records under the control of a DLA
activity from which information is retrieved by the individual's name or
by some identifying number, symbol, or other identifying particular
assigned to the individual. System notices for all Privacy Act systems
of records must be published in the Federal Register.
32 CFR 323.4 Responsibilities.
(a) Headquarters Defense Logistics Agency.
(1) The Chief, Resources Management Division, Office of
Administration (DLA-XA) will:
(i) Formulate policies, procedures, and standards necessary for
uniform compliance with the Privacy Act by DLA activities.
(ii) Serve as the DLA Privacy Act Officer and DLA representative on
the Defense Privacy Board.
(iii) Maintain a master registry of system notices published by DLA.
(iv) Develop or compile the rules, notices, and reports required
under this part.
(2) The General Counsel, DLA (DLA-G) will:
(i) Serve as the appellate authority for denials of individual access
and amendment of records.
(ii) Provide representation to the Defense Privacy Board Legal
Committee.
(iii) Advise the Defense Privacy Office on the status of DLA privacy
litigation.
(3) The Command Security Officer, Office of Command Security, DLA
(DLA-T) will formulate and implement protective standards for personal
information maintained in automated data processing systems and
facilities.
(b) The Heads of DLA Primary Level Field Activities (PLFAs) will:
(1) Ensure that the collection, maintenance, use, or dissemination of
records of identifiable personal information is in a manner that assures
that such action is for a necessary and lawful purpose; that the
information is timely and accurate for its intended use; and that
adequate safeguards are provided to prevent misuse of such information.
(2) Designate a Privacy Act Officer to serve as the principal point
of contact on privacy matters.
(3) Ensure the internal operating procedures provide for effective
compliance with the Privacy Act.
(4) Establish a training program for those personnel whose duties
involve responsibilities for systems of records affected by the Privacy
Act.
32 CFR 323.5 Procedures.
(a) Individual access. (1) The access provisions of this part are
intended for use by individuals whose records are maintained in systems
of records. Release of personal information to individuals under this
part is not considered public release of information.
(2) Individuals will address requests for access to personal
information about themselves in a system of records to the system
manager or to the office designated in the system notice. Before being
granted access to personal data, an individual may be required to
provide reasonable verification of his or her identity. Identity
verification procedures will be simple so as not to discourage
individuals from seeking access to information about themselves; or be
required of an individual seeking access to records which normally would
be available under 32 CFR part 1285 (DLAR 5400.14).
(i) Normally, when individuals seek personal access to records
pertaining to themselves, identification will be made from documents
that normally are readily available, such as employee and military
identification cards, driver's license, other licenses, permits, or
passes used for routine identification purposes.
(ii) When access is requested by mail, identity verification may
consist of the individual providing certain minimum identifying data,
such as full name, date and place of birth, or such other personal
information necessary to locate the record sought. If the information
sought is sensitive, additional identifying data may be required. If
notarization of requests is required, procedures will be established for
an alternate method of verification for individuals who do not have
access to notary services, such as military members overseas.
(3) If an individual wishes to be accompanied by a third party when
seeking access to his or her records or to have the records released
directly to a third party, the individual may be required to furnish a
signed access authorization granting the third party access. An
individual will not be refused access to his or her record solely for
failure to divulge his or her social security number (SSN) unless it is
the only method by which retrieval can be made. The individual is not
required to explain or justify his or her need for access to any record
under this part.
(4) Disclose medical records to the individual to whom they pertain,
even if a minor, unless a judgment is made that access to such records
could have an adverse effect on the mental or physical health of the
individual. Normally, this determination will be made in consultation
with a medical doctor. If it is determined that the release of the
medical information may be harmful to the mental or physical health of
the individual, send the record to a physician named by the individual
and in the transmittal letter to the physician, explain why access by
the individual without proper professional supervision could be harmful
(unless it is obvious from the record). Do not require the physician to
request the records for the individual. If the individual refuses or
fails to designate a physician, the record will not be provided. Such
refusal of access is not considered a denial for reporting purposes.
(5) Requests by individuals for access to investigatory records
pertaining to themselves and compiled for law enforcement purposes are
processed under this part or 32 CFR part 1285 depending on which part
gives them the greatest degree of access.
(6) Certain documents under the physical control of DoD personnel and
used to assist them in performing official functions, are not considered
''agency records'' within the meaning of this part. Uncirculated
personal notes and records that are not disseminated or circulated to
any person or organization (for example, personal telephone lists or
memory aids) that are retained or discarded at the author's discretion
and over which DLA exercises no direct control, are not considered
agency records. However, if personnel are officially directed or
encouraged, either in writing or orally, to maintain such records, they
may become ''agency records,'' and may be subject to the Privacy Act of
1974 (5 U.S.C. 552a) and this part.
(7) Acknowledge requests for access within 10 working days after
receipt and provide access within 30 working days.
(b) Denial of individual access. (1) Individuals may be formally
denied access to a record pertaining to them only if the record was
compiled in reasonable anticipation of civil action; is in a system of
records that has been exempted from the access provisions of this part
under one of the permitted exemptions; contains classified information
that has been exempted from the access provision of this part under the
blanket exemption for such material claimed for all DoD records systems;
or is contained in a system of records for which access may be denied
under some other Federal statute. Only deny the individual access to
those portions of the records from which the denial of access serves
some legitimate Governmental purpose.
(2) An individual may be refused access if the record is not
described well enough to enable it to be located with a reasonable
amount of effort on the part of an employee familiar with the file; or
access is sought by an individual who fails or refuses to comply with
the established procedural requirements, including refusing to name a
physician to receive medical records when required or to pay fees.
Always explain to the individual the specific reason access has been
refused and how he or she may obtain access.
(3) Formal denials of access must be in writing and include as a
minimum:
(i) The name, title or position, and signature of the appropriate
Head of the HQ DLA principal staff element or primary level field
activity.
(ii) The date of the denial.
(iii) The specific reason for the denial, including specific citation
to the appropriate sections of the Privacy Act of 1974 (5 U.S.C. 552a)
or other statutes, this part, or DLAR 5400.21 authorizing the denial.
(iv) Notice to the individual of his or her right to appeal the
denial within 60 calendar days.
(v) The title or position and address of the Privacy Act appeals
official, DLA-G, Cameron Station, Alexandria, VA 22304-6100.
(4) The individual will file any appeals from denial of access within
60 calendar days of receipt of the denial notification. DLA-G will
process all appeals within 30 days of receipt unless a fair and
equitable review cannot be made within that period. The written appeal
notification granting or denying access is the final DLA action on
access.
(5) The records in all systems of records maintained in accordance
with the Office of Personnel Management (OPM) Government-wide system
notices are technically only in the temporary custody of DLA. All
requests for access to these records must be processed in accordance
with the Federal Personnel Manual (5 CFR parts 293, 294, 297 and 735) as
well as this part. DLA-G is responsible for the appellate review of
denial of access to such records.
(c) Amendment of records. (1) Individuals are encouraged to review
the personal information being maintained about them by DLA and to avail
themselves of the procedures established by this part to update their
records. An individual may request the amendment of any record
contained in a system of records pertaining to him or her unless the
system of record has been exempted specifically from the amendment
procedures of this part. Normally, amendments under this part are
limited to correcting factual matters and not matters of official
judgment, such as performance ratings promotion potential, and job
performance appraisals.
(2) The applicant must adequately support his or her claim and may be
required to provide identification to ensure that they are indeed
seeking to amend a record pertaining to themselves and not,
inadvertently or intentionally, the record of others. Consider the
following factors when evaluating the sufficiency of a request to amend:
(i) The accuracy of the information itself.
(ii) The relevancy, timeliness, completeness, and necessity of the
recorded information for accomplishing an assigned mission or purpose.
(3) Provide written acknowledgement of a request to amend within 10
working days of its receipt by the appropriate systems manager. There
is no need to acknowledge a request if the action is completed within 10
working days and the individual is so informed. The letter of
acknowledgement shall clearly identify the request and advise the
individual when he or she may expect to be notified of the completed
action. Only under the most exceptional circumstances will more than 30
days be required to reach a decision on a request to amend.
(4) If the decision is made to grant all or part of the request for
amendment, amend the record accordingly and notify the requester.
Notify all previous recipients of the information, as reflected in the
disclosure accounting records, that an amendment has been made and the
substance of the amendment. Recipients who are known to be no longer
retaining the information need not be advised of the amendment. All DoD
Components and Federal agencies known to be retaining the record or
information, even if not reflected in disclosure records, will be
notified of the amendment. Advise the requester of these notifications,
and honor all requests by the requester to notify specific Federal
agencies of the amendment action.
(5) If the request for amendment is denied in whole or in part,
promptly advise the individual in writing of the decision to include:
(i) The specific reason and authority for not amending.
(ii) Notification that he or she may seek further independent review
of the decision by the Office of General Counsel, DLA (DLA-G).
(6) Individual appeals of amendment denials must be submitted to the
Office of General Counsel, DLA (DLA-G), Cameron Station, Alexandria,
Virginia, 22304-6100 with all supporting materials. DLA-G will process
all appeals within 30 days unless a fair review cannot be made within
this time limit.
(i) If the appeal is granted, DLA-G will promptly notify the
requester and system manager of the decision. The system manager will
amend the record(s) as directed and ensure that all prior known
recipients of the records who are known to be retaining the record are
notifed of the decision and the specific nature of the amendment and
that the requester is notified as to which DoD Components and Federal
agencies have been told of the amendment.
(ii) If the appeal is denied completely or in part, the individual is
notified in writing by the reviewing official that:
(A) The appeal has been denied and the specific reason and authority
for the denial.
(B) The individual may file a statement of disagreement with the
appropriate authority and the procedures for filing this statement.
(C) If filed properly, the statement of disagreement shall be
included in the records, furnished to all future recipients of the
records, and provided to all prior recipients of the disputed records
who are known to hold the record.
(D) The individual may seek a judicial review of the decision not to
amend.
(7) The records in all systems of records controlled by the Office of
Personnel Management (OPM) Government-wide system notices are
technically only temporarily in the custody of DLA. All requests for
amendment of these records must be processed in accordance with the
Federal Personnel Manual (FPM). A DLA denial authority may deny a
request. However, the appeal process for all such denials must include
a review by the Assistant Director for Agency Compliance and Evaluation,
Office of Personnel Management, 1900 E Street, NW., Washington, DC
20415. When an appeal is received from a DLA denial of amendment of the
OPM controlled record, process the appeal in accordance with the FPM and
notify the OPM appeal authority listed above. The individual may appeal
any DLA decision not to amend the OPM records directly to OPM. OPM is
the final review authority for any appeal from a denial to amend the OPM
records.
(8) If the reviewing authority refuses to amend the record as
requested, the individual may submit a concise statement of disagreement
setting forth his or her reasons for disagreeing with the decision not
to amend.
(i) If an individual chooses to file a statement of disagreement,
annotate the record to indicate that the statement has been filed.
Furnish copies of the statement of disagreement to all DoD Components
and Federal agencies that have been provided copies of the disputed
information and who may be maintaining the information.
(ii) When possible, incorporate the statement of disagreement into
the record. If the statement cannot be made a part of the record,
establish procedures to ensure that it is apparent from the records that
a statement of disagreement has been filed and maintain the statement so
that it can be obtained readily when the disputed information is used or
disclosed. Automated record systems that are not programmed to accept
statements of disagreement shall be annotated or coded so that they
clearly indicate that a statement of disagreement is on file, and
clearly identify the statement with the disputed information in the
system. Provide a copy of the statement of disagreement whenever the
disputed information is disclosed for any purpose.
(9) A summary of reasons for refusing to amend may be included with
any record for which a statement of disagreement is filed. Include in
this summary only the reasons furnished to the individual for not
amending the record. Do not include comments on the statement of
disagreement. Normally, the summary and statement of disagreement are
filed together. When disclosing information for which a summary has
been filed, a copy of the summary may be included in the release, if
desired.
(d) Documentation. Establish a separate Privacy Case File to retain
the documentation received and generated during the amendment or access
process. There is no need to establish a Privacy Case File if the
individual has not cited the Privacy Act or this part. Privacy Case
Files shall not be furnished or disclosed to anyone for use in making
any determination about the individual other than determinations made
under this part. Only the items listed below may be included in the
system of records challenged for amendment or for which access is
sought. Do not retain copies of unamended records in the basis record
system if the request for amendment is granted.
(1) The following items relating to an amendment request may be
included in the disputed record system:
(i) Copies of the amended record.
(ii) Copies of the individual's statement of disagreement.
(iii) Copies of activity summaries.
(iv) Supporting documentation submitted by the individual.
(2) The following items relating to an access request may be included
in the basic records system:
(i) Copies of the request.
(ii) Copies of the activity action granting total access. (Note: A
separate Privacy Case File need not be created in such cases.)
(iii) Copies of the activity action denying access.
(iv) Copies of any appeals filed.
(v) Copies of the reply to the appeal.
(e) Fees. An individual may be charged only for the direct cost of
copying and reproduction, computed using the appropriate portions of the
fee schedule in DLAR 5400.14 (32 CFR part 1285) under the provisions of
this part. Normally, fees are waived automatically if the direct costs
of a given request is less than $30. This fee waiver provision does not
apply when a waiver has been granted to the individual before, and later
requests appear to be an extension or duplication of that original
request. DLA activities may, however, set aside this automatic fee
waiver provision when on the basis of good evidence it determines that
the waiver of fees is not in the public interest. Decisions to waive or
reduce fees that exceed the automatic waiver threshold will be made on a
case-by-case basis. Fees may not be charged when:
(1) Copying is performed for the convenience of the Government or is
the only means to make the record available to the individual.
(2) The record may be obtained without charge under any other part,
directive, or statute.
(3) Providing documents to members of Congress for copying records
furnished even when the records are requested under the Privacy Act on
behalf of a constituent.
(f) Disclosures of personal information. (1) For the purposes of
disclosure and disclosure accounting, the Department of Defense is
considered a single agency. Records pertaining to an individual may be
disclosed without the consent of the individual to any DoD official who
has need for the record in the performance of his or her assigned
duties. Do not disclose personnel information from a system of records
outside the Department of Defense unless the record has been requested
by the individual to whom it pertains; the written consent of the
individual to whom the record pertains has been obtained for release of
the record to the requesting agency, activity, or individual; or the
release is for one of the specific nonconsensual purposes set forth in
this part or DLAR 5400.14, (32 CFR part 1285).
(2) Except for releases made in accordance with DLAR 5400.14, (32 CFR
part 1285) before disclosing any personal information to any recipient
outside DoD other than a Federal agency or the individual to whom it
pertains;
(i) Ensure that the records are accurate, timely, complete, and
relevant for agency purposes.
(ii) Contact the individual, if reasonably available, to verify the
accuracy, timeliness, completeness, and relevancy of the information, if
this cannot be determined from the record.
(iii) If the information is not current and the individual is not
reasonably available, advise the recipient that the information is
believed accurate as of a specific date and any other known factors
bearing on its accuracy and relevancy.
(3) All records must be disclosed if their release is required by the
Freedom of Information Act. DLAR 5400.14, (32 CFR part 1285) requires
that records be made available to the public unless exempted from
disclosure by one of the nine exemptions found in the Freedom of
Information Act. The standard for exempting most personal records, such
as personnel records, medical records, and similar records, is found in
DLAR 5400.14, section IIIG6 (32 CFR 1285.3(g)(f). Under the exemption,
release of personal information can only be denied when its release
would be a ''clearly unwarranted invasion of personal privacy.''
(i) All disclosures of personal information regarding Federal
civilian employees will be made in accordance with the Federal Personnel
Manual. Some examples of personal information regarding DoD civilian
employees that normally may be released without a clearly unwarranted
invasion of personal privacy include:
(A) Name.
(B) Present and past position titles.
(C) Present and past grades.
(D) Present and past salaries.
(E) Present and past duty stations.
(F) Office and duty telephone numbers.
(ii) All release of personal information regarding military members
shall be made in accordance with the standards established by DLAR
5400.14, (32 CFR part 1285). While it is not possible to identify
categorically information that must be released or withheld from
military personnel records in every instance, the following items of
personal information regarding military members normally may be
disclosed without a clearly unwarranted invasion of their personal
privacy:
(A) Full name.
(B) Rank.
(C) Date of rank.
(D) Gross salary.
(E) Past duty assignments.
(F) Present duty assignment.
(G) Future assignments that are officially established.
(H) Office or duty telephone numbers.
(I) Source of commission.
(J) Promotion sequence number.
(K) Awards and decorations.
(L) Attendance at professional military schools.
(M) Duty status at any given time.
(iii) All releases of personal information regarding civilian
personnel not subject to the FPM shall be made in accordance with the
standards established by DLAR 5400.14 (32 CFR part 1285). While it is
not possible to identify categorically those items of personal
information that must be released regarding civilian employees not
subject to the FPM, such as nonappropriated fund employees, normally the
following items may be released without a clearly unwarranted invasion
of personal privacy:
(A) Full name.
(B) Grade or position.
(C) Date of grade.
(D) Gross salary.
(E) Present and past assignments.
(F) Future assignments, if officially established.
(G) Office or duty telephone numbers.
(4) A request for a home address or telephone number may be referred
to the last known address of the individual for a direct reply by him or
her to the requester. In such cases the requester will be notified of
the referral. The release of home addresses and home telephone numbers
normally is considered a clearly unwarranted invasion of personal
privacy and is prohibited. However, these may be released without prior
specific consent of the individual if:
(i) The individual has indicated previously that he or she has no
objection to their release.
(ii) The source of the information to be released is a public
document such as commercial telephone directory or other public listing.
(iii) The release is required by Federal statute (for example,
pursuant to Federally-funded state programs to locate parents who have
defaulted on child support payments (42 U.S.C. section 653).)
(iv) The releasing official releases the information under the
provisions of DLAR 5400.14, (32 CFR part 1285).
(5) Records may be disclosed outside DoD without consent of the
individual to whom they pertain for an established routine use. Routine
uses may be established, discontinued, or amended without the consent of
the individuals involved. However, new or changed routine uses must be
published in the Federal Register at least 30 days before actually
disclosing any records under their provisions. In addition to the
routine uses established by the individual system notices, common
blanket routine uses for all DLA-maintained systems of records have been
established. These blanket routine uses are published in DLAH 5400.1,
/1/ DLA Systems of Records Handbook. Unless a system notice
specifically excludes a system from a given blanket routine use, all
blanket routine uses apply.
(6) Records in DLA systems of records may be disclosed without the
consent of the individuals to whom they pertain to the Bureau of the
Census for purposes of planning or carrying out a census survey or
related activities.
(7) Records may be disclosed for statistical research and reporting
without the consent of the individuals to whom they pertain. Before
such disclosures, the recipient must provide advance written assurance
that the records will be used as statistical research or reporting
records; the records will only be transferred in a form that is not
individually identifiable; and the records will not be used, in whole
or in part, to make any determination about the rights, benefits, or
entitlements of specific individuals. A disclosure accounting is not
required.
(8) Records may be disclosed without the consent of the individual to
whom they pertain to the National Archives and Records Administration
(NARA) if they have historical or other value to warrant continued
preservation; or for evaluation by NARA to determine if a record has
such historical or other value. Records transferred to a Federal Record
Center (FRC) for safekeeping and storage do not fall within this
category. These remain under the control of the transferring activity,
and the FRC personnel are considered agents of the activity which retain
control over the records. No disclosure accounting is required for the
transfer of records to FRCs.
(9) Records may be disclosed without the consent of the individual to
whom they pertain to another agency or an instrumentality of any
governmental jurisdiction within or under the control of the United
States for a civil or criminal law enforcement activity, provided the
civil or criminal law enforcement activity is authorized by law; the
head of the law enforcement acitivity or a designee has made a written
request specifying the particular records desired and the law
enforcement purpose (such as criminal investigations, enforcement of
civil law, or a similar propose) for which the record is sought; and
there is no Federal statute that prohibits the disclosure of the
records. Normally, blanket requests for access to any and all records
pertaining to an individual are not honored. When a record is released
to a law enforcement activity, maintain a disclosure accounting. This
disclosure accounting will not be made available to the individual to
whom the record pertains if the law enforcement activity requests that
the disclosure not be released.
(10) Records may be disclosed without the consent of the individual
to whom they pertain if disclosure is made under compelling
circumstances affecting the health or safety of any individual. The
affected individual need not be the subject of the record disclosed.
When such a disclosure is made, notify the individual who is the subject
of the record. Notification sent to the last known address of the
individual as reflected in the records is sufficient.
(11) Records may be disclosed without the consent of the individual
to whom they pertain to either House of the Congress or to any
committee, joint committee or subcommittee of Congress if the release
pertains to a matter within the jurisdiction of the committee. Records
may also be disclosed to the General Accounting Office (GAO) in the
course of the activities of GAO.
(12) Records may be disclosed without the consent of the person to
whom they pertain under a court order signed by a judge of a court of
competent jurisdiction. Releases may also be made under the compulsory
legal process of Federal or state bodies having authority to issue such
process.
(i) When a record is disclosed under this provision, make reasonable
efforts to notify the individual to whom the record pertains, if the
legal process is a matter of public record.
(ii) If the process is not a matter of public record at the time it
is issued, seek to be advised when the process is made public and make
reasonable efforts to notify the individual at that time.
(iii) Notification sent to the last known address of the individual
as reflected in the records is considered reasonable effort to notify.
Make a disclosure accounting each time a record is disclosed under a
court order or compulsory legal process.
(13) Certain personal information may be disclosed to consumer
reporting agencies as defined by the Federal Claims Collection Act.
Information which may be disclosed to a consumer reporting agency
includes:
(i) Name, address, taxpayer identification number (SSN), and other
information necessary to establish the identity of the individual.
(ii) The amount, status, and history of the claim.
(iii) The agency or program under which the claim arose.
(g) Disclosure accounting. (1) Keep an accurate record of all
disclosures made from any system of records except disclosures to DoD
personnel for use in the performance of their official duties or under
DLAR 5400.14 (32 CFR part 1285). In all other cases a disclosure
accounting is required even if the individual has consented to the
disclosure of the information pertaining to him or her.
(2) Use any system of disclosure accounting that will provide the
necessary disclosure information. As a minimum, disclosure accounting
will contain the date of the disclosure, a description of the
information released, the purpose of the disclosure, the name and
address of the person or agency to whom the disclosure was made. When
numerous similar records are released (such as transmittal of payroll
checks to a bank), identify the category of records disclosed and
include the data required in some form that can be used to construct an
accounting disclosure record for individual records if required. Retain
disclosure accounting records for 5 years after the disclosure or the
life of the record, whichever is longer.
(3) Make available to the individual to whom the record pertains all
disclosure accountings except when the disclosure has been made to a law
enforcement activity and the law enforcement activity has requested that
disclosure not be made, or the system of records has been exempted from
the requirement to furnish the disclosure accounting. If disclosure
accountings are not maintained with the record and the individual
requests access to the accounting, prepare a listing of all disclosures
and provide this to the individual upon request.
(h) Collecting personal information. (1) Collect to the greatest
extent practicable personal information directly from the individual to
whom it pertains if the information may be used in making any
determination about the rights, privileges, or benefits of the
individual under any Federal program.
(2) When an individual is requested to furnish personal information
about himself or herself for inclusion in a system of records, a Privacy
Act Statement is required regardless of the medium used to collect the
information (forms, personal interviews, stylized formats, telephonic
interviews, or other methods). The statement enables the individual to
make an informed decision whether to provide the information requested.
If the personal information solicited is not to be incorporated into a
system of records, the statement need not be given. The Privacy Act
Statement shall be concise, current, and easily understood. It must
include:
(i) The specific Federal statute or Executive Order that authorizes
collection of the requested information.
(ii) The principal purpose or purposes for which the information is
to be used.
(iii) The routine uses that will be made of the information.
(iv) Whether providing the information is voluntary or mandatory.
(v) The effects on the individual if he or she chooses not to provide
the requested information.
(3) The Privacy Act Statement may appear as a public notice (sign or
poster), conspicuously displayed in the area where the information is
collected, such as at check-cashing facilities or identification
photograph facilities. The individual normally is not required to sign
the Privacy Act Statement. Provide the individual a written copy of the
Privacy Act Statement upon request. This must be done regardless of the
method chosen to furnish the initial advisement.
(4) Include in the Privacy Act Statement specifically whether
furnishing the requested personal data is mandatory or voluntary. A
requirement to furnish personal data is mandatory only when a Federal
statute, Executive order, regulation, or other lawful order specifically
imposes a duty on the individual to provide the information sought, and
the individual is subject to a penalty if he or she fails to provide the
requested information. If providing the information is only a condition
of a prerequisite to granting a benefit or privilege and the individual
has the option of requesting the benefit or privilege, providing the
information is always voluntary. However, the loss or denial of the
privilege, benefit, or entitlement sought may be listed as a consequence
of not furnishing the requested information.
(5) It is unlawful for any Federal, state, or local government agency
to deny an individual any right, benefit, or privilege provided by law
because the individual refuses to provide his or her social security
number (SSN). However, if a Federal statute requires that the SSN be
furnished or if the SSN is required to verify the identity of the
individual in a system of records that was established and in use before
January 1, 1975, and the SSN was required as an identifier by a statute
or regulation adopted before that date, this restriction does not apply.
(i) When an individual is requested to provide his or her SSN, he or
she must be told:
(A) The uses that will be made of the SSN.
(B) The statute, regulation, or rule authorizing the solicitation of
the SSN.
(C) Whether providing the SSN is voluntary or mandatory.
(ii) Include in any systems notice for any system of records that
contains SSNs a statement indicating the authority for maintaining the
SSN and the source of the SSNs in the system. If the SSN is obtained
directly from the individual indicate whether this is voluntary or
mandatory.
(iii) Upon entrance into Military Service of civilian employment with
DoD, individuals are asked to provide their SSNs. The SSN becomes the
service or employment number for the individual and is used to establish
personnel, financial, medical, and other official records. After an
individual has provided his or her SSN for the purpose of establishing a
record, a Privacy Act Statement is not required if the individual is
only requested to furnish or verify the SSNs for identification purposes
in connection with the normal use of his or her records. However, if
the SSN is to be written down and retained for any purpose by the
requesting official, the individual must be provided a Privacy Act
Statement.
(6) DLAR 7760.1, Forms Management Program, /2/ provides guidance on
administrative requirements for Privacy Act Statements used with DLA
forms. Forms subject to the Privacy Act issued by other Federal
agencies have a Privacy Act Statement attached or included. Always
ensure that the statement prepared by the originating agency is adequate
for the purpose for which the form will be used by the DoD activity. If
the Privacy Act Statement provided is inadequate, the activity concerned
will prepare a new statement of a supplement to the existing statement
before using the form. Forms issued by agencies not subject to the
Privacy Act (state, municipal, and other local agencies) do not contain
Privacy Act Statements. Before using a form prepared by such agencies
to collect personal data subject to this part, an appropriate Privacy
Act Statement must be added.
(i) Systems of records. (1) To be subject to this part, a ''system
of records'' must consist of records retrieved by the name of an
individual or some other personal identifier and be under the control of
a DLA activity. Records in a group of records that may be retrieved by
a name or personal identifier are not covered by this part. The records
must be, in fact, retrieved by name or other personal identifier to
become a system of records for the purpose of this part.
(2) Retain in a system of records only that personal information
which is relevant and necessary to accomplish a purpose required by a
Federal statute or an Executive Order. The existence of a statute or
Executive order mandating that maintenance of a system of records does
not abrogate the responsibility to ensure that the information in the
system of records is relevant and necessary.
(3) Do not maintain any records describing how an individual
exercises his or her rights guaranteed by the First Amendment of the
U.S. Constitution unless expressly authorized by Federal statute or the
individual. 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.
(4) Maintain all personal information used to make any determination
about an individual with such accuracy, relevance, timeliness, and
completeness as is reasonably necessary to ensure fairness to the
individual in making any such determination. Before disseminating any
personal information from a system of records to any person outside DoD,
other than a Federal agency, make reasonable efforts to ensure that the
information to be disclosed is accurate, relevant, timely, and complete
for the purpose it is being maintained.
(5) Establish appropriate administrative, technical and physical
safeguards to ensure that the records in every system of records are
protected from unauthorized alteration or disclosure and that their
confidentiality is protected. Protect the records against reasonably
anticipated threats or hazards. Tailor safeguards specifically to the
vulnerabilities of the system and the type of records in the system, the
sensitivity of the personal information stored, the storage medium used
and, to a degree, the number of records maintained.
(i) Treat all unclassified records that contain personal information
that normally would be withheld from the public as if they were
designated ''For Official Use Only'' and safeguard them in accordance
with the standards established by DLAR 5400.14 (32 CFR part 1285) even
if they are not marked ''For Official Use Only.''
(ii) Special administrative, physical, and technical procedures are
required to protect data that are stored or being processed temporarily
in an automated data processing (ADP) system or in a word processing
activity to protect it against threats unique to those environments (see
DLAM 5200.1, ADP Security Manual, /3/ and appendix D of this part).
(6) Dispose of records containing personal data so as to prevent
inadvertent compromise. Disposal methods such as tearing, burning,
melting, chemical decomposition, pulping, pulverizing, shredding, or
mutilation are considered adequate if the personal data is rendered
unrecognizable or beyond reconstruction.
(i) The transfer of large quantities of records containing personal
data (for example, computer cards and printouts) in bulk to a disposal
activity, such as the Defense Property Disposal Office, is not a release
of personal information under this part. The sheer volume of such
transfers makes it difficult or impossible to identify readily specific
individual records.
(ii) When disposing of or destroying large quantities of records
containing personal information, care must be exercised to ensure that
the bulk of the records is maintained so as prevent specific records
from being readily identified. If bulk is maintained, no special
procedures are required.
(7) When DLA contracts for the operation or maintenance of a system
of records or a portion of a system of records by a contractor, the
record system or the portion of the record system affected are
considered to be maintained by DLA and are subject to this part. The
activity concerned is responsible for applying the requirements of this
part to the contractor. The contractor and its employees are to be
considered employees of DLA for purposes of the sanction provisions of
the Privacy Act during the performance of the contract. See the Federal
Acquisition Regulation (FAR), section 24.000 (48 CFR chapter 1).
(j) System Notices. (1) A notice of the existence of each system of
records must be published in the Federal Register. While system notices
are not subject to formal rulemaking procedures, advance public notice
must be given before an activity may begin to collect personal
information or use a new system of records. The notice procedures
require that:
(i) The system notice describes the contents of the record system and
the routine uses for which the information in the system may be
released.
(ii) The public be given 30 days to comment on any proposed routine
uses before implementation.
(iii) The notice contains the date on which the system will become
effective.
(2) Appendix A of this part discusses the specific elements required
in a system notice. DLAH 5400.1 /4/ contains systems notices published
by DLA.
(3) In addition to system notices, reports are required for new and
altered systems of records. The criteria of these reports are outlined
in appendixes B and C of this part. No report is required for
amendments to existing systems which do not meet the criteria for
altered record systems.
(4) System managers shall evaluate the information to be included in
each new system before establishing the system and evaluate periodically
the information contained in each existing system of records for
relevancy and necessity. Such a review will also occur when a system
notice amendment or alteration is prepared. Consider the following:
(i) The relationship of each item of information retained and
collected to the purpose for which the system is maintained.
(ii) The specific impact on the purpose or mission of not collecting
each category of information contained in the system.
(iii) The possibility of meeting the informational requirements
through use of information not individually identifiable or through
other techniques, such as sampling.
(iv) The length of time each item of personal information must be
retained.
(v) The cost of maintaining the information.
(vi) The necessity and relevancy of the information to the purpose
for which it was collected.
(5) Systems notices and reports of new and altered systems will be
submitted to DLA-XA as required.
(k) Exemptions. The Director, DLA will designate the DLA records
which are to be exempted from certain provisions of the Privacy Act.
DLA-XA will publish in the Federal Register information specifying the
name of each designated system, the specific provisions of the Privacy
Act from which each system is to be exempted, the reasons for each
exemption, and the reason for each exemption of the record system.
(1) General Exemptions. To qualify for a general exemption, as
defined in the Privacy Act, the system of records must be maintained by
a system manager who performs as his/her principal function any activity
pertaining to the enforcement of criminal laws, including police efforts
to prevent, control, or reduce crime or to apprehend criminals, and the
activities or prosecutors, courts, correctional, probation, pardon, or
parole authorities. Such system of records must consist of:
(i) Information compiled for the purpose of identifying individual
criminal offenders and alleged offenders and containing only identifying
data and notations or arrests, the nature and disposition of criminal
charges, sentencing, confinement, release, and parole, and probation
status.
(ii) Information compiled for the purpose of a criminal
investigation, including reports of informants and investigators, and
associated with an identifiable individual.
(iii) Reports identifiable to an individual compiled at any stage of
the process of enforcement of the criminal laws from arrest or
indictment through release from supervision.
(2) Specific exemption. To qualify for a specfic exemption, as
defined by the Privacy Act, the systems of records must be:
(i) Specifically authorized under criteria established by an
Executive Order to be kept classified in the interest of national
defense or foreign policy and are in fact properly classified pursuant
to such Executive Order.
(ii) Investigatory material compiled for law enforcement purposes
other than material covered under a general exemption. However, an
individual will not be denied access to information which has been used
to deny him/her a right or privilege unless disclosure would reveal a
source who furnished information to the Government under a promise that
the identity of the source would be held in confidence. For
investigations made after September 27, 1975, the identity of the source
may be treated as confidential only if based on the expressed guarantee
that the identity would not be revealed.
(iii) Maintained in connection with providing protective services to
the President of the United States or other individuals protected
pursuant to 18 U.S.C. 3056.
(iv) Used only to generate aggregate statistical data or for other
similarly evaluative or analytic purposes, and which are not used to
make decisions on the rights, benefits, or entitlements of individuals
except for the disclosure of a census record permitted by 13 U.S.C. 8.
(v) 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 that the disclosure of
such material would reveal the identity of a source who furnished
information to the Government under an express promise that the source
would be held in confidence, or prior to September 27 1975, under an
implied promise that the identity of the source would be held in
confidence.
(vi) Testing or examination material used solely to determine
individual qualifications for appointment or promotion in the Federal
service, the disclosure of which would compromise the objectivity or
fairness of the testing or elimination process.
(vii) Evaluation material used to determine potential for promotion
in the Military Services, but only the extent that the disclosure of
such material would reveal the identity of a source who furnished
information to the Government under an express promise that the identity
of the source would be held in confidence or prior to September 27,
1975, under an implied promise that the identity of the source would be
held in confidence. System managers will specify those categories of
individuals for whom pledges of confidentiality may be made when
obtaining information on an individual's suitability for promotion.
(viii) Exemption rules for DLA systems of records are published in
appendix H of this part.
(l) Matching Program Procedures. The OMB has issued special
guidelines to be followed in programs that match the personal records in
the computerized data bases of two or more Federal agencies by computer
(see appendix E). These guidelines are intended to strike a balance
between the interest of the Government in maintaining the integrity of
Federal programs and the need to protect individual privacy
expectations. They do not authorize matching programs as such and each
matching program must be justified individually in accordance with the
OMB guidelines.
(1) Forward all requests for matching programs to include necessary
routine use amendments and analysis and proposed matching program
reports to DLA-XA. Changes to existing matching programs shall be
processed in the same manner as a new matching program report.
(2) No time limits are set by the OMB guidelines. However, in order
to establish a new routine use for a matching program, the amended
system notice must have been published in the Federal Register at least
30 days before implementation. Submit the documentation required above
to DLA-XA at least 60 days before the proposed initiation date of the
matching program. Waivers to the 60 days' deadline may be granted for
good cause shown. Requests for waivers will be in writing a fully
justified.
(3) For the purpose of the OMB guidelines, DoD and all DoD Components
are considered a single agency. Before initiating a matching program
using only the records of two or more DoD activities, notify DLA-XA that
the match is to occur. Further information may be requested from the
activity proposing the match.
(4) System managers shall review annually each system of records to
determine if records from the system are being used in matching programs
and whether the OMB Guidelines have been complied with.
/1/ Copies may be obtained, if needed, from the Defense Logistics
Agency, ATTN: DLA-XP, Cameron Station, Alexandria, VA 22304.
/2/ Copies may be obtained, if needed, from the Defense Logistics
Agency, ATTN: DLA-XP, Cameron Station, Alexandria, VA 22304.
/3/ Copies may be obtained, if needed, from the Defense Logistics
Agency, ATTN: DLA-XP, Cameron Station, Alexandria, VA 22304.
/4/ Copies may be obtained, if needed, from the Defense Logistics
Agency, ATTN: DLA-XP, Cameron Station, Alexandria, VA 22304.
32 CFR 323.6 Forms and reports.
DLA activities may be required to provide data under reporting
requirements established by the Defense Privacy Office and DLA-XA. Any
report established shall be assigned Report Control Symbol DD-COMP(A)
1379.
32 CFR 323.6 Appendix A to Part 323 -- Instructions for Preparation of System Notices
32 CFR 323.6 Pt. 323, App. A
A. System identification. See DLAH 5400.1. /5/
B. System name. The name of the system reasonably identifies the
general purpose of the system and, if possible, the general categories
of individuals involved. Use acronyms only parenthetically following
the title or any portion thereof, such as, ''Joint Uniform Military Pay
System (JUMPS).'' Do not use acronyms that are not commonly known unless
they are preceded by an explanation. The system name may not exceed 55
character positions including punctuation and spacing.
C. System location 1. For systems maintained in a single location
provided the exact office name, organizational identity, and address or
routing symbol. For geographically or organizationally decentralized
systems, specify each level of organization or element that maintains a
segment of the system. For automated data systems with a central
computer facility and input/output terminals at several geographically
separated location, list each location by category.
2. When multiple locations are identified by type of organization,
the system location may indicate that official mailing addresses are
contained in an address directory published as an appendix to DLAH
5400.1. /6/ DLA-XA will obtain information concerning format
requirements for preparation of an address directory from the 1st
Information Systems Group (1ISG), Room 3A-1066, The Pentagon,
Washington, DC 20330-6345.
3. If no address directory is used or the addresses in the directory
are incomplete, the address of each location where a segment of the
record system is maintained must appear under the ''System Location''
caption. Classified addresses are not listed, but the fact that they
are classified is indicated. Use the standard U.S. Postal Service two
letter state abbreviation symbols and zip codes for all domestic
addresses.
D. Categories of individuals covered by the system. Set forth the
specific categories of individuals to whom records in the system pertain
in clear, easily understood, nontechnical terms. Avoid the use of broad
over-general descriptions, such as ''all DLA personnel'' or ''all
civilian personnel'' unless this actually reflects the category of
individuals involved.
E. Categories of records in the system. Describe in clear,
nontechnical terms the types of records maintained in the system. Only
documents actually retained in the system of records will be described,
not source documents that are used only to collect data and the
destroyed.
F. Authority for maintenance of the system. 1. Cite the specific
provisions of the Federal statute or Executive Order that authorizes the
maintenance of the system. Include with citations for statutes the
popular names, when appropriate (for example, title 51, United States
Code, section 2103, ''Tea-Tasters Licensing Act''), and for Executive
Orders, the official title (for example, Executive Order 9397,
''Numbering System for Federal Accounts Relative to Individual
Persons'').
2. For administrative housekeeping records, cite the directive
establishing DLA as well as the Secretary of Defense authority to issue
the directive. For example, ''Pursuant to the authority contained in
the National Security Act of 1947, as amended (10 U.S.C. 133d), the
Secretary of Defense has issued DoD Directive 5105.22 (32 CFR part 359),
Defense Logistics Agency (DLA), the charter of the Defense Logistics
Agency (DLA) as a separate agency of the Department of Defense under his
control. Therein, the Director, DLA, is charged with the responsibility
of maintaining all necessary and appropriate records.''
G. Purpose or purposes. List the specific purposes for maintaining
the system of records by the activity. Include the use made of the
information within DLA and the Department of Defense (so-called
''internal routine uses'').
H. Routine uses. 1. The blanket routine uses that appear in DLAH
5400.1 /7/ apply to all systems notices unless the individual system
notice specifically states that one or more of them do not apply to the
system. For all other routine uses, when practical, list the specific
activity to which the record may be released, to include any routine
automated system interface (for example, ''to the Department of Justice,
Civil Rights Compliance Division,'' ''to the Veterans Administration,
Office of Disability Benefits,'' or ''to state and local health
agencies'').
2. For each routine use identified, include a statement as to the
purpose or purposes for which the record is to be released to the
activity. Do not use general statements, such as, ''to other Federal
agencies as required'' and ''to any other appropriate Federal agency.''
I. Policies and practices for storing, retiring, accessing,
retaining, and disposing of records. This caption is subdivided into
four parts:
1. Storage. Indicate the medium in which the records are maintained.
(For example, a system may be ''automated, maintained on magnetic tapes
or disks,'' ''manual, maintained in paper files,'' or ''hybrid,
maintained in a combination of paper and automated form.'') Storage does
not refer to the container or facility in which the records are kept.
2. Retrievability. Specify how the records are retrieved (for
example, name and SSN, name, SSN) and indicate whether a manual or
computerized index is required to retrieve individual records.
3. Safeguards. List the categories of DLA personnel having immediate
access and these responsible for safeguards (such as storage in safes,
vaults, locked cabinets or rooms, use of guards, visitors registers,
personnel screening, or computer ''fail-safe'' systems software). Do
not describe safeguards in such detail as to compromise system security.
4. Retention and disposal. Indicate how long the record is retained.
When appropriate, state the length of time the records are maintained
by the activity, when they are transferred to a Federal Records Center,
length of retention at the Records Center and when they are transferred
to the National Archives or are destroyed. A reference to DLAM 5015.1,
/8/ Files Maintenance and Disposition, or other issuances without
further detailed information is insufficient.
J. System manager or managers and address. 1. List the title and
address of the official responsible for the management of the system.
If the title of the specific official is unknown, such as for a local
system, specify the local commander or office head as the systems
manager.
2. For geographically separated or ogranizationally decentralized
activities for which individuals may deal directly with officials at
each location in exercising their rights, list the position or duty
title of each category of officials responsible for the system or a
segment thereof.
3. Do not include business or duty addresses if they are listed in
DLAH 5400.1.
K. Notification procedures. 1. If the record system has been
exempted from subsection (e)(4)(G) the Privacy Act, so indicate.
2. For all nonexempt systems, describe how an individual may
determine if there are records pertaining to him or her in the system.
The procedural rules may be cited, but include a brief procedural
description of the needed data. Provide sufficient information in the
notice to allow an individual to exercise his or her rights without
referrals to this part.
3. As a minimum, the caption will include:
a. The official title (normally the system manager) and official
address to which request is to be directed.
b. The specific information required to determine if there is a
record of the individual in the system.
c. Identification of the offices through which the individual may
obtain access.
d. A description of any proof of identity required.
4. When appropriate, the individual may be referred to an activity
official who shall provide this data to him or her.
L. Record access procedures. 1. If the record system has been
exempted from subsection (e)(4)(H) of the Privacy Act, so indicate.
2. For all nonexempt record systems, describe the procedures under
which individuals may obtain access to the record pertaining to them in
the system. When appropriate, the individual may be referred to the
system manager or activity official to obtain access procedures. Do not
repeat the addresses listed in DLAH 5400.1, but refer the individual to
that directory.
M. Contesting record procedures. 1. If the record system has been
exempted from subsection (e)(4)(H) of the Privacy Act, so indicate.
2. For all nonexempt systems of records, state briefly how an
individual may contest the content of a record pertaining to him or her
in the system. The detailed procedures for contesting record accuracy,
refusal of access or amendment, or initial review and appeal need not be
included if they are readily available elsewhere and can be referred to
by the public. (For example, ''The Defense Logistics Agency rules for
contesting contents and for appealing initial determinations are
contained in 32 CFR part.'') (DLAR 5400.21).
3. The individual may also be referred to the system manager to
determine these procedures.
N. Record source categories. 1. If the record system has been
exempted from subsection (e)(4)(I) of the Privacy Act, so indicate.
2. For all nonexempt systems of records, list the sources of the
information in the system. Specific individuals or institutions need
not be identified by name, particularly if these sources have been
granted confidentiality.
O. System exempted from certain provisions of the Privacy Act. 1.
If no exemption has been claimed for the system, indicate ''None.''
2. If there is an exemption claimed, indicate specifically under
which subsection of the Privacy Act is is claimed. Cite the regulation
and CFR section containing the exemption rule for the system. (For
example, ''Parts of this record system may be exempt under title 5,
United States Code, sections 552a(k)2. and (5), as applicable. See
exemption rules contained in 32 CFR part 323.'') (DLAR 5400.21).
(DLAR 5400.21, 51 FR 33595, Sept. 22, 1986. Redesignated and amended
at 56 FR 57803, Nov. 14, 1991)
/5/ Copies may be obtained, if needed, from the Defense Logistics
Agency, ATTN: DLA-XP, Cameron Station, Alexandria, VA 22304.
/6/ Copies may be obtained, if needed, from the Defense Logistics
Agency, ATTN: DLA-XP, Cameron Station, Alexandria, VA 22304.
/7/ Copies may be obtained, if needed, from the Defense Logistics
Agency, ATTN: DLA-XP, Cameron Station, Alexandria, VA 22304.
/8/ Copies may be obtained, if needed, from the Defense Logistics
Agency, ATTN: DLA-XP, Cameron Station, Alexandria, VA 22304.
32 CFR 323.6 Appendix B to Part 323 -- Criteria for New and Altered Record Systems
32 CFR 323.6 Pt. 323, App. B
A. Criteria for a new record system. A new system of records is one
for which there has been no system notice published in the Federal
Register. If a notice for a system, of records has been canceled or
deleted, before reinstating or reusing the system, a new system notice
must be published in the Federal Register.
B. Criteria for an altered record system. A system is considered
altered whenever one of the following actions occurs or is proposed:
1. A significant increase or change in the number or type of
indiviudals about whom records are maintained.
a. Only changes that alter significantly the character and purpose of
the records system are considered alterations.
b. Increases in numbers of individuals due to normal growth are not
considered alterations unless they truly alter the character and purpose
of the system.
c. Increases that change significantly the scope of population
covered (for example, expansion of a system of records covering a single
PLFA's enlisted personnel to include all of DLA enlisted personnel would
be considered an alteration).
d. A reduction in the number of individual covered is not an
alteration, but only an amendment.
e. All changes that add new categories of individuals to system
coverage require a change to the ''Categories of individuals covered by
the system'' caption of the notice and may require changes to the
''Purpose(s)'' caption.
2. An expansion in the types or categories of information maintained.
a. The addition of any new category of records not described under
the ''Categories of Records in System'' caption is considered an
alteration.
b. Adding a new data element which is clearly within the scope of the
categories of records described in the existing notice is an amendment.
c. All changes under this criterion require a change to the
''Categories of Records in System'' caption of the notice.
3. An alteration in the manner in which the records are organized or
the manner in which the records are indexed and retrieved.
a. The change must alter the nature of use or scope of the records
involved (for example, combining records systems in a reorganization).
b. Any change under this critera requires a change in the
''Retrievability'' caption of the system notice.
c. If the records are no longer retrieved by name or personal
identifier, cancel the system notice.
4. A change in the purpose for which the information in the system is
used.
a. The new purpose must not be compatible with the existing purposes
for which the system is maintained or a use that would not reasonably be
expected to be an alteration.
b. If the use is compatible and reasonably expected, there is no
change in purpose and no alteration occurs.
c. Any change under this criterion requires a change in the
''Purpose(s)'' caption and may require a change in the ''Authority for
maintenance of the system'' caption.
5. Changes that alter the computer environment (such as changes to
equipment configuration, software, or procedures) so as to create the
potential for greater or easier access.
a. Increasing the number of offices with direct access is an
alteration.
b. Software releases, such as operating systems and system utilities
that provide for easier access are considered alterations.
c. The addition of an on-line capability to a previously
batch-oriented system is an alteration.
d. The addition of peripheral devices such as tape devices, disk
devices, card readers, printers, and similar devices to an existing ADP
system constitute an amendment if system security is preserved.
e. Changes to existing equipment configuration with on-line
capability need not be considered alterations to the system if:
(1) The change does not alter the present security posture.
(2) The addition of terminals does not extend the capacity of the
current operating system and existing security is preserved.
f. The connecting of two or more formerly independent automated
systems or networks together creating a potential for greater access is
an alteration.
g. Any change under this caption requires a change to the ''Storage''
caption element of the systems notice.
C. Reports of new and altered systems. Submit a report of a new or
altered system to DLA-XA before collecting information and for using a
new system or altering an existing system.
D. Time restrictions on the operation of a new or altered system. 1.
All time periods begin from the date OSD signs the transmittal letters
on the reports to OMB and Congress. The specific time limits are:
a. Sixty days must elapse before collection forms or fomal
instructions pertaining to the system may be issued.
b. Sixty days must elapse before the system may become operational.
c. Sixty days must elapse before any public issuance of a Request for
Proposal or Invitation to Bid for a new ADP or telecommunication system.
Note: Requests for delegation of procurement authority may be
submitted to the General Services Administration during the 60 days'
waiting period, but these will include language that the Privacy Act
reporting criteria have been reviewed and that a system report is
required for such procurement.
d. Normally 30 days must elapse before publication in the Federal
Register of the notice of a new or altered system and the preamble to
the Federal Register notice must reflect the date the transmittal
letters to OMB and Congress were signed by OSD.
2. Do not operate a system of records until the waiting periods have
expired.
E. Outside review of new and altered systems reports. If no
objections are received within 30 days of a submission to the President
of the Senate, Speaker of the House of Representatives, and the
Director, OMB, of a new or altered system report, it is presumed that
the new or altered systems have been approved as submitted.
F. Waiver of time restrictions. 1. The OMB may authorize a Federal
agency to begin operation of a system of records before the expiration
of time limits described above. When seeking such a waiver, include in
the letter of transmittal to DLA-XA an explanation why a delay of 60
days in establishing the system of records would not be in the public
interest. The transmittal must include:
a. How the public interest will be affected adversely if the
established time limits are followed.
b. Why earlier notice was not provided.
2. Under no circumstances will the routine uses for a new or altered
system be implemented before 30 days have elapsed after publication of
the system notice containing the routine uses in the Federal Register.
This period cannot be waived.
32 CFR 323.6 Appendix C to Part 323 -- Instructions for Preparation of Reports to New or Altered Systems
32 CFR 323.6 Pt. 323, App. C
The report on a new or altered system will consist of a transmittal
letter, a narrative statement, and include supporting documentation.
A. Transmittal Letter. The transmittal letter shall include any
request for waivers. The narrative statement will be attached.
B. Narrative Statement. The narrative statement is typed in double
space on standard bond paper. The statement includes:
1. System identification and name. This caption sets forth the
identification and name of the system.
2. Responsible official. The name, title, address, and telephone
number of the official responsible for the report and to whom inquiries
and comments about the report may be directed by Congress, the Office of
Management and Budget, or Defense Privacy Office.
3. Purpose of the system or nature of the change proposed. Describe
the purpose of the new system. For an altered system, describe the
nature of the change being proposed.
4. Authority for the system. See enclosure 1 of this part.
5. Number of individuals. The approximate number of individuals
about whom records are to be maintained.
6. Information on First Amendment activities. Describe any
information to be kept on the exercise of the individual's First
Amendment rights and the basis for maintaining it.
7. Measures to ensure information accuracy. If the system is to be
used to make determinations about the rights, benefits, or entitlements
of individuals, describe the measures being established to ensure the
accuracy, currency, relevance, and completeness of the information used
for these purposes.
8. Other measures to ensure system security. Describe the steps
taken to minimize the risk of unauthorized access to the system. A more
detailed assessment of security risks and specific administrative,
technical, and physical safeguards will be available for review upon
request.
9. Relationship to state and local government activities. Describe
the relationship of the system to state or local government activities
that are the sources, recipients, or users of the information in the
system.
C. Supporting Documentation. Item 10 of the narrative is captioned
Supporting Documents. A positive statement for this caption is
essential for those enclosures that are not required to be enclosed.
For example, ''No changes to the existing DLA procedural or exemption
rules (32 CFR part 323) are required for this proposed system.'' List in
numerical sequence only those enclosures that are actually furnished.
The following are typical enclosures that may be required:
1. For a new system, an advance copy of the system notice which is
proposed for publication; for an altered system an advance copy of the
notice reflecting the specific changes proposed.
2. An advance copy of any proposed exemption rule if the new or
altered system is to be exempted. If there is no exemption, so state in
the narrative.
3. Any other supporting documentation that may be pertinent or
helpful in understanding the need for the system or clarifying its
intended use. While not required, such documentation, when available,
is helpful in evaluating the new or altered system.
(DLAR 5400.21, 51 FR 33595, Sept. 22, 1986. Redesignated and amended
at 56 FR 57803, Nov. 14, 1991)
32 CFR 323.6 Appendix D to Part 323 -- Word Processing Center (WPC) Safeguards
32 CFR 323.6 Pt. 323, App. D
A. Minimum Standards of Protection. All personal data processed
using word processing equipment will be afforded the standards of
protection required by this regulation. The special considerations
discussed in this enclosure are primarily for Word Processing Centers
(WPCs) operating independent of the customer's function. However,
managers of word processing systems are encouraged to consider and
adopt, when appropriate, the special considerations described. WPCs
that are not independent of a customer's function are not required to
prepare formal written risk assessments.
B. WPC Information Flow. In analyzing procedures required to
safeguard adequately personal information in a WPC, the basic elements
of WPC information flow and control must be considered. These are:
Information receipt, information processing, information return,
information storage and filing. WPCs do not control information
acquisition or its ultimate use by the customers and, therefore, these
are not addressed.
C. Safeguarding Information During Receipt. 1. The word processing
manager will establish procedures:
a. That require each customer who requests that information subject
to this DLAR be processed to identify specifically that information to
the WPC personnel. This may be done by:
(1) Providing a check-off type entry on the WPC work requests.
(2) Requiring that the WPC work requests be stamped with a special
legend, or that a special notation be made on the work requests.
(3) Predesignating specifically a class of documents as coming within
the provisions of this DLAR (such as, all officer effectiveness reports,
all recall rosters, and all medical protocols).
(4) Using a special cover sheet both to alert the WPC personnel as to
the type information, and to protect the document during transmittal.
(5) Requiring an oral warning on all dictation.
(6) Any other procedures that ensure the WPC personnel are alerted to
the fact that personal data subject to this DLAR is to be processed.
b. To ensure that the operators or other WPC personnel who receive
data for processing not identified as being under the provisions of this
DLAR, but that appear to be personal, promptly call the information to
the attention of the WPC supervisor or the customer.
c. To ensure that any request for the processing of personal data
which the customer has not identified as being in a system of record,
and that appears to meet the criteria set forth in this regulation, is
called to the attention of the appropriate supervisory personnel and
system manager.
2. The WPC supervisor will ensure that personal information is not
inadvertently compromised within the WPC.
D. Safeguarding Information During Processing. 1. Each WPC
supervisor will establish internal safeguards that will protect personal
data from compromise while it is being processed.
2. Physical safeguards may include:
a. Controls on individual access to the center.
b. Machine configurations that reduce external access to the
information being processed, or arrangements that alert the operator to
the presence of others.
c. Using certain specific machines to process personnal data.
d. Any other physical safeguards, to include special technical
arrangements that will protect the data during processing.
3. Other safeguards may include:
a. Using only certain selected operators to process personal data.
b. Processing personal data only at certain times during the day
without the WPC manager's specific authorization.
c. Using only certain tapes or diskettes to process and store
personal data.
d. Using continuous tapes for dictation of personal data.
e. Requiring all WPC copies of documents to be marked specifically so
as to prevent inadvertent compromise.
f. Returing extra copies and mistakes to the customer with the
product.
g. Disposing of waste containing personal data in a special manner.
h. Any other local procedures that provide adequate protection to the
data being processed.
E. Safeguarding Information During Return. The WPC shall protect the
data until it is returned to the customer or is placed into a formal
distribution channel. In conjunction with the appropriate
administrative support personnel and the WPC customers, the WPC manager
will establish procedures that protect the information from the time
word processing is completed until it is returned to the customer.
Safeguarding procedures may include:
1. Releasing products only to specifically identified individuals.
2. Using sealed envelopes to transmit products to the customer.
3. Using special cover sheets to protect products similar to the one
discussed in above.
4. Hand-carrying products to the customers.
5. Using special messengers to return the products.
6. Any other procedures that adequately protect products from
compromise while they are awaiting return or being returned to the
customer.
F. Safeguards During Storage. The WPC manager shall ensure that all
personal data retained in the center for any purpose (including samples)
are protected properly. Safeguarding procedures may include:
1. Marking will hard copies retained with special legends or
designators.
2. Storing media containing personal data in separate files or areas.
3. Marking the storage containers for media containing personal data
with special legends or notations.
4. Restricting the reuse of media used to process personal data or
erasing the media before reuse.
5. Establishing special criteria for the WPC retention of media used
to store and process personal data.
6. Returning the media to the customer for retention with the file
copies of the finished products.
7. Discouraging, when practical, the long-term storage of personnal
data in any form within the WPC.
8. Any other filing or storage procedures that safeguard adequately
any personal information retained or filed within the WPC.
G. Risk Assessment for WPCs. 1. Each WPC manager will ensure that a
formal, written risk assessment is prepared for each WPC that processes
personal information subject to this regulation. The assessment will
address the areas discussed in this enclosure, as well as any special
risks that the WPC location, configuration, or organization may present
to the compromise or alteration of personal data being processed or
stored.
2. A risk assessment will be conducted at least every 5 years or
whenever there is a change of equipment, equipment configuration, WPC
location, WPC configuration or modification of the WPC facilities that
either increases or decreases the likelihood or compromise of personal
data.
3. Copies of the risk assessment will be retained by the WPC manager
and made available to appropriate inspectors, as well as to personnel
studying equipment for facility upgrading of personal data.
H. Special Considerations in WPC Design and Modification. Procedures
will be established to ensure that all personnel involved in the design
of WPCs or the acquisition of word processing equipment are aware of the
special considerations required when processing personal data subject to
this DLAR.
32 CFR 323.6 Appendix E to Part 323 -- OMB Guidelines for Matching Programs
32 CFR 323.6 Pt. 323, App. E
A. Purpose. These guidelines supplement and will be used in
conjunction with OMB Guidelines on the Administration of the Privacy Act
of 1974, issued on July 1, 1975, and supplemented on November 21, 1975.
They replace earlier guidance on conducting computerized matching
programs issued on March 30, 1979. They are intended to help agencies
relate the procedural requirements of the Privacy Act to the operational
requirements of computerized matching. They are designed to address the
concern expressed by the Congress in the Privacy Act of 1974 that ''the
increasing use of computers and sophisticated information technology,
while essential to the efficient operation of the Government, has
greatly magnified the harm to individual privacy that can occur from any
collection, maintenance, use, or dissemination of personal
information.'' These guidelines do not authorize activities that are not
permitted by law, nor do they prohibit activities expressly required to
be performed by law. Complying with these guidelines, however, does not
relieve a Federal agency of the obligation to comply with the provisions
of the Privacy Act, including any provisions not cited in these
guidelines.
B. Scope. These guidelines apply to all agencies subject to the
Privacy Act of 1974 (5 U.S.C. 552a) and to all matching programs:
1. Performed by a Federal agency, whether the personal records used
in the match are Federal or nonfederal.
2. For which a Federal agency discloses any personal records for use
in a matching program performed by any other Federal agency or any
nonfederal organization.
C. Effective Date. These guidelines were effective on May 11, 1982.
D. Definitions. For the purpose of the Guidelines, all the terms
defined in the Privacy Act of 1974 apply.
1. Personal Record. Any information pertaining to an individual that
is stored in an automated system of records; for example, a data base
which contains information about individuals that is retrieved by name
or some other personal identifier.
2. Matching Program. A procedure in which a computer is used to
compare two or more automated systems of records or a system of records
with a set of nonfederal records to find individuals who are common to
more than one system or set. The procedure includes all of the steps
associated with the match, including obtaining the records to be
matched, actual use of the computer, administrative and investigative
action on the hits, and disposition of the personal records maintained
in connection with the match. It should be noted that a single matching
program may involve several matches among a number of participants.
Watching programs do not include the following:
a. Matches which compare a substantial number of records, such as,
comparison of the Department of Education's defaulted student loan data
base with the Office of Personnel Management's Federal employee data
base would be covered; comparison of six individual student loan
defaultees with the OPM file would not be covered.
b. Checks on specific individuals to verify data in an application
for benefits done reasonably soon after the application is received.
c. Checks on specific individuals based on information which raises
questions about an individual's eligibility for benefits or payments
done reasonably soon after the information is received.
d. Matches done to produce aggregate statistical data without any
personal identifiers.
e. Matches done to support any research or statistical project when
the specfic data are not to be used to make decisions about the rights,
benefits, or privileges of specific individuals.
f. Matches done by an agency using its own records.
3. Matching Agency. The Federal agency which actually performs the
match.
4. Source Agency. The Federal agency which discloses records from a
system of records to be used in the match. Note that in some
circumstances a source agency may be the instigator and ultimate
beneficiary of the matching program, as when an agency lacking computer
resources uses another agency to perform the match. The disclosure of
records to the matching agency and any later disclosure of ''hits'' (by
either the matching or the source agencies) must be done in accordance
with the provisions of paragraph (b) of the Privacy Act.
5. Hit. The identification, through a matching program, of a specific
individual.
E. Guidelines for Agencies Participating in Matching Programs.
Agencies should acquire and disclose matching records and conduct
matching programs in accordance with the provisions of this section and
the Privacy Act.
1. Disclosing Personal Records for Matching Programs --
a. To another Federal agency. Source agencies are responsible for
determining whether or not to disclose personal records from their
systems and for making sure they meet the necessary Privacy Act
disclosure provisions when they do. Among the factors source agencies
should consider are:
(1) Legal authority for the match.
(2) Purpose and description of the match.
(3) Description of the records to be matched.
(4) Whether the record subjects have consented to the match; or
whether disclosure of records for the match would be compatible with the
purpose for which the records were originally collected; that is,
whether disclosure under a ''routine use'' would be appropriate;
whether the soliciting agency is seeking the records for a legitimate
law enforcement activity -- whichever is appropriate; or any other
provision of the Privacy Act under which disclosure may be made.
(5) Description of additional information which may be subsequently
disclosed in relation to ''hits.''
(6) Subsequent actions expected of the source (for example,
verification of the identity of the ''hits'' or followup with
individuals who are ''hits'').
(7) Safeguards to be afforded the records involved, including
disposition.
b. If the agency is satisfied that disclosure of the records would
not violate its responsibilities under the Privacy Act, it may proceed
to make the disclosure to the matching agency. It should ensure that
only the minimum information necessary to conduct the match is provided.
If disclosure is to be made pursuant to a ''routine use'' (Section b.3.
of the Privacy Act), it should ensure that the system of records
contains such a use, or it should publish a routine use notice in the
Federal Register. The agency should also be sure to maintain an
accounting of the disclosure pursuant to Section (c) of the Privacy Act.
c. To a nonfederal entity. Before disclosing records to a nonfederal
entity for a matching program to be carried out by that entity, a source
agency should, in addition to all of the consideration in subparagraph
a, above, also make reasonable efforts, pursuant to Section (e)(6) of
the Privacy Act, to ''assure that such records are accurate, complete,
timely, and relevant for agency purposes.''
2. Written Agreements. Before disclosing to either a Federal or
non-Federal entity, the source agency should require the matching entity
to agree in writing to certain conditions governing the use of the
matching file; for example, that the matching file will remain the
property of the source agency and be returned at the end of the matching
program (or destroyed as appropriate); that the file will be used and
accessed only to match the file or files previously agreed to; that it
will not be used to extract information concerning ''non-hit''
individuals for any purpose, and that it will not be duplicated or
disseminated within or outside the matching agency unless authorized in
writing by the source agency.
3. Performing Matching Programs --
a. Matching agencies should maintain reasonable administrative,
technical, and physical security safeguards on all files involved in the
matching program.
b. Matching agencies should ensure that they have appropriate systems
of records including those containing ''hits,'' and that such systems
and any routine uses have been appropriately notices in the Federal
Register and reported to OMB and the Congress.
4. Disposition of Records --
a. Matching agencies will return or destroy source matching files (by
mutual agreement) immediately after the match.
b. Records relating to this will be kept only so long as an
investigation, either criminal or administrative, is active, and will be
disposed of in accordance with the requirements of the Privacy Act and
the Federal Records Act.
5. Publication Requirements --
a. Agencies, before disclosing records outside the agency, will
publish appropriate ''routine use'' notices in the Federal Register, if
necessary.
b. If the matching program will result in the creation of a new or
the substantial alteration of an existing system of records, the agency
involved should publish the appropriate Federal Register notice and
submit the requisite report to OMB and the Congress pursuant to OMB
Circular No. A-108.
6. Reporting Requirements --
a. As close to the initiation of the matching program as possible,
matching agencies will publish in the Federal Register a brief public
notice describing the matching program. The notice should include:
1. The legal authority under which the match is being conducted.
2. A description of the matching program including whether the
program is one time or continuing, the organizations involved, the
purpose or purposes for which the program is being conducted, and the
procedures to be used in matching and following up on the ''hits.''
3. A complete description of the personal records to be matched,
including the source or sources, system of records identifying data,
date or dates and page number of the most recent Federal Register full
text publication when appropriate.
4. The projected start and ending dates of the program.
5. The security safeguards to be used to protect against unauthorized
access or disclosure of the personal records.
6. Plans for disposition of the source records and ''hits.''
7. Agencies should send a copy of this notice to the Congress and to
OMB at the same time it is sent to the Federal Register.
a. Agencies should report new or altered systems of records as
described in subparagraph 5b, above, as necessary.
b. Agencies should also be prepared to report on matching programs
pursuant to the reporting requirements of either the Privacy Act or the
Paperwork Reduction Act. Reports will be solicited by the Office of
Information and Regulatory Affairs and will focus on both the protection
of individual privacy and Government's effective use of information
technology. Reporting instructions will be disseminated to the agencies
as part of either the reports required by paragraph (p) of the Privacy
Act, or section 3514 of Pub. L. 96-511.
8. Use of Contractors. Matching programs should, as far as
practicable, be conducted ''in-house'' by Federal agencies using agency
personnel, rather than by contract. When contractors are used:
a. The matching agency should, consistent with paragraph (m) of the
Privacy Act, cause the requirements of that Privacy Act to be applied to
the contractor's performance of the matching program. The contract
should include the Privacy Act clause required by Federal Personnel
Regulation Amendment 155 (41 CFR 1-1.337-5).
b. The terms of the contract should include appropriate privacy and
security provisions consistent with policies, regulations, standards,
and guidelines issued by OMB, GSA, and the Department of Commerce.
c. The terms of the contract should preclude the contractor from
using, disclosing, copying, or retaining records associated with the
matching program for the contractor's own use.
d. Contractor personnel involved in the matching program shall be
made explicitly aware of their obligations under the Privacy Act and of
these guidelines, agency rules, and any special safegurds in relation to
each specific match performed.
e. Any disclosures of records by the agency to the contractor should
be made pursuant to a ''routine use'' (5 U.S.C. 552a(b)(3)).
F. Implementation and Oversight. OMB will oversee the implementation
of these guidelines and will interpret and advise upon agency proposals
and actions within their scope, consistent with section 6 of the Privacy
Act.
32 CFR 323.6 Appendix F to Part 323 -- Litigation Status Sheet
32 CFR 323.6 Pt. 323, App. F
1. Case Number. /1/
2. Requester.
3. Document Title or Description. /2/
4. Litigation.
a. Date Complaint Filed.
b. Court.
c. Case File Number. /1/
5. Defendants (DoD Component and individual).
6. Remarks (brief explanation of what the case is about).
7. Court Action.
a. Court's Finding.
b. Disciplinary Action (as appropriate).
8. Appeal (as appropriate).
a. Date Complaint File.
b. Court.
c. Case File Number. /1/
d. Court's Finding.
e. Disciplinary Action (as appropriate).
/1/ Number used by the Component for reference purposes.
/2/ Indicate the nature of the case, such as ''Denial of access,''
''Refusal to amend,'' ''Incorrect records,'' or other violations of the
Act (specify).
32 CFR 323.6 Appendix G to Part 323 -- Privacy Act Enforcement Actions
32 CFR 323.6 Pt. 323, App. G
A. Administrative Remedies. Any individual who feels he or she has a
legitimate complaint or grievance against the Defense Logistics Agency
or any DLA employee concerning any right granted by this DLAR will be
permitted to seek relief through appropriate administrative channels.
B. Civil Actions. An individual may file a civil suit against DLA or
its employees if the individual feels certain provisions of the Privacy
Act have been violated (see 5 U.S.C. 552a(g), reference (b).)
C. Civil Remedies. In addition to specific remedial actions, the
Privacy Act provides for the payment of damages, court cost, and
attorney fees in some cases.
D. Criminal Penalties --
1. The Privacy Act also provides for criminal penalties (see 5 U.S.C.
552a(1).) Any official or employee may be found guilty of a misdemeanor
and fined not more than $5,000 if he or she willfully discloses personal
information to anyone not entitled to receive the information, or
maintains a system of records without publishing the required public
notice in the Federal Register.
2. A person who requests or obtains access to any record concerning
another individual under false pretenses may be found guilty of a
misdemeanor and fined up to $5,000.
32 CFR 323.6 Appendix H to Part 323 -- DLA Exemption Rules
32 CFR 323.6 Pt. 323, App. H
Exempted Records Systems. All systems of records maintained by the
Defense Logistics Agency will 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 12356, and which is required by the Executive Order to be kept
secret in the interest of national defense or foreign policy. This
exemption, which may be applicable to parts of all systems of records,
is necessary because certain record systems not otherwise specifically
designated for exemptions herein may contain isolated items of
information which have been properly classified.
1. System name: Personnel Security Files.
2. Exemption: This system of records is exempted from the following
provisions of title 5, United States Code, section 552a: (c)(3); (d);
and (e)(1).
3. Authority: 5 U.S.C. 552a(k)(2).
4. Reasons: The investigatory reports are used by appropriate
Security Officers and Commanders or other designated officials as a
basis for determining a persons's eligibility for access to information
classified in the interests of national defense.
1. System name: Criminal Incident/Investigations File.
2. Exemption: This system of records is exempted from the following
provisions of the Title 5, United States Code, section 552a: (c)(3);
(d); and (e)(1).
3. Authority: 5 U.S.C. 552a(k)(2).
4. Reasons: Granting individuals access to information collected and
maintained by this component relating to the enforcement of criminal
laws could interfere with orderly investigations, with the orderly
administration of justice, and possibly enable suspects to avoid
detection or apprehension. Disclosure of this information could result
in the concealment, destruction or fabrication of evidence and
jeopardize the safety and well being of informants, witnesses and their
families, and law enforcement personnel and their families. Disclosure
of this information could also reveal and render ineffectual
investigative techniques, sources and methods used by this component and
could result in the invasion of privacy of individuals only incidentally
related to an investigation. Investigatory material is exempt to the
extent that the disclosure of such material would reveal the identity of
a source who furnished the information to the Government under an
express promise that the identity of the source would be held in
confidence, or prior to September 27, 1975 under an implied promise that
the identity of the source would be held in confidence. This exemption
will protect the identities of certain sources who would be otherwise
unwilling to provide information to the Government. The exemption of
the individual's right of access to his records and the reasons
therefore necessitate the exemptions of this system of records from the
requirements of the other cited provisions.
(DLAR 5400.21, 51 FR 33595, Sept. 22, 1986. Redesignated at 56 FR
57803, Nov. 14, 1991, and amended at 55 FR 32913, Aug. 13, 1990)
32 CFR 323.6 SUBCHAPTER P -- OBTAINING DOD INFORMATION
32 CFR 323.6 PART 336 -- PUBLICATIONS OF PROPOSED AND ADOPTED
REGULATIONS AFFECTING THE PUBLIC
Sec.
336.1 Purpose.
336.2 Applicability and scope.
336.3 Policy.
336.4 Proposed regulations.
336.5 Publication in the Federal Register of adopted regulations and
other matters.
336.6 Petitions.
336.7 Effective date and implementation.
Authority: 10 U.S.C. 125.
32 CFR 336.1 Purpose.
This part:
(a) Establishes a policy and procedure by which the Department of
Defense will invite the comments of the public on those of its proposed
regulations and other types of rulemaking as described hereafter which
originate within the Department of Defense as a requirement of general
applicability and future effect designed to implement, interpret, or
prescribe law or policy, or practice or procedure requirements of a
component. This requirement applies to those regulations which
constitute the authority for actions having a substantial and direct
impact on the public when consistent with other responsibilities of the
Department for the efficient and responsible conduct of public business.
(b) Implements the provisions of 5 U.S.C. 552 relating to the kinds
of regulations that must be published in the Federal Register after they
are adopted.
(40 FR 4911, Feb. 3, 1975. Redesignated at 56 FR 64482, Dec. 10,
1991)
32 CFR 336.2 Applicability and scope.
(a) The provisions of this part apply to the Office of the Secretary
of Defense, the Military Departments, the Organization of the Joint
Chiefs of Staff, and the Defense Agencies (hereinafter referred to
singularly as a ''DoD component'' or collectively as ''DoD
components'').
(b) These provisions are applicable to those directives,
instructions, regulations, policy memoranda, manuals, and other forms of
rulemaking (hereinafter referred to as ''regulations'') that have a
substantial and direct impact on the public. Only a regulation which
must be published in the Federal Register after its adoption in
accordance with 5 U.S.C. 552 (as implemented in 336.5) comes within the
requirement that it be evaluated to determine whether it will have the
substantial and direct impact on the public that warrants an invitation
for public comment prior to its adoption. An implementation by a
subordinate component of a regulation adopted by a component at a higher
level within the Department of Defense is not deemed to ''originate'' a
requirement of general applicability and future effect, and therefore,
does not fall within the scope of the obligation to invite public
comment on its provisions.
(c) The determination by the component originating a regulation shall
be final and conclusive in determining whether a regulation or a
proposed regulation comes within the purview of this part.
Consideration shall be given, however, to the definition of
''rulemaking'' found in 5 U.S.C. 551 as it relates to the requirements
of 5 U.S.C. 553 in making this determination.
(d) The requirement for inviting public comment on a proposed
regulation shall not be deemed applicable to any proposed regulation
coming within one or more of the following exemptions or exceptions to
the rulemaking procedures set forth in 5 U.S.C. 553.
(1) Any matter pertaining to a military or foreign affairs function
of the United States which has been determined under the criteria of an
Executive Order or statute to require a security classification in the
interests of national defense or foreign policy.
(2) Any matter relating to (i) agency management, (ii) agency
personnel, or (iii) public contracts (e.g., the Armed Services
Procurement Regulation), including nonappropriated fund contracts.
(3) Any matter involving (i) interpretative rules, (ii) general
statements of policy, or (iii) rules of agency organization, procedure,
or practice.
(4) Any situation in which the DoD Component for good cause finds
that inviting public comment on a proposed regulation is (i)
impracticable, (ii) unnecessary, or (iii) contrary to the public
interest, and incorporates in the adopted regulation that determination
and its basis.
(e) Exceptions to the requirement in 5 U.S.C. 552 for publication in
the Federal Register of adopted regulations for the guidance of the
public shall be made in accordance with guidance provided in 32 CFR
286.8.
(40 FR 4911, Feb. 3, 1975. Redesignated at 41 FR 27074, July 1, 1976.
Redesignated and amended at 56 FR 64482, Dec. 10, 1991)
32 CFR 336.3 Policy.
(a) It is the policy of the Department of Defense to encourage the
maximum practicable participation of the public in the formulation of
regulations having a substantial and direct impact on the public, and to
inform the public fully through publication in the Federal Register of
all adopted regulations intended for public guidance.
(b) A proposed regulation which would originate a Department of
Defense policy having a substantial and direct impact on the public
should be published, along with a notice of purpose and authority, in
the Federal Register in order to invite public comment within a
designated time at least 30 days prior to its intended adoption. This
policy should be followed even though the proposed regulation may come
within one or more of the exceptions or exemptions to the requirement
for prepublication of proposed rules described in 336.2(d) (2) (i) and
(ii), (3) and (4), unless it is determined by the DoD Component as a
matter within its sole and exclusive prerogative that the employment of
the exception or exemption is appropriate to satisfy a significant and
legitimate interest of the DoD Component or the public.
(c) After their adoption, all regulations for the guidance of the
public shall be published in the Federal Register in accordance with 5
U.S.C. 552, even though they may come within one or more of the
exemptions described in 32 CFR 286.6. If no significant and legitimate
interest of the DoD Component or public precludes such publication.
This policy extends to some adopted regulations for the guidance of the
public which were not the subject of notice and public comment.
(40 FR 4911, Feb. 3, 1975. Redesignated at 41 FR 27074, July 1, 1976.
Redesignated and amended at 56 FR 64482, Dec. 10, 1991)
32 CFR 336.4 Proposed regulations.
(a) The general notice of a proposed regulation shall be published in
the Federal Register in accordance with the guidance contained in the
''Federal Register Handbook on Document Drafting'' (GSA), whenever that
regulation would have a substantial and direct impact on the public or
any significant portion of the public, unless it comes within one or
more of the exceptions or exemptions previously set forth in 336.2(d).
(b) The notice shall include:
(1) A statement of the purpose and objective of the proposed
regulation;
(2) Reference to the legal authority under which the regulation is
proposed; and
(3) The terms or substance of the proposed regulation.
(c) Whenever the originating DoD Component finds that notice and
prepublication of a proposed regulation for public comment are
impracticable, unnecessary, or contrary to the public interest, it shall
incorporate that finding and a brief statement of its reasons in the
adopted regulation, or it may adopt and publish in the Federal Register
a separate regulation excepting or exempting categories of regulations
for any of these reasons, with an explanation of the basis for excepting
or exempting each particular category. Separate regulations for this
purpose shall be promulgated by the procedures for proposed rules
whenever this falls within the requirements of paragraph (a) of this
section.
(d) Following the publication of notice and the proposed regulation
in the Federal Register, the DoD Component shall give all interested
persons an opportunity to participate in the rulemaking through the
submission of written data, views, or arguments. An opportunity for
oral presentation will normally not be provided, but may as a matter
within the sole and exclusive prerogative of the component be extended
where it is found to be in the interest of the DoD Component or the
public. After careful consideration of all relevant matter presented,
the component shall incorporate in the adopted regulation a concise
general statement of its basis and purpose. A preamble to the adopted
regulation may be published in the Federal Register to explain the
relationship of the adopted rule to the proposed rule, including the
nature and effect of public comments.
(40 FR 4911, Feb. 3, 1975. Redesignated at 41 FR 27074, July 1, 1976.
Redesignated and amended at 56 FR 64482, Dec. 10, 1991)
32 CFR 336.5 Publication in the Federal Register of adopted regulations
and other matters.
Subject to the exemptions set forth in 32 CFR 286.6:
(a) Each DoD Component shall publish in the Federal Register an
informative, current description for the guidance of the public, of
where, how, and by what authority it performs any of its functions. In
deciding which information to publish in the Federal Register a DoD
Component shall consider the fundamental objective of informing all
interested persons of how to deal effectively with the component.
(b) Information to be published in the Federal Register shall
include:
(1) Descriptions of the central and field organization of the
component concerned, and the established places at which, the employees
or members of the armed forces from whom, and the methods whereby the
public may secure information, make submittals or requests, or obtain
decisions.
(2) The procedures by which a DoD Component conducts its business
with the public, both formally and informally.
(3) The rules of procedure which must be followed, the description of
forms which must be completed, or the source from which forms may be
obtained, and instructions on the scope and content of papers, reports,
examinations required to be submitted pursuant to such rules of
procedures, as adopted by the component.
(4) Directives, instructions, regulations, manuals, policy
memorandums, statements of general policy, or interpretation of general
applicability adopted by the agency, and other substantive rules of
general applicability affecting the public.
(c) With the approval of the Director of the Federal Register, the
requirement for publication in the Federal Register (1 CFR part 51, 37
FR 23614, Nov. 4, 1972) may be satisfied by reference in the Federal
Register to other publications reasonably available to the class of
persons affected and containing the information which must otherwise be
published in the Federal Register.
(1) In order to be eligible for incorporation by reference, the
matter must be in the nature of published data, criteria, standards,
specifications, techniques, illustrations, or other published
information reasonably available to members of class affected thereby.
(2) Incorporation by reference is not acceptable as a complete
substitute for promulgating in full text material required to be
published by 5 U.S.C. 552.
(3) Incorporation by reference is acceptable as a means of avoiding
unnecessary repetition within the promulgated document of published
information already reasonably available to the class affected.
Examples include:
(i) Construction standards promulgated by a professional association
or architects, engineers, or builders.
(ii) Code of ethics promulgated by professional organizations.
(iii) Forms and formats publicly or privately published and readily
available to the persons required to use them.
(d) It is incumbent upon each component to review all information of
the type described in paragraph (b) of this section, to insure that it
is published on an up-to-date basis in the Federal Register, including
every amendment revision, or repeal. No member of the general public
can be required to resort to, or be adversely affected by, any material
not published as required by the foregoing provisions of 336.5 unless
he has actual and timely notice of the content of that material.
(40 FR 4911, Feb. 3, 1975. Redesignated at 41 FR 27074, July 1, 1976.
Redesignated and amended at 56 FR 64482, Dec. 10, 1991)
32 CFR 336.6 Petitions.
Each component shall accord any interested person the right to
petition for the issuance, amendment, or repeal of a regulation that
originates or would originate, for the Department of Defense or that
component, a policy, requirement, or procedure coming within the scope
of 336.4. Any such petition shall be given full and prompt
consideration by the component charged with the responsibility for
issuing such a regulation. The petitioner shall be advised in writing
of the disposition, and the reason for the disposition, of any written
petition for the issuance, amendment, or repeal of a regulation. The
official responsibility for disposition of the petition may at his
absolute discretion, grant the petitioner a right to appear for the
purpose of supporting his petition if this is compatible with the
orderly conduct of public business.
(40 FR 4911, Feb. 3, 1975. Redesignated at 41 FR 27074, July 1, 1976.
Redesignated and amended at 56 FR 64482, Dec. 10, 1991)
32 CFR 336.7 Effective date and implementation.
This part becomes effective on February 1, 1975, but is applicable
only to the regulations promulgated under the authority of a component
after April 1, 1975. Two copies of implementing regulations shall be
forwarded to the General Counsel of the Department of Defense on or
before April 1, 1975.
(40 FR 4911, Feb. 3, 1975. Redesignated at 41 FR 27074, July 1, 1976.
Redesignated at 56 FR 64482, Dec. 10, 1991)
32 CFR 336.7 PART 337 -- AVAILABILITY OF DOD DIRECTIVES, DOD
INSTRUCTIONS, DOD PUBLICATIONS, AND CHANGES
Sec.
337.1 Ordering DoD Directives, DoD Instructions, and Changes.
337.2 Ordering DoD Publications.
Authority: 10 U.S.C. 133, 31 U.S.C. 483a.
32 CFR 337.1 Ordering DoD Directives, DoD Instructions, and Changes.
DoD Directives, DoD Instructions, and changes published in Chapter 2
-- Number Index section of DoD 5025.1-I, ''DoD Directives System Annual
Index'' (except those issuances identified as classified) are available
to the public and Government Agencies, at cost, from the National
Technical Information Service, 5285 Port Royal Road, Springfield, VA
22161, telephone 703-487-4650.
(55 FR 27225, July 2, 1990. Redesignated and amended at 56 FR 64482,
Dec. 10, 1991)
32 CFR 337.2 Ordering DoD Publications.
DoD publications and changes published in Chapter 3 -- Publications
section of DoD 5025.1-l, ''DoD Directives System Annual Index'' are
available from the various sources that are identified in the
Availability Column. Addresses for forwarding written requests to the
various sources are listed at the beginning of chapter 3. A fee will be
charged for DoD Publications ordered from the National Technical
Information Service.
(56 FR 64482, Dec. 10, 1991)
32 CFR 337.2 PART 338 -- AVAILABILITY TO THE PUBLIC OF DEFENSE NUCLEAR
AGENCY (DNA) INSTRUCTIONS AND CHANGES THERETO
Authority: 10 U.S.C. 133, 5 U.S.C. 552.
32 CFR 338.1 Ordering DNA issuances.
(a) The DNA issuances published in the DNA indexes are published
under the following subject groups:
1000 -- Manpower, Personnel and Reserve
2000 -- International Programs
3000 -- Intelligence
4000 -- Logistics and Resources Management
5000 -- General Administration
6000 -- Health and Medical
7000 -- Comptrollership
DNA Instruction 5025.80, Index to Administrative Publications
AFRRI Instruction 5025.26N, Index to AFRRI Publications
FC, DNA Instruction 5025.8B, Index to FC, DNA Administrative
Instruction
(b) Copies of DNA indexes and instructions may be ordered by
telephone or letter. The commercial telephone number is (703) 325-7095.
Include personal or company name, street address or post office box,
city, state, country (if applicable) and zip code when submitting
requests. Submit written requests to: Defense Nuclear Agency, Public
Affairs Office, Washington, DC 20305-1000.
(c) This service is provided to the public and to federal agencies
other than the Department of Defense. DNA does not charge for requests
for an index and one instruction; however, fees for larger orders are
determined on a case-by-case basis.
(51 FR 41300, Nov. 14, 1986. Redesignated at 56 FR 64482, Dec. 10,
1991)
32 CFR 338.1 SUBCHAPTER Q -- (RESERVED)
32 CFR 338.1 SUBCHAPTER R -- ORGANIZATIONAL CHARTERS
32 CFR 338.1 PART 340 -- ORDER OF SUCCESSION OF OFFICERS TO ACT AS
SECRETARY OF DEFENSE
Sec.
340.1 Purpose.
340.2 Applicability.
340.3 Policy.
Authority: 10 U.S.C. 301; E.O. 12787, 56 FR 517, January 7, 1992.
Q04
Source: 57 FR 4854, Feb. 10, 1992, unless otherwise noted.
32 CFR 340.1 Purpose.
This part establishes the order of succession to act as Secretary of
Defense pursuant to Executive Order 12787. The order of succession to
act as Secretary of the Army, Secretary of the Navy, and Secretary of
the Air Force is specified in 10 U.S.C. 3017, 5017, and 8017.
32 CFR 340.2 Applicability.
This part applies to the Office of the Secretary of Defense, the
Military Departments, the Chairman of the Joint Chiefs of Staff and the
Joint Staff, the Unified and Specified Commands, the Inspector General
of the Department of Defense, the Defense Agencies, and the DoD Field
Activities.
32 CFR 340.3 Policy.
(a) In the event of the death, permanent disability, or resignation
of the Secretary of Defense, DoD officials, in the order specified in
Executive Order 12787, shall act for and exercise the powers of the
Secretary of Defense.
(b) Officials listed in Executive Order 12787 shall be fully familiar
with the order of succession to the position of Secretary of Defense.
32 CFR 340.3 PART 350 -- ASSISTANT SECRETARY OF DEFENSE FOR COMMAND,
CONTROL, COMMUNICATIONS, AND INTELLIGENCE (ASD(C31))
Sec.
350.1 Purpose.
350.2 Applicability.
350.3 Responsibilities.
350.4 Functions.
350.5 Relationships.
350.6 Authorities.
Authority: 10 U.S.C. 136 and 44 U.S.C. 3506(c)(4), and E.O. 12356,
3 CFR, 1982 Comp., p. 166.
Source: 57 FR 7547, Mar. 3, 1992, unless otherwise noted.
32 CFR 350.1 Purpose.
Under the authority vested in the Secretary of Defense by title 10,
United States Code, this part reissues DoD Directive 5137.1 /1/ to
update the responsibilities, functions, relationships, and authorities
of the Assistant Secretary of Defense for Command, Control,
Communications, and Intelligence (ASD(C31)).
/1/ Copies may be obtained, at cost, from the National Technical
Information Service, US Department of Commerce, 5285 Port Royal Road,
Springfield, VA 22161.
32 CFR 350.2 Applicability.
This part applies to the Office of the Secretary of Defense (OSD),
the Military Departments, the Chairman of the Joint Chiefs of Staff and
the Joint Staff, the Unified and Specified Combatant Commands, the
Inspector General of the Department of Defense, the Defense Agencies,
and the DoD Field Activities (hereafter referred to collectively as
''the DoD Components'').
32 CFR 350.3 Responsibilities.
The Assistant Secretary of Defense for Command, Control,
Communications, and Intelligence shall have as his principal duty the
overall supervision of C31 affairs of the Department of Defense. The
ASD(C31) is the principal staff assistant and advisor to the Secretary
and Deputy Secretary of Defense for C31, information management (IM),
counter-intelligence (CI), and security countermeasures (SCM) matters,
including warning, reconnaissance, and intelligence and
intelligence-related activities conducted by the Department of Defense.
32 CFR 350.4 Functions.
In the exercise of assigned responsibilities, the Assistant Secretary
of Defense for Command, Control, Communications, and Intelligence shall:
(a) Serve as principal staff assistant in carrying out the
responsibilities of the Secretary of Defense as Executive Agent for the
National Communications System.
(b) Serve as the Department's senior IM official pursuant to section
3506(b) of 44 U.S.C.; implement the Defense IM program, the Defense
corporate IM initiative, and the principles of corporate IM throughout
the Department of Defense; and ensure the proper integration of DoD
computing, systems security, telecommunications, and IM activities.
(c) Conduct and account for any acquisitions made pursuant to a
delegation of authority under section 111 of the Federal Property and
Administrative Services Act (40 U.S.C. 759), in accordance with section
3506(c)(4) of 44 U.S.C.
(d) Serve as the Department's senior information security official
pursuant to section 5.3(a) of E.O. 12356.
(e) Serve as the principal DoD official responsible for establishing
software policy and practices, but shall not be responsible for computer
resources, both hardware and software, that are:
(1) Physically part of, dedicated to, or essential in real time to
the mission performance of weapon systems.
(2) Used for weapon system specialized training, simulation,
diagnostic test and maintenance, or calibration.
(3) Used for research and development of weapon systems.
(f) Establish and implement IM policy, processes, programs, and
standards to govern the development, acquisition, and operation of
automated data processing (ADP) equipment by the Department of Defense,
but shall not be responsible for ADP equipment that is an integral part
of a weapon or weapon system, test support for a weapon or weapon
system, or information technology basic research and development.
(g) Chair the Major Automated Information System Review Council
(MAISRC). The ASD(C3I) shall operate the MAISRC in a manner consistent
with the acquisition policies in DoD Directive 5000.1 /2/
and, for automated information system programs below the Defense
Acquisition Board thresholds, independently of the Defense Acquisition
Board (DAB).
(h) Provide program management for the General Defense Intelligence
Program, the Foreign Counterintelligence Program, and the Security and
Investigative Activities Program.
(i) Serve as the principal DoD official responsible for preparing and
defending the Department's C3I, CI, SCM, and IM programs before the
Congress.
(j) Review and advise the Secretary of Defense on C3I, CI, SCM, and
IM plans and programs; review and recommend requirements and priorities
to ensure that DoD requirements are fully considered in the development
of these plans and programs; monitor and evaluate the responsiveness of
such programs to DoD requirements, particularly their readiness to
support military operations.
(k) Provide guidance, and management and technical oversight for all
C3I, CI, SCM, and IM projects, programs, and systems being acquired by,
or for the use of, the Department of Defense and its Components.
(l) Oversee applicable training and career development programs to
ensure that trained manpower is available to support DoD C3I, CI, SCM,
and IM mission needs, including manpower requirements for projected
systems.
(m) Recommend, advise, and provide assistance to other OSD staff
elements on C3I, CI, SCM, and IM matters relevant to the execution of
their assigned responsibilities, including the execution of DoD-wide
programs to improve standards of performance, economy, and efficiency.
(n) Assess the responsiveness of intelligence products to DoD
requirements.
(o) Promote coordination, cooperation, and cross-Service management
of joint C3I, IM, CI, and SCM programs to ensure essential
interoperability is achieved within the Department of Defense and
between the Department of Defense and other Federal Agencies and the
civilian community.
(p) Participate, as appropriate, in the DoD planning, programming,
and budgeting system for C3I, IM, CI, and SCM activities by reviewing
proposed DoD resource programs, formulating budget estimates,
recommending resource allocations and priorities, and monitoring the
implementation of approved programs.
(q) Establish policy and provide direction to the DoD Components on
all matters concerning the assigned functional areas in paragraphs
(q)(1) through (q)(26) of this section; serve as the primary focal
point for staff coordination on these matters within the Department of
Defense, with other Government Departments and Agencies, and with
foreign governments and international organizations to which the United
States is party; and provide DoD representation to foreign governments
and intergovernmental and international organizations when dealing with
these matters.
(1) Strategic, theater, and tactical nuclear and conventional command
and control.
(2) Information networks.
(3) C3I-related space systems.
(4) Special technology and systems.
(5) Telecommunications.
(6) Identification, navigation, and position fixing systems.
(7) Strategic C3 countermeasures.
(8) Air traffic control and airspace management.
(9) Surveillance, warning, and reconnaissance architectures.
(10) North Atlantic Treaty Organization C3I architectures and
systems.
(11) Information systems security.
(12) Intelligence programs, systems, and equipment.
(13) National Communications System activities.
(14) Radio frequency policy and management.
(15) Mapping, charting, and geodsey.
(16) Integration and/or interface of national and tactical C3I
systems and programs.
(17) C3I, IM, CI, and SCM career development, including DoD foreign
language training.
(18) Information management activities.
(19) Counter-narcotics C3I activities.
(20) C3I, IM, CI, and SCM technology programs and activities.
(21) Counterintelligence operations and investigations policy and
programs.
(22) Defense investigative activities, to include personnel security
investigations, unauthorized disclosures of classified information, and
polygraph examinations.
(23) Security countermeasures activities, to include physical
security, personnel security, industrial security, and security
classification and safeguards policy and programs.
(24) Operations security and counterimagery security.
(25) Security-related research, including personnel security and
polygraph activities.
(26) Data and information systems standardization programs, including
DoD-wide data administration.
(r) Perform such other duties as the Secretary of Defense may assign.
/2/ See footnote 1 to 350.1.
32 CFR 350.5 Relationships.
(a) In the performance of all assigned duties, the ASD(C3I) shall:
(1) Report directly to the Secretary and Deputy Secretary of Defense.
(2) Exercise direction, authority, and control over:
(i) Defense Information Systems Agency.
(ii) Defense Intelligence Agency.
(iii) Defense Mapping Agency.
(iv) Defense Investigative Service.
(v) Defense Support Project Office.
(vi) Intelligence Program Support Group.
(vii) Defense Polygraph Institute.
(viii) DoD Security Institute.
(ix) Defense Personnel Security Research Center.
(3) Exercise staff supervision over:
(i) National Security Agency/Central Security Service.
(ii) Air Force and Navy Special Intelligence Programs.
(iii) Electromagnetic Compatibility Analysis Center.
(iv) Defense Courier Service.
(4) Coordinate and exchange information with other OSD officials and
heads of DoD Components exercising collateral or related functions.
(5) Use existing facilities and services of the Department of Defense
and other Federal Agencies, when practicable, to avoid duplication and
to achieve maximum readiness, sustainability, efficiency, and economy.
(6) Work closely with the Director of Central Intelligence to ensure
effective complementarity and mutual support between DoD intelligence
programs, including DoD programs in the National Foreign Intelligence
Program, and non-DoD intelligence programs.
(b) ASD(C3I) acquisition-related activities shall be subject to
review by the DAB in accordance with DoD Directive 5000.1 and DoD
Directive 5000.49, /3/ and shall be subject to the authority of the
USD(A) delegated by the Secretary or Deputy Secretary of Defense.
(c) Other OSD officials and heads of the DoD Components shall
coordinate with the ASD (C3I) on all matters related to the functions
cited in this section.
/3/ See footnote 1 to 350.1.
32 CFR 350.6 authorities.
(a) The ASD(C3I) is hereby delegated authority to:
(1) Issue DoD Instructions, DoD publications, and one-time
directive-type memoranda, consistent with DoD 5025.1-M, /4/ that
implement policies approved by the Secretary of Defense in assigned
fields of responsibility. Instructions to the Military Departments
shall be issued through the Secretaries of those Departments.
Instructions to Unified or Specified Combatant Commands shall be
communicated through the Chairman of the Joint Chiefs of Staff.
(2) Obtain reports, information, advice, and assistance, consistent
with DoD Directive 7750.5, /5/ as necessary, in carrying out assigned
functions.
(3) Communicate directly with heads of the DoD Components.
Communications to the Commanders in Chief of the Unified and Specified
Combatant Commands shall be transmitted through the Chairman of the
Joint Chiefs of Staff.
(4) Communicate with other Government Agencies, the Executive Office
of the President, representatives of the legislative branch, and members
of the public, as appropriate, in carrying out assigned functions.
(5) Establish arrangements and appoint representation for DoD
participation in non-defense governmental programs for which the
ASD(C3I) is assigned DoD cognizance, to include national-level
committees.
(6) Waive Federal Information Processing Standards, granted by the
Secretary of Commerce Memorandum. The ASD(C3I) may redelegate this
authority to the senior officials of the Military Departments designated
pursuant to 44 U.S.C. 3506(b). This authority is subject to the
conditions specified in the procedures of Secretary of Commerce
Memorandum, ''Procedures for Waivers for the Federal Information
Processing Standards.''
(7) Make original security classification determinations at the Top
Secret level in accordance with E.O. 12356. This authority may be
redelegated, as appropriate, and in writing, pursuant to section
1.2(d)(2) of E.O. 12356.
(b) The ASD(C3I) also is hereby delegated the authorities contained
in enclosure 3 of DoD Directive 5105.19, /6/ enclosure 1 of DoD
Directive 5105.21, /7/ enclosure 2 of DoD Directive 5105.40, /8/ and
enclosure 2 of DoD Directive 5105.42. /9/ The ASD(C31) may modify,
terminate, or redelegate these authorities, in whole or in part, as
appropriate, and in writing, except as otherwise provided by law or
regulation.
/4/ See footnote 1 to 350.1.
/5/ See footnote 1 to 350.1.
/6/ See footnote 1 to 350.1.
/7/ See footnote 1 to 350.1.
/8/ See footnote 1 to 350.1.
/9/ See footnote 1 to 350.1.
32 CFR 350.6 PART 351 -- DIRECTOR OF DEFENSE RESEARCH AND ENGINEERING
(DDR&E)
Sec.
351.1 Purpose.
351.2 Responsibilities.
351.3 Functions.
351.4 Relationships.
351.5 Authorities.
Authority: 10 U.S.C. 135.
Source: 54 FR 5607, Feb. 6, 1989, unless otherwise noted.
32 CFR 351.1 Purpose.
Pursuant to the provisions of Title 10, U.S.C. 135, this part
prescribes the responsibilities, functions, relationships, and
authorities of the Director of Defense Research and Engineering (DDR&E).
It also revises 32 CFR part 351.
32 CFR 351.2 Responsibilities.
The DDR&E is the principal staff assistant and advisor to the Under
Secretary of Defense (Acquisition) (USD(A)) for DoD scientific and
technical matters, basic and applied research, and the development of
weapon systems. For each assigned area, the DDR&E shall:
(a) Conduct analyses, develop policies, provide advice, make
recommendations, and issue guidance on DoD plans and programs.
(b) Develop systems and standards for the administration and
management of approved plans and programs.
(c) Initiate programs, actions, and taskings to ensure adherence to
DoD policies and national security objectives, and to ensure that
programs are designed to accommodate operational requirements.
(d) Review and evaluate programs for carrying out approved policies
and standards.
(e) Inform appropriate organizations and personnel of new and
significant trends or initiatives.
(f) Review proposed resource programs, formulate budget estimates,
recommend resource allocations, and monitor the implementation of
approved programs.
(g) Participate in those planning, programming, and budgeting
activities that relate to DDR&E responsibilities.
(h) Review and evaluate recommendations on requirements and
priorities.
(i) Promote coordination, cooperation, and mutual understanding
within the Department of Defense and between the Department of Defense
and other Federal Agencies and the civilian community.
(j) Serve on boards, committees, and other groups pertaining to the
DDR&E's functional areas, and represent the Secretary of Defense and the
USD(A) on DDR&E matters outside the Department of Defense.
(k) Perform such other duties as the Secretary of Defense or the
USD(A) may prescribe.
32 CFR 351.3 Functions.
The DDR&E shall carry out the responsibilities in 351.2 for the
following functional areas:
(a) Basic and applied research and advanced technology, design and
engineering, and the development of weapons systems.
(b) Tactical warfare programs activities related to research and
development (R&D).
(c) Strategic and theater nuclear forces programs activities related
to R&D.
(d) Development test and evaluation (T&E) in accordance with DoD
Directive 5000.3 /1/ to include ensuring that the T&E program is
sufficient to support milestone decisions.
(e) Scientific and technical information.
(f) Assignment and reassignment of research and engineering
responsibility for systems.
(g) Research interchange with friendly and allied nations, in
conjunction with the Under Secretary of Defense (Policy) (USD(P)).
(h) Contract placement and administration for R&D programs.
(i) Oversight of Federally Funded R&D centers.
(j) Atomic energy for defense as well as chemical warfare and
biological defense plans and programs.
(k) Chairmanship of the Nuclear Weapons Council.
(l) Such other areas as the Secretary of Defense or the USD(A) may
prescribe.
/1/ Copies may be obtained if needed, from the U.S. Naval
Publications and forms center, Attn: Code 1062, 5801 Tabor Avenue,
Philadelphia, PA 19120.
32 CFR 351.4 Relationships.
(a) The DDR&E shall perform duties under the direction, authority,
and control of the USD(A) consistent with 32 CFR part 382.
(b) In the performance of assigned functions and responsibilities,
the DDR&E shall:
(1) Use existing facilities and services, whenever practicable, to
achieve maximum efficiency and economy.
(2) Coordinate and exchange information with other DoD organizations
having collateral or related functions.
(c) DoD Components shall coordinate with the DDR&E on all matters
concerning the functions in 351.3.
32 CFR 351.5 Authorities.
Pursuant to the authority vested in the Secretary of Defense, and
subject to the direction, authority, and control of the USD(A), and in
accordance with DoD policies, Directives, and Instructions, the DDR&E
or, in the absence of the DDR&E, the person acting for the DDR&E, is
hereby delegated authority to:
(a) Issue DoD Instructions, DoD publications, and one-time
directive-type memoranda that carry out policies approved by the
Secretary of Defense in assigned fields of responsibility, consistent
with DoD 5025.1-M. Instructions to the Military Departments shall be
issued through the Secretaries of those Departments or their designees.
Instructions to Unified and Specified Commands shall be issued through
the Chairman of the Joint Chiefs of Staff (CJCS).
(b) Obtain such reports, information, advice, and assistance,
consistent with the policies and criteria of DoD Directive 7750.5 /2/
, as the DDR&E deems necessary.
(c) Communicate directly with heads of DoD Components.
Communications with the Unified and Specified Commands shall be
coordinated through the CJCS.
(d) Establish arrangements for DoD participation in those nondefense
governmental programs for which the DDR&E has been assigned primary
cognizance.
(e) Approve, modify, or disapprove R&D, and projects of the Military
Departments and other DoD Agencies in assigned fields.
(f) Communicate with other Government Agencies, representatives of
the legislative branch, and members of the public, as appropriate, in
carrying out assigned functions.
(g) Make determinations and decisions regarding scientific and
technical matters, basic and applied research, and the development of
weapon systems.
(h) Make the determination required by Title 50, United States Code,
section 1512(1), concerning transportation or testing of any lethal
chemical or any biological warfare agent.
(i) Submit the annual report to Congress on funds obligated in the
chemical warfare and biological defense research programs required by
Title 50, United States Code, section 1511.
/2/ See footnote 1 to 5351.3(d).
32 CFR 351.5 PART 352 -- COMPTROLLER OF THE DEPARTMENT OF DEFENSE (C,
DOD)
Sec.
352.1 Purpose.
352.2 Definition.
352.3 Responsibilities.
352.4 Functions.
352.5 Relationships.
352.6 Authorities.
Appendix A to part 352 -- Delegations of Authority
Authority: 10 U.S.C. 137
Source: 56 FR 31537, July 11, 1991, unless otherwise noted.
32 CFR 352.1 Purpose.
This part:
(a) Implements 10 U.S.C. 137 that establishes the position of the
Comptroller of the Department of Defense (C, DoD).
(b) Assigns the responsibilities, functions, relationships, and
authorities prescribed herein, pursuant to the authority vested in the
Secretary of Defense under 10 U.S.C. 137.
32 CFR 352.2 Definition.
DoD Components. The Office of the Secretary of Defense (OSD), the
Military Departments, the Chairman of the Joint Chiefs of Staff and the
Joint Staff, the Unified and Specified Commands, the Office of the
Inspector General of the Department of Defense, the Defense Agencies,
and the DoD Field Activities.
32 CFR 352.3 Responsibilities.
The Comptroller of the Department of Defense is the principal advisor
and assistant to the Secretary of Defense for budgetary and fiscal
matters (including financial management, accounting policy and systems,
internal control systems, budget formulation and execution, and contract
audit administration and organization), and general management
improvement programs. The C, DoD, is the Chief Financial Officer of the
Department of Defense under Public Law 101-576; 104 Stat. 2838-2855
(1990).
32 CFR 352.4 Functions.
In carrying out the responsibilities assigned in 352.3, the C, DOD,
shall:
(a) Administer the planning, programming, and budgeting system of the
Department of Defense.
(b) Supervise and direct the formulation and presentation of Defense
budgets, the interactions with the Congress on budgetary and fiscal
matters, and the execution and control of approved budgets; and
maintain effective control and accountability over the use of all
financial resources of the Department of Defense.
(c) Establish and supervise the execution of uniform DoD policies,
principles, and procedures (including terminologies and classifications,
as necessary) for:
(1) Budget formulation and execution; financial management programs
and systems; accounting and disbursing systems; cash and credit
management; debt collection; financial progress and statistical
reporting; and technical, organizational, and administrative matters
related to contract audit.
(2) Relationships with financial institutions, including those
operating on DoD installations in the United States and overseas.
(3) International financial matters, including the adequacy of
international financial agreements.
(4) Education, training, and career development of comptroller and
financial management personnel.
(5) Prices for transactions involving the provision of goods and
services by DoD Components, including sales to foreign governments.
(6) Access to DoD budgetary material and other records by the General
Accounting Office (GAO).
(d) Provide for the design, development, and installation of
management improvement programs and systems throughout the Department of
Defense by:
(1) Improving general management practices within the Department by
analyzing current practices, identifying improvements that will result
in management efficiencies, measuring cost savings, and implementing
changes.
(2) Developing and overseeing implementation of total cost per output
standards for the Department of Defense to be used for budget,
management, and productivity improvement purposes.
(3) Establishing and maintaining an internal management control
program to control waste, fraud, and mismanagement.
(4) Safeguarding DoD resources against waste, fraud, and
inefficiency.
(5) Promoting accuracy and reliability in accounting and operating
data.
(6) Evaluating the efficiency of financial operations.
(e) Serve as the Chief Financial Officer of the Department of
Defense, and shall:
(1) Report directly to the Secretary of Defense on financial
management matters.
(2) Oversee all financial management activities on the programs and
operation of the Department of Defense.
(3) Develop and maintain an integrated DoD accounting and financial
management system, including financial reporting and internal controls
that:
(i) Complies with applicable accounting principles, standards, and
requirements, and internal control standards established under Public
Law 101-576; 104 Stat. 2838-2855 (1990) or other law.
(ii) Complies with such policies and requirements as may be
prescribed by the Director of the Office of Management and Budget (OMB).
(iii) Complies with the requirements of law applicable to such
systems.
(iv) Provides for:
(A) Complete, reliable, consistent, and timely information that is
prepared on a uniform basis and that is responsive to the financial
information needs of the Department of Defense.
(B) The development and reporting of cost information.
(C) The integration of accounting and budgeting information.
(D) The systematic measurement of performance.
(4) Make recommendations to the Secretary of Defense about the
selection of a Deputy Chief Financial Officer of the Department of
Defense.
(5) Direct, manage, and provide policy guidance and oversight of
Department of Defense financial management personnel, activities, and
operations, including:
(i) The preparation and annual revision of the DoD plan to:
(A) Implement the 5-year financial management systems plan developed
by the Director, OMB.
(B) Comply with the requirements established in Public Law 101-576;
104 Stat. 2838-2855 (1990).
(ii) The development of the Department of Defense's financial
management budgets.
(iii) The recruitment, selection, and training of personnel to carry
out DoD financial management functions.
(iv) The approval and management of the Department of Defense's
financial management systems design or enhancement projects.
(v) The implementation of Department of Defense's asset management
systems, including systems for cash management, credit management, debt
collection, and property and inventory management control.
(6) Prepare and transmit, by not later than 60 days after the
submission of the audit report required by Public Law 101-576; 104
Stat. 2838-2855 (1990), an annual report to the Secretary of Defense
and the Director, OMB that shall include:
(i) A description and analysis of the status of financial management
by the Department of Defense.
(ii) The annual financial statements prepared under Public Law
101-576; 104 Stat. 2838-2855 (1990).
(iii) The audit report transmitted to the Secretary of Defense
prepared under Public Law 101-576; 104 Stat. 2838-2855 (1990)
(iv) A summary of the reports on internal accounting and
administrative control systems submitted to the President and the
Congress under the amendments made by Public Law 97-255; 96 Stat. 814
(1982).
(v) Other information the Secretary of Defense considers appropriate
to fully inform the President and the Congress on the financial
management of the Department of Defense.
(7) Monitor the financial execution of the DoD budget for actual
expenditures, and prepare and submit to the Secretary of Defense timely
performance reports.
(8) Review, on a biennial basis, the fees, royalties, rents, and
other charges imposed by the Department of Defense for services and
things of value it provides, and make recommendations on revising those
charges to reflect costs incurred by it in providing those services and
things of value.
(f) Exercise direction, authority, and control over the Defense
Contract Audit Agency, including as follows:
(1) Advise and assist the Secretary and Deputy Secretary of Defense
on administration and organization of the contract audit function within
the Department of Defense.
(2) Establish and supervise uniform DoD policies, principles, and
procedures for administrative matters related to contract audit.
(3) Analyze resource requirements and use of personnel to accomplish
the contract audit needs of the Department of Defense.
(4) Coordinate and interface with other DoD officials having interest
in the contract audit mission and related activities, including the
Under Secretary of Defense (Acquisition), the Inspector General of the
Department of Defense, the Secretaries of the Military Departments, and
the Director of the Defense Logistics Agency.
(5) Interact with the Congress on issues involving the contract audit
function of the Department of Defense, including interface with the GAO
on pertinent audits.
(6) Conduct analyses, develop plans, provide advice, recommend
changes, and issue guidance on DoD contract audit organization
structure, charter, and management practices.
(7) Interact with the Defense industry on major areas of concern
involving contract audit activity.
(g) Exercise direction, authority, and control over the Defense
Finance and Accounting Service (DFAS).
(h) Perform such other functions as may be assigned by the Secretary
or Deputy Secretary of Defense.
32 CFR 352.5 Relationships.
(a) In the performance of 352.4, the C, DoD, shall:
(1) Coordinate and exchange information with other DoD Components
having collateral or related functions.
(2) Promote coordination, cooperation, and mutual understanding of
matters about assigned functions within the Department of Defense and
between the Department of Defense, other Government Agencies, and the
public.
(3) Serve on boards, committees, and other groups concerned with
matters about assigned functions and represent the Secretary of Defense
on assigned functions outside the Department of Defense.
(4) Maintain liaison with congressional budget oversight committees
on all DoD budgetary and fiscal matters and serve as focal point for
joint Office of Management and Budget (OMB)/OSD budget and management
reviews.
(5) Use existing facilities and services, whenever practicable, to
achieve maximum efficiency and economy.
(b) The C, DoD, shall be consulted as to professional qualifications
of Defense Agency and DoD Field Activity Comptrollers (or equivalents)
before their selection to such positions.
(c) All DoD Components shall coordinate with the C, DoD, on all
matters related to the functions in 352.4.
32 CFR 352.6 Authorities.
(a) The C, DoD, is hereby delegated authority to:
(1) Issue DoD Instructions, DoD publications, and one-time
directive-type memoranda, consistent with DoD 5025.l-M /1/ , that
implement policies approved by the Secretary of Defense in the functions
assigned to the C, DoD. Instructions to the Military Departments shall
be issued through the Secretaries of those Departments. Instructions to
Unified and Specified Commands shall be communicated through the
Chairman of the Joint Chiefs of Staff.
(2) Approve or withhold authority to obligate and expend funds
authorized and appropriated by Congress for the execution of DoD
programs.
(3) Obtain reports, information, advice, and assistance, consistent
with DoD Directive 7750.5 /2/ , in carrying out assigned functions, as
necessary.
(4) Communicate directly with the heads of the DoD Components.
Communications to the Commanders of Unified and Specified Commands shall
be transmitted through the Chairman of the Joint Chiefs of Staff.
(5) Establish arrangements for DoD participation in those nondefense
governmental programs for which the C, DoD, has been assigned primary
staff cognizance.
(6) Communicate with other Government Agencies, representatives of
the legislative branch, and members of the public, as appropriate, in
carrying out assigned functions.
(7) Provide fiscal management for the defense and military
intelligence and national reconnaissance activities in accordance with
part 1.11(j) of E.O. 12333 (3 CFR, 1981 Comp. p. 200).
(b) The C, DoD also is hereby delegated the authorities contained in
enclosure 1 to DoD Directive 5105.36 /3/ and in enclosure 1 to DoD
Directive 5118.5 /4/ . The C, DoD, may redelegate these authorities, as
appropriate, and in writing, except as otherwise provided by law or
regulations.
(c) Other authorities specifically delegated by the Secretary of
Defense are in appendix A to this part.
/1/ Copies may be obtained, at cost, from the National Technical
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
/2/ See footnote 1 to 352.6(a) (1).
/3/ See footnote 1 to 352.6(a)(1).
/4/ See footnote 1 to 352.6(a)(1).
32 CFR 352.6 Pt. 352, App. A
1. Pursuant to the authority vested in the Secretary of Defense, the
C, DoD, is hereby delegated, subject to the direction, authority, and
control of the Secretary of Defense, authority to:
a. Approve requests to hold cash at personal risk for authorized
purposes, including imprest funds, and to redelegate such authority as
appropriate in the administration and control of DoD funds, consistent
with provisions of the Treasury Financial Manual (TFM) and under the
authority of sections 3321 and 3342 of 31 U.S.C.
b. Approve DoD Component disbursing regulations developed to
implement the TFM and to grant waivers when delegated by the Secretary
of the Treasury to heads of Executive Departments and Agencies.
c. Approve the establishment of accounts for funds provided to the
Department of Defense and issue regulations for the administration of
accounts established pursuant to statutory authority.
d. Exercise the authority of the Secretary of Defense to establish
reimbursement rates and prices for DoD goods and services and to approve
requests for waivers or reductions of such rates and prices that, by
statute, may be exercised by the Secretary of Defense.
e. Pursuant to the authority of sections 113 and 137 of 10 U.S.C.,
make determinations to effectuate transfers under transfer authorities
enacted in DoD and military construction appropriation acts and make any
reports or furnish notifications to the Congress or its committees that
may be required in connection with the exercise of such transfers.
f. Approve all requests for reprogramming of funds or for use of
authority to transfer funds and to make any related determinations
required by law. This authority may not be redelegated.
g. Transmit Antideficiency Act reports required by sections 1341,
1342, and 1517 of 31 U.S.C. to the OMB, the President, and the Congress.
This authority may not be redelegated.
h. Approve obligation adjustments, in accordance with section 1553 of
31 U.S.C., for fixed appropriations for which the period of availability
for obligation has ended, if an obligation of funds from that account to
provide funds for a program, project, or activity to cover amounts
required for contract changes would cause the total amount of obligation
from that appropriation during a fiscal year for contract changes for
that program, project, or activity to exceed $4 million.
2. Pursuant to the authority vested in the Secretary of Defense,
including 10 U.S.C. 113(d), and subject to the direction, authority, and
control of the Secretary of Defense, the C, DoD, is hereby delegated the
following authorities on the operations and functions of the DFAS:
a. Under 5 U.S.C. 5584, 10 U.S.C. 2774, and 32 U.S.C. 716 to waive a
claim or to make recommendations to the Comptroller General (C.G.) of
the United States on the waiver of such claims;
b. Under 31 U.S.C. 3529 to issue payment and certification decisions
in cases as authorized by the C.G. of the United States;
c. Under chapter 73 of 10 U.S.C. to make determinations necessary for
the administration of the annuity plans covered under such chapter;
d. Under 10 U.S.C. 4837, 6161, and 9837 to remit or cancel an
enlisted member's indebtedness;
e. Under 10 U.S.C. 1053 and 1594 to promulgate regulations
establishing conditions under which reimbursements for financial
institution charges resulting from late or incorrect direct deposits
will be made;
f. Under 37 U.S.C. 602 to designate a person to receive amounts due a
member determined to be mentally incapable of managing the member's
affairs;
g. Under 37 U.S.C. 423 to make findings of good faith on purported
marriages;
h. Under 37 U.S.C. and chapter 55 of 10 U.S.C. to make dependency
determinations for pay and allowance and medical care entitlements;
i. Under 31 U.S.C. 3711 to collect, compromise, suspend, or end
collection action on claims arising out of the activities of, or
referred to, the DFAS; and
j. Under chapter 10 of 37 U.S.C. to make determinations necessary for
the administration of missing persons' accounts except determinations on
missing status or death.
3. The C, DoD may redelegate these authorities, as appropriate, and
in writing, except as otherwise specifically indicated above, or as
otherwise provided by law or regulation.
4. These delegations of authority are effective June 24, 1991.
32 CFR 352.6 PART 352a -- DEFENSE FINANCE AND ACCOUNTING SERVICE (DFAS)
Sec.
352a.1 Purpose.
352a.2 Applicability.
352a.3 Organization and management.
352a.4 Responsibilities and functions.
352a.5 Relationships.
352a.6 Authorities.
Appendix to Part 352a -- Delegations of Authority
Authority: 10 U.S.C. 113.
Source: 55 FR 50179, Dec. 5, 1990, unless otherwise noted.
32 CFR 352a.1 Purpose.
Pursuant to the authority vested in the Secretary of Defense under
provisions of title 10, United States Code, this part establishes the
Defense Finance and Accounting Service (DFAS) as an Agency of the
Department of Defense with responsibilities, functions, authorities, and
relationships.
32 CFR 352a.2 Applicability.
This part applies to the Office of the Secretary of Defense (OSD);
the Military Departments; the Chairman, Joint Chiefs of Staff and Joint
Staff; the Unified and Specified Commands; the Inspector General of
the Department of Defense (IG, DoD); the Defense Agencies; and the DoD
Field Activities (hereafter referred to collectively as ''DoD
Components'')
32 CFR 352a.3 Organization and management.
(a) The DFAS is established as an Agency of the Department of Defense
under the direction, authority, and control of the Comptroller of the
Department of Defense (C, DoD).
(b) The DFAS shall consist of a Director, selected by the Secretary
of Defense, and such subordinate organizational elements as are
established by the Director within resources authorized by the Secretary
of Defense.
(c) Military personnel shall be assigned to the DFAS in accordance
with approved authorizations and procedures for assignment to joint
duty.
32 CFR 352a.4 Responsibilities and functions.
(a) The Director, Defense Finance and Accounting Service (DFAS), is
the principal DoD executive for finance and accounting requirements,
systems, and functions identified in DoD Directive 5118.3, /1/ and
shall:
(1) Organize, direct, and manage the DFAS and all assigned resources.
(2) Direct finance and accounting requirements, systems, and
functions for all appropriated, nonappropriated, working capital,
revolving, and trust fund activities, including security assistance.
(3) Establish and enforce requirements, principles, standards,
systems, procedures, and practices necessary to comply with finance and
accounting statutory and regulatory requirements applicable to the
Department of Defense.
(4) Provide finance and accounting services for DoD Components and
other Federal activities, as designated by the C, DoD.
(5) Direct the consolidation, standardization, and integration of
finance and accounting requirements, functions, procedures, operations,
and systems within the Department of Defense and ensure their proper
relationship with other DoD functional areas (e.g., budget, personnel,
logistics, acquisition, civil engineering, etc.).
(6) Execute statutory and regulatory financial reporting requirements
and render financial statements.
(7) Serve as the proponent for civilian professional development in
finance and accounting disciplines, and act as approval authority for
competency standards and training requirements for appropriate military
positions within the DFAS.
(8) Provide advice and recommendations to the C, DoD, on finance and
accounting matters.
(9) Approve the establishment or maintenance of all finance and
accounting activities independent of the DFAS.
(10) Develop, issue, and maintain DoD 7220.9-M, /2/ in accordance
with DoD 5025.1-M, /3/ consistent with governing statutes, regulations,
and policies.
(11) Perform other functions as the Secretary of Defense, Deputy
Secretary of Defense, or the C, DoD, may prescribe.
(b) The Comptroller of the Department of Defense (C, DoD) shall
provide guidance and direction to the Director, DFAS, on policies and
procedures related to the development and operation of DFAS programs and
systems.
(c) The Heads of DoD Components shall:
(1) Comply with the requirements, principles, standards, procedures,
and practices issued pursuant to 352a.4(a).
(2) Obtain finance and accounting services from the DFAS.
(3) Provide facilities, personnel, and other support and assistance
required to accomplish DFAS objectives, consistent with this Directive
and the responsibilities and functions in 352a.4(a) and the authorities
in 352a.6.
(c) Operational commanders shall continue to be responsible for the
control, location, and safety of deployed accounting and finance
personnel and resources.
/1/ Copies may be obtained, at cost, from the National Technical
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
/2/ See footnote 1 to 352a.4(a).
/3/ See footnote 1 to 352a.4(a).
32 CFR 352a.5 Relationships.
(a) In the performance of assigned responsibilities and functions,
the Director, DFAS, shall:
(1) Maintain liaison with DoD Components, other Government Agencies,
foreign governments, and private sector organizations for the exchange
of information concerning assigned programs, activities, and
responsibilities.
(2) Use established facilities and services of the Department of
Defense and other Federal Agencies, whenever practicable, to avoid
duplication and to achieve modernization, efficiency, economy, and user
satisfaction.
(b) The heads of DoD Components shall coordinate with the Director,
DFAS, on all matters related to the responsibilities and functions
listed in 352a.4(a).
32 CFR 352a.6 Authorities.
The Director, DFAS, is specifically delegated authority to:
(a) Represent the C, DoD, on finance and accounting matters.
(b) Have free and direct access to, and communicate with, DoD
Components and other Executive Departments and Agencies concerning
finance and accounting activities, as necessary.
(c) Enter into agreements with DoD Components and other Government or
Non-Government entities for the effective performance of the DFAS
mission and programs.
(d) Establish DFAS facilities if needed facilities or services of
other DoD Components are not available. Establishment of new facilities
and services will be accomplished during normal program and budget
processes.
(e) Obtain reports, information, advice, and assistance from DoD
Components, consistent with the policies and criteria of DoD Directive
7750.5. /4/
/4/ See footnote 1 to 352a.4(a).
32 CFR 352a.6 Pt. 352a, App.
Pursuant to the authority vested in the Secretary of Defense, and
subject to the direction, authority, and control of the Secretary of
Defense, and in accordance with DoD policies, Directives, and
Instructions, the Director, Defense Finance and Accounting Service
(DFAS), or in the absence of the Director, the person acting for the
Director, is hereby delegated authority as required in the
administration and operation of the DFAS to:
1. Establish advisory committees and employ part-time advisors, as
approved by the Secretary of Defense, in support of assigned DFAS
functions pursuant to 10 U.S.C. 173; Pub. L. 92-463, ''Federal Advisory
Committe Act''; and DoD Directive 5105.4 /1/ , ''Department of Defense
Federal Advisory Committee Management Program,'' September 5, 1989.
2. Designate any position in the DFAS as a ''sensitive'' position, in
accordance with 5 U.S.C. 7532; Executive Order 10450, as amended; and
DoD Directive 5200.2 /2/ . ''DoD Personnel Security Program,'' December
20, 1979, as appropriate.
a. Authorize, in case of an emergency, the appointment to a sensitive
position, for a limited period of time, of a person for whom a full
field investigiation or other appropriate investigation, including the
National Agency Check, has not been completed.
b. Authorize the suspension, but not terminate the service, of the
employee in the interest of national security.
3. Authorize and approve overtime work for assigned civilian
personnel in accordance with 5 U.S.C. Chapter 55, Subchapter V, and
applicable Office of Personnel Management (OPM) regulations.
4. Authorize and approve:
a. Travel for assigned personnel, in accordance with Joint Travel
Regulations.
b. Invitational travel to persons serving without compensation whose
consultative, advisory, or other services are required for assigned
activities and responsibilities pursuant to 5 U.S.C. 5703.
5. Approve the expenditure of funds available for travel by assigned
or detailed military personnel for expenses regarding attendance at
meetings of technical, scientific, professional, or other similar
organizations in such instances when the approval of the Secretary of
Defense, or designee, is required by law (37 U.S.C. 412 and 5 U.S.C.
4110 and 4111). This authority cannot be redelegated.
6. Develop, establish, and maintain an active and continuing Records
Management Program and DoD Directive 5015.2 /3/ , ''Records Management
Program,'' September 17, 1980; DoD Directive 5400.74 /4/ , ''DoD
Freedom of Information Act Program,'' May 13, 1988; and DoD Directive
5400.11 /5/ , ''Department of Defense Privacy Program,'' June 9, 1982.
7. Establish and use imprest funds for making small purchases of
material and services, other than personal services, when it is
determined more advantageous and consistent with the best interests of
the Government, in accordance with DoD Directive 7360.10 /6/ ,
''Disbursing Policies,'' January 17, 1989.
8. Authorize the publication of advertisements, notices, or
proposals, in newspapers, magazines, or other public periodicals as
required for the effective administration and operation of assigned
responsibilities, consistent with 44 U.S.C. 3702.
9. Establish and maintain appropriate property accounts, appoint
Boards of Survey, approve reports of survey, relieve personal liability,
and remove accountability for Agency property contained in the
authorized property accounts that has been lost, damaged, stolen,
destroyed, or otherwise rendered unserviceable, in accordance with
applicable laws and regulations.
10. Promulgate the necessary security regulations for the protection
of property placed under the jurisdiction of the Director, pursuant to
DoD Directive 5200.8 /7/ , ''Security of Military Installation of
Resources,'' July 29, 1980.
11. Establish and maintain a publications system for the promulgation
of common accounting and finance regulations, instructions, and
reference documents, and changes thereto, pursuant to the policies and
procedures prescribed in DoD 5025.1-M /8/ , ''Department of Defense
Directives System Procedures,'' April 1981, authorized by DoD Directive
5025.1 /9/ , December 23, 1988.
12. Exercise the powers vested in the Secretary of Defense by 5
U.S.C. 310, 302(b), and 3101 of the employment, direction, and general
administration of assigned employees.
13. Administer oaths of office to those entering the Executive branch
of the Federal Government or any other oath required by law in
connection with employment therein, in accordance with 5 U.S.C. 2903,
and designate in writing, as may be necessary, officers and employees of
the DFAS to perform this function.
14. Establish a DFAS Incentive Awards Board, and pay cash awards to,
and incur necessary expenses for the honorary recognition of, civilian
employees of the Government whose suggestions, inventions, superior
accomplishments, or other personal efforts, including special acts or
services, benefit or affect the DFAS or its subordinate activities, in
accordance with 5 U.S.C. 4503, OPM regulations, and DoD Directive
5120.15 /10/ , ''Authority for Approval of Cash Honorary Awards for DoD
Personnel,'' August 13, 1985.
15. Act as an agent for the collection and payment of employment
taxes imposed by Chapter 21 of the Internal Revenue Code of 1954, as
amended; and, as such agent, make all determinations and certification
required or provided for under the Internal Revenue Code of 1954, as
amended (26 U.S.C. 3122), and the Social Security Act (42 U.S.C.
405(p)(1) and (2)), as amended, on assigned employees.
16. Enter into and administer contracts directly or through a
Military Department, a DoD contracting administration service component,
or other Government Department or Agency, as appropriate, for supplies,
equipment, and services required to accomplish the DFAS mission.
17. Oversee disbursing officials and operations in accordance with
the procedures of 31 U.S.C., as follows:
a. Manage the approval and appointment process for disbursing and
certifying officials pursuant to 31 U.S.C. 3321 and 3325.
b. Make determinations and recommendations with respect to the
granting of relief to disbursing officials pursuant to the authority
contained in 31 U.S.C. 3527.
c. Approve requests to hold cash at personal risk for authorized
purposes, including imprest funds, and to redelegate such authority as
appropriate in the administration and control of DoD funds, consistent
with the Treasury Financial Manual (TFM) and under the authority of 31
U.S.C. 3321 and 3342.
d. Approve DoD Component disbursing regulations developed to
implement the TFM and to grant waivers when delegated by the Secretary
of the Treasury to heads of Executive Departments and Agencies.
The Director, DFAS may, in writing, redelegate these authorities as
appropriate, except as otherwise specifically indicated above or as
otherwise provided by law or regulation.
/1/ Copies may be obtained, at cost, National Technical Information
Service, 5285 Port Royal Road, Springfield, VA 22161.
/2/ See footnote 1 to paragraph 1. of this appendix.
/3/ See footnote 1 to paragraph 1 of this appendix.
/4/ See footnote 1 to paragraph 1 of this appendix.
/5/ See footnote 1 to paragraph 1 of this appendix.
/6/ See footnote 1 to paragraph 1. of this appendix.
/7/ See footnote 1 to paragraph 1 of this appendix.
/8/ See footnote 1 to paragraph 1 of this appendix.
/9/ See footnote 1 to paragraph 1 of this appendix.
/10/ See footnote 1 to paragraph 1 of this appendix.
32 CFR 352a.6 PART 353 -- ASSISTANT SECRETARY OF DEFENSE (LEGISLATIVE
AFFAIRS)
Sec.
353.1 Reissuance and purpose.
353.2 Definition.
353.3 Responsibilities and functions.
353.4 Relationships.
353.5 Authorities.
Authority: 10 U.S.C. 136.
Source: 47 FR 32111, July 26, 1982, unless otherwise noted.
32 CFR 353.1 Reissuance and purpose.
This part establishes, pursuant to the authority vested in the
Secretary of Defense under Title 10, U.S.C., 136, one of the positions
of Assistant Secretary of Defense as Assistant Secretary of Defense
(Legislative Affairs) (ASD(LA)), with responsibilities, functions, and
authorities as prescribed herein.
32 CFR 353.2 Definition.
DoD Components. The Office of the Secretary of Defense, the Military
Departments, the Organization of the Joint Chiefs of Staff, the Unified
and Specified Commands, and the Defense Agencies.
32 CFR 353.3 Responsibilities and functions.
The Assistant Secretary of Defense (Legislative Affairs) as the
principal staff assistant to the Secretary of Defense for DoD relations
with the members of Congress, shall:
(a) Provide advice and assistance concerning congressional aspects of
DoD policies, plans, and programs.
(b) Coordinate actions relating to congressional consideration of the
DoD legislative program.
(c) Coordinate DoD participation in congressional hearings and
investigations.
(d) Assign responsibility for, and coordinate responses to,
congressional inquiries.
(e) Process and coordinate requests for DoD support of congressional
travel.
(f) Arrange for the designation and appearance of witnesses and
provision of information at congressional hearings.
(g) Coordinate the preparation of all congressional testimony and
backup material for the Secretary and Deputy Secretary of Defense.
(h) Provide for DoD processing of personal security clearances for
members of congressional staffs.
(i) Perform such other duties as the Secretary of Defense may assign.
32 CFR 353.4 Relationships.
(a) In the performance of his duties, the ASD(LA) shall:
(1) Coordinate and exchange information with DoD Components having
collateral or related functions.
(2) Use existing facilities and services of the Department of Defense
or other federal agencies to avoid duplication and achieve maximum
efficiency and economy.
(b) Heads of DoD Components shall coordinate with the ASD(LA) on all
matters related to the functions cited in
32 CFR 353.5 Authorities.
The ASD(LA) is hereby delegated authority to:
(a) Issue DoD Instruction and one-time directive-type memoranda,
consistent with DoD Directive 5025.1, ''DoD Directives System,'' October
16, 1980 which carry out policies approved by the Secretary of Defense
in assigned fields of responsibility. Instructions to the Military
Departments shall be issued through the Secretaries of those
Departments, or their designees. Instructions to Unified and Specified
Commands will be issued through the Joint Chiefs of Staff.
(b) Obtain reports, information, advice, and assistance consistent
with the policies and criteria of DoD Directive 5000.19, ''Policies for
the Management and Control of Information Requirements,'' March 12,
1976, as necessary.
(c) Communicate directly with DoD Components. Communications to the
Commanders of Unified and Specified Commands shall be coordinated with
the Joint Chiefs of Staff.
(d) Communicate with the Executive Office of the President, other
Government agencies, representatives of the legislative branch, and
members of the public, as appropriate, in carrying out assigned
functions.
32 CFR 353.5 PART 354 -- DEFENSE INTELLIGENCE AGENCY
Sec.
354.1 Purpose.
354.2 Mission.
354.3 Responsibilities and functions.
354.4 Organization and administration.
354.5 Relationships.
354.6 Authorities.
354.7 Delegation of authority.
Authority: 10 U.S.C. Chapter 4.
Source: 42 FR 33734, July 1, 1977, unless otherwise noted.
32 CFR 354.1 Purpose.
Pursuant to the authority vested in the Secretary of Defense under
the provisions of title 10, United States Code, the Defense Intelligence
Agency (hereinafter ''the DIA'') is hereby established with
responsibilities, functions and authorities as prescribed herein.
32 CFR 354.2 Mission.
The mission of the DIA is to satisfy, or to ensure the satisfaction
of, the foreign intelligence requirements of the Secretary of Defense,
the Joint Chiefs of Staff, DoD components and other authorized
recipients, and to provide the military intelligence contribution to
national intelligence.
32 CFR 354.3 Responsibilities and functions.
The Director, DIA, shall advise the Secretary of Defense on
intelligence matters. Under his direction and control, the DIA shall:
(a) Produce, or through tasking and coordination ensure the
production of foreign intelligence required for support to the DIA
mission. This function specifically includes the maintenance of a
strong DoD scientific and technical intelligence program. For the
purposes of this section, ''production'' includes the evaluation,
correlation, analysis, interpretation and presentation of foreign
intelligence.
(b) Provide intelligence and intelligence staff support to the Joint
Chiefs of Staff in accordance with their requirements and established
procedures.
(c) Ensure that adequate, timely and reliable intelligence is
available to the Unified and Specified Commands.
(d) Participate in the DSARC process as established in DoD Directive
5000.2,1221 by providing the Director of Defense Research and
Engineering with threat descriptions based on the information derived
from intelligence and threat validation in support of systems
acquisition.
(e) Supervise the DoD indications system and provide support to the
National Military Command System through the National Military
Intelligence Center.
(f) Validate, register, assign, recommend priorities for, and monitor
the satisfaction of DoD collection requirements, including those
requirements assigned under the provisions of DoD Directive S-3115.7.
(g) Provide central management for the Defense Attache 1 System.
(h) Participate in the National Photographic Interpretation Center
and the Defense Special Missile and Astronautics Center.
(i) Establish, maintain and operate facilities for DoD imagery
indexing, processing, duplication, evaluation exploitation and central
repository services in support of DoD and other authorized recipients.
(j) Supervise a DoD-wide intelligence dissemination program and
provide centralized dissemination services in support of DoD and other
authorized recipients.
(k) Provide intelligence bibliography, reference library, and
research services as required to fulfill the DIA mission.
(l) Operate the Defense Intelligence School.
(m) In coordination with other intelligence agencies concerned,
recommend plans for intelligence operations, including plans for the use
of national intelligence systems to support military operational
commanders. As directed, coordinate the execution of approved
intelligence operations plans.
(n) Subject to the staff supervision of the Assistant Secretary of
Defense (Communications, Command, Control and Intelligence) (ASD(C3I)),
act as manager for all aspects of Defense intelligence production within
the General Defense Intelligence Program and recommend changes or
improvements in collection systems to the ASD(C3I).
(o) Act as management authority for all DoD intelligence information
systems except those systems dedicated to signals intelligence
operations and support functions falling within the scope of DoD
Directive S-3115.7.
(p) Establish and operate a DoD career development program for
civilian general intelligence personnel; review, coordinate, and
evaluate effectiveness of career development programs for military
general intelligence personnel; conduct planning and guidance
activities in coordination with DoD components on these programs to meet
DoD requirements. Provide technical assistance in the development and
conduct of DoD general intelligence training.
(q) Provide guidance, in conformance with policies of DoD and the
Director of Central Intelligence, to DoD components concerning the
release of Defense intelligence information to foreign governments,
international organizations and the public.
(r) Administer DoD security policies and programs to protect
intelligence and intelligence sources and methods, including direction
of the Defense Special Security System.
(s) Adjudicate clearance eligibility for DIA civilian personnel and
eligibility for access to compartmented intelligence for all personnel
assigned to OSD, OJCS, and the Defense Agencies, with the exception of
NSA, including contractors and consultants.
(t) Provide representation on national and international intelligence
committees, boards and working groups, as appropriate.
(u) Provide the DoD focal point for relationships with foreign
intelligence services.
(v) Prepare and submit to the Secretary of Defense the DIA program
and budget.
(w) Ensure that all DIA policies, plans, programs, and activities are
carried out in accordance with law and the provisions of Executive
Orders and other directives from higher authority establishing oversight
controls on foreign intelligence activities.
(x) Report to the Inspector General for Defense Intelligence and the
General Counsel, Department of Defense, any activities that raise
questions of legality or propriety.
(y) Establish and conduct or recommend research development, test and
evaluation programs or projects to carry out the responsibilities
assigned herein.
(z) Perform such other functions and services as the Secretary of
Defense may from time to time assign.
2211Filed as part of original. Single copies may be obtained, if
needed, from U.S. Naval Publications and Forms Center, 5801 Tabor
Avenue, Philadelphia, Pa 19120, Attention: Code 301.
32 CFR 354.4 Organization and administration.
(a) The Director, DIA, will be a commissioned officer of suitable
general of flag rank appointed by the Secretary of Defense from officers
of the Armed Forces on active duty. The DIA shall be authorized such
personnel, facilities, funds, and other administrative support as the
Secretary of Defense deems necessary.
(b) The Director, DIA, shall report to the Secretary of Defense and
the Chairman, Joint Chiefs of Staff. The Director, DIA, shall be under
the operational control of the Joint Chiefs of Staff for the purposes
of:
(1) Obtaining the intelligence support required to perform the
statutory and assigned responsibilities of the Joint Chiefs of Staff;
and
(2) Ensuring that adequate, timely and reliable intelligence support
is available to the Unified and Specified Commands.
(c) Staff supervision of the DIA for the Secretary of Defense will be
exercised by the Assistant Secretary of Defense (Communications,
Command, Control, and Intelligence) with respect to resources, and by
the Deputy Under Secretary of Defense (Policy Review) with respect to
policy.
(d) The performance of the Director, DIA, will be evaluated by the
Secretary of Defense. The Chairman, JCS, shall report on performance of
the Director, DIA, concurrently with the Secretary of Defense's report.
(42 FR 32537, June 27, 1977, as amended at 44 FR 36032, June 20,
1979; 45 FR 84996, Dec. 24, 1980)
32 CFR 354.5 Relationships.
(a) In the performance of his duties the Director, DIA, shall:
(1) Coordinate actions, as appropriate, with DoD components and
governmental agencies having collateral or related functions in the
field of his assigned responsibilities.
(2) Maintain liaison for the exchange of information and advice with
DoD components and other governmental agencies in the field of his
assigned responsibilities.
(b) The Military Departments and other DoD components shall provide
such support and assistance to the DIA as may be necessary for carrying
out its mission.
32 CFR 354.6 Authorities.
A delegation of the administrative authorities required by the
Director, DIA, to administer and direct the operations of the Agency is
contained in 354.7. In the performance of assigned responsibilities and
functions, the Director, DIA, is specifically delegated authority to:
(a) Establish, operate and control all organizations and activities
assigned to DIA.
(b) Assign tasks and issue instructions and guidance to DoD
components as necessary to carry out the functions assigned herein and
such additional functions as may be assigned. All such assignments and
issuance to a Military Department shall be through the Secretary of
Defense or his designee. For activities under the cognizance of the
Joint Chiefs of Staff, the Director, DIA, shall function as the
intelligence staff officer of the Joint Staff and assign tasks in
accordance with procedures of the Joint Chiefs of Staff.
(c) Have free and direct access to and communication with DoD
components, the U.S. Intelligence Community, and other executive
departments and agencies as necessary.
(d) Obtain from any DoD component such information as may be
necessary for the performance of assigned functions, subject to the
provisions of DoD Directive 5000.19.1
(e) Enter into agreements on intelligence exchanges and cooperation
with foreign military intelligence services as required to fulfill the
DIA mission.
1See footnote to 354.3.
32 CFR 354.7 Delegation of authority.
Pursuant to the authority vested in the Secretary of Defense, the
Director, DIA, or, in the absence of the Director, his designee, is
hereby delegated, subject to the direction, authority, and control of
the Secretary of Defense, and in accordance with DoD policies, authority
as required in the administration and operation of DIA to:
(a) Exercise the power vested in the Secretary of Defense by 5 U.S.C.
302 and 5 U.S.C. 3101 pertaining to the employment, direction and
general administration of DIA civilian personnel.
(b) Fix rates of pay for wage rate employees exempted from the
Classification Act by 5 U.S.C. 5102, on the basis of rates established
under the Coordinated Federal Wage System. DIA, in fixing such rates,
shall follow the wage schedule established by the DoD Wage Fixing
Authority.
(c) Establish such advisory committees and employ such part-time
advisers as approved by the Secretary of Defense for the performance of
DIA functions pursuant to the provisions of 10 U.S.C. 173, 5 U.S.C.
3109(b), and the agreement between the DoD and the Civil Service
Commission on employment of experts and consultants, dated March 14,
1975.
(d) Administer oaths of office incident to entrance into the
Executive Branch of the Federal Government or any other oath required by
law in connection with employment therein, in accordance with the
provisions of 5 U.S.C. 2903(b) and designate in writing, as may be
necessary, officers and employees of DIA to perform this function.
(e) Establish a DIA Incentive Awards Board and pay cash awards to and
incur necessary expenses for the honorary recognition of civilian
employees of the Government whose suggestions, inventions, superior
accomplishments, or other personal efforts, including special acts or
services, benefit or affect DIA or its subordinate activities in
accordance with the provisions of 5 U.S.C. 4503 and applicable Civil
Service Regulations.
(f) In accordance with the provisions of 5 U.S.C. 7532; Executive
Order 10450, ''Government Personnel Security Program,'' August 5, 1954;
and 32 CFR part 156:
(1) Designate any position in DIA as a ''sensitive'' position;
(2) Authorize, in case of any emergency, the appointment to a
sensitive position in the DIA for a limited period of time of a person
for whom a full field investigation or other appropriate investigation,
including the National Agency Check, has not been completed; and
(3) Authorize the suspension, but not terminate the services of, an
employee in the interest of national security in positions within DIA.
(g) Clear DIA civilian personnel and such other individuals as may be
appropriate for access to classified Defense material and information in
accordance with the provisions of 32 CFR part 156 and Executive Order
11652, ''Classification and Declassification of National Security
Information and Material,'' March 8, 1972.
(h) Act as agent for the collection and payment of employment taxes
imposed by Chapter 21 of the Internal Revenue Code of 1954, as amended;
and as such agent, make all determinations and certifications required
or provided for under section 3122 of the Internal Revenue Code of 1954,
as amended, and section 205(p) (1) and (2) of the Social Security Act,
as amended (42 U.S.C. 405(p) (1) and (2)) with respect to DIA employees.
(i) Authorize and approve overtime work for DIA civilian officers and
employees in accordance with the provisions of subchapter V, Chapter 55,
title 5, U.S. Code, and applicable Civil Service Regulations.
(j) Authorize and approve:
(1) Travel for DIA civilian employees in accordance with the Joint
Travel Regulations, Volume 2, Department of Defense Civilian Personnel.
(2) Temporary duty travel for military personnel assigned or detailed
to DIA in accordance with Joint Travel Regulations, Volume I for Members
of the Uniformed Services.
(3) Invitational travel to persons serving without compensation whose
consultive, advisory, or other highly specialized technical services are
required in a capacity that is directly related to or in connection with
DIA activities, pursuant to the provisions of 5 U.S.C. 5703.
(k) Approve the expenditure of funds available for travel by military
personnel assigned or detailed to DIA for expense incident to attendance
at meetings of technical, scientific, professional or other similar
organizations in such instances when the approval of the Secretary of
Defense or his designee is required by law (37 U.S.C. 412, 5 U.S.C.
4110 and 4111).
(l) Develop, establish, and maintain an active and continuing Records
Management Program, pursuant to the provisions of section 506(b) of the
Federal Records Act of 1950 (44 U.S.C. 3102).
(m) Establish and use imprest funds for making small purchases of
material and services other than personal for DIA when it is determined
more advantageous and consistent with the best interests of the
Government, in accordance with the provisions of DoD Directive 5100.71,1
''Delegation of Authority and Regulations Relating to Cash Held at
Personal Risk Including Imprest Funds,'' March 5, 1973.
(n) Authorize the publication of advertisements, notices, or
proposals in newspapers, magazines, or other public periodicals as
required for the effective administration and operation of DIA (44
U.S.C. 3702).
(o) Establish and maintain appropriate Property Accounts for DIA, and
appoint Boards of Survey, approve reports of survey, relieve personal
liability, and drop accountability for DIA property contained in the
authorized Property Accounts that has been lost, damaged, stolen,
destroyed, or otherwise rendered unserviceable in accordance with
applicable laws and regulations.
(p) Promulgate the necessary security regulations for the protection
of property and places under the jurisdiction of the Director, DIA,
pursuant to subsection III.A and V.B. of DoD Directive 5200.8,1
''Security of Military Installations and Resources,'' July 29, 1980.
(q) Establish and maintain, for the functions assigned, an
appropriate publications system for the promulgation of regulations,
instructions, and reference documents, and changes thereto, pursuant to
the policies and procedures prescribed in DoD Directive 5025.1,1
''Department of Defense Directives System,'' October 16, 1980.
(r) Enter into support and services agreements with the Military
Departments, other DoD components, or other Government agencies as
required for the effective performance of responsibilities and functions
assigned to DIA.
(s) Exercise the authority delegated to the Secretary of Defense by
the Administrator of the General Services Administration with respect to
the disposal of surplus personal property.
The Director, DIA, may redelegate these authorities, as appropriate,
and in writing, except as otherwise specifically indicated above or as
otherwise provided by law or regulation.
(t) Enter into and administer contracts, directly or through another
DoD Component or other Federal Agency, as appropriate, for supplies,
equipment, and services required to accomplish the mission of the
Defense Intelligence Agency. Contracting will be accomplished in
accordance with applicable laws, DoD regulations and the Defense
Acquisition Regulation. To the extent that any law or executive order
specifically limits the exercise of such authority to persons at the
Secretarial level of the Military Department, such authority will be
exercised by the appropriate Under Secretary of Defense.
(42 FR 33734, July 1, 1977, as amended at 45 FR 84996, Dec. 24, 1980)
1Copies may be obtained, if needed, from the U.S. Naval Publications
and Forms Center, 5801 Tabor Avenue, Philadelphia, PA 19120, Attention:
Code 301.
1See footnote to 354.7(m).
32 CFR 354.7 PART 355 -- CENTRAL IMAGERY OFFICE
Sec.
355.1 Purpose and applicability.
355.2 Mission.
355.3 Organization and management.
355.4 Responsibilities and functions.
355.5 Relationships.
355.6 Delegations of authority.
355.7 Administration.
Authority: 10 U.S.C. 301 and E.O. 12333, 3 CFR, 1981 Comp., p. 200.
Source: 57 FR 23157, June 2, 1992, unless otherwise noted.
32 CFR 355.1 Purpose and applicability.
(a) This part establishes a Central Imagery Office (CIO) within the
Department of Defense to ensure that United States Government
intelligence, mapping, charting and geodesy, and other needs for imagery
are met effectively and efficiently in a manner conducive to national
security, consistent with the authorities and duties of the Secretary of
Defense and the Director of Center Intelligence under Title 10, U.S.C.,
E.O. 12333, and DoD Directive 5240.1. /1/
(b) This part applies to the Office of the Secretary of Defense; the
Military Departments; the Chairman of the Joint Chiefs of Staff and the
Joint Staff; the Unified and Specified Combatant Commands; the Defense
Agencies; and DoD Field Activities.
/1/ Copies may be obtained from the National Technical Information
Service, 5285 Port Royal Road, Springfield, VA 22161.
32 CFR 355.2 Mission.
The Central Imagery Office shall provide support to the Department of
Defense, the Central Intelligence Agency, and other Federal Government
departments and agencies on matters concerning imagery relating to the
national security.
32 CFR 355.3 Organization and management.
The Central Imagery Office is hereby established as a defense agency
of the Department of Defense under 10 U.S.C. and is hereby designated as
a combat support agency. The Assistant Secretary of Defense for
Command, Control, Communications, and Intelligence shall exercise
overall supervision over the Central Imagery Office. The Central
Imagery Office shall consist of a Director of the Central Imagery Office
and such subordinate organizational elements, including the central
imagery tasking authority required by 355.5(a)(4), as the Director
establishes within the resources made available.
32 CFR 355.4 Responsibilities and functions.
The Director of the Central Imagery Office shall:
(a) Organize, direct, and manage the Central Imagery Office and all
assigned resources.
(b) Manage the establishment of national imagery collection
requirements consistent with guidance received from the Director of
Central Intelligence under E.O. 12333.
(c) Ensure responsive imagery support to the Department of Defense,
the Central Intelligence Agency, and, as appropriate, other Federal
Government departments and agencies, including by coordination of
imagery collection tasking, collection, processing, exploitation, and
dissemination.
(d) Task imagery collection elements of the Department of Defense to
meet national intelligence requirements, including requirements
established by the Director of Central Intelligence in accordance with
the National Security Act of 1947 and E.O. 12333, except that the
Director of the Central Imagery Office shall advise an imagery
collection element on collection of imagery to meet such national
intelligence requirements when the collection element both:
(1) Is assigned to or under the operational control of the Secretary
of a Military Department or a commander of a unified or specified
command and,
(2) Is not allocated by the Secretary of Defense to meet national
intelligence requirements.
(e) Advise imagery collection elements of the Department of Defense
on the collection of imagery to meet non-national intelligence
requirements.
(f) Establish, consistent to the maximum practicable extent with the
overall functional architectures of the Department of Defense, the
architectures for imagery tasking, collection, processing, exploitation,
and dissemination within the Department of Defense, and, to the extent
authorized by the heads of other departments or agencies with imagery
tasking, collection, processing, exploitation, and dissemination
functions establish the architectures for imagery tasking, collection,
processing, exploitation, and dissemination within those departments or
agencies.
(g) Establish, in coordination with the Director of the Defense
Information Systems Agency, as appropriate, standards for imagery
systems for which the Department of Defense has responsibility and
ensure compatibility and interoperability for such systems, and, to the
extent authorized by the heads of other departments or agencies with
imagery systems, establish standards and ensure compatibility and
interoperability with respect to the systems of those departments or
agencies.
(h) Serve as the functional manager for a Consolidated Imagery
Program within the National Foreign Intelligence Program consistent with
applicable guidance received from the Director of Central Intelligence
in accordance with the National Security Act of 1947 and E.O. 12333.
(i) Serve as the functional manager for the Tactical Imagery Program
within the budget aggregation known as the Tactical Intelligence and
Related Activites.
(j) Evaluate the performance of imagery components of the Department
of Defense in meeting national and non-national intelligence
requirements, and to the extent authorized by the heads of other
departments or agencies with imagery tasking, collection, processing,
exploitation, and dissemination functions evaluate the performance of
the imagery components of those departments or agencies in meeting
national and non-national intelligence requirements.
(k) Develop and make recommendations on national and non-national
imagery policy, including as it relates to international matters, for
the approval of appropriate Federal Government officials.
(l) Support and conduct research and development activities related
to imagery tasking, collection, processing, exploitation, and
dissemination, consistent with applicable law and Department of Defense
directives.
(m) Protect intelligence sources and methods from unauthorized
disclosure in accordance with guidance received from the Director of
Central Intelligence under the National Security Act of 1947 and E.O.
12333.
(n) Ensure the compliance of the Central Imagery Office with 10
U.S.C. the National Security Act of 1947, E.O. 12333, DoD Directive
5240.1 /2/ and 5240.1-R /3/ and other applicable laws and Department of
Defense directives.
(o) Establish standards for training personnel performing imagery
tasking, collection, processing, exploitation, and dissemination
functions.
(p) Advise the Secretary of Defense and the Director of Central
Intelligence on future needs for imagery systems.
(q) Ensure that imagery systems are exercised to support military
forces.
(r) Perform such other functions related to imagery as the Secretary
of Defense may direct.
/2/ See footnote 1 to 355.1(a).
/3/ Copies may be obtained from Assistant Secretary of Defense for
Command, Control, Communications, and Intelligence, ATTN: M. O'Byrne,
Washington, DC 20301.
32 CFR 355.5 Relationships.
(a) In performing assigned functions, the Director of the Central
Imagery Office shall:
(1) Communicate directly with the heads of Department of Defense
components concerning imagery matters as appropriate.
(2) Maintain liaison with Executive branch entities on imagery
matters as appropriate.
(3) To the extent permitted by law, make use of established
facilities and services in the Department of Defense or other
governmental agencies, whenever practicable, to achieve maximum
efficiency and economy, with special emphasis on maximizing use of the
existing personnel, facilities, and services of the Defense Intelligence
Agency, the Defense Mapping Agency, the National Security Agency, and,
to the extent authorized by the Director of Central Intelligence, the
Central Intelligence Agency.
(4) Establish within the Central Imagery Office a central imagery
tasking authority to execute the imagery collection tasking authority of
the Director of the Central Imagery Office.
(b) The Secretaries of the Military Departments, the Chairman of the
Joint Chiefs of Staff, and the heads of other Department of Defense
components shall support the Director of the Central Imagery Office in
the performance of the Director's functions, including by:
(1) Ensuring compliance with national intelligence tasking issued
under 355.4(d).
(2) Ensuring compliance with the architectures and standards
established by the Director of the Central Imagery Office under
355.4(f), (g), and (o).
(3) Assisting the Director in his role as functional manager for the
Consolidated Imagery Program and the Tactical Imagery Program under
355.4(h) and (i).
(4) Submitting imagery collection requirements to the Director.
32 CFR 355.6 Delegations and authority.
(a) The Assistant Secretary of Defense for Command, Control,
Communications, and Intelligence is hereby delegated the authority to
issue instructions to Department of Defense components to implement DoD
Directive 5105.56 /4/ . Instructions to the Military Departments shall
be issued through the Secretaries of the Military Departments.
Instructions to the commanders in chief of the Unified and Specified
Combatant Commands shall be issued through the Chairman of the Joint
Chiefs of Staff.
(b) The Director of the Central Imagery Office is hereby delegated
the authority to obtain reports, information, advice, and assistance,
consistent with DoD Directive 7750.5 /5/ , as necessary, in the
performance of the Director's assigned functions.
/4/ See footnote 1 to 355.1(a).
/5/ See footnotes 1 to 355.1(a).
32 CFR 355.7 Administration.
(a) The Director of the Central Imagery Office shall be appointed by
the Secretary of Defense on the recommendation of the Director of
Central Intelligence.
(b) The Director of the Central Imagery Office shall obtain
administrative support, including personnel, budget execution, and
contracting services, from the Defense Intelligence Agency and, to the
extent permitted by law and approved by the Secretary of Defense and the
Director of Central Intelligence, the Central Intelligence Agency.
(c) Resources for the Central Imagery Office shall be provided
through the National Foreign Intelligence Program and the budget
aggregation known as Tactical Intelligence and Related Activities, in
accordance with applicable planning, programing, and budgeting system
processes.
32 CFR 355.7 PART 356 -- WASHINGTON HEADQUARTERS SERVICES
Sec.
356.1 Purpose.
356.2 Definitions.
356.3 Mission.
356.4 Organization and management.
356.5 Functions and responsibilities.
356.6 Relationships.
356.7 Authorities.
Appendix A to Part 356 -- Delegations of Authority
Authority: 10 U.S.C. 131.
Source: 56 FR 23802, May 24, 1991, unless otherwise noted.
32 CFR 356.1 Purpose.
Pursuant to the authority vested in the Secretary of Defense under
title 10, United States Code, this part updates the mission, functions,
responsibilities, relationships, and authorities of the WHS.
32 CFR 356.2 Definitions.
(a) DoD Components. The Office of the Secretary of Defense (OSD),
the Military Departments, the Chairman of the Joint Chiefs of Staff and
the Joint Staff, the Unified and Specified Commands, the Office of the
Inspector General of the Department of Defense, the Defense Agencies,
and the DoD Field Activities.
(b) National Capital Region (NCR). The geographic area located
within the boundaries of the District of Columbia; Montgomery and
Prince Georges Counties in the State of Maryland; Arlington, Fairfax,
Loudoun, and Prince William Counties and the City of Alexandria in the
Commonwealth of Virginia; and all cities and other units of government
within the geographic areas of such District, Counties, and City.
(c) Pentagon Reservation. That area of land (consisting of
approximately 280 acres) and improvements thereon, located in Arlington,
Virginia, on which the Pentagon Office Building, Federal Office Building
2, the Pentagon heating and sewage treatment plants, and other related
facilities are located, including various areas designated for the
parking of vehicles.
32 CFR 356.3 Mission.
The WHS shall provide administrative and operational support to
specified activities in the NCR and elsewhere as required.
32 CFR 356.4 Organization and management.
(a) The WHS is established as a Field Activity of the Department of
Defense. It shall consist of a Director and such subordinate
organizational elements as are established by the Director within
resources authorized by the Secretary of Defense.
(b) The Director of Administration and Management, Office of the
Secretary of Defense (DA&M, OSD), also shall serve as the Director, WHS.
32 CFR 356.5 Functions and responsibilities.
The Director, Washington Headquarters Services, shall:
(a) Organize, direct, and manage the WHS and all resources assigned
to the WHS.
(b) Provide administrative support to the OSD and those Defense
Agencies, DoD Field Activities, and specified activities that do not
have an internal administrative support capability. This support shall
include all or part of the following:
(1) Budget and accounting.
(2) Civilian and military personnel management.
(3) Office services.
(4) Personnel and information security.
(5) Correspondence, cables, Directives, and records management.
(6) Travel.
(7) Other miscellaneous administrative support, as required.
(c) Administer information and data systems in support of the OSD
decision and policymaking processes. This involves management
information collection and reports preparation in areas including, but
not limited to, procurement, logistics, manpower, and economics.
(d) Manage the DoD reports and forms programs.
(e) Manage the information technology support program for the OSD and
other assigned DoD activities. Develop information management
strategies and programs; assist organizational components in developing
program proposals, plans, and budgets for automated information systems
(AIS) and in acquiring AIS equipment; and provide or arrange for AIS
technical assistance and maintenance support.
(f) Develop records management policy and provide appropriate
guidance to DoD Components.
(g) Manage the Pentagon Reservation; DoD-occupied, General Services
Administration-controlled administrative space in the NCR; and
associated support services. This shall include responsibility for:
(1) Real property and building management.
(2) Administrative space management and assignment.
(3) Law enforcement and physical security.
(4) Maintenance, repair, alteration, and renovation.
(5) Design and construction on DoD-controlled property.
(6) Graphics, concessions, custodial care, and other support
services.
(7) Contracting for the above, as required.
(8) Manage activities in support of the responsibilities of the
Secretary of Defense for the Federal Voting Assistance Program.
32 CFR 356.6 Relationships.
For the performance of assigned functions, the Director, WHS, shall:
(a) Coordinate and exchange information and advice with elements of
the OSD and other DoD Components having collateral or related
responsibilities.
(b) Make use of established facilities and services in the Department
of Defense and other Government Agencies, whenever practical, to avoid
duplication and achieve maximum efficiency and economy.
(c) Consult and coordinate with other governmental and
nongovernmental agencies on matters related to the WHS mission.
32 CFR 356.7 Authorities.
The Director, WHS, or designee, specifically is delegated authority
to:
(a) Obtain such information, consistent with the policies and
criteria of DoD Directive 7750.5 /1/ advice, and assistance from DoD
Components, as necessary.
(b) Issue DoD Instructions, DoD publications, and one-time
directive-type memoranda, consistent with DoD 5025.1-M /2/ that
implement approved policies in the functions assigned to the Director,
WHS. Instructions to the Military Departments shall be issued through
the Secretaries of those Departments, or their designees. Instructions
to the Unified and Specified Commands shall be issued through the
Chairman of the Joint Chiefs of Staff.
(c) Communicate directly with heads of DoD Components and other
Executive Departments and Agencies, as necessary, in carrying out
assigned responsibilities and functions. Communications to the
Commanders in Chief of the Unified and Specified Commands shall be
coordinated with the Chairman of the Joint Chiefs of Staff.
(d) Exercise the delegations of authority contained in appendix A to
this part.
/1/ Copies may be obtained, at cost, from the National Technical
Information Service (NTIS), 5285 Port Royal Road, Springfield, VA 22161.
/2/ See footnote 1 to 356.7(a).
32 CFR 356.7 Pt. 356, App. A
Pursuant to the authority vested in the Secretary of Defense, and
subject to his direction, authority, and control, and in accordance with
DoD policies, Directives, and Instructions, the Director, WHS, or the
person properly designated to act for him or her, is hereby delegated
authority with respect to the WHS and activities receiving
administrative support from the WHS to:
1. Exercise the power vested in the Secretary of Defense by sections
302 and 3101 and chapters 41 and 51 of 5 U.S.C. on the employment,
direction, and general administration of civilian personnel.
2. Fix rates of pay for wage-rate employees exempted from the
Classification Act of 1949 by 5 U.S.C. 5102 on the basis of rates
established under the Federal Wage System. In fixing such rates, the
Director, WHS, shall follow the wage schedule established by the DoD
Wage Fixing Authority.
3. Establish advisory committees and employ temporary or intermittent
experts or consultants, as approved by the Secretary of Defense, for the
performance of WHS functions consistent with 10 U.S.C. 173; 5 U.S.C.
3109(b); DoD Directive 5105.4, /1/ ''DoD Federal Advisory Committee
Management Program,'' September 5, 1989; and the agreement between the
Department of Defense and the Office of Personnel Management (OPM) on
employment of experts and consultants, June 21, 1977.
4. Administer oaths of office incident to entrance into the Executive
Branch of the Federal Government or any other oath required by law in
connection with employment therein, in accordance with 5 U.S.C. 2903(b).
5. Establish an Incentive Awards Board and pay cash awards to and
incur necessary expenses for the honorary recognition of civilian
employees of the Government for suggestions, inventions, superior
accomplishments, or other personal efforts, including special acts of
services, in accordance with 5 U.S.C. 4502, 4503, and 4505 and
applicable OPM regulations.
6. In accordance with 5 U.S.C. 7532; Executive Orders 10450, 12333,
and 12356; and DoD Directive 5200.2, /2/ ''DoD Personnel Security
Program,'' December 20, 1979, as appropriate:
a. Designate positions as ''sensitive.''
b. Authorize, in case of an emergency, the appointment to a sensitive
position, for a limited period of time, of a person for whom a full
field investigation or other appropriate investigation, including the
National Agency Check, has not been completed.
c. Authorize the suspension of, but not terminate the services of, an
employee in the interest of national security.
d. Initiate investigations, issue personnel security clearances and,
if necessary in the interest of national security, suspend, revoke, or
deny a security clearance for personnel assigned, detailed to, or
employed by DoD Components for which the Director, WHS, has been
delegated responsibility or has consented by written agreement to
provide personnel security support. Any action to deny or revoke a
security clearance shall be taken in accordance with procedures
prescribed in DoD 5200.2-R, /3/ ''DoD Personnel Security Program,''
January 1987.
7. Act as agent for the collection and payment of employment taxes
imposed by appropriate statutes.
8. Authorize and approve overtime work for civilian officers and
employees in accordance with subchapter V, chapter 55 of 5 U.S.C., and
applicable OPM regulations.
9. Authorize and approve:
a. Temporary duty travel for military personnel in accordance with
Volume I, Joint Federal Travel Regulations.
b. Travel for civilian officers and employees in accordance with
Volume II, Joint Travel Regulations.
c. Invitational travel to non-DoD employees whose consultative,
advisory, or other highly specialized technical services are required in
a capacity that is directly related to, or in connection with, WHS
activities, in accordance with Volume II, Joint Travel Regulations.
10. Approve the expenditures of funds available for travel by
military personnel for expenses incident to attendance at meetings of
technical, scientific, professional, or other similar organizations in
such instances when the approval of the Secretary of Defense, or his
designee, is required by law (37 U.S.C. 412, 5 U.S.C. 4110 and 4111).
11. Develop, establish, and maintain an active and continuing Records
Management Program, pursuant to section 506(b) of the Federal Records
Act of 1950 (44 U.S.C. 3102).
12. Establish and use imprest funds for making small purchases of
material and services, other than personal, when it is determined to be
more advantageous and consistent with the best interest of the
Government, in accordance with DoD Directive 7360.10, /4/ ''Disbursing
Policies,'' January 17, 1989.
13. Authorize the publication of advertisement, notices, or proposals
in newspapers, magazines, or other public periodicals, consistent with
44 U.S.C. 3702.
14. Establish and maintain appropriate property accounts and appoint
Boards of Survey, approve reports of survey, relieve personal liability,
and drop accountability for property contained in the authorized
property accounts that has been lost, damaged, stolen, destroyed, or
otherwise rendered unserviceable, in accordance with applicable laws and
regulations.
15. Promulgate the necessary security regulations for the protection
of property and places under the jurisdiction of this Directive,
pursuant to DoD Directive 5200.8, /5/ ''Security of Military
Installations and Resources,'' July 29, 1980.
16. Establish and maintain, for the Department of Defense, an
appropriate publications system for the promulgation of Directives,
Instructions, publications, and reference documents, and changes
thereto, pursuant to the policies and procedures prescribed in DoD
5025.1-M, ''DoD Directives System Procedures,'' December 1990.
17. Establish and maintain, for the functions assigned, an
appropriate publications system for the promulgation of common supply
and service regulations, Instructions, and reference documents, and
changes thereto, pursuant to the policies and procedures prescribed in
DoD 5025.1-M, ''DoD Directives System Procedures,'' December 1990.
18. Enter into support and service agreements with the Military
Departments, other DoD Components, or other Government Agencies, as
required for the effective performance of assigned responsibilities and
functions.
19. Enter into and administer contracts, directly or through a
Military Department, a DoD contract administration services component,
or other Government Department or Agency, as appropriate, for supplies,
equipment, and services required to accomplish assigned responsibilities
and functions. To the extent that any law or Executive order
specifically limits the exercise of such authority to persons at the
Secretarial level of a Military Department, such authority shall be
exercised by the appropriate Under Secretary or Assistant Secretary of
Defense.
20. Approve contractual instruments for commercial-type concessions
at the seat of Government, and maintain general supervision over
commercial-type concessions operated by or through the Department of
Defense at the seat of Government, in accordance with DoD Directive
5120.18, /6/ ''DoD Concessions Committee,'' April 8, 1980.
21. Act as custodian of the seal of the Department of Defense and
attest to the authenticity of official records of the Department of
Defense under said seal (10 U.S.C. 132).
22. Exercise the authority vested in the Secretary of Defense by 10
U.S.C. 2674 on the jurisdiction, custody, and control over, and
responsibility for, the operation, maintenance, and management of the
Pentagon Reservation.
a. Prescribe such rules and regulations as appropriate to ensure the
safe, efficient, and secure operation of the Pentagon Reservation,
including rules and regulations necessary to govern the operation and
parking of motor vehicles on the Pentagon Reservation.
b. Establish rates and collect charges for space, services,
protection, maintenance, construction, repairs, alterations, or
facilities provided at the Pentagon Reservation.
c. Authorize expenditures from the Pentagon Reservation Maintenance
Revolving Fund for real property management, operations, protection,
design and construction, repair, alteration, and related activities for
the Pentagon Reservation.
The Director, WHS, may redelegate these authorities, as appropriate,
and in writing, except as otherwise specifically indicated above or as
otherwise provided by law or regulation.
These delegations of authority are effective May 6, 1991.
/1/ Copies may be obtained, at cost, from the National Technical
Information Service (NTIS), 5285 Port Royal Road, Springfield, VA 22161.
/2/ See footnote 1 to 3 of this appendix.
/3/ See footnote 1 to 3 of this appendix.
/4/ See footnote 1 to 3 of this appendix.
/5/ See footnote 1 to 3 of this appendix.
/6/ See footnote to 3 of this appendix.
32 CFR 356.7 PART 357 -- DEFENSE CONTRACT AUDIT AGENCY
Sec.
357.1 Purpose.
357.2 Mission.
357.3 Organization and management.
357.4 Responsibilities and functions.
357.5 Authority.
357.6 Relationships.
357.7 Administration.
357.8 Delegations of authority.
Authority: 10 U.S.C. Chapter 4.
Source: 43 FR 32755, July 28, 1978, unless otherwise noted.
32 CFR 357.1 Purpose.
Pursuant to authority vested in the Secretary of Defense under the
provisions of title 10, United States Code, this part establishes the
Defense Contract Audit Agency (hereafter referred to as ''DCAA'') with
responsibilities, functions, authorities, and relationships as outlined
below.
32 CFR 357.2 Mission.
DCAA shall: (a) Perform all necessary contract audit for the
Department of Defense and provide accounting and financial advisory
services regarding contracts and subcontracts to all Department of
Defense components responsible for procurement and contract
administration. These services will be provided in connection with
negotiation, administration, and settlement of contracts and
subcontracts.
(b) Provide contract audit service to other Government agencies as
appropriate.
32 CFR 357.3 Organization and management.
(a) DCAA is established as a separate agency of the Department of
Defense under the direction, authority and control of the Assistant
Secretary of Defense (Comptroller). It shall consist of a Director and
such subordinate organizational elements as are established by the
Director within resources authorized by the Secretary of Defense.
(b) No separate contract audit organization independent of the DCAA
shall be established in the Department of Defense.
32 CFR 357.4 Responsibilities and functions.
The Director, DCAA, shall: (a) Organize, direct, and manage the DCAA
and all resources assigned to the DCAA.
(b) Assist in achieving the objective of prudent contracting by
providing DoD officials responsible for procurement and contract
administration with financial information and advice on proposed or
existing contracts and contractors, as appropriate.
(c) Audit, examine and/or review contractors' and subcontractors'
accounts, records, documents, and other evidence; systems of internal
control; accounting, costing, and general business practices and
procedures; to the extent and in whatever manner is considered
necessary to permit proper performance of the other functions described
in paragraphs (d) through (l) of this section.
(d) Examine reimbursement vouchers received directly from
contractors, under cost-type contracts, transmitting those vouchers
approved for payment to the cognizant disbursing officer and issuing
DCAA Form 1, ''Notice of Contract Costs Suspended and/or Disapproved,''
with a copy to the cognizant contracting officer, with respect to costs
claimed but not considered allowable. Where the contractor disagrees
with a suspension or disallowance action by DCAA, and the difference
cannot be resolved, the contractor may appeal in writing to the
Administrative Contracting Officer (ACO) who will make his determination
in writing. In addition, the contracting officer may direct the
issuance of DCAA Form 1, ''Notice of Contract Costs Suspended and/or
Disapproved,'' with respect to any cost which he has reason to believe
should be suspended or disapproved.
(e) Provide advice and recommendations to procurement and contract
administration personnel on:
(1) Acceptability of costs incurred under redeterminable, incentive
and similar type contracts.
(2) Acceptability of incurred costs and estimates of cost to be
incurred as represented by contractors incident to the award,
negotiation, modification, change, administration, termination, or
settlement of contracts.
(3) Adequacy of financial or accounting aspects of contract
provisions.
(4) Adequacy of contractors' accounting and financial management
systems, adequacy of contractors' estimating procedures and adequacy of
property controls.
(f) Assist responsible procurement or contract administration
activities in their surveys of the purchasing-procurement systems of
major contractors.
(g) Direct audit reports to the Government management level having
authority and responsibility to take action on the audit findings and
recommendations.
(h) Cooperate with other appropriate Department of Defense components
on reviews, audits, analyses, or inquiries involving contractors'
financial position or financial and accounting policies, procedures, or
practices.
(i) Establish and maintain liaison auditors as appropriate at major
procuring and contract administration offices.
(j) Review General Accounting Office reports and proposed responses
thereto which involve significant contract or contractor activities for
the purpose of assuring the validity of appropriate pertinent facts
contained therein.
(k) In an advisory capacity, attend and participate, as appropriate,
in contract negotiation and other meetings which contract cost matters,
audit reports, or related financial matters are under consideration.
(l) Provide assistance, as requested in the development of
procurement policies and regulations.
(m) Perform such other functions as the Assistant Secretary of
Defense (Comptroller) may from time to time prescribe.
32 CFR 357.5 Authority.
The Director, DCAA, is specifically delegated authority to:
(a) Have free and unrestricted access to and direct communication
with all elements of the Department of Defense and other executive
departments and agencies as necessary.
(b) Establish Defense Contract Audit Agency facilities using
appropriate established physical facilities and services of other DoD
components whenever practicable to achieve maximum efficiency and
economy.
(c) Obtain such information, consistent with the policies and
criteria of DoD directive 5,000.19,1 advice, and assistance from DoD
components as he deems necessary.
(d) Exercise the administrative authorities contained in 357.8 of
this part.
1Copies may be obtained, if needed, from the U.S. Naval Publications
and Forms Center, 5801 Tabor Avenue, Philadelphia, Pa. 19120, Attention
Code 301.
32 CFR 357.6 Relationships.
(a) In the performance of his functions, the Director, DCAA, shall:
(1) Maintain appropriate liaison with other components of the DoD,
other agencies of the executive branch, and the General Accounting
Office for the exchange of information and programs in the field of
assigned responsibilities.
(2) Make full use of established facilities in the Office of the
Secretary of Defense, other DoD components, and other governmental
agencies rather than unnecessarily duplicating such facilities.
(3) The military departments and other DoD components shall provide
support, within their respective fields of responsibility, to the
Director, DCAA to assist in carrying out the assigned responsibilities
and functions of the Agency. Programing, budgeting and financing for
such support will be in accordance with policies and procedures
prescribed by the Assistant Secretary of Defense (Comptroller).
(b) Procurement and contract administration activities of the DoD
components shall utilize audit services of the DCAA to the extent
appropriate in connection with the negotiation, administration, and
settlement of contract payments and prices which are based on cost
(incurred or estimated), or on cost analysis.
32 CFR 357.7 Administration.
(a) The Director, DCAA, shall be a civilian selected by the Secretary
of Defense.
(b) The apointment of other personnel to the Agency will be subject
to the approval of the Director, DCAA.
(c) DCAA will be authorized such personnel, facilities, funds, and
other administrative support as the Secretary of Defense deems
necessary.
32 CFR 357.8 Delegations of authority.
Pursuant to the authority vested in the Secretary of Defense, and
subject to his direction, authority, and control, and in accordance with
DoD policies, directives, and instructions, the Director, DCAA, or, in
the absence of the Director the person acting for him, is hereby
delegated authority as required in the administration and operation of
DCAA to:
(a) Exercise the powers vested in the Secretary of Defense by 5
U.S.C. 301, 302(b) and 3101 pertaining to the employment, direction and
general administration of DCAA civilian personnel.
(b) Fix rates of pay for wage board employees exempted from Civil
Service classification by 5 U.S.C. 5102(c)(7) on the basis of prevailing
rates for comparable jobs in the locality where each installation is
located.
(c) Establish advisory committees and employ part-time advisers
pursuant to the provisions of 10 U.S.C. 173, 5 U.S.C. 3109(b), the
Federal Advisory Committee Act, and the Agreement between the Department
of Defense (DoD) and the Civil Service Commission on employment of
experts and consultants, dated March 14, 1975.
(d) Administer oaths of office incident to entrance into the
executive branch of the Federal Government or any other oath required by
law in connection with employment therein, in accordance with the
provisions of 5 U.S.C. 2903, and designate in writing, as may be
necessary, officers and employees of DCAA to perform this function.
(e) Establish a DCAA incentive awards board and pay cash awards to,
and incur necessary expenses for the honorary recognition of civilian
employees of the Government whose suggestions, inventions, superior
accomplishments or other personal efforts, including special acts or
services, benefit or affect DCAA or its subordinate activities in
accordance with the provisions of 5 U.S.C. 4503 and Civil Service
regulations.
(f) In accordance with the provisions of 5 U.S.C. 7532; Executive
Order 10450, dated April 27, 1953, as amended; and DoD directive
5210.7, ''Department of Defense Civilian Applicant and Employee Security
Program,'' September 2, 1966:
(1) Designate any position in DCAA as a ''sensitive'' position;
(2) Authorize, in case of an emergency, the appointment of a person
to a sensitive position in the Agency for a limited period of time for
whom a full field investigation or other appropriate investigation,
including the National Agency Check, has not been completed; and
(3) Authorize the suspension, but not to terminate the services of an
employee in the interest of national security in positions within DCAA.
(g) Clear DCAA personnel and such other individuals as may be
appropriate for access to classified Defense material and information in
accordance with the provisions of DoD directive 5210.8, ''Policy on
Investigation and Clearance of DoD Personnel for Access to Classified
Defense Information,'' February 15, 1962, and of Executive Order 11652,
dated March 8, 1972, as amended.
(h) Act as agent for the collection and payment of employment taxes
imposed by chapter 21 of the Internal Revenue Code of 1954 and, as such
agent, make all determinations and certifications required or provided
for under section 3122 of the Internal Revenue Code of 1954 and section
205(p) (1) and (2) of the Social Security Act, as amended (42 U.S.C.
405(p) (1) and (2)) with respect to DCAA employees.
(i) Authorize and approve overtime work for DCAA civilian officers
and employees in accordance with the provisions of the Federal Personnel
Manual Supplement 990-1, Section 550-111.
(j) Authorize and approve:
(1) Travel for DCAA civilian officers and employees in accordance
with Joint Travel Regulations, Volume 2, DoD Civilian Personnel;
(2) Temporary duty travel only for military personnel assigned or
detailed to DCAA in accordance with Joint Travel Regulations, Volume 1,
Members of Uniformed Services; and
(3) Invitational travel to persons serving without compensation whose
consultive, advisory or other highly specialized technical services are
required in a capacity that is directly related to, or in connection
with DCAA activities, pursuant to the provisions of 5 U.S.C. 5703.
(k) Approve the expenditure of funds available for travel by military
personnel assigned or detailed to DCAA for expenses incident to
attendance at meetings of technical, scientific, professional or other
similar organizations in such instances where the approval of the
Secretary of Defense or his designee is required by law (37 U.S.C.
412). This authority cannot be redelegated.
(l) Develop, establish and maintain an active and continuing records
management program, pursuant to the provisions of section 506(b) of the
Federal Records Act of 1950 (44 U.S.C. 3102), the Freedom of Information
Act program (5 U.S.C. 552) and the Privacy Act program (5 U.S.C. 552a).
(m) Establish and use imprest funds for making small purchases of
material and services other than personal for DCAA when it is determine
more advantageous and consistent with the best interests of the
Government, in accordance with the provisions of DoD Instruction
5100.71, ''Delegation of Authority and Regulations Relating to Cash Held
at Personal Risk Including Imprest Funds,'' March 5, 1973, and the Joint
Regulation of the General Services Administration/Treasury
Department/General Accounting Office, entitled ''For Small Purchases
Utilizing Imprest Funds.''
(n) Authorize the publication of advertisements, notices or proposals
in newspapers, magazines or other public periodicals as required for the
effective administration and operation of DCAA (44 U.S.C. 3702).
(o) Establish and maintain appropriate property accounts for DCAA and
appoint boards of survey, approve reports of survey, relieve personal
liability, and drop accountability for DCAA property contained in the
authorized property accounts that has been lost, damaged, stolen,
destroyed or otherwise rendered unserviceable, in accordance with
applicable laws and regulations.
(p) Promulgate the necessary security regulations for the protection
of property and places under the jurisdiction of the Director, DCAA,
pursuant to subsections III.A and V.B. of DoD Directive 5200.8,
''Authority of Military Commanders Under the Internal Security Act of
1950 to Issue Security Orders and Regulations for the Protection of
Property or Places Under Their Command,'' August 20, 1954.
(q) Establish and maintain, for the functions assigned, an
appropriate publications system for the promulgation of common supply
and service regulations, instructions, and reference documents, and
changes thereto, pursuant to the policies and procedures prescribed in
DoD Directive 5025.1, ''Department of Defense Directive System,''
November 18, 1977.
(r) Enter into support and service agreements with the military
departments, other DoD agencies, or other Government agencies as
required for the effective performance of responsibilities and functions
assigned to DCAA.
32 CFR 357.8 PART 358 -- DEFENSE ADVANCED RESEARCH PROJECTS AGENCY
Sec.
358.1 Purpose.
358.2 Mission.
358.3 Organization and management.
358.4 Responsibilities and functions.
358.5 Authority.
358.6 Relationships.
358.7 Administration.
Appendix -- Delegation of Authority
Authority: 10 U.S.C. 133
Source: 54 FR 9989, Mar. 9, 1989, unless otherwise noted.
32 CFR 358.1 Purpose.
Pursuant to the authority vested in the Secretary of Defense under
Title 10 U.S.C., this document revises 32 CFR part 358 to update the
responsibilities, functions, relationships, and authorities of the
Defense Advanced Research Projects Agency (DARPA).
32 CFR 358.2 Mission.
As the central research and development organization of the
Department of Defense with a primary responsibility to maintain U.S.
technological superiority over potential adversaries, DARPA shall:
(a) Pursue imaginative and innovative research and development
projects offering significant military utility.
(b) Manage and direct the conduct of basic and applied research and
development that exploits scientific breakthroughs and demonstrates the
feasibility of revolutionary approaches for improved cost and
performance of advanced technology for future military applications.
(c) Stimulate a greater emphasis on prototyping in defense systems by
conducting prototype projects that embody technology that might be
incorporated in joint programs, programs in support of deployed U.S.
Forces (including the Unified and Specified Commands), or selected
Military Department programs, and on request, assist the Military
Departments in their own prototyping programs.
32 CFR 358.3 Organization and management.
DARPA is established as a separate Agency of the Department of
Defense under the direction, authority, and control of the Under
Secretary of Defense (Acquisition) (USD(A)), in accordance with 32 CFR
Part 382. It shall consist of a Director and such subordinate elements
as are established by the Director within resources authorized by the
Secretary of Defense.
32 CFR 358.4 Responsibilities and functions.
The Director, DARPA, shall:
(a) Organize, direct, and manage the DARPA and all assigned
resources.
(b) Provide guidance and assistance, as appropriate, to all DoD
Components and other U.S. Government activities on matters pertaining to
the projects assigned to DARPA.
(c) Recommend to the Secretary of Defense, through the USD(A)), the
assignment of research projects to DARPA.
(d) Arrange for the performance of, and supervise the work connected
with, DARPA projects assigned to the Military Departments, other U.S.
Government activities, individuals, private business entities,
educational institutions, or research institutions, giving consideration
to the primary functions of the Military Departments.
(e) Engage in assigned advanced research projects.
(f) Keep the USD(A), the Military Departments, the Joint Chiefs of
Staff (JCS), and other DoD Agencies informed, as appropriate, on
significant new developments, breakthroughs, and technological advances
within assigned projects and on the status of such projects to
facilitate early operational assignment.
(g) Prepare and submit to the Comptroller of the Department of
Defense, in accordance with established procedures, the DARPA annual
program budget estimates, to include the assignment of appropriation
program priorities.
(h) Perform such other functions as may be assigned by the USD(A).
32 CFR 358.5 Authority.
The Director, DARPA, is specifically delegated authority to:
(a) Place funded work orders with Military Departments and other DoD
Components or directly with subordinate levels of the Military
Departments, after clearance with the Secretary of the Military
Department concerned.
(b) Authorize the allocation, as appropriate, of funds made available
to DARPA for assigned advanced projects.
(c) Establish for DARPA, the Military Departments, and other R&D
activities, procedures required in connection with work being performed
for DARPA, consistent with policies and instructions governing the
Department of Defense.
(d) Serve as head of an Agency and Contracting Activity within the
meaning of, and subject to the limitations of, FAR subpart 2.1, April 1,
1984, as supplemented by DFARS subpart 202.1.
(e) Prosecute assigned advanced research projects by contract, grant,
cooperative agreement, or any other authorized means.
(f) Acquire or construct, directly or through a Military Department
or other U.S. Government Agency, such research, development, and test
facilities and equipment required to carry out assignments that may be
approved by the Secretary of Defense in accordance with applicable
statutes and DoD Directives.
(g) Obtain reports and information, consistent with the policies and
criteria of DoD Directive 7750.5 and advice and assistance from other
DoD Components, as necessary, to carry out DARPA functions and
responsibilities.
(h) Exercise the administrative authorities in the Appendix to this
part.
32 CFR 358.6 Relationships.
(a) In the performance of assigned functions, the Director, DARPA,
shall:
(1) Maintain appropriate liaison for the exchange of information and
advice in the field of assigned responsibility with other DoD
Components, Agencies of the executive branch, foreign research
activities, and non-DoD R&D activities including private business
entities and educational institutions.
(2) Ensure that appropriate staff elements of the Office of the
Secretary of Defense (OSD), the Joint Chiefs of Staff and the Joint
Staff, the Military Departments, and other DoD Components are kept fully
informed concerning DARPA activities with which they have substantive
concern.
(3) Make appropriate use of established facilities and services in
the Department of Defense or other governmental Agencies, wherever
practicable, to achieve maximum efficiency and economy.
(b) The Secretaries of the Military Departments and heads of other
DoD Components shall:
(1) Provide assistance and support, in their respective fields of
responsibility and within available resources, to the Director, DARPA,
as may be necessary to carry out the responsibilities and functions
assigned to DARPA.
(2) Coordinate with the Director, DARPA, on all matters related to
responsibilities and functions assigned to DARPA.
32 CFR 358.7 Administration.
(a) The Director, DARPA, shall be a civilian selected by the
Secretary of Defense.
(b) DARPA shall be authorized such personnel, facilities, funds, and
other administrative support as the Secretary of Defense deems
necessary.
(c) The Military Departments shall assign personnel to DARPA in
accordance with approved authorizations and procedures for assignment to
joint duty.
(d) Administrative support required for DARPA shall be provided by
the Director, Washington Headquarters Services (WHS), and other DoD
Components, as appropriate.
32 CFR 358.7 Appendix -- Delegation of Authority
32 CFR 358.7 Pt. 358, App.
Pursuant to the authority vested in the Secretary of Defense, and
subject to the direction, authority, and control of the Secretary of
Defense, and in accordance with DoD policies, Directives, and
Instructions, the Director, DARPA, or in the absence of the Director,
the person acting for the Director, is hereby delegated authority as
required in the administration and operation of DARPA to:
1. Designate any position in DARPA as a ''sensitive'' position, in
accordance with 5 U.S.C. 7532; Executive Orders 10450, 12333, and
12356; and DoD Directive 5200.2, ''DoD Personnel Security Program,''
December 20, 1979, as appropriate.
2. Authorize and approve overtime work for DARPA civilian officers
and employees in accordance with 5 U.S.C. Chapter 55, Subchapter V, and
applicable OPM regulations.
3. Authorize and approve:
a. Travel for DARPA civilian officers and employees in accordance
with Joint Travel Regulations, Volume, 2, ''DoD Civilian Personnel.''
b. Temporary duty travel for military personnel assigned or detailed
to DARPA in accordance with Joint Travel Regulations, Volume I,
''Members of Uniformed Services.''
c. Invitational travel to persons serving without compensation whose
consultive, advisory, or other highly specialized technical services are
required in a capacity that is directly related to, or is in connection
with, DARPA activities, pursuant to 5 U.S.C. 5703.
4. Approve the expenditure of funds available for travel by military
personnel assigned or detailed to DARPA for expenses incident to
attendance at meetings of technical, scientific, professional or other
similar organizations in such instances where the approval of the
Secretary of Defense, or designee, is required by law (37 U.S.C. 412
and 5 U.S.C. 4110 and 4111). This authority cannot be redelegated.
5. Develop, establish, and maintain an active and continuing Records
Management Program, pursuant to Section 506(b) of the Federal Records
Act of 1950 (44 U.S.C. 3102).
6. Enter into and administer contracts, directly or through a
Military Department, DoD contract administration services component, or
other Government Department or Agency, as appropriate, for supplies,
equipment, and services required to accomplish the mission of DARPA. To
the extent that any law or Executive order specifically limits the
exercise of such authority to persons at the Secretarial level, such
authority shall be exercised by the appropriate Under Secretary or
Assistant Secretary of Defense.
7. Enter into and administer grants, co-operative agreements, and
other authorized transactions with any Agency, university, non-profit
corporation or other organization to carry out or support work required
to execute any assigned advanced research project.
8. Establish and use imprest funds for making small purchases of
material and services, other than personal, for DARPA, when it is
determined more advantageous and consistent with the best interests of
the Government, in accordance with DoD Instruction 5100.71, ''Delegation
of Authority and Regulations Relating to Cash Held at Personal Risk
Including Imprest Funds,'' March 5, 1973.
9. Authorize the publication of advertisements, notices, or proposals
in newspapers, magazines, or other public periodicals as required for
the effective administration and operation of DARPA consistent with 44
U.S.C. 3702.
10. Promulgate the necessary security regulations for the protection
of property and places under the jurisdiction of the Director, DARPA,
pursuant to DoD Directive 5200.8, ''Security of Military Installations
and Resources,'' July 29, 1980.
11. Establish and maintain, for the functions assigned, an
appropriate publications system for the promulgation of common supply
and service regulations, instructions, and reference documents, and
changes thereto, pursuant to the policies and procedures in DoD
5025.1-M, ''Department of Defense Directives System Procedures,'' April
1981.
12. In coordination with the Director of Administration and
Management, enter into support and service agreements with the Military
Departments, other DoD Components, or other Government Agencies, as
required for the effective performance of DARPA functions and
responsibilities.
13. Establish and maintain appropriate property accounts for DARPA
and appoint Boards of Survey, approve reports of survey, relieve
personal liability, and drop accountability for DARPA property contained
in the authorized property accounts that has been lost, damaged, stolen,
destroyed, or otherwise rendered unserviceable, in accordance with
applicable laws and regulations.
The Director, DARPA, may redelgate these authorities as appropriate,
and in writing, except as otherwise specifically indicated above or as
otherwise provided by law or regulation.
32 CFR 358.7 PART 359 -- DEFENSE LOGISTICS AGENCY (DLA)
Sec.
359.1 Purpose.
359.2 Mission.
359.3 Organization and management.
359.4 Responsibilities and functions.
359.5 Authority.
359.6 Relationships.
359.7 Administration.
Appendix A to Part 359 -- Assigned DoD Programs and/or Systems
Appendix B to Part 359 -- Delegations of Authority
Authority: 10 U.S.C. 191-193.
Source: 54 FR 2101, Jan. 19, 1989, unless otherwise noted.
32 CFR 359.1 Purpose.
Pursuant to authority vested in the Secretary of Defense under Title
10, this part revises 32 CFR part 359 to update the responsibilities,
functions, relationships, and authorities of the Defense Logistics
Agency (DLA).
32 CFR 359.2 Mission.
The DLA shall function as an integral element of the military
logistics system of the Department of Defense to provide effective and
efficient world-wide logistics support to the Military Departments and
the Unified and Specified Commands under conditions of peace and war, as
well as to other DoD Components, Federal Agencies, foreign governments,
or international organizations, as assigned. This support shall
include:
(a) The provision of material commodities and items of supply that
have been determined, through the application of approved criteria, to
be appropriate for integrated management by a single agency on behalf of
all DoD Components, of that has been otherwise specifically assigned by
appropriate authority.
(b) The performance of logistics services directly associated with
furnishing material commodities and items of supply (hereafter referred
to as ''Items'').
(c) The administration of Department-wide supply and logistics
management systems, programs, and activities, as assigned, including the
provision of technical assistance, support services, and information.
32 CFR 359.3 Organization and management.
DLA is established as a Combat Support Agency of the Department of
Defense under the overall supervision of the Under Secretary of Defense
for Acquisition (USD(A)) and, with the exception of those
responsibilities, functions and relationships assigned to the Chairman,
Joint Chiefs of Staff (CJCS), by this part, is under the direction,
authority, and control of the USD(A) pursuant to 32 CFR part 382. It
shall consist of a Director and such subordinate organizational elements
as are established by the Director or specifically assigned to the
Agency by the Secretary of Defense.
32 CFR 359.4 Responsibilities and functions.
(a) The Director, Defense Logistics Agency (DLA) shall:
(1) Organize, direct, and manage the DLA and all assigned resources;
procure assigned items; and administer, supervise, and control all
programs, services, and items assigned to DLA.
(2) Provide staff advice and assistance on supply and logistics
matters to the Office of the Secretary of Defense (OSD), the Military
Departments, other DoD Components, and other designated organizations,
as appropriate.
(3) Maintain a wholesale distribution system for assigned items and
accomplish all material management functions required to ensure
responsive support to the associated supply and logistics requirements
determination, supply control, procurement, quality and reliability
assurance, industrial responsiveness and mobilization planning, receipt,
storage, inventory accountability and distribution control,
transportation, repair, maintenance and manufacture, shelf-life control,
provisioning, technical logistic data and information, engineering
support, value engineering, standardization, reutilization and
marketing, and other related supply and logistics management functions,
as appropriate.
(4) Provide contract administration services in support of the
Military Departments and other DoD Components, the National Aeronautics
and Space Administration, and other designated Federal and State
Agencies, foreign governments, and international organizations.
(5) Operate centralized management information and technical report
data banks in DLA; oversee the management of contractor-operated DoD
Information Analysis Centers in selected fields of science and
technology; and provide scientific and technical information to DoD
Components, individuals, businesses, educational institutions,
government laboratories, government contractors, and others consistent
with policy guidance provided by the Under Secretary of Defense for
Research and Engineering.
(6) Perform systems analysis and design, procedural development, and
maintenance for supply and service systems and other logistics matters
assigned by the Secretary of Defense.
(7) Administer, manage, and operate the DoD-wide programs and systems
listed in enclosure 1, and recommend periodic revisions to this list, as
appropriate.
(8) Develop, monitor, and maintain effective supply relationships
with the General Services Administration (GSA) in order to ensure the
timely availability of GSA items required by DoD Components.
(9) Support the Commanders of Unified Commands, and through overseas
elements of DLA, provide coordinated and responsive logistics support;
develop policies; plans, and procedures; develop resources
requirements; ensure security compliance by DLA personnel; and provide
for the management and direction of DLA overseas activities.
(10) Perform such other functions as may be assigned by the Secretary
of Defense or USD(A).
(b) The Under Secretary of Defense (Acquisition) (USD(A)) shall:
(1) Provide guidance and direction to DLA on operational policies and
procedures related to the development and operation of defense logistics
programs and systems.
(2) Consult with the CJCS on such areas as critical logistics war
fighting deficiencies and military requirements for defense acquisition
programs.
(3) Obtain recommendations from the CJCS relative to DLA's
contribution to war fighting readiness and sustainment of the Unified
Commands.
(c) The Chairman, Joint Chiefs of Staff (CJCS), under the authority
and direction of the Secretary of Defense, shall:
(1) Provide advice and recommendations to the USD(A) regarding the
mission, functions, and responsibilities of DLA.
(2) Provide advice on matters pertaining to the policies, planning,
design, maintenance, testing, and evaluation of logistics systems.
(3) Obtain advice and recommendations from the USD(A) and from the
Director, DLA, on matters within the areas of responsibility assigned to
DLA.
(4) Review DLA planning and programming documents, assess their
responsiveness to operational requirements, and provide direction to the
Director, DLA.
(5) Periodically submit (not less than every 2 years) to the
Secretary of Defense a report with respect to DLA's responsiveness and
readiness to support operating forces in the event of war or threat to
national security and other recommendations that the Chairman deems
appropriate.
(6) Provide for the participation of DLA in joint training exercises
and assess performance.
(7) Provide tasking related to defense readiness to the Director,
DLA.
(8) Develop and submit JCS logistics requirements and priorities to
the Director, DLA.
(d) The Commander of a Unified Command is authorized to, and as
appropriate shall:
(1) Following approval from the Director, DLA, or the CJCS, and
within the Commander's geographic area, direct DLA elements to ensure
effective operations.
(2) In a major emergency, assume temporary operational control of all
DLA elements in the Commander's area of responsibility, with
notification immediately following to the CJCS, the appropriate
operational commander, and the Director, DLA.
(e) Commanders of Component Commands shall:
(1) Exercise such responsibilities and authorities pertinent to DLA
elements as may be assigned or delegated to them by the Commander of
their Unified Command.
(2) Provide for the physical security and administrative and logistic
support of DLA elements as agreed to by DLA and Component Commands
concerned under inter-Service support agreements.
(f) Within their areas of responsibility, the CJCS, the CINCs, the
Secretaries of the Military Departments, and the heads of other DoD
Components shall provide to the Director, DLA, support and logistical
planning information, including information on funding shortfalls that
impact the responsibilities and functions assigned to DLA.
32 CFR 359.5 Authority.
The Director, DLA, is specifically delegated authority to:
(a) Meet the needs of the Military Departments and other authorized
customers by conducting, directing, supervising, or controlling all
procurement activities regarding property, supplies, and services
assigned to DLA for procurement in accordance with applicable laws, DoD
Regulations, the FAR and the DFARS. To the extent that any law or
Executive order specifically limits the exercise of such authority to
persons at the Secretarial level, such authority shall be exercised by
the USD(A).
(b) Prescribe procedures, standards, and practices for the Department
of Defense governing the execution of assigned responsibilities and
functions.
(c) Obtain such reports, information, advice, and assistance from
other DoD Components consistent with the policies and criteria of DoD
Directive 7750.5 /1/ as may be necessary for the performance of assigned
functions and responsibilities.
(d) Establish new DLA facilities or recommend to the USD(A) the
reassignment to DLA or use of existing facilities of the Military
Departments by DLA, as deemed necessary for improved effectiveness and
economy.
(e) Provide membership on the Defense Acquisition Regulatory Council
(DAR Council), participate with the Secretaries of the Military
Departments and Federal Agencies in developing and publishing the FAR
and participate with the Secretaries of the Military Departments in
developing and publishing the DFARS.
(f) Exercise the administrative authorities contained in the Appendix
B to this part.
/1/ Copies may be obtained, if needed, from the U.S. Naval
Publications and Forms Center, Attn: Code 1062, 5801 Tabor Avenue,
Philadelphia, PA 19120.
32 CFR 359.6 Relationships.
(a) In performing assigned functions, the Director, DLA, shall:
(1) Have free and direct access to, and communicate with, all
elements of the Department of Defense and other Executive Departments
and Agencies, as necessary.
(2) Maintain appropriate liaison with other DoD Components, Agencies
of the Executive branch, foreign governments, and international
organizations for the exchange of information on programs and activities
in the field of assigned responsibilities.
(3) Maintain close working relationships with weapon systems managers
of the Military Departments to ensure integration of effort and exchange
of technical programs and reference data.
(4) Use established facilities and services of the Department of
Defense and other Federal Agencies, whenever practicable, to avoid
duplication and to achieve an appropriate balance among modernization,
readiness, sustain ability, efficiency, and economy.
32 CFR 359.7 Administration.
(a) The Director shall be an active duty, commissioned officer of
General or Flag rank, appointed by the Secretary of Defense based on the
recommendation of the CJCS as approved by the USD(A).
(b) The Deputy Director shall be an active duty, commissioned officer
of General or Flag rank, approved by the USD(A) based on the
recommendation of the CJCS and Director, DLA.
(c) DLA shall be authorized such personnel, facilities, funds, and
other administrative support as the Secretary of Defense deems
necessary.
(d) The Military Departments shall assign military personnel to DLA
in accordance with approved authorizations and procedures for assignment
to joint duty.
(e) Programming, budgeting, funding, auditing, accounting, pricing,
and reporting activities of DLA shall be in accordance with established
DoD policy and procedures. DLA shall use appropriated funds to finance
the operating costs of the Agency; a stock fund to finance all
inventories procured for resale; a transaction fund to finance the
purchase of needed stockpile materials; and, when appropriate, an
industrial fund for financing industrial-commercial type operations.
32 CFR 359.7 Appendix A to Part 359 -- Assigned DoD Programs and/or Systems
32 CFR 359.7 Pt. 359, App. A
The following DoD programs and/or systems or aspects of these
programs and/or systems are assigned to DLA to administer, manage,
and/or operate:
DoD Coordinated Procurement
Federal Catalog System
DoD Industrial Plant Equipment
Operating Military Parts Control Advisory Groups for Standardization
of Parts at the System Equipment Design Stage
Defense Automatic Addressing System
Defense Precious Metals Recovery
Assigned Aspects of DoD Food Service Management
Defense Procurement Management Review
Defense Energy Information System
Centralized Referral System
Overseas Employment Referral
Automation Resources Management System
Depot Maintenance and Maintenance Support Cost Accounting and
Production Reporting and Information System
DoD Shelf-life Item Management
DoD Scientific and Technical Information
DoD Information Analysis Center
DoD Hazardous Materials Information System
Hazardous Material Technology Development
DoD-wide Interchangeability and/or Substitutability
Dod Personal Property Utilization and Disposal
DoD Industrial Resources Management
Integrated Material Manager for Bulk Petroleum
DoD Specification Standardization
National Defense Stockpile Program
32 CFR 359.7 Appendix B to Part 359 -- Delegations of Authority
32 CFR 359.7 Pt. 359, App. B
Pursuant to the authority vested in the Secretary of Defense, and
subject to the direction, authority, and control of the Secretary of
Defense, and in accordance with DoD Policies, Directives, and
Instructions, the Director, DLA, or in the absence of the Director, the
person acting for the Director, is hereby delegated authority as
required in the administration and operation of DLA to:
1. Exercise the powers vested in the Secretary of Defense by 5 U.S.C.
301, 302(b), and 3101 pertaining to the employment, direction and
general administration of DLA civilian personnel.
2. Fix rates of pay for wage-rate employees exempted from the
Classification Act of 1949 by 5 U.S.C. 5102 on the basis of rates
established under the Combined Federal Wage System. In fixing such
rates, the Director, DLA, shall follow the wage schedule established by
the DoD Wage Fixing Authority.
3. Establish advisory committees and employ part-time advisors as
approved by the Secretary of Defense for the Performance of DLA
functions pursuant to the provisions of 10 U.S.C. 173, 5 U.S.C.
3109(b), and the agreement between the Department of Defense and the
Office of Personnel Management (OPM) on employment of experts and
consultants, dated June 21, 1977.
4. Administer oaths of office incident to entrance into the Executive
Branch of the Federal Government or any other oath required by law in
connection with employment therein, in accordance with the provisions of
5 U.S.C. 2903, and designate in writing, as may be necessary, officers
and employees of DLA to perform this function.
5. Establish a DLA Incentive Awards Board and pay cash awards to, and
incur necessary expenses for the honorary recognition of, civilian
employees of the Government whose suggestions, inventions, superior
accomplishments, or other personal efforts, including special acts or
services, benefit or affect DLA or its subordinate activities, in
accordance with the provisions of 5 U.S.C. 4503 and OPM regulations.
6. In accordance with the provisions of 5 U.S.C. 7532; Executive
Orders 10450, 12333, and 12356; and DoD Directive 5200.2, ''DoD
Personnel Security Program,'' December 20, 1979:
a. Designate the security sensitivity of positions within DLA.
b. Authorize, in case of an emergency, the appointment of a person to
a sensitive position in DLA for a limited period of time for whom a full
field investigation or other appropriate investigation, including the
National Agency Check, has not been completed.
c. Authorize the suspension, but not terminate the services of a DLA
employee in the interest of national security.
d. Initiate investigations, issue personnel security clearances and,
if necessary, in the interest of national security, suspend, revoke, or
deny a security clearance for personnel assigned or detailed to, or
employed by DLA. Any action to deny or revoke a security clearance
shall be taken in accordance with procedures prescribed in DoD 5200.2-R,
''DoD Personnel Security Program,'' January 1987.
7. Act as agent for the collection and payment of employment taxes
imposed by Chapter 21 of the Internal Revenue Code of 1954, as amended;
and, as such agent, make all determinations and certifications required
or provided for under the Internal Revenue Code of 1954, as amended (26
U.S.C. 3122), and the Social Security Act, as amended (42 U.S.C. 405(p)
(1) and (2)), with respect to DLA employees.
8. Authorize and approve overtime work for DLA civilian personnel in
accordance with 5 U.S.C. Chapter 55, Subchapter V, and applicable OPM
regulations.
9. Authorize and approve:
a. Travel for DLA civilian personnel in accordance with Joint Travel
Regulations, Volume 2, ''DoD Civilian Personnel.''
b. Temporary duty travel for military personnel assigned or detailed
to DLA in accordance with Joint Travel Regulations, Volume 1, ''Members
of Uniformed Services.''
c. Invitational travel to persons serving without compensation whose
consultative, advisory, or other highly specialized technical services
are required in a capacity that is directly related to, or in connection
with, DLA activities, pursuant to 5 U.S.C. 5703.
10. Approve the expenditure of funds available for travel by military
personnel assigned or detailed to DLA for expenses regarding attendance
at meetings of technical, scientific, professional, or other similar
organizations in such instances when the approval of the Secretary of
Defense, or designee, is required by law (37 U.S.C. 412 and 5 U.S.C.
4110 and 4111). This authority cannot be redelegated.
11. Develop, establish, and maintain an active and continuing Records
Management Program, pursuant to 44 U.S.C. 3102 and DoD Directive 5015.2,
''Records Management Program,'' September 17, 1980.
12. Establish and use imprest funds for making small purchases of
material and services, other than personal services, for DLA when it is
determined more advantageous and consistent with the best interests of
the Government, in accordance with DoD Instruction 5100.71, ''Delegation
of Authority and Regulations Relating to Cash Held at Personal Risk
Including Imprest Funds,'' March 5, 1973.
13. Authorize the publication of advertisements, notices, or
proposals in newspapers, magazines, or other public periodicals as
required for the effective administration and operation of DLA,
consistent with 44 U.S.C. 3702.
14. Establish and maintain appropriate property accounts for DLA and
appoint Boards of Survey, approve reports of survey, relieve personal
liability, and drop accountability for DLA property contained in the
authorized property accounts that has been lost, damaged, stolen,
destroyed, or otherwise rendered unserviceable, in accordance with
applicable laws and regulations.
15. Promulgate the necessary security regulations for the protection
of property and places under the jurisdiction of the Director, DLA,
pursuant to DoD Directive 5200.8, ''Security of Military Installations
and Resources,'' July 29, 1980.
16. Establish and maintain, for the functions assigned, a
publications system for the promulgation of common supply and service
regulations, instructions, and reference documents, and changes thereto,
pursuant to the policies and procedures prescribed in DoD 5025.1-M,
''Department of Defense Directives System Procedures,'' April 1981.
17. Enter into support and service agreements with the Military
Departments, other DoD Components, Government Agencies, and foreign
governments, as required for the effective performance of DLA functions
and responsibilities.
18. Exercise the authority delegated to the Secretary of Defense by
the Administrator of the General Services Administration (GSA) on the
disposal of surplus personal property.
19. Exercise the authority and responsibility of the Secretary of
Defense as delegated to the Director, DLA, for the National Industrial
Equipment Reserve established by the National Industrial Equipment
Reserve Act of 1948, as amended (50 U.S.C. 451 et seq.).
20. Designate an officer or employee of DLA to serve as the
Competition Advocate of the Agency, pursuant to 10 U.S.C. 2318.
21. Maintain an official seal and attest to the authenticity of
official DLA records under that seal.
The Director, DLA, may redelegate these authorities as appropriate,
and in writing, except as otherwise specifically indicated above or as
otherwise provided by law or regulation.
32 CFR 359.7 PART 360 -- DEFENSE MAPPING AGENCY (DMA)
Sec.
360.1 Purpose.
360.2 Mission.
360.3 Organization and management.
360.4 Responsibilities and functions.
360.5 Relationships.
360.6 Authority.
360.7 Administration.
Appendix to Part 360 -- Delegations of Authority
Authority: 10 U.S.C. 191-193.
Source: 55 FR 52169, Dec. 20, 1990, unless otherwise noted.
32 CFR 360.1 Purpose.
Under the authority vested in the Secretary of Defense by title 10,
United States Code, this part updates the responsibilities, functions,
relationships, and authorities of the Defense Mapping Agency (DMA).
32 CFR 360.2 Mission.
The DMA shall provide support to the Office of the Secretary of
Defense (OSD); the Military Departments; the Chairman, Joint Chiefs of
Staff and Joint Staff; the Unified and Specified Commands; and the
Defense Agencies (hereafter referred to collectively as ''DoD
Components'') and other Federal Government Departments and Agencies on
matters concerning mapping, charting, and geodesy (MC&G).
32 CFR 360.3 Organization and management.
The DMA is established as a Combat Support Agency of the Department
of Defense and shall be under the direction, authority, and control of
the Assistant Secretary of Defense for Command, Control, Communications,
and Intelligence (ASD(C3I)). It shall consist of a Director and such
subordinate organizational elements as are established by the Director
within resources authorized by the Secretary of Defense.
32 CFR 360.4 Responsibilities and functions.
The Director, Defense Mapping Agency (DMA), shall:
(a) Organize, direct, and manage the DMA and all assigned resources.
(b) Ensure responsive MC&G support to DoD Components.
(c) Serve as Program Manager and coordinator of DoD MC&G resources
and activities, to include reviewing the execution of DoD plans,
programs, and policies for MC&G activities not assigned to the DMA.
(d) Provide staff advice and assistance on MC&G matters to all DoD
Components and other Federal Government Agencies, as appropriate.
(e) Develop MC&G guidance for the Department of Defense, review DoD
Component programs and fiscal documents related to MC&G matters, and
recommend appropriate actions to the ASD(C3I).
(f) In support of the CJCS, review and validate the MC&G requirements
and priorities of the DoD Components and other Federal Government
Agencies, and develop and submit to the ASD(C3I) a consolidated
statement of MC&G production requirements and priorities in accordance
with the National Military Strategy Document. /1/
(g) Prepare, coordinate, and issue standards for MC&G products in
accordance with DoD 4120.3-M, /2/ and represent the Department of
Defense in national and international MC&G standardization activities.
(h) Develop policies and provide DoD participation in national and
international MC&G activities, in coordination with appropriate DoD
officials, and execute DoD responsibilities under interagency and
international MC&G agreements.
(i) Establish and/or consolidate DoD MC&G data collection
requirements and collect or task other DoD Components to collect and
provide necessary data.
(j) Develop a DoD MC&G research, development, test, and evaluate
(RDT&E) requirements plan, in coordination with appropriate DoD
officials, and, as appropriate, task DoD Components or private
contractors to satisfy the requirements.
(k) Carry out the statutory responsibilities assigned to the
Department of Defense under chapter 167 of 10 U.S.C. for providing
nautical charts and marine navigation data for the use of all vessels of
the United States and of navigators generally, and the responsibilities
assigned under chapter 13 of 44 U.S.C. for printing notices to mariners
and other publications.
(l) Establish and maintain a Joint Manpower Program that will be
reviewed annually by the CJCS under JCS MOP 173 /3/ .
(m) Provide technical guidance to all DoD components to ensure
standardization and interoperability of systems requiring MC&G support.
(n) Advise the Defense Acquisition Board on MC&G issues, as
appropriate, through the ASD(C3I).
(o) Serve as the primary DoD action office for all purchases of Land
Remote Sensing Satellite (LANDSAT) and Systems Probatoire d'Observation
de la Terra (SPOT) remote sensing data by the Military Departments and
Defense Agencies.
(p) Assist in unique MC&G product definition and development.
(q) Perform such other functions as may be assigned by the ASD(C3I).
/1/ Copies may be obtained, from the office of the Joint Secretariat,
Joint Staff, room 2E929, The Pentagon, Washington, DC 20318.
/2/ Copies may be obtained, from the National Technical Information
Service (NTIS), 5285 Port Royal Road, Springfield, VA 22161.
/3/ See footnote 1. to 360.4(f).
32 CFR 360.5 Relationships.
(a) In performing assigned functions, the Director, DMA, shall:
(1) Subject to the direction, authority, and control of the ASD(C3I),
be responsible to the CJCS for operational matters as well as
requirements associated with the joint planning process. For these
purposes, the CJCS is authorized to communicate directly with the
Director, DMA, and may task the Director, DMA, to the extent authorized
by the ASD(C3I).
(2) Maintain appropriate liaison with other DoD Components and other
Agencies of the Executive branch for the exchange of information on
programs and activities in the field of assigned responsibilities.
(3) Make use of established facilities and services in the Department
of Defense or other governmental agencies, whenever practicable, to
achieve maximum efficiency and economy.
(4) Ensure that the Secretary of Defense, the Secretaries of the
Military Departments, the CJCS, and the heads of other DoD Components
are kept fully informed concerning DMA activities with which they have
substantive concern.
(b) The Secretaries of the Military Departments, Commanders of
Unified and Specified Commands, and Heads of Other DoD Components shall:
(1) Use DMA standard products unless an exception is authorized by
the ASD(C3I).
(2) Develop and submit to the DMA their MC&G requirements and
priorities in accordance with the National Military Strategy Document.
(3) Provide support, within their respective fields of
responsibilities, to the Director, DMA, as required, to carry out the
responsibilities and functions assigned to the DMA.
(4) Assess the responsiveness of the DMA to their operational,
developmental, and training needs.
(5) Obtain DMA technical assistance for systems that require MC&G
products and services.
(6) Submit all requirements and provide funding to the DMA for
LANDSAT and SPOT remote sensing data.
(7) Submit all requirements and provide funding to the DMA for unique
MC&G products.
(8) Coordinate with the Director, DMA, on all programs and activities
that include or are related to MC&G.
(c) The Chairman, Joint Chiefs of Staff (CJCS), shall:
(1) Review DMA planning and programming documents, and assess their
responsiveness to operational, developmental, and training requirements.
(2) Periodically (not less than every 2 years), submit to the
Secretary of Defense a report on DMA's responsiveness and readiness to
support operating forces in the event of war or threat to national
security, and other recommendations as appropriate.
(3) Advise the Secretary of Defense on MC&G requirements and
priorities.
(4) Develop and issue jointly with the ASD(C3I) guidance to the DMA
and the Unified and Specified Commands that will serve as the basis for
interrelationships between these organizations.
(5) Provide for the participation of the DMA in joint training
exercises and monitor performance.
32 CFR 360.6 Authority.
The Director, DMA, is specifically delegated authority to:
(a) Task and issue necessary instructions and guidance to DoD
Components directly to accomplish the MC&G RDT&E and data collection
requirements established by the DMA.
(b) Communicate directly with heads of DoD Components and other
Executive Departments and Agencies, as necessary, in carrying out
assigned responsibilities and functions. Communications to the
Commanders in Chief of the Unified and Specified Commands shall be
coordinated with the CJCS.
(c) Obtain reports, information, advice, and assistance, consistent
with DoD Directive 7750.5 /4/ , as necessary, in carrying out assigned
responsibilities and functions.
(d) Establish facilities necessary to accomplish the DMA mission in
the most efficient and economical manner.
(e) Exercise the administrative authorities contained in the Appendix
to this part.
/4/ See footnote 2. to 360.4(g).
32 CFR 360.7 Administration.
(a) The Director and Deputy Director, DMA, shall be appointed by the
Secretary of Defense.
(b) The DMA shall be authorized such personnel, facilities, funds,
and other administrative support as the Secretary of Defense deems
necessary.
(c) The Military Departments shall assign military personnel to the
DMA in accordance with approved authorizations and procedures for
assignment to joint duty. The CJCS shall review and provide
recommendations on the DMA joint manpower program to the ASD(C3I), as
appropriate, for those functions where DMA is responsive to the CJCS.
32 CFR 360.7 Pt. 360, App.
32 CFR 360.7 Appendix to Part 360 -- Delegations of Authority
Pursuant to the authority vested in the Secretary of Defense, and
subject to the direction, authority, and control of the Secretary of
Defense, and in accordance with DoD policies, Directives, and
Instructions, the Director, DMA, or in the absence of the Director, the
person acting for the Director, is hereby delegated authority as
required in the administration and operation of the DMA to:
1. Exercise the powers vested in the Secretary of Defense by 5 U.S.C.
301, 302(b), and 3101 pertaining to the employment, direction, and
general administration of DMA civilian personnel.
2. Fix rates of pay for wage-rate employees exempted from the
Classification Act of 1949 by 5 U.S.C. 5102 on the basis of rates
established under the Coordinated Federal Wage System. In fixing such
rates, the Director, DMA, shall follow the wage schedule established by
the DoD Wage Fixing Authority.
3. Establish advisory committees and employ part-time advisors, as
approved by the Secretary of Defense, for the performance of DMA
functions consistent with the 10 U.S.C. 173, 5 U.S.C. 3109(b), DoD
Directive 5105.4, /1/ ''DoD Federal Advisory Committee Management
Program,'' September 5, 1989, and the agreement between the Department
of Defense and the Office of Personnel Management (OPM) on employment of
experts and consultants, June 21, 1977.
4. Administer oaths of office to those entering the Executive branch
of the Federal Government or any other oath required by law in
connection with employment therein, in accordance with 5 U.S.C. 2903,
and designate in writing, as may be necessary, officers and employees of
the DMA to perform this function.
5. Establish a DMA Incentive Awards Board and pay cash awards to, and
incur necessary expenses for the honorary recognition of, civilian
employees of the Government whose suggestions, inventions, superior
accomplishments, or other personal efforts, including special acts or
services, benefit or affect the DMA or its subordinate activities, in
accordance with 5 U.S.C. 4503 and applicable OPM regulations.
6. In accordance with 5 U.S.C. 7532; Executive Orders 10450, 12333,
and 12356; and DoD Directive 5200.2, /2/ ''DoD Personnel Security
Program,'' December 20, 1979; as appropriate:
a. Designate any position in the DMA as a ''sensitive'' position.
b. Authorize, in case of an emergency, the appointment of a person to
a sensitive position in the DMA for a limited period of time for whom a
full field investigation or other appropriate investigation, including
the National Agency Check, has not been completed.
c. Authorize the suspension, but not terminate the services, of an
employee in the interest of national security in positions within the
DMA.
d. Initiate investigations, issue personnel security clearances and,
if necessary, in the interest of national security, suspend, revoke, or
deny a security clearance for personnel assigned or detailed to, or
employed by the DMA. Any action to deny or revoke a security clearance
shall be taken in accordance with procedures prescribed in DoD 5200.2-R,
/3/ ''DoD Personnel Security Program,'' January 1987.
7. Act as agent for the collection and payment of employment taxes
imposed by chapter 21 of the Internal Revenue Code of 1954, as amended;
and, as such agent, make all determinations and certifications required
or provided for under section 3122 of the Internal Revenue Code of 1954,
as amended, and section 205(p)(1) and (2) of the Social Security Act, as
amended (42 U.S.C. 405(p)(1) and (2)) and with respect to DMA employees.
8. Authorize and approve overtime work for DMA civilian officers and
employees in accordance with 5 U.S.C. chapter 55, subchapter V, and
applicable OPM regulations.
9. Authorize and approve:
a. Temporary duty travel for military personnel assigned or detailed
to the DMA in accordance with Joint Travel Regulations, Volume 1, /4/
''Members of Uniformed Services.''
b. Travel for DMA civilian officers and employees in accordance with
Joint Travel Regulations, Volume 2, /5/ ''DoD Civilian Personnel.''
c. Invitational travel to persons serving without compensation whose
consultative, advisory, or other highly specialized technical services
are required in a capacity that is directly related to, or in connection
with, DMA activities, pursuant to 5 U.S.C. 5703.
10. Approve the expenditure of funds available for travel by military
personnel assigned or detailed to the DMA for expenses regarding
attendance at meetings of technical, scientific, professional, or other
similar organizations in such instances where the approval of the
Secretary of Defense, or designee, is required by law (37 U.S.C. 412 and
5 U.S.C. 4110 and 4111). This authority cannot be redelegated.
11. Develop, establish, and maintain an active and continuing Records
Management Program pursuant to Section 506(b) of the Federal Records Act
of 1950 (44 U.S.C. 3102).
12. Establish and use imprest funds for making small purchases of
material and services, other than personal services, for the DMA, when
it is determined more advantageous and consistent with the best
interests of the Government, in accordance with DoD Directive 7360.10,
/6/ ''Disbursing Policies,'' January 17, 1989.
13. Authorize the publication of advertisements, notices, or
proposals in newspapers, magazines, or other public periodicals as
required for the effective administration and operation of the DMA
consistent with 44 U.S.C. 3702.
14. Establish and maintain appropriate property accounts for the DMA,
and appoint Boards of Survey, approve reports of survey, relieve
personal liability, and drop accountability for DMA property contained
in the authorized property accounts that has been lost, damaged, stolen,
destroyed, or otherwise rendered unserviceable, in accordance with
applicable laws and regulations.
15. Promulgate the necessary security regulations for the protection
of property and places under the jurisdiction of the Director, DMA,
pursuant to DoD Directive 5200.8, /7/ ''Security of Military
Installations and Resources,'' July 29, 1980.
16. Establish and maintain, for the functions assigned, an
appropriate publications system for the promulgation of common supply
and service regulations, instructions, and reference documents, and
changes thereto, pursuant to the policies and procedures prescribed in
DoD 5025.1-M, /8/ ''Department of Defense Directives System
Procedures,'' April 1981.
17. Enter into support and service agreements with the Military
Departments, other DoD components, or other Government Agencies, as
required for the effective performance of DMA functions and
responsibilities.
18. Exercise the authority delegated to the Secretary of Defense by
the Administrator of the General Services Administration (GSA) for the
disposal of surplus personal property.
19. Enter into and administer contracts, directly or through a
Military Department, DoD contract administration services component, or
other Government Department or Agency, as appropriate, for supplies,
equipment, and services required to accomplish the mission of the DMA.
To the extent that any law or Executive order specifically limits the
exercise of such authority to persons at the Secretarial level, such
authority shall be exercised by the appropriate Under Secretary or
Assistant Secretary of Defense.
20. Sell maps, charts, and related products to the public as governed
by OMB Circular A-25 and 10 U.S.C. 2794.
21. Authorize the release of classified DoD MC&G products to foreign
nationals within DoD disclosure policies.
22. Lease property under the control of the DMA, under terms that
will promote the national defense or that will be in the public
interest, pursuant to 10 U.S.C. 2667.
23. Execute responsibilities of 10 U.S.C. 2795 relating to
international agreements.
The Director, DMA, may redelegate these authorities, as appropriate,
and in writing, except as otherwise specifically indicated above or as
otherwise provided by law or regulation.
These delegations of authority are effective December 6, 1990.
/1/ Copies may be obtained, at cost, from the National Technical
Information Service (NTIS), 5285 Port Royal Road, Springfield, VA 22161.
/2/ See footnote 1. to paragraph 3. of this Appendix.
/3/ See footnote 1. to paragraph 3. of this Appendix.
/4/ Copies may be obtained from the Government Printing Office,
Attention: Superintendent of Documents, Washington, DC 20402.
/5/ See footnote 4. to paragraph 9.a. of this Appendix.
/6/ See footnote 1. to paragraph 3. of this Appendix.
/7/ See footnote 1. to paragraph 3. of this Appendix.
/8/ See footnote 1. to paragraph 3. of this Appendix.
32 CFR 360.7 PART 361 -- DEFENSE INVESTIGATIVE SERVICE (DIS)
Sec.
361.1 Reissuance and purpose.
361.2 Applicability.
361.3 Organization and management.
361.4 Functions.
361.5 Responsibilities.
361.6 Relationships.
Appendix A to Part 361 -- Delegations of Authority
Authority: 10 U.S.C. Chapter 4.
Source: 52 FR 41993, Nov. 2, 1987, unless otherwise noted.
32 CFR 361.1 Reissuance and purpose.
This part revises 32 CFR part 361 and, pursuant to the authority
vested in the Secretary of Defense under Title 10, U.S. Code assigns
direction, authority, and control over the Defense Investigative Service
(DIS) to the Deputy Under Secretary of Defense for Policy (DUSD(P)), and
prescribes the organization and management, functions, responsibilities,
relationships, and authorities described in the following.
32 CFR 361.2 Applicability.
This part applies to the Office of the Secretary of Defense, the
Military Departments, the Organization of the Joint Chiefs of Staff, the
Unified and Specified Commands, and the Defense Agencies (hereafter
referred to collectively as ''DoD Components'').
32 CFR 361.3 Organization and management.
(a) The DIS is a separate agency of the Department of Defense under
the direction, authority, and control of the DUSD(P).
(b) The DIS shall consist of a Director, appointed by the Secretary
of Defense, a management headquarters; a Defense Industrial Security
Clearance Office (DISCO); a Personnel Investigations Center (PIC); a
Defense Security lnstitute; and such subordinate units and field
activities as are established by the Director, DIS, or as assigned to
the DIS by the Secretary of Defense. Subordinate units and field
activities may be located overseas in support of the industrial security
mission.
(c) The DIS shall be authorized such personnel, facilities, funds,
and other administrative support as the Secretary of Defense deems
necessary.
(d) Military personnel may be assigned to the DIS from the Military
Departments in accordance with approved authorizations and established
procedures for assignment to joint duty.
32 CFR 361.4 Functions.
The DIS is a law enforcement, personnel security investigative, and
industrial security agency and shall:
(a) Provide a single, centrally directed personnel security
investigative service to conduct personnel security investigations for
DoD Components within the United States and its Trust Territories and,
when authorized by the DUSD(P), for other U.S. Government departments
and agencies. The DIS shall request the Military Departments, or when
appropriate other U.S. Government activities, to accomplish
investigative requirements assigned to it in other geographic areas.
(b) Operate a consolidated Personnel Security Investigations Center
in accordance with DoD Directive 5200.27 /1/ .
(c) Manage the Defense Central Index of Investigations.
(d) Administer the Defense Industrial Security Program (DISP) under
DoD 5220.22-R.
(e) Operate the DISCO as a consolidated central facility to process
industrial personnel security clearances.
(f) Administer the Defense Industrial Facilities Protection Program
(DIFPP) under DoD Directive 5160.54 /2/ .
(g) Provide inspection policy and procedures essential to assess DoD
contractor compliance with DoD physical security requirements for the
protection of sensitive conventional arms, ammunition and explosives
(AA&E) under DoD Instruction 5220.30 /3/ .
(h) As authorized by the DUSD(P) and under 32 CFR part 213 provide
support for law enforcement investigations involving DoD personnel,
facilities, or contractors conducted by authorized investigative
agencies of the Military Departments, Inspector General, Department of
Defense (IG, DoD), the Federal Bureau of Investigation, or other Federal
investigative agencies.
(i) Conduct investigations of unauthorized disclosure of classified
information not under the jurisdiction of the Military Departments and
other investigations as the DUSD(P) may direct.
(j) Review criminal history record information at police local,
State, or Federal law enforcement agencies; and related record
repositories, as required.
(k) Conduct surveys and prepare analyses and estimates of managed
programs.
(l) Provide administrative and computer support to the Defense
Integrated Management Information System (DIMIS).
(m) Maintain an official seal and attest to the authenticity of
official DIS records under that seal.
/1/ Copies may be obtained, if needed, from the U.S. Naval
Publications and Forms Center 5801 Tabor Avenue, Attn: Code 301,
Philadelphia, PA 19120.
/2/ See footnote 1 to 361.4(b).
/3/ See footnote 1 to 361.4(b).
32 CFR 361.5 Responsibilities.
(a) The Director, Defense Investigative Service, shall:
(1) Organize, direct, and manage the DIS and all assigned resources.
(2) Establish standards and procedures for certification and
accreditation of DIS personnel assigned to perform investigative and
industrial security duties.
(3) Provide for industrial security and personnel security
investigative training for DIS personnel and information and industrial
security training for DoD and other U.S. Government personnel, employees
of U.S. Government contractors, and selected foreign governments.
(4) Program, budget, account for, and report the activities of the
DIS in accordance with the policies and procedures established by the
Secretary of Defense.
(5) Refer to the appropriate civilian and military investigative
agency matters developed as a result of DIS investigations that involve
alleged criminal misconduct or have a significant intelligence or
counterintelligence aspect.
(6) Under normal circumstances, refer alleged criminal activity by
DIS personnel to the Office of the Assistant Inspector General for
Investigations (OAIG-INV), DoD who shall make referral to the Department
of Justice (DoJ). If the OAIG-INV or DoJ decline investigative
jurisdiction, the Director shall assign DIS personnel to conduct an
investigation and determine appropriate administrative action to be
taken.
(7) Administer the DISP, DIFPP, and the AA&E Programs.
(8) Develop, publish, and implement procedures under the policy
guidance and general supervision of the DUSD(P) with respect to the
DISP, DIFPP, and AA&E Programs.
(9) Arrange, conduct, and participate in meetings, seminars, and
conferences between industry, industrial and professional associations,
international organizations, foreign governments, and the Department of
Defense and other U.S. Government agencies concerning all aspects of
industrial security.
(10) Administer the Security C1assification Management Program in
industry under E.O. 10865 and E.O. 12356, including promulgation of
policy, regulatory provisions, educational requirements, and resolution
of problems.
(11) Under the general supervision and approval of the DUSD(P),
prepare and publish Industrial Security Letters and Industrial Security
Bulletins.
(12) Obtain reports, information advice, and assistance, consistent
with DoD Directive 5000.19 /4/ as may be necessary for the performance
of assigned functions and responsibilities.
(13) Ensure that all allegations of wrongdoing directed against DIS
employees are promptly and thoroughly reviewed, evaluated, and processed
in accordance with Office of Personnel Management (OPM), DoD, and DIS
regulations, instructions, directives and where applicable, Federal
statutes.
(b) The Heads of DoD Components shall cooperate with and assist the
Director, DIS, by providing access to information within their
respective fields as required for the DlS to carry out functions
assigned by this part.
(c) The Secretaries of the Military Departments shall ensure that the
overseas military investigative agencies provide prompt responses to DIS
personnel security lead requests in order to expedite personnel security
investigative matters within the DIS.
/4/ See footnote 1 to 361.4(b).
32 CFR 361.6 Relationships.
The Director, DIS, shall carry out the above responsibilities under
the direction, authority and control of the DUSD(P) and shall:
(a) Maintain liaison with other DoD Components, law enforcement
agencies, industry, professional associations, academies, international
organizations, foreign governments, and other agencies for the exchange
of information in the field of assigned responsibility and shall render
assistance, as appropriate, within the limits of established policy.
(b) Maintain a close working relationship with industrial
representatives to encourage industry participation and cooperation in
the furtherance of the DISP.
(c) Use existing DoD facilities and services whenever practical to
achieve maximum efficiency.
32 CFR 361.6 Appendix A to Part 361 -- Delegations of Authority
32 CFR 361.6 Pt. 361, App. A
The Director, DIS, or in the absence of the Director, a person acting
for the Director, is hereby delegated, subject to the direction,
authority, and control of the DUSD(P), and in accordance with DoD
policies, directives, and instructions, and pertinent publications,
authority as required in the administration and operation of the DIS to:
1. In accordance with 5 U.S.C. 302 and 3101, employ, direct, and
administer DIS civilian personnel.
2. Fix rates of pay for wage board employees exempt from 5 U.S.C.
Chapter 51, on the basis of rates established under the Coordinated
Federal Wage System. In fixing those rates, the wage schedules
established by DoD Wage Fixing Authority shall be followed.
3. Establish advisory committees and part-time advisors for the
performance of DIS functions pursuant to 10 U.S.C. 173, and to hire
Branch of the Federal government or any other oath required by law in
connection with employment therein, in accordance with 5 U.S.C.
2903(b), and to designate in writing other officers and employees of the
DIS to perform this function or to administer oaths incident to any
investigation conducted by the DIS.
5. Establish a DIS Incentive Awards Board and pay cash awards to, and
incur necessary expenses for, the honorary recognition of civilian
employees of the government whose suggestions, inventions, superior
accomplishments, or other personal efforts, including special acts or
services, benefit or affect the DIS or its subordinate activities in
accordance with 5 U.S.C. 4503, and Office of Personnel Management
regulations.
6. Perform the following functions in accordance with 5 U.S.C. 7532;
Executive Order 10450, April 27, 1953; and DoD 5200.2-R, February
1984.
a. Designate the security sensitivity of positions within the DIS.
b. Authorize, in the case of an emergency, the appointment of a
person to a sensitive position in the DIS for a limited period of time
for whom a full field investigation or other appropriate investigation,
including the National Agency Check, has not been completed.
c. Authorize the suspension and, when authorized by the DUSD(P),
terminate the services of a DIS employee in the interests of national
security.
7. Clear DIS personnel and such other individuals as may be
appropriate for access to classified DoD material and information in
accordance with the provisions of DoD 5200.2-R. As an exception, the
personnel security investigation of individuals who are incumbents of,
or are proposed for, Senior Executive Service positions within the DIS
as Director, Deputy Director (Investigations), or Deputy Director
(Industrial Security), shall be conducted by a non-DIS investigative
agency designated by the DUSD(P). Similarly, the results of such
investigations shall be adjudicated by a non-DIS authority designated by
the DUSD(P).
8. Act as an agent for the collection and payment of employment taxes
imposed by Chapter 21 of the Internal Revenue Code of 1954, and, as such
agent, make all determinations and certifications required or provided
under 26 U.S.C. 3122 and 42 U.S.C. 405(p) (1) and (2), with respect to
DIS personnel.
9. Authorize and approve overtime work for DIS personnel in
accordance with the provisions of 550.111 of the OPM Regulations.
10. Authorize and approve:
a. Travel for DIS personnel in accordance with the Joint Travel
Regulations (JTR), Volume 2, Department of Defense civilian personnel.
b. Temporary duty travel for military personnel assigned or detailed
to the DIS in accordance with JTR, Volume 1, Members of the Uniformed
Services.
c. Invitational travel to persons serving without compensation whose
consultative, advisory, or highly specialized technical services are
required in a capacity that is directly related to, or in connection
with, DIS activities, pursuant to 5 U.S.C. 5703.
11. Approve the expenditure of funds available for travel by military
personnel assigned or detailed to DlS for expenses incident to
attendance at meetings of technical, scientific, professional or other
similar organizations in such instances where the approval of the
Secretary of Defense or his designee is required by law (37 U.S.C. 412,
5 U.S.C. 4110 and 4111). This authority cannot be redelegated.
12. Develop, establish, and maintain an active and continuing Records
Management Program under 44 U.S.C. 3102 and DoD Directive 5015.2,
September 17, 1980.
13. Enter into and administer contracts, directly or through a DoD
Component, or other Government department or agency, as appropriate, for
supplies, equipment, and services required to accomplish the mission of
the DIS. To the extent that any law or Executive Order specifically
limits the exercise of such authority to persons at the secretarial
level or a Military Department, such authority will be exercised by the
Assistant Secretary of Defense (Manpower, Installations, and Logistics).
14. Establish and use imprest funds for making small purchases of
material and services, other than personal, for the DIS when it is
determined it is more advantageous and consistent with the best
interests of the government, in accordance with the provisions of DoD
Instruction 5100.71, March 5, 1973.
15. Authorize the publication of advertisements, notices, or
proposals in public periodicals as required for the effective
administration and operations of the DIS pursuant to 44 U.S.C. 3702.
16. Establish and maintain appropriate property accounts for DIS.
Appoint Boards of Survey, approve reports of survey, relieve personal
liability, and drop accountability for DIS property contained in the
authorized property accounts that has been lost, damaged, stolen,
destroyed, or otherwise rendered unserviceable, in accordance with
applicable laws and regulations.
17. Promulgate the necessary security regulations for the protection
of property and activities under the jurisdiction of the Director, DIS,
pursuant to DoD Directive 5200.8, July 29, 1980.
18. Develop and maintain DoD publications and changes thereto,
consistent with DoD 5025.1-M, April 1981.
19. Enter into support and service agreements with the Military
Departments, other DoD Components, or other Government agencies as
required for the effective performance of responsibilities and functions
assigned to the DIS.
20. Issue appropriate implementing documents and establish internal
procedures to ensure that the selection and acquisition of automated
data processing resources are conducted in accordance with DoD Directive
7920.1, October 17, 1978; the Federal Property Management regulations;
and the Federal Acquisition Regulation.
The Director, DIS, may redelegate these authorities, as appropriate,
and in writing, except as otherwise specifically indicated above or as
otherwise provided by law or regulation.
32 CFR 361.6 PART 362 -- DEFENSE INFORMATION SYSTEMS AGENCY (DISA)
Sec.
362.1 Purpose.
362.2 Definitions.
362.3 Mission.
362.4 Organization and management.
362.5 Responsibilities and functions.
362.6 Relationships.
362.7 Authority.
362.8 Administration.
Appendix A to part 362 -- Delegations of Authority
Authority: 10 U.S.C. 193.
Source: 56 FR 31540, July 11, 1991, unless otherwise noted.
32 CFR 362.1 Purpose.
This part changes the name of the Defense Communications Agency (DCA)
to the Defense Information Systems Agency (DISA) and revises the
responsibilities, functions, relationships, and authorities of the DISA.
For the purposes of 10 U.S.C. 193, any other law or regulation, or for
any other purpose, DISA will perform the functions of the Defense
Communications Agency.
32 CFR 362.2 Definitions.
(a) Defense Communications System (DCS). (1) The DCS is a composite
of DoD-owned and -leased telecommunications subsystems and networks
comprised of facilities, personnel, and material under the management
control and operational direction of the DISA. It provides the
longhaul, point-to-point, and switched network telecommunications needed
to satisfy the requirements of the Department of Defense and certain
other Government Agencies, including those required to interconnect the
NCA, the Chairman of the Joint Chiefs of Staff, and the Unified and
Specified Commanders with the general purpose networks.
(2) The DCS includes fixed, transportable, and mobile facilities. It
consists of:
(i) Switching and/or relay facilities to include associated software
of the general purpose (common user) networks, such as Defense Switched
Network (DSN), Automatic Digital Network (AUTODIN), Defense Data Network
(DDN), and Secure Voice System.
(ii) Transmission media and/or circuits that provide user and/or
subscriber connection into the DCS networks, or which interconnect the
switching and/or relay facilities and/or the user and/or subscriber
terminals in use by the DCS. This includes the assets of the Defense
Satellite Communications System, except those portions that are
specifically excluded from the DCS.
(3) Although the DISA specifies the interconnection and interface
standards when operated with DCS networks, the DCS does not include:
(i) Mobile and/or transportable communications facilities and assets
organic to Army, Navy, Air Force, and Fleet Marine forces, unless
specifically designated as components of the DCS.
(ii) Ship and/or ship, ship and/or shore, air and/or air, air and/or
ground, and other tactical telecommunications.
(iii) Post, camp, base, and station user and/or subscriber facilities
and terminals.
(iv) On-site telecommunications facilities associated with or
integral to weapons systems and to missile launch complexes, including
those required for countdown, command, control, weapons destruct, and
range safety.
(v) Consoles and display devices integral to the Unified and
Specified Command Centers, their DoD Component Headquarters, and the
Military Services' operations centers.
(b) Fielding Plan. A fielding plan details the coordination and
execution involved in the deployment of a system or equipment, and
addresses interoperability opportunities and constraints. The plan
includes sufficient information for a common understanding between the
program sponsor and the gaining command for equipment quantities,
implementation schedules, skill qualifications and training, and any
additional manpower, facilities, or support requirements.
(c) Long-haul Telecommunications. All general purpose and special
purpose long-distance facilities and services (including terminal
equipment and local circuitry supporting the long-haul service) used to
support the electromagnetic and/or optical dissemination, transmission,
or reception of information via voice, data, video, integrated
telecommunications, wire, or radio to or from the post, camp, base, or
station switch and/or main frame (except for trunk lines to the
first-serving commercial central office for local communications
services). That includes the FTS2000, DSN, DDN, the AUTODIN, dedicated
point-to-point service, and the Primary Interexchange Carrier service
associated with business or tie line to the local exchange carrier
(e.g., Direct Distance Dialing, Foreign Exchange, WATS, 800 service,
etc.) and contractor-provided telecommunications, including the
interconnection of various functional Automated Data Processing Systems.
(d) Military Departments' Operations and Maintenance Commands. The
Army Information Systems Command, Air Force Communications Command, and
the Naval Computers and Telecommunications Command.
(e) Military Satellite Communications (MILSATCOM) Systems. The
totality of existing and planned DoD satellite communications capability
consisting of the space, ground, and control segments. MILSATCOM
systems include the interfaces between satellite systems and ground
segments, and the interfaces with other communications systems.
(f) National Communications System (NCS). (1) The NCS was
established by E.O. 12472 (3 CFR, 1984 Comp., p. 193). It consists of
the telecommunications assets of the entities represented on the NCS
Committee of Principals and an administrative structure consisting of
the Executive Agent, the NCS Committee of Principals, and the Manager.
(2) The mission of the NCS is to assist the President, the National
Security Council, the Director of the Office of Science and Technology
Policy, and the Director of the Office of Management and Budget in:
(i) The exercise of the telecommunications functions and
responsibilities assigned in E.O. 12472.
(ii) The coordination of the planning for, and provision of, national
security emergency preparedness communications for the Federal
Government under all circumstances, including crisis or emergency,
attack, recovery, and reconstitution.
(g) National Military Command System (NMCS). The NMCS is the
priority DoD Component of the WWMCCS designed to support the NCA in the
exercise of its responsibilities. It also supports the Chairman of the
Joint Chiefs of Staff in the exercise of his responsibilities.
(h) Operational Test Agency (OTA). Separate and independent from the
material developing and/or procuring Agency and from the using Agency,
the major field OTA shall be responsible for planning and conducting
operational tests, reporting test results, and providing an evaluation
of the tested system's operational effectiveness and suitability
directly to the Agency's Director.
(i) Procedural Interface Standards. Specifications for accomplishing
the exchange of information across an interface. They define:
(1) The form or format in which information is to be exchanged.
(2) The prescribed information exchange language, syntax, and
vocabulary to be used in the information exchange.
(3) Interface operating procedures that govern the information
exchange.
(j) Technical Interface Standards. Specifications of the functional,
electrical, and physical characteristics necessary to allow the exchange
of information across an interface between different C3 and information
systems or equipment.
(k) Worldwide Military Command and Control System (WWMCCS). The
WWMCCS is the worldwide command and control system that provides the
means for operational direction and technical administrative support
involved in the function of C2 of U.S. military forces.
32 CFR 362.3 Mission.
The DISA is responsible for planning, developing, and supporting
command, control, communications (C3), and information systems that
serve the needs of the National Command Authorities (NCA) under all
conditions of peace and war. It provides guidance and support on
technical and operational C3 and information systems issues affecting
the Office of the Secretary of Defense (OSD), the Military Departments,
the Chairman of the Joint Chiefs of Staff and the Joint Staff, the
Unified and Specified Commands, and the Defense Agencies (hereafter
referred to collectively as ''the DoD Components''). It ensures the
interoperability of the Worldwide Military Command and Control System
(WWMCCS), the Defense Communications System (DCS), theater and tactical
command and control systems, North Atlantic Treaty Organization and/or
allied C3 systems, and those national and/or international commercial
systems that affect the DISA mission. It supports national security
emergency preparedness telecommunications functions of the National
Communications System (NCS), as prescribed by E.O. 12472.
32 CFR 362.4 Organization and management.
The DISA is established as a Combat Support Agency of the Department
of Defense, and shall be under the direction, authority, and control of
the Assistant Secretary of Defense for Command, Control, Communications,
and Intelligence (ASD(C3I)). It shall consist of a Director and such
subordinate organizational elements as are established by the Director
within the resources authorized by the Secretary of Defense.
32 CFR 362.5 Responsibilities and functions.
(a) The Director, Defense Information Systems Agency, shall:
(1) Organize, direct, and manage the DISA and all assigned resources
consistent with this part.
(2) Provide technical and management advice, and perform planning,
support systems engineering, and test and/or evaluation support through
the design, development, deployment, and evolution of the WWMCCS, as
defined in DoD Directive 5100.30. /1/ This includes the National
Military Command System (NMCS) under DoD Directive S-5100.44 /2/ and
supporting Communications, especially connectivity to nuclear forces.
In accordance with DoD Directive 5100.79, /3/ provide the necessary
guidance, direction, and support to accomplish the definition of
technical concepts and performance characteristics for engineering the
WWMCCS in consonance with the approved WWMCCS architecture. Recommend
revision of the WWMCCS architecture to meet changing policy, doctrine,
requirements, systems environments, threats, technology, and resources.
Provide planning, engineering, and technical support to the DoD
Components, as needed, to ensure the evolution and integration of C3 and
information systems within the WWMCCS.
(3) Perform systems engineering for the DCS and ensure that the DCS
is planned, improved, operated, maintained, and managed effectively and
efficiently. Ensure that end-to-end interoperability and architecture
are adequate to meet mission needs. Exercise program management
responsibility with management control over the activities of the DoD
Components that directly support the establishment and improvement of
the DCS.
(4) In consultation with the Chairman of the Joint Chiefs of Staff,
formulate the DoD-wide Military Satellite Communications (MILSATCOM)
architecture. Analyze user requirements and maintain the user data
base. Define system performance criteria for MILSATCOM systems.
Establish, in coordination with the DoD Components, overall goals and
long-term system plans and transitions for MILSATCOM systems. Perform
general systems engineering to promote end-to-end interoperability and
performance to meet mission needs. Analyze, on a continuing basis,
Military Service programs, plans, budgets, and MILSATCOM systems
performance deficiencies, and recommend corrective action, as
appropriate. Manage, operate, and support the MILSATCOM systems office
to perform functions specified in DoD Directive 5105.44. /4/
(5) Ensure the end-to-end interoperability of strategic and tactical
C3 and information systems used by the NCA and the DoD Components for
joint and combined operations. Develop and maintain joint
architectures, technical and procedural interface standards,
specifications, protocols, and definitions; and test and/or verify the
interoperability of hardware and procedures for strategic and tactical
C3 and information systems. Recommend certification for these systems
and their equipment interfaces. With respect to tactical command,
control, communications, and intelligence (C3I) systems, DoD Directive
4630.5 /5/ shall be observed.
(6) Provide automated information systems, analytical, and other
technical support for Chairman of the Joint Chiefs of Staff- and
OSD-managed programs. Manage, design, develop, maintain, test, and
evaluate standard operating systems and applications software for the
WWMCCS, as directed. Assist in implementing configuration control over
evolving information systems.
(7) Develop systems architectures and provide systems engineering
support. Ensure the evolution of integrated C3 and information systems
supporting the NCA's and DoD Components' capability to effectively
employ weapon systems and forces. Identify and implement technical
improvements and assist the Chairman of the Joint Chiefs of Staff and
the Commanders of the Unified and Specified Commands in identifying C3
systems' deficiencies.
(8) Manage nationally sensitive special C3 programs, as directed by
higher authority.
(9) Acquire commercial communications services (e.g., long-haul
telecommunications circuits, facilities, networks, and associated
equipment) for the Department of Defense and other Federal Agencies, as
directed; initiate and manage actions relating to regulatory and tariff
matters, including rates for these commercial communications services;
and manage and maintain the Communications Services Industrial Fund.
(10) Execute tasks as manager of the NCS as may be assigned by law or
directed by the Secretary of Defense in the Secretary's capacity as
Executive Agent of the NCS.
(11) Review Military Department programs and budgets related to the
DISA mission, and recommend actions, through the ASD(C3I), to the
Secretary of Defense.
(12) Provide DoD representation and/or participation in selected
national and international C3 activities.
(13) Assist OSD and Chairman of the Joint Chiefs of Staff activities
by assessing technology; recommend and conduct a program of research,
development, test, and evaluation (RDT&E) necessary to ensure that C3
systems remain capable of performing their assigned functions in
threatened environments. Monitor and coordinate, as appropriate, DoD
Component C3 RDT&E programs.
(14) Exercise operational direction and management control of the DCS
through the DISA Operations Control Complex and the Military
Departments' operations and maintenance commands. Perform circuit
engineering and allocation, and direct restoral for the DCS, in
coordination with the NCS's National Coordinating Center.
(15) Establish and maintain a major field independent operational
test capability, as an Operational test agency (OTA) under the director,
and conduct operational test and evaluation (OT&E) in accordance with
DoD Directive 5000.1. /6/ Conduct OT&E in a mission and threat
environment as operationally realistic as possible.
(16) Serve as Executive Agent and authority for the Joint
Interoperability of Tactical Command and Control Systems Program and the
Tactical C3I Interoperability Improvement Program.
(17) Provide administrative support to the White House Communications
Agency and to the Office of Emergency Operations.
(18) Serve on the Military Communications Electronics Board.
(19) Provide liaison with, and communications support for, the United
States Secret Service in accordance with DoD Directive 3025.13. /7/
(20) Develop and maintain databases of developmental and existing
interoperability standards.
(21) Coordinate information system security (communications security
and computer security) interoperability requirements with cognizant DoD
Components.
(22) Review tactical C3 Fielding Plans and define interface
specifications, develop and maintain a joint tactical C3 architecture
defining joint tactical communications systems (including nonstrategic
nuclear forces C3) required to ensure interoperability and information
flow among command and control (C2) systems.
(23) Develop, test, and maintain technical and procedural interface
standards to be used by tactical C3 systems in joint or combined
military operations, in accordance with guidance provided by the
Chairman of the Joint Chiefs of Staff, and verify that such systems have
implemented the approved interface standards.
(24) Monitor and coordinate strategic and/or tactical C3 programs for
which the DISA has responsibility, but which are included in the
programs of other DoD Components and Government Agencies, and monitor
other programs that may affect tactical C3 interoperability.
(25) Provide source documents from which the DoD Components can
develop training materials to facilitate implementation of the tactical
C3 architecture.
(26) Develop and maintain databases of tactical C3 developmental and
existing interoperability standards.
(27) Coordinate secure tactical C3 communications interoperability
requirements with the National Security Agency (NSA)/Central Security
Service (CSS), the Defense Intelligence Agency, the Military
Departments, and the Chairman of the Joint Chiefs of Staff.
(28) In coordination with NSA/CSS and the Military Departments, and
in accordance with DoD Directive C-5200.5, /8/ develop a tactical secure
communications architecture as an integral part of the overall joint
architecture, including orderly and timely introduction of systems to
satisfy interoperability requirements.
(29) Provide technical support to the ASD(C3I) in the implementation
of the Defense information management program and the Defense corporate
information management initiative, to include administrative and
technical support as directed by the ASD(C3I).
(30) Support the technical implementation of the Defense information
management program and the Defense corporate information management
initiative DoD-wide, to include the development and use of process,
data, performance and economic models, and related tools; assisting in
the development, coordination and execution of the DoD data
administration program; providing, as tasked, information services to
include operation and design activities and data processing centers;
and assisting in the assessment of DoD information services' efficiency
and effectiveness.
(31) Perform such other functions as may be assigned by the ASD(C3I)
(b) (Reserved)
/1/ Copies may be obtained, at cost, from the National Technical
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
/2/ Classified document. Not releasable to the public.
/3/ See footnote 1 to 362.5(a)(2).
/4/ See footnote 1 to 362.5(a)(2).
/5/ See footnote 1 to 362.5(a)(2).
/6/ See footnote 1 to 362.5(a)(2).
/7/ See footnote 1 to 362.5(a)(2).
/8/ See footnote 2 to 362.5(a)(2).
32 CFR 362.6 Relationships.
(a) In performing assigned functions, the Director, DISA, shall:
(1) Subject to the direction, authority, and control of the ASD(C3I),
be responsible to the Chairman of the Joint Chiefs of Staff for
operational matters as well as requirements associated with the joint
planning process. For these purposes, the Chairman of the Joint Chiefs
of Staff is authorized to communicate directly with the Director, DISA,
and may task the Director, DISA to the extent authorized by the
ASD(C3I).
(2) Coordinate actions, as appropriate, with other DoD Components and
those Departments and Agencies of Government having related functions.
(3) Maintain liaison with other DoD Components and other Agencies of
the Executive Branch for the exchange of information on programs and
activities in the field of assigned responsibility.
(4) Use established facilities and services in the Department of
Defense or other Government Agencies, whenever practicable, to achieve
maximum efficiency and economy.
(b) The Secretaries of the Military Departments and the Directors of
the Defense Agencies shall:
(1) Provide support to include planning, programming, and budgeting;
test and evaluation; operations and maintenance; and integrated
logistics support for programs, projects, and systems for which the DISA
is responsible.
(2) Advise the Director, DISA, of funding shortfalls that would
prevent effective operations and maintenance of existing systems, or
prevent or delay scheduled implementation of new subsystems or projects.
(3) Coordinate with the Director, DISA, on all programs and
activities that include, or are related to, C3 and information systems
for which the DISA has a primary or collateral responsibility. Provide
to the DISA, for review and approval before execution, technical
specifications, statements of work, and proposed contract changes
impacting on configuration, cost, performance, or schedules of all
systems for which the DISA is responsible. Obtain the DISA's
concurrence on draft acquisition plans and request DISA representation
on source selection advisory councils and source selection evaluation
boards for C3 and information systems, subsystems, and projects.
(4) Submit C3 and information systems requirements to the DISA, as
appropriate.
(5) Submit copies of all requirements involving development,
acquisition, or modification of all tactical C3 systems or equipment,
copies of all Test and Evaluation Master Plans for such materials,
Fielding Plans, and such other reports, as required by DoD Directive
4630.5, to the Director, Joint Tactical Command, Control, and
Communications Agency.
(6) Periodically review the efficiency, economy, and effectiveness of
the DISA.
(c) The Chairman of the Joint Chiefs of Staff shall:
(1) Review DCS planning and programming documents, and assess their
responsiveness to operational, developmental, and training requirements.
(2) Periodically (not less than every 2 years), submit to the
Secretary of Defense a report on DISA's responsiveness and readiness to
support operating forces in the event of war or threat to national
security, and other recommendations as appropriate.
(3) Advise the Secretary of Defense on C3 and information systems
requirements and priorities.
(4) Develop and issue jointly with the ASD(C3I) guidance to the DISA
and the Unified and Specified Commands that will serve as the basis for
interrelationships between these organizations.
(5) Provide for the participation of DISA in joint training exercises
and monitor performance.
32 CFR 362.7 Authority.
The Director, DISA, is specifically delegated authority to:
(a) Communicate directly with heads of the DoD Components and other
Executive Departments and Agencies, as necessary, to carry out DISA's
responsibilities and functions. Communications to the Commanders in
Chief of the Unified and Specified Commands shall be coordinated as
appropriate with the Chairman of the Joint Chiefs of Staff.
(b) Obtain reports, information, advice, and assistance consistent
with the policies and criteria of DoD Directives 4630.5 and 7750.5, /9/
as necessary, to carry out DISA-assigned responsibilities and functions.
(c) Exercise the administrative authorities in Appendix A to part 362
when delegated by the ASD(C3I).
/9/ See footnote 1 to 362.5(a)(2).
32 CFR 362.8 Administration.
(a) The Director and the Deputy Director, DISA, shall be appointed by
the Secretary of Defense.
(b) The Military Departments shall assign military personnel to the
DISA in accordance with approved authorizations and procedures for
assignment to joint duty. The Chairman of the Joint Chiefs of Staff
shall review and provide recommendations on the DISA joint manpower
program to the ASD(C3I), as appropriate, for those functions where DISA
is responsive to the Chairman of the Joint Chiefs of Staff.
32 CFR 362.8 Pt. 362, App. A
Pursuant to the authority vested in the Secretary of Defense, and
subject to the direction, authority, and control of the Secretary of
Defense, and in accordance with DoD policies, Directives, Instructions,
the Assistant Secretary of Defense for Command, Control, Communications,
and Intelligence (ASD(C3I)), or in the absence of the ASD(C3I), the
person acting for the ASD(C3I), is hereby delegated authority as
required in the administration and operation of the DISA to:
1. Exercise the powers vested in the Secretary of Defense by 5 U.S.C.
301, 302(b), and 3101 on the employment, direction, and general
administration of DISA civilian personnel.
2. Fix rates of pay for wage-rate employees exempted from the
Classification Act of 1949 by 5 U.S.C. 5102 on the basis of rates
established under the Coordinated Federal Wage System. In fixing such
rates, the ASD(C3I), shall follow the wage schedule established by the
DoD Wage Fixing Authority.
3. Establish advisory committees and employ temporary or intermittent
experts or consultants, as approved by the Secretary of Defense, for the
performance of DISA functions consistent with the 10 U.S.C. 173; 5
U.S.C. 3109(b); DoD Directive 5105.4, /1/ ''DoD Federal Advisory
Committee Management Program,'' September 5, 1989; and the agreement
between the Department of Defense and the Office of Personnel Management
(OPM) on employment of experts and consultants, June 21, 1977.
4. Administer oaths of office incident to entrance into the Executive
Branch of the Federal Government or any other oath required by law in
connection with employment therein, in accordance with 5 U.S.C. 2903,
and designate in writing, as may be necessary, officers and employees of
the DISA to perform this function.
5. Establish a DISA Incentive Awards Board and authorize cash awards
to, and incur necessary expenses for, the honorary recognition of
civilian employees of the Government whose suggestions, inventions,
superior accomplishments, or other personal efforts, including special
acts or services, benefit or affect the DISA or its subordinate
activities, in accordance with 5 U.S.C. 4503, applicable OPM
regulations, and DoD Directive 5120.15, /2/ ''Authority for Approval of
Cash Honorary Awards for DoD Personnel,'' August 13, 1985.
6. In accordance with 5 U.S.C. 7532; Executive Orders 10450, 12333,
and 12356; and DoD Directive 5200.2, /3/ ''DoD Personnel Security
Program,'' December 20, 1979; as appropriate:
a. Designate any position in the DISA as a ''sensitive'' position.
b. Authorize, in case of an emergency, the appointment of a person to
a sensitive position in the DISA for a limited period of time and for
whom a full field investigation or other appropriate investigation,
including the National Agency Check, has not been completed.
c. Authorize the suspension, but not terminate the services, of a
DISA employee in the interest of national security.
d. Initiate investigations, issue personnel security clearances and,
if necessary, in the interest of national security, suspend, revoke, or
deny a security clearance for personnel assigned, detailed to, or
employed by the DISA. Any action to deny or revoke a security clearance
shall be taken in accordance with procedures prescribed in DoD 5200.2-R,
/4/ ''DoD Personnel Security Program,'' January 1987.
7. Act as agent for the collection and payment of employment taxes
imposed by chapter 21 of the Internal Revenue Code of 1954, as amended;
and, as such agent, make all determinations and certifications required
or provided for under section 3122 of the Internal Revenue Code of 1954,
as amended, and section 205(p) (1) and (2) of 42 U.S.C. (Social Security
Act), as amended, with respect to DISA employees.
8. Authorize and approve:
a. Temporary duty travel for military personnel assigned or detailed
to the DISA in accordance with Volume I, Joint Federal Travel
Regulations.
b. Travel for DISA civilian officers and employees in accordance with
Volume II, Joint Travel Regulations.
c. Invitational travel to non-DoD employees whose consultative,
advisory, or other highly specialized technical services are required in
a capacity that is directly related to, or in connection with, DISA
activities, in accordance with Volume II, Joint Travel Regulations.
d. Overtime work for DISA civilian employees in accordance with
chapter 55, subpart V, of 5 U.S.C. and applicable OPM regulations.
9. Approve the expenditure of funds available for travel by military
personnel assigned or detailed to the DISA for expenses incident to
attendance at meetings of technical, scientific, professional, or other
similar organizations in such instances where the approval of the
Secretary of Defense, or designee, is required by 37 U.S.C. 412, and 5
U.S.C. 4110 and 4111.
10. Develop, establish, and maintain an active and continuing Records
Management Program pursuant to 44 U.S.C. 3102 and DoD Directive 5015.2,
/5/ ''Records Management Program,'' March 22, 1991.
11. Establish and use imprest funds for making small purchases of
material and services, other than personal services, for the DISA, when
it is determined more advantageous and consistent with the best
interests of the Government, in accordance with DoD Directive 7360.10,
/6/ ''Disbursing Policies,'' January 17, 1989.
12. Authorize the publication of advertisements, notices, or
proposals in newspapers, magazines, or other public periodicals as
required for the effective administration and operation of the DISA
consistent with 44 U.S.C. 3702.
13. Establish and maintain appropriate property accounts for the
DISA, and appoint Boards of Survey, approve reports of survey, relieve
personal liability, and drop accountability for DISA property in the
authorized property accounts that has been lost, damaged, stolen,
destroyed, or otherwise rendered unserviceable, in accordance with
applicable laws and regulations.
14. Promulgate the necessary security regulations for the protection
of property and places under the jurisdiction of the Director, DISA,
pursuant to DoD Directive 5200.8, /7/ ''Security of Military
Installations and Resources,'' July 29, 1980.
15. Establish and maintain, for the functions assigned, an
appropriate publications system for the promulgation of common supply
and service regulations, instructions, and reference documents, and
changes thereto, pursuant to the policies and procedures prescribed in
DoD 5025.1-M, /8/ ''DoD Directives System Procedures,'' December 1990.
16. Enter into support and service agreements with the Military
Departments, other DoD Components, or other Government Agencies, as
required, for the effective performance of DISA functions and
responsibilities.
17. Exercise the authority delegated to the Secretary of Defense by
the Administrator of General Services on the disposal of surplus
personal property.
18. Enter into and administer contracts, directly or through a
Military Department, a DoD contract administration services component,
or other Federal Agency, as appropriate, for supplies, equipment, and
services required to accomplish the mission of the DISA. To the extent
that any law or Executive order specifically limits the exercise of such
authority to persons at the Secretarial level of a Military Department,
such authority shall be exercised by the appropriate Under Secretary or
Assistant Secretary of Defense.
19. Award contracts for the lease of commercial C3 capabilities as
delegated in DoD Directive 5134.1, /9/ ''Under Secretary of Defense
(Acquisition),'' August 8, 1989.
20. Lease property under the control of the DISA under terms that
will promote the national defense or that will be in the public
interest, pursuant to 10 U.S.C. 2667.
The ASD(C3I) may redelegate these authorities, as appropriate, and in
writing, except as otherwise provided by law or regulation.
These delegations of authority are effective June 25, 1991.
/1/ Copies may be obtained, at cost, from the National Technical
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
/2/ See footnote 1 to section 3 of this appendix.
/3/ See footnote 1 to section 3 of this appendix.
/4/ See footnote 1 to section 3 of this appendix.
/5/ See footnote 1 to section 3 of this appendix.
/6/ See footnote 1 to section 3 of this appendix.
/7/ See footnote 1 to section 3 of this appendix.
/8/ See footnote 1 to section 3 of this appendix.
/9/ See footnote 1 to section 3 of this appendix.
32 CFR 362.8 PART 363 -- DEFENSE SECURITY ASSISTANCE AGENCY
Sec.
363.1 Purpose.
363.2 Mission.
363.3 Organization and management.
363.4 Responsibilities and functions.
363.5 Authority.
363.6 Relationships.
363.7 Administration.
Authority: 10 U.S.C. Chapter 4.
Source: 43 FR 57875, Dec. 11, 1978, unless otherwise noted.
32 CFR 363.1 Purpose.
Pursuant to authority vested in the Secretary of Defense under the
provisions of title 10, United States Code, this part establishes the
Defense Security Assistance Agency (hereafter referred to as ''DSAA'')
and defines responsibilities, functions, authorities and relationships
of DSAA as outlined below.
32 CFR 363.2 Mission.
DSAA shall direct, administer, and supervise the execution of
security assistance programs. ''Security assistance'' as used in this
part, refers to the responsibilities of the Secretary of Defense under
the Foreign Assistance Act of 1961, as amended, the Arms Export Control
Act, as amended, related statutory authorities and Executive Orders and
Directives relating to the administration of Military Assistance,
International Military Education and Training, credit financing and
Foreign Military Sales, DoD Directives 5132.3, 5100.27, and 5105.20.1
1Copies may be obtained, if needed, from the U.S. Naval Publications
and Forms Center, 5801 Tabor Avenue, Philadelphia, PA 19120, Attention:
Code 301.
32 CFR 363.3 Organization and management.
(a) DSAA is established as a separate agency of the Department of
Defense under the direction, authority and control of the Assistant
Secretary of Defense (International Security Affairs) (hereinafter
referred to as ''ASD(ISA)'').
(b) DSAA shall consist of a Director and such subordinate
organizational elements as are established by the Director within
resources authorized by the Secretary of Defense.
(c) The Director, DSAA, may also serve as Deputy Assistant Secretary
of Defense (Security Assistance) in the Office of the ASD(ISA).
32 CFR 363.4 Responsibilities and functions.
(a) The Director, DSAA, shall:
(1) Organize, direct and manage the DSAA and all resources assigned
to the DSAA.
(2) Direct, administer, and supervise, within the policies
established by the ASD(ISA), Security Assistance planning and programs.
The administration of sales programs may be delegated in whole or in
part to the Military Departments, but such administration will be under
the direction and supervision of the DSAA.
(3) Supervise formulation of detailed Security Assistance programs in
accordance with approved guidance and policies.
(4) Coordinate the formulation and execution of Security Assistance
programs with other governmental agencies under the guidance of the
ASD(ISA).
(5) Review evaluations of Security Assistance program administration,
including responsibility with respect to GAO and other audits.
(6) Conduct international logistics and sales negotiations with
foreign countries, as directed by the ASD(ISA) and in coordination with
the Under Secretary of Defense for Research and Engineering and the
Assistant Secretary of Defense (Manpower, Reserve Affairs and
Logistics), as appropriate.
(7) Serve as DoD focal point for liaison with U.S. industry with
respect to Security Assistance activities.
(8) Manage the credit financing program, including the conclusion of
credit agreements and the issuance of guaranties.
(9) Develop and promulgate Security Assistance procedures (MASM)
5105.38-M.2
(10) Supervise and perform, as appropriate, accounting and reporting
functions for Security Assistance programs.
(11) Develop and operate the data processing system and maintain the
worldwide data base required by all levels of management for the
Security Assistance program.
(12) Maintain liaison with Congress on Security Assistance
legislation and related matters and provide support to the ASD(ISA) for
the presentation of the annual Security Assistance program before the
Congress.
(13) Provide data support for the annual Security Assistance budget
for inclusion in the President's budget.
(14) Keep the Joint Chiefs of Staff and the Commanders of the Unified
Commands fully informed of Security Assistance matters.
(15) Direct and supervise organization, functions, and staffing of
DoD elements in foreign countries responsible for managing Security
Assistance programs.
(16) Perform such other functions as assigned by the ASD(ISA).
(b) The ASD(ISA) shall:
(1) Establish DoD Security Assistance policies.
(2) Coordinate the activities of DoD components related to Security
Assistance affairs.
(3) Serve as the principal DoD point of contact and spokesman
regarding Security Assistance policy, representing the DoD with other
governmental agencies with respect to such matters.
(c) The basic responsibilities and functions of other DoD components
relating to Security Assistance remain as assigned in DoD directive
5132.3.3
2Copies may be obtained, if needed, from the Defense Security
Assistance Agency (Comptroller), Room 4B715, Pentagon, Washington, D.C.
20301. Telephone 202-697-2293.
3See footnote 1 to 363.2.
32 CFR 363.5 Authority.
The Director, DSAA, is specifically delegated authority to:
(a) Have free and unrestricted access to, and direct communication
with, all elements of the Department of Defense and other executive
departments and agencies as necessary. all ASD(ISA) and DSAA Security
Assistance directives and communications to the Unified and Specified
Commands, the Military Departments, and the Military Assistance Advisory
Groups, which have military operational implications, shall be
coordinated with the Joint Chiefs of Staff. Conversely, all Joint
Chiefs of Staff directives and communications to the Unified and
Specified Commands or the Military Departments, which pertain to
Security Assistance affairs, shall be coordinated with the ASD(ISA).
(b) Obtain such information, consistent with the policies and
criteria of DoD Directive 5000.19,3 advice, and assistance from other
DoD components as may be necessary for the performance of assigned
functions and responsibilities.
(c) Exercise the redelegation of authority previously established.
32 CFR 363.6 Relationships.
(a) In the performance of his functions, the Director, DSAA shall:
(1) Maintain appropriate liaison with other DoD components for the
exchange of information on programs in the field of assigned
responsibilities.
(2) Make use of established facilities and services in the DoD or
other governmental agencies wherever practicable to achieve maximum
efficiency and economy.
(3) Conduct activities involving financial management, fiscal
matters, accounting, budgeting, statistical reporting, and the
international balance of payments, in accordance with policies and
procedures established by the Assistant Secretary of Defense
(Comptroller).
(b) The Military Department and other DoD components shall provide
support, within their respective fields of responsibility to the
Director, DSAA, to assist in carrying out assigned responsibilities and
functions of DSAA.
32 CFR 363.7 Administration.
(a) The Director, DSAA, shall be appointed by the Secretary of
Defense.
(b) The appointment of other personnel to the Agency will be subject
to the approval of the Director, DSAA, and the ASD(ISA).
(c) DSAA will be authorized such personnel, facilities, funds, and
other administrative support as the Secretary of Defense deems
necessary.
(d) The Military Departments will assign military personnel to DSAA
in accordance with approved authorizations and procedures for assignment
to joint duty.
32 CFR 363.7 PART 364 -- ASSISTANT TO THE SECRETARY OF DEFENSE (ATOMIC
ENERGY)
Sec.
364.1 Purpose.
364.2 Responsibilities and functions.
364.3 Relationships.
364.4 Authorities.
Authority: 10 U.S.C. Chapter 4.
Source: 44 FR 4469, Jan. 22, 1978, unless otherwise noted.
32 CFR 364.1 Purpose.
Pursuant to the authority vested in the Secretary of Defense under
the provisions of Title 10, United States Code, the position of
Assistant to the Secretary of Defense (Atomic Energy) (hereinafter ''the
ATSD(AE)''), is hereby established with responsibilities, functions and
authorities as prescribed herein. The Chairman of the Military Liaison
Committee to the Department of Energy will serve as the ATSD(AE) without
additional compensation.
32 CFR 364.2 Responsibilities and functions.
The ATSD(AE), as the principal staff assistant for Department of
Defense atomic energy matters, shall:
(a) Develop policies, provide advice, make recommendations, and issue
guidance on Defense atomic energy plans and programs.
(b) Develop systems and standards for the administration and
management of approved atomic energy plans and programs.
(c) Review and evaluate programs for carrying out approved policies
and standards.
(d) Promote coordination, cooperation, and mutual understanding on
atomic energy policies, plans, and programs within the Department of
Defense, and between the DoD and other Federal agencies.
(e) Participate in those DoD planning, programming and budgeting
activities which relate to atomic energy matters.
(f) Develop policies and procedures for the transmission of
information to the Senate and House Armed Services Committees, as
required by the Atomic Energy Act of 1954, as amended, and coordinate
such information with other officials and agencies as appropriate.
(g) Serve on boards, committees, and other groups concerned with
atomic energy. Also, represent the Secretary of Defense on atomic
energy matters outside the Department of Defense.
(h) Perform such other functions as the Secretary of Defense may
assign.
32 CFR 364.3 Relationships.
(a) The ATSD(AE) shall serve under the direction, control, and
authority of the Under Secretary of Defense for Research and
Engineering.
(b) In the performance of assigned functions, the ATSD(AE) shall:
(1) Coordinate and exchange information with other DoD organizations
having collateral or related functions.
(2) Use existing facilities and services, whenever practicable, to
achieve maximum efficiency and economy.
(3) Communicate with other Government agencies, representatives of
the legislative branch, and members of the public, as appropriate, in
carrying out assigned functions.
(c) The Military Liaison Committee shall advise the ATSD(AE) on such
atomic energy matters as the latter deems appropriate and necessary.
(d) All DoD organizations shall coordinate all matters concerning the
functions cited in section B with the ATSD(AE).
32 CFR 364.4 Authorities.
The ATSD(AE) is hereby delegated authority to:
(a) Issue DoD Instructions and one-time directive-type memoranda,
which carry out policies approved by the Secretary of Defense, in his
assigned fields of responsibility. Instructions to the Military
Departments will be issued through the Secretaries of those Departments,
or their designees. Instructions to Unified and Specified Commands will
be issued through the Joint Chiefs of Staff.
(b) Obtain such reports, information, advice, and assistance
consistent with the policies and criteria of DoD Directive 5000.19,
''Policies for the Management and Control of Information Requirements,''
March 12, 1976, as he deems necessary.
(c) Communicate directly with heads of DoD organizations, including
the Secretaries of the Military Departments, the Joint Chiefs of Staff,
the Commanders of the Unified and Specified Commands, and the Directors
of Defense Agencies. Communications of the ATSD(AE) to the Commanders
of Unified and Specified Commands shall be coordinated with the Joint
Chiefs of Staff.
32 CFR 364.4 PART 365 -- OFFICE OF ECONOMIC ADJUSTMENT
Sec.
365.1 Purpose.
365.2 Mission.
365.3 Organization and management.
365.4 Responsibilities and functions.
365.5 Relationships.
365.6 Authority.
365.7 Administration.
365.8 Delegation of authorities.
Authority: 10 U.S.C. Chapter 4.
Source: 44 FR 4670, Jan. 23, 1979, unless otherwise noted.
32 CFR 365.1 Purpose.
(a) Pursuant to the authority vested in the Secretary of Defense
under the provisions of title 10 U.S. Code, this part establishes the
Office of Economic Adjustment (hereafter referred to as the ''OEA'')
with responsibilities, functions, authorities, and relationships as
stated below.
(b) ''Economic Adjustment'' as used in this part refers to
responsibilities of the Secretary of Defense under Executive Order
12049, ''Defense Economic Adjustment Programs,'' March 27, 1978, and
related responsibilities stated in DoD Directive 5410.12,1 ''Economic
Adjustment Assistance to Defense-Impacted Communities,'' April 21, 1973.
1Copies may be obtained, if needed, from the U.S. Naval Publications
and Forms Center, 5801 Tabor Avenue, Philadelphia, Pa. 19120, Attention
Code 301.
32 CFR 365.2 Mission.
The OEA shall:
(a) Plan, direct, coordinate, and manage economic adjustment programs
to alleviate serious social and economic impacts that may result from
major changes in DoD activities.
(b) In cooperation with DoD Components, identify proposed changes
that could result in adverse local impacts, and encourage local
officials to initiate early economic adjustment planning on a
contingency basis.
(c) Upon request, and in coordination with appropriate local, State
and Federal agencies, assist community officials to develop and
implement feasible adjustment plans that will alleviate the impact of
DoD actions.
(d) Support the Secretary of Defense as chairperson of the Economic
Adjustment Committee (EAC), Executive Order 12049, and serve as the
permanent staff for the community assistance activities of the EAC. In
this capacity, arrange meetings, conduct studies, develop
recommendations, prepare reports, and initiate other appropriate staff
actions.
32 CFR 365.3 Organization and management.
(a) The OEA is established as a field activity of the Office of the
Secretary of Defense, under the authority, direction and control of the
Assistant Secretary of Defense (Manpower, Reserve Affairs, and
Logistics) (hereafter referred to as the ''ASD(MRA&L))''. It shall
consist of a Director and subordinate organizational elements
established by the Director within resources authorized by the Secretary
of Defense.
(b) The Director, OEA, is also designated as the Assistant to the
ASD(MRA&L) for Economic Adjustment, and as Executive Director of the
Economic Adjustment Committee.
32 CFR 365.4 Responsibilities and functions.
(a) The Director, OEA, shall:
(1) Serve as the principal staff adviser to the ASD(MRA&L) on
economic adjustment program matters.
(2) Organize, direct, and manage the OEA and all resources assigned
to the OEA.
(3) Design, establish, and manage a Defense Economic Adjustment
Program to achieve the objectives and implement the provisions of
Executive Order 12049 and DoD Directive 5410.12, ''Economic Adjustment
Assistance to Defense-Impacted Communities,'' April 21, 1973.
(4) Monitor program change activities of DoD Components and, as
required, assist in the evaluation of possible impacts and the
identification of adjustment actions that could alleviate such impacts.
(5) Develop and recommend strategies and action plans to lessen
serious local impacts of DoD realinements, e.g., base closures,
conversion of in-house activities to contract, major personnel
reductions, and procurement cutbacks.
(6) Provide information and advice regarding the Economic Adjustment
Program and the resources available to meet community economic
adjustment needs.
(7) Plan, organize, coordinate, and administer economic adjustment
assistance projects for communities, areas, and States adversely
affected by DoD realinement actions.
(8) Assist local communities, areas, or States in expanding public
service facilities to meet requirements generated by major expansions or
the establishment of new DoD installations.
(9) Provide technical advice and assistance to Defense-dependent
communities in efforts to diversify their economic base, reduce their
vulnerability to change, and minimize the possible impact of future
cutbacks.
(10) Evaluate DoD Economic Adjustment Program effectiveness.
(11) Develop, propose, and implement program improvements.
(12) Perform such other economic adjustment functions as may be
assigned by the ASD(MRA&L).
(b) The ASD(MRA&L) shall:
(1) Recommend to the Secretary of Defense policies for the
administration of economic adjustment programs.
(2) Provide policy guidance and management direction to the Director,
OEA.
32 CFR 365.5 Relationships.
(a) In the performance of assigned functions, the Director, OEA,
shall:
(1) Establish and maintain effective liaison with DoD Components
(and, after appropriate notification, with subordinate commands and
installations, as required) for the timely exchange of information, and
the coordination of realinements and economic adjustment plans and
actions.
(2) Establish and maintain effective liaison with Federal domestic
agency members of the EAC at headquarters and regional levels for timely
exchange of information and the development, coordination, and support
of economic adjustment assistance plans and actions.
(3) Use established facilities and services in the DoD and other
governmental agencies whenever practical to achieve maximum efficiency
and economy.
(b) Heads of DoD Components shall provide timely information and
technical support to the Director, OEA, on matters within their
respective fields of responsibilities and as may be necessary to carry
out effectively the assigned responsibilities and functions of OEA.
32 CFR 365.6 Authority.
The Director, OEA, is specifically authorized to:
(a) Obtain such information, advice, and assistance from other DoD
Components as considered necessary, consistent with the policies and
criteria of DoD Directive 5000.19, ''Policies for the Management and
Control of Information Requirements,'' March 12, 1976.
(b) Communicate directly with appropriate personnel in the Military
Departments and other DoD Components on matters related to OEA
responsibilities and functions.
(c) Exercise the administrative authorities contained in 365.8 of
this part.
32 CFR 365.7 Administration.
(a) The Director, OEA, shall be designated by the ASD(MRA&L).
(b) The OEA shall be authorized such personnel, facilities, funds,
and other administrative support as the Secretary of Defense considers
necessary.
(c) The Secretaries of Military Departments shall assign military
personnel to the OEA within approved authorizations, and in accordance
with established procedures for assignment to joint duty.
(d) Administrative support required for the OEA will be provided,
through support and service agreements, by other DoD Components.
32 CFR 365.8 Delegation of authorities.
Pursuant to the authority vested in the Secretary of Defense, and
subject to his/her direction, authority and control, and in accordance
with DoD policies, directives and instructions, the Director, OEA, or,
in the absence of the Director, the person acting for him/her, is hereby
delegated authority, as required in the administration and operation of
OEA, to:
(a) Perform the following functions in accordance with the provisions
of 5 U.S.C. 7532 (1976); Executive Order 10450, as amended, 3 CFR part
936 (1949-1953 Compilation), reprinted at 5 U.S.C. 7311 (1976); and
the DoD Directive 5210.7, ''Department of Defense Civilian Applicant and
Employee Security Program,'' September 2, 1966:
(1) Designate any position in OEA as a ''sensitive'' position;
(2) Authorize, in case of an emergency, the appointment of a person
to a sensitive position in OEA for a limited period of time for whom a
full field investigation or other appropriate investigation, including
the National Security Check, has not been completed; and
(3) Authorize the suspension, but not including termination of the
services of an employee in the interest of national security in
positions within OEA.
(b) Authorize and approve overtime work for OEA civilian employees in
accordance with the provisions of the Federal Personnel Manual
Supplement 990-1, 550.111 (5 CFR 550.111 (1978)).
(c) Develop, establish and maintain an active and continuing Records
Management Program, pursuant to 44 U.S.C.A. 3102 (Supp. 1978).
(d) Authorize the publication of advertisements, notices, or
proposals in public periodicals, as required for the effective
administration of OEA pursuant to 44 U.S.C. 3702 (1970).
(e) Establish and maintain, for the functions assigned, an
appropriate publications system for the promulgation of regulations,
instructions and reference documents, and changes thereto, pursuant to
the policies and procedures prescribed in DoD Directive 5205.1,
''Department of Defense Directives System,'' November 18, 1977.
(f) In coordination with the DASD (Administration), enter into
support and services agreements with the Military Departments, other DoD
Components or other Government agencies, as required for the effective
and efficient performance of responsibilities and functions assigned to
OEA.
(g) Enter into and administer contracts through the DASD
(Administration) or with his/her approval, directly or through a
Military Department, a DoD contract administration services component,
or other Government department or agency, as appropriate, for supplies,
equipment and services required to accomplish the mission of OEA. To
the extent that any law or executive order specifically limits the
exercise of such authority to persons at the Secretarial level of a
Military Department, such authority will be exercised by the appropriate
Under Secretary or Assistant Secretary of Defense.
The Director, OEA, may redelegate these authorities, as appropriate
and in writing, except as otherwise specifically indicated above or as
otherwise provided by law or regulation.
32 CFR 365.8 PART 366 -- ASSISTANT SECRETARY OF DEFENSE (PROGRAM
ANALYSIS AND EVALUATION)
Sec.
366.1 Purpose.
366.2 Definition.
366.3 Responsibilities.
366.4 Functions.
366.5 Relationships.
366.6 Authorities.
Authority: 10 U.S.C. 136.
Source: 54 FR 7031, Feb. 16, 1989, unless otherwise noted.
32 CFR 366.1 Purpose.
This part is revised pursuant to the authority vested in the
Secretary of Defense under 10 U.S.C.:
(a) Designates one of the positions of Assistant Secretary of Defense
as the Assistant Secretary of Defense (Program Analysis and Evaluation)
(ASD(PA&E)).
(b) Assigns responsibilities, functions, relationships, and
authorities, as prescribed herein, to the ASD(PA&E).
32 CFR 366.2 Definition.
DoD Components. The Office of the Secretary of Defense (OSD), the
Military Departments, the Joint Chiefs of Staff (JCS), the Joint Staff,
the Unified and Specified Commands, the Defense Agencies, and the DoD
Field Activities.
32 CFR 366.3 Responsibilities.
The Assistant Secretary of Defense (Program Analysis and Evaluation)
(ASD(PA&E)), as the principal staff assistant to the Secretary of
Defense for DoD program analysis and evaluation, shall:
(a) Provide advice, make recommendations, and participate in the
development of policies and the preparation of planning, fiscal, and
materiel support guidance upon which DoD program projections are based.
(b) Perform analyses and evaluations of plans, programs, and budget
submissions in relation to projected threats, allied contributions,
estimated costs, resource constraints, and U.S. defense objectives and
priorities.
(c) Identify issues and evaluate alternative programs.
(d) Initiate programs, actions, and taskings to ensure adherence to
DoD policies and national security objectives, and ensure that programs
are designed to accommodate operational requirements and promote the
readiness and efficiency of the U.S. Armed Forces.
(e) Review, analyze, and evaluate programs, including classified
programs, for carrying out approved policies and standards.
(f) Ensure that the costs of DoD programs, including classified
programs, are presented accurately and completely.
(g) Assess the effects of DoD spending on the U.S. economy, and
evaluate alternative policies to ensure that the DoD program can be
implemented efficiently.
(h) Provide leadership in developing and promoting improved analytic
tools and methods for analyzing national security planning and the
allocation of resources.
(i) Serve on boards, committees, and other groups pertaining to the
ASD(PA&E)'s functional areas, and represent the Secretary of Defense on
PA&E matters outside the Department of Defense.
(j) Perform such other duties as the Secretary of Defense may assign.
32 CFR 366.4 Functions.
In executing assigned responsibilities, the ASD(PA&E) shall:
(a) Carry out the responsibilities described in 366.3 for the
following functional areas:
(1) General purpose force structure, both active and reserve.
(2) Strategic and theater nuclear force structure.
(3) Mobility force structure and pre-positioning plans.
(4) Force readiness and capabilities.
(5) Weapon systems and major items of material.
(6) Implications for manpower resources of specific force structure
plans.
(7) Support systems.
(8) Contingency plans.
(9) Materiel support programs and war reserve stocks.
(10) Deployment plans and overseas basing requirements.
(11) Mobilization plans.
(12) Effects of the DoD program on the economy and the industrial
base.
(13) Security assistance programs.
(14) Allied and foreign military requirements and capabilities.
(15) Nuclear warhead requirements.
(16) Such other areas as the Secretary of Defense may from time to
time prescribe.
(b) In coordination with the Under Secretary of Defense
(Acquisition), perform critical reviews of requirements, performance,
and life-cycle costs of current and proposed weapon systems, including
reviews of Cost and Operational Effectiveness Analyses (COEA) submitted
in support of Defense Acquisition Board milestone decisions. Provide
advance guidance to the Military Departments on issues and techniques to
be used in weapon system COEA.
(c) Provide leadership and support to the Cost Analysis Improvement
Group in accordance with DoD Directive 5000.4. /1/
(d) Provide support to the Planning, Programming, and Budgeting
System, especially the program review and execution review phases.
/1/ Copies may be obtained, if needed, from the U.S. Naval
Publications and Forms Center, Attn: Code 1062, 5801 Tabor Avenue,
Phaladelphia, PA 19120.
32 CFR 366.5 Relationships.
(a) In the performance of assigned functions, the ASD(PA&E) shall:
(1) Coordinate and exchange information with other DoD organizations
having collateral or related functions.
(2) Use existing facilities and services of the Department of Defense
or other Federal Agencies to avoid duplication and achieve maximum
efficiency and economy.
(b) Heads of DoD Components shall coordinate with the ASD(PA&E) on
all matters related to the functions in 366.4.
32 CFR 366.6 Authorities.
The ASD(PA&E) is hereby delegated authority to:
(a) Issue instructions, publications, and one-time directive-type
memoranda, consistent with DoD 5025.1-M that implement policies approved
by the Secretary of Defense in the functions assigned to the ASD(PA&E).
Instructions to the Military Departments shall be issued through their
Secretaries or designees. Instructions to Unified and Specified
Commands shall be issued through the Chairman, Joint Chiefs of Staff
(CJCS).
(b) Obtain such reports, information, advice, and assistance
consistent with the policies and criteria of DoD Directive 7750.5, /2/
as necessary.
(c) Communicate directly with heads of DoD Components.
Communications to the Commanders of the Unified and Specified Commands
shall be coordianted with the CJCS.
(d) Establish arrangements for DoD participation in those nondefense
governmental programs for which the ASD(PA&E) has been assigned primary
cognizance.
(e) Communicate with other Government Agencies, represenatives of the
legislative branch, and members of the public, as appropriate, in
carrying out assigned functions.
/2/ See footnote 1 to 366.4(c).
32 CFR 366.6 PART 367 -- ASSISTANT SECRETARY OF DEFENSE (HEALTH
AFFAIRS)
Sec.
367.1 Purpose.
367.2 Definition.
367.3 Responsibilities.
367.4 Functions.
367.5 Relationships.
367.6 Authorities.
Authority: 10 U.S.C. 136.
Source: 56 FR 21077, May 7, 1991, unless otherwise noted.
32 CFR 367.1 Purpose.
Pursuant to the authority vested in the Secretary of Defense under 10
U.S.C. 136, this part:
(a) Designates one of the positions of Assistant Secretary of Defense
as the ASD(HA).
(b) Assigns responsibilities, functions, relationships, and
authorities, as prescribed herein, to the ASD(HA).
32 CFR 367.2 Definition.
DoD Components. The Office of the Secretary of Defense (OSD), the
Military Departments, the Chairman of the Joint Chiefs of Staff and the
Joint Staff, the Unified and Specified Commands, the Office of the
Inspector General of the Department of Defense, the Defense Agencies,
and the DoD Field Activities.
32 CFR 367.3 Responsibilities.
The Assistant Secretary of Defense (Health Affairs) is the principal
staff assistant and advisor to the Secretary of Defense for all DoD
health policies, programs, and activities. Subject to the direction of
the Secretary of Defense, the ASD(HA) is responsible for overall
supervision of the health affairs of the Department of Defense and
exercises oversight of all DoD health resources. The ASD(HA) shall:
(a) Develop policies, conduct analyses, issue guidance on DoD plans
and programs, and advise the Secretary of Defense, as appropriate.
(b) Develop systems, standards, and procedures for the administration
and management of approved DoD plans and programs.
(c) Develop plans, programs, actions, and taskings to ensure
adherence to DoD health policies and national security objectives and to
ensure that programs and systems are designed to accommodate operational
requirements.
(d) Establish requirements and standards for medical facility and
material acquisition programs.
(e) Establish requirements for DoD research and development programs
in medical fields. Keep abreast of technical developments to provide
for their orderly transition to operational status. Make
recommendations on funding levels for DoD research and development
programs in medical fields and the Human Immunodeficiency Virus (HIV)
Program.
(f) Serve as program manager for all DoD health and medical
resources. I coordination with the Comptroller of the Department of
Defense (C, DoD) and the Assistant Secretary of Defense (Program
Analysis and Evaluation) (ASD(PA&E)), review all Program Objective
Memoranda and budget submissions, and make determinations regarding
priorities and resources for health and medical programs. Provide input
to Program Decision Memoranda and Program Budget Decisions to the C,
DoD, and the ASD(PA&E) for incorporation into the Planning, Programming,
and Budgeting System (PPBS) process. Monitor the execution of approved
health and medical programs by the DoD Components and, subject to the
direction of the Secretary of Defense, make such determinations
regarding priorities and resources as may be required to achieve
DoD-wide program objectives.
(g) Review, evaluate, and make recommendations to the Secretary of
Defense on health requirements and priorities.
(h) Review and evaluate plans and programs to ensure adherence to
approved policies, standards, and resource guidance and decisions.
(i) Promote coordination, cooperation, and mutual understanding
within the Department of Defense and between the Department of Defense
and other Federal Agencies and the civilian community.
((j) Serve on boards, committees, and other groups pertaining to
ASD(HA) functional areas.
(k) Exercise direction, authority, and control over:
(1) The Office of Civilian Health and Medical Program of the
Uniformed Services.
(2) The Defense Medical Support Activity, which includes the Defense
Medical Systems Support Center and the Defense Medical Facilities
Office.
(l) Exercise the direction, authority, and control over the Uniformed
Services University of the Health Sciences (USUHS) vested in the
Secretary of Defense by chapter 104 of 10 U.S.C. and the Department of
Defense Appropriations Act, 1991, except that the authority to appoint
the President of the USUHS is reserved to the Secretary of Defense.
32 CFR 367.4 Functions.
The ASD(HA) shall:
(a) Carry out the responsibilities described in 367.3 for the
following functional areas:
(1) Medical readiness.
(2) Disease prevention.
(3) Health promotion.
(4) Health benefits programs.
(5) Alcohol and drug abuse treatment.
(6) Cost containment.
(7) Quality assurance.
(8) Medical information systems.
(9) DoD HIV Program and research on acquired immunodeficiency
syndrome.
(10) Procurement, professional development, and retention of medical
and dental personnel, and related healthcare specialists and
technicians.
(11) Military medical construction.
(b) Perform such other functions as may be assigned.
32 CFR 367.5 Relationships.
(a) In the performance of assigned duties, the ASD(HA) shall:
(1) Coordinate and exchange information with other OSD officials and
heads of DoD Components having collateral or related functions.
(2) Consult, as appropriate, with the C, DoD, and the ASD(PA&E) to
ensure that medical planning, programming, and budget activities are
integrated with the DoD PPBS.
(3) Use existing facilities and services of the Department of Defense
or other Federal Agencies, whenever practicable, to achieve maximum
efficiency and economy.
(b) Other OSD officials and heads of DoD Components shall coordinate
with the ASD(HA) on all matters concerning the functions in 367.4.
32 CFR 367.6 Authorities.
The ASD(HA) is hereby delegated authority to:
(a) Carry out the responsibilities and functions described in 367.3
and 367.4.
(b) Issue orders, DoD Instructions, publications, and one-time
directive-type memoranda, consistent with DoD 5025.1-M /1/ , regarding
the accomplishment of functions and responsibilities delegated by the
Secretary of Defense in this part. Instructions to the Military
Departments shall be issued through the Secretaries of those
Departments. Instructions to Unified or Specified Commands shall be
issued through the Chairman of the Joint Chiefs of Staff.
(c) Obtain reports, information, advice, and assistance, consistent
with DoD Directive 7750.5 /2/ , as necessary.
(d) Communicate directly with the heads of the DoD Components.
Communications to the Commanders of the Unified and Specified Commands
shall be coordinated through the Chairman of the Joint Chiefs of Staff.
(e) Make determinations on the uniform implementation of laws
relating to separation from the Military Departments due to physical
disability as prescribed in DoD Directive 1332.18 /3/ .
(f) Develop, issue, and maintain regulations, with the coordination
of the Military Departments, as necessary and appropriate to fulfill the
Secretary of Defense's responsibility to administer chapter 55 of 10
U.S.C.
(g) Establish arrangements for DoD participation in nondefense
governmental programs for which the ASD(HA) has been assigned primary
cognizance.
(h) Communicate with other Government Agencies, representatives of
the legislative branch, and members of the public, as appropriate, in
carrying out assigned functions.
(i) Execute the authorities required to administer and operate the
USUHS as specified in enclosure 1 of DoD Directive 5105.45 /4/ .
/1/ Copies may be obtained, at cost, from the National Technical
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
/2/ See footnote 1 to 367.6(b).
/3/ See footnote 1 to 367.6(b).
/4/ See footnote 1 to 367.6(b).
32 CFR 367.6 PART 367a -- UNIFORMED SERVICES UNIVERSITY OF THE HEALTH
SCIENCES (USUHS)
Sec.
367a.1 Purpose.
367a.2 Definitions.
367a.3 Mission and scope.
367a.4 Policy.
367a.5 Organization.
367a.6 Responsibilities and functions.
367a.7 Relationships.
367a.8 Authorities.
Appendix A to Part 367a -- Delegations of Authority
Authority: 10 U.S.C. 136.
Source: 56 FR 21079, May 7, 1991, unless otherwise noted.
32 CFR 367a.1 Purpose.
This part updates the mission, responsibilities, functions, and
authorities of the USUHS and provides for its governance pursuant to
chapter 104, section 2112, et seq. of title 10, United States Code and
section 8091 of Public Law 101-511, ''Department of Defense
Appropriations Act, 1991,'' November 5, 1990.
32 CFR 367a.2 Definitions.
(a) Academic Affairs. Faculty appointments, promotions and
organization, awarding of degrees, curriculum design and implementation,
academic requirements for admission and graduation, and related matters
vital to the academic well-being of the USUHS.
(b) DoD Components. The Office of the Secretary of Defense (OSD),
the Military Departments, the Chairman of the Joint Chiefs of Staff and
the Joint Staff, the Unified and Specified Commands, the Office of the
Inspector General of the Department of Defense, the Defense Agencies,
and the DoD Field Activities.
(c) Uniformed Services. The Army, Navy, Air Force, Marine Corps,
Coast Guard, Commissioned Corps of the U.S. Public Health Service, and
the Commissioned Corps of the National Oceanic and Atmospheric
Administration.
32 CFR 367a.3 Mission and scope.
The mission of the USUHS is to educate and train competent medical
personnel qualified to serve the needs of the Uniformed Services of the
United States through providing the highest quality education programs
in the health sciences. Within that mission, the University shall place
high priority on educating and training personnel to meet the combat and
peacetime medical needs of the armed forces. The University is
authorized to grant appropriate advanced academic degrees; establish
postdoctoral and postgraduate programs, and technological institutes;
conduct medical readiness training and continuing education for
uniformed members of the health professions; and prepare individuals
for careers in the health professions in the Uniformed Services.
32 CFR 367a.4 Policy.
Consistent with the performance of the Department's mission and with
established practices covering academic independence and integrity in
the fields of medical and health sciences education, the Department of
Defense recognizes the University's Board of Regents' unique role in
advising the Secretary of Defense. In particular, consistent with
applicable law and accomplishment of the Department's mission, the
Assistant Secretary of Defense (Health Affairs) (ASD(HA)) will be guided
by the advice of the USUHS Board of Regents on academic affairs.
32 CFR 367a.5 Organization.
The USUHS shall consist of:
(a) A Board of Regents, which shall be established and operated in
accordance with the Federal Advisory Committee Act and shall consist of
members appointed as provided by section 2113(a) of chapter 104, section
2112, et seq. of title 10, United States Code.
(b) A President of the USUHS, who shall be the chief executive
officer of the University, and who also is the Dean of the University
described in section 2113(a) of chapter 104, section 2112, et seq. of
title 10, United States Code, and who shall report to the ASD(HA).
(c) A Dean of the F. Edward Hebert School of Medicine, who shall
function as the chief academic officer of the F. Edward Hebert School
of Medicine and report to the President of the USUHS.
(d) Other deans, academic officers, faculty members and
administrative officials, staffs, and other subordinate organizations as
may be required for the accomplishment of the University's mission.
(e) Students selected under procedures prescribed in accordance with
section 2113(a) of chapter 104, section 2112, et seq. of title 10,
United States Code and graduate students.
32 CFR 367a.6 Responsibilities and functions.
(a) The Assistant Secretary of Defense (Health Affairs) shall
exercise the authorities over the USUHS vested in the Secretary of
Defense by chapter 104, section 2112, et seq. of 10 U.S.C. and section
8091 of Public Law 101-511, except that the authority to appoint the
President of the USUHS is reserved to the Secretary of Defense. In this
capacity, the ASD(HA) shall:
(1) Ensure effective operation of the University.
(2) In matters of academic affairs, ensure that the advice of the
Board of Regents is given due regard in accordance with the policy set
forth in 367a.4.
(3) Make arrangements with the Secretaries of the Military
Departments and the heads of other DoD Components to provide for support
of the USUHS as may be necessary to implement this part.
(b) The Board of Regents shall participate in the governance of the
USUHS by advising the Secretary of Defense, through the ASD(HA), on
academic affairs and administration and management of the USUHS.
(c) The President of the Uniformed Services University of the Health
Sciences shall:
(1) Ensure that educational programs leading to a Doctor of Medicine
or other advanced degrees in the health professions meet the standards
of appropriate and recognized, accrediting, licensing, and certifying
agencies.
(2) Carry out those responsibilities and functions about the
supervision and management of University programs, activities,
personnel, and resources as the ASD(HA) prescribes.
(d) The Dean of the F. Edward Hebert School of Medicine shall
develop and administer policies and procedures on the academic affairs
of the F. Edward Hebert School of Medicine.
32 CFR 367a.7 Relationships.
(a) In carrying out the responsibilities and functions of chief
executive officer of the USUHS, the President of the USUHS shall:
(1) Obtain advice from the Board of Regents as necessary to assist
the President in performing the President's duties.
(2) Coordinate and exchange information and advice with elements of
the OSD and other DoD Components having collateral or related
responsibilities.
(3) Make use of established facilities and services in the Department
of Defense and other Government Agencies, whenever practical, to avoid
duplication and achieve maximum efficiency and economy.
(4) Consult and coordinate with other governmental and
nongovernmental agencies on matters related to the mission and programs
of the USUHS.
(b) The Heads of the DoD Components shall coordinate with the ASD(HA)
on all matters relating to the mission and programs of the USUHS.
32 CFR 367a.8 Authorities.
The ASD(HA) shall exercise the delegations of administrative
authority contained in appendix A to this part.
32 CFR 367a.8 Pt. 367a, App. A
Pursuant to the authority vested in the Secretary of Defense, and
subject to the direction, authority, and control of the Secretary of
Defense and in accordance with DoD policies, Directives, and
Instructions, the ASD(HA), or in the absence of the ASD(HA), the person
acting for the ASD(HA), is hereby delegated authority as required in the
administration and operation of the USUHS to:
1. Obtain such information, consistent with the policies and criteria
of DoD Directive 7750.5, /1/ advice, and assistance from the DoD
Components, as necessary, to carry out assigned responsibilities and
functions.
2. Communicate directly with appropriate DoD Component personnel on
matters related to the mission and programs of the USUHS.
3. Appoint civilian members of the faculty and staff under salary
schedules and grant retirement and other related benefits prescribed by
the Secretary of Defense so as to place the employees of the USUHS on a
comparable basis with the employees of fully accredited schools of the
health professions within the vicinity of the District of Columbia as
provided by law.
4. Exercise the powers vested in the Secretary of Defense by 5 U.S.C.
301, 302(b), and 3101 regarding the employment, direction, and general
administration of USUHS civilian personnel.
5. Fix rates of pay for wage-rate employees exempted from the
Classification Act of 1949 by 5 U.S.C. 5102 on the basis of rates
established under the Coordinated Federal Wage System. In fixing such
rates, the ASD(HA) shall follow the wage schedule established by the DoD
Wage Fixing Authority.
6. Establish advisory committees and employ part-time advisors, as
approved by the Secretary of Defense, for the performance of USUHS
functions consistent with the 10 U.S.C. 173; 5 U.S.C. 3109(b); DoD
Directive 5105.4, /2/ ''DoD Federal Advisory Committee Management
Program,'' September 5, 1989; and the agreement between the Department
of Defense and the Office of Personnel Management (OPM) regarding
employment of experts and consultants, June 21, 1977.
7. Administer oaths of office to those entering the Executive branch
of the Federal Government or any other oath required by law in
connection with employment therein, in accordance with 5 U.S.C. 2903,
and designate in writing, as may be necessary, officers and employees of
the USUHS to perform this function.
8. Establish a USUHS Incentive Awards Board and pay cash awards to,
and incur necessary expenses for the honorary recognition of, civilian
employees of the Government whose suggestions, inventions, superior
accomplishments, or other personal efforts, including special acts or
services, benefit or affect the USUHS or its subordinate activities, in
accordance with 5 U.S.C. 4503 and applicable OPM regulations.
9. In accordance with 5 U.S.C. 7532; Executive Orders 10450, 12333,
and 12356; and DoD Directive 5200.2, /3/ ''DoD Personnel Security
Program,'' December 20, 1979; as appropriate:
(a) Designate any position in the USUHS as a ''sensitive'' position.
(b) Authorize, in case of an emergency, the appointment of a person
to a sensitive position in the USUHS for a limited period of time for
whom a full field investigation or other appropriate investigation,
including the National Agency Check, has not been completed.
(c) Authorize the suspension, but not terminate the services, of an
employee in the interest of national security in positions within the
USUHS.
(d) Initiate investigations, issue personnel security clearances and,
if necessary, in the interest of national security, suspend, revoke, or
deny a security clearance for personnel assigned or detailed to, or
employed by, the USUHS.
Any action to deny or revoke a security clearance shall be taken in
accordance with procedures prescribed in DoD 5200.2-R, /4/ ''DoD
Personnel Security Program,'' January 1987.
10. Act as agent for the collection and payment of employment taxes
imposed by chapter 21 of the Internal Revenue Code of 1954, as amended;
and, as such agent, make all determinations and certifications required
or provided for under section 3122 of the Internal Revenue Code of 1954,
as amended, and section 205(p) (1) and (2) of the Social Security Act,
as amended (42 U.S.C. 405(p) (1) and (2)) about USUHS employees.
11. Authorize and approve overtime work for USUHS civilian officers
and employees in accordance with 5 U.S.C. chapter 55, subchapter V, and
applicable OPM regulations.
12. Authorize and approve:
(a) Temporary duty travel for military personnel assigned or detailed
to the USUHS in accordance with Joint Travel Regulations, Volume 1,
''Uniformed Service Members.''
(b) Travel for USUHS civilian officers and employees in accordance
with Joint Travel Regulations, Volume 2, ''DoD Civilian Personnel.''
(c) Invitational travel to non-DoD employees whose consultative,
advisory, or other highly specialized technical services are required in
a capacity that is directly related to, or in connection with, USUHS
activities, in accordance with Volume 2, Joint Travel Regulations.
13. Approve the expenditure of funds available for travel by military
personnel assigned or detailed to the USUHS for expenses about
attendance at meetings of technical, scientific, professional, or other
similar organizations in such instances where the approval of the
Secretary of Defense, or designee, is required by law (37 U.S.C. 412
and 5 U.S.C. 4110 and 4111).
14. Develop, establish, and maintain an active and continuing Records
Management Program pursuant to section 506(b) of the Federal Records Act
of 1950 (44 U.S.C. 3102).
15. Establish and use imprest funds for making small purchases of
material and services, other than personal services, for the USUHS, when
it is determined more advantageous and consistent with the best
interests of the Government, in accordance with DoD Directive 7360.10,
/5/ ''Disbursing Policies,'' January 17, 1989.
16. Authorize the publication of advertisements, notices, or
proposals in newspapers, magazines, or other public periodicals as
required for the effective administration and operation of the USUHS
consistent with 44 U.S.C. 3702.
17. Establish and maintain appropriate property accounts for the
USUHS, and appoint Boards of Survey, approve reports of survey, relieve
personal liability, and drop accountability for USUHS property contained
in the authorized property accounts that has been lost, damaged, stolen,
destroyed, or otherwise rendered unserviceable, in accordance with
applicable laws and regulations.
18. Promulgate the necessary security regulations for the protection
of property and places under the jurisdiction of the President of USUHS,
pursuant to DoD Directive 5200.8, /6/ ''Security of Military
Installations and Resources,'' July 29, 1980.
19. Establish and maintain, for the functions assigned, an
appropriate publications system for the promulgation of common supply
and service regulations, instructions, and reference documents, and
changes thereto, pursuant to the policies and procedures prescribed in
DoD 5025.1-M, /7/ ''DoD Directives System Procedures,'' December 1990.
20. Enter into support and service agreements with the Military
Departments, other DoD Components, or other Government Agencies, as
required for the effective performance of USUHS functions and
responsibilities.
21. Exercise the authority delegated to the Secretary of Defense by
the Administrator of the General Services Administration for the
disposal of surplus personal property.
22. Enter into and administer contracts, directly or through a
Military Department, a DoD contract administration services component,
or other Government Department or Agency, as appropriate, for supplies,
equipment, and services required to accomplish the mission of the USUHS.
To the extent that any law or Executive order specifically limits the
exercise of such authority to persons at the Secretarial level, such
authority shall be exercised by the appropriate Under Secretary or
Assistant Secretary of Defense.
The ASD(HA) may redelegate these authorities, as appropriate, and in
writing, except as otherwise specifically indicated above or as
otherwise provided by law or regulation.
/1/ Copies may be obtained, at cost, from the National Technical
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
/2/ See footnote 1 to section 1 of this appendix.
/3/ See footnote 1 to section 1 of this appendix.
/4/ See footnote 1 to section 1 of this appendix.
/5/ See footnote 1 to section 1 of this appendix.
/6/ See footnote 1 to section 1 of this appendix.
/7/ See footnote 1 to section 1 of this appendix.
32 CFR 367a.8 PART 368 -- FUNCTIONS OF THE DEPARTMENT OF DEFENSE AND
ITS MAJOR COMPONENTS
Sec.
368.1 Purpose.
368.2 Organizational relationships in the Department of Defense.
368.3 Functions of the Department of Defense.
368.4 Functions of the Joint Chiefs of Staff.
368.5 Functions of the Unified and Specified Combatant Commanders.
368.6 Functions of the Military Departments.
368.7 Functions of DoD Agencies.
Authority: 50 U.S.C. 401; 10 U.S.C. 125.
Source: 52 FR 35417, Sept. 21, 1987, unless otherwise noted.
32 CFR 368.1 Purpose.
This part promulgates the statement of the functions of the
Department of Defense and its major components.
32 CFR 368.2 Organizational relationships in the Department of Defense.
(a) All functions in the Department of Defense and its component
agencies are performed under the authority, direction, and control of
the Secretary of Defense.
(b) The Department of Defense is composed of the Office of the
Secretary of Defense (OSD), the Military Departments and the Military
Services within those Departments, the Joint Chiefs of Staff (JCS) and
the Joint Staff, the Unified and Specified Combatant Commands, the
Defense Agencies and DOD Field Activities, and such other offices,
agencies, activities and commands as may be established or designated by
law, or by the President or the Secretary of Defense. The functions of
the heads of these offices shall be as assigned by the Secretary of
Defense in accordance with existing law.
(1) In providing immediate staff assistance and advice to the
Secretary of Defense, the Office of the Secretary of Defense and the
Joint Chiefs of Staff, though separately identified and organized,
function in full coordination and cooperation in accordance with 32 CFR
part 371.
(i) The Office of the Secretary of Defense includes the Deputy
Secretary of Defense, Under Secretaries of Defense, Director of Defense
Research and Engineering, Assistant Secretaries of Defense, Comptroller
of the Department of Defense, Director of Operational Test and
Evaluation, General Counsel of the Department of Defense, Inspector
General of the Department of Defense, and such other offices and
officials as may be established by law or by the Secretary of Defense.
(ii) The Chairman and the Joint Chiefs of Staff are directly
responsible to the Secretary of Defense for the functions assigned to
them. To the extent it does not impair his independence in the
performance of the duties as a member of the Joint Chiefs of Staff, each
member of the Joint Chiefs of Staff, except the Chairman, shall inform
the Secretary of his Military Department regarding military advice
rendered by members of the Joint Chiefs of Staff on matters affecting
his Military Department.
(2) Each Military Department (the Department of the Navy to include
the United States Marine Corps, and the United States Coast Guard when
transferred in accordance with sections 2, 3, and 145 of 14 U.S.C.)
shall be separately organized under its own Secretary and shall function
under the direction, authority, and control of the Secretary of Defense.
Orders to the Military Departments shall be issued through the
Secretaries of these Departments, or their designees, by the Secretary
of Defense or under authority specifically delegated in writing by the
Secretary of Defense or as provided by law.
(i) The Secretary of each Military Department, and the civilian
employees and members of the Armed Forces under the jurisdiction of the
Military Department Secretary, shall cooperate fully with the Office of
the Secretary of Defense to achieve efficient administration of the
Department of Defense and to carry out effectively the authority,
direction, and control of the Secretary of Defense.
(ii) The Secretary of Defense shall keep the Secretaries of the
Military Departments informed with respect to military operations and
activities of the Department of Defense that directly affect their
respective responsibilities.
(3) The Commanders of the Unified and Specified Combatant Commands
are responsible to the President and the Secretary of Defense for
accomplishing the military missions assigned to them and shall excercise
command authority over forces assigned to them as directed by the
Secretary of Defense pursuant to section 10 U.S.C. 164. The operational
chain of command runs from the President to the Secretary of Defense to
the Commanders of the Unified and Specified Combatant Commands. The
Chairman, JCS functions within the chain of command by transmitting to
the Commanders of the Unified and Specified Combatant Commands the
orders of the President or the Secretary of Defense.
(i) Orders to such commanders shall be issued by the President or the
Secretary of Defense or by the Chairman, JCS with the authority and
direction of the President or the Secretary of Defense.
(ii) Communications from the President or the Secretary of Defense to
the Commanders of the Unified and Specified Combatant Commands, shall be
transmitted through the Chairman, JCS. Communications from the
Commanders of the Unified and Specified Combatant Commands to the
President and/or the Secretary of Defense shall be transmitted through
the Chairman, JCS.
(iii) Communications in matters of joint interest, addressed to the
Commanders of the Unified and Specified Combatant Commands by other
authority, shall, unless urgent circumstances do not permit, be
coordinated with the Chairman, JCS. Information copies of all
communications in matters of joint interest between Washington level
offices, agencies, activities and commands and the Unified and Specified
Combatant Commands shall be provided to the Chairman, JCS.
(iv) Subject to the authority, direction, and control of the
Secretary of Defense, the Chairman acts as the spokesman for Commanders
of the Unified and Specified Commands, especially on the operational
requirements of their commands and shall be responsible for overseeing
the activities of the combantant commands. The President and the
Secretary of Defense may assign other duties to the Chairman to assist
the President and the Secretary of Defense in performing their command
functions.
32 CFR 368.3 Functions of the Department of Defense.
As prescribed by higher authority, the Department of Defense shall
maintain and employ armed forces to:
(a) Support and defend the Constitution of the United States against
all enemies, foreign and domestic.
(b) Ensure, by timely and effective military action, the security of
the United States, its possessions, and areas vital to its interest.
(c) Uphold and advance the national policies and interests of the
United States.
32 CFR 368.4 Functions of the Joint Chiefs of Staff.
The Joint Chiefs of Staff, consisting of the Chairman; the Chief of
Staff, U.S. Army; the Chief of Naval Operations; the Chief of Staff,
U.S. Air Force; and the Commandant of the Marine Corps, and supported
by the Joint Staff, constitute the immediate military staff of the
Secretary of Defense.
(a) The Chairman of the Joint Chiefs of Staff is the principal
military advisor to the President, the National Security Council, and
the Secretary of Defense. Subject to the authority, direction, and
control of the President and the Secretary of Defense, the Chairman
shall be responsible for the following principal functions:
(1) Advise and assist the Secretary of Defense of the preparation of
annual policy guidance for the heads of Department of Defense components
for the preparation and review of program recommendations and budget
proposals.
(2) Advise the Secretary of Defense on the preparation of policy
guidance for the preparation and review of contingency plans.
(3) Assist the President and the Secretary of Defense in providing
for the strategic direction of the armed forces, including the direction
of operations conducted by the Commanders of Unified and Specified
Combatant Commands.
(4) Prepare strategic plans, including plans which conform with
resource levels projected by the Secretary of Defense to be available
for the period of time for which the plans are to be effective.
(5) Prepare joint logistic and mobility plans to support those
strategic plans and recommend the assignment of logistics and mobility
responsibilities to the armed forces in accordance with those logistic
and mobility plans.
(6) Prepare military strategy and assessments of the associated
risks. These will include the following:
(i) A military strategy to support national objectives within policy
and resource level guidance provided by the Secretary of Defense. Such
strategy will include broad military option prepared by the Chairman
with the advice of the Joint Chiefs of Staff and the Commanders of the
Unified and Specified Combatant Commands.
(ii) Net assessments to determine the capabilities of the Armed
Forces of the United States and its allies as compared to those of
possible adversaries.
(7) Provide for the preparation and review of contingency plans which
conform to policy guidance from the President and the Secretary of
Defense.
(8) Prepare joint logistics and mobility plans to support those
contingency plans and recommend the assignment of logistic and mobility
responsibilities to the Armed Forces in accordance with those logistic
and mobility plans.
(9) Advise the Secretary of Defense on critical deficiencies and
strengths in force capabilities (including manpower, logistic, and
mobility support) identified during the preparation and review of
contingency plans, and assess the effect of such deficiencies and
strengths on meeting national security objectives and policy and on
strategic plans.
(10) After consultation with the Commanders of the Unified and
Specified Combatant Commands, establish and maintain a uniform system
for evaluating the preparedness of each unified and specified combatant
command to carry out missions assigned to the command.
(11) Advise the Secretary of Defense on the priorities of the
requirements, especially operational requirements, identified by the
Commanders of the Unified and Specified Combatant Commands.
(12) Advise the Secretary of Defense on the extent to which the
program recommendations and budget proposals of the Military Departments
and other components of the Department of Defense conform with the
priorities established in strategic plans and with the priorities
established for requirements of the Commanders of the Unified and
Specified Combatant Commands.
(13) If deemed necessary, submit to the Secretary of Defense
alternative program recommendations and budget proposals, within
projected resource levels and guidance provided by the Secretary of
Defense, to achieve greater conformance with the priorities established
in strategic plans and with the priorities for the requirements of the
Commanders of the Unified and Specified Combatant Commands.
(14) In accordance with guidance of the Secretary of Defense,
recommend budget proposals for activities of each unified and specified
combatant command, as appropriate. Activities for which funding may be
requested include:
(i) Joint Exercises.
(ii) Force Training.
(iii) Contingencies.
(iv) Selected Operations.
(15) Advise the Secretary of Defense on the extent to which the major
programs and policies of the armed forces in the area of manpower
conform with strategic plans.
(16) Assess military requirements for defense acquisition programs.
(17) Develop and establish doctrine for all aspects of the joint
employment of the Armed Forces.
(18) Formulate policies for coordinating the military education and
training of members of the Armed Forces.
(19) Provide for representation of the United States on the Military
Staff Committee of the United Nations in accordance with the Charter of
the United Nations.
(20) Submit to the Secretary of Defense, not less than once every
three years, a report containing such recommendations for changes in the
assignment of functions (roles and missions) to the Armed Forces as the
Chairman considers necessary to achieve maximum effectiveness of the
Armed Forces.
(21) Prescribe the duties and functions of the Vice Chairman, JCS,
subject to approval of the Secretary of Defense.
(22) Exercise exclusive direction of the Joint Staff.
(23) Subject to the direction of the President, attend and
participate in meetings of the National Security Council.
(24) Advise and assist the President and the Secretary of Defense on
establishing unified and specified combatant commands to perform
military missions and on prescribing the force structure of those
commands.
(25) Periodically, not less than every two years, review the
missions, responsibilities (including geographic boundaries), and force
structure of each unified and specified combatant command; and
recommend to the President through the Secretary of Defense, any changes
to missions, responsibilities, and force structure, as may be necessary.
(26) Transmit communications between the President or the Secretary
of Defense and the Commanders of the Unified and Specified Combatant
Commands, as directed by the President.
(27) Perform duties, as assigned by the President or the Secretary of
Defense, to assist the President and the Secretary of Defense in
performing their command function.
(28) Oversee the activities of the unified and specified combatant
commands.
(29) Advise the Secretary of Defense on whether a Commander of a
Unified or Specified Combatant Command has sufficient authority,
direction, and control over the commands and forces assigned to the
command to exercise effective command of those commands and forces.
(30) Advise and assist the Secretary of Defense on measures to
provide for the administration and support of forces assigned to each
unified and specified combatant command.
(31) Advise the Secretary of Defense on whether aspects of the
administration and support necessary for the accomplishment of missions
should be assigned to the Commander of a Unified or Specified Combatant
Command.
(32) Serve as the spokesman for Commanders of the Unified and
Specified Combatant Commands, especially on the operational requirements
of their commands.
(33) Provide overall supervision of those Defense Agencies and
Department of Defense Field Activities for which the Chairman, JCS has
been designated by the Secretary of Defense to oversee. Perform such
other functions with respect to the Defense Agencies and Department of
Defense Field Activities as may be assigned by the Secretary of Defense.
(34) Periodically, not less than every two years, report to the
Secretary of Defense on the responsiveness and readiness of designated
combat support agencies.
(35) Provide for the participation of combat support agencies in
joint training exercises, assess their performance, and take steps to
provide for changes to improve their performance.
(36) Develop, in consultation with the director of each combat
support agency, and maintain a uniform readiness reporting system for
combat support agencies.
(37) Advise and assist the Secretary of Defense on the periodic
review and revision of the curriculum of each professional military
education school to enhance the education and training of officers in
joint matters.
(38) Review the reports of selection boards that consider for
promotion officers serving, or having served, in joint duty assignments
in accordance with guidelines furnished by the Secretary of Defense and
return the reports with determinations and comments to the Secretary of
the appropriate Military Department.
(39) Advise the Secretary of Defense on the establishment of career
guidelines for officers with the joint specialty.
(40) Submit to the Secretary of Defense an evaluation of the joint
duty performance of officers recommended for an initial appointment to
the grade of lieutenant general or vice admiral, or initial appointment
as general or admiral.
(41) Promulgate Joint Chiefs of Staff publications (JCS Pubs) to
provide military guidance for joint activities of the Armed Forces.
(42) Review the plans and programs of the Commanders of Unified and
Specified Combatant Commands to determine their adequacy and feasibility
for the performance of assigned missions.
(43) Provide military guidance for use by the Military Departments,
the Military Services, and the Defense Agencies in the preparation of
their respective detailed plans.
(44) Participate, as directed, in the preparation of combined plans
for military action in conjunction with the armed forces of other
nations.
(45) Determine the headquarters support, such as facilities,
personnel, and communications, required by unified and specified
combatant commands, and recommend the assignment to the Military
Departments of the responsibilities for providing such support.
(46) Prepare and submit to the Secretary of Defense, for information
and consideration, general strategic guidance for the development of
industrial and manpower mobilization programs.
(47) Prepare and submit to the Secretary of Defense military guidance
for use in the development of military aid programs and other actions
relating to foreign military forces.
(48) Formulate policies for the joint training of the Armed Forces.
(49) Assess joint military requirements for command, control and
communications, recommend improvements, and provide guidance on aspects
that relate to the conduct of joint operations.
(50) Prepare and submit to the Secretary of Defense, for information
and consideration in connection with the preparation of budgets,
statements of military requirements based upon U.S. strategic war plans.
These statements of requirements shall include tasks, priority of
tasks, force requirements, and general strategic guidance for developing
military installations and bases, and for equipping and maintaining
military forces.
(51) In carrying out his functions, duties, and responsibilities, the
Chairman, JCS shall, as he considers appropriate, consult with and seek
the advice of the other members of the Joint Chiefs of Staff and the
Commanders of the Unified and Specified Combatant Commands.
(52) Perform such other duties as the President or the Secretary of
Defense may prescribe.
(b) The other members of the Joint Chiefs of Staff are military
advisers to the President, the National Security Council, and the
Secretary of Defense as specified below:
(1) A member of the Joint Chiefs of Staff may submit to the Chairman
advice or an opinion in disagreement with, or in addition to the advice
or opinion presented by the Chairman. If a member submits such advice
or opinion, the Chairman shall present that advice or opinion to the
President, Secretary of Defense, or National Security Council, at the
same time that he presents his own advice. The Chairman will also, as
he considers appropriate, inform the President, the National Security
Council, or the Secretary of Defense of the range of military advice and
opinion with respect to any matter.
(2) The members of the Joint Chiefs of Staff, individually or
collectively, in their capacity as military advisers, will provide
advice to the President, the National Security Council, or the Secretary
of Defense on a particular matter when the President, the National
Security Council, or the Secretary of Defense requests such advice.
(c) The Vice Chairman of the Joint Chiefs of Staff shall perform such
duties as may be prescribed by the Chairman with the approval of the
Secretary of Defense. When there is a vacancy in the Office of the
Chairman or in the absence or disability of the Chairman, the Vice
Chairman acts as Chairman and performs the duties of the Chairman until
a successor is appointed or the absence or disability ceases.
32 CFR 368.5 Functions of the Unified and Specified Combatant
Commanders.
(a) Unless otherwise directed by the President or the Secretary of
Defense, the authority, direction, and control of the Commander of a
Unified or Specified Combatant Command with respect to the commands and
forces assigned to that command include the command functions of:
(1) Giving authoritative directions to subordinate commands and
forces necessary to carry out missions assigned to the command,
including authoritative direction over all aspects of military
operations, joint training, and logistics;
(2) Prescribing the chain of command to the commands and forces
within the command;
(3) Organizing commands and forces within that command as he
considers necessary to carry out missions assigned to the command;
(4) Employing forces within that command as he considers necessary to
carry out missions assigned to the command;
(5) Assigning command functions to subordinate commanders;
(6) Coordinating and approving those aspects of administration and
support (including control of resources and equipment, internal
organization, and training), and discipline necessary to carry out
missions assigned to the command; and
(7) Exercising the authority with respect to selecting subordinate
commanders, selecting combatant command staff, suspending subordinates,
and convening courts-martial, as provided in 10 U.S.C.
(b) If a commander of a combatant command at any time considers his
authority, direction, or control with respect to any of the commands or
forces assigned to the command to be insufficient to command
effectively, the commander shall promptly inform the Secretary of
Defense.
(c) Unless otherwise directed by the President or the Secretary of
the Defense, Commanders of Unified and Specified Combatant Commands
exercise authority over subordinate commanders as follows:
(1) Commanders of commands and forces assigned to a unified or
specified combatant command are under the authority, direction, and
control of, and are responsible to, the Commander of the Unified or
Specified Combatant Command on all matters for which the Commander of
the Unified or Specified Combatant Command has been assigned authority
under 386.5(a);
(2) The commander of a command or force referred to in 386.5(c)(1)
shall communicate with other elements of the Department of Defense on
any matter for which the Commander of the Unified or Specified Combatant
Command has been assigned authority under 386.5(a) in accordance with
procedures, if any, established by the Commander of the Unified or
Specified Combatant Command;
(3) Other elements of the Department of Defense shall communicate,
with the commander of a command or force referred to in 386.5(c)(1) on
any matter for which the Commander of the Unified or Specified Combatant
Command has been assigned authority under 386.5(a) in accordance with
procedures, if any, established by the Commander of the Unified or
Specified Combatant Command; and
(4) If directed by the Commander of the Unified or Specified
Combatant Command, the commander of a command or force referred to in
386.5(c)(1) shall advise the Commander of the Unified or Specified
Combatant Command of all communications to and from other elements of
the Department of Defense on any matter for which the Commander of the
Unified or Specified Combatant Command has not been assigned authority
under 386.5(a).
32 CFR 368.6 Functions of the Military Departments.
(a) The chain of command for purposes other than the operational
direction of unified and specified combatant commands runs from the
President to the Secretary of Defense to the Secretaries of the Military
Departments to the commanders of Service forces.
(b) Subject to the authority, direction, and control of the Secretary
of Defense, the Secretaries of the Military Departments are responsible
for, and have the authority necessary to conduct, all affairs of their
respective Departments, including the following:
(1) Recruiting.
(2) Organizing.
(3) Supplying.
(4) Equipping (including research and development).
(5) Training.
(6) Servicing.
(7) Mobilizing.
(8) Demobilizing.
(9) Administering (including the morale and welfare of personnel).
(10) Maintaining.
(11) The construction, outfitting, and repairs of military equipment.
(12) The construction, maintenance, and repair of buildings,
structures, and utilities; the acquisition, management and disposal;
and the management of real property of natural resources.
(c) Subject to the authority, direction, and control of the Secretary
of Defense, the Secretaries of the Military Departments are responsible
to the Secretary of Defense for the following activities of their
respective Departments:
(1) The functioning and efficiency of their Departments;
(2) The formulation of policies and programs that are fully
consistent with national security objectives and policies established by
the President and the Secretary of Defense;
(3) The effective and timely implementation of policy, program, and
budget decisions and instructions of the President or Secretary of
Defense relating to the functions of each Military Department;
(4) Carrying out the functions of the Military Departments so as to
fulfill (to the maximum extent practicable) the current and future
operational requirements of the unified and specified combatant
commands;
(5) Effective cooperation and coordination between the Military
Departments and agencies of the Department of Defense to provide for
more effective, efficient, and economical administration and to
eliminate duplication;
(6) The presentation and justification of the positions of their
respective departments on the plans, programs, and policies of the
Department of Defense;
(7) The effective supervision and control of Military Department
intelligence activities; and
(8) Such other activities as may be prescribed by law or by the
President or Secretary of Defense.
(d) Common functions of the Military Departments. The functions of
the Military Departments, under their respective Secretaries, are as
follows:
(1) To prepare forces and establish reserves of manpower, equipment,
and supplies for the effective prosecution of war and military
operations short of war and plan for the expansion of peacetime
components to meet the needs of war.
(2) To maintain in readiness mobile reserve forces, properly
organized, trained, and equipped for employment in emergency.
(3) To provide adequate, timely, and reliable intelligence and
counterintelligence for the Military Department and other agencies as
directed by competent authority.
(4) To recruit, organize, train, and equip interoperable forces for
assignment to unified and specified combatant commands.
(5) To prepare and submit budgets for their respective departments;
justify before the Congress budget requests as approved by the
President; and administer the funds made available for maintaining,
equipping, and training the forces of their respective departments,
including those assigned to unified and specified combatant commands.
The budget submissions to the Secretary of Defense by the Military
Departments will be prepared on the basis, among other things, of the
recommendations of CINCs and of Service component commanders of forces
assigned to unified and specified combatant commands.
(6) To conduct research; develop tactics, techniques, and
organization; and develop and procure weapons, equipment, and supplies
essential to the fulfillment of the functions assigned in this
publication.
(7) To develop, garrison, supply, equip, and maintain bases and other
installations, including lines of communication, and to provide
administrative and logistics support for all forces and bases, unless
otherwise directed by the Secretary of Defense.
(8) To provide, as directed, such forces, military missions, and
detachments for service in foreign countries as may be required to
support the national interests of the United States.
(9) To assist in training and equipping the military forces of
foreign nations.
(10) To provide, as directed, administrative and logistic support to
the headquarters of unified and specified combatant commands, to include
direct support of the development and acquisition of the command and
control systems of such headquarters.
(11) To assist each other in the accomplishment of their respective
functions, including the provisions of personnel, intelligence,
training, facilities, equipment, supplies, and services.
(12) To prepare and submit, in coordination with other Military
Departments, mobilization information to the Joint Chiefs of Staff.
(e) Common service functions. The Army, Navy, Air Force, and Marine
Corps, under their respective Secretaries, are responsible for the
following functions:
(1) Determining Service force requirements and making recommendations
concerning force requirements to support national security objectives
and strategy and to meet the operational requirements of the unified and
specified combatant commands.
(2) Planning for the use of the intrinsic capabilities of resources
of the other Services which may be made available.
(3) Recommending to the Joint Chiefs of Staff the assignment and
deployment of forces to unified and specified combatant commands
established by the President through the Secretary of Defense.
(4) Administering Service forces.
(5) Providing logistic support for Service forces, including
procurement, distribution, supply, equipment, and maintenance, unless
otherwise directed by the Secretary of Defense.
(6) Developing doctrines, procedures, tactics, and techniques
employed by Service forces.
(7) Conducting operational testing and evaluation.
(8) Providing for training for joint operations and joint exercises
in support of unified and specified combatant command operational
requirements, including the following:
(i) Development of Service training, doctrines, procedures, tactics,
techniques, and methods of organization in accordance with policies and
procedures established in Service publications.
(ii) Development and preparation of Service publications to support
the conduct of joint training.
(iii) Determination of Service requirements to enhance the
effectiveness of joint training.
(iv) Support of that joint training directed by the Commanders of the
Unified and Specified Combatant Commands and conduct of such additional
joint training as is mutually agreed upon by the Services concerned.
(9) Operating organic land vehicles, aircraft, and ships or craft.
(10) Consulting and coordinating with with other Services on all
matters of joint concern.
(11) Participating with the other Services in the development of the
doctrines, procedures, tactics, techniques, training, publications, and
equipment for such joint operations as are the primary responsibility of
one of the Services.
(f) The forces developed and trained to perform the primary functions
set forth hereafter shall be employed to support and supplement the
other Military Service forces in carrying out their primary functions,
where and whenever such participation shall result in increased
effectiveness and shall contribute to the accomplishment of the overall
military objectives. As for collateral functions, while the assignment
of such functions may establish further justification for stated force
requirements, such assignment shall not be used as the sole basis for
establishing additional force requirements.
(1) Functions of the Department of the Army. (i) The Army, within
the Department of the Army, includes land combat and service forces and
any organic aviation and water transport assigned. The Army is
responsible for the preparation of land forces necessary for the
effective prosecution of war and military operations short of war,
except as otherwise assigned and, in accordance with intergrated joint
mobilization plans, for the expansion of the peacetime components of the
Army to meet the needs of war.
(ii) The primary functions of the Army are:
(A) To organize, train, and equip forces for the conduct of prompt
and sustained combat operations on land -- specifically, forces to
defeat enemy land forces and to seize, occupy, and defend land areas.
(B) To organize, train, equip, and provide forces for appropriate air
and missile defense and space control operations, including the
provisions of forces as required for the strategic defense of the United
States, in accordance with joint doctrines.
(C) To organize, equip, and provide Army forces, in coordination with
the other Military Services, for joint amphibious, airborne, and space
operations and to provide for the training of such forces, in accordance
with joint doctrines. Specifically, the Army will:
(1) Develop, in coordination with the other Military Services,
doctrines, tactics, techniques, and equipment of interest to the Army
for amphibious operations and not provided for elsewhere.
(2) Develop, in coordination with the other Military Services, the
doctrines, procedures, and equipment employed by Army and Marine Corps
forces in airborne operations. The Army will have primary
responsibility for developing those airborne doctrines, procedures, and
equipment that are of common interest to the Army and the Marine Corps.
(3) Develop, in coordination with the other Military Services,
doctrines, procedures and equipment employed by Army forces in the
conduct of space operations.
(D) To organize, train, equip, and provide forces for the support and
conduct of special operations.
(E) To provide equipment, forces procedures, and doctrine necessary
for the effective prosecution of electronic warfare operations and, as
directed, support of other forces.
(F) To organize, train, equip, and provide forces for the support and
conduct of psychological operations.
(G) To provide forces for the occupation of territories abroad,
including initial establishment of military government pending transfer
of this responsibility to other authority.
(H) To develop doctrines and procedures, in coordination with the
other Military Services, for organizing, equipping, training, and
employing forces operating on land, except that the development of
doctrines and procedures for organizing, equipping, training, and
employing Marine Corps units for amphibious operations will be a
function of the Marine Corps coordinating, as required, with the other
Military Services.
(I) To organize, train, equip, and provide forces, as directed, to
operate land lines of communication.
(J) To conduct the following activities:
(1) Functions relating to the management and operation of the Panama
Canal, as assigned by the Secretary or Deputy Secretary of Defense.
(2) The authorized civil works program, including projects for
improvement of navigation, flood control, beach erosion control, and
other water resource developments in the United States, its territories,
and its possessions.
(3) Certain other civil activities prescribed by law.
(iii) A collateral function of the Army is to train forces to
interdict enemy sea and air power and communications through operations
on or from land.
(iv) Army responsibilities in support of space operations include the
following:
(A) Organizing, training, equipping, and providing Army forces to
support space operations.
(B) Developing in coordination with the other Military Services,
tactics, techniques, and equipment employed by Army forces for use in
space operations.
(C) Conducting individual and unit training of Army space operations
forces.
(D) Participating with other Services in joint space operations,
training, and exercises as mutually agreed to by the Services concerned,
or as directed by competent authority.
(E) Providing forces for space support operations for the Department
of Defense when directed.
(v) Other responsibilities of the Army. With respect to close air
support of ground forces, the Army has specific responsibility for the
following:
(A) Providing, in accordance with inter-Service agreements,
communications, personnel, and equipment employed by Army forces.
(B) Conducting individual and unit training of Army forces.
(C) Developing equipment, tactics, and techniques employed by Army
forces.
(2) Functions of the Department of the Navy. (i) The Navy, within
the Department of the Navy, includes, in general, naval combat and
service forces and such aviation as may be organic therein. The Marine
Corps, within the Department of Navy, includes not less than three
combat divisions and three air wings and such other land combat,
aviation, and other services as may be organic therein. The Coast
Guard, when operating as a Service within the Department of the Navy,
includes naval combat and service forces and such aviation as may be
organic therein.
(A) The Navy and Marine Corps, under the Secretary of the Navy, are
responsible for the preparation of Navy and Marine Corps forces
necessary for the effective prosecution of war and military operations
short of war, except as otherwise assigned and, in accordance with the
integrated joint mobilization plans, for the expansion of the peacetime
components of the Navy and Marine Corps to meet the needs of war.
(B) During peacetime, the Department of Transportation is responsible
for maintaining the United States Coast Guard in a state of readiness so
that it may function as a specialized Service in the Navy in time of war
or when the President directs. The Coast Guard may also perform its
military functions in times of limited war or defense contingency, in
support of Naval Component Commanders, without transfer to the
Department of the Navy.
(ii) The primary functions of the Navy and/or Marine Corps are:
(A) To organize, train, equip and provide Navy and Marine Corps
forces for the conduct of prompt and sustained combat incident to
operations at sea, including operations of sea-based aircraft and
land-based naval air components -- specifically, forces to seek out and
destroy enemy naval forces and to suppress enemy sea commerce, to gain
and maintain general naval supremacy, to control vital sea areas and to
protect vital sea lines of communication, to establish and maintain
local superiority (including air) in an area of naval operations, to
seize and defend advanced naval bases, and to conduct such land, air,
and space operations as may be essential to the prosecution of a naval
campaign.
(B) To maintain the Marine Corps which will be organized, trained,
and equipped to provide Fleet Marine Forces of combined arms, together
with supporting air components, for service with the fleet in the
seizure or defense of advanced naval bases and for the conduct of such
land operations as may be essential to the prosecution of a naval
campaign. In addition, the Marine Corps will provide detachments and
organizations for service on armed vessels of the Navy, provide security
detachments for the protection of naval property at naval stations and
bases, and perform such other duties as the President or the Secretary
of Defense may direct. However, these additional duties must not
detract from or interfere with, the operations for which the Marine
Corps is primarily organized. These functions do not contemplate the
creation of a second land army.
(C) Further, the Marine Corps will:
(1) Develop, in coordination with the other Military Services, the
doctrines, tactics, techniques, and equipment employed by landing forces
in amphibious operations. The Marine Corps will have primary
responsibility for the development of those landing force doctrines,
tactics, techniques, and equipment which are of common interest to the
Army and the Marine Corps.
(2) Train and equip as required, forces for airborne operations, in
coordination with the other Military Services, and in accordance with
joint doctrines.
(3) Develop, in coordination with the other Military Services,
doctrines, procedures, and equipment of interest to the Marine Corps for
airborne operations and not provided for by the Army, which has primary
responsibility for the development of airborne doctrines, procedures,
and techniques, which are of common interest to the Army and Marine
Corps.
(D) To organize and equip, in coordination with the other Military
Services, and to provide naval forces, including naval close air support
and space forces, for the conduct of joint amphibious operations, and to
be responsible for the amphibious training of all forces assigned to
joint amphibious operations in accordance with joint doctrines.
(E) To develop, in coordination with the other Services, the
doctrines, procedures, and equipment of naval forces for amphibious
operations and the doctrines and procedures for joint amphibious
operations.
(F) To organize, train, equip, and provide forces for strategic
nuclear warfare to support strategic deterrence.
(G) To furnish adequate, timely, reliable intelligence for the Coast
Guard.
(H) To organize, train, equip, and provide forces for reconnaissance,
antisubmarine warfare, protection of shipping, aerial refueling and
minelaying, including the air and space aspects thereof, and controlled
minefield operations.
(I) To provide the afloat forces for strategic sealift.
(J) To provide air support essential for naval operations.
(K) To organize, train, equip, and provide forces for appropriate air
and missile defense and space Control operations, including the
provision of forces as required for the strategic defense of the United
States, in accordance with joint doctrines.
(L) To provide equipment, forces, procedures, and doctrine necessary
for the effective prosecution of electronic warfare operations and, as
directed, support of other forces.
(M) To furnish aerial photography, as necessary, for Navy and Marine
Corps operations.
(N) To develop, in coordination with the other Services, doctrines,
procedures, and equipment employed by Navy and Marine Corps forces in
the conduct of space operations.
(O) To provide sea-based launch and space support for the Department
of Defense when directed.
(P) To organize, train, equip, and provide forces, as directed, to
operate sea lines of communication.
(Q) To organize, train, equip, and provide forces for the support and
conduct of special operations.
(R) To organize, train, equip, and provide Navy and Marine Corps
forces for the support and conduct of psychological operations.
(S) To coordinate with the Department of Transportation for the
peacetime maintenance of the Coast Guard. During war, the Coast Guard
will function as a Military Service. The specific wartime functions of
the Coast Guard are as follows:
(1) To provide an integrated port security and coastal defense force,
in coordination with the other Military Services, for the United States.
(2) To provide specialized Coast Guard units, including designated
ships and aircraft, for overseas deployment required by naval component
commanders.
(3) To organize and equip, in coordination with the other Military
Services, and provide forces for maritime search and rescue,
icebreaking, and servicing of maritime aids to navigation.
(iii) The collateral functions of the Navy and Marine Corps include
the following:
(A) To interdict enemy land power, air power, and communications
through operations at sea.
(B) To conduct close air and naval support for land operations.
(C) To furnish aerial imagery for cartographic purposes.
(D) To be prepared to participate in the overall air and space
effort, as directed.
(E) To establish military government, as directed, pending transfer
of this responsibility to other authority.
(iv) Navy and Marine Corps responsibilities in support of space
operations include:
(A) Organizing, training, equipping, and providing Navy and Marine
Corps forces to support space operations.
(B) Developing, in coordination with the other Military Services,
tactics, techniques, and equipment employed by Navy and Marine Corps
forces for use in space operations.
(C) Conducting individual and unit training of Navy and Marine Corps
space operations forces.
(D) Participating with the other Services in joint space operations,
training, and exercises, as mutually agreed to by the Services concerned
or as directed by competent authority.
(v) Other responsibilities of the Navy and Marine Corps include:
(A) Providing, when directed, logistic support of Coast Guard forces,
including procurement, distribution, supply, equipment, and maintenance.
(B) Providing air and land transport essential for naval operations
and not otherwise provided for.
(C) Providing and operating sea transport for the Armed Forces other
than that which is organic to the individual Services.
(D) Developing, in coordination with the other Services, doctrine and
procedures for close air support for naval forces and for joint forces
in amphibious operations.
(3) Functions of the Department of the Air Force. (i) The Air Force,
within the Department of the Air Force, includes aviation forces, both
combat and service, not otherwise assigned. The Air Force is
responsible for the preparation of the air forces necessary for the
effective prosecution of war and military operations short of war,
except as otherwise assigned and, in accordance with integrated joint
mobilization plans, for the expansion of the peacetime components of the
Air Force to meet the needs of war.
(ii) The primary functions of the Air Force include:
(A) To organize, train, equip, and provide forces for the conduct of
prompt and sustained combat operations in the air -- specifically,
forces to defend the United States against air attack in accordance with
doctrines established by the Joint Chiefs of Staff, gain and maintain
general air supremacy, defeat enemy air forces, conduct space
operations, control vital air areas, and establish local air superiority
except as otherwise assigned herein.
(B) To organize, train, equip, and provide forces for appropriate air
and missile defense and space control operations, including the
provision of forces as required for the strategic defense of the United
States, in accordance with joint doctrines.
(C) To organize, train, equip, and provide forces for strategic air
and missile warfare.
(D) To organize, equip, and provide forces for joint amphibious,
space, and airborne operations, in coordination with the other Military
Services, and to provide for their training in accordance with joint
doctrines.
(E) To organize, train, equip, and provide forces for close air
support and air logistic support to the Army and other forces, as
directed, including airlift, air support, resupply of airborne
operations, aerial photography, tactical air reconnaissance, and air
interdiction of enemy land forces and communications.
(F) To organize, train, equip and provide forces for air transport
for the Armed Forces, except as otherwise assigned.
(G) To develop, in coordination with the other Services, doctrines,
procedures, and equipment for air defense from land areas, including the
United States.
(H) To organize, train, equip, and provide forces to furnish aerial
imagery for use by the Army and other agencies as directed, including
aerial imagery for cartographic purposes.
(I) To develop, in coordination with the other Services, tactics,
techniques, and equipment of interest to the Air Force for amphibious
operations and not provided for elsewhere.
(J) To develop, in coordination with the other Services, doctrines,
procedures, and equipment employed by Air Force forces in airborne
operations.
(K) To provide launch and space support for the Department of
Defense, except as otherwise assigned.
(L) To develop, in coordination with the other Services, doctrines,
procedures, and equipment employed by Air Force forces in the conduct of
space operations.
(M) To organize, train, equip, and provide land-based tanker forces
for the in-flight refueling support of strategic operations and
deployments of aircraft of the Armed Forces and Air Force tactical
operations, except as otherwise assigned.
(N) To organize, train, equip, and provide forces, as directed to
operate air lines of communications.
(O) To organize, train, equip, and provide forces for the support and
conduct of special operations.
(P) To organize, train, equip, and provide forces for the support and
conduct of psychological operations.
(Q) To provide equipment, forces, procedures, and doctrine necessary
for the effective prosecution of electronic warfare operations and, as
directed, support of other forces.
(iii) Collateral functions of the Air Force include the following:
(A) Surface sea surveillance and antisurface ship warfare through air
operations.
(B) Antisubmarine warfare and antiair warfare operations to protect
sea lines of communications.
(C) Aerial minelaying operations.
(D) Air-to-air refueling in support of naval campaigns.
(iv) Air Force responsibilities in support of space operations
include:
(A) Organizing, training, equipping, and providing forces to support
space operations.
(B) Developing, in coordination with the other Military Services,
tactics, techniques, and equipment employed by Air Force forces for use
in space operations.
(C) Conducting individual and unit training of Air Force space
operations forces.
(D) Participating with the other Services in joint space operations,
training, and exercises as mutually agreed to by the Services concerned,
or as directed by competent authority.
(v) Other responsibilities of the Air Force include:
(A) With respect to amphibious operations, the Air Force will
develop, in coordination with the other Services, tactics, techniques,
and equipment of interest to the Air Force and not provided for by the
Navy and Marine Corps.
(B) With respect to airborne operations, the Air Force has specific
responsibility to:
(1) Provide Air Force forces for the air movement of troops,
supplies, and equipment in joint airborne operations, including
parachute and aircraft landings.
(2) Develop tactics and techniques employed by Air Force forces in
the air movement of troops, supplies, and equipment.
(C) With respect to close air support of ground forces, the Air Force
has specific responsibility for developing, in coordination with the
other Services, doctrines and procedures, except as provided for in Navy
responsibilities for amphibious operations and in responsibilities for
the Marine Corps.
32 CFR 368.7 Functions of DoD Agencies.
(a) Defense Advanced Research Projects Agency (DARPA). See 32 CFR
part 358.
(b) Defense Communications Agency (DCA). See 32 CFR part 362.
(c) Defense Contract Audit Agency (DCAA). See 32 CFR part 357.
(d) Defense Intelligence Agency (DIA). See 32 CFR part 354.
(e) Defense Investigative Service (DIS). See 32 CFR part 361.
(f) Defense Legal Services Agency (DLSA). See DoD Directive 5145.4,
/1/ August 12, 1981.
(g) Defense Logistics Agency (DLA). See 32 CFR part 359.
(h) Defense Mapping Agency (DMA). See 32 CFR part 360.
(i) Defense Nuclear Agency (DNA). See DoD Directive 5105.31, /1/
March 18, 1987.
(j) Defense Security Assistance Agency (DSAA). See 32 CFR part 363.
(k) The National Security Agency and the Central Security Service
(NSA/CSS). See DoD Directive S-5100.20, December 23, 1971.
(l) Strategic Defense Initiative Organization (SDIO). See DoD
Directive 5141.5, /1/ February 21, 1986.
/1/ Copies may be obtained, if needed, from the U.S. Naval
Publication and Forms Center, 5801 Tabor Avenue, ATTN: Code 301,
Philadelphia, PA 19120.
32 CFR 368.7 PART 369 -- DELEGATION OF AUTHORITY TO DEPUTY SECRETARY OF
DEFENSE
Authority: 10 U.S.C. 133.
32 CFR 369.1 Purpose.
(a) This document revises 32 CFR part 369.
(b) In accordance with the authorities contained in 10 U.S.C. 113, I
hereby delegate to Deputy Secretary of Defense Donald J. Atwood, Jr.,
full power and authority to act for the Secretary of Defense and to
exercise the powers of the Secretary of Defense upon any and all matters
concerning which the Secretary of Defense is authorized to act pursuant
to law.
(c) The all-inclusive authority delegated herein may not be
redelegated in toto; however, the Deputy Secretary is authorized to
make specific redelegations, as required.
(54 FR 19372, May 5, 1989)
32 CFR 369.1 PART 370 -- DoD HEALTH COUNCIL
Sec.
370.1 Reissuance and purpose.
370.2 Applicability.
370.3 Organization and management.
370.4 Policy.
370.5 Responsibilities.
370.6 Charter, Dental Chiefs Council (DCC).
370.7 Charter, Medical Mobilization and Deployment Steering
Committee.
Authority: 10 U.S.C. 133.
Source: 47 FR 34983, Aug. 12, 1982, unless otherwise noted.
32 CFR 370.1 Reissuance and purpose.
This part is reissued to update the DoD Health Council (DHC) charter,
and to authorize the establishment of the DoD Dental Chiefs Council
(DCC) and the Medical Mobilization and Deployment Steering Committee
(MMDSC) as subordinate elements. The DCC and MMDSC charters are 370.6
and 370.7.
32 CFR 370.2 Applicability.
The provisions of this part apply to the Office of the Secretary of
Defense, the Military Departments, and the Organization of the Joint
Chiefs of Staff (OJCS). The term, ''Military Service,'' refers to the
Army, Navy, Air Force, and Marine Corps.
32 CFR 370.3 Organization and management.
(a) The DHC is composed of the Assistant Secretary of Defense (Health
Affairs) (ASD(HA)), who serves as the chair, the Surgeons General from
each of the Military Departments, and one representative from the OJCS
and from the Uniformed Services University of the Health Sciences.
(b) The Council meets regularly at the call of the chair.
(c) The Council is supported by an Executive Director who is selected
by the ASD(HA). To assist the Executive Director, each member of the
DHC, other than the ASD(HA), designates an officer or civilian employee
within its organization on a part-time basis to prepare issue items.
(d) The Executive Director of the DHC, subject to the direction of
the chair:
(1) Plans, organizes, and manages the administrative activities of
the DHC.
(2) Coordinates the development of reports and issues for
consideration by the DHC.
(3) Develops and coordinates plans and programs that are required to
accomplish the DHC's responsibilities.
(4) Performs other directed duties.
32 CFR 370.4 Policy.
The DHC complements the statutory responsibilities of the ASD(HA), in
accordance with 32 CFR part 367, by advising him on DoD health matters;
provides a forum for consultation, discussion, and advice on DoD health
plans, policies, and related issues; and facilitates coordination among
the organizations represented by the DHC members.
32 CFR 370.5 Responsibilities.
(a) In carrying out the provisions of this charter part, the Chair,
DHC, shall:
(1) Advise the ASD(HA) on policy changes required to improve wartime
readiness and the delivery of health care.
(2) Advise the ASD(HA) on coordination with other Federal agencies to
enhance health care delivery.
(3) Develop and maintain health objectives with appropriate tasks and
priorities approved by the ASD(HA) that:
(i) Increase the wartime medical readiness of the Military
Departments.
(ii) Increase the productivity, efficiency, and economy of the Armed
Forces health care system without unnecessary duplication of resources.
(iii) Enhance recruitment, retention, training, and use of health
care professionals within the Armed Forces health care system to meet
Military Service requirements.
(iv) Improve the effectiveness of the direct and indirect health care
delivery system to meet the demands of the eligible beneficiary
population.
(b) The Assistant Secretary of Defense (Health Affairs) shall report
to the Secretary of Defense on any issue of importance that comes before
the DHC and that warrants the Secretary's consideration.
32 CFR 370.6 Charter, Dental Chiefs Council (DCC).
(a) Purpose. The DCC is hereby established to serve the DoD Health
Council (DHC) on all matters pertaining to dental health. The DCC shall
provide a forum for consultation, discussion, and advice on DoD dental
health plans, policies, and related issues, and shall facilitate
coordination among the Dental Corps of the Military Departments.
(b) Organization and management. (1) The DCC shall be composed of
the three Dental Corps chiefs who represent the Army, Navy, and Air
Force. Each year, on a rotating basis, one of these chiefs will serve
as chair of the DCC. The DCC shall meet on a scheduled basis and at the
call of the chair. The chair or another designated member will be
available to attend meetings of the DHC at which dental matters are
considered.
(2) The DCC shall be supported by an executive secretary. The
Special Assistant for Dental Affairs, Office of the ASD(HA), shall serve
in this capacity. The Dental Corps chiefs shall designate an officer or
civilian employee within their Military Departments to assist the
executive secretary on a part-time basis in the preparation of issue and
agenda items.
(3) Matters referred to the DHC will be coordinated through the DHC
executive director.
(c) Responsibilities. (1) In carrying out the purposes and
provisions of this charter, the Dental Chiefs Council shall:
(i) Advise the DHC through each Military Department's Surgeon General
when policy changes are required to improve wartime readiness and the
delivery of dental health care.
(ii) Coordinate with other Federal dental health agencies to enhance
dental health care delivery.
(iii) Develop and maintain dental health objectives that will:
(A) Increase the wartime dental readiness of the Military
Departments;
(B) Increase dental care productivity, efficiency, and economy within
the Armed Forces health care system without unnecessary duplication of
resources.
(C) Enhance recruitment, retention, training, and use of dental
health care professionals within the Armed Forces health care system to
meet military requirements.
(D) Improve the effectiveness of the direct and indirect dental
health care delivery system to meet the demands of the eligible
beneficiary population.
(2) The Executive Secretary of the DCC shall, subject to the
direction of the chair:
(i) Plan, organize, and manage the activities of the DCC.
(ii) Coordinate the development of reports and issues for
consideration by the DCC.
(iii) Develop and coordinate the plans and programs to accomplish the
responsibilities of the DCC.
(iv) Perform such other duties as may be directed by the chair.
32 CFR 370.7 Charter, Medical Mobilization and Deployment Steering
Committee.
(a) Purpose. The MMDSC is hereby established, replacing the Medical
Mobilization and Deployment Steering Group that was established under
ASD(HA) Memorandum, ''Medical Mobilization and Deployment Steering
Group,'' May 8, 1981 (hereby canceled). The MMDSC acts as the agent of
the Defense Health Council (DHC) in identifying and recommending
solutions to problems in medical readiness, mobilization, and
deployment; and by reporting to the DHC on those issues.
(b) Organization and Management. (1) The MMDSC comprises the Deputy
Assistant Secretary of Defense (Medical Readiness) (DASD(MR)), Office of
the ASD(HA), who serves as the chair; a flag or general officer from
each of the Military Services; and one representative each from the
OJCS, the Defense Logistics Agency, and the Office of the ASD (MRA&L).
(2) The MMDSC meets regularly at the call of the chair.
(3) The MMDSC is supported by the staff of the DASD(MR). Each member
of the MMDSC provides additional support from his or her organization,
as required.
(4) The DASD(MR) directs the preparation of the agenda and minutes of
the MMDSC. Any member of the MMDSC may recommend agenda items.
(c) Responsibilities -- (1) The Medical Mobilization and Deployment
Steering Committee shall:
(i) Develop objectives for inter-Service management of wartime
medical logistics and material, and review and coordinate that
management.
(ii) Develop objectives for cross-Service utilization of medical
personnel, and review and coordinate their attainment.
(iii) Review and coordinate peacetime training in wartime medical
skills to ensure an adequate level of medical readiness.
(iv) Recommend to the DHC any policy changes needed to achieve the
goal of medical readiness.
(v) Convene in time of crisis to coordinate tri-Service medical
mobilization or other appropriate responses, including:
(A) The allocation of returning overseas casualties among military
and civilian components of the civilian/military contingency hospital
system; and
(B) The provision of medical care to military dependents, retirees
and their dependents, and survivors of military members, both within the
military health care system and through the Civilian Health and Medical
Program of the Uniformed Services (CHAMPUS).
(2) The Chair of the MMDSC shall report to the DHC on any issue
requiring its attention or resolution by higher authority.
32 CFR 370.7 PART 371 -- ORGANIZATION OF THE JOINT CHIEFS OF STAFF AND
RELATIONSHIPS WITH THE OFFICE OF THE SECRETARY OF DEFENSE
Sec.
371.1 Purpose.
371.2 Responsibilities and procedures.
32 CFR 371.1 Purpose.
(a) The Department of Defense Reorganization Act of 1958 and the
President's Message to the Congress of April 3, 1958, set forth general
policies, procedures, and organizational relationships required for the
effective direction of the defense establishment.
(b) The President's Message singles out the accomplishment of the
following objective as one of the paramount duties of the Secretary of
Defense, acting with the advice and assistance of the Joint Chiefs of
Staff and under the supervision of the Commander in Chief: ''Strategic
and tactical planning must be completely unified, combat forces
organized into unified commands, each equipped with the most efficient
weapons systems that science can develop, singly led and prepared to
fight as one, regardless of Service.''
(c) The purpose of this part is to implement the Department of
Defense Reorganization Act of 1958 and the President's Message of April
3, 1958, with respect to the Organization of the Joint Chiefs of Staff
and its relationship with the major offices in the Office of the
Secretary of Defense, such as the Under Secretaries of Defense, the
Assistant Secretaries of Defense, the General Counsel of the Department
of Defense, the Assistants to the Secretary of Defense, and the heads of
other offices established by the Secretary of Defense.
(d) The functions of the Department of Defense and its major
components have been set forth in DoD Directive 5100.1, ''Functions of
the Department of Defense and its Major Components,'' January 26, 1980.
(10 U.S.C. 133)
(45 FR 34881, May 23, 1980)
32 CFR 371.2 Responsibilities and procedures.
(a) The duties of the Chiefs of the Military Services as members of
the Joint Chiefs of Staff shall take precedence over all of their other
duties. To ensure that the Chief of the Military Services have adequate
time to devote to their duties as members of the Joint Chiefs of Staff,
they shall delegate appropriate duties to their Vice Chiefs.
(b) The Joint Chiefs of Staff shall, in discharging their
responsibilities, avail themselves of the most competent and considered
thinking that represents every pertinent point of view, such as
scientific, industrial, economic, as well as military.
(c) To ensure that planning and operations are of the highest order:
(1) All elements of the Organization of the Joint Chiefs of Staff
shall cooperate fully and effectively with appropriate offices of the
Office of Secretary of Defense. In all stages of important staff
studies, the Organization of the Joint Chiefs of Staff shall avail
itself of the views and special skills in the Office of the Secretary of
Defense. As a normal procedure, specialized data necessary for the
preparation of such studies shall be obtained from or through the
appropriate offices of the Office of the Secretary of Defense.
(2) The Directors of the various Directorates of the Joint Staff
shall maintain active liaison with appropriate offices of the Office of
the Secretary of Defense. This shall include, but not be limited to, an
exchange of information, interchange of technical advice, and guidance
for mutual benefit. The heads of offices in the Office of the Secretary
of Defense shall maintain similar liaison and make representatives
available to meet formally or informally with appropriate members of the
Organization of the Joint Chiefs of Staff.
(d) Directives and orders to the Joint Chiefs of Staff shall be
issued by the Secretary or the Deputy Secretary of Defense. Requests to
the Joint Chiefs of Staff or to the Chairman of the Joint Chiefs of
Staff involving action by the Joint Chiefs of Staff may be issued by
responsible officials of the Office of the Secretary of Defense, in
accordance with authority specifically delegated by the Secretary of
Defense.
(e) Development of strategic and logistic plans shall be based on the
broadest concepts of overall national interests. Personnel of the
Organization of the Joint Chiefs of Staff shall be selected for their
competency and their ability to support such interests.
(f) The Chairman of the Joint Chiefs of Staff shall have the
authority and responsibility to:
(1) Serve as a member of and preside over the Joint Chiefs of Staff.
(2) Provide the agenda for meetings of the Joint Chiefs of Staff and
assist them in prosecuting their business as promptly as is practicable.
(3) Furnish the Secretary of Defense with periodic progress reports
on important items of current interest that are being considered by the
Joint Chiefs of Staff.
(4) Keep the Secretary of Defense informed on issues upon which
agreement among the Joint Chiefs of Staff has not been reached, and
forward to the Secretary of Defense the recommendations, advice, and
views of the Joint Chiefs of Staff, including any divergencies.
(5) Arrange for the provision of military advice to all offices of
the Office of the Secretary of Defense.
(6) Make arrangements to relieve the Joint Chiefs of Staff of matters
of lesser importance.
(7) Organize the Joint Staff and the subordinate structure of the
Organization of the Joint Chiefs of Staff to ensure that they are
designed to accomplish efficiently the tasks to be assigned.
(8) Manage the Joint Staff and its Director on behalf of the Joint
Chiefs of Staff by conducting, guiding, administering the work of the
elements affected, and ensuring that the work is performed in a manner
that permits the Secretary of Defense and the Joint Chiefs of Staff to
discharge their total responsibilities. The Joint Staff shall perform
such duties as the Joint Chiefs of Staff or the Chairman of the Joint
Chiefs of Staff prescribes.
(9) Keep the Joint Chiefs of Staff informed, as appropriate, about
any matter that is referred by the Chairman to the Secretary of Defense
with a recommendation that the matter be assigned to a Military
Department for consideration or action.
(10) Appoint consultants to the Joint Chiefs of Staff from outside
the Department of Defense, subject to the approval of the Secretary of
Defense and with the advice of the Joint Chiefs of Staff.
(g) The selection of the Director, Joint Staff, and of the members of
the Organization of the Joint Chiefs of Staff shall be as follows:
(1) The Director, Joint Staff, shall be selected and his tenure fixed
by the Chairman of the Joint Chiefs of Staff, in consultation with the
Joint Chiefs of Staff and with the approval of the Secretary of Defense.
The normal tenure of the Director shall be 2 years. Any extension of
this tenure may not exceed 1 year, except in time of war.
(2) The members of the Organization of the Joint Chiefs of Staff
shall be selected by the Joint Chiefs of Staff with the approval of the
Chairman of the Joint Chiefs of Staff.
(h) The duties and manner of operation of the Operations Deputies
shall be prescribed by the Joint Chiefs of Staff.
(i) In order to carry out the objectives of paragraph (c) of this
section, the Director, Joint Staff, and appropriate heads of offices in
the Office of the Secretary of Defense have the specific duty and
authority of ensuring that there is full cooperation between their
respective agencies.
(10 U.S.C. 133)
(45 FR 34881, May 23, 1980)
32 CFR 371.2 PART 372 -- AMERICAN FORCES INFORMATION SERVICE
Sec.
372.1 Purpose.
372.2 Applicability.
372.3 Definitions.
372.4 Mission.
372.5 Organization and management.
372.6 Responsibilities and functions.
372.7 Relationships.
372.8 Authorities.
372.9 Administration.
Appendix A -- Delegations of Authority
Authority: 10 U.S.C. 131.
Source: 54 FR 13376, Apr. 3, 1989, unless otherwise noted.
32 CFR 372.1 Purpose.
Under the authority vested in the Secretary of Defense by Title 10,
United States Code, this part revises 32 CFR part 372 to update the
mission, functions, authorities, and relationships of the American
Forces Information Service (AFIS) and is the authority for the existence
of the Department of Defense Internal Information Program. This part
also reestablishes the American Forces Information Council (AFIC) and
adds the mission of operating and managing the Current News Analysis and
Research Service (CNARS).
32 CFR 372.2 Applicability.
This part applies to the Office of the Secretary of Defense (OSD),
the Military Departments, the Joint Chiefs of Staff and the Joint Staff,
the Unified and Specified Commands, the Defense Agencies, and the
Department of Defense Field Activities (hereafter referred to
collectively as ''DoD Components'').
32 CFR 372.3 Definitions.
Acquisition. The process through which equipment, programs,
materials, products, and services are obtained from public and
commercial sources.
AFRTS Activity. Any activity in support of AFRTS broadcast
operations; i.e., centralized management elements, regional production
centers, program duplicating facilities, etc. ''Support'' can be in
many forms -- administrative, logistical, equipment maintenance, etc.
AFRTS Broadcast Center. A field activity of the AFIS located in Los
Angeles, CA, that provides information and entertainment programming to
AFRTS outlets.
AFRTS Mini-TV. A self-contained videotape playback system used in
remote or isolated areas not accessible to an AFRTS television signal.
AFRTS Network. Two or more AFRTS stations, authorized by the
Director, AFIS, to disseminate programming through interconnecting
broadcast-quality transmission circuits.
AFRTS Outlet. Any facility authorized by the Director, AFIS, in
accordance with policy to disseminate radio or television programming.
An outlet includes AFRTS radio and television stations and networks,
relay sites, translators, Navy and Military Sealift Command ships using
AFRTS program materials, mini-TV sites, and any other AFRTS broadcast
facility.
AFRTS Regional Production Center. Regional production centers (RPCs)
are radio and television spot production facilities located in the two
major overseas theaters (Pacific and Europe) and managed by the Air
Force Broadcasting Service (AFBS). RPCs produce internal information
spot announcements appropriate to their respective theaters to
supplement the DoD (AFIS) worldwide spot production effort. Subjects,
concept treatments, and scripts are coordinated through the appropriate
Unified Command and approved by AFIS before final production and
release.
Armed Forces Radio and Television Service (AFRTS). A worldwide
broadcast organization that comprises an AFRTS headquarters element
within AFIS, the AFRTS centralized management elements within the
Military Departments, AFRTS outlets and activities around the world, and
the AFRTS Broadcast Center in Los Angeles, CA.
Audiovisual (AV). A subset of VI relating to produced motion media
with sound.
Broadcast Equipment. Items of a durable nature used for recording,
producing, mixing, reproducing, and broadcasting, and all items commonly
used in the broadcasting and television industry for the recording,
processing, distribution, reproduction, and transmission of radio and TV
signals.
Internal Information. All information that is intended to keep DoD
military and civilian personnel and their family members well-informed
on matters concerning national defense, readiness, military benefits,
American and military heritage, and issues affecting their own morale
and well-being. This includes information disseminated through
periodicals and other publications, radio, television, motion pictures,
videotape, and related media.
Joint Visual Information Service (JVIS). A VI service operated and
maintained by a DoD Component to support more than one DoD Component.
Military Department Broadcasting Service. Centralized management
staff elements within the Departments of the Army, Navy, and Air Force,
that are responsible for the day-to-day management and operational
control of all AFRTS outlets and activities that have been assigned to
the executive agency of their Department.
Print Media. Printed publications issued in support of the internal
information program of the Department of Defense. This includes, but is
not limited to, newspapers, periodicals. pamphlets, booklets, posters,
magazines, newsletters, news summaries, and news bulletins.
Visual Information (VI). Use of one or more of the various visual
media with or without intrinsic sound. VI includes still photography,
motion picture photography, video recording (with or without sound),
graphic arts, visual aids, models, displays, visual presentation
services, and the support processes.
32 CFR 372.4 Mission.
(a) The AFIS shall:
(1) Advise and act for the Assistant Secretary of Defense (Public
Affairs) (ASD(PA)) in the:
(i) Management of DoD internal information programs.
(ii) Development of policies, guidelines, and standards for the
management of DoD visual information (VI) activities and programs.
(iii) Development of policies, guidelines, and standards for the
management of Armed Forces Radio and Television Service (AFRTS) outlets
and activities.
(iv) Operation and management of the CNARS.
(2) Provide joint-interest print, radio, film, and television
materials for use in the internal information programs of the Military
Departments and other DoD Components.
(b) The AFIC shall provide a forum for the exchange of information
and advice on DoD internal information matters.
32 CFR 372.5 Organization and management.
(a) The AFIS is established as a DoD Field Activity under the
direction, authority, and control of the ASD(PA). It shall consist of a
Director and such subordinate organizational elements as are established
by the Director to accomplish the AFIS mission within resources assigned
by the Secretary of Defense.
(b) The AFIC is established as a policy committee reporting to the
ASD(PA). It shall consist of the following:
(1) Director, AFIS, who shall serve as Chairman.
(2) The Chief of Public Affairs of each of the Military Departments.
(3) A representative of the Chairman, Joint Chiefs of Staff (CJCS).
(4) An Executive Secretary, who shall be designated by the Director,
AFIS.
32 CFR 372.6 Responsibilities and functions.
(a) The Director, American Forces Information Service (AFIS), shall:
(1) Organize, direct, and manage the AFIS and all assigned resources.
(2) Serve as Director of AFRTS.
(3) For print media internal information programs:
(i) Develop and oversee the implementation of policies and procedures
pertaining to the management, content, and publications of periodicals,
pamphlets, armed forces newspapers, and civilian enterprise
publications, including the provisions 32 CFR parts 248 and 297.
(ii) Serve as DoD point of contact (POC) in the United States for
Unified Command newspaper editorial and business policy, business
guidance and assistance, and other matters.
(iii) Serve as DoD POC with the Congressional Joint Committee on
Printing and other congressional entities for matters pertaining to DoD
periodicals, armed forces newspapers, and civilian enterprise
publications.
(iv) Develop, publish, or procure appropriate internal information
materials of a DoD-wide, joint-interest nature.
(v) Operate and manage the functions of CNARS.
(4) For AFRTS radio and television internal information programs:
(i) Designate geographic areas of responsibility for the operation of
Military Department AFRTS outlets and activities, and exercise program
management control of AFRTS.
(ii) Develop and oversee the implementation of policies and
procedures pertaining to the management and operation of radio and
television outlets and activities, including the provisions of 32 CFR
part 372a.
(iii) Exercise fiscal and manpower resource control through the
Planning, Programming, and Budgeting System (PPBS). Provide guidance
on, review, and approve or revise proposed resource programs; formulate
budget estimates; recommend resource allocations; and monitor the
implementation of approved programs.
(iv) In conjunction with the CJCS, coordinate contingency and wartime
requirements with the Commanders in Chief (CINCs).
(v) Administer centralized management information and resource
management systems, in accordance with DoD Directive 7750.5 /1/ and DoD
Directive 5000.11. /2/
(vi) Establish guidelines for and authorize the establishment of new
stations, disestablishment of existing stations, and configuration of
broadcast networks.
(vii) Develop and maintain a program for the standardization of
broadcast equipment. Establish broadcast equipment technical
specifications and performance standards, and certify equipment for use.
(viii) Establish manning standards for outlets and overhead staffs,
and qualification standards for broadcast and technical support
personnel. Review and concur or nonconcur in the selection of network
commanders.
(ix) Negotiate for, acquire, and provide commercial program
materials, including a free flow of general and military news, sports,
and current events programs. Under normal circumstances, this function
shall be carried out by the Commander, AFRTS Broadcast Center, Los
Angeles, CA, under the authority, direction, and control of the
Director, AFIS.
(x) Develop, produce, and procure spot announcements and public
service announcements (PSAs) in support of the DoD internal information
program.
(5) For VI activities and programs:
(i) Develop, promulgate, and monitor the implementation of policies,
procedures, and programs, and establish management responsibilities for
DoD VI activities and resources consistent with DoD Directive 5040.2.
/3/
(ii) Operate the Federal Audiovisual Contract Management Office
(FACMO) as Executive Agent for the Office of Federal Procurement Policy
(OFPP), Office of Management and Budget (OMB).
(iii) Manage necessary information systems to support those
requirements.
(iv) Develop common VI formats and standardization guidelines.
(6) Exercise management oversight of the Joint Visual Information
Services (JVIS) consistent with DoD Directive 5040.3 in addition to the
responsibilities established in 372.6(a)(5) to:
(i) Review JVIS plans, programs, actions, and taskings to assure that
JVIS programs and systems accommodate operational requirements.
(ii) Serve as program review authority for JVIS-related Program
Objectives Memorandum (POM) and budget submissions.
(iii) Oversee contract quality control and assurance responsibility
for audiovisual (AV) productions obtained under the Federal AV contract
management system.
(7) Develop and provide DoD information training requirements,
policy, and guidance, and provide training and management oversight and
assistance on behalf of the ASD(PA) for the Defense Information School
(DINFOS) established under DoD Directive 5160.48. /4/
(8) Provide assistance to other joint-service VI training programs.
(9) Perform other related internal information functions that the
ASD(PA) may assign.
(b) The Assistant Secretary of Defense (Public Affairs) (ASD(PA))
shall:
(1) Develop broad policy guidelines and objectives for DoD internal
information programs.
(2) Provide policy and operational direction to the Director, AFIS.
(c) The Secretaries of the Military Departments shall:
(1) Conduct internal information activities pertaining to their
Department's programs, operations, and activities.
(2) Operate and maintain AFRTS outlets and activities in designated
geographic areas. Continue to sustain broadcast operations, and provide
maintenance and administrative support for these outlets and activities
during contingencies when their operational control has been temporarily
assumed by a Unified Commander in accordance with 372.6(e) (1) and (2).
(3) Centrally manage and control all AFRTS outlets and activities of
their Department.
(4) Centrally manage and control all VI activities of their
Department.
(5) Operate VI activities in support of assigned missions.
(d) The Secretary of the Air Force shall provide printing and
distribution support to CNARS through an inter-service support agreement
(ISSA) with AFIS.
(e) The Commanders of the Unified Commands (CINCs) shall:
(1) Develop plans for and assume operational control of assigned
AFRTS facilities within their respective geographic areas of
responsibility during periods of military contingency, as required to
ensure a coordinated internal information effort.
(2) Ensure that requirements for the provision of AFRTS service are
considered and integrated into all military contingency and deliberate
wartime planning guidance within their respective geographic areas of
responsibility.
(3) Expeditiously notify the Secretaries of the Military Departments,
the CJCS, and the ASD(PA) of military contingency occurrences requiring
the implementation of plans for assuming operational control of AFRTS
outlets, and again upon the termination of the contingency situation.
Return control of AFRTS outlets to the Military Departments immediately
upon termination of the contingency situation.
(4) Provide advice with respect to host-country sensitivities
concerning the nature and content of radio and television programs.
(5) Conduct internal information activities on joint matters within
assigned areas of operation.
(f) The Members of the American Forces Information Council shall meet
periodically to:
(1) Consider questions of policy and advise the ASD(PA) about
internal information programs.
(2) Exchange information among the membership.
/1/ Copies may be obtained, if needed, from the U.S. Naval
Publications and Forms Center, Attn: Code 1053, 5801 Tabor Avenue,
Philadelphia, PA 19120.
/2/ See footnote 1 to 372.6(a)(4)(v).
/3/ See footnote 1 to 372.6(a)(4)(v).
/4/ See footnote 1 to 372.6(a)(4)(v).
32 CFR 372.7 Relationships.
(a) In the performance of assigned functions, the Director, AFIS,
shall:
(1) Coordinate actions with other DoD Components having collateral or
related functions in the field of assigned responsibilities.
(2) Maintain appropriate liaison with DoD Components and other
governmental and non-Government Agencies for the exchange of information
and advice on programs in the field of assigned responsibilities.
(3) Make use of established facilities and services in the Department
of Defense and other Government Agencies to avoid duplication and
achieve maximum efficiency and economy.
(b) Heads of DoD Components shall coordinate with the Director, AFIS,
on all matters related to the mission, responsibilities, and functions
of AFIS.
32 CFR 372.8 Authorities.
The Director, AFIS, is authorized to:
(a) Obtain from DoD Components, consistent with the policies and
criteria of DoD Directive 7750.5, information, advice, and assistance
necessary to carry out AFIS programs and activities.
(b) Communicate directly with the Military Departments and other DoD
Components on matters related to AFIS responsibilities, programs, and
activities.
(c) Communicate with other Government Agencies, representatives of
the legislative branch, and members of the public, as appropriate, in
carrying out the functions assigned under this part.
(d) Communicate with representatives of foreign governments and
commercial broadcast agencies regarding broadcast frequencies and the
rights to broadcast for AFRTS outlets and activities.
(e) Exercise the administrative authorities contained in Appendix A
of this part.
32 CFR 372.9 Administration.
(a) The Director, AFIS, shall be selected by the ASD(PA).
(b) The AFIS shall be authorized such personnel, facilities, funds,
and other administrative support as the Secretary of Defense considers
necessary.
(c) The Military Departments shall assign military personnel to AFIS
in accordance with approved authorizations and established procedures
for assignment to joint duty.
(d) Administrative support for AFIS shall be provided by DoD
Components through inter-service support agreements in accordance with
DoD Directive 4000.19. /5/
/5/ See footnote 1 to 372.6(a)(4)(v).
32 CFR 372.9 Appendix A -- Delegations of Authority
32 CFR 372.9 Pt. 372, App. A
Pursuant to the authority vested in the Secretary of Defense, and
subject to the direction, authority, and control of the Secretary of
Defense, and in accordance with DoD policies, Directives, and
Instructions, the Director, AFIS, or, in the absence of the Director,
the person acting for the Director, is hereby delegated authority, as
required in the administration and operation of AFIS, to:
1. Perform the following functions in accordance with 5 U.S.C. 7532;
Executive Orders 10450, 12333, and 12356; and DoD Directive 5200.2,
''DoD Personnel Security Program,'' December 20, 1979:
a. Designate the security sensitivity of positions within AFIS.
b. Authorize, in case of an emergency, the appointment of a person to
a sensitive position in AFIS for a limited period for whom a full field
investigation or other appropriate investigation, including the National
Agency Check, has not been completed.
c. Authorize the suspension, but not terminate the services, of an
employee in the interest of national security in positions within AFIS.
2. Authorize and approve overtime work for AFIS civilian employees,
in accordance with 5 U.S.C. Chapter 55, Subchapter V, and applicable
Office of Personnel Management regulations.
3. Develop, establish, and maintain an active and continuing records
management program, pursuant to 44 U.S.C. 3102 and DoD Directive 5015.2,
''Records Management Program,'' September 17, 1980.
4. Authorize the publication of advertisements, notices, or proposals
in public periodicals, as required for the effective administration of
AFIS, consistent with 44 U.S.C. 3702.
5. Establish and maintain, for the functions assigned, an appropriate
publication system for the promulgation of common supply and service
regulations, instructions, reference documents, and changes thereto,
pursuant to the policies and procedures prescribed in DoD 5025.1-M,
''Department of Defense Directives System Procedures,'' April 1981.
6. Approve Joint Service Achievement Medals (JSAMs) for personnel
assigned under the direct organizational authority of the Director,
AFIS, as delegated by ASD(PA) under Chapter 3, subparagraph D.5.c.(2),
DoD 1348.33-M, ''Manual of Military Decorations and Awards,'' August
1985.
7. Authorize and approve normal duty hours for AFIS civilian
employees in accordance with the diverse mission requirements of AFIS
organizational activities.
32 CFR 372.9 PART 372a -- AMERICAN FORCES RADIO AND TELEVISION SERVICE
(AFRTS)
Sec.
372a.1 Purpose.
372a.2 Applicability.
372a.3 Policy.
372a.4 Responsibilities.
372a.5 Information requirements.
372a.6 Definitions.
Enclosure 1 -- AFRTS Management and Operations
Authority: 10 U.S.C. 133.
Source: 46 FR 5956, Jan. 21, 1981, unless otherwise noted.
32 CFR 372a.1 Purpose.
This rule:
(a) Reflects the AFRTS organization, states policy, and assigns
responsibilities for the AFRTS.
(b) Authorizes the development and publication of DoD 5120.20-R,
''Management and Operation of AFRTS,'' in compliance with DoD Directive
5025.1,1 ''DoD Directives System,'' October 16, 1980. Upon publication
of DoD 5120.20-R, enclosure 1 of this part will be canceled and any
subsequent reference to enclosure 1 will be deemed a reference to the
relevant provision of DoD 5120.20-R.
32 CFR 372a.2 Applicability.
The provisions of this part apply to the Office of the Secretary of
Defense and its field activities, the Military Departments, the
Organization of the Joint Chiefs of Staff and the Unified and Specified
Commands, and the Defense Agencies (referred to herein as ''DoD
Components''). As used in this part, the term ''Military Services''
refers to the Army, Navy, Air Force, and Marine Corps.
32 CFR 372a.3 Policy.
(a) The American Forces Radio and Television Service, an activity of
the American Forces Information Service (AFIS), under the direction of
the Assistant Secretary of Defense (Public Affairs) (ASD(PA)):
(1) Supports the internal information program of the Department of
Defense, as stipulated in 32 CFR part 372, by providing a broad range of
information and entertainment programing, through the radio and
television media, to overseas DoD personnel and their dependents. As
used in this Directive, the term ''overseas'' refers to geographic
locations outside of the contiguous United States including Navy ships
at sea, Alaska, and Hawaii.
(2) Provides U.S. military commanders, worldwide, with unique means
to communicate internal information directly to DoD personnel overseas.
(3) Assists in maintaining and enhancing the morale, readiness, and
well-being of DoD personnel.
(4) Does not seek to compete for audiences with any other broadcast
facility or organization. AFRTS broadcasts are directed toward DoD
audiences overseas. The fact that others may receive these broadcasts
is the result of electronic media characteristics.
(5) Does not endorse or imply DoD endorsement of any commercial
product or service.
(6) Is part of the internal information program of the Department of
Defense. Funds appropriated for AFRTS may not be used to support
external information programs.
(b) American Forces Radio and Television Service Outlets: (1)
Operate under the centralized management and control of the Military
Departments, in accordance with the policies and procedures developed by
the Director, AFIS, under the provisions of this part and 32 CFR part
372.
(2) Adhere to AFIS broadcast policy, which prohibits censorship,
propagandizing, or manipulation, and which mandates that overseas DoD
personnel and their dependents are entitled to the same type of
information and entertainment programing as their fellow citizens in the
United States.
(i) This policy is subject to the following considerations:
(A) Host country sensitivities. AFRTS outlets operate in foreign
countries with the approval of the host government which assigns
broadcast frequencies. Program topics considered sensitive to a host
country may be restricted from broadcast on an AFRTS outlet. Such
restrictions shall be based soley on official determination by the U.S.
Embassy or U.S. Country Team.
(B) Area restrictions. When legal owners of programs prohibit AFRTS
from broadcasting certain programs in specified geographic areas, these
restrictions must be honored.
(ii) The above considerations do not permit the calculated
withholding or editing of information and entertainment programing based
on personal taste or preference. Such practices constitute censorship
and are prohibited.
(3) Shall give maximum use to information and entertainment
programing provided by the AFRTS Programing Center located in Los
Angeles, California, and to Service-produced internal information
programing distributed by the Military Departments. AFRTS outlets may
produce local information, entertainment and religious programing to
meet internal information objectives.
(4) May not produce news editorials, commentary, or analysis; engage
in investigative reporting; or initiate political news coverage.
(5) Shall protect all programing and associated broadcast products
from unauthorized use. These materials remain in the custody of the
Department of Defense.
(6) May be advised by the Director, AFIS, to broadcast special
programing on certain occasions. Failure to comply with this
requirement must be justified to the ASD(PA).
(7) May not offer broadcasts in other than the English language,
except as stated in subsection C.2., enclosure 1.
(8) May be used to promote military training or off-duty education.
However, AFRTS facilities may not be used for training or educational
purposes except at designated remote sites and aboard Navy ships, and as
stated in paragraph C.2.b., enclosure 1. Further exceptions to this
policy shall be considered by the Director, AFIS, on a case-by-case
basis. In no instance shall the primary mission of AFRTS be
jeopardized.
(9) May not use films and program materials from the Army and Air
Force Exchange Service and the Navy Motion Picture Service.
(c) The American Forces Radio and Television Service Programing
Center, a field activity of the AFIS:
(1) Provides information and entertainment programing for the
exclusive use of AFRTS outlets.
(2) Is the only source authorized to negotiate for, procure, and
distribute commercial and public broadcasting programing, except as
stated in paragraph C.3.k., enclosure 1. Further exceptions to this
policy will be considered by the Director, AFIS, on a case-by-case
basis.
(3) Provides internal information programing and distributes radio
and television spot announcements provided by the AFIS, in support of
DoD internal information themes, goals, and objectives.
(4) Provides religious programing approved solely by the Armed Forces
Chaplains Board, Office of the Assistant Secretary of Defense (Manpower,
Reserve Affairs, and Logistics).
(5) Establishes procedures to alert AFRTS outlets of specific
entertainment programing containing discretionary subject matter
including that considered sensitive to a host country.
32 CFR 372a.4 Responsibilities.
(a) The Assistant Secretary of Defense (Public Affairs) shall:
(1) Comply with 32 CFR part 372.
(2) Provide policy and operational direction to the Director, AFIS,
for the management and operation of AFRTS.
(3) Issue directive-type memorandums and provide policy guidance to
AFRTS centralized management elements within the Military Departments.
(b) The Director, American Forces Information Service, shall:
(1) Comply with 32 CFR part 372.
(2) Develop policies and procedures, and oversee their
implementation, for the management and operation of the AFRTS radio and
television broadcasting activities of the Department of Defense; and
evaluate and direct corrective action by the Military Departments to
ensure AFRTS is properly structured and managed.
(3) Exercise AFRTS fiscal and personnel resource control through the
Planning, Programing, and Budgeting System, and monitor the
implementation of approved programs.
(4) Authorize the configuration and capabilities of AFRTS outlets.
(5) Ensure a free flow of information and entertainment programing to
overseas DoD personnel and their dependents without censorship,
propagandizing, or manipulation.
(6) Ensure that all AFRTS broadcast activities are in conformance
with host country rules and regulations governing radio and television
transmissions, and are guided by the applicable rules and regulations of
the Federal Communications Commission (FCC), and the Radio and
Television Codes of the National Association of Broadcasters (NAB).
(7) In coordination with the Military Departments, establish
standards for the training of management, production, and technical
staffs; and for the operation and maintenance of equipment at AFRTS
outlets.
(8) Establish and develop policies for a worldwide radio and
television satellite distribution system to designated AFRTS outlets.
(9) Oversee management of the AFRTS Programing Center.
(10) Issue instructional-type memorandums and provide policy guidance
to the Military Departments for ASD(PA) approved programs.
(11) As appropriate, consult with and inform Unified/Specified
Commands on matters that impact on their mission and responsibilities.
(c) The Commanders of the Unified and Specified Commands shall:
(1) Comply with 32 CFR part 372.
(2) Provide the Director, AFIS, and the Military Departments with
contingency plans to assume control of AFRTS outlets.
(3) Provide a list of subjects considered sensitive to host countries
as related to AFRTS programing in accordance with 372a.5(c) of this
part.
(4) Upon request of the Director, AFIS, negotiate agreements or
memorandums with host countries authorizing the establishment and
continuance of AFRTS outlets.
(5) Upon request of the Director, AFIS, negotiate agreements,
contracts, and clearances with music and performing arts societies of
host countries.
(6) Ensure that nothing inhibits the free flow of radio and
television information and entertainment programing to overseas DoD
personnel and their dependents.
(d) The Secretaries of the Military Departments shall:
(1) Comply with 32 CFR part 372.
(2) Through their respective AFRTS centralized management elements,
provide all personnel, financial, engineering, maintenance, and
logistics resources to establish, centrally manage, control, operate,
and maintain AFRTS outlets, in accordance with this part, 32 CFR part
372, 32 CFR part 169, and 32 CFR part 169a.
(3) Ensure that a U.S. citizen is designated as a commander or
manager of an AFRTS outlet. This individual may be either military or
civilian. Civilians must be employed by the U.S. Government, or a
concern under contract to the U.S. Government. Exceptions may be granted
when required by a host country agreement.
(4) Establish and maintain centralized equipment allowances and
authorizations for AFRTS outlets, in accordance with DoD Directive
5040.2,1 ''Audiovisual Activities,'' July 23, 1979 and DoD 5040.2-R,
''Management and Operation of DoD Audiovisual Activities,'' November
1979, and the provisions of the AFIS program for the standardization and
certification of broadcast equipment.
(5) Ensure that nothing inhibits the free flow of radio and
television information and entertainment programing to overseas DoD
personnel and their dependents.
(6) Negotiate an Interservice Support Agreement, in accordance with
Section D., enclosure 1, of this part, and DoD Directive 4000.19,1
''Interservice, Interdepartmental and Interagency Support,'' October 14,
1980, when an AFRTS outlet serves personnel of more than one Military
Service. Normally, these agreements will be negotiated at the lowest
feasible level. Differences in reaching agreements shall be adjudicated
by the Director, AFIS.
(e) The Secretary of the Army shall designate the U.S. Army Materiel
Development and Readiness Command (DARCOM) to provide support to the
DoD-wide AFRTS mission. Responsibilities shall be delegated to the
Television-Audio Support Activity (T-ASA), a DARCOM activity located at
the Sacramento Army Depot, California. This is in accordance with DoD
Instruction 4115.1,1 ''DoD Coordinated Procurement Program Purchase
Assignments,'' September 1, 1972, and the policy direction provided by
the Director, AFIS. T-ASA shall comply with the provisions of section
E, enclosure 1.
(f) Heads of DoD Components shall follow the AFRTS management and
operations procedures found in enclosure 1.
1See footnote to 372.5(d)(3)(i).
32 CFR 372a.5 Information requirements.
(a) The Audiovisual (AV) Annual Report, DD Form 2054, Report Control
Symbol DD-PA(A)1348 shall be completed in accordance with the provisions
of DoD Directive 5040.2, and DoD 5040.2-R.
(b) The AFRTS Outlet/Network Registration, DD Form 2137, Report
Control Symbol DD-PA(AR)1572, shall be submitted through channels to the
Director, AFIS, at the time of initiation of a request for an AFRTS
outlet and within 30 days of a substantive change affecting an AFRTS
outlet.
(c) The AFRTS host country Sensitive Subject Summary Narrative
Report, Report Control Symbol DD-PA(A&AR)1537, shall be submitted to:
the Director, AFIS; the Director, AFRTS Programing Center; and the
Commandant, DINFOS. Public Affairs Officers of Unified and Specified
Commands, or other major commands having AFRTS outlets under their
cognizance, shall forward this report annually and as changes,
additions, and deletions occur. Annual reports are due September 15th
of each year.
32 CFR 372a.6 Definitions.
(a) AFRTS. A worldwide broadcast organization that comprises:
(1) An AFRTS headquarters element within AFIS;
(2) The AFRTS centralized management elements within the Military
Departments;
(3) AFRTS outlets around the world; and
(4) The AFRTS Programing Center in Los Angeles, California.
(b) AFRTS outlet. Any facility authorized by the Director, AFIS, in
accordance with policy to disseminate radio or television programing.
An outlet includes AFRTS radio and television stations and networks,
relay sites, translators, Navy ships using AFRTS program materials,
mini-TV sites, and any other AFRTS broadcast facility.
(c) AFRTS Network. Two or more AFRTS stations, authorized by the
Director, AFIS, to disseminate programing through interconnecting
broadcast quality transmission circuits.
(d) AFRTS Mini-TV. A self-contained videotape playback system used
in remote or isolated areas not accessible to a radiated AFRTS
television signal.
(e) AFRTS Programing Center. A field activity of the AFIS located in
Los Angeles, California, which provides information and entertainment
programing to AFRTS outlets.
(f) Censorship. The withholding or editing of information and
entertainment programing, when such action is not supported by
legitimate host country sensitivities or by broadcast restrictions
imposed by program owners.
(g) Host country sensitivities. Topics that are restricted from
broadcast on an AFRTS outlet when determined by the U.S. Embassy or U.S.
country team, normally in writing, to be sensitive to the host country
concerned.
(h) Information programing. Radio and television programing that
communicates knowledge and includes: world, national (U.S.), Service,
major/local command, community, and host country news; sports news;
analysis and commentary; public affairs; and spot announcements on
internal information themes.
(i) Entertainment programing. Radio and television programing that
affords pleasure, diversion or amusement, such as comedy, drama,
variety, play-by-play sports, and musical recordings.
32 CFR 372a.6 Pt. 372a, Encl. 1
32 CFR 372a.6 Enclosure 1 -- AFRTS Management and Operations
1. Establishment of an AFRTS Outlet. In accordance with
responsibilities and policies established herein, an AFRTS outlet may be
proposed for establishment wherever a requirement for such a
communication medium can be demonstrated.
a. Upon determining that there is a need for an AFRTS outlet and
before the investment of funds, the local command will forward a request
to the appropriate Military Department with an information copy to the
appropriate Unified/Specified Command. The Military Department will
take steps to ensure that funds, personnel, administrative, and
logistics support are available prior to submitting the request for the
approval of the Director, AFIS. The Military Department will provide
the following information for the consideration of the Director, AFIS,
keeping the appropriate Unified/Specified Command informed:
(1) Number of military (by branch of Service) and civilian DoD
personnel and dependents who will benefit from the outlet.
(2) Amount and format of English language programing currently
available.
(3) Designation of the activity that will exercise immediate control
over the outlet.
(4) Type of outlet and physical location.
(5) Staffing plan for the outlet, including the number of military
and civilian spaces to be allocated.
(6) Financial plan to fund for the outlet, including the amount of
investment, and operation and maintenance estimates.
(7) Estimated ''on-air'' date.
(8) Copy of frequency allocation authorization or other suitable
documentation, if radiating.
(9) Copy of the agreement with the host government when the outlet is
to be based in a foreign country. When no formal written agreement has
been negotiated, a memorandum of understanding or record from the U.S.
Embassy or U.S. Country Team will suffice.
(10) Appropriate documentation in compliance with 32 CFR 169, 32 CFR
part 169a when applicable.
b. In considering any request for a new AFRTS outlet, the following
criteria will apply:
(1) An outlet in a foreign country will abide by existing treaties,
agreements, or regulations. Outlets located in other than foreign
countries will not cause interference, as determined under the rules of
the FCC, to licensed broadcast stations.
(2) An outlet will not be operated within the United States, except
in certain isolated areas or where the Director, AFIS, determines that
U.S. commercial radio and television programs are inadequate.
(3) An outlet will not be established when the Director, AFIS,
determines that English language commercial, public, or government radio
and television programs are adequate.
c. With the exception of designated mobile stations during time of
war and Navy ships at sea, the geographic location of authorized AFRTS
outlets will not be changed without approval of the Military Department
concerned. The Director, AFIS will be advised in advance of such
proposed changes. The appropriate Unified/Specified Command will be
informed.
d. Changes or modifications to equipment that will alter materially
the type of broadcast, the broadcast coverage area, or will result in a
condition contrary to host country agreements, will not be made without
approval of the Military Department concerned in coordination with the
appropriate Unified/Specified Command. The Director, AFIS, will be
advised in advance of such proposed changes.
e. For new outlets requiring AFRTS program materials, the Military
Departments will furnish the Director, AFIS, and the appropriate
Unified/Specified Command, an advisory at least 90 days prior to the
planned ''on-air'' date, and an updated advisory 30 days prior to the
firm ''on-air'' date.
f. Frequency assignment parameters (frequency, emission, power, or
time restrictions) will not be exceeded without the approval of the
Director, AFIS, and the appropriate broadcast frequency assignment
authority.
g. A request for the establishment of a relay station as an AFRTS
outlet will be considered only if it is intended to relay programs from
an existing AFRTS outlet.
2. Disestablishment of an AFRTS outlet. When a need no longer exists
for an AFRTS outlet, the responsible Military Department in coordination
with the appropriate Unified/Specified Command, will obtain the approval
of the Director, AFIS, to disestablish and will:
a. Notify the appropriate U.S. Embassy or U.S. Country Team of the
disestablishment, if the outlet is located in a foreign country, and
forward a copy of the notification to the Director, AFIS.
b. Advise the JCS and the Office of the Assistant Secretary of
Defense (Communications, Command, Control, and Intelligence) (ASD(C31))
when FCC jurisdiction is involved.
c. At least 60 days prior to disestablishment, request from the AFRTS
Programing Center disposition instruction for program materials.
d. Determine equipment disposition and furnish appropriate
instructions to the outlet.
e. Notify the appropriate broadcast frequency assignment authority.
3. Station Identification.
a. AFRTS networks and stations will:
(1) Identify themselves at prescribed regular intervals in compliance
with international and host country regulations. If call letters, an
identifying phrase, or a local television on-air logo has been assigned
by the appropriate Military Department with the approval of the
Director, AFIS, they may be used. If call letters or an identifying
phrase has not been assigned, the network or station identification will
be made as follows: ''This is the American Forces Radio and Television
Service,'' followed by the city, geographical location, or name of the
Navy ship.
(2) Identify themselves at least once daily, or at sign-on and
sign-off, as ''This is the American Forces Radio and Television
Service.''
(3) Play the National Anthem of the United States at the normal
sign-on and sign-off times, if not in contravention with an existing
agreement with a host country. Networks and stations operating 24 hours
a day will play the National Anthem at least once a day at the most
appropriate time.
b. Networks will not be identified as such unless they exist in fact,
and then they will be identified as being operated for the benefit of
the American Forces as a whole.
4. Emergency Announcements. AFRTS outlets may not broadcast
emergency announcements without clearance from an appropriate local
commander or the AFRTS outlet commander/manager, who must verify the
requirement. Recall, alert, or maneuver announcements for training
purposes are not considered emergency announcements and will not be
broadcast.
1. Authorization. AFRTS program service may be authorized only for
approved AFRTS outlets. Requests for this service will be made to the
Director, AFIS, through the appropriate Military Department, keeping the
Unified/Specified Command informed.
2. Ownership. All AFRTS program materials remain in the custody of
the DoD and are restricted for use on AFRTS outlets only. The use or
reproduction of AFTS program materials, in whole or in part, for any
other purpose is prohibited without specific authorization from the
Director, AFIS, or as prescribed in paragraphs B.5.e. and B.5.f. of this
enclosure.
3. Disposition.
a. AFRTS program materials, including spot announcements, on hand at
AFRTS outlets will be screened at least semi-annually to ensure that
obsolete recordings, spot announcements, and films are removed from
station libraries.
b. AFRTS outlets will obtain disposition instructions for outdated
program materials from the AFRTS Programing Center.
c. When disposal has been authorized by the AFRTS Programing Center,
the program materials will be disposed of in accordance with furnished
instructions. Certified statements of such disposition will be
forwarded to the Programing Center.
d. To meet emergency situations AFRTS outlets will develop
contingency plans for removing or destroying AFRTS program materials.
4. Restrictions.
a. AFRTS program materials will not be used:
(1) On foreign or domestic commercial, private, or government-owned
broadcasting stations without specific authorization from the Director,
AFIS.
(2) In a program originating from a military installation and
broadcast by a commercial station.
(3) As a feed from a hospital program broadcasting system to provide
entertainment for such nontherapeutic activities as service clubs, staff
quarters, barracks, and offices.
(4) In any manner that constitutes competition with, or is
detrimental to commercial artists, copyright owners, or other private
interests determined to be competitive.
(5) For direct projection exhibitions.
(6) Aboard Navy ships, while the ships are in port and within range
of U.S. commercial stations broadcasting or telecasting U.S. programs.
b. Program materials produced by AFRTS outlets will not be made
available to commercial, private, or government-owned radio or
television stations or networks, or their representatives, without
approval through normal public affairs channels.
5. Use.
a. AFRTS program materials will be broadcast as received from the
AFRTS Programing Center. Editing, for any purpose, is prohibited
without prior approval of the Programing Center, except as prescribed in
paragraphs e. and f., below.
b. TV information programing designated as ''priority'' by the AFRTS
Program Center will be aired by AFRTS outlets in local prime time.
Requests for exceptions to this requirement will be submitted to the
Director, AFIS. (This requirement does not apply to Navy ships, when
such broadcasts would interfere with operational commitments.)
c. Program materials furnished by the AFRTS Programing Center may be
taped for delayed broadcast only when authorized by the Programing
Center. The same security measures will apply to duplicate copies as to
original recordings. All copies will be erased as soon as operational
requirements are met. None will be retained without authority from the
Programing Center.
d. AFRTS outlets may excerpt individual musical recordings from AFRTS
radio programs for continuing local use.
e. AFRTS outlets may delete material in entertainment programing to
remove host country sensitivities. To facilitate this process outlets
are authorized to reproduce (dub) the original program. Such
reproductions will be erased immediately after airing. The AFRTS
Programing Center will be notified when deletions for sensitivities are
made.
f. AFRTS outlets may use short excerpts electronically edited
(dubbed) out of television shows or feature films for the purpose of
informing viewers of upcoming television programs. The use of these
excerpts (for promotionals) will meet specific criteria provided by the
AFRTS Programing Center.
g. AFRTS outlets may not conduct fund-raising radiothons or telethons
in support of the overseas Combined Federal Campaign. Outlets may
conduct such fund-raising programs in support of command relief,
welfare, and organizational activities within the limits of DoD
Directive 5035.1, ''Fund-Raising Within the Department of Defense,''
April 7, 1978.
h. AFRTS outlets may use program materials furnished by the AFRTS
Programing Center for broadcasts originating from remote locations
providing the following criteria are met:
(1) Adequate justification exists to preclude broadcast of the
program from the studios of the AFRTS outlet.
(2) The primary purpose of the remote broadcast is not to provide
entertainment to an audience at the remote location.
(3) The preponderance of the audience at the remote location does not
comprise foreign nationals.
(4) The length of the remote broadcast conforms to similarly
formatted programs broadcast from the studios of the AFRTS outlet.
(5) Upon termination of the remote broadcast, AFRTS program materials
will not continue to be used at the remote location.
(6) All agreements with host country organizations that have music
rights are observed.
1. Authorized Programs.
a. Except for those programs supplied or authorized by the AFRTS
Programing Center and those specified in paragraph b., below, no AFRTS
outlet may broadcast or rebroadcast any program produced in behalf of
private or commerical interests or foreign governments without the
approval of the Director, AFIS.
b. In certain instances, programs, events, or ceremonies broadcast by
a foreign government or agency may be considered of sufficient cultural
or informational value to warrent broadcast by AFRTS outlets. No
broadcast of this nature may be made without the express permission of
the originating or controlling foreign government or agency. Use of
such programs requires the concurrence of the appropriate Military
Department. The Director, AFIS, will be notified.
c. All requests for satellite program service will be submitted to
the Director, AFIS, through the appropriate Military Department and with
a copy to the appropriate Unified/Specified Command. The Director,
AFRTS Programing Center, will effect coordination and circuit-order
validation with communications carriers.
d. Military Departments may authorize AFRTS outlets under their
command to produce local programing, including live broadcasts and spot
announcements.
2. Foreign Language Broadcasts. Broadcasts in other than the English
language may not be made without obtaining approval from the Director,
AFIS, except as outlined below:
a. Those broadcasts designed to satisfy the needs of U.S. Forces
speaking other than the English language.
b. Programs or announcements in the language of the host country,
with adequate English translation, addressed specifically to DoD
personnel to increase their knowledge of the language, and appreciation
of the host country, its customs, background, and people.
c. Official requests by the host government to alert its civilian
population of emergency conditions, such as storms, floods, and
earthquakes. Such announcements must be confirmed and approved for
broadcast by the U.S. Country Team or senior host command. The
appropriate Unified/Specified Command, and the Director, AFIS, will be
advised as soon as possible of the circumstances and action taken.
3. News Programs.
a. The AFRTS Programing Center will provide a broad spectrum of news
programs and materials from the major U.S. commercial and public
broadcasting networks and wire services. This service provided by the
Programing Center will be the principal source of world and national
(U.S.) news for AFRTS outlets.
b. The DoD has assured the U.S. commercial and public networks that
it will protect the integrity of all news programs and materials. No
change will be made in the editorial content of any news programs and
materials used. Radio news actualities and correspondents' reports may
be excerpted from network newscasts, but must be excerpted in their
entirety. Radio actualities presented within correspondents' reports
may not be excerpted. Television news programing may not be excerpted
in any manner unless specifically authorized by the AFRTS Programing
Center. If television news programing is procured locally by an AFRTS
outlet, as authorized in paragraph k. of this enclosure the provisions
of the contract with the source of such programing will apply.
c. AFRTS outlets will use news analyses or commentaries provided by
the AFRTS Programing Center only. Outlets will identify analyses or
commentaries as such, distinguishing them from newscasts and straight
news reporting.
d. The AFRTS Programing Center and AFRTS outlets' news policy is
guided by the FCC's Fairness Doctrine. This doctrine requires that U.S.
broadcast stations provide a significant cross section of opposing views
on controversial issues. The Fairness Doctrine applies to issues rather
than persons and does not require ''equal opportunities.'' It does
require U.S. broadcast stations to provide ''reasonable opportunities''
for the presentation of conflicting views on the important controversial
public issues. All AFRTS news programing will be characterized by its
fairness.
e. The AFRTS political broadcasting policy is based on the FCC's law
of Political Broadcasting and Cablecasting, which does require ''equal
opportunities'' for political candidates. For example, a U.S.
broadcast station may grant ''equal opportunities'' to a candidate to
compensate for a speech or other appearance by a rival candidate.
Accordingly, if an AFRTS outlet carries an original speech (or
appearance), it is required to broadcast the answering response, which
will also be made available from the AFRTS Programing Center. It is
noted, however, the requirement for ''equal opportunities'' does not
apply to four kinds of news programs: newscasts, news interviews, news
documentaries, and spot coverage of news events. All AFRTS political
programing will be characterized by its fairness.
f. The AFRTS Programing Center will provide a free flow of political
programing from U.S. commercial and public networks. The Programing
Center and AFRTS outlets will maintain the same ''equal opportunities''
balance offered by these sources. AFRTS outlets should make extensive
use of such programing, especially during presidential election years,
and should provide their audience with political analysis, commentary,
and public affairs programs, in addition to political hard news.
g. AFRTS outlets may disseminate Service, major/local command,
community, and host country news that is of special interest to DoD
personnel and their dependents.
h. AFRTS outlets may routinely mention the name of a commercial
sponsor, along with other pertinent facts, in news stories and local
announcements concerning Armed Forces Professional Entertainment
Programs.
i. The content, format, and presentation of local news programs will
be carefully supervised to ensure that such programing is factual, fair,
and unbiased, and is in compliance with all of the applicable provisions
of this Directive. Equal care will be exercised in the selection of
editors, newscasters, and supervisory personnel who direct and
disseminate the news.
j. Locally produced newscasts will contain appropriate attribution at
the beginning and end of each newscast. Normally, it is necessary to
reattribute individual news items related to U.S. Government or DoD
policies and operations. AFRTS outlets will not delete source
attribution in news programs and materials provided by the AFRTS
Programing Center.
k. To ensure complete and balanced news programing, AFRTS outlets
have authority to contract for commercial news services, subject to
normal budgeting and contracting procedures.
1. When a proposed or existing AFRTS outlet serves personnel of more
than one Military Service, an Interservice Support Agreement will be
executed covering staffing, operations, support services, programing and
internal information requirements. This agreement will be initiated by
the responsible Military Service in accordance with DoD Directive
4000.19.1 Normally this agreement is executed at the time establishment
is requested. A copy of these Interservice Support Agreement will be
provided to the appropriate Unified/Specified Command.
2. Budgeting and funding functions will be performed by the
responsible Military Department. When a Military Department requests
either a new service or an increase in present AFRTS service for an
installation in another Military Department's geographical area of
responsibility, the requester will fund the new service, reimbursing the
geographical area manager for the balance of the current fiscal year,
plus one additional fiscal year. Within this time frame, the
geographical area manager will program and budget resources for the
additional service. The pay, allowances (including subsistence), and
permanent change of station expenses of military personnel permanently
or temporarily assigned to assist in the management, operation, or
engineering of the AFRTS outlet will be borne by the parent Military
Department of those personnel. Where host-tenant support is provided by
a command other than the one assigned control over the AFRTS outlet
concerned, the requirement for reimbursement shall be determined in
accordance with DoD Directive 4000.19.1
3. Military personnel authorizations for AFRTS outlets will be shared
by the Military Services in proportion to the respective audience of
each Service within the coverage area. For purposes of personnel
authorizations, audience includes military, DoD civilians, and
dependents. Where U.S. civilian personnel spaces are required, the
proportionate share of these spaces and funds will be transferred to the
operating Service from the other Services at the time of outlet
establishment or transfer.
1. Procure (based upon specified requirements and funds made
available by the respective Military Departments), temporarily hold and
issue, in accordance with DoD Instruction 4115.1,1 nonstandard radio and
television supplies and equipment requisitioned by AFRTS outlets.
Minimum stocks (to include National Stock Numbers) of fast moving
repetitive-demand type items, will be stocked to preclude the necessity
for individual purchases for each requisition.
2. Process in-warranty and repair cycle float requirements for AFRTS
outlets.
3. Review excess listings for feasibility of repair and
redistribution to AFRTS outlets.
4. Provide engineering support for new and existing outlets when
requested by other Military Departments. The requesting Service will be
required to furnish travel and per diem funds.
5. Provide engineering expertise on the selection of replacement
equipment to ensure maximum standardization.
6. Provide technical guidance on the maintenance and rehabilitation
of existing AFRTS outlets.
7. Provide supervision and engineering expertise associated with the
on-site survey, procurement, issuance and installation of nonstandard
radio and television supplies and equipment upon request. The
requesting Service will be required to furnish travel and per diem
funds.
8. Conduct on-site maintenance advisory visits and provide on-the-job
training as required/requested to AFRTS maintenance personnel.
9. Conduct on-site logistics advisory visits and provide supply
procedure training as requested. Funding will be furnished by the
requesting Service.
10. Provide Commodity Management for AFRTS outlets. This includes
life cycle management for all systems, end items, repairables,
consumables, and commercial technical literature in support of AFRTS
outlets.
11. Develop, in coordination with the Military Departments and the
Director, AFIS, specifications and standards for professional equipment
for AFRTS outlets.
1. Established military standards for long haul communications
(strategic) are to be complied with when the use of Defense
Communications System facilities is anticipated. This is necessary in
order to provide appropriate interface and compatibility.
2. The ASD (C3I) is responsible for the coordination of AFRTS matters
involving correspondence with the FCC and the National
Telecommunications and Information Administration (NTIA).
3. Commanders will ensure required coordination, when applicable,
with the Joint Frequency Panel of the U.S. Military Communications
Electronics Board.
4. Early planning concepts, as well as requests for establishment of
AFRTS facilities for broadcasting within the United States and
possessions, will also be submitted through command channels to the
ASD(C3I), who will effect necessary coordination with the NTIA and the
FCC; and who will advise on consistency with national and departmental
international telecommunications policy. The ASD(C3I) will advise the
appropriate Military Department whether or not an application for
frequency assignment may be processed to the NTA.
5. Frequency assignments will be obtained in accordance with
established procedures and command responsibilities for frequency
coordination and assignments.
Direct communication is authorized between:
1. AFRTS outlets, Military Departments, Unified/Specified Commands,
ASD(PA), and AFIS, concerning immediate operational matters only.
2. AFRTS outlets, Military Departments, and the T-ASA, Sacramento
Army Depot, concerning routine supply matters, procurement actions, and
technical engineering advice.
3. AFRTS outlets and the AFRTS Programing Center in Los Angeles on
program matters such as new radio and television programs, program
complaints, satellite transmissions, area program restrictions, and
advisories on program sensitivities. Mini-TV outlets and Navy ships
will channel such communications through the appropriate circuit manager
to ensure proper coordination. All AFRTS outlets will channel
communications concerning such matters as broadcast policy, or proposed
changes in existing program services through the appropriate Military
Department.
4. AFRTS outlets and host country commercial or government
broadcasters, with the approval of the Director, AFIS. This direct link
would be authorized for such local matters as lifting area program
restrictions and the use of satellite broadcasters.
1See footnote to 372a.1.
32 CFR 372a.6 PART 373 -- INSPECTOR GENERAL OF THE DEPARTMENT OF
DEFENSE
Sec.
373.1 Purpose.
373.2 Applicability and Scope.
373.3 Mission.
373.4 Organization and Management.
373.5 Responsibilities and Functions.
373.6 Relationships.
373.7 Authority.
373.8 Delegations of Authority.
Authority: Pub. L. 95-452 and 10 U.S.C., Chapter 4.
Source: 48 FR 36247, Aug. 10, 1983, unless otherwise noted.
32 CFR 373.1 Purpose.
This part implements the provisions of Pub. L. 95-452, which
establishes the position of Inspector General (IG) and the Office of the
Inspector General (OIG) in the Department of Defense, and sets forth
responsibilities, functions, authorities, and relationships as outlined
below.
32 CFR 373.2 Applicability and scope.
(a) This part applies to the Office of the Secretary of Defense
(OSD), the Military Departments, the Organizations of the Joint Chiefs
of Staff (OJCS), the Unified and Specified Commands, and the Defense
Agencies (hereinafter referred to as ''DoD Components'').
(b) Its provisions cover all programs and operations administered or
financed by the Department of Defense.
32 CFR 373.3 Mission.
As an independent and objective office in the Department of Defense,
the OIG shall:
(a) Conduct, supervise, monitor, and initiate audits and
investigations relating to programs and operations of the Department of
Defense.
(b) Provide leadership and coordination and recommend policies for
activities designed to promote economy, efficiency, and effectiveness in
the administration of, and to prevent and detect fraud and abuse in,
such programs and operations.
(c) Provide a means for keeping the Secretary of Defense and the
Congress fully and currently informed about problems and deficiencies
relating to the administration of such programs and operations and the
necessity for and progress of corrective action.
32 CFR 373.4 Organization and management.
(a) The IG, a civilian appointed by the President, with the advice
and consent of the Senate, shall serve as head of the OIG.
(b) The IG, in accordance with applicable laws and regulations
governing the civil service, shall:
(1) Appoint a Deputy Inspector General, who shall serve as IG in his
or her absence.
(2) Appoint an Assistant Inspector General for Auditing who shall
supervise the performance of auditing activities relating to programs
and operations of the Department of Defense.
(3) Appoint an Assistant Inspector General for Investigations who
shall supervise the performance of investigative activities relating to
programs and operations of the Department of Defense.
(4) Select, appoint, and employ such other officers and employees as
may be necessary to carry out the mission, functions, responsibilities,
and authorities assigned herein.
(c) The OIG shall consist of organizational elements established by
the IG within the resources assigned by the Secretary of Defense or by
statute.
(d) The Secretaries of the Military Departments or their designees
shall assign military personnel to the OIG in accordance with approved
authorizations and established procedures for assignments to joint duty.
(e) The Secretary of Defense shall provide the OIG with appropriate
and adequate office space at central and field office locations together
with such equipment, office supplies, and communications facilities and
services as may be necessary for the operation of the OIG, and shall
provide necessary maintenance services for offices and equipment and
facilities located therein.
32 CFR 373.5 Responsibilities and functions.
(a) The Inspector General, Department of Defense, shall:
(1) Be the principal adviser to the Secretary of Defense on all audit
and criminal investigative matters covered under Pub. L. 95-452 and for
matters relating to the prevention and detection of fraud, waste, and
abuse in the programs and operations of the Department of Defense.
(2) Initiate, conduct, and supervise such audits and investigations
in the Department of Defense, including the Military Departments, as the
IG considers appropriate.
(3) Provide policy direction for audits and investigations relating
to fraud, waste, and abuse and program effectiveness.
(4) Evaluate and review the work of all DoD activities relating to
contract audit, internal audit, internal review, military exchange
audit, and independent public accountant audit service programs.
(5) Investigate fraud, waste, and abuse uncovered as a result of
contract and internal audits, as the IG considers appropriate.
(6) Develop policy, monitor and evaluate program performance, and
provide guidance with respect to all DoD activities relating to criminal
investigation programs.
(7) Monitor and evaluate the adherence of DoD auditors to internal
audit, contract audit, and internal review principles, policies, and
procedures.
(8) Develop policy, evaluate program performance, and monitor actions
taken by all DoD Components in response to contract audits, internal
audits, internal review reports, and audits conducted by the Comptroller
General of the United States.
(9) Monitor and give particular regard to the activities of the
internal audit, inspection, and investigative units of DoD Components
(including those of the Military Departments) with a view toward
avoiding duplication and insuring effective coverage, coordination, and
cooperation.
(10) Provide policy direction for and conduct, supervise, and
coordinate audits and investigations relating to DoD programs and
operations.
(11) Review existing and proposed legislation and regulations
relating to DoD programs and operations and make recommendations thereon
in accordance with section 4(a)(2) of Pub. L. 95-452 concerning their
impact on economy and efficiency or on the prevention and detection of
fraud and abuse in DoD programs and operations.
(12) Recommend policies for and conduct, supervise, or coordinate
other activities carried out or financed by the Department of Defense
for the purpose of promoting economy and efficiency in the
administration of, or preventing and detecting fraud and abuse in, its
programs and operations.
(13) Recommend policies for and conduct, supervise, or coordinate
relationships between the Department of Defense and other Federal
agencies, State and local governmental agencies, and nongovernmental
entities with respect to:
(i) All matters relating to the promotion of economy and efficiency
in the administration of, or the prevention and detection of fraud and
abuse in, programs and operations administered or financed by the
Department of Defense; or
(ii) The identification and prosecution of participants in such fraud
or abuse.
(14) Keep the Secretary of Defense and Congress fully and currently
informed concerning fraud and other serious problems, abuses, and
deficiencies relating to the administration of programs and operations
administered or financed by the Department of Defense, recommend
corrective action concerning such problems, abuses, and deficiencies,
and report on the progress made in implementing such corrective action.
(15) Receive and investigate, consistent with Section 7 of Pub. L.
95-452 and DoD Directive 7050.1 complaints or information concerning the
possible existence of an activity constituting a violation of law,
rules, or regulations, or mismanagement, gross waste of funds, or abuse
of authority, or a substantial and specific danger to the public health
and safety involving the Department of Defense.
(16) Organize, direct, and manage the OIG and all resources assigned
thereto.
(17) Perform other duties as assigned by the Secretary of Defense.
(b) The Secretaries of the Military Departments shall maintain
authority, direction, and operational control over their audit,
inspection, and investigative organizations, including responsibility
for their effectiveness and the scope of their activities.
(c) The Assistant Secretary of Defense (Comptroller) shall maintain
authority, direction, and operational control over the Defense Contract
Audit Agency including responsibility for the effectiveness and scope of
the Agency's activities.
32 CFR 373.6 Relationships.
(a) The IG shall carry out the above responsibilities and functions
under the general supervision of the Secretary of Defense and shall not
be prevented or prohibited from initiating, carrying out, or completing
any audit or investigation, or from issuing any subpoena during the
course of any audit or investigation; except that the IG shall be
subject to the authority, direction, and control of the Secretary with
respect to audits, investigations, or the issuances of subpoenas that
require access to information concerning:
(1) Sensitive operational plans.
(2) Intelligence matters.
(3) Counterintelligence matters.
(4) Ongoing criminal investigations by other administrative units of
the Department of Defense related to national security.
(5) Other matters the disclosure of which would constitute a serious
threat to national security.
(b) If the Secretary of Defense exercises the authority to restrict
IG access under paragraph (a) of this section, the IG shall submit a
statement concerning such exercise within 30 days to the Committees on
Armed Services and Governmental Affairs of the Senate and the Committees
on Armed Services and Government Operations of the House of
Representatives and to other appropriate committees or subcommittees.
(c) In the performance of assigned responsibilities and functions,
the IG shall:
(1) Coordinate actions, as he or she deems appropriate, with other
DoD Components and, unless precluded by the nature of the matter, notify
the Secretaries of the Military Departments concerned before conducting
audits or investigations of matters normally under the jurisdiction of
the Military Departments.
(2) Give particular regard to the activities of the Comptroller
General of the United States with a view toward avoiding duplication and
insuring effective coordination and cooperation.
(3) Coordinate, as appropriate, with the Under Secretary of Defense
for Policy and the Assistant to the Secretary of Defense (Intelligence
Oversight) on matters relating to their respective areas of
responsibility.
(4) Report expeditiously to the Attorney General whenever the IG has
reasonable grounds to believe there has been a violation of Federal
criminal law.
(5) Report expeditiously to the Military Department Secretary
concerned any suspected or alleged violations of the Uniform Code of
Military Justice.
32 CFR 373.7 Authority.
In addition to the authorities delegated in Pub. L. 95-452, the IG
is hereby delegated authority to:
(a) Issue DoD instructions, DoD publications, and one-time,
directive-type memoranda, consistent with DoD 5025.1-M that implement
policies approved by the Secretary of Defense in assigned areas of
responsibility. Instructions shall be issued directly to elements of
the OSD and the Defense Agencies. Instructions to the Military
Departments shall be issued through the Secretaries of those Departments
or their designees. Instructions to the Unified and Specified Commands
shall be issued through the JCS.
(b) Have access to all records, reports, investigations, audits,
reviews, documents, papers, recommendations, or other material available
to any DoD Component. These normally shall be obtained consistent with
DoD Directive 5000.19.
(1) Except as specifically denied in writing by the Secretary of
Defense pursuant to the authority contained in Section 8 of Pub. L.
95-452 and 373.6(a), above, no officer, employee, or service member of
any DoD Component may deny the IG, or officials assigned by the IG,
access to information, or prevent them from conducting an audit or
investigation.
(2) IG officials shall possess proper access security clearance when
sensitive classified data are requested.
(c) Communicate directly with personnel of other DoD Components on
matters related to Pub. L. 95-452 and this part. To the extent
practicable and consistent with the responsibilities and functions of
the Military Departments as described in 373.5(b), above, the head of
the DoD Component concerned shall be kept informed of such direct
communications.
(d) Request assistance as needed from other audit, inspection, and
investigative units of DoD Components. In such cases, assistance shall
be requested through the head of the DoD Component concerned.
(e) Request information or assistance from any Federal, State, or
local governmental agency, or unit thereof.
(f) Exercise the administrative authorities contained in 373.8.
32 CFR 373.8 Delegations of Authority.
Pursuant to the authority vested in the Secretary of Defense, and in
accordance with DoD policies, Directives, and Instructions, the
Inspector General (IG) of the Department of Defense or, in the absence
of the IG, the person acting for him or her, is hereby delegated
authority, as required in the administration and operation of the Office
of the Inspector General (OIG) to:
(a) Fix rates of pay for wage board employees exempted from Title 5
U.S. Code, Section 5102(c)(7), on the basis of rates established under
the Coordinated Federal Wage System. In fixing those rates, the wage
schedules established by DoD wage-fixing authority shall be followed.
(b) Establish advisory committees and employ part-time advisors for
the performance of OIG functions pursuant to Title 10 U.S. Code 173(a).
(c) Administer oaths of office incident to entrance into the
Executive Branch of the Federal Government or any other oath required by
law in connection with employment therein, in accordance with Title 5
U.S. Code, Section 2903(b), and designate in writing other officers and
employees of the OIG to perform this function. Administer oaths as
provided by Title 5 U.S. Code 303.
(d) Establish an OIG Incentive Awards Board and pay cash awards to
and incur necessary expenses for the honorary recognition of OIG
civilian employees whose suggestions, inventions, or superior acts or
service benefit or affect the OIG or its subordinate activities in
accordance with Title 5 U.S. Code 4503, and Office of Personnel
Management (OPM) regulations.
(e) Perform the following functions in accordance with the provisions
of Title 5 U.S. Code 7532; Executive Order 10450, ''Security
Requirements for Government Employment,'' April 27, 1953; and DoD
5200.2-R, ''DoD Personnel Security Program,'' December 20, 1979:
(1) Designate any position in the OIG as a ''sensitive'' position.
(2) Authorize, in case of an emergency, the appointment of a person
to a sensitive position in the OIG for a limited period of time for whom
a full field investigation or other appropriate investigation, including
the National Agency Check, has not been completed.
(3) Authorize the suspension, but not the termination, of the
services of an OIG employee in the interest of national security.
(f) Clear OIG personnel and other individuals, as appropriate, for
access to classified DoD material and information in accordance with the
provisions of DoD 5200.2-R and Executive Orders 10450 and 12356,
''National Security Information,'' April 2, 1982.
(g) Act as agent for the collection and payment of employment taxes
imposed by Chapter 24, section 3401, of the Internal Revenue Code of
1954 and, as such agent, make all determinations and certifications
required or provided under Title 26 U.S. Code 3122, and Title 42 U.S.
Code 405(p) (1) and (2), with respect to OIG employees.
(h) Authorize and approve overtime work for OIG civilian personnel in
accordance with Title 5 U.S. Code, Subchapter V, Chapter 55, and Section
550.11 of the OPM regulations.
(i) Authorize and approve:
(1) Travel for OIG civilian personnel in accordance with Volume 2,
Department of Defense Civilian Personnel, Joint Travel Regulations.
(2) Temporary duty travel only for military personnel assigned to or
detailed to the OIG in accordance with Volume 1, Joint Travel
Regulations.
(3) Invitational travel to persons serving without compensation whose
consultative, advisory, or highly specialized technical services are
required in a capacity that is directly related to or in connection with
OIG activities, pursuant to Title 5 U.S. Code 5703, and Part A, Chapter
6, Volume 2, Joint Travel Regulations.
(j) Approve the expenditure of funds available for travel by military
personnel assigned or detailed to the OIG for expenses incident to
attendance at meetings of technical, scientific, professional, or other
similar organizations in such instances where the approval of the
Secretary of Defense, or designee, is required by law (Title 37 U.S.
Code 412). This authority cannot be redelegated.
(k) Develop, establish, and maintain an active and continuing Records
Management Program under DoD Directive 5015.2, ''Records Management
Program,'' September 17, 1980; and parts 286 and 286a of this title.
(l) Establish and use imprest funds for making small purchases of
material and services, other than personal, for the OIG when it is
determined more advantageous and consistent with the best interests of
the government, in accordance with DoD Instruction 5100.71, ''Delegation
of Authority and Regulations Relating to Cash Held at Personal Risk
Including Imprest Funds,'' March 5, 1973, and the Joint Regulation of
the General Services Administration/Treasury Department/General
Accounting Office, ''For Small Purchases Utilizing Imprest Funds.''
(m) Authorize the publication of advertisements, notices, or
proposals in newspapers, magazines, or other public periodicals as
required for the effective administration and operation of the OIG
(Title 44 U.S. Code 3702).
(n) Establish and maintain appropriate property accounts for the OIG
and appoint boards of survey, approve reports of survey, relieve
personal liability, and drop accountability for OIG property contained
in the authorized property accounts that has been lost, damaged, stolen,
destroyed, or otherwise rendered unserviceable, in accordance with
applicable laws and regulations.
(o) Issue the necessary security regulations for the protection of
property and places under the jurisdiction of the IG, under DoD
Directive 5200.8, ''Security of Military Installations and Resources,''
July 29, 1980.
(p) Establish and maintain, for the functions assigned, an
appropriate publications system for the promulgation of common supply
and service regulations, instructions, and reference documents, and
changes thereto, consistent with DoD 5025-1M, ''Department of Defense
Directives System Procedures,'' April 1981.
(q) Enter into support and service agreements with the Military
Departments, other DoD Components, or other governement agencies as
required for the effective performance of responsibilities and functions
assigned to the OIG.
(r) Authorize OIG personnel to carry firearms in accordance with DoD
Directive 5210.66, ''Carrying of Firearms by Department of Defense
Personnel,'' May 31, 1979.
(s) Exercise original Top Secret classification authority.
(t) Issue credentials and other identification to employees of the
OIG.
(u) The Inspector General may redelegate these authorities, in
writing, except as otherwise specifically indicated above or as
otherwise provided by law or regulation.
32 CFR 373.8 PART 374 -- ASSISTANT SECRETARY OF DEFENSE (SPECIAL
OPERATIONS AND LOW-INTENSITY CONFLICT)
Sec.
374.1 Purpose.
374.2 Definitions.
374.3 Responsibilities and functions.
374.4 Relationships.
374.5 Authorities.
374.6 Effective date.
Authority: 10 U.S.C. 133.
Source: 53 FR 1345, Jan. 19, 1988, unless otherwise noted.
32 CFR 374.1 Purpose.
This part:
(a) Implements section 136(b)(4) of Title 10, U.S.C. to establish the
position of Assistant Secretary of Defense for Special Operations and
Low-Intensity Conflict (ASD(SO/LIC)).
(b) Assigns responsibilities, functions, relationships, and
authorities to the ASD(SO/LIC) pursuant to the authority vested in the
Secretary of Defense under 10 U.S.C.
32 CFR 374.2 Definitions.
DoD Components. The Office of the Secretary of Defense (OSD), the
Military Departments, the Organization of the Joint Chiefs of Staff
(OJCS), the Unified and Specified Commands, the Inspector General of the
Department of Defense (IG, DoD), and the Defense Agencies.
Low-Intensity Conflict (LIC). As established by U.S. guidance, LIC
is political-military confrontation between contending states or groups
below conventional war and above the routine, peaceful competition among
states. It involves protracted struggles of competing principles and
ideologies. LIC ranges from subversion to the use of armed force. It
is waged by a combination of means employing political, economic,
informational, and military instruments. Such conflicts are often
localized and generally in the Third World, but contain regional and
global security implications. LIC activities comprise a full range of
offensive and defensive measures employed in accordance with national
security strategy objectives. These activities include Foreign Internal
Defense (FID) measures to help governments combat insurgency and other
forms of low-intensity aggression, political and economic support for
developing nations, support for resistance movements, antiterrorism and
counterterrorism policy, contingency operations, drug interdiction, and
peacekeeping operations.
Special Operations (SO). SO are actions conducted generally in
enemy-held, enemy-denied, or sensitive territory by specially trained,
equipped, and organized DoD forces in pursuit of national military,
political, economic, or psychological objectives. SO are essentially of
a political-military nature and are affected more directly by political
considerations than conventional operations. They may support
conventinal operations or be conducted independently, during peace or
hostilities, when conventional operations are inappropriate or
infeasible. SO are frequently of a high risk nature and characterized
by oversight at the national level. They differ generally from
conventional operations in their operational techniques, mode of
employment, and dependence upon operational intelligence and indigenous
assets. SO activities include each of the following insofar as it
relates to SO: Direct Action, Strategic Reconnaissance, Unconventional
Warfare, FID, Civil Affairs, Psychological Operations, Counterterrorism,
Humanitarian Assistance, Theater Search and Rescue, and such other
activities as may be specified by the President or the Secretary of
Defense in accordance with section 167(j)(10) of 10 U.S.C.
32 CFR 374.3 Responsibilities and functions.
The Assistant Secretary of Defense (Special Operations and Low
Intensity Conflict (ASD(SO/LIC)) is the Principal Staff Assistant and
civilian advisor to the Secretary of Defense for policy and planning
related to SO/LIC activities within the Department of Defense. The ASD
(SO/LIC) has the statutory duty for the overall supervision of SO and
LIC activities within the Department of Defense. Subject to the
direction of the Secretary of Defense, the ASD(SO/LIC) shall be
responsible for policy guidance and oversight to govern planning,
programming, resourcing, and executing SO and LIC activities. In the
performance of these responsibilities, the ASD(SO/LIC) shall:
(a) Formulate policies and programs for plans, resources, and
implementation of SO and LIC activities, and oversee the implementation
of these policies and programs.
(b) Translate national security policy objectives into specific
defense policy objectives achievable by designated SO and LIC
activities.
(c) Conduct studies and analyses that support the exercise of
assigned responsibilities and functions.
(d) Oversee an integrated development and refinement of doctrines,
strategies, and processes for SO and LIC; prepare overall plans and
implementation guidance for the various areas in the world where SO and
LIC objectives exist.
(e) Provide policy guidance and recommendations to consider and
incorporate SO and LIC mission options in contingency planning;
coordinate with the Under Secretary of Defense (Policy), (USD(P)) to
review the SO and LIC aspects of contingency plans; and evaluate the
fit between policy, strategic guidance, planning, and capabilities.
(f) Review, analyze, and evaluate the various policies, processes,
and programs of DoD Components that impact on the capability to plan,
resource, prepare forces, and execute SO and LIC operations; and
initiate and coordinate actions or taskings that enhance the readiness,
capabilities, and effective use of SO and LIC forces.
(g) Supervise the overall preparation and justification of program
recommendations and budget proposals for SO activities in the
Five-Year-Defense Plan (FYDP) of the Department of Defense. In
developing the FYDP, the ASD(SO/LIC) shall seek the advice and
assistance of the Commander in Chief United States Special Operations
Command (USCINCSOC), and may seek adivce and assistance from other DoD
Components. The ASD(SO/LIC) and USCINCSOC will have visibility and
control over utilization of Major Force Program 11 resources.
(1) During the planning and programming phases of the FYDP
preparation, the ASD(SO/LIC) shall coordinate with the Director, Program
Analysis and Evaluation (PA&E).
(2) During the budgeting phase of the FYDP preparation, the
ASD(SO/LIC) shall coordinate with the Assistant Secretary of Defense
(Comptroller) (ASD(C)).
(h) Advise the Under Secretary of Defense (Acquisition) (USD(A)) on
acquisition priorities and requirements for SO- and LIC-related material
and equipment; participate in the Defense Acquisition Board and other
appropriate boards and committees as the proponent for SO and LIC
issues; and maintain liaison to monitor progress in achieving
milestone.
(i) Oversee the promulgation and periodic review of regulations for
the United States Special Operations Command (USSOCOM) activities as
required by section 167(h) of 10 U.S.C.; review, in coordination with
the Chairman, JCS, and USCINCSOC, the procedures by which USCINCSOC
receives, plans, and executes tasking of the National Command
Authorities.
(j) Provide, in conjunction with the Chairman, JCS, and USCINCSOC,
DoD oversight of the readiness of the unified combatant commands to
conduct SO.
(k) Advise the Secretary of Defense on assigning SO and other forces
to USSOCOM.
(l) Ascertain where intelligence shortfalls exist and confer with
USCINCSOC; the Director, Defense Intelligence Agency (DIA); the
Assistant Secretary of Defense (Command, Control, Communications, and
Intelligence) (ASD(C /3/ I)); and the intelligence community to
recommend activities that support the capability and plans of the
Department of Defense to conduct SO and LIC missions.
(m) Monitor the development of crises through the Crisis Action
System (CAS), and, as appropriate, recommend options for separate or
integrated, military or nonmilitary, actions utilizing SO capabilities;
monitor SO actions during the planning and execution phases of the CAS;
report to the Secretary of Defense, after consultation with the
Chairman, JCS, any significant change in the relationship between the SO
actions, targets, level of force and risk, and the political object to
be achieved.
(n) In accordance with established procedures, including General
Counsel of the Department of Defense (GC, DoD) consultation and DoD
Directive S-5210.36, advise the USD(P) on fulfillment of interagency
support requests for utilization of DoD forces or resources in SO and
LIC activities; monitor interagency use of DoD forces or resources in
SO and LIC activities; report to the USD(P) whenever it appears that
questions may arise with respect to the legality or propriety of such
utilization.
(o) Develop, in coordination with USD(A) and other appropriate DoD
Component officials, mechanisms for integrating SO and LIC programs into
other DoD Component research, development, test and evaluation (RDT&E)
and procurement efforts.
(p) Serve, in association with USCINCSOC, as the Principal DoD
official responsible for presenting the SO and LIC programs to Congress.
(q) Serve as the DoD point of contact and spokesman regarding SO and
LIC matters germane to assigned functions and responsibilities;
represent the Secretary of Defense with other governmental agencies,
including interagency groups, with respect to such matters.
(r) Study the methodologies of foreign government SO and LIC
organizations to improve DoD capability in peace and war.
(s) Recommend to the Secretary of Defense legislative initiatives to
enhance SO and LIC capabilities.
(t) Clear all related public affairs releases/statements with the
Assistant Secretary of Defense (Public Affairs).
(u) Perform such other duties as the Secretary of Defense may
prescribe.
32 CFR 374.4 Relationships.
(a) In the performance of assigned duties, the ASD(SO/LIC) shall:
(1) Consult and coordinate with DoD Components when addressing issues
under their respective purview.
(2) Establish effective communication and liaison for the exchange of
information and advice in the field of assigned responsibility with all
DoD Components, other U.S. and foreign government activities, and
non-DoD research institutions, including commercial and academic
entities.
(3) Whenever practicable, use existing facilities and services of the
Department of Defense or other Federal Agencies to avoid duplication and
achieve maximum efficiency and economy.
(4) In corrdination with USCINCSOC, operate within the DoD
Acquisition System, ensuring that direction from the USD(A) on matters
on acquisition policy, procedures, and execution is complied with in
accordance with 32 CFR part 382.
(5) Establish and maintain an interactive process with the Department
of State (DoS), National Security Council (NSC), DoD Components and
other bodies to promote early identification of possible problems that
might arise in different parts of the world and to initiate planning
guidance for the use of SO and LIC activity initiatives.
(6) Promote understanding of SO and LIC activities within the
Department of Defense, other Federal Agencies, the civilian community at
large, and foreign SO and LIC official communities; and ensure the
development of SO/LIC exercise participation in national wargaming
efforts.
(b) Nothing herein shall be interpreted to interpose the ASD(SO/LIC)
in the operational chain of command prescribed by section 163 of 10
U.S.C. or to subsume and replace the functions and responsibilities of
the Chairman, JCS, and the Unified Combatant Commanders as prescribed by
law.
32 CFR 374.5 Authorities.
The ASD(SO/LIC) is hereby delegated authority to:
(a) Issue DoD Instructions, DoD publications, and one-time
directive-type memoranda, consistent with DoD 5025.1-M, to implement
policies approved by the Secretary of Defense in assigned areas of
responsibility. Instructions to the Military Departments shall be
issued through the Secretaries of those Departments or their designees.
Instructions to Unified or Specified Commands shall be issued through
the Chairman, JCS.
(b) Act for the Secretary of Defense in participating in and
discharging DoD responsibilities on interdepartmental and interagency
groups exercising SO- and LIC-related functions.
(c) Obtain such reports, information, advice, and assistance,
consistent with policies and criteria of DoD Directive 7750.5. /1/
(d) Communicate directly with the heads of DoD Components.
Communications to the Commanders of the Unified and Specified Commands
(other than NSCINCSOC) shall be coordinated with the Chairman, JCS.
(e) Communicate with other Government Agencies, representatives of
the legislative branch, and members of the public, as appropriate.
(f) After consultation with responsible policy officials, establish
and maintain liaison with Ministry of Defense officials dealing with SO
and LIC matters in allied and friendly nations.
(g) Establish arrangements for DoD participatiopn in those non-DoD
governmental programs for which primary cognizance is assigned.
/1/ Copies may be obtained, if needed, from the U.S. Naval
Publications and Forms Center, 5801 Tabor Avenue, Attn: Code 1052,
Philadelphia, PA 19120.
32 CFR 374.6 Effective date.
This part is effective January 4, 1988.
32 CFR 374.6 PART 375 -- ASSISTANT SECRETARY OF DEFENSE (PUBLIC
AFFAIRS)
Sec.
375.1 Reissuance and purpose.
375.2 Definition.
375.3 Responsibilities.
375.4 Functions.
375.5 Relationships.
375.6 Authorities.
375.7 Effective date.
Appendix A to Part 375 -- Principles of Information
Authority: 10 U.S.C. 136.
Source: 53 FR 30996, Aug. 17, 1988, unless otherwise noted.
32 CFR 375.1 Reissuance and purpose.
This part:
(a) Revises 32 CFR part 375 and establishes, pursuant to the
authority vested in the Secretary of Defense under 10 U.S.C. 136, one of
the positions of Assistant Secretary of Defense as the Assistant
Secretary of Defense (Public Affairs) (ASD(PA)), with responsibilities,
functions, and authorities as prescribed herein.
(b) Disestablishes the Defense Information Services Activity (DISA)
and consolidates its functions into the Office of the Assistant
Secretary of Defense (Public Affairs) (OSDA(PA)).
32 CFR 375.2 Definition.
DoD Components. The Office of the Secretary of Defense (OSD), the
Military Departments, the Organization of the Joint Chiefs of Staff
(OJCS), the Unified and Specified Commands, the Office of the Inspector
General of the Department of Defense (OIG, DoD), the Defense Agencies,
and the DoD Field Activities.
32 CFR 375.3 Responsibilities.
The Assistant Secretary of Defense (Public Affairs) ASD(PA)) shall:
(a) Serve as principal staff advisor and assistant to the Secretary
of Defense for DoD public information, internal information, the Freedom
of Information act, mandatory declassification review and clearance of
DoD information for public release, community relations, information
training, and audiovisual matters.
(b) Ensure a free flow of news and information to the media,
appropriate forums, the general public, and to the internal audiences of
the Armed Forces, limited only by national security constraints as
authorized by E.O. 12356 and statutory mandates.
(c) Act as the releasing agency for DoD information and audiovisual
materials to news media representatives. Evaluate news media requests
for DoD support and cooperation and determine appropriate level of DoD
participation.
32 CFR 375.4 Functions.
The ASD(PA) shall:
(a) For each of the areas of responsibility cited in 375.3.
(1) Develop policies, plans, and programs in support of DoD
objectives and operations.
(2) Monitor evaluate, and develop systems, standards, and procedures
for the administration and management of approved policies, plans, and
programs.
(3) Issue policy guidance to DoD Components.
(4) As required, participate with the Comptroller of the Department
of Defense in planning, programming, and budgeting activities.
(5) Promote coordination, cooperation, and mutual understanding among
DoD Components and with other Federal, State, and local agencies and the
civilian community.
(6) Serve on boards, committees, and other groups, and represent the
Secretary of Defense outside of the Department of Defense.
(b) Conduct security reviews, consistent with E.O. 12356 and DoD
Directives 5230.9 /1/ and 5400.4 /2/ , of all material prepared for
public release and publication originated by the Department of Defense,
including testimony before congressional committees, or by its
contractors, DoD employees as individuals, and material submitted by
sources outside the Department of Defense for such review.
(c) Review for conflict with established DoD and national security
policies or programs, official speeches, news releases, photographs,
films, and other information originated within the Department of Defense
for public release, or similar material submitted for review by other
executive agencies of the U.S. Government.
(d) Oversee the provision of news analysis and news clipping services
for the OSD, OJCS, and the Military Departments' headquarters.
(e) As required, prepare speeches, public statements, congressional
testimony, articles for publication, and other materials for public
release by selected DoD and White House officials.
(f) Serve as official point of contact for public and media
appearances by DoD officials, and conduct advanced planning and
coordination, as required, with private, public, and media organizations
for such events.
(g) Receive, analyze, and reply to inquiries regarding DoD policies,
programs, or activities that are received from the general public either
directly or from other Government Agencies. Prepare and provide to the
referring office replies to inquiries from the general public that are
forwarded from the Congress and the White House.
(h) Evaluate and approve:
(1) Requests for DoD cooperation in programs involving relations with
the public consistent with 32 CFR parts 237 and 238.
(2) Requests by news media representatives or other non-DoD personnel
for travel in military carriers for public affairs purposes.
(i) Establish policy for the Department of Defense Freedom of
Information Act Program consistent with 5 U.S.C. 552 and 32 CFR part
285.
(j) Direct and administer the Freedom of Information Act Program
consistent with 32 CFR part 285 and DoD Instruction 5400.10 /3/ and the
access portion of the DoD Privacy Act consistent with DoD Directive
5400.11 for the OSD, OJCS, and other DoD Components as may be assigned.
(k) Direct and administer the Mandatory Declassification Review
Program consistent with E.O. 12356 and DoD Directive 5200.1 /4/ for the
OSD, OJCS, and other DoD Components as may be assigned.
(l) Exercise direction, authority, and control over the American
Forces Information Service (AFIS) in accordance with 32 CFR part 372.
The policy and program responsibilities of AFIS include the following:
(1) Management of the DoD Internal Information Program.
(2) Armed Forces Radio and Television Service (AFRTS), consistent
with 32 CFR part 372a.
(3) DoD visual information and audiovisual activities, and joint
visual information services, consistent with DoD Directives 5040.2 /5/
and 5040.3. /6/
(4) DoD newspapers, including European and Pacific Stars and Stripes,
and civilian enterprise publications, consistent with 32 CFR part 297.
(5) DoD periodicals, consistent with 32 CFR part 248.
(6) American Forces Press and Publications Service (AFPPS).
(7) DoD information training, to include providing policy guidance
regarding the Defense Information School, consistent with DoD Directive
5160.48. /7/
(m) Provide DoD assistance to non-Government, entertainment-oriented
motion picture, television, and video productions consistent with DoD
Instruction 5410.16. /8/
(n) Evaluate and coordinate the DoD response to requests for speakers
received by the Department of Defense and, as required, assist in
scheduling, programming, and drafting speeches for the participation of
qualified personnel.
(o) Perform such other functions as the Secretary of Defense may
assign.
/1/ Copies may be obtained, if needed, from the U.S. Naval
Publications and Forms Center, Attn: Code 1062, 5801 Tabor Avenue,
Philadelphia, PA 19120
/2/ See footnote 1 to 375.4(b)
/3/ See footnote 1 to 375.4(b).
/4/ See footnote 1 to 375.4(b).
/5/ See footnote 1 to 375.4(b).
/6/ See footnote 1 to 375.4(b).
/7/ See footnote 1 to 375.4(b).
/8/ See footnote 1 to 375.4(b).
32 CFR 375.5 Relationships.
(a) In the performance of assigned duties, the ASD(PA) shall:
(1) Coordinate and exchange information with DoD Components having
collateral or related functions.
(2) Use existing facilities and services of the Department of Defense
and other Federal Agencies to avoid duplication and achieve maximum
efficiency and economy.
(3) Maintain liaison with and provide assistance to the general
public, representatives of the news media, and private organizations
seeking information relating to the activities of the Department of
Defense.
(b) Heads of DoD Components shall coordinate with the ASD(PA) on all
matters related to the functions cited in 375.4.
32 CFR 375.6 Authorities.
The ASD(PA) is hereby delegated authority to:
(a) Issue DoD Instructions, publications, and one-time directive-type
memoranda, consistent with DoD 5025.1-M, which carry out policies
approved by the Secretary of Defense in assigned fields of
responsibility. Instructions to the Military Departments shall be
issued through the Secretaries of those Departments, or their designees.
Instructions to Unified and Specified Commands regarding public affairs
matters shall be issued directly to the Commanders of the Unified and
Specified Commands. Instructions that have operational implications
shall be coordinated with the Chairman, Joint Chiefs of Staff (CJCS),
consistent with DoD Directive 5105.35. /9/
(b) Obtain reports, information, advice, and assistance, consistent
with the policies and criteria of DoD Directive 7750.5, /10/ as
necessary.
(c) Communicate directly with DoD Components. The channel of
communications with the Unified and Specified Commands regarding public
affairs matters shall be between the ASD(PA) and the Commanders of the
Unified and Specified Commands. Communications that have operational
implications shall be coordinated with the CJCS consistent with DoD
Directive 5105.35.
(d) Communicate with other Government Agencies, representatives of
the legislative branch, and members of the public.
(e) Establish arrangements for DoD participation in those non-DoD
Government programs for which the ASD(PA) has been assigned primary
staff cognizance.
(f) Act as the sole agent at the Seat of Government for the release
of official DoD information for dissemination through any form of public
information media.
(g) Establish accreditation criteria and serve as the approving and
issuing authority for credentials for news gathering media
representatives traveling in connection with coverage of official DoD
activities.
(h) Approve military participation in public exhibitions,
demonstrations, and ceremonies of national or international
significance.
(i) In the absence of a known DoD originator of classified
information, declassify official information submitted for security
review, mandatory declassification review, and in response to Freedom of
Information Act actions.
/9/ See footnote 1 to 375.4(b).
/10/ See footnote 1 to 375.4(b).
32 CFR 375.7 Effective date.
This part is effective August 4, 1988.
32 CFR 375.7 Pt. 375, App. A
32 CFR 375.7 Appendix A to Part 375 -- Principles of Information
It is the policy of the Department of Defense to make available
timely and accurate information so that the public, Congress, and the
news media may assess and understand the facts about national security
and defense strategy. Requests for information from organizations and
private citizens will be answered in a timely manner. In carrying out
this policy, the following principles of information will apply:
1. Information will be made fully and readily available, consistent
with statutory requirements, unless its release is precluded by current
and valid security classification. The provisions of the Freedom of
Information Act will be supported in both letter and spirit.
2. A free flow of general and military information will be made
available, without censorship or propaganda, to the men and women of the
Armed Forces and their dependents.
3. Information will not be classified or otherwise withheld to
protect the government from criticism or embarrassment.
4. Information will be withheld only when disclosure would adversely
affect national security or threaten the safety or privacy of the men
and women of the Armed Forces.
5. The Department's obligation to provide the public with information
on its major programs may require detailed public affairs planning and
coordination within the Department and with other government agencies.
The sole purpose of such activity is to expedite the flow of information
to the public: propaganda has no place in Department of Defense public
affairs programs.
(55 FR 11368, Mar. 28, 1990)
32 CFR 375.7 PART 376 -- DEPARTMENT OF DEFENSE SUPPORT ACTIVITIES
(DSAs)
Sec.
376.1 Purpose.
376.2 Applicability.
376.3 Definitions.
376.4 Policy.
376.5 Responsibilities.
Appendix A to Part 376 -- List of Department of Defense Support
Activities (DSAs)
Authority: 10 U.S.C. 131.
Source: 56 FR 65421, Dec. 17, 1991, unless otherwise noted.
32 CFR 376.1 Purpose.
Under the authority vested in the Secretary of Defense by Title 10,
United States Code, this part:
(a) Establishes DSAs as an organizational category within the
Department.
(b) Prescribes policy and assigns responsibilities under which DSAs
shall operate.
32 CFR 376.2 Applicability.
This part applies to the Office of the Secretary of Defense (OSD),
the Military Departments, the Chairman of the Joint Chiefs of Staff and
the Joint Staff, the Unified and Specified Commands, the Inspector
General of the Department of Defense, the Defense Agencies, and the DoD
Field Activities (hereafter referred to collectively as ''the DoD
Components'').
32 CFR 376.3 Definitions.
(a) Department of Defense Support Activity (DSA). An organizational
entity of the Department of Defense whose primary mission is to perform
technical and/or analytical support functions for the OSD. A DSA must
satisfy all of the following criteria:
(1) Function under the direction, authority, and control of an OSD
Principal Staff Assistant.
(2) Perform technical and/or analytical support functions in specific
areas of interest -- as distinct from the normal OSD functions of
developing policy, managing resources, and evaluating and overseeing
programs.
(3) Have a primary organizational mission to perform assigned
functions for a designated OSD Principal Staff Assistant(s) -- as
distinct from organizations whose primary mission is to provide support
for all or several DoD Components.
(4) Be organizationally located outside the OSD and within another
DoD Component for appropriate organizational, management, or efficiency
reasons.
(5) Receive manpower, operational funding, and other administrative
support from the DoD Component in which the DSA is located.
(b) OSD Principal Staff Assistant(s). The Under Secretaries of
Defense, the Director of Defense Research and Engineering, the Assistant
Secretaries of Defense, the General Counsel of the Department of
Defense, the Comptroller of the Department of Defense, the Assistants to
the Secretary of Defense, and the OSD Directors or equivalents who
report directly to the Secretary or Deputy Secretary of Defense.
32 CFR 376.4 Policy.
A DSA shall be established in accordance with this part when it is
the most efficient and effective organizational alternative for
accomplishing essential technical and/or analytical support functions
for an OSD Principal Staff Assistant, and shall be organized and staffed
in a manner that permits the effective accomplishment of assigned
responsibilities with a minimum number of personnel. To provide a
framework for implementing this policy, the Director of Administration
and Management shall maintain:
(a) A DoD-wide definition and criteria for DSAs.
(b) An approved list of DSAs.
(c) A procedure for establishing, disestablishing, and modifying the
organization of a DSA(s).
(d) A common method of accounting for DSA personnel, and for
separately and visibly describing DSA support funding and costs within
the DoD budget.
32 CFR 376.5 Responsibilities.
(a) The Director of Administration and Management, Office of the
Secretary of Defense, shall:
(1) Be the DoD approval authority, with concurrence by the Assistant
Secretary of Defense (Force Management and Personnel) (ASD(FM&P)) and
the Comptroller of the Department of Defense (C, DoD), for requests from
OSD Principal Staff Assistants to establish or disestablish a DSA(s), or
to change the mission and functions of an existing DSA. Approval will
be subject to funding and manpower availability, along with other
relevant factors.
(2) Be the DoD approval authority for requests from an OSD Principal
Staff Assistant to increase the overall funding level for DSA(s) under
that official's sponsorship. Increases that would add to the overall
funding level of the separate DSA budget line in the O&M Defense
Agencies Appropriation are subject to fund availability, and shall be
addressed through the normal budget process.
(3) Maintain, monitor, and revise, as necessary, the official list of
DSAs in appendix A to this part.
(4) Conduct periodic reviews to evaluate the continuing requirement
for existing DSAs, and to ensure that the DoD components are accounting
for DSAs in accordance with this part.
(b) The Assistant Secretary of Defense (Force Management and
Personnel) shall review DSA manpower authorizations and issue guidance
to ensure compliance with manpower levels established by the Secretary
of Defense or by law.
(c) The Comptroller of the Department of Defense shall:
(1) Establish a separate DSA budget activity in the O&M Defense
Agencies Appropriation.
(2) Review DSA supporting resource data contained in requests from
OSD Principal Staff Assistants to establish a DSA(s), and in subsequent
DSA budget submissions.
(3) Ensure that all funds required to support a DSA are separately
and visibly described and justified in the budget of the DoD Component
designated to provide administrative support to that DSA.
(d) The OSD Principal Staff Assistants shall:
(1) Forward requests for establishing or disestablishing a DSA(s), or
for modifying the organization of an existing DSA (if changes to
currently approved manpower for funding levels are required), to the
Director, Administration and Management (DA&M), OSD for approval.
Recommendations for establishing a DSA shall include: Assignment of DSA
responsibilities, functions, relationships, authorities; identification
of funding support and other resources to be allocated; appropriate
organizational, management, or efficiency justification for establishing
the DSA outside the OSD organizational structure; and designation of
the DoD Component that will provide manpower, operational funding, and
other administrative support to the DSA.
(2) When approved, establish the DSA in accordance with this part,
and ensure that the DSA is efficiently organized and staffed.
(3) Exercise authority, direction, and control over the DSA(s)
assigned to their respective offices.
(4) Ensure appropriate internal management controls are established
for DSAs assigned to their office, in accordance with DoD Directive
5010.38 /1/ .
(5) Ensure all personnel assigned to a DSA under their authority are
accounted for as OSD Management Headquarters Support personnel, in
accordance with DoD Directive 5100.73 /2/ .
(6) Be the approval authority for reallocations between personnel and
non-personnel funds within a single DSA under their authority, and for
reprogramming funds between DSAs under their authority, as long as the
overall funding level for those DSAs is not exceeded and no other DoD
reprogramming restrictions are in effect. Requests for increases that
would add to the overall funding level of the DSAs under thier authority
shall be referred to the DA&M, OSD for approval, consistent with
paragraph (a)(2) of this section.
(7) As required, develop a memorandum of understanding (MOU) with the
DoD Component designated to provide administrative support to a DSA(s)
assigned to their office. MOUs shall comply with this part and, as a
minimum, include supervisory, policymaking, and operating instructions,
and establish required administrative controls.
(e) The Heads of the DoD Components designated to provide support to
a DSA shall:
(1) Provide manpower and operational funding to the assigned DSA(s).
(2) Provide full administrative support to the assigned DSA(s) in
accordance with this part and any implementing MOU that may be completed
with the sponsoring OSD Principal Staff Assistant. In the case of the
Defense Logistics Agency, administrative support to the assigned DSAs
shall be provided on a reimbursable basis; the necessary additional
funding to accommodate this requirement will be included in the
appropriate DSA budget.
(3) Account for all personnel assigned to a DSA as OSD Management
Headquarters Support personnel, maintain DSA manpower strength data by
category of personnel (military and civilian), and report the data,
under DoD Directive 5100.73, as a separate ''OSD DSA'' item in the
Future Years Defense Program using Defense Planning and Programming
Category program element code ending in ''98.''
(4) Submit a DoD Management Headquarters Exhibit (PB-22) and a
Reconciliation of Increases and Decreases Exhibit (OP-5) which
specifically identify the assigned DSA(s) to the C, DoD, in accordance
with DoD 7110.1-M /3/ .
(5) Ensure all DSA manpower requirements and budget documentation are
appropriately coordinated with and approved by the sponsoring OSD
Principal Staff Assistant, prior to submission to cognizant OSD
officials.
(6) Ensure all funds required to support the DSA are separately and
visibly described and justified in the Component budget.
/1/ Copies may be obtained, at cost, from the National Technical
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
/2/ See footnote 1 to 367.5(d)(4).
/3/ Copies may be obtained, by written requests, to the Office of the
Assistant Secretary of Defense (Public Affairs), Room 2C757, Pentagon,
Washington, DC 20301.
32 CFR 376.5 Pt. 367, App. A
32 CFR 376.5 Appendix A to Part 367 -- List of Department of Defense
Support Activities (DSAs)
32 CFR 376.5 PART 378 -- ASSISTANT TO THE SECRETARY OF DEFENSE
(INTELLIGENCE OVERSIGHT)
Sec.
378.1 Purpose.
378.2 Applicability.
378.3 Definitions.
378.4 Responsibilities and functions.
378.5 Authorities.
378.6 Administration.
Authority: 10 U.S.C. 133(d).
Source: 48 FR 19166, Apr. 28, 1983, unless otherwise noted.
32 CFR 378.1 Purpose.
This part replaces DoD Directive 5100.82, which established the
position of Inspector General for Intelligence in the Office of the
Secretary of Defense under the authority of Title 10, U.S.C. 133(d).
That official hereafter shall carry the title of Assistant to the
Secretary of Defense (Intelligence Oversight) (ATSD(IO)), with
responsibilities, functions, and authorities as provided herein.
32 CFR 378.2 Applicability.
This part applies to the Office of the Secretary of Defense, the
Military Departments, the Organization of the Joint Chiefs of Staff, the
Unified and Specified Commands, and the Defense Agencies (hereafter
referred to as ''DoD Components'').
32 CFR 378.3 Definitions.
Terms applicable to this part are defined in E.O. 12333, DoD
Directive 5240.1, and DoD 5240.1-R.
32 CFR 378.4 Responsibilities and functions.
Under the direction, authority, and control of the Secretary of
Defense, the ATSD(IO) shall be responsible for the independent oversight
of all intelligence activities in the Department of Defense. In this
capacity, the ATSD(IO) shall ensure that all intelligence activities are
conducted in compliance with federal law and other laws as appropriate;
Executive Orders and Presidential directives; and DoD policy
directives. The term ''propriety'' hereinafter relates to the standards
for intelligence activities promulgated in the documents cited above.
In the execution of this responsibility, the ATSD(IO) shall perform the
following functions:
(a) Review, in consultation with the General Counsel, DoD, all
allegations that raise questions of legality or propriety of
intelligence activities in the Department of Defense.
(b) Conduct investigations of intelligence activities that raise
questions of legality or propriety.
(c) Conduct vigorous and independent inspections of DoD Components
that engage in intelligence activities for the purpose of verifying that
personnel are familiar and in compliance with E.O. 12333 and its DoD
implementing documents.
(d) Monitor investigations and inspections by DoD Components related
to intelligence activities, evaluate the findings, and, if appropriate,
submit recommendations for corrective action to the Deputy Secretary of
Defense.
(e) In consultation with the General Counsel, DoD, report at least
quarterly to the Deputy Secretary of Defense and the President's
Intelligence Oversight Board, established under E.O. 12334:
(1) Any significant oversight activities undertaken; and
(2) Any DoD intelligence activities of questionable legality or
propriety, the investigative action thereon, an evaluation of completed
investigations, and the action taken on completed investigations.
(f) Participate as a member of the Defense Counterintelligence Board
(DoD Directive 5240.2).
(g) Coordinate, as appropriate, with the DoD Inspector General (DoD
IG) on matters relating to the DoD IG's area of responsibility in
accordance with Pub. L. 95-452.
(h) Perform such other functions as the Secretary of Defense may
assign.
32 CFR 378.5 Authorities.
In the exercise and performance of assigned responsibilities and
functions described in 378.4 of this part, the ATSD(IO), or designee,
is hereby delegated authority to:
(a) Deal directly with the head of the element inspected or
investigated, conduct interviews, take depositions, and examine records,
as required.
(b) Have complete and unrestricted access to any and all available
intelligence-related information, regardless of classification or
compartmentation, from all DoD Components and personnel, as required.
This includes specifically the authority (1) to require an Inspector
General or other cognizant investigative official of a DoD Component to
report allegations of improprieties or illegalities of intelligence
activities by or within a DoD Component and (2) to obtain information on
the status, proceedings, and findings or to obtain copies of reports of
investigations or inspections of such allegations.
(c) Obtain such temporary assistance as may be required from other
DoD Components, including personnel, facilities, and other services, for
the conduct of inspections or investigations. Requests for personnel
augmentation shall be made in accordance with established procedures.
(d) Communicate directly with the Secretaries of the Military
Departments, the Chairman of the Joint Chiefs of Staff, the Directors of
the Defense Agencies, the Inspectors General, or other investigative
officials having cognizance over DoD Components, and the Commanders of
the Unified and Specified Commands, after notifying the Joint Chiefs of
Staff.
(e) Communicate directly with the President's Intelligence Oversight
Board, the Director of Central Intelligence, and all other government
agencies participating in interdepartmental programs for which the
ATSD(IO) has been assigned primary cognizance.
32 CFR 378.6 Administration.
The ATSD(IO) shall report directly to the Deputy Secretary of
Defense.
32 CFR 378.6 PART 379 -- ASSISTANT SECRETARY OF DEFENSE (RESERVE
AFFAIRS)
Sec.
379.1 Purpose.
379.2 Definitions.
379.3 Responsibilities.
379.4 Functions.
379.5 Relationships.
379.6 Authorities.
Authority: 10 U.S.C. 136.
Source: 49 FR 9567, Mar. 14, 1984, unless otherwise noted.
32 CFR 379.1 Purpose.
This part:
(a) Cancels DoD Directive 5120.40.
(b) Implements section 136(b)(4) of title 10 U.S. Code, which
establishes the position of Assistant Secretary of Defense (Reserve
Affairs) (ASD(RA)).
(c) Assigns responsibilities, functions, relationships, and
authorities, as prescribed herein, to the ASD(RA), pursuant to the
authority vested in the Secretary of Defense under title 10 U.S. Code.
32 CFR 379.2 Definitions.
(a) DoD Components. The Office of the Secretary of Defense (OSD);
the Military Departments; the Organization of the Joint Chiefs of Staff
(OJCS); the Unified and Specified Commands; the Office of the
Inspector General, Department of Defense; and the Defense Agencies.
(b) Reserve Components. Refers collectively to the Army National
Guard, Army Reserve, Naval Reserve, Marine Corps Reserve, Air National
Guard, Air Force Reserve, and Coast Guard Reserve. The term ''National
Guard and Reserve'' is synonymous with the term ''reserve components.''
(c) Total Force. As used in this Directive, refers to the totality
of organiations, units, and personnel (military and civilian) in both
active and reserve components of the Department of Defense.
32 CFR 379.3 Responsibilities.
The Assistant Secretary of Defense (Reserve Affairs) shall serve as
the Pricipal Staff Assistant and advisor to the Secretary of Defense
with specific responsibility for exercising overall supervision of
reserve component matters in the Department of Defense. In this
capacity, the ASD(RA) shall:
(a) Analyze and develop policies, provide advice and make
recommendations to the Secretary of Defense, and issue guidance to DoD
Components on matters pertaining to the reserve components.
(b) Develop systems and standards for the administration and
management of approved DoD plans and programs.
(c) Promulgate plans, programs, actions, and taskings pertaining to
the reserve components and consistent with national security objectives
and DoD policies to promote the effective integration of reserve
component capabilities into a choesive Total Force of both active and
reserve component units and personnel.
(d) Review and evaluate programs of DoD Components that impact on the
reserve components; conduct studies and analyses; monitor the
activities of reserve component organizations, training facilities, and
associations; and undertake other management oversight activities as
may be required to ensure that policies, plans, programs, and actions
pertaining to the reserve components:
(1) Adhere to approved DoD policies and standards.
(2) Are compatible with and support Total Force objectives and
requirements
(3) Enhance the readiness and capabilities of reserve component units
and personnel.
(4) Promote the intergration of reserve components with active duty
forces.
(5) Make the most effective use of reserve components within the
Total Force.
(e) Participate in planning, programing, and budgeting activities
related to ASD(RA) functions and responsibilites, including the review,
analysis, and development of recommendations concerning program and
budget submissions and the Five-Year Defense Program.
(f) Promote, with respect to the reserve components, coordination,
cooperation, and mutual understanding within the Department of Defense
and between the Department of Defense and other federal agencies, state
and local governments, the civilian community at large, and the families
and employers of reserve component personnel.
(g) Serve on boards, committees, and other groups to ensure that
reserve component issues and impacts are represented and represent the
Secretary of Defense on reserve affairs matters outside the Department
of Defense.
(h) Develop, coordinate, monitor, and review legislation, in
coordination with the Assistant Secretary of Defense (Legislative
Affairs).
(i) Execute such other related responsibilities as the Secretary of
Defense may prescribe.
32 CFR 379.4 Functions.
The ASD(RA) shall carry out the responsibilities described in 379.3,
above, for the following functional areas for the reserve components:
(a) Manpower.
(b) Personnel and compensation.
(c) Research, studies, and evaluation.
(d) Operations, training, and force structure.
(e) Mobilization, demobilization, and reconstitution.
(f) Force mix.
(g) Weapons systems, equipment, and materiel.
(h) Construction, installations, and facilities.
(i) Readiness and sustainability.
32 CFR 379.5 Relationships.
(a) In the performance of assigned functions and responsibilities,
the ASD(RA) shall:
(1) Coordinate and exchange information with officials of DOD
Components having functional responsibilities for Total Force policies
and programs and with other officials in the Department of Defense
exercising collateral or related functions.
(2) Provide administrative staff support to the Reserve Forces Policy
Board (RFPB) and coordinate issues and positions with the RFPB (Pub. L.
90-168).
(3) Exercise direction, authority, and control over the National
Committee for Employer Support of the Guard and Reserve.
(4) Use existing facilities and services of the Department of Defense
or other federal agencies, whenever practicable, to avoid duplication
and to achieve maximum efficiency and economy.
(b) Other OSD officials and heads of DOD Components shall coordinate
with the ASD(RA) on all matters related to the functions cited in
379.4, above, or that otherwise impact on the reserve components.
32 CFR 379.6 Authorities.
The ASD(RA) is hereby delegated authority to:
(a) Issue DOD Instructions, DOD publications, and one-time
directive-type memoranda, consistent with DOD 5025.1-M, that implement
policies approved by the Secretary of Defense in the functions assigned
to the ASD(RA). Instructions to the Military Departments shall be
issued through the Secretaries of those Departments, or their designees.
Instructions to the Unified and Specified Commands shall be issued
through the JCS.
(b) Act for the Secretary of Defense, in accordance with section
502(b) of Pub. L. 97-86 and future authorization acts that contain this
provision, to increase the authorized end strength for reserve personnel
on active duty in support of the reserve program by up to 2 percent of
the prescribed end strength, or such other percentage as shall be
authorized by statute, when the increase is in the national interest.
(c) Obtain reports, information, advice, and assistance, consistent
with DOD Directive 5000.19, as necessary, in carrying out assigned
functions and maintain requisite data base, management information, and
decision support systems.
(d) Communicate directly with the heads of DOD Components.
Communications to Commanders of the Unified and Specified Commands shall
be coordinated with the JCS.
(e) Establish arrangements for DOD participation in nondefense
governmental programs for which the ASD(RA) is assigned primary DOD
cognizance.
(f) Communicate with other government agencies, representatives of
the legislative branch, and members of the public, as appropriate, in
carrying out assigned functions and responsibilities.
(g) Establish and maintain liaison with ministry of defense officials
dealing with reserve component matters in allied nations.
32 CFR 379.6 PART 380 -- DIRECTOR OF OPERATIONAL TEST AND EVALUATION
Sec.
380.1 Purpose.
380.2 Definitions.
380.3 Policy.
380.4 Responsibilities.
380.5 Functions.
380.6 Relationships.
380.7 Authorities.
Authority: 10 U.S.C. 136.
Source: 49 FR 17937, Apr. 26, 1984, unless otherwise noted.
32 CFR 380.1 Purpose.
This part: (a) Implements section 136a of title 10 U.S.C. which
establishes the position of Director of Operational Test and Evaluation
(Director, OT&E).
(b) Assigns responsibilities, functions, relationships, and
authorities, as prescribed herein, to the Director, OT&E, pursuant to
the authority vested in the Secretary of Defense under title 10
U.S.Code.
32 CFR 380.2 Definitions.
(a) DoD Components. The Office of the Secretary of Defense (OSD);
the Military Departments; the Organization of the Joint Chiefs of Staff
(OJCS); the Unified and Specified Commands; the Office of the
Inspector General, Department of Defense; and the Defense Agencies.
The term ''Military Services'' as used herein, refers to the Army, the
Navy, the Air Force, and the Marine Corps.
(b) Independent Test Agency. The Army Operational Test and
Evaluation Agency, the Navy Operational Test and Evaluation Force, the
Air Force Operational Test and Evaluation Command, and the Marine Corps
Operational Test and Evaluation Agency.
(c) Low Rate Initial Production (LRIP). The production of a system
in limited quantity to be used in OT&E for verification of production
engineering and design maturity and to establish a production base.
(d) Major Defense Acquisition Program. As specified in section 136a
of title 10 U.S.Code.
(1) A DoD acquisition program that is not a highly sensitive
classified program (as determined by the Secretary of Defense) and:
(i) That is designated by the Secretary of Defense as a major defense
acquisition program; or
(ii) That is estimated by the Secretary of Defense to require an
eventual total expenditure for research, development, test, and
evaluation of more than 200 million dollars (based on fiscal year 1980
constant dollars) or an eventual total expenditure for procurement of
more than 1 billion dollars (based on fiscal year 1980 constant
dollars).
(2) A DoD acquisition program that is so designated by the Director,
OT&E, for the purpose of carrying out the responsibilities, functions,
and authorities of this Directive.
(e) Operational Test and Evaluation. The field test, under realistic
combat conditions, of any item of (or key component of) weapons,
equipment, or munitions for the purpose of determining the effectiveness
and suitability of the weapons, equipment, or munitions for use in
combat by typical military users; and the evaluation of the results of
such test.
32 CFR 380.3 Policy.
(a) Within the Department of Defense it is recognized that
operational testing is the continuum of realistic, operational field
tests conducted by a Military Service independent test agency.
Operational testing begins during the development period before a final
decision to proceed beyond low rate initial production. this continuum
of tests will employ increasing operational realism as engineering
design nears its final form to provide an independent measure of
development progress and of the ultimate operational effectiveness and
suitability of weapon systems, equipment, or munitions, or their
components. Operational testing of production (or
production-representative) articles is intended to confirm that the
items actually tested are effective and suitable for combat.
(b) A follow-on phase or phases of operational testing on production
systems, equipment, or munitions, or their components are normally
conducted after the decision is made to proceed beyond low rate initial
production to assess the operational effectiveness and suitability of
any changes made in the systems, equipment, or munitions, or their
components.
32 CFR 380.4 Responsibilities.
The Director of Operational Test and Evaluation shall serve as the
Principal Staff Assistant and advisor to the Secretary of Defense on
OT&E in the Department of Defense and the principal OT&E official within
the senior management of the Department of Defense. In this capacity,
the Director, OT&E, shall:
(a) Prescribe policies and procedures for the conduct of OT&E within
the Department of Defense.
(b) Provide advice and make recommendations to the Secretary of
Defense, and issue guidance to and consult with the heads of the DoD
Components with respect to OT&E in the Department of Defense in general,
and with respect to specific OT&E to be conducted in connection with a
major defense acquisition program.
(c) Designate selected special interest weapons, equipment, or
munitions as major defense acquisition programs, as the Director, OT&E
considers appropriate to carry out section 136a of title 10 U.S.C. and
the responsibilities functions, and authorities assigned to the
Director, OT&E under this part. Such a designation applies exclusively
to the implementation of section 136a of title 10 U.S.C and this part,
and does not extend to other purposes for which the term may be used
outside of this context.
(d) Develop systems and standards for the administration and
management of approved OT&E plans for major defense acquisition
programs.
(e) Monitor and review all OT&E in the Department of Defense to
ensure adherence to approved policies and standards.
(f) Coordinate operational testing conducted jointly by more than one
DoD Component.
(g) Coordinate Joint Operational Test and Evaluation (JOT&E) programs
to obtain information pertinent to operational doctrine, tactics, and
procedures.
(h) Initiate plans, programs, actions, and taskings to ensure that
OT&E for major defense acquisition programs is designed to evaluate the
operational effectiveness and suitability of U.S. military weapon
systems.
(i) Review and make recommendations to the Secretary of Defense on
all budgetary and financial matters relating to OT&E, including
operational test facilities and equipment.
(j) Review and report to the Secretary of Defense on the adequacy of
operational test planning, priorities, support resources, execution,
evaluation, and reporting for major defense acquisition programs while
avoiding unnecessary duplication.
(k) Promote coordination, cooperation, and mutual understanding
within the Department of Defense and between the Department of Defense
and other federal agencies, state, local and foreign governments, and
the civilian community with regard to OT&E matters.
(l) Serve on boards, committees, and other groups pertaining to
assigned OT&E, and represent the Secretary of Defense on OT&E matters
outside the Department of Defense.
(m) Execute such other related responsibilities as the Secretary of
Defense may prescribe.
32 CFR 380.5 Functions.
The Director, OT&E, shall carry out the responsibilities described in
380.4, above, for all aspects of OT&E, to include the following
functions:
(a) OT&E programs of the DoD Components, to include their operational
test facilities and resources and the coordination of Military Service
OT&E activities.
(b) JOT&E programs and Joint Military Service operational testing.
(c) Analysis of OT&E results on all major defense acquisition
programs.
(d) Review of budget submissions to determine the adequacy of OT&E
funding.
(e) Approval of OT&E sections of the DoD Test and Evaluation Master
Plan (TEMP) for major defense acquisition programs.
(f) Review of new major system requirements documents, system concept
papers, decision coordinating papers and, if appropriate, integrated
program summaries for OT&E implications.
(g) Enhancement of operational test realism.
(h) Development and administration of an OT&E data base.
32 CFR 380.6 Relationships.
(a) In the performance of assigned functions, the Director, OT&E,
shall:
(1) Report directly to the Secretary and Deputy Secretary of Defense
without intervening review or approval.
(2) Provide guidance to and consult with the Secretary and Deputy
Secretary of Defense and the Secretaries of the Military Departments
with respect to OT&E in the Department of Defense in general and with
respect to specific OT&E activities to be conducted in connection with
major defense acquisition programs.
(3) Cooordinate and exchange information with officials of DoD
Components exercising collateral or related functions. In particular,
the Director, OT&E, shall consult closely with, but be independent of,
the Under Secretary of Defense for Research and Engineering.
(4) Use existing facilities and services of the Department of Defense
or other federal agencies, and allied countries whenever practicable, to
avoid duplication and to achieve maximum realism.
(5) Serve as a permanent member of the Defense Systems Acquisition
Review Council and the Defense Resources Board for the purpose of
carrying out the principles and policies of DoD Directive 5000.1 and DoD
Instruction 5000.2 and DoD Directives System issuances pertaining to
test and evaluation activities.
(b) Other OSD officials and heads of DoD Components shall coordinate
on all OT&E matters as prescribed herein.
(c) The Secretaries of the Military Departments shall report promptly
to the Director, OT&E, the results of all OT&E conducted by the Military
Departments and on all studies conducted by the Military Departments in
connection with their OT&E activities.
32 CFR 380.7 Authorities.
The Director, OT&E, is hereby delegated authority to:
(a) Issue DoD Instructions, DoD publications, and one-time
directive-type memoranda, consistent with DoD Directive 5025.1-M that
implement policies approved by the Secretary of Defense in order to
carry out the functions assigned to the Director, OT&E. Instructions to
the Military Departments shall be issued through the Secretaries of
those Departments or their designees. Instructions to Unified and
Specified Commands shall be issued through the JCS.
(b) Obtain reports, information, advice, and assistance, consistent
with DoD Directive 5000.19 as necessary in carrying out assigned
functions. Have access to all records and data in the DoD (including
those of each DoD Component) that the Director, OT&E, considers
necessary to review in order to carry out assigned functions.
(c) Act as prior approval authority for OT&E section of the TEMPS and
for OT&E funding for each major defense acquisition program.
Operational testing of a major defense acquisition program may not be
conducted until the Director, OT&E, has approved in writing the adequacy
of the plans, including the adequacy of projected levels of funding and
resources for OT&E to be conducted in connection with that program.
(d) Require, as the Director, OT&E, determines necessary, that
observers designated by the Director, OT&E, be present during the
preparation for and the conduct of the test part of any OT&E conducted
by DoD Components.
(e) Monitor and review all OT&E conducted in the Department of
Defense and analyze the results of OT&E conducted for each major defense
acquisition program.
(1) The Director, OT&E, shall submit a report to the Secretary of
Defense and to the Committees on Armed Services and on Appropriations of
the Senate and House of Representatives that addresses specifically:
(i) The adequacy of the test and evaluation performed; and
(ii) Whether the results confirm the effectiveness and combat
suitability of the items or components actually tested.
(2) Copies of the report will be provided to appropriate DoD
officials and Components to facilitate the development of comments by
the Secretary of Defense.
(3) A final decision to proceed with a major defense acquisition
program beyond low rate initial production may not be made until the
report has been submitted to the Secretary of Defense and received by
the Armed Services and Appropriations Committees.
(f) Prepare an annual report for the Secretary of Defense and the
Congress by January 15 of each year summarizing the OT&E activities of
the Department of Defense during the preceding fiscal year.
(1) The report shall include such comments and recommendations as the
Director, OT&E, considers appropriate, including comments and
recommendations on resources and facilities available for OT&E and
levels of funding made available for OT&E activities.
(2) Copies of this report shall be provided to appropriate DoD
officials and Components to facilitate comments by the Secretary of
Defense, if desired.
(g) Communicate directly with the heads of DoD Components.
Communications to commanders of the Unified and Specified Commands shall
be coordinated with the JCS.
(h) Arrange for DoD participation in nondefense governmental programs
for which the Director, OT&E, is assigned primary DoD cognizance.
(i) Communicate with other government agencies, representatives of
the Legislative Branch, and members of the public, as appropriate, in
carrying out assigned functions.
32 CFR 380.7 PART 381 -- DEFENSE NUCLEAR AGENCY
Sec.
381.1 Purpose.
381.2 Mission.
381.3 Organization and management.
381.4 Responsibilities and functions.
381.5 Relationships.
381.6 Authorities.
381.7 Administration.
Appendix to Part 381 -- Delegations of Authority
Authority: 10 U.S.C. Chapter 8.
Source: 56 FR 6274, Feb. 15, 1991, unless otherwise noted.
32 CFR 381.1 Purpose.
This part updates the responsibilities, functions, relationships, and
authorities, as prescribed herein.
32 CFR 381.2 Mission.
(a) The Defense Nuclear Agency (DNA) shall provide support to the
Office of the Secretary of Defense (OSD); the Military Departments;
the Chairman, Joint Chiefs of Staff and Joint Staff; the Unified and
Specified Commands; the Defense Agencies; and the DoD Field Activities
(hereafter referred to collectively as ''DoD Components''); and other
Federal Agencies on matters concerning nuclear weapons, nuclear weapons
system acquisitions, nuclear weapons effects on weapons systems and
forces, and nuclear weapons safety and security.
(b) During wartime and international crises, in accordance with
national priorities and, as directed by the Director, Defense Research
and Engineering (DDR&E), the DNA shall redirect its resources to support
the Chairman, Joint Chiefs of Staff (CJCS) and the Commanders of the
Unified and Specified Commands in analyzing nuclear weapons planning and
action options, and reconstituting nuclear forces.
32 CFR 381.3 Organization and management.
The DNA is established as a separate agency of the Department of
Defense, and shall be under the direction, authority, and control of the
DDR&E. It shall consist of a Director and such subordinate
organizational elements as are established by the Director within the
resources authorized by the Secretary of Defense.
32 CFR 381.4 Responsibilities and functions.
The Director, DNA, shall:
(a) Organize, direct, and manage the DNA and all assigned resources.
(b) Maintain the national nuclear weapons stockpile data bases during
peace, crisis, and war. Maintain overall surveillance and provide
guidance, coordination, advice, or assistance concerning all nuclear
weapons in DoD custody including questions on production, composition,
allocation, deployment, movement, storage, security and safety,
maintenance, quality assurance and reliability assessment, report
procedures, and retirement.
(c) Manage the DoD nuclear weapons effects research and test program.
(d) Conduct, as directed by DDR&E, research, development, test, and
evaluation programs for on-site inspection technology related to arms
control treaty verification.
(e) Conduct research, through exploratory development and/or proof of
principle, in coordination with the Military Departments and other
appropriate DoD Components and Federal Agencies, to develop technologies
and techniques to improve the security, survivability, testing,
employment, and effectiveness of nuclear systems, and the nuclear
survivability of space, military, and communications systems.
(f) Provide advice and assistance on matters concerning nuclear
weapons, nuclear weapons systems, effects of nuclear weapons, the
technologies to determine the vulnerability and survivability of
military systems and installations, and related arms control matters to
DoD Components and Federal Agencies. Coordinate on appropriate Test and
Evaluation Master Plans (TEMPs) for systems that have nuclear
survivability requirements.
(g) Jointly manage the national nuclear test readiness program with
the Department of Energy (DoE) and perform associated technical,
operational, and safety planning. Maintain access to facilities
necessary to resume above-ground testing.
(h) Act as the central coordinating agency within the Department of
Defense on nuclear weapons stockpile data base management, nuclear
effects testing, and nuclear effects research within approved policies
and programs, and pertinent DoD-DoE agreements.
(i) Provide technical assistance and support to the Secretary of
Defense, the Military Departments, and the CJCS in developing nuclear
weapons system safety, surety, security, explosive ordnance disposal,
and use-control standards, requirements, and operating procedures.
Provide a member to joint DoD/DoE nuclear weapons system studies and
reviews. Coordinate on proposed nuclear weapons safety rules and
changes.
(j) Provide emergency response support and planning assistance to the
DoD Components and other Federal Agencies as follows:
(1) Develop policies and procedures to respond to a nuclear weapon
accident or improvised nuclear device (IND) incident. Conduct nuclear
weapon accident and IND incident command post and field exercizes.
(2) Establish and maintain joint committees to coordinate exercise
schedules and to ensure that actions are taken to correct identified
deficiencies.
(3) Establish and maintain a Joint Nuclear Accident Coordinating
Center (JNACC), in conjunction with DoE and a DNA Advisory Team, to
assist On-Scene Commanders and Defense Senior Representatives.
(4) Act as the central coordinating agency for the Department of
Defense on nuclear weapon accident and IND incident response.
(k) Maintain and provide nuclear weapons stockpile information to the
DoD Components and other Federal Agencies, as required.
(l) Conduct, for the CJCS, nuclear weapons technical inspections of
units having responsibilities for assembling, maintaining, or storing
nuclear weapon systems, their associated components, and ancilliary
equipment.
(m) Provide nuclear weapons quality assurance program oversight for
the Department of Defense.
(n) Provide logistics management support for nuclear weapons under
DoD control, including:
(1) Integrated materiel management functions for all specially
designed and quality controlled nuclear ordnance items and, as
appropriate, for Military Department-designed and quality controlled
nuclear ordnance items.
(2) Manage that portion of the Federal Cataloging Program pertaining
to nuclear ordnance items, including the maintenance of the central data
bank and the publication of Federal Supply Catalogs and Handbooks for
all nuclear ordnance items.
(3) Control the standardization of nuclear ordnance items in
coordination with the appropriate Military Department.
(4) Manage a technical logistics data and information program.
(5) Serve as Inventory Control Manager of stockpile support items,
and manage the DoD-DoE logistics supply interface.
(6) Manage the DoD-DoE loan account for nuclear materials.
(o) Assist the DDR&E and the Assistant to the Secretary of Defense
for Atomic Energy in representing the Department of Defense in its
relations with the DoE on all policy matters relating to the
administration and operation of the Joint Nuclear Weapons Publication
System. Coordinate with DoE on Nuclear Weapon Accident Directives.
(p) In support of the DoD Components, perform technical analyses,
studies, research, and development on:
(1) Technologies for treaty verification options, including
procurement, and associated impacts with regard to arms control and
nuclear test limitations.
(2) Technical and employment options for new nuclear weapons,
including the relationship of advanced conventional munitions to these
options.
(3) The effects of nuclear weapons on command, control, and
communications systems improvements that may be needed to ensure
reliable operation of forces.
(4) The effect of technology on nuclear force structure, operations,
and political-military constraints.
(5) Technologies that would enhance the security, survivability and
effectiveness of nuclear systems at both the strategic and theater
levels; and evaluation of tactics, doctrine, force postures,
operations, and training in order to better direct the DNA
nuclear-related programs.
(6) Techniques for assessing and evaluating alternate nuclear
operations and tactics.
(7) Broad military applications of atomic energy.
(q) Conduct joint programs involving, as appropriate, the Defense
Advanced Research Projects Agency (DARPA), other DoD Components, and
Allied Commands in matters regarding DNA-developed technologies. This
includes test, evaluation, and demonstration of appropriate
technologies.
(r) Disseminate technological information of joint interest relating
to nuclear technology, development, and weapons, through laboratory
liaison, technical reports, and nuclear weapons technical publications.
Assist in technology transfer and implementation of successful research
programs into the Military Departments and Allied Commands.
(s) Perform technical analyses, studies, and research on non-nuclear
matters of critical importance to the Department of Defense where DNA
has unique capabilities developed as part of its nuclear
responsibilities.
(t) Conduct research in the field of radiobiology and related
matters, essential to the operational and medical support of the DoD
Components, through the Armed Forces Radiobiology Research Institute
(AFRRI). The research shall be an integral part of the DoD medical and
life sciences research, development, test, and evaluation program.
(u) Operate the Joint Atomic Information Exchange Group (JAIEG) in
accordance with policy guidance furnished jointly by the Assistant to
the Secretary of Defense for Atomic Energy (ATSD(AE)) for the Department
of Defense and the Director for Military Applications for the DoE.
(v) Develop guidelines and criteria for the advice of the Defense
Acquisition Board in evaluating the adequacy of system nuclear
survivability.
(w) Be responsible for all matters relating to nuclear test programs
and records to include preservation of vital test data and records
acquired during past U.S. and other nuclear effects tests.
(x) Be responsible for the Nuclear Test Personnel Review.
(y) Maintain national-level oversight for the Site Folder Project and
establish an exercise program for validation of site folders.
(z) Maintain DoD-level oversight of DoD nuclear weapons effects
simulators.
(aa) Perform such other functions as may be assigned by the DDR&E.
32 CFR 381.5 Relationships.
(a) In performing assigned functions, the Director, DNA, shall:
(1) Subject to the direction, authority, and control of the DDR&E, be
responsible to the CJCS for operational matters as well as requirements
associated with the joint planning process. For these purposes, the
CJCS is authorized to communicate directly with the Director, DNA, and
may task the Director, DNA, to the extent authorized by the DDR&E.
(2) Maintain appropriate liaison with other DoD Components and other
Agencies of the Executive Branch for the exchange of information on
programs and activities in the field of assigned responsibilities.
(3) Make use of established facilities and services in the Department
of Defense or other governmental agencies, whenever practicable, to
achieve maximum efficiency and economy.
(4) Ensure that the Secretary of Defense, the Deputy Secretary of
Defense, the Secretaries of the Military Departments, the CJCS, and the
heads of other DoD Components are kept fully informed of DNA activities
with which they have substantive concern.
(5) Use data from nuclear tests performed by other countries, or
provided by the intelligence community, to obtain information in
designing U.S. nuclear forces and assisting the Unified and Specified
Commands in target planning.
(6) Coordinate with other officials of the Department of Defense, as
appropriate.
(b) The Secretaries of the Military Departments, CJCS, Commanders of
Unified and Specified Commands, and Heads of other DoD Components shall:
(1) Provide support, within their respective fields of
responsibilities, to the Director, DNA, as required, to carry out the
responsibilities and functions assigned to the DNA.
(2) Provide information, as necessary, to the Director, DNA, on all
programs and activities that include, or are related to, nuclear weapons
effects research, nuclear effects testing, or nuclear weapons accident
response as well as the safety, security, and survivability of nuclear
weapons systems and forces.
(3) Keep the Director, DNA, informed as to the substance of major
actions being coordinated with other DoD Components, the DoE and its
laboratories, and other Federal Agencies that relate to DNA functions.
(4) Provide the Director, DNA, with information regarding long-term
nuclear weapons development and requirements for nuclear weapons
research and testing. This specifically includes keeping the Director,
DNA, informed concerning systems response to nuclear weapons effects,
and the security, safety, and survivability of nuclear systems and
forces.
(c) The CJCS shall review and assess the adequacy of DNA efforts in
nuclear weapons testing and nuclear weapons effects research that are
related directly to systems employed in joint operations, and in support
required for the execution of operational plans of the Unified and
Specified Commands.
32 CFR 381.6 Authorities.
The Director, DNA, is specifically delegated authority to:
(a) Communicate directly with heads of DoD Component and other
Executive Departments and Agencies, as necessary, in carrying out
assigned responsibilities and functions. Communications to the
Commanders in Chief of the Unified and Specified Commands shall be
coordinated with the CJCS.
(b) Obtain reports, information, advice, and assistance from other
DoD Components, consistent with DoD Directive 7750.5, /1/ as necessary,
in carrying out assigned responsibilities and functions.
(c) Establish facilities necessary to accomplish the DNA mission in
the most efficient and economical manner.
(d) Exercise the administrative authorities contained in the appendix
to this part.
/1/ Copies may be obtained, at cost, from the National Technical
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
32 CFR 381.7 Administration.
(a) The Director, and Deputy Director, DNA, shall be appointed by the
Secretary of Defense.
(b) The Military Departments shall assign military personnel to the
DNA in accordance with approved Joint Manpower Program authorizations
and procedures for assignment to joint duty. The CJCS shall review and
provide recommendations on the DNA Joint manpower program to the DDR&E,
as appropriate, for those functions where DNA is responsive to CJCS.
32 CFR 381.7 Pt. 381, App.
Pursuant to the authority vested in the Secretary of Defense, and
subject to the direction, authority, and control of the Secretary of
Defense, and in accordance with DoD policies, Directives, and
Instructions, the Director, DNA, or in the absence of the Director, the
person acting for the Director, is hereby delegated authority as
required in the administration and operation of DNA to:
1. Exercise the powers vested in the Secretary of Defense by 5 U.S.C.
301, 302(b), and 3101 pertaining to the employment, direction, and
general administration of DNA civilian personnel.
2. Fix rates of pay for wage-rate employees exempted from the
Classification Act of 1949 by 5 U.S.C. 5102 on the basis of rates
established under the Coordinated Federal Wage System. In fixing such
rates, the Director, DNA, shall follow the wage schedule established by
the DoD Fixing Authority.
3. Establish advisory committees and employ part-time advisors, as
approved by the Secretary of Defense, for the performance of DNA
functions consistent with 10 U.S.C. 173; 5 U.S.C. 3109(b); DoD
Directive 5105.4 /1/ ''DoD Federal Advisory Committee Management
Program,'' September 5, 1989; and the agreement between the Department
of Defense and the Office of Personnel Management (OPM) on employment of
experts and consultants, June 21, 1977.
4. Administer oaths of office incident to entrance into the Executive
Branch of the Federal Government or any other oath required by law in
connection with employment therein, in accordance with 5 U.S.C. 2903,
and designate in writing, as may be necessary, officers and employees of
DNA to perform this function.
5. Establish a DNA Incentive Awards Board and pay cash awards to, and
incur necessary expenses for the honorary recognition of, civilian
employees of the Government whose suggestions, inventions, superior
accomplishments, or other personal efforts, including special acts or
services, benefit or affect the DNA or its subordinate activities, in
accordance with 5 U.S.C. 4503 and applicable OPM regulations.
6. In accordance with the provisions of 5 U.S.C. 7532; Executive
Orders 10450, 12333, and 12356; and DoD Directive 5200.2 /2/ ''DoD
Personnel Security Program,'' December 20, 1979; as appropriate:
a. Designate any position in DNA as a ''sensitive'' position.
b. Authorize, in case of an emergency, the appointment of a person to
a sensitive position in the DNA for a limited period of time for whom a
full field investigation or other appropriate investigation, including
the National Agency Check (NAC), has not been completed.
c. Authorize the suspension but not terminate the services of a DNA
employee in the interest of national security.
d. Initiate investigations, issue personnel security clearances and,
if necessary, in the interest of national security, suspend, revoke, or
deny a security clearance for personnel assigned, detailed to, or
employed by the DNA. Any action to deny or revoke a security clearance
shall be taken in accordance with procedures prescribed in DoD
5200.2-R3, ''DoD Personnel Security Program,'' January 1987.
7. Act as agent for the collection and payment of employment taxes
imposed by chapter 21 of the Internal Revenue Code of 1954, as amended;
and, as such agent, make all determinations and certifications required
or provided for under section 3122 of the Internal Revenue Code of 1954,
as amended, and section 205(p) (1) and (2) of the Social Security Act,
as amended (42 U.S.C. 405(p) (1) and (2)) and with respect to DNA
employees.
8. Authorize and approve:
a. Temporary duty travel for military personnel assigned or detailed
to the DNA in accordance with Volume I, Joint Federal Travel
Regulations.
b. Travel for DNA civilian officers and employees in accordance with
Volume II, Joint Travel Regulations.
c. Invitational travel to non-DoD employees whose consultative,
advisory, or other highly specialized technical services are required in
a capacity that is directly related to, or in connection with, DNA
activities, in accordance with Volume II, Joint Travel Regulations.
d. Overtime work for DNA civilian employees in accordance with 5
U.S.C. chapter 55, subpart V, and applicable OPM regulations.
9. Approve the expenditure of funds available for travel by military
personnel assigned or detailed to the DNA for expenses incident to
attendance at meetings of technical, scientific, professional, or other
similar organizations in such instances where the approval of the
Secretary of Defense, or designee, is required by 37 U.S.C. 412, and 5
U.S.C. 4110 and 4111. This authority cannot be redelegated.
10. Develop, establish, and maintain an active and continuing Records
Management Program pursuant to 44 U.S.C. 3102 and DoD Directive 5015.24,
''Records Management Program,'' September 17, 1980.
11. Establish and use imprest funds for making small purchases of
material and services, other than personal services, for the DNA, when
it is determined more advantageous and consistent with the best
interests of the Government, in accordance with DoD Directive 7360.105,
''Disbursing Policies,'' January 17, 1989.
12. Authorize the publication of advertisments, notices, or proposals
in newspapers, magazines, or other public periodicals as required for
the effective administration and operation of DNA consistent with 44
U.S.C. 3702.
13. Establish and maintain appropriate property accounts for DNA, and
appoint Boards of Survey, approve reports of survey, relieve personal
liability, and drop accountability for DNA property contained in the
authorized property accounts that has been lost, damaged, stolen,
destroyed, or otherwise rendered unserviceable, in accordance with
applicable laws and regulations.
14. Promulgate the necessary security regulations for the protection
of property and places under the jurisdiction of the Director, DNA,
pursuant to DoD Directive 5200.86, ''Security of Military Installations
and Resources,'' July 29, 1980.
15. Establish and maintain, for the functions assigned, an
appropriate publications system for the promulgation of common supply
and service regulations, instructions, and reference documents and
changes thereto, pursuant to the policies and procedures prescribed in
DoD 5025.1-M7, ''DoD Directives System Procedures,'' December 1990.
16. Enter into support and service agreements with the Military
Departments, other DoD Components, or other Federal Agencies, as
required for the effective performance of DNA functions and
responsibilities.
17. Enter into and administer contracts, directly or through a
Military Department, a DoD contract administration services component,
or other Federal Agency, as appropriate, for supplies, equipment, and
services required to accomplish the mission of the DNA. To the extent
that any law or Executive order specifically limits the exercise of such
authority to persons at the Secretarial level of the Military
Department, such authority shall be exercised by the appropriate Under
Secretary or Assistant Secretary of Defense.
18. Lease property under the control of DNA under terms that will
promote the national defense or that will be in the public interest,
pursuant to 10 U.S.C. 2667.
The Director, DNA, may redelegate these authorities, as appropriate,
and in writing, except as otherwise specifically indicated above or as
otherwise provided by law or regulation.
/1/ Copies may be obtained, at cost, from the National Technical
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
/2/ See footnote 1 to paragraph 3 of this appendix.
/3/ See footnote 1 to paragraph 3 of this appendix.
/4/ See footnote 1 to paragraph 3 of this appendix.
/5/ See footnote 1 to paragraph 3 of this appendix.
/6/ See footnote 1 to paragraph 3 of this appendix.
/7/ See footnote 1 to paragraph 3 of this appendix.
32 CFR 381.7 PART 382 -- UNDER SECRETARY OF DEFENSE (ACQUISITION)
Sec.
382.1 Purpose.
382.2 Definitions.
382.3 Responsibilities.
382.4 Functions.
382.5 Authorities and relationships.
Appendix to Part 382 -- Delegations of Authority
Authority: 10 U.S.C. 133.
Source: 55 FR 49888, Dec. 3, 1990, unless otherwise noted.
32 CFR 382.1 Purpose.
This part, pursuant to 10 U.S.C., assigns responsibilities,
functions, relationships, and authorities as prescribed herein, to the
Under Secretary of Defense (Acquisition) (USD(A)). This part also
strengthens the ability of the USD(A) to improve the efficiency and
effectiveness of DoD acquisition.
32 CFR 382.2 Definitions.
(a) Department of Defense Acquisition System. A single uniform
system whereby all equipment, facilities, and services are planned,
designed, developed, acquired, maintained, and disposed of within the
Department of Defense. The system encompasses establishing and
enforcing policies and practices that govern acquisitions, to include
documenting mission needs and establishing performance goals and
baselines; determining and prioritizing resource requirements for
acquisition programs; planning and executing acquisition programs;
directing and controlling the acquisition review process; developing
and assessing logistics implications; contracting; monitoring the
execution status of approved programs; and reporting to Congress.
(b) DoD Components. The Office of the Secretary of Defense (OSD);
the Military Departments; the Joint Chiefs of Staff (JCS); the Joint
Staff; the Unified and Specified Commands; the Office of the Inspector
General, Department of Defense (OIG, DoD); the Defense Agencies, to
include the Strategic Defense Initiative Organization (SDIO); and DoD
Field Activities.
32 CFR 382.3 Responsibilities.
The Under Secretary of Defense for Acquisition (USD(A)) is the
principal staff assistant and advisor to the Secretary of Defense for
all matters relating to the DoD Acquisition System; research and
development; production; logistics; command, control, communications,
and intelligence activities related to acquisition; military
construction; and procurement.
(a) The USD(A) shall:
(1) Serve as the Defense Acquisition Executive (DAE) with full
responsibility for supervising the performance of the DoD Acquisition
System and enforcing the policies and practices contained in DoD
Directive 5000.1, /1/ DoD Instruction 5000.2, /2/ OMB Circular No.
A-109. /3/
(2) Chair the Defense Acquisition Board (DAB), supported by an
integrated structure of acquisition-related committees, and, pursuant to
382.5(c) of this part, serve as signatory authority on Acquisition
Decision Memoranda documenting Milestone reviews by the DAB.
(3) Serve as the DoD Procurement Executive, with responsibilities as
prescribed in E.O. 12352 of March 17, 1982 (3 CFR, 1982 Comp., p. 137)
and 41 U.S.C. 401-424.
(4) Chair the DoD Ethics Council, with responsibilities as prescribed
in DoD Directive 5120.47 /4/ .
(5) Serve as the National Armaments Director and Secretary of Defense
representative to the Four Power Conference.
(6) Establish and publish policies and procedures governing the
operations of the DoD Acquisition System and the administrative
oversight of defense contractors.
(7) Prescribe policies, in coordination with the IG, DoD, and the
Comptroller of the Department of Defense (C, DoD), to ensure that audit
and oversight of contractor activities are coordinated and carried out
in a manner to prevent duplication by different elements of the
Department. The exercise of this responsibility shall not affect the
authority of the IG under the Inspector General Act of 1978.
(8) Coordinate research and development programs DoD-wide to
eliminate duplication of effort and ensure that available resources are
used to maximum advantage.
(9) Establish policies and programs that strengthen DoD Component
technology development programs, encourage technical competition and
technology-driven prototyping that promise increased military
capabilities, and exploit the cost-reduction potential of innovative or
commercially developed technologies.
(10) Develop acquisition plans, strategies, guidance, and
assessments, including affordability assessments and investment area
analyses, in support of the acquisition Milestone review and Planning,
Programming, and Budgeting System (PPBS) processes.
(11) Administer the Defense Acquisition Executive Summary (DAES) and
Cost/Schedule Control System Criteria (C/SCSC) systems.
(12) Designate major defense acquisition programs as either DAB or
Component programs, sign congressional certifications and reports to
include Milestone authorization breaches, administer the Selected
Acquisition Report (SAR) and Unit Cost Report (UCS) systems, and
exercise the other specific authorities provided for in the delegations
of authority contains in Appendix to this part.
(13) Develop, in coordination with the Under Secretary of Defense for
Policy (USD(P)), memoranda of agreements and memoranda of understandings
with friendly and Allied Nations relating to acquisition matters.
(14) Establish policies for maintenance of the defense industrial
base.
(15) Supervise the management and performance of the Strategic and
Critical Defense Materials Program pursuant to E.O. 12626 of February
25, 1988 (3 CFR, 1988 Comp., p. 552).
(16) Establish policies, in coordination with the Assistant Secretary
of Defense (Force Management and Personnel) (ASD(FM&P)), for the
training and career development of acquisition personnel.
(17) Advise the Secretary of Defense and the Deputy Secretary of
Defense on technical and programmatic issues arising in Defense Planning
and Resources Boards matters.
(b) For each assigned area identified in 382.4, the USD(A) shall:
(1) Direct planning and analyses activities to assess the technical,
economic, and military worth of specific acquisition programs and
investment areas.
(2) Establish policies, systems, and standards that promote more
effective and efficient administration and management of acquisition
resources, and monitor the execution of approved programs to ensure
available resources are being applied in accordance with established
policies and standards.
(3) Review and evaluate DoD Component plans, programs, and budget
submissions to ensure adherence to established priorities, policies and
procedures, standards, and resource guidance; and, as appropriate,
develop recommended alternatives for Secretary and Deputy Secretary of
Defense consideration during all phases of the PPBS process.
(4) Promote coordination, cooperation, and mutual understanding of
all matters related to assigned activities, both inside and outside the
Department of Defense.
(5) Serve as primary focal point and principal spokesman for the
Department of Defense; serve on boards, committees, and other groups
pertaining to assigned functional areas; and represent the Secretary of
Defense and the Deputy Secretary of Defense on USD(A) matters outside
the Department of Defense.
(6) Establish and maintain management information and reporting
systems.
(7) Perform such other duties as the Secretary or Deputy Secretary of
Defense may prescribe.
/1/ Copies may be obtained, at cost, National Technical Information
Service, 5285 Port Royal Road, Springfield, VA 22161.
/2/ See footnote 1 to 382.3(a)(1).
/3/ Copies may be obtained by written request to: EOP Publications,
725 Seventeenth Street NW., Washington, DC 20503.
/4/ See footnote 1 to 382.3(a)(1).
32 CFR 382.4 Functions.
The USD(A) shall carry out the responsibilities described in 382.3,
for the following functional areas:
(a) Acquisition management.
(b) Basic and applied research and the defense technology base.
(c) Design and engineering, and the development of weapon systems.
(d) Command, control, communications, and intelligence programs,
systems, and activities related to acquisition.
(e) Logistics acquisition and management, to include supply systems,
spares program management, weapons systems logistics elements, items
standardization, transportation, energy, warehousing, distribution, and
related activities.
(f) Procurement activities.
(g) Scientific and technical information.
(h) Production and manufacturing.
(i) Industrial base resources and productivity.
(j) Force modernization and sustainability and the availability of
fielded major weapons systems.
(k) Developmental test and evaluation, as defined in DoD Directive
5000.3, /5/ and, to the extent permitted by law, review and approval of
the Test and Evaluation Master Plan.
(l) Environmental policy, services, and related actions.
(m) Assignment and reassignment of research and engineering and
acquisition responsibility for programs, systems, and activities.
(n) Codevelopment, coproduction, coprocurement, logistics support,
wartime host-nation support, and research interchange with friendly and
Allied Nations, in coordination with the USD(P).
(o) Installation management and base closures.
(p) Construction, including construction funded by host-nations under
the North Atlantic Treaty Organization (NATO) Infrastructure program and
similar programs with other Allied countries.
(q) Strategic and critical defense materials, to include the
acquisition, retention, and disposal of stocks and the conservation and
development of sources of materials.
(r) Unique acquisition matters in support of special operations and
low-intensity conflict programs, systems, and activities related to
acquisition, in coordination with the Under Secretary of Defense for
Policy.
/5/ See footnote 1 to 382.3(a)(1).
32 CFR 382.5 Authorities and relationships.
(a) The USD(A) shall take precedence in the Department of Defense on
acquisition matters after the Secretary and Deputy Secretary of Defense.
On all other matters, the USD(A) shall take precedence after the
Secretary and Deputy Secretary of Defense and the Secretaries of the
Military Departments.
(b) The USD(A) is hereby granted the authority to direct the
Secretaries of the Military Departments and Heads of all other DoD
Components with respect to matters for which the USD(A) has
responsibility. In this regard, the USD(A) shall strictly enforce the
minimum established requirements in DoD Directive 5000.1 and the
documentation requirements and procedures in DoD Instruction 5000.2.
The authority of the USD(A) to direct the Secretaries of the Military
Departments may not be delegated by the USD(A).
(c) The USD(A) shall decide upon the appropriate implementing actions
to be taken as a result of DAB reviews, to include the establishment of
specific exit criteria that must be satisfactorily demonstrated before
an effect or program can progress to the next Milestone decision point.
The USD(A)'s decisions shall be reflected in an Acquisition Decision
Memorandum (ADM) issued by the USD(A) for implementation by the Heads of
DoD Components. The authority of the USD(A) under this paragraph may
not be delegated by the USD(A).
(d) The USD(A) may direct the C, DoD to withhold the release of funds
to a program at the time of a DAB Milestone review of the program, when
the USD(A) determines that such direction is necessary to ensure that
the program meets the criteria established by DoD Directives for
existing the Milestone and all additional exist criteria for the program
established by the Secretary, Deputy Secretary or Under Secretary for
Acquisition. USD(A) may not delegate the authority granted by this
paragraph to anyone other than the Deputy USD(A).
(e) In the performance of assigned functions, the USD(A) shall:
(1) Exercise direction, authority, and control over the following
activities and organizations that constitute the USD(A) organization
(The reporting relationships of these activities and organizations with
regard to the USD(A), e.g., direct or indirect, shall be at the
discretion of the USD(A)):
(i) The Director of Defense Research and Engineering.
(ii) The Assistant Secretary of Defense (Production and Logistics).
(iii) Acquisition-related activities of the Assistant Secretary of
Defense for Command, Control, Communications, and Intelligence.
(iv) The Assistant to the Secretary of Defense (Atomic Energy).
(v) The Deputy Under Secretary (Industrial and International
Programs).
(vi) The Director of Small and Disadvantaged Business Utilization.
(vii) The Director, Program Integration.
(viii) The Defense Advanced Research Projects Agency, the Defense
Communications Agency, the Defense Logistics Agency, the Defense Mapping
Agency, the Defense Nuclear Agency, the Defense Contract Management
Agency, the Defense Systems Management College, and the On-Site
Inspection Agency.
(2) Provide technical guidance for utilization of the Electromagnetic
Compatibility Analysis Center.
(3) Provide policy guidance, goal setting, and management supervision
for assigned Management Support Activities, and utilization of Federally
Funded Research and Development Centers (FFRDCs).
(4) Use existing facilities and services of the Department of Defense
and other Federal Agencies, whenever practicable, to avoid duplication
and to achieve an appropriate balance among modernization, readiness,
sustainability, efficiency, and economy.
(f) The USD(A) shall also:
(1) Issue DoD Instructions, DoD publications, and one-time
directive-type memoranda, consistent with DoD 5025.1M, /6/ that
implement acquisition policies and procedures for the functions assigned
to the USD(A). Instructions to Unified and Specified Commands shall be
issued through the Chairman of the Joint Chiefs of Staff (CJCS).
(2) Obtain reports, information, advice, and assistance, consistent
with DoD Directive 7750.5, /7/ as necessary in carrying out assigned
functions.
(3) Communicate directly with the Heads of DoD Components.
Communications to Commanders of the Unified and Specified Commands shall
be through the CJCS.
(4) Establish arrangements for DoD participation in non-defense
governmental programs for which the USD(A) is assigned primary DoD
cognizance.
(5) Communicate with other Government Agencies, representatives of
legislative branch, and members of the public, as appropriate, in
carrying out assigned functions.
(6) Coordinate with and exchange information with other OSD and DoD
officials exercising collateral or related responsibilities.
(7) Exercise the delegations of authority contained in appendix to
this part.
(8) Work directly with the Service Acquisition Executives.
(g) Other OSD officials and Heads of Components shall coordinate with
the USD(A) on all matters related to authorities, responsibilities, and
functions assigned in this part.
(h) In the absence or disability of the USD(A), the Acting USD(A) may
exercise all authorities of the USD(A).
(i) Nothing in this part or the Delegations of Authority to the
USD(A) limits or otherwise affects delegations of authority by the
Secretary of Defense to the Deputy Secretary of Defense.
/6/ See footnote 1 to 382.3(a)(1).
/7/ See footnote 1 to 382.3(a)(1).
32 CFR 382.5 Pt. 382, App.
32 CFR 382.5 Appendix to Part 382 -- Delegations of Authority
Pursuant to the authority vested in the Secretary of Defense, and
subject to his direction, authority, and control, and in accordance with
DoD policies, Directives, and Instructions, the USD(A) is hereby
delegated authority to exercise, within his assigned responsibilities
and functional areas, all authority of the Secretary of Defense derived
from statute, Executive order, authority of the Secretary of Defense
derived from statute, Executive order, and interagency agreement, except
where specifically limited by statute or Executive order to the
Secretary of Defense, to include but not limited to:
1. Exercise all authorities delegated to the Secretary of Defense by
the Department of Commerce DPAS Del. No. 1, as amended (DoD Directive
4405.61).
2. Act for the Secretary of Defense in the exercise of extraordinary
contractual action authority under Public Law 85-804 -- an Act to
authorize the making, amendment, and modification of contracts to
facilitate the national defense, August 28, 1958, in accordance with
E.O. 10789, November 14, 1958, as amended, and part 50 of the Federal
Acquisition Regulation.
3. Make Secretarial determinations, justifications, and approvals on
behalf of the Defense Advanced Research Projects Agency (DARPA), Defense
Communications Agency (DCA), Defense Contract Management Agency (DCMA),
Defense Logistics Agency (DLA), Defense Mapping Agency (DMA), and the
Defense Nuclear Agency (DNA) under Title 10, United States Code, with
authority to redelegate to the Directors of those Agencies, as
appropriate.
4. Act for the Secretary of Defense in the establishment and granting
of waivers under the Buy American Act (41 U.S.C. 10a-10b).
5. Act for the Secretary of Defense on delegations of authority to
him by the U.S. Trade Representative to waiver the prohibition against
procurement from certain countries, pursuant to title 3, Public Law
96-39, Trade Agreements Act of 1979 (19 U.S.C. 2511 et seq.), and E.O.
12260, July 26, 1979.
6. Act for the Secretary of Defense in exercise of authority
delegated by the Administrator of General Services to dispose of surplus
personal property and to waive prescribed demilitarization requirements
under DoD Directive 4160.21.2
7. Make determinations with respect to the donation of surplus
personal property to educational activities of special interest to the
Armed Forces of the United States as prescribed in DoD Directive
4160.25.3
8. Act for, and exercise the powers of, the Secretary of Defense
concerning requests for waiver of the navigation and vessel inspection
laws of the United States under Public Law 891, 81st Congress, 2nd
Session, December 27, 1950 (64 Stat. 1120), except on those matters that
have been delegated by the Secretary of Defense to the Secretary of the
Army.
9. Make recommendations to the Department of Energy in connection
with facilities for transmission of electric energy and natural gas
across borders of the United States, pursuant to the authority given the
Secretary of Defense in E.O. 10485, September 3, 1953, as amended by
E.O. 12038, February 3, 1978.
10. Act for the Secretary of Defense in the field of transportation
and traffic management under section 201(a), title 11, of the Federal
Property and Administrative Services Act of 1949, as amended (50 U.S.C.
481(a)) (DoD Directive 5126.94).
11. Act for the Secretary of Defense as the DoD claimant to other
designated Executive Departments and Agencies for petroleum requirements
and allocations in an emergency (DoD Directive 4140.255).
12. Exercise all responsibilities and authorities of the Secretary of
Defense under title 10, United States Code, section 2404, with respect
to the acquisition of petroleum.
13. Act for the Secretary of Defense in the implementation of OMB
Circular No. A.109, ''Major System Acquisitions,'' April 5, 1976.
14. Make the determination required by title 50, United States Code,
section 1512(1), concerning transportation or testing of any lethal
chemical or any biological warfare agent.
15. Act for the Secretary of Defense for ensuring compliance with
Public Law 92-463, the Federal Advisory Committee Act (5 U.S.C.
appendix), and make written determinations for conduct of all closed
meetings of Federal Advisory Committees under his cognizance as
prescribed by section 10(d) of the Act (5 U.S.C. appendix, 10(d)).
16. Act for the Secretary of Defense as the primary OSD interface
with the Defense Policy Advisory Committee on Trade.
17. Act for the Secretary to make appropriate supporting
determinations and execute leases under title 10, United States Code,
section 2667.
18. Act for the Secretary of Defense in the implementation of OMB
Circular A-76,6 ''Performance of Commercial Activities,'' as revised,
August 4, 1983.
19. With the exception of the determination of highly sensitive
classified programs, which is retained by the Secretary of Defense,
exercise the responsibilities and authorities of the Secretary of
Defense to designate major defense acquisition programs, as defined in
title 10, United States Code, section 2430.
20. Act for the Secretary of Defense in preparing and revising an
acquisition strategy plan for a major program throughout the period from
the beginning of Full-Scale Development through the end of production
under section 2438, subsection (a) of title 10, United States Code, and
in making the prescribed congressional submissions. This delegation of
authority may not be redelegated.
21. Act for the Secretary of Defense in making determinations and
waivers, and in submitting waivers of requirements for competitive
alternate sources with respect to Full-Scale Development and with
respect to production for major programs under section 2438, subsection
(c) of title 10, United States Code. This delegation of authority may
not be redelegated.
22. Act for the Secretary of Defense in providing to the Committees
on Appropriations, before funds are expended for Full-Scale Development,
a plan for the development of two or more sources in production or a
certification that the system or subsystem being developed will be
procured in quantities insufficient to justify two or more sources under
section 8057 of Public Law 100-202, section 8047 of Public Law 100-463,
and identical provisions in subsequent statutes making appropriations to
the Department of Defense. This delegation of authority may not be
redelegated.
23. Act for the Secretary of Defense in making certifications,
providing reports, and approving waivers for major defense acquisition
programs required by title 10, United States Code. This authority
includes, but is not limited to, the following:
a. Submission of notification and report that a competitive prototype
strategy is not practicable (Section 2365).
b. Make waivers and notify Congress of each waiver for the
acquisition of defense equipment under cooperative projects and report
on the award of cooperative contracts (Section 2407). This authority
may not be redelegated.
c. Submit Selected Acquisition Reports (Section 2432).
d. Make and submit certifications required for Unit Cost Reports
(Section 2433).
e. Submit Manpower Estimate Reports (Section 2434).
f. Provide the notifications for program deviations for
milestone-authorized programs (Section 2437).
24. Exercise all authorities delegated to the Secretary of Defense by
E.O. 12580, January 23, 1987, concerning responses to releases of
hazardous substances for Department of Defense facilities and vessels
under Comprehensive Environmental Response, Compensation, and Liability
Act (42 U.S.C. 9601, et seq.) as amended by the Superfund Amendments and
Reauthorization Act (Pub. L. 99-499, October 17, 1986).
25. Exercise all responsibilities and authority of the Secretary of
Defense under 10 U.S.C. 2701-2707 and 10 U.S.C. 2810 with respect to
conduct of the Defense Environmental Restoration Program.
26. Exercise the authority of the Secretary of Defense under 10
U.S.C. 2354 for the DoD Components other than the Military Departments.
27. Serve on and attend meetings of the Federal Acquisition
Regulatory Council, established by section 25 of the Office of Federal
Procurement Policy Act, as amended. The Deputy Under Secretary of
Defense for Acquisition shall serve in the absence of the USD(A). This
authority may not be redelegated.
28. Perform the functions and responsibilities set out at section
25(d) of the Office of Federal Procurement Policy Act (41 U.S.C. 421).
The authority to review and approve or disapprove regulations relating
to procurement under subsection 25(d)(1) may not be delegated to any
person outside the office of the USD(A).
29. Exercise the authority of the Secretary of Defense under 10
U.S.C. 2407 with respect to NATO Cooperative Projects as defined in
section 27 of the Arms Export Control Act (AECA). The authority to
grant waivers as authorized in section 2407(c) may not be redelegated.
30. Exercise all responsibilities of the Secretary of Defense under
Public Law 93-155, Defense Industrial Reserve Act of 1973 (50 U.S.C.
451-455) to provide a comprehensive and continuous program for the
future safety and for the defense of the United States by providing
adequate measures whereby an essential nucleus of Government-owned
plants and industrial plant equipment is maintained to meet the needs of
the Armed Forces in time of a national emergency or in anticipation
thereof.
31. Act for the Secretary of Defense to establish and administer an
Industrial Preparedness Program in furtherance of E.O. 12656, section
501, paragraphs (2), (11), (13), and (14), February 25, 1988, and
Defense Mobilization Order VII-7 (Revised), in accordance with DoD
Directive 4005.1. /7/
32. Act for the Secretary of Defense in the exercise of authority
under the Strategic and Critical Materials Stock Piling Act (50 U.S.C.
98 et seq.) in accordance with E.O. 12626, February 25, 1988.
33. Act for the Secretary of Defense, under the authority of Federal
Property Management Regulations, Temporary Regulation F-227, July 30,
1974, or under any other Delegation of Authority that may hereafter be
made by the Administrator of General Services, to enter into contracts
for public utility services for a period not to exceed 10 years.
a. This authority is hereby further delegated to the Secretaries of
the Army, Navy, and Air Force with authority to redelegate, as
appropriate. Exercise of this authority is subject to the direction,
supervision and control of the USD(A).
b. This authority is also further delegated to the Director of the
Defense Communications Agency in connection with the leasing of
communications facilities, and to the Directors of the Defense Logistics
Agency and Defense Nuclear Agency in connection with the leasing of
local telecommunications facilities and services. This authority may be
redelegated as appropriate. Exercise of this authority is subject to
the direction, supervision and control of the USD(A).
The USD(A) may redelegate these authorities, as appropriate, except
as otherwise specifically indicated above or prohibited by law,
directive or regulation.
1Copies may be obtained, at cost, National Technical Information
Service, 5285 Port Royal Road, Springfield, VA 22161.
2See footnote 1 to paragraph 1. of this appendix.
3See footnote 1 to paragraph 1. of this appendix.
4See footnote 1 to paragraph 1. of this appendix.
5See footnote 1 to paragraph 1. of this appendix.
6Copies may be obtained by written request to: EOP Publications, 725
Seventeenth Street NW., Washington, DC 20503.
/7/ See footnote 1 to paragraph 1, of this appendix.
32 CFR 382.5 PART 383 -- ASSISTANT SECRETARY OF DEFENSE (PRODUCTION AND
LOGISTICS)
Sec.
383.1 Purpose.
383.2 Definition.
383.3 Responsibilities.
383.4 Functions.
383.5 Relationships.
383.6 Authorities.
Appendix -- Delegations of Authority
Authority: 10 U.S.C. 136.
Source: 54 FR 8534, Mar. 1, 1989, unless otherwise noted.
32 CFR 383.1 Purpose.
This part is issued pursuant to the authority vested in the Secretary
of Defense under 10 U.S.C.
(a) Designates one of the positions of Assistant Secretary of Defense
as the Assistant Secretary of Defense (Production and Logistics)
(ASD(P&L)) under the direction, authority, and control of the Under
Secretary of Defense (Acquisition) (USD(A)).
(b) Assigns responsibilities, functions, relationships, and
authorities, as prescribed herein, to the ASD(P&L).
32 CFR 383.2 Definition.
DoD Components. The Office of the Secretary of Defense (OSD), the
Military Departments, the Joints Chiefs of Staff (JCS), the Joint Staff,
the Unified and Specified Commands, the Office of the Inspector General
of the Department of Defense (OIG, DoD), and the Defense Agencies, and
the DoD Field Activities.
32 CFR 383.3 Responsibilities.
The Assistant Secretary of Defense (Production and Logistics)
(ASD(P&L)) is the Principal Staff Assistant and advisor to the USD(A)
for management of DoD procurement, production, the National Defense
Stockpile, logistics, installations, environmental programs, Total
Quality Management, and other related matters. In this capacity, the
ASD(P&L) shall:
(a) Develop policies, conduct analyses, provide advice, make
recommendations, and issue guidance on DoD plans, programs, and
requirements determinations.
(b) Develop systems and standards for the administration and
management of approved DoD plans, programs, and policies.
(c) Develop and promulgate plans, programs, actions, and taskings to
ensure adherence to DoD policies and national security objectives.
(d) Review and evaluate DoD Component plans and programs to ensure
adherence to approved policies and standards.
(e) Participate in all aspects of the Defense Acquisition System.
(f) Participate in planning, programming, budgeting, and followup
activities.
(g) Develop functional requirements, plans, and programs to achieve
interoperability among modernized DoD production and logistics
information systems.
(h) Participate in all aspects of production and logistics automated
information system (AIS) life-cycle management, major AIS reviews, and
major AIS approval processes.
(i) Promote coordination, cooperation, and mutual understanding, both
inside and outside of the Department of Defense, including oversight and
policy information for, and implementation of, agreements with allied
and other friendly nations in coordination with the Under Secretary of
Defense (Policy) (USD(P)).
(j) Serve as primary focal point and principal DoD spokesman for, and
serve on, boards, committees, and other groups pertaining to assigned
functional areas.
(k) Develop, coordinate, and maintain regulations as necessary and
appropriate to implement the acquisition regulatory responsibilities of
the Secretary of Defense and the USD(A).
(l) Perform other duties as the Secretary of Defense and the USD(A)
prescribe.
32 CFR 383.4 Functions.
The ASD(P&L) shall carry out the responsibilities described in 383.3
for the following functional areas:
(a) Maintenance and administration of the Federal Acquisition
Regulation (FAR) and the Defense FAR Supplement (DFARS) and other
implementations thereto within the Department of Defense.
(b) Contract policy, administration, cost, pricing, and finance.
(c) Transition to production planning and production management.
(d) Materiel and facilities readiness and sustainability.
(e) Management of the National Defense Stockpile.
(f) Total Quality Management.
(g) Defense Standardization and Specification Program.
(h) Technical data management.
(i) Acquisition logistics, including Integrated Logistics Support,
post production support, and weapon support assessment.
(j) Support systems acquisition and technology requirements.
(k) Computer-aided Acquisition and Logistics Support.
(l) International logistics and military construction agreements, in
coordination with the USD(P).
(m) Supply, warehousing, and distribution management.
(n) Materiel maintenance management, including repair, overhaul,
modification installation, and preventive maintenance of weapon systems,
equipment, secondary items, and munitions.
(o) Transportation (including airlift and sealift) and traffic
management.
(p) Energy management and petroleum logistics.
(q) Host-nation support.
(r) Mobilization planning guidance for military installations and
logistics.
(s) Installation management and real property planning, design,
acquisition, maintenance, and disposal.
(t) Military base structure and utilization.
(u) Construction, including construction funded by host nations under
the North Atlantic Treaty Organization (NATO) Infrastructure Program.
(v) Commercial activities and Defense Regional Inter-Service Support
Programs.
(w) Environmental quality and natural resources management.
(x) Postal services and customs inspection.
(y) Planning and life-cycle management of all technological aspects
of modernization within the Department of Defense of automated
information systems associated with the preceding functions.
(z) Oversight and direction of the DoD commissary system.
(aa) Oversight and direction of industrial base preparedness,
production and manufacturing processes.
(54 FR 8534, Mar. 1, 1989, as amended at 55 FR 49279, Nov. 27, 1990)
32 CFR 383.5 Relationships.
(a) In the performance of assigned functions, the ASD(P&L) shall:
(1) Coordinate and exchange information with other officials in the
Department of Defense exercising collateral or related functions.
(2) Use existing systems, facilities, and services of the Department
of Defense and other Federal agencies, whenever practicable, to achieve
maximum efficiency and economy.
(b) Other OSD officials and heads of DoD Components shall coordinate
with the ASD(P&L) on all matters related to the functions cited in
383.4.
32 CFR 383.6 Authorities.
The ASD(P&L) is hereby delegated authority to:
(a) Issue DoD Instructions, DoD publications, and one-time
directive-type memoranda, consistent with DoD Directive 5025.1-M, that
implement policies approved by the Secretary of Defense in the functions
assigned to the ASD(P&L). Instructions to the Military Departments
shall be issued through the Secretaries of those Departments, or their
designees. Instructions to Unified and Specified Commands shall be
issued through the Chairman, JCS (CJCS).
(b) Obtain reports, information, advice, and assistance, consistent
with DoD Directive 7750.5, as necessary in carrying out assigned
functions.
(c) Communicate directly with the heads of DoD Components.
Communications to Commanders of the Unified and Specified Commands shall
be coordinated with the CJCS.
(d) Extablish arrangements for DoD participation in nondefense
governmental programs for which the ASD(P&L) is assigned primary DoD
cognizance.
(e) Communicate with other Government Agencies, representatives of
the legislative branch, and members of the public, as appropriate, in
carrying out assigned functions.
(f) Exercise authorities contained in the Appendix to this part.
32 CFR 383.6 Appendix -- Delegations of Authority
32 CFR 383.6 Pt. 383, App.
Pursuant to the authority vested in the Secretary of Defense, and
subject to his direction, authority, and control of the USD(A), and in
accordance with DoD policies, Directives, and Instructions, the ASD(P&L)
or, in the absence of the ASD(P&L), the person acting for the ASD(P&L),
is hereby delegated authority to:
1. Make determinations and decisions regarding contracts, leases, and
sales agreements, and take other appropriate actions in the maintenance
and monitoring of DoD procurement regulations as delegated by the
Defense Acquisition Executive and/or Procurement Executive.
2. Act for the Secretary of Defense on delegations of authority to
him by the U.S. Trade Representative to waive the prohibition against
procurement from certain countries, pursuant to Title 3 U.S.C., Pub. L.
96-39, Trade Agreements Act of 1979 (19 U.S.C. 2511 et seq.), and E.O.
12260, July 26, 1979.
3. Act for the Secretary of Defense in the establishment and granting
of waivers under the Buy American Act (41 U.S.C. 10a-b).
4. Act for the Secretary of Defense in the exercise of extraordinary
contractual action authority under Pub. L. 85-804, an act to authorize
the making, amendment, and modification of contracts to facilitate the
national defense, August 28, 1958, in accordance with E.O. 10789,
November 14, 1958, as amended, and part 50 of the Federal Acquisition
Regulation.
5. Act for the Secretary of Defense in managing the Competition
Advocate Program throughout the Department of Defense (Pub. L. 98-191,
the Office of Federal Procurement Policy Act, December 1, 1983, as
amended by Pub. L. 98-369, the Competition in Contracting Act, July 18,
1984).
6. Exercise all responsibilities and authority of the Secretary of
Defense under Title 10, Under States Code, section 2404, with respect to
the acquisition of petroleum (DoD Instruction 4220.8, December 20,
1985).
7. Exercise all responsibilities and authority of the Secretary of
Defense under Title 10, United States Code, section 2394, with respect
to geothermal resources or contracts for the provision and operation of
energy production facilities in accordance with Secretary of Defense
Memorandum, December 4, 1982.
8. Exercise all authorities delegated to the Secretary of Defense by
E.O. 12626, February 25, 1988, concerning management of the National
Defense Stockpile.
9. Act for the Secretary of Defense as the DoD claimant to other
designated executive departments and agencies for petroleum requirements
and allocations in an emergency (DoD Directive 4140.25, May 15, 1980).
10. Act for the Secretary of Defense regarding implementing the
provision of 10 U.S.C. 2325 concerning preference for non-developmental
items (DoD Directive 5000.37, September 29, 1978).
11. Establish uniform policies and procedures relating to cataloging
and standardization of equipment and supplies under Title 10, United
States Code, Chapter 145, and other statutes.
12. Implement the agreement between the General Services
Administration and the Department of Defense on supply management
relationships under the national supply system (DoD Directive 5030.47,
May 27, 1971).
13. Act for the Secretary of Defense in establishing and
administering policy guidance for DoD Components concerning the
efficient and effective use of DoD storage and warehousing resources
(DoD Directive 4145.19, August 13, 1975).
14. Act for the Secretary of Defense in the exercise of authority
delegated by the Administrator of General Services to dispose of surplus
personal property and to waive prescribed demilitarization requirements
under DoD Directive 4160.21 December 5, 1980.
15. Make determinations regarding the donation of suplus personal
property to educational activities of special interest to the Armed
Forces of the United States, as prescribed in DoD Directive 4160.25,
April 30, 1984.
16. Act for the Secretary of Defense to approve the disposal of
foreign excess property for substantial benefits or the discharge of
claims when it is determined to be in the interest of the United States
(DoD Instruction 4160.24, July 24, 1981).
17. Act for the Secretary of Defense in the establishment and
administration of policy and guidance governing emergency requirements
allocations, priorities, and permits for the use of civil transportation
within the continental United States (DoD Directive 3005.7, May 30,
1985).
18. Act for, and exercise the powers of, the Secretary of Defense
concerning requests for waiver of the navigation and vessel inspection
laws of the United States under Pub. L. 81-891, December 27, 1950 (64
Stat. 1120), except on those matters that have been delegated by the
Secretary of Defense to the Secretary of the Army, as prescribed in DoD
Directive 5100.21, October 30, 1980.
19. Act for the Secretary of Defense in the field of transportation
and traffic management under Title II, section 201(a) of the Federal
Property and Administrative Services Act of 1949, June 30, 1949, as
amended (40 U.S.C. 481(a)) (DoD Directive 5126.9, June 18, 1979).
20. Act of the Secretary of Defense in establishing policies and
providing guidance to DoD Components concerning the efficient and
effective use of DoD and commercial transportation resources and the
establishment and operation of Transportation Single Manager Agencies
(DoD Directive 4500.9, June 28, 1976).
21. Act for the Secretary of Defense regarding DoD participation in,
or initiation of, proceedings before transportation regulatory bodies
(DoD Instruction 4500.17, January 16, 1969).
22. Serve for the Secretary of Defense as the primary DoD focal point
for energy matters and establish an office to discharge this
responsibility in accordance with Deputy Secretary of Defense
Memorandum, November 17, 1973, as amended by Deputy Secretary of Defense
Memorandum, January 21, 1974, as amended by Secretary of Defense
Memorandum, August 26, 1974.
23. Make recommendations to the Department of Energy in connection
with facilities for transmission of electric energy and natural gas
across borders of the United States, pursuant to the authority given the
Secretary of Defense in E.O. 10485, September 5, 1953, as amended by
E.O. 12038, February 3, 1978.
24. Pursuant to pertinent provisions of Title 10, United States Code,
establish and grant waivers to uniform policies and procedures and
review and approve programs and specific projects of DoD Components
relating to the design, acquisition, construction, operation,
maintenance, and disposal of DoD facilities, and the protection of the
natural environment in and around DoD facilities.
25. Act for the Secretary of Defense in managing the execution of all
overseas military construction, including the provision of guidance and
coordination regarding DoD participation in the NATO Infrastructure
Program, as prescribed in DoD Directive 2010.5, March 19, 1985.
Establish and chair (a) a permanent European Steering Group whose
function is the coordination of all long-range facilities planning and
interface of U.S.-funded construction in Europe with the NATO
Infrastructure Program, and (b) a Southwest Asia Steering Group in order
to resolve major Southwest Asia military construction program planning
and execution issues in a rapid and coordinated manner.
26. Act of the Secretary of Defense in the implementation of OMB
Circular No. A-76, ''Performance of Commercial Activities,'' as
revised, August 4, 1983 (DoD Directive 4100.15, August 12, 1985).
27. Act for, and exercise the powers of, the Secretary of Defense
concerning requests for waiver of statutory restrictions on core
logistics activities (Section 307, Pub. L. 98-525, October 19, 1984; as
amended by section 1231, Pub. L. 99-145, November 8, 1985).
28. Exercise all authorities delegated to the Secretary of Defense by
E.O. 12580, January 23, 1987, concerning responses to releases of
hazardous substances for DoD facilities and vessels under the
Comprehensive Environmental Response Compensation and Liability Act (42
U.S.C. 9601, et seq.), as amended by the Superfund Amendments and
Reauthorization Act (Pub. L. 99-499, October 17, 1986).
29. Exercise all responsibilities and authority of the Secretary of
Defense under title 10, United States Code, section 2701, et seq.,
regarding conduct of the Defense Environmental Restoration Program.
30. Execute the authorities delegated to the Secretary of Defense in
the Department of Commerce (DoC) Defense Priorities and Allocations
System (DPAS) Delegation 1. This may be redelegated to appropriate DoD
Components or to other Government Agencies as authorized in the
delegation.
The ASD(P&L) may redelegate these authorities, as appropriate, and in
writing, except as otherwise specifically indicated above or prohibited
by law or regulation.
(54 FR 8534, Mar. 1, 1989, as amended at 55 FR 49279, Nov. 27, 1990)
32 CFR 383.6 PART 383a -- DEFENSE COMMISSARY AGENCY (DeCA)
Sec.
383a.1 Purpose.
383a.2 Applicability.
383a.3 Mission.
383a.4 Organization.
383a.5 Responsibilities and functions.
383a.6 Relationships.
383a.7 Authority.
383a.8 Administration.
Appendix to Part 383a -- Delegations of Authority
Authority: 10 U.S.C. 136.
Source: 55 FR 49279, Nov. 27, 1990, unless otherwise noted.
32 CFR 383a.1 Purpose.
Pursuant to the authority vested in the Secretary of Defense under
title 10, United States Code, this part establishes the Defense
Commissary Agency (DeCA) and the Defense Commissary Board (DCB), with
responsibilities, functions, and authorities as prescribed herein.
32 CFR 383a.2 Applicability.
This part applies to the Office of the Secretary of Defense (OSD),
the Military Departments; the Chairman, Joint Chiefs of Staff and Joint
Staff; the Unified and Specified Commands; the Inspector General of
the Department of Defense (IG, DoD); the Defense Agencies; and the DoD
Field Activities (hereafter referred to collectively as ''DoD
Components''). The term ''Military Services,'' as used herein, refers
to the Army, Navy, Air Force, and Marine Corps.
32 CFR 383a.3 Mission
(a) The mission of the DeCA is to:
(1) Provide an efficient and effective worldwide system of
commissaries for the resale of groceries and household supplies at the
lowest practical price (consistent with quality) to members of the
Military Services, their families, and other authorized patrons, while
maintaining high standards for quality, facilities, products, and
service.
(2) Provide a peacetime training environment for food supply
logisticians needed in wartime and, as circumstances dictate, troop
issue subsistence support to military dining facilities consistent with
Service needs.
(b) The mission of the DCB is to serve as a forum for the discussion
of issues about the commissary services provided by the DeCA and to make
related policy recommendations to the Assistant Secretary of Defense
(Production and Logistics) (ASD(P&L)).
32 CFR 383a.4 Organization.
(a) The DeCA is established as an Agency of the Department of Defense
under the direction, authority, and control of the ASD(P&L). It shall
consist of a Director of such subordinate organizational elements as are
established by the Director.
(b) The DCB is established as a committee reporting to the ASD (P&L).
Its membership shall consist of the following:
(1) The Director, DeCA, who shall serve as Chair.
(2) A representative of the Assistant Secretary of Defense (Force
Management and Personnel) (ASD(FM&P)).
(3) A representative of the Chairman, Joint Chiefs of Staff (CJCS).
(4) One military officer and one enlisted representative from each of
the Military Services appointed by the Secretaries of the Military
Departments.
(5) The Director, DeCA, may invite other representatives to attend
DCB meetings, as appropriate.
(b) The Director shall designate an Executive Secretary for the
Board.
32 CFR 383a.5 Responsibilities and functions.
(a) The Director, Defense Commissary Agency (DeCA), shall:
(1) Organize, direct, and manage the DeCA and all assigned resources;
procure assigned items; and administer, supervise, and control all
programs and activities assigned to the DeCA.
(2) Plan, program, budget, design, manage, and ensure the execution
of the commissary facilities' construction, modification, and repair
programs.
(3) Provide and operate facilities under standards consistent with
those used for commercial food stores.
(4) Develop and administer plans and programs to provide peacetime
training for military personnel, as appropriate.
(5) Develop and administer plans and programs to provide troop issue
subsistence support to appropriate dining facilities, tactical field
exchanges for deployed mission support, and management of subsistence
war readiness materiel in peacetime and wartime, as required.
(6) Provide advice to the ASD(P&L) on DoD policies about the
operation of commissaries and related matters.
(7) Plan and direct use of commissary stocks to support mobilization,
as required.
(8) Establish and administer a civilian career management program to
include referral services and development programs for commissary
management personnel.
(9) Perform such other functions as the ASD(P&L) may direct.
(b) The Defense Commissary Board (DCB) shall meet periodically, and
not less than annually. For the purpose of providing advice, it shall:
(1) Consider issues about DeCA operations, services, and resources
and make recommendations about DeCA practices, problems, policies, and
programs.
(2) Facilities the exchange of information among the Director, DeCA,
and the Military Departments.
(3) Make recommendations on the integration and prioritization of the
commissary construction program.
(4) Perform such other advisory functions as ASD(P&L) may direct.
(c) The Assistant Secretary of Defense (Production and Logistics)
(ASD(P&L)) shall:
(1) Recommend to the Secretary and the Deputy Secretary of Defense
and the USD(A) policies and resources for the administration of the DeCA
and its programs.
(2) Provide policy guidance and management direction to the Director,
DeCA.
(3) Establish standards and issue guidelines for military commissary
operations, including, but not limited to, the following areas:
(i) Funding.
(ii) Commissary establishment/disestablishment.
(iii) Pricing and surcharges.
(iv) Categories of items.
(v) Reporting requirements and preparation of ''The DoD Commissary
Operations Report'' (RCS DD-FMP(A)1187).
(4) In coordination with CJCS, make arrangements for Commanders of
Unified Commands to assume temporary operational control of commissaries
in wartime or periods of heightened alert.
(d) The Assistant Secretary of Defense (Force Management and
Personnel) (ASD(FM&P)) shall be responsible for advising the ASD(P&L) on
commissary policy to ensure that it is consistent with policies on
recruitment and retention.
(e) The Comptroller of the Department of Defense (C, DoD) shall
advise the ASD(P&L) on accounting, budgeting, funding, cash management,
debt management, and pricing and surcharge policy for the DeCA.
(f) The Secretaries of the Military Departments shall provide such
facilities, physical security, logistics, and administrative support as
required for effective operation of the military commissary program as
agreed to by the DeCA and cognizant component Commands under
inter-Service support and servicing agreements.
32 CFR 383a.6 Relationships.
(a) In the performance of assigned responsibilities and functions,
the Director, DeCA, shall:
(1) Have free and direct access to, and communicate with, the DoD
Components and other Executive Departments and Agencies concerning
commissary activities, as necessary.
(2) Maintain appropriate liaison with other DoD Components, Agencies
of the Executive branch, forcing governments, and private sector
organizations for the exchange of information on programs and activities
in the field of assigned responsibilities.
(3) Use established facilities and services of the Department of
Defense and other Federal Agencies, whenever practicable, to avoid
duplication and to achieve an appropriate balance of modernization,
efficiency, economy, and customer support.
(4) Consult and coordinate with other governmental and
nongovernmental agencies on matters related to the mission assigned to
the DeCA.
(b) The Secretaries of the Military Departments and Heads of other
DoD Components shall:
(1) Provide assistance to the Director, DeCA, in carrying out the
responsibilities and functions relating to military commissaries.
(2) Coordinate with the Director, DeCA, on programs and activities
that include or are related to military commissaries.
32 CFR 383a.7 Authority.
The Director, DeCA is hereby delegated authority to:
(a) Enter into and administer contracts, directly or through a
Military Department, a DoD contract administration services component,
or other Government Department or Agency, in accordance with applicable
laws, DoD regulations, the FAR and the DFARS for supplies, equipment,
and services required to accomplish the mission of the DeCA.
(b) Prescribe procedures, standards, and practices for the Department
of Defense governing he execution of assigned responsibilities and
functions.
(c) Enter into agreements with the Military Departments or other
Government entities, as required for the effective performance of the
military commissary program.
(d) Obtain reports, information, advice, and assistance from other
DoD Components consistent with the policies and criteria of DoD
Directive 7750.5 /1/ , as may be necessary for the performance of
assigned functions and responsibilities.
(e) Establish new DeCA facilities or use existing facilities of the
Military Departments, as deemed necessary, for improved effectiveness
and economy.
(f) Exercise the operational and administrative authorities contained
in the Appendix to this part.
/1/ Copies may be obtained, at cost, from the National Technical
Information Service, 5285 Port Royal Rond, Springfield, VA 22161.
32 CFR 383a.8 Administration.
(a) The Director and Deputy Director(s) of the DeCA shall be
appointed by the Secretary of Defense.
(b) The DeCA shall be authorized such personnel, facilities, funds,
and other administrative support as the Secretary of Defense deems
necessary.
(c) The Military Departments shall assign military personnel to the
DeCA in accordance with approved authorizations and procedures for
assignment to joint duty.
(d) Programming, budgeting, funding, procuring, auditing, accounting,
pricing, and reporting activities of the DeCA shall be in accordance
with established DoD policies and procedures.
(e) Appropriated funds shall be used to finance the operating costs
of the DeCA with the exception of operating costs authorized for payment
from trust revolving funds. A stock fund will be used to finance all
inventories procured for resale.
32 CFR 383a.8 Pt. 383a, App.
32 CFR 383a.8 Appendix to Part 383a -- Delegations of Authority
Pursuant to the authority vested in the Secretary of Defense, and
subject to the direction, authority, and control of the Secretary of
Defense, and in accordance with DoD policies, Directives, and
Instructions, the Director, DeCA is hereby delegated authority as
required in the administration and operation of the DeCA to:
1. Establish advisory committees and employ part-time advisers, as
approved by the Secretary of Defense, for the performance of DeCA
functions pursuant to 10 U.S.C. 173 Public Law 92-463, ''Federal
Advisory Committee Act''; and DoD Directive 5105.4 /1/ ''Department of
Defense Federal Advisory Committee Management Program,'' September 5,
1989.
2. Designate any position in the DeCA as a ''sensitive'' position, in
accordance with 5 U.S.C. 7532; Executive Orders 10450, 12333, and
12356; and DoD Directive 5200.2 /2/ , ''DoD Personnel Security
Program,'' December 20, 1979, as appropriate.
3. Authorize and approve overtime work for DeCA civilian personnel in
accordance with 5 U.S.C. chapter 55, subchapter V, and applicable OPM
regulations.
4. Authorize and approve:
a. Travel of DeCA civilian personnel in accordance with Joint Travel
Regulations, Volume 2, ''DoD Civilian Personnel.''
b. Temporary duty travel for military personnel assigned or detailed
to the DeCA in accordance with Joint Federal Travel Regulations, Volume
1, ''Uniformed Service Members.''
c. Invitational travel to persons serving without compensation whose
consultative, advisory, or other highly specialized technical services
are required in a capacity that is directly related to or in connection
with, DeCA activities, pursuant to 5 U.S.C. 5703.
5. Approve the expenditure of funds available for travel by military
personnel assigned or detailed to the DeCA for expenses regarding
attendance at meetings of technical, scientific, professional, or other
similar organizations in such instances when the approval of the
Secretary of Defense, or designee, in required by law (37 U.S.C. 412 and
5 U.S.C 4110 and 4111). This authority cannot be redelegated.
6. Develop, establish, and maintain in active and continuing Records
Management Program, pursuant to 44 U.S.C. 3102 and DoD Directive 5015.2
/3/ , ''Records Management Program,'' September 17, 1980.
7. Establish and use imprest funds for making small purchases of
material and services, other than personal services, for the DeCA when
it is determined more advantageous and consistent with the best
interests of the Government, in accordance with DoD Directive 7360.104
/4/ , ''Disbursing Policies,'' January 17, 1989.
8. Authorize the publication of advertisements, notices, or proposals
in newspapers, magazines, or other public periodicals, as required for
the effective administration and operation of the DeCA, consistent with
44 U.S.C. 3702.
9. Establish and maintain appropriate property accounts for the DeCA
and appoint Boards of Survey, approve reports of survey, relieve
personal liability, and drop accountability for DeCA property contained
in the authorized property accounts that has been lost, damaged, stolen,
destroyed, or otherwise rendered unserviceable, in accordance with
applicable laws and regulations.
10. Promulgate the necessary security regulations for the protection
of property and places under the jurisdiction of the Director, DeCA,
pursuant to DoD Directive 5200.8 /5/ , ''Security of Military
Installations and Resources,'' July 29, 1980.
11. Establish and maintain, for the functions assigned, a
publications system for the promulgation of common supply and service
regulations, instructions, and reference documents, and changes thereto,
pursuant to the policies and procedures prescribed in DoD 5025.1-M /6/
''Department of Defense Directives System Procedures,'' April 1981.
12. Enter into support and service agreements with the Military
Departments, other DoD Components, Government Agencies, and foreign
governments, as required for the effective performance of DeCA functions
and responsibilities.
13. Lease property under the control of the DeCA, under terms that
will promote the national defense or that will be in the public
interest, pursuant to 10 U.S.C. 2667.
14. Exercise the powers vested in the Secretary of Defense by 5
U.S.C. 301, 302(b), 3101, and 5107 on the employment, direction, and
general administration of DeCA civilian personnel.
15. Fix rates of pay of wage-rate employees exempted from the
Classification Act of 1949 by 5 U.S.C. 5102 on the basis of rates
established under the Combined Federal Wage System. In fixing such
rates, the Director, DeCA, shall follow the wage schedule established by
the DoD Wage Fixing Authority.
16. Administer oaths of office to those entering the Executive branch
of the Federal Government or any other oath required by law in
connection with employment therein, in accordance with 5 U.S.C. 2903,
and designate in writing, as may be necessary, officers and employees of
the DeCA to perform this function.
17. Establish a DeCA Incentive Awards Board, and pay cash awards to,
and incur necessary expenses for the honorary recognition of, civilian
employees of the Government whose suggestions, inventions, superior
accomplishments, or other personal efforts, including special acts or
services, benefit or affect the DeCA, in accordance with 5 U.S.C. 4503,
OPM regulations, and DoD Directive 5120.15 /7/ , ''Authority for
Approval of Cash Honorary Awards for DoD Personnel,'' August 13, 1985.
18. Maintain an official seal and attest to the authenticity of
official DeCA records under that seal.
The Director, DeCA may redelegate these authorities as appropriate,
and in writing, except as otherwise specifically indicated above or as
otherwise provided by law or regulation.
/1/ Copies may be obtained, at cost, from the National Technical
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
/2/ See footnote 1 to paragraph 1 of this appendix.
/3/ See footnote 1 to paragraph 1 of this appendix.
/4/ See footnote 1 to paragraph 1 of this appendix.
/5/ See footnote 1 to paragraph 1 of this appendix.
/6/ See footnote 1 to paragraph 1 of this appendix.
/7/ See footnote 1 to paragraph 1 of this appendix.
32 CFR 383a.8 PART 384 -- ASSISTANT SECRETARY OF DEFENSE (FORCE
MANAGEMENT AND PERSONNEL)
Sec.
384.1 Purpose.
384.2 Definitions.
384.3 Responsibilities.
384.4 Functions.
384.5 Relationships
384.6 Authorities.
Appendix A to Part 384 -- Delegations of Authority
Authority: 10 U.S.C. 136.
Source: 55 FR 5003, Feb. 13, 1990, unless otherwise noted.
32 CFR 384.1 Purpose.
This part establishes the position of Assistant Secretary of Defense
(Force Management and Personnel) (ASD(FM&P)), with responsibilities,
functions, relationships, and authorities, as prescribed herein.
32 CFR 384.2 Definitions.
DoD components. The Office of the Secretary of Defense (OSD); the
Military Departments; the Chairman, Joint Chiefs of Staff (CJCS); the
Joint Staff; the Unified and Specified Commands; the Office of the
Inspector General, Department of Defense (OIG, DoD); the Defense
Agencies, and the DoD Field Activities.
Reserve components. Refers collectively to the Army National Guard,
Army Reserve, Naval Reserve, Marine Corps Reserve, Air National Guard,
Air Force Reserve, and Coast Guard Reserve. The term ''National Guard
and Reserve'' is synonymous with the term ''Reserve components.''
Total force. The totality of organizations, units, and manpower that
comprise the Defense Department's resources for meeting the national
security strategy. It includes the manpower resources comprising DoD
Active and Reserve military personnel, military retirees, DoD civilian
personnel, contractor staff, and host-nation support personnel.
32 CFR 384.3 Responsibilities.
The Assistant Secretary of Defense (Force Management and Personnel)
(ASD(FM&P)), as the Principal Staff Assistant and advisor to the
Secretary of Defense for Total Force management, military and civilian
manpower, military and civilian personnel and training matters, military
and civilian family matters, and manpower requirements for weapons
support shall:
(a) Develop policies, conduct analyses, provide advice, make
recommendations, and issue guidance on DoD plans and programs.
(b) Develop systems and standards for the administration and
management of approved DoD plans and programs.
(c) Develop and promulgate plans, programs, actions, and taskings to
ensure adherence to DoD policies and national security objectives,
including military manpower and personnel mobilization preparedness
objectives and Total Force planning objectives, and to ensure that
military and civilian manpower and personnel programs and systems
efficiently and effectively support operational requirements and
manpower readiness and sustainability of the Total Force.
(d) Review and evaluate plans and programs to ensure adherence to
approved policies and standards.
(e) Participate in planning, programming, and budgeting activities
related to ASD(FM&P) functions.
(f) Promote coordination, cooperation and mutual understanding within
the Department of Defense and between the Department of Defense and
other Federal Agencies, State and local governments, and the civilian
community.
(g) Serve on boards, committees, and other groups pertaining to
assigned functional areas and represent the Secretary of Defense on
manpower and personnel matters outside the Department.
(h) Set manpower requirements determination policies, procedures, and
standards.
(i) When acting as the functional proponent or participating when a
system has a major impact on FM&P functional responsibilities, review
and evaluate the requirements for major automated information systems in
coordination with other members of the Major Automated Information
System Review Council (MAISRC).
(j) Serve as the chair of the Conventional Forces Readiness Committee
(CFRC) in accordance with DoD Directive 5120.50. /1/
/1/ Copies may be obtained, at cost, from the National Technical
Information Services, 5285 Port Royal Road, Springfield, VA 22161.
32 CFR 384.4 Functions.
The ASD(FM&P) shall carry out the responsibilities described in
384.3, for the following functional areas for the Total Force:
(a) Total Force structure analysis as related to quantitative and
qualitative manpower requirements, utilization, readiness, and support.
(b) The allocation of the Total Force structure among DoD Components
and between the Active and Reserve components within the Military
Departments.
(c) Development of civilian and military manpower, personnel,
training, education, and safety programs and data bases to meet
peacetime readiness, wartime sustainability, and system acquisition
requirements of the Department of Defense.
(d) Military and civilian manpower mobilization planning guidance and
coordination of manpower mobilization plans and their execution.
(e) Military and civilian manpower requirements analysis and related
resource distribution in support of peacetime operations and
mobilization needs.
(f) Administration and implementation of controls on military
manpower strengths.
(g) Recruiting, advertising, processing, and retaining military
personnel of the Armed Forces of the United States. This includes
oversight of enlistment standards, personnel selection and job
classification procedures, drug and alcohol testing of applicants and
members under provisions of the New Entrant Drug and Alcohol Testing
Program, and draft calls in the event of return to conscription.
(h) Compensation, retired pay, per diem, travel, and transportation
allowances for military and civilian personnel.
(i) Taxation of military personnel compensation and benefits.
(j) Personnel management systems.
(k) Labor-management relations.
(l) Nonappropriated fund instrumentalities.
(m) Commercial affairs, commissaries, and post exchanges.
(n) Morale, discipline, and welfare.
(o) Personnel requirements and utilization.
(p) Community services for DoD personnel and their dependents.
(q) Equal opportunity, and Dod contractor compliance with equal
employment opportunity requirements in Government contracts.
(r) Career development.
(s) DoD focal point for the provisions of DoD resources to other
agencies for law enforcement and refugee control.
(t) Review and evaluation of the requirements of Defense Acquisition
Board weapons programs and proposed weapons systems for manpower,
personnel, training, and safety implications, and the implications of
weapon system maintainability for qualitative and quantitative manpower
requirements.
(u) Accident prevention, occupational health, and safety.
(v) Economic adjustment.
(w) Dependents education.
(x) Manpower, personnel, and training research and development.
(y) Employee motivation policies and programs, including efficiency
reviews, to improve overall workforce productivity.
(z) Development of programs, unitiatives, and tools to enhance
productivity of DoD operations, including the Productivity-Enhancing
Capital Investment Program.
(aa) Family support policy and programs.
(bb) Defense Explosives Safety Program.
(cc) Equal opportunity management training.
(dd) Inter-Agency and intergovernmental activities stemming from the
above functions, and special projects or external requests that create a
demand for DoD manpower resources.
(ee) Productivity improvement initiatives.
(ff) Development of programs and procedures for detecting
drug/alcohol dependency within the DoD Dependent Schools system and
during pre-accession/new-entrant screening for military personnel.
32 CFR 384.5 Relationships.
(a) In the performance of assigned functions, the ASD(FM&P) shall:
(1) Coordinate and exchange information with other officials in the
Department of Defense exercising collateral or related functions.
(2) Use existing facilities and services of the Department of Defense
or other Federal Agencies, whenever practicable, to avoid duplication
and to achieve maximum efficiency and economy.
(3) Exercise direction, authority, and control over the Department of
Defense Dependents Schools; Armed Forces Chaplains Board; Armed Forces
Tax Council; DoD Corrections Council; DoD Explosives Safety Board;
Defense Equal Opportunity Council; Defense Equal Opportunity Management
Institute; Defense Advisory Committee on Women in the Services;
Defense Advisory Committee on Military Personnel Testing; Per Diem,
Transportation and Allowance Committee; Office of Economic Adjustment;
the activities of the President's Economic Adjustment Committee; and
the Joint Service Manpower and Training Research and Development
Committee.
(4) Provide policy guidance, goal-setting, and management supervision
for the Defense Manpower Data Center, DoD Office of the Actuary, DoD
Wage Fixing Authority, NAF Personnel Office, DoD Centralized Referral
Activity, U.S. Military Entrance Processing Command, Joint Recruiting
Advertising Program, Defense Productivity Program Office, Defense
Training and Performance Data Center, and Defense Activity for
Non-Traditional Education Support.
(b) Other OSD officials and heads of DoD Components shall coordinate
with the ASD(FM&P) on all matters related to the functions in 384.4.
32 CFR 384.6 Authorities.
The ASD(FM&P) is hereby delegated authority to:
(a) Issue DoD Instructions, DoD publications, and one-time
directive-type memoranda, consistent with DoD 5025.1-M, /2/ , that
implement policies approved by the Secretary of Defense in the functions
assigned to the ASD(FM&P). Instructions to the Military Departments
shall be issued through the Secretaries of those Departments, or their
designees. Instructions to Unified and Specified Commands shall be
issued through the chairman, Joint chiefs of Staff (CJCS).
(b) Establish and distribute civilian manpower authorizations of the
DoD Components and review and approve military and civilian manpower
authorization changes during program execution.
(c) Obtain reports, information, advice, and assistance, consistent
with DoD Directive 7750.5, /3/ as necessary, in carrying out assigned
functions.
(d) Communicate directly with the heads of DoD Components.
Communications to Commanders of the Unified and Specified Commands shall
be coordinated with the CJCS.
(e) Establish arrangements for DoD participation in nondefense
governmental programs for which the ASD(FM&P) is assigned primary DoD
cognizance.
(f) Communicate with other Government Agencies, representatives of
the legislative branch, and members of the public, as appropriate, in
carrying out assigned functions.
(g) Exercise authorities contained in appendix A to this part.
/2/ See footnote 1 to 384.3(j).
/3/ Ibid.
32 CFR 384.6 Pt. 384, App. A
32 CFR 384.6 Appendix A to Part 384 -- Delegations of Authority
Pursuant to the authority vested in the Secretary of Defense, and
subject to his direction, authority, and control, and in accordance with
DoD policies, Directives, and Instructions, the ASD(FM&P), or in the
absence of the ASD(FM&P), the person acting for the ASD(FM&P) is hereby
delegated authority to:
1. Serve for the Secretary of Defense as Chairman of the President's
Economic Adjustment Committee in accordance with Executive Order (E.O.)
12049, March 27, 1978.
2. Exercise the authorities of the Secretary of Defense to assist in
meeting the cost of providing increased municipal services and
facilities to the residents of communities located near major new DoD
installations (DoD Instruction 3030.2 /4/ , May 24, 1983).
3. Establish advisory groups for oversight of morale, welfare, and
recreation activities (DoD Directive 1015.1 /5/ , August 19, 1981).
4. Monitor vending facilities for the blind on Federal property and
suspend or terminate a permit to operate a vending facility (DoD
Directive 1125.3 /6/ , April 7, 1978).
5. Review annually deviations from Armed Services Exchange
Regulations granted by the Military Department Secretaries (DoD
Directive 1330.9 /7/ , December 15, 1986).
6. Act for the Secretary of Defense as the Secretary's representative
on the Consumer Affairs Council (DoD Directive 5030.56 /8/ , August 12,
1982).
7. Extend to other Military Departments the action taken by an
installation commander to deny or revoke the privileges of a company and
its agents to conduct commercial solicitation activities, after
consultation with the Department concerned (DoD Directive 1344.7 /9/ ,
February 13, 1986).
8. Act as the official liaison between the Department of Defense and
the American Red Cross (DoD Directive 1330.5 /10/ , August 16, 1969).
9. Act as liaison between the Department of Defense and the Federal
Bureau of Investigation and other government and civil law enforcement
agencies on absentee and deserter policy matters (DoD Directive 1325.2
/11/ , August 20, 1979).
10. Act as the official DoD liaison on policy matters concerning
relationships between the Department of Defense and the United Service
Organizations as prescribed in DoD Directive 1330.12 /12/ , November 9,
1987.
11. Suspend the forward movement of DoD noncombatants to any danger
area abroad (DoD Directive 5100.51 /13/ , October 11, 1966).
12. Act for the Secretary of Defense to approve or disapprove all
recommendations for the Defense Superior Service Medal other than those
for personnel assigned to the JCS (DoD 1348.33-M /14/ , August 26,
1985).
13. Determine acts or operations that warrant award of the
Humanitarian Service Medal (DoD 1348.33-M, August 26, 1985).
14. Award the Joint Meritorious Unit Award for joint activities that
report to a Principal Staff Assistant, to the Secretary of Defense, or
for which the Secretary of the Military Department concerned has been
designated as executive agent (DoD 1348.33-M, August 26, 1985).
15. Act for the Secretary of Defense to approve or disapprove
recommendations for the Secretary of Defense Award for Productivity
Excellence.
16. Establish educator positions; develop, adopt, and adjust
compensation schedules; and develop regulatory guidance regarding
orientation of educators employed in the DoD Dependents Schools System
(DoD Directive 1400.13 /15/ , July 8, 1976).
17. Prescribe initial clothing allowances for enlisted personnel (DoD
Instruction 1338.18 /16/ , July 29, 1985).
18. Approve uniform burial allowance (DoD Directive 1344.8 /17/ ,
September 25, 1978).
19. Act for the Secretary of Defense in conducting a review of the
military compensation system pursuant to Secretary of Defense
Memorandum, August 18, 1982.
20. Act for the Secretary of Defense in the administration of the
Defense Advisory Committee on Women in the Services (DoD Directive
5120.14 /18/ , April 3, 1987).
21. Determine that recruiting personnel are being barred from the
premises of institutions of higher learning as prescribed in Public Law
92-436, Department of Defense Authorization Act, 1973, September 26,
1972 (DoD Directive 1322.13 /19/ , May 9, 1984).
22. Issue DoD issuances pertaining to the management of commissioned
officers that are required to be issued by the Secretary of Defense
under those sections of Title 10, United States Code, added by Public
Law 96-513, Defense Officer Personnel Management Act, December 12, 1980,
as amended by P.L. 97-22, Defense Officer Personnel Management Act
Technical Corrections Act, July 10, 1981, except when such delegation is
specifically prohibited (Secretary of Defense Delegation Memorandum,
March 5, 1982).
23. Resolve all conflicting issues among the Discharge Review Boards
(DRBs) of the Military Departments, ensure uniformity in rights afforded
applicants in the discharge review process, modify enclosures or
supplements to governing Directives, and maintain the index of DRB
decisions (DoD Directive 1332.28 /20/ , August 11, 1982).
24. Conduct military base reuse studies and make grants, conclude
cooperative agreements, and supplement funds made available under other
Federal programs to assist State and local governments in plannng
community adjustment pursuant to Title 10, United States Code, Section
2391 (DoD Instruction 3030.2, May 24, 1983).
25. Coordinate appropriate DoD Federal development programs and
activities in the United States with State and local governments and
Federal Agencies, and encourage State and local governments and Federal
Agencies to coordinate their programs and activities with the Department
of Defense (DoD Directive 4165.61 /21/ , August 9, 1983).
26. Act for the Secretary of Defense as the designated safety and
occupational health official prescribed in E.O. 12196, February 26,
1980; DoD Directive 1000.3 /22/ , March 29, 1979; and DoD Directive
6055.9 /23/ , November 25, 1983, in carrying out the provisions of
Public Law 91-596, Occupational Safety and Health Act of 1970, December
29, 1970 (Title 29, United States Code, Section 651 et seq.), and in
promulgating explosive safety standards pursuant to Title 10, United
States Code, Section 172.
The ASD(FM&P) may redelegate these authorities, as appropriate, and
in writing, except as otherwise specifically indicated above or
prohibited by law or regulation.
/4/ Ibid.
/5/ Ibid.
/6/ Ibid.
/7/ Ibid.
/8/ Ibid.
/9/ Ibid.
/10/ Ibid.
/11/ Ibid.
/12/ Ibid.
/13/ Ibid.
/14/ Ibid.
/15/ Ibid.
/16/ Ibid.
/17/ Ibid.
/18/ Ibid.
/19/ Ibid.
/20/ Ibid.
/21/ Ibid.
/22/ See footnote 1 to 384.3(j).
/23/ Ibid.
32 CFR 384.6 PART 385 -- UNDER SECRETARY OF DEFENSE FOR POLICY
Sec.
385.1 Purpose.
385.2 Definition.
385.3 Responsibilities and functions.
385.4 Relationships.
385.5 Authorities.
Authority: 10 U.S.C. 134.
Source: 54 FR 33521, Aug. 15, 1989, unless otherwise noted.
32 CFR 385.1 Purpose.
The document revises 32 CFR part 385 and updates, pursuant to Title
10, United States Code, and consistent with Defense Management Report to
the President, June 1989, the position of Under Secretary of Defense for
Policy (USD(P)) with assigned responsibilities, functions, relationship,
and authorities as prescribed herein.
32 CFR 385.2 Definition.
DoD components. The Office of the Secretary of Defense, (OSD), the
Military Departments, the Joint Chiefs of Staff (JCS), the Joint Staff,
the Unified and Specified Commands, the Defense Agencies, and the DoD
Field Activities.
32 CFR 385.3 Responsibilities and functions.
The Under Secretary of Defense for Policy is the Principal Staff
Assistant and advisor to the Secretary of Defense for all matters
concerning the integration of DoD plans and policies with overall
national security objectives. In the exercise of this responsibility,
the USD(P) shall:
(a) Represent the Department of Defense, as directed, in matters
involving the National Security Council (NSC), Department of State
(DoS), and other Departments, Agencies, and interagency groups with
responsibilities in the national security area.
(b) Develop policies and coordinate implementation of arms control
negotiations, including DoD positions on arms reductions and other
defense-related international negotiations.
(c) Develop policies and oversee their implementation with respect to
the counterintelligence and security activities of the Department of
Defense; provide program management to the Foreign Counterintelligence
Program and to the Security and Investigative Activities Program; and
carry out the responsibilities of the Secretary for the administration
of National Disclosure Policy, and his responsibilities as the U.S.
Security Authority for North Atlantic Treaty Organization (NATO).
(d) Develop policies and coordinate implementation of DoD
political-military affairs, including: nuclear weapons policy and
strategy; special operations forces and low-intensity conflict; law of
the sea; foreign military rights; strategic offensive and defensive
forces; theater nuclear matters; general purpose forces; and the
relationship between strategic and theater force planning, programs, and
budgets.
(e) Review evaluations and develop recommendations to the Secretary
of Defense concerning plans and requirements for, and capabilities of,
existing or proposed United States or foreign forces and their
deployment, with particular attention to performance of missions which
are or may be critical in the consideration of U.S. national security
policy.
(f) Assist the Secretary of Defense in preparing written policy
guidance for the preparation and review of operational and contingency
plans, including those for nuclear and conventional forces (including
Special Operation Forces), and in reviewing such plans.
(g) Provide oversight of all DoD activities related to the NATO,
East-West economic policy, including East-West trade, and technology
transfer.
(h) Develop policies, plans, and procedures for the discharge of DoD
functions for emergency planning and preparedness, crisis management,
defense mobilization and expansion in emergency situations, military
support of civil authorities, and continuity of operations and
continuity of government; provide support, as required, to the
Department of Defense and other U.S. Government or State agencies on
these as well as civil defense and related matters.
(i) Develop policies, coordinate DoD participation, exercise OSD
management oversight, and provide appropriate OSD approval process for
DoD involvement in national security special activities, sensitive
support to non-DoD agencies, and other uniquely sensitive national
security programs. Provide special support to the Secretary of Defense
in connection with his participation in related NSC activities.
(j) Plan and conduct net assessments for the Secretary of Defense.
(k) Negotiate and monitor agreements with foreign governments and
defense alliances to which the United States is a party. Develop DoD
policies and coordinate plans and programs undertaken in cooperation
with foreign governments and military establishments, and represent the
Department of Defense, as directed, in the conduct of defense
relationships.
(l) Provide policy direction for defense security assistance matters;
monitor Military Assistance Advisory Groups and other missions
pertaining to security assistance; and negotiate and monitor security
assistance agreements with foreign governments.
(m) Develop DoD policy and coordinate actions relating to
humanitarian assistance support.
(n) Develop DoD space policy priorities, and review and evaluate
programs, plans, and systems requirements relating to the use of outer
space, including participation in outer space activities of the NSC and
other interagency fora, consistent with the provisions of DoD Directive
3500.1. /1/
(o) Serve as the Secretary's and Deputy Secretary's principal advisor
for the planning phase of the DoD Planning, Programming and Budgeting
System (PPBS), to include the lead role in developing overall policy,
defense strategy, and force and resource planning; serve as a key
participant in programming and budgeting decisions as well. Coordinate
the development and approval of the Defense Planning Guidance.
(p) Develop DoD policies and program concerning psychological
operations.
(q) Develop DoD policy guidance for DoD participation in
international activities supporting U.S. information programs.
(r) Perform such other functions as the Secretary of Defense may
prescribe.
/1/ Copies may be obtained, if needed, from the U.S. Naval
Publications and Forms Center, Attn: Code 1053, 5801 Tabor Avenue,
Philadelphia, PA 19120.
32 CFR 385.4 Relationships.
(a) In the performance of assigned functions and responsibilities,
the USD(P) shall:
(1) Exercise direction, authority, and control over:
(i) The Assistant Secretary of Defense (lnternational Security
Affairs).
(ii) The Assistant Secretary of Defense (lnternational Security
Policy).
(iii) The Assistant Secretary of Defense (Special Operations and
Low-Intensity Conflict).
(iv) The Principal Deputy Under Secretary of Defense (Strategy and
Resources).
(v) The Deputy Under Secretary of Defense (Security Policy).
(vi) The Deputy Under Secretary of Defense (Trade Security Policy).
(vii) The Director, Net Assessment.
(viii) The Defense Security Assistance Agency.
(ix) The Defense Technology Security Administration.
(x) The Defense Investigative Service.
(2) Coordinate and exchange information with other DoD and Federal
organizations having collateral or related functions.
(3) Use existing facilities and services, whenever practicable, to
achieve maximum efficiency and economy.
(b) DoD Components and organizations shall coordinate all matters
concerning the responsibilities and functions cited in 358.3 with the
USD(P).
32 CFR 385.5 Authorities.
The USD(P) is hereby delegated authority to:
(a) Issue DoD Instructions, DoD publications, and one-time
directive-type memoranda in assigned fields of responsibility,
consistent with the provisions of DoD 5025.1-M. Instructions to the
Military Departments shall be issued through the Secretaries of those
Departments or their designees. Instructions to Unified or Specified
Commands shall be issued through the Chairman of the Joint Chiefs of
Staff (JCS).
(b) Obtain such reports, information, advice and assistance, as
necessary, consistent with the policies and criteria of DoD Directive
7750.5. /2/
(c) Communicate directly on policy matters with heads of DoD
organizations, including the Secretaries of the Military Departments,
the CJCS, the JCS, the Directors of Defense Agencies, and, through the
CJCS, the Commanders of the Unified and Specified Commands.
(d) Communicate with other government agencies, representatives of
the Congress, members of the public, and representatives of foreign
governments, as appropriate, in carrying out assigned functions.
/2/ See footnote l to 385.3(n).
32 CFR 385.5 PART 386 -- ASSISTANT SECRETARY OF DEFENSE (INTERNATIONAL
SECURITY POLICY)
Sec.
386.1 Purpose.
386.2 Definition.
386.3 Responsibilities and functions.
386.4 Relationships.
386.5 Authorities.
386.6 Effective date.
Authority: 10 U.S.C. 136.
Source: 53 FR 29454, Aug. 5, 1988, unless otherwise noted.
32 CFR 386.1 Purpose.
This part:
(a) Establishes, pursuant to 10 U.S.C. 136, the position of Assistant
Secretary of Defense (International Security Policy) (ASD(ISP)) under
the direction, authority, and control of the Under Secretary of Defense
for Policy (USD(P)).
(b) Assigns responsibilities, functions, relationships, and
authorities, as prescribed herein Do the ASD(ISP) in accordance with DoD
Directive 5111.1. /1/
/1/ Copies may be obtained, if needed, from the U.S. Naval
Publications and Forms Center, Attn: Code 1062, 5801 Tabor Avenue,
Philadelphia, PA 19120.
32 CFR 386.2 Definition.
DoD Components. The Office of the Secretary of Defense, the Military
Departments, the Organization of the Joint Chiefs of Staff, the Unified
and Specified Commands, the Inspector General of the Department of
Defense, and the Defense Agencies.
32 CFR 386.3 Responsibilities and functions.
The Assistant Secretary of Defense (International Security Policy) is
the Principal Staff Assistant and advisor to the Under Secretary of
Defense for Policy and the Secretary of Defense for defense policy and
planning related to nuclear weapons policy and strategy, technology
transfer, East-West trade, arms negotiations and nuclear
nonproliferation. The ASD(ISP) is also the principal staff advisor on
other political-military and international economic matters involving
the North Atlantic Treaty Organization (NATO), Europe, and the Soviet
Bloc. In the exercise of these responsibilities, the ASD(ISP) shall:
(a) Formulate policy related to strategic offensive and defensive
forces including strategic reserve forces and theater nuclear forces.
(b) Formulate policy related to NATO, Europe, and the Soviet Bloc.
(c) Develop and oversee DoD policy for technology transfer matters
including, but not limited to, U.S. and Coordinating Committee (COCOM)
export licenses, strategic trade, munitions licenses, technology
transfer aspects of security assistance programs, U.S. and international
technology controls, arms cooperation programs, and international
personnel and technical data exchanges.
(d) Develop DoD policy positions and recommendations regarding
nuclear nonproliferation policy and arms control and disarmament
negotiations, both nuclear and conventional, as well as other
multilateral security negotiations.
(e) Conduct and manage day-to-day bilateral relations with all
foreign governments in assigned geographic areas of responsibility.
(f) Promote coordination, cooperation, and joint planning on
armaments development with NATO allies.
(g) Formulate policy related to strategic offensive and defensive
forces, including strategic reserve forces, theater nuclear forces,
nuclear forces and their employment, and pertinent budget
considerations, and provide oversight and implementation of that policy.
(h) Develop DoD positions and recommendations, and coordinate all
policy matters concerning security assistance, Military Assistance
Advisory Groups and other missions pertaining to security assistance for
NATO, NATO members, and other European countries.
(i) Develop, negotiate, and monitor defense cooperation agreements
with foreign governments in assigned geographic areas of responsibility.
(j) Provide international economic, trade, and security policy
guidance and recommendations on East-West and West-West relations and
the NATO Alliance, other European countries, and the Soviet Bloc,
including trade, export, economic security, energy, arms transfer and
collaboration, alliance readiness issues, and foreign investments in the
United States.
(k) Cooperate with the Under Secretary of Defense (Research and
Engineering) and the Assistant Secretary of Defense (Acquisition and
Logistics) to develop industrial cooperation and coproduction
arrangements with foreign countries under ASD(ISP) cognizance.
(l) Participate in those planning, programming, and budgeting
activities that relate to assigned areas of responsibility.
(m) Represent the Office of the USD(P) in National Disclosure Policy
Committee (NDPC) actions.
(n) Represent DoD on the Committee on Foreign Investment in the U.S.
(CFIUS).
(o) Serve as DoD focal point for Foreign Military Rights Affairs,
negotiations on military facilities, operating rights, status of forces
and international political-military matters, and monitor agreements
with foreign countries under ASD(ISP) cognizance.
(p) Perform such other duties as the Secretary of Defense and the
USD(P) may prescribe.
32 CFR 386.4 Relationships.
(a) In the performance of duties, the ASD(ISP) shall:
(1) Coordinate and exchange information with other DoD and Federal
organizations having collateral or related functions.
(2) Use existing facilities and services, whenever practicable, to
achieve maximum efficiency and economy.
(b) DoD Components shall coordinate all matters concerning the
responsibilities and functions cited in 386.3 with the ASD(ISP).
32 CFR 386.5 Authorities.
The ASD(P) is hereby delegated authority to:
(a) Issue DoD Instructions, DoD publications, and one-time
directive-type memoranda, consistent with the DoD 5025.1-M, which carry
out policies approved by the Secretary of Defense, in assigned areas of
responsibility. Instructions to the Military Departments shall be
issued through the Secretaries of those Departments or their designees.
Instructions to Unified and Specified Commands shall be issued through
the Joint Chiefs of Staff (JCS).
(b) Participate in interdepartmental activities as required to carry
out functions.
(c) Obtain such reports, information, advice, and assistance,
consistent with policies and criteria of DoD Directive 5000.19, /2/ as
necessary.
(d) Communicate directly with heads of DoD Components.
Communications to the Commanders of the Unified and Specified Commands
shall be coordinated with the JCS; all JCS security assistance
communicates regarding NATO and Europe shall be coordinated with the
ASD(ISP).
(e) Establish arrangements for DoD participation in those non-DoD
governmental programs for which primary cognizance is assigned.
(f) Communicate with other government agencies, representatives of
the Legislative Branch, and the public, as appropriate, in carrying out
assigned functions.
/2/ See footnote 1 to 386.1(b).
32 CFR 386.6 Effective date.
This part is effective September 27, 1985.
32 CFR 386.6 PART 387 -- ASSISTANT SECRETARY OF DEFENSE (INTERNATIONAL
SECURITY AFFAIRS)
Sec.
387.1 Purpose.
387.2 Definition.
387.3 Responsibilities and functions.
387.4 Relationships.
387.5 Authorities.
387.6 Effective date.
Authority: 10 U.S.C. 136.
Source: 53 FR 29330, Aug. 4, 1988, unless otherwise noted.
32 CFR 387.1 Purpose.
This part:
(a) Establishes, pursuant to 10 U.S.C. 136, the position of Assistant
Secretary of Defense (International Security Affairs) (ASD(ISA)) under
the direction, authority, and control and the Under Secretary of Defense
for Policy (USD(P)) in accordance with DoD Directive 5111.1 /1/
(b) Assigns responsibilities, functions, relationships, and
authorities, as prescribed herein, to the ASD(ISA).
/1/ Copies may be obtained, if needed from the U.S. Naval
Publications and Forms Center, Attn: Code 1062, 5801 Tabor Avenue,
Philadelphia PA 19120.
32 CFR 387.2 Definition.
DoD Components. The Office of the Secretary of Defense, the Military
Departments, the Organization of the Joint Chiefs of Staff, the Unified
and Specified Commands, the Inspector General of the Department of
Defense, and the Defense Agencies.
32 CFR 387.3 Responsibilities and functions.
The Assistant Secretary of Defense (International Security Affairs)
is the Principal Staff Assistant and advisor to the Under Secretary of
Defense for Policy and the Secretary of Defense concerning DoD policy
related to general purposes forces, law of the sea, special operations
forces and counter-terrorism, and humanitarian assistance. The ASD(ISA)
is also the principal staff advisor on other political-military and
international economic matters involving foreign countries with the
exception of the North Atlantic Treaty Organization (NATO), Europe, and
the Soviet Bloc. In the exercise of these responsibilities, the
ASD(ISA) shall:
(a) Develop policies and plans, and overall programs related to
general purpose forces, law of the sea, special operations forces and
counter-terrorism, and humanitarian assistance.
(b) Provide DoD policy guidance and recommendations regarding
contingency planning; international trade and energy policy, except
technology transfer; economic security relations with foreign
countries; and other political-military matters in assigned geographic
areas of responsibility.
(c) Develop DoD positions, and recommendations, and coordinate policy
matters concerning security assistance, Military Assistance Advisory
Groups and other missions pertaining to security assistance in assigned
geographic areas of responsibility.
(d) Develop, negotiate, and monitor defense cooperation agreements
with foreign governments in assigned geographic areas of responsibility.
(e) Conduct and manage day-to-day bilateral relations with all
foreign governments in assigned areas of responsibility.
(f) Cooperate with the Under Secretary of Defense (Research and
Engineering) and the Assistant Secretary of Defense (Acquisition and
Logistics) to develop industrial cooperation and coproduction
arrangements for assigned geographic areas of responsibility.
(g) Serve as DoD focal point for Foreign Military Rights Affairs,
negotiations on military facilities, operating rights, status of forces
and international political-military matters, and monitor agreements
with foreign countries for assigned geographic areas of responsibility.
(h) Participate in those planning, programming, and budgeting
activities that relate to assigned areas of responsibility.
(i) Perform such other duties as the Secretary of Defense and the
USD(P) may prescribe.
32 CFR 387.4 Relationships.
(a) In the performance of assigned responsibilities and functions,
the ASD(ISA) shall:
(1) Coordinate and exchange information with other DoD and federal;
organizations having collateral or related functions.
(2) Use existing facilities and services, whenever practicable, to
achieve maximum efficiency and economy.
(b) DoD Components shall coordinate all matters concerning the
responsibilities and functions cited in 387.3 with ASD(ISA).
32 CFR 387.5 Authorities.
The ASD(ISA) is hereby delegated authority to:
(a) Issue DoD Instructions, DoD publications, and one-time
directive-type memoranda, consistent with DoD 5025.1-M, which carry out
policies approved by the Secretary of Defense, in assigned areas of
responsibility. Instructions to the Military Departments shall be
issued through the Secretaries of those Departments of their designees.
Instructions to Unified and Specified Commands shall be issued through
the Joint Chiefs of Staff (JCS).
(b) Obtain such reports, information, advice, and assistance,
consistent with the policies and criteria of DoD Directive 5000.19 /2/
as necessary.
(c) Communicate directly with heads of DoD Components.
Communications with the Unified and Specified Commands shall be
coordinated with the JCS; all JCS security assistance communications
(except those dealing with NATO and the European countries) shall be
coordinated with the ASD(ISA).
(d) Establish arrangements for DoD participation in those non-DoD
governmental programs for which primary cognizance is assigned.
(e) Communicated with other government agencies, representatives of
the Congress, and the public, as appropriate, in carrying out assigned
functions.
/2/ See footnote 1 to 387.1(a).
32 CFR 387.6 Effective date.
This part is effective September 27, 1985.
32 CFR 387.6 PART 388 -- STRATEGIC DEFENSE INITIATIVE ORGANIZATION
Sec.
388.1 Purpose.
388.2 Applicability.
388.3 Mission.
388.4 Organization and management.
388.5 Functions and responsibilities.
388.6 Relationships.
388.7 Authorities.
388.8 Administration.
388.9 Effective date.
Appendix -- Delegations of Authority
Authority: 10 U.S.C. 192.
Source: 53 FR 10876, Apr. 4, 1988, unless otherwise noted.
32 CFR 388.1 Purpose.
This part establishes, pursuant to the authority vested in the
Secretary of Defense under 10 U.S.C. and National Security Decision
Directive 119, January 6, 1984, the Strategic Defense Initiative
Organization (hereafter referred to as ''SDIO'') as an agency of the
Department of Defense with responsibilities, functions, relationships,
and authorities as prescribed herein.
32 CFR 388.2 Applicability.
This applies to the Office of the Secretary of Defense (OSD), the
Military Departments, the Organization of the Joint Chiefs of Staff
(OJCS), the Unified and Specified Commands, the Inspector General of the
Department of Defense (IG, DoD), and the Defense Agencies (hereafter
referred to as ''DoD Components'').
32 CFR 388.3 Mission.
SDIO shall manage and direct the conduct of a vigorous research
program, including advanced technologies, that will provide the basis
for an informed decision regarding the feasibility of eliminating the
threat posed by nuclear ballistic missiles of all ranges, and of
increasing the contribution of defensive systems to U.S. and allied
security. The program shall protect options for near-term deployment of
limited ballistic missile defenses. The program shall be carried out in
full consultation and, where appropriate, with participation of our
allies. The program shall be conducted in compliance with all existing
treaty obligations and will emphasize non-nuclear technologies.
32 CFR 388.4 Organization and management.
(a) SDIO is established as a separate agency of the Department of
Defense under the direction, authority, and control of the Secretary of
Defense, and shall function under the overall supervision of the Deputy
Secretary of Defense. It shall consist of a Director, appointed by the
Secretary of Defense, and such subordinate organizational elements as
are established by the Director within resources authorized by the
Secretary of Defense.
(b) The SDI Executive Committee (EXCOM) shall provide DoD oversight
and guidance for the internal management of the Strategic Defense
Initiative Program (SDIP). The EXCOM shall provide formal review of the
program for the Secretary of Defense. It shall be chaired by the Deputy
Secretary of Defense and shall include as members: the Vice Chairman of
the Joint Chiefs of Staff; the Secretaries of the Military Departments
and Chiefs of the Military Services; the Under Secretaries of Defense;
the Assistant Secretary of Defense (Comptroller) (ASD(C)); the
Assistant Secretary of Defense (Production and Logistics) (ASD(P&L));
the Assistant Secretary of Defense (Command, Control, Communications,
and Intelligence) (ASD(C3I)); the Assistant Secretary of Defense
(Legislative Affairs); the Director of Operational Test and Evaluation
(Director, OT&E); the Assistant to the Secretary of Defense (Atomic
Energy); the Director, Program Analysis and Evaluation (DPA&E); and
the Directors of the Defense Advanced Research Projects Agency and the
Defense Nuclear Agency. The Director, SDIO, shall serve as Executive
Secretary of the EXCOM.
32 CFR 388.5 Functions and responsibilities.
(a) The Director, SDIO, is the principal advisor to the Secretary of
Defense and the Deputy Secretary of Defense for SDIP programmatic
policy, requirements, priorities, systems, resources and programs. The
DSDIO shall, under the overall supervision of the Deputy Secretary of
Defense and subject to the direction of the Secretary of Defense and
Deputy Secretary of Defense, organize, direct, and manage the SDIO and
exercise management oversight of all DoD SDIP programs and resources.
In the performance of these responsibilities, the Director shall:
(1) Develop programmatic policies, issue program guidance, and assign
project responsibility to DoD Components.
(2) Develop systems, standards, and procedures for the administration
and management of approved SDI plans and programs; establish program
goals and objectives; set priorities; and evaluate DoD Componet SDI
program activities.
(3) In coordination with the ASD(C) and DPA&E, review DoD Component
SDI Program Objectives Memoranda (POMs) and budget submissions; make
determinations regarding priorities and resources; prepare the
consolidated SDI POM; provide recommendations on Program Budget
Decisions to the ASD(C) and DPA&E or incorporation into the planning,
programming, and budgeting system (PPBS) process; and initiate and
implement Congressional reprogramming actions.
(4) Make such determinations regarding priorities and resources as
may be required to achieve approved program objectives.
(5) Serve as SDI Acquisition Executive for the SDIO.
(6) In coordination with appropriate DoD officials, identify service,
agency, and SDIO responsibilities for program execution, and in such
cases where source-selection is not delegated to the Military
Departments and Defense Agencies, retain authority within SDIO.
(7) In coordination with the Under Secretary of Defense (Acquisition)
(USD(A)), develop mechanisms for coordinating SDI programs with other
DoD research, development, test and evaluation efforts.
(8) Oversee the participation of U.S. allies in the SDIP. Through
coordination with the appropriate executing agent, delegate
international projects to the Military Departments of Defense Agencies.
(9) Present the SDI POM, the annual budget, and periodic program
reviews to the SDIO EXCOM.
(10) In consideration of the Chairman, Joint Chiefs of Staff;
Military Department; and Defense Agency requirements and
recommendations, plan for future transition of the SDI research program
into development and subsequent production and deployment.
(11) Perform research to establish supportability criteria for the
integration of logistic factors with system architectures, concepts, and
design activity during the early phases of the SDIP.
(12) Serve as principal DoD official responsible for presenting the
SDIP budget to the Congress.
(13) Serve as principal public spokesperson for the SDIP.
(14) Promote coordination, cooperation, and mutual understanding
within the Department of Defense and between the Department of Defense
and other Federal Agencies, and the civilian community.
(15) Serve on boards, committees, and other groups pertaining to SDIO
functions and responsibilities.
(16) Establish internal procedures for compliance with the ABM Treaty
and other SAL Agreements, pursuant to DoD Directive 5100.70. /1/
(17) Perform such other duties as the Secretary of Defense or Deputy
Secretary of Defense may prescribe.
(b) DoD Components shall provide advice and support to the DSDIO in
accordance with applicable DoD Directives.
(c) The Secretaries of the Military Departments and Directors of
Defense Agencies shall:
(1) Execute SDI programs as approved by the Secretary of Defense.
(2) Establish a streamlined management structure and procedure: to
include a single office of primary responsibility to facilitate
expedited communications and actions on the SDI program.
(3) Provide program recommendations to the Director, SDIO, for
consideration in the development of the SDI POM. These recommendations
shall be developed as an integral part of the Military
Departments/Defense Agencies POM process. The participating Military
Departments and Defense Agencies must review their assigned work
packages and resources to ensure that supporting Military
Departments/Defense Agency requirements are adequately addressed (e.g.,
manpower, facilities, etc.).
(4) Submit program documentation and reports required by the
Director, SDIO.
(5) Establish simplified contract/procurement procedures for and
creative methods of achieving program objectives consistent with
applicable laws and good management practice.
(d) The Chairman of the Joint Chiefs of Staff (CJCS) shall provide
strategic guidance and define operational concepts and requirements.
/1/ Copies may be obtained, if needed, from the U.S. Naval
Publications and Forms Centers, Attn: Code 1052, 5801 Tabor Avenue,
Philadelphia, PA 19120.
32 CFR 388.6 Relationships.
(a) In the performance of assigned functions, the Director, SDIO,
shall:
(1) Serve as a member of the Defense Resources Board when SDI matters
are under consideration and Executive Secretary of the SDI Executive
Committee.
(2) Consult with the CJCS and Under Secretary of Defense for Policy
when addressing issues under their respective purview, to include the
strategy and policy implications of defensive capabilities.
(3) Establish, in consultation with the USD(A), ASD(P&L), ASD(C) and
the Director, OT&E, mechanisms for coordination of SDI programs with
other DoD technical efforts.
(4) Establish procedures for streamlined communications with each
Military Department and Defense Agency involved in the SDI Program.
(5) Maintain active liaison for the exchange of information and
advice in the field of assigned responsibility with all DoD Components,
other U.S. Government activities, and non-DoD research institutions
(including private business entities and educational institutions).
(6) Keep the Secretary of Defense, the Deputy Secretary of Defense
the OSD Staff, the Secretaries and Chiefs of the Military Departments,
the CJCS, and other DoD and non-DoD U.S. Government Agencies informed on
schedules, status, and significant new developments, breakthroughs, and
technological advances within assigned projects.
(7) Make appropriate use of established facilities in the OSD, other
DoD Components, and other Government Agencies rather than unnecessarily
duplicating such facilities.
(8) Operate within the DoD Acquisition System, taking direction from
the USD(A) on matters of acquisition policy, procedure, and execution,
consistent with DoD Directive 5134.1. /2/
(9) Coordinate and exchange information with other DoD officials
having collateral and related functions.
(b) Within available resources, officials of all DoD Components will
provide support, in their respective fields of responsibility, to the
Director, SDIO, as may be necessary to carry out the assigned
responsibilities and functions of the SDIO.
(c) Other DoD officials shall coordinate with the Director, SDIO,
concerning the functions and responsibilities cited in 388.5.
/2/ See footnote 1 to 388.5(a)(16).
32 CFR 388.7 Authorities.
The Director, SDIO, is hereby delegated authority to:
(a) Enter into and administer contracts, directly or through a
Military Department, a DoD contract administration services component,
or other governmental department or agency, as appropriate, for
supplies, equipment, and services required to accomplish the mission of
the SDIO.
(b) Serve as the head of an Agency and Contracting Activity within
the meaning of and subject to the limitations of FAR 2.1, and DoD FAR
Supplement 2.1, for the SDIO.
(c) Authorize the allocation/sub-allocation of funds made available
to SDIO for assigned research and development projects.
(d) Acquire or construct, through a Military Department or other
Government Agency, such research, development, and test facilities and
equipment required to carry out assignments that may be approved by the
Secretary of Defense or Deputy Secretary of Defense in accordance with
applicable statutes.
(e) Negotiate agreements, as necessary, with other U.S. agencies and
organizations to ensure proper coordination and execution of the SDIP.
(f) Negotiate agreements, as necessary, with foreign governments to
execute allied participation in the SDI research program. These
agreements will be subject to approval by duly constituted DoD
authorities.
(g) Recommend to the Secretary of Defense, Deputy Secretary of
Defense, or USD(A) revisions or exceptions to Military
Department/Defense Agency regulations, Directives, procedures or
Instructions for, or related to, acquisition for individual or a class
of SDIO requirements as determined necessary to accomplish the SDIO
objectives.
(h) Communicate directly with heads of the DoD organizations,
including the Secretaries and Chiefs of the Military Departments, the
CJCS, the Directors of Defense Agencies, and, under special
circumstances, with the Commanders of the Unified and Specified
Commands.
(i) Establish special security procedures for sensitive SDI research
programs.
(j) Exercise the administrative authorities contained in the Appendix
of this part.
32 CFR 388.8 Administration.
(a) SDIO shall be authorized such personnel, facilities, funds, and
other administrative support as the Secretary of Defense deems
necessary.
(b) The Military Departments shall assign personnel to SDIO in
accordance with approved authorizations and procedures for assignment to
joint duty.
(c) Administrative support required for SDIO will be provided by the
Director, Washington Headquarters Services, and other DoD Components, as
appropriate.
32 CFR 388.9 Effective date.
This part is effective June 4, 1987.
32 CFR 388.9 Appendix -- Delegations of Authority
32 CFR 388.9 Pt. 388, Appendix
Pursuant to the authority vested in the Secretary of Defense, and in
accordance with DoD policies, Directives, and Instructions, the Director
of the Strategic Defense Initiative Organization (DSDIO) or, in the
absence of the Director, the person acting for him or her, is hereby
delegated authority, as required in the administration and operation of
the Strategic Defense Initiative Organization to:
1. Perform the following functions in accordance with the provisions
of Title 5, United States Code, section 7532; Executive Order 10450,
''Security Requirements for Government Employment,'' April 27, 1953;
and DoD 5200.2-R, ''DoD Personnel Security Program,'' December 20, 1979:
a. Designate any position in the SDIO as a ''sensitive'' position.
b. Authorize, in case of an emergency, the appointment of a person to
a sensitive position in the SDIO, for a limited period of time, for whom
a full field investigation or other appropriate investigation, including
the National Agency Check, has not been completed.
c. Authorize the suspension, but not the termination, of the services
of an SDIO employee in the interest of national security.
2. Authorize and approve:
a. Travel for SDIO civilian employees in accordance with Volume II,
Joint Travel Regulations.
b. Temporary duty travel only for military personnel assigned or
detailed to SDIO in accordance with Volume I, Joint Travel Regulations.
c. Invitational travel to persons serving without compensation whose
consultative, advisory, or other specialized technical services are
required in a capacity directly related to, or in connection with, SDIO
activities.
3. Approve the expenditure of funds available for travel by military
personnel assigned or detailed to SDIO for expenses incident to
attendance at meetings of technical, scientific, professional, or other
similar organizations in such instances where the approval of the
Secretary of Defense or his designee is required by law (37 U.S.C.
412). This authority cannot be redelegated.
4. Develop, establish, and maintain an active and continuing Records
Management Program under DoD Directive 5015.2, ''Records Management
Program,'' September 17, 1980; DoD Directive 5400.7, ''DoD Freedom of
Information Act Program,'' March 24, 1980; and DoD Directive 5400.11,
''Department of Defense Privacy Program,'' June 9, 1982.
5. Establish and use imprest funds for making small purchases of
material and services, other than personal, for the SDIO when it is
determined more advantageous and consistent with the best interests of
the Government, in accordance with DoD Instruction 5100.71, ''Delegation
of Authority and Regulations Relating to Cash Held at Personal Risk
Including Imprest Funds,'' March 5, 1973, and the Joint Regulation of
the General Services Administration/Treasury.
6. Authorize and approve overtime work for civilian personnel in SDIO
in accordance with the provisions of the Federal Personnel Manual
Supplement 990-1, section 550.111.
7. Establish and maintain appropriate property accounts for SDIO and
appoint boards of survey, approve reports of survey, relieve personal
liability, and drop accountability for SDIO property contained in the
authorized property accounts that have been lost, damaged, stolen,
destroyed, or otherwise rendered unserviceable, in accordance with
applicable laws and regulations.
8. Establish and maintain, for the functions assigned, an appropriate
publications system for the promulgation of regulations, instructions,
and reference documents, and changes thereto, pursuant to the policies
and procedures prescribed in DoD 5025.1-M, ''Department of Defense
Directives System Procedures,'' April 1981.
9. Issue the necessary security regulations for protection of
property and places under the jurisdiction of the SDIO, under DoD
Directive 5200.8, ''Security of Military Installations and Resources,''
July 29, 1980.
10. Exercise original TOP SECRET classification authority.
11. Establish security classification guidance and review policy.
12. In coordination with the Deputy Assistant Secretary of Defense
(Administration), enter into interservice support agreements with the
Military Departments, other DoD components, or other Government Agencies
as required, for the effective performance of responsibilities and
functions assigned to the SDIO.
13. Establish advisory committees pursuant to the provisions of the
Federal Advisory Committee Act of 1972 (Pub. L. 92-463) and DoD
Directive 5105.18, ''DoD Committee Management Program,'' March 20, 1984.
14. Authorize the publication of advertisements, notices or proposals
in newspapers, magazines, or other public periodicals as required for
the effective administration and operation of SDIO ( 44 U.S.C. 3702).
15. Request specific Military Departments and Defense Agencies to
serve as contracting activities for the SDIO, as necessary.
32 CFR 388.9 PART 389 -- DIRECTOR OF NET ASSESSMENT
Sec.
389.1 Purpose.
389.2 Definition.
389.3 Responsibilities.
389.4 Functions.
389.5 Authorities.
389.6 Relationships.
389.7 Effective date.
Authority: 10 U.S.C. 131.
Source: 53 FR 29456, Aug. 5, 1988, unless otherwise noted.
32 CFR 389.1 Purpose.
This part:
(a) Establishes, pursuant to 10 U.S.C. 131, the position of Director
of Net Assessment under the direction, authority, and control of the
Under Secretary of Defense for Policy (USD(P)) in accordance with DoD
Directive 5111.1. /1/
(b) Assigns responsibilities, functions, relationships, and
authorities, as prescribed herein, to the Director of Net Assessment.
/1/ Copies may be obtained if needed, from the U.S. Naval
Publications and Forms Center, Attn: Code 1062, Tabor Avenue,
Philadelphia, PA 19120.
32 CFR 389.2 Definition.
DoD Components. The Office of the Secretary of Defense, the Military
Departments, the Organization of the Joint Chiefs of Staff, the Unified
and specified Commands, the Inspector General of the Department of
Defense, and the Defense Agencies.
32 CFR 389.3 Responsibilities.
The Director of Net Assessment shall be the Principal Staff Assistant
and advisor to the Under Secretary of Defense for Policy (USD(P)) and
the Secretary of Defense on net assessment matters.
32 CFR 389.4 Functions.
Under the general direction of the USD(P), pursuant to DoD Directive
5111.1, and the Secretary of Defense, the Director of Net Assessment
shall perform the following functions:
(a) Develop net assessments of current and projected U.S. and foreign
military capabilities by theater, region, function, or mission. In
accomplishing these net assessments, the Director may call upon all
available intelligence data and all available friendly force data.
(b) Accomplish or provide for the development of specific net
assessments of current and projected U.S. and foreign capabilities,
operational tactics, doctrine and major weapons categories or systems.
(c) Develop, advise, and consult on the net assessment portion of the
Secretary's Annual Defense Report, congressional testimony, and foreign
government discussions, and provide guidance for the preparation of the
Chairman, Joint Chiefs of Staff (CJCS) Posture Statement.
(d) Provide guidance or staff assistance and representation for the
Secretary of Defense in the development of national act assessments by
the National Security Council and act as primary focal point for joint
efforts with the intelligence community to produce net assessments.
(e) Coordinate and review net assessment efforts throughout the
Department of Defense.
(f) Provide support for the improvement and development of net
assessments within the Department of Defense, including, but not limited
to, the maintenance of a library of historical all-source intelligence
and friendly force data.
(g) Provide objective analysis of policy, doctrine, strategy, goals,
and objectives, as requested or determined necessary.
32 CFR 389.5 Authorities.
In the discharge of responsibilities and performance of functions as
prescribed herein, the Director of Net Assessment is hereby delegated
the following authorities on behalf of the USD(P) and the Secretary of
Defense:
(a) Task directly the organizational elements within the DoD
Components, and the intelligence community to provide assistance,
information consistent with DoD Directive 5000.19, /2/ data processing,
and other support for the development of net assessment and other
related functions, such as strategic planning and strategic force plans,
as necessary,
(b) Obtain external assistance, as appropriate, from the Defense
Agencies, intelligence community, and other organizations of the
executive and legislative branches of the government,
(c) Direct the work of assigned staff, and convene and direct the
performance of working groups, task forces, and other provisional
bodies, as appropriate, in the development of net assessments or
execution of other assigned functions.
(d) Communicate with other government agencies as necessary to
perform assigned functions.
/2/ See footnote 1 to 387.1(a).
32 CFR 389.6 Relationships.
The Director of Net Assessment shall report through the USD(P) to the
Secretary of Defense.
32 CFR 389.7 Effective Date.
This part is effective September 27, 1985.
32 CFR 389.7 PART 390 -- ARMED FORCES RADIOBIOLOGY RESEARCH INSTITUTE
Sec.
390.1 Purpose.
390.2 Applicability.
390.3 Policy.
390.4 Responsibilities.
390.5 Organization.
390.6 Functions.
390.7 Authority.
390.8 Effective date and implementation.
Authority: 10 U.S.C. 133.
Source: 53 FR 16254, May 6, 1988, unless otherwise noted.
32 CFR 390.1 Purpose.
This part is issued to update and clarify the responsibilities and
functions of the Armed Forces Radiobiology Research Institute (AFRRI).
It sets forth the organizational relationships and establishes the
management and administrative procedures for AFRRI, in accordance with
32 CFR part 381 and provides for the establishment of a Board of
Governors.
32 CFR 390.2 Applicability.
This part applies to the Office of the Secretary of Defense (OSD),
the Military Departments, the Organization of the Joint Chiefs of Staff
(NJCS), and the Defense Agencies (hereafter referred to collectively as
''DoD Components''). The term ''Military Services,'' as used herein,
refers to the Army, Navy, Air Force, and Marine Corps.
32 CFR 390.3 Policy.
It is DoD Policy that:
(a) AFRRI is designated a subordinate command of the Defense Nuclear
Agency (DNA) established under the authority vested in the Secretary of
Defense.
(b) AFRRI shall serve as the principal ionizing radiation
radiobiology research laboratory for the Department of Defense and shall
support defense research requirements identified by the DoD Components.
AFRRI may provide services and perform cooperative research with other
Federal and civilian agencies and institutions with the approval of the
Director, DNA.
(c) The mission of AFRRI shall be to conduct research in the field of
radiobiology and related matters essential to the operational and
medical support of the Department of Defense and the Military Services.
(d) For purposes of cognizance by the Under Secretary of Defense for
Acquisition (USD(A)), the AFRRI program shall be considered an integral
part of the medical and life sciences research, development, test, and
evaluation program.
32 CFR 390.4 Responsibilities.
(a) The Director, Defense Nuclear Agency, shall:
(1) Manage the AFRRI, as provided by 32 CFR part 381.
(2) Provide adequate support for the operation and maintenance of
AFRRI within the limits of resources available to the DNA for such
purposes.
(3) Chair the AFRRI Board of Governors, which shall consist of the
Surgeons General of the Army, Navy, and Air Force; the Deputy Chiefs of
Staff for Operations of the Army, Navy, and Air Force, or their
designated representatives; and representatives of the (USD(A)) and the
Assistant Secretary of Defense for Health Affairs (ASD(HA)). The Board
of Governors shall:
(i) Meet at least annually and at the call of the Chair.
(ii) Invite advisors to these meetings.
(iii) Make periodic visits to AFRRI.
(iv) Advise the Director, DNA, and the Director, AFRRI, on AFRRI's
performance by doing the following:
(A) Review the AFRRI research program and scientific findings.
(B) Provide advice on the long term direction of AFRRI's research
program.
(C) Facilitate the communication of Service requirements and the
dissemination of AFRRI research findings.
(D) Review Service nominations for Director, AFRRI, and provide a
prioritized list of nominees to the Director, DNA.
(b) The Director, Armed Forces Radiobiology Research Institute
(AFRRI), shall:
(1) Execute the approved day-to-day research program.
(2) Prepare the AFRRI long-range research program; annual planning,
programming, and budgeting system submission; and facilities master
plans for approval by the Director, DNA.
(3) Plan, program, and budget for funds to include in the DNA
program. This does not prevent AFRRI's participation in reimbursable
activities, subject to the approval by the Director, DNA.
32 CFR 390.5 Organization.
AFRRI shall consist of a Director, a Scientific Director, and a
supporting staff:
(a) The Director, AFRRI, shall be a military officer (in grade O-6)
who holds an earned doctoral degree in one of the life sciences. The
candidates for Director shall be nominated by the Surgeons General of
the Army, Navy, and Air Force. Each Service shall nominate one
individual with the proper background. Candidates shall be nominated on
the basis of professional qualifications and demonstrated management
ability. The Board of Governors shall review the Service nominees and
provide a prioritized list of candidates to the Director, DNA, who shall
select and appoint the Director, AFRRI. This appointment shall be for a
4-year period.
(b) The Scientific Director shall be a civilian with professional
qualifications acceptable to the Board of Governors and the Director,
AFRRI.
(c) The professional, technical, and supporting staff shall consist
of military and civilian personnel authorized by a Joint Table of
Distribution (JTD), developed by the Director, AFRRI, with approval of
Director, DNA, and approved by the Joint Chiefs of Staff (JCS). Insofar
as possible, the military members of the staff shall be provided equally
by the Military Departments.
(d) The Military Departments shall assign military personnel to AFRRI
in accordance with approved authorizations. Procedures for such
assignments shall be as agreed between the Director, DNA, and the
individual Military Departments.
(e) The pay, allowances (including subsistence), and permanent
change-of-station costs of military personnel assigned to AFRRI shall be
budgeted for and paid by the Military Department concerned.
Additionally, these and other costs that are caused by or benefiting
AFRRI, regardless of financing, shall be allocated to AFRRI in
accordance with DoD Instruction 7220.24 /1/ to identify the total cost
associated with operating AFRRI and the share of that total cost
allocatable to each of AFRRI's research projects.
/1/ Copies may be obtained, if needed, from the U.S. Naval
Publication and Forms Center, Attention: Codes 1052, Philadelphia, PA
19120.
32 CFR 390.6 Functions.
Under established DoD policies, AFRRI shall:
(a) Operate research facilities for the study of radiobiology and
ionizing radiation bioeffects, and disseminate the results.
(1) The scope of this research shall reflect requirements identified
by DoD Components in support of military operational planning and
employment (current and future), and shall give special emphasis to
individual and organizational performances under nuclear combat
conditions in realistc operational scenarios.
(2) The AFRRI program shall consider the present and projected
threats, Service operational concepts and weapons, and defense systems
developments.
(b) Provide analysis, study, and consultation on the impact of the
biological effects of ionizing radiation on the organizational
efficiency of the Military Services and their members.
(c) Conduct cooperative research with the Military Medical
Departments in those aspects of military operational and medical support
considerations related to nuclear weapons effects and the radio
biological hazards of space operations.
(d) Conduct advanced training in the field of radiobiology and the
biological effects of nuclear weapons to meet the internal requirements
of AFRRI, the Military Services, and other DoD Components and
organizations.
(e) Perform such other functions as may be assigned.
32 CFR 390.7 Authority.
32 CFR part 381 applies to the Director, DNA, for exercising
head-quarters management of AFRRI and fulfilling the functional
responsibilities implicit in this part.
32 CFR 390.8 Effective date and implementation.
This part is effective November 25, 1987. Forward two copies of
implementing documents to the Under Secretary of Defense of Acquisition
within 120 days.
32 CFR 390.8 PART 390a -- ARMED FORCES INSTITUTE OF PATHOLOGY (AFIP)
Sec.
390a.1 Purpose.
390a.2 Definition.
390a.3 Organization.
390a.4 Administration, funding and staffing.
390a.5 Mission.
390a.6 Functions.
390a.7 Responsibilities.
Authority: 10 U.S.C. 133.
Source: 53 FR 24442, June 29, 1988, unless otherwise noted.
32 CFR 390a.1 Purpose.
This part is issued to update policy, assign responsibilities, and
prescribe guidance for the administration and management of the AFIP.
32 CFR 390a.2 Definition.
Administrative Support. Planning, programming, budgeting, and
execution system (PPBES) functions. These include funding; fiscal
control; manpower administration; administrative support for space,
facilities, and supplies; and other administrative provisions and
services with related mobilization planning.
32 CFR 390a.3 Organization.
(a) AFIP shall be a joint entity of the three Military Departments
and subject to the authority, direction, and control of the Secretary of
Defense in accordance with 10 U.S.C. 176, 177, and 2601.
(b) The Assistant Secretary of Defense (Health Affairs) (ASD(HA))
shall be responsible for AFIP policy direction in accordance with 10
U.S.C. 176, 177, and 2601, and 32 CFR part 367.
(c) The Secretary of the Army shall serve as the Executive Agent for
AFIP in accordance with 10 U.S.C. 176, 177, and 2601.
(d) The AFIP shall have a Board of Governors; a Director; two
Deputy Directors; a Scientific Advisory Board (SAB); and a staff of
professional, technical, administrative, and clerical personnel.
(e) The Board of Governors shall consist of:
(1) The ASD(HA), who shall serve as the Chairman of the Board of
Governors.
(2) The Assistant Secretary for Health of the Department of Health
and Human Services; the Surgeons General of the Army, the Navy, and the
Air Force; and the Chief Medical Director of the Veterans'
Administration. These members are expected to attend Board meetings
personally, but may be represented by their Deputies if unable to
attend.
(3) A former Director of AFIP, designed by the Secretary of Defense.
(f) The Board of Governors shall be supported by an Executive
Secretary who shall assist in the preparation and follow-up of Board
activities, and shall be selected by the Chairman from individuals
assigned to the ASD(HA) staff.
(g) The Director and Deputy Directors of AFIP shall be military
medical officers who are selected on the basis of high professional
qualifications in the field of pathology and demonstrated medical
administrative ability.
(1) The Director shall be appointed by the Secretary of Defense from
nominations received from the Board of Governors. The Director shall be
appointed on a rotating basis among the Army, the Navy, and the Air
Force for a period of 4 years, but the highest criteria for selection
shall be the qualifications of the individual nominee.
(2) A Deputy Director shall be appointed from each of the Military
Departments that are not represented by the Director.
(h) The Director and Deputy Directors shall be aided by a SAB that
shall meet at least semiannually to provide peer review and guidance for
the AFIP scientific program.
(i) If deemed appropriate and feasible, a Scientific Director may be
appointed to assist the Director with the content and direction of the
scientific mission.
(j) Other professional, technical, and clerical staff consisting of
medical department officers and other military personnel of the Army,
Navy, and Air Force; and civilian personnel, including consultants and
experts, shall be made available to the Director.
32 CFR 390a.4 Administration, funding, and staffing.
(a) The Secretary of the Army, as the Executive Agent, shall be
responsible for determining and providing, within the limits of
resources available to the Department of the Army for such purposes,
adequate administrative support for operating the AFIP. The Secretary
of the Army may redelegate Executive Agent responsibilities within the
command structure of the Department of the Army.
(b) The AFIP Director shall present a proposed budget to the AFIP
Board of Governors for review and to the ASD(HA) for approval. The
budget then shall be forwarded by the Director to the Executive Agent
for inclusion in the Army's PPBES process. The Army shall ensure that
the AFIP budget is identified as a line item in the Army budget.
(c) The Director shall present proposed staffing requirements to the
ASD(HA), via the Board of Governors, for review and approval. The
approved requirements shall be incorporated in a Joint Staffing Document
by the Executive Agent with appropriate participation of the other
Services.
(1) Each Military Department shall provide, within its resource
capabilities, the military manpower and personnel assistance necessary
to accomplish the AFIP mission. Military manpower shall be prorated
among the Military Departments in accordance with the Joint Manpower
Document administrated by the Executive Agent.
(2) DoD civilian personnel and associated administrative support
shall be provided by the Army as Executive Agent.
(3) Military members assigned to AFIP shall be responsible to the
Director with respect to their performance of duty.
(d) SAB members shall be nominated by the Director, reviewed by the
Board of Governors, and approved by the ASD(HA).
(1) Appointments to the SAB shall be made by the Secretary of the
Army, in accordance with 32 CFR part 224, for a term not to exceed 2
years.
(2) No member of the AFIP regular duty staff may be appointed as a
member of the SAB.
32 CFR 390a.5 Mission.
The AFIP mission shall be to:
(a) Serve as a national and international resource supporting both
the military and civilian sectors of pathology.
(b) Serve as the chief reviewing authority on the diagnosis of
pathologic tissues for the Armed Services.
(c) Conduct consultation, education, and research programs in
medical, dental, and veterinary pathology.
(d) Maintain a comprehensive collection of pathologic specimens for
reference, education, and research.
32 CFR 390a.6 Functions.
(a) The AFIP functions shall be to:
(1) Provide a comprehensive consultation service for the evaluation
of pathologic tissues and specimens for the Department of Defense, other
Federal Agencies, and civilian pathologists. The scope and extent of
consultation services shall support the basic AFIP mission. These shall
be determined by a Joint Service Regulation and an AFIP Instruction and
shall be reviewed periodically by the Board of Governors and approved by
ASD(HA).
(2) Provide instruction in pathology and closely related subjects to
officers of the Armed Forces; to other Federal Medical Services; and,
based on availability, to civil service physicians and other persons who
are authorized to study or receive continuing education at AFIP.
(3) Conduct experimental, statistical, and morphological research and
investigation in the field of pathology.
(i) Emphasis shall be placed on subjects at the forefront of the
field of pathology. Research programs shall concentrate on areas of
pathology of special interest to the Department of Defense and those
that shall maintain the unique expertise of AFIP.
(ii) AFIP shall seek collaborative research efforts with other
elements of the Federal Government and the academic community where they
are in support of the basic AFIP mission.
(4) Operate the Armed Forces Medical Examiner System in accordance
with DoD Directive 6010.16. /1/
(5) Contract with the American Registry of Pathology for cooperative
effort between AFIP and the civilian medical profession according to
guidelines in 10 U.S.C. 176 and under such conditions that support the
AFIP mission and that have been agreed upon by the Board of Governors
and approved by the ASD(HA).
(6) Operate the Armed Forces Medical Museum and maintain a national
pathologic reference collection for utilization in instruction and
research by qualified and authorized persons, and display selected
relevant exhibits to the public.
(i) The Director is authorized to accept and process gifts and
donations of items, materials, and medical artifacts of scientific,
historical, or archival significance in accordance with 10 U.S.C. 2601.
(ii) The AFIP may collect medical materials, specimens, photographs,
case records, and related data from the military and other sources in
photographical areas worldwide to maintain the reference collection for
teaching and research.
(iii) Materials from the reference collection may be prepared or
duplicated and made available to museums, medical schools, scientific
institutions, and qualified individuals worldwide for medical education
and research. An AFIP Instruction, reviewed by the Board of Governors
and approved by the ASD(HA), shall delineate the guidelines under which
reference materials may be made available within the Department of
Defense, to other Federal Agencies, to non-Federal institutions, and to
individuals worldwide in accordance with DoD Directive 2040.2 /2/ and
4000.19. /3/
(7) Maintain a Medical Illustration Service for the collecting,
preparing, duplicating, printing, publishing, exhibiting, referencing,
and filing of medical illustrative material of medical importance,
except original motion picture footage. Primarily for the support of
programs of AFIP, this service may be made available to the medical
services of the Armed Forces, other Federal Agencies, and qualified
individuals in accordance with current AFIP procedures and in accordance
with DoD Directive 4000.19.
(8) The Department of Legal Medicine shall provide a consultation and
monitoring service to assist in the resolution of medical-legal cases,
civil and criminal, for the Department of Defense and, when applicable,
for other Federal Agencies. The following guidance is provided:
(i) The detailed responsibilities and functions of the Department of
Legal Medicine shall be set forth in an AFIP Instruction that shall be
coordinated with the Judge Advocates General, reviewed by the Board of
Governors, and approved by the ASD(HA).
(ii) The Department of Legal Medicine shall maintain the central
malpractice claim files for the Department of Defense and the Armed
Forces. Armed Forces claims officers shall provide, at the earliest
possible time, one legible copy of each medical malpractice claim and
related records to the AFIP, and will include a cover letter stating
that either consultation is requested or that the file is forwarded for
retention only.
(iii) Personnel assigned to this department shall be subject to
regulations governing off duty employment and standards of conduct for
both legal and medical personnel, as set forth in Army regulations.
(iv) The Judge Advocate General of the Army shall provide technical
supervision and assistance on matters relating to legal instruction and
information.
(9) Administer the drug testing quality control program and provide
consultative services to the Department of Defense for the military drug
testing program.
(10) Provide additional administrative or technical assistance as
directed by the ASD(HA).
/1/ Copies may be obtained, if needed, from the U.S. Naval
Publication and Forms Center Attn: Code 1062, 5801 Tabor Avenue,
Philadelphia, PA 19120.
/2/ See footnote 1 to 390a.6(a)(4).
/3/ See footnote 1 to 390a.5(a)(4).
32 CFR 390a.7 Responsibilities.
(a) The AFIP Board of Governors shall review and recommend action on
policy, program, personnel- and budget-related issues for AFIP and shall
provide periodic oversight of program and budget execution.
(b) The Assistant Secretary of Defense (Health Affairs) (ASD(HA))
shall be the approving authority for AFIP policy issues. This shall
include approval of the following:
(1) Civilian contracts, AFIP Instructions, and Joint Service
Regulations that govern AFIP's relationship with the Services and the
civilian medical community.
(2) Senior personnel appointments, other than the Director, who shall
be appointed by the Secretary of Defense.
(3) Proposed AFIP budget.
(4) Substantial changes in the mission or functions of the AFIP.
(c) The Secretary of the Army, as the Executive Agent, shall be
responsible for the administration of budget, personnel, facilities, and
other resources required to support the mission and functions of AFIP.
(d) The Surgeon General of the Army, or the Deputy Surgeon General,
shall serve as the reporting senior for the Director of AFIP for
performance evaluation.
32 CFR 390a.7 PART 391 -- DIRECTOR OF ADMINISTRATION AND MANAGEMENT
Sec.
391.1 Purpose.
391.2 Definition.
391.3 Responsibilities and functions.
391.4 Relationships.
391.5 Authorities.
391.6 Effective date.
Authority: U.S.C. 113.
Source: 53 FR 22649, June 17, 1988, unless otherwise noted.
32 CFR 391.1 Purpose.
Pursuant to the authority vested in the Secretary of Defense under 10
U.S.C., this part establishes the position of Director of Administration
and Management (DA&M), reporting to the Deputy Secretary of Defense,
with the responsibilities, functions, relationships, and authorities
prescribed herein.
32 CFR 391.2 Definition.
DoD Components. The Office of the Secretary of Defense (OSD), the
Military Departments, the Organizaiton of the Joint Chiefs of Staff
(OJCS), the Unified and Specified Commands, the Office of the Inspector
General of the Department of Defense, the Defense Agencies, and the DoD
Field Activities.
32 CFR 391.3 Responsibilities and functions.
The Director of Administration and Management shall serve as the
principal staff assistant and advisor to the Secretary and Deputy
Secretary of Defense on DoD-wide organizational and administrative
management matters. In this capacity the DA&M shall:
(a) Advise and assist the Secretary and Deputy Secretary of Defense
on administration and organization within the Department of Defense.
(b) Provide policy guidance to DoD Components and coordinate on
administrative and organizational matters.
(c) Review, evaluate, and develop recommendations to improve the
organization, functions, and management of DoD activities and programs.
(d) Develop and maintain organizational charters for the OSD, the
Defense Agencies, the DoD Field Activities, and other DoD activities, as
required.
(e) Provide policy guidance, coordinate, and oversee administration
of assigned programs, including the DoD Committee Management Program,
the DoD Management Headquarters Program, and the DoD Privacy Program.
(f) Administer the Historical Program of the OSD and coordinate DoD
Historical Program activities.
(g) Analyze and control manpower requirements for the OSD, the OJCS,
and other assigned activities.
(h) Administer the Internal Management Control Program for the OSD
and other assigned activities.
(i) Participate in planning, programming, and budgeting activities
related to DA&M responsibilities.
(j) Promote coordination, cooperation, and mutual understanding on
matters under DA&M cognizance within the DoD and between the DoD, other
Government Agencies, and the public.
(k) Serve on boards, committees, and other groups concerned with
matters pertaining to the functions and responsibilities assigned to the
DA&M and represent the Secretary and Deputy Secretary of Defense on such
matters outside the DoD.
(l) Perform such other duties as the Secretary or Deputy Secretary of
Defense may prescribe.
32 CFR 391.4 Relationships.
(a) In the performance of the above functions, the DA&M shall:
(1) Coordinate and exchange information with officials of other DoD
Components having collateral or related functions.
(2) Use existing facilities and services of the DoD, whenever
practicable, to achieve maximum efficiency and economy.
(b) Serve as the Director, Washington Headquarters Services in
accordance with 32 CFR part 356.
(c) Other OSD officials and the heads of DoD Components shall
coordinate with the DA&M on all matters related to the functions cited
in 391.3.
32 CFR 391.5 Authorities.
The DA&M is hereby delegated authority to:
(a) Issue DoD Instructions and one-time directive-type memoranda,
consistent with DoD 5025.1-M that implement policies approved by the
Secretary or Deputy Secretary of Defense in the functions assigned to
the DA&M. Instructions to the Military Departments shall be issued
through the Secretaries of those Departments, or their designees.
Instructions to Unified and Specified Commands shall be issued through
the Chairman, Joint Chiefs of Staff (CJCS).
(b) Obtain reports, information, advice, and assistance, consistent
with DoD Directive 7750.5, in carrying out assigned functions, as
necessary.
(c) Communicate directly with the heads of the DoD Components.
Communications to the Commanders of Unified and Specified Commands shall
be coordinated with the CJCS.
(d) Establish arrangements for DoD participation in non-defense
governmental programs for which the DA&M is assigned primary staff
cognizance.
(e) Communicate with other Government Agencies, representatives of
the legislative branch, and members of the public, as appropriate, in
carrying out assigned functions.
(f) Act for the Secretary of Defense before the Joint Committee on
Printing, the Public Printer, and the Director of the Office of
Management and Budget on all matters relating to printing, binding, and
publications requirements, consistent with 44 U.S.C. Chapter 11.
32 CFR 391.6 Effective date.
This part is effective May 24, 1988.
32 CFR 391.6 PART 392 -- DIRECTOR OF SMALL AND DISADVANTATED BUSINESS
UTILIZATION
Sec.
392.1 Purpose.
392.2 Definition
392.3 Responsibilities.
392.4 Functions.
392.5 Relationships.
392.6 Authorities.
Authority 10 U.S.C. 133
Source: 54 FR 13381, Apr. 3, 1989, unless otherwise noted.
32 CFR 392.1 Purpose.
This part: (a) Implements 15 U.S.C. 644(k) that establishes the
position of Director of Small and Disadvantaged Business Utilization
(Director, SADBU) under the direction, authority, and control of the
Under Secretary of Defense (Acquisition) (USD(A)).
(b) Assigns responsibilities, functions, relationships, and
authorities, as prescribed herein, to the Director, SADBU, pursuant to
the authority vested in the Secretary of Defense under section 10 U.S.C.
113.
32 CFR 392.2 Definition.
DoD Components. The Office of the Secretary of Defense (OSD), the
Military Departments, the Joint Chiefs of Staff (JCS), the Joint Staff,
the Unified and Specified Commands, the Defense Agencies, and the DoD
Field Activities.
32 CFR 392.3 Responsibilities.
The Director of Small and Disadvantaged Business Utilization shall
serve as the principal staff assistant and advisor to the USD(A) for
ensuring that a fair share of goods and services procured by the
Department of Defense is acquired from small, small disadvantaged, and
women-owned small businesses. In this capacity, the Director, SADBU,
shall:
(a) Implement and execute the functions and duties assigned by 15
U.S.C. 636 and 644, as they relate to the Department of Defense.
(b) Conduct analyses, develop policies, provide advice, make
recommendations, and issue guidance on DoD plans, programs, and
requirements.
(c) Develop plans, programs, procedures, goals, and objectives, and
initiate actions and taskings to ensure adherence to DoD policies.
(d) Develop systems and standards for the administration of approved
policies, plans, and programs.
(e) Conduct reviews (including compliance reviews of DoD Components
and major prime contractors) and evaluate programs to ensure adherence
to approved policies and standards.
(f) Participate in the Planning, Programming, and Budgeting System
(PPBS) and the Defense Acquisition System, and in development of the
Federal Acquisition Regulation (FAR) and the Defense Federal Acquisition
Regulation Supplement (DFARS).
(g) Keep appropriate organizations and officials informed of
significant trends or initiatives.
(h) Promote coordination, cooperation, and mutual understanding
within the Department of Defense and between the Department of Defense,
congressional committees, other Government Agencies, and the public.
(i) Serve on boards, committees, and other groups and represent the
Secretary of Defense and USD(A) outside the Department of Defense.
(j) Perform other duties as the Secretary of Defense and the USD(A)
may prescribe.
32 CFR 392.4 Functions.
The Director, SADBU, shall carry out the responsibilities in 392.3
for the following functional areas:
(a) Prime contracts, subcontracts, and research and development
contracts for small, small disadvantaged, and women-owned small
businesses.
(b) Labor Surplus Area Program.
(c) Historically Black Colleges and Universities and Minority
Institutions.
(d) Small and Disadvantaged Business Subcontracting Program.
(e) Small Business Research and Development Program, to include the
Small Business Innovation Research Program.
(f) Blind and Other Severely Handicapped Program.
(g) Procurement Technical Assistance Program.
(h) Small Business Set Aside Program.
(i) Small Disadvantaged Business Development Program.
(j) DoD procurement outreach publications.
(k) Programs in support of Area Small Business Councils; Federal
procurement conferences sponsored by members of Congress in their
constituencies; economic development entities of States, counties, and
municipalities; and industry trade associations promoting the growth of
small businesses, small disadvantaged businesses, and women-owned small
businesses.
32 CFR 392.5 Relationships.
(a) In the performance of the above functions, the Director, SADBU,
shall:
(1) Coordinate and exchange information with officials of other DoD
Components having collateral or related functions.
(2) Use existing systems, facilities, and services of the Department
of Defense and other Federal Agencies, whenever practicable, to achieve
maximum efficiency and economy.
(3) Operate a Central Procurement Information Office for the
Department of Defense.
(b) Other OSD officials and the Heads of DoD Components shall
coordinate with the Director, SADBU, on all matters related to the
functions in 392.4.
32 CFR 392.6 Authorities.
The Director, SADBU, is hereby delegated authority to:
(a) Issue DoD Instructions, DoD publications, and one-time
directive-type memoranda, consistent with DoD 5025.1-M, that implement
policies approved by the Secretary of Defense in the functions assigned
to the Director, SADBU. Instructions to the Military Departments shall
be issued through the Secretaries of those Departments, or their
designees. Instructions to Unified and Specified Commands shall be
issued through the Chairman, JCS (CJCS).
(b) As authorized by Section 15 U.S.C. 644(k)(4), exercise
supervisory authority over DoD personnel to the extent that their
functions and duties relate to the functions and duties assigned to the
Director, SADBU, by 15 U.S.C. Sections 637 and 644.
(c) Assign small business technical advisers to the DoD Components in
accordance with 15 U.S.C. Section 644(k)(6).
(d) Obtain reports, information, advice, and assistance, consistent
with DoD Directive 7750.5, as necessary, in carrying out assigned
functions.
(e) Communicate directly with the Heads of the DoD Components.
Communication to Commanders of the Unified and Specified Commands shall
be coordinated with the CJCS.
(f) Establish arrangements for DoD participation in non-Defense
governmental programs for which the Director, SADBU, is assigned primary
staff cognizance.
(g) Communicate with other Government Agencies, representatives of
the legislative branch, and members of the public, as appropriate, in
carrying out assigned functions.
32 CFR 392.6 PART 393 -- (RESERVED)
32 CFR 392.6 PART 394 -- GENERAL COUNSEL OF THE DEPARTMENT OF DEFENSE
Sec.
394.1 Purpose.
394.2 Definition.
394.3 Responsibilities and functions.
394.4 Relationships.
394.5 Authorities.
Authority: 10 U.S.C. 137.
Source: 55 FR 2807, Jan. 29, 1990, unless otherwise noted.
32 CFR 394.1 Purpose.
This part:
(a) Implements the provision of title 10, United States Code that
establishes the position of General Counsel of the Department of Defense
(GC, DoD).
(b) Assigns to the GC, DoD, the responsibilities, functions,
relationships, and authorities prescribed herein, pursuant to the
authority vested in the Secretary of Defense under title 10, United
States Code.
32 CFR 394.2 Definition.
DoD components. The Office of the Secretary of Defense (OSD), the
Military Departments, the Joint Chiefs of Staff (JCS), the Joint Staff,
the Unified and Specified Commands, the Inspector General of the
Department of Defense (IG, DoD), the Defense Agencies, and the DoD Field
Activities.
32 CFR 394.3 Responsibilities and functions.
The General Counsel, Department of Defense (GC, DoD), is the chief
legal officer of the Department of Defense and, as such, shall:
(a) Provide advice to the Secretary and Deputy Secretary of Defense
regarding all legal matters and services performed within, or involving,
the Department of Defense.
(b) Provide legal advice to OSD organizations and, as appropriate,
other DoD Components.
(c) Oversee, as appropriate, legal services performed within the
Department of Defense, including determining the adherence by attorneys
in the Department of Defense to appropriate professional standards.
(d) Coordinate on appeals from denials of requests under the Freedom
of Information Act, as appropriate.
(e) Provide advice on standards of conduct involving personnel of OSD
and, as appropriate, other DoD Components.
(f) Develop the DoD Legislative Programs and coordinate DoD positions
on legislation and Executive orders.
(g) Provide for the coordination of significant legal issues,
including litigation involving the Department of Defense and other
matters before the Department of Justice in which the Department of
Defense has an interest.
(h) Establish DoD policy on general legal issues, determine the DoD
position on specific legal problems, and resolve disagreements within
the Department of Defense on such matters.
(i) Perform such functions relating to the DoD security program
(including surveillance over DoD personnel security programs in
accordance with DoD Directive 5145.3 /1/ and DoD Directive 0-5205.7, /2/
as the Secretary or Deputy Secretary of Defense may assign.
(j) Act as lead counsel for the Department in all international
negotiations conducted by OSD components.
(k) Maintain the central repository for all international agreements
coordinated, negotiated, or concluded by DoD personnel.
(l) Serve as the Director, Defense Legal Services Agency (DLSA).
(m) Perform such other duties as the Secretary or Deputy Secretary of
Defense may prescribe.
/1/ Copies may be obtained, at cost, from the National Technical
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
/2/ For official use only.
32 CFR 394.4 Relationships.
(a) In the performance of the above responsibilities and functions,
the GC, DoD, shall:
(1) Exercise direction, authority, and control over the DLSA,
consistent with DoD Directive 5145.4 /3/ .
(2) Coordinate actions and exchange information with other DoD
organizations having collateral or related functions.
(3) Promote coordination, cooperation, and mutual understanding of
matters pertaining to assigned functions within the Department of
Defense and between the Department of Defense, other Government
Agencies, and the public.
(4) Serve on boards, committees, and other groups concerned with
matters pertaining to assigned functions and represent the Secretary of
Defense on assigned functions outside the Department of Defense,
including serving as the representative of the Secretary of Defense to
the Department of Justice on all appropriate matters.
(5) Use existing facilities and services, whenever practicable, to
achieve maximum efficiency and economy.
(b) All DoD Components shall coordinate with the GC, DoD, on matters
related to the functions in 394.3
/3/ See footnote 1 to 394.3(i).
32 CFR 394.5 Authorities.
The GC, DoD, is delegated authority to:
(a) Issue DoD Instructions, DoD publications, and one-time
directive-type memoranda, consistent with DoD 5025.1-M, /4/ that
implement policies approved by the Secretary of Defense in the functions
assigned to the GC, DoD. Instructions to the Military Departments shall
be issued through the Secretaries of those Departments or their
designees. Instructions to Unified and Specified Commands shall be
issued through the Chairman, Joint Chiefs of Staff (CJCS).
(b) Obtain reports, information, advice, and assistance from other
DoD Components, consistent with DoD Directive 7750.5, /5/ to carry out
assigned functions and responsibilities.
(c) Communicate directly with the heads of the DoD Components.
Communications to the Commanders of Unified and Specified Commands shall
be coordinated through the CJCS.
(d) Communicate with other Government Agencies, representatives of
the legislative branch, and members of the public, as appropriate, in
carrying out assigned functions.
/4/ See footnote 1 to 394.3(i).
/5/ See footnote 1 to 394.3(i).
32 CFR 394.5 PART 395 -- DEFENSE LEGAL SERVICES AGENCY
Sec.
395.1 Purpose.
395.2 Definition.
395.3 Organization and management.
395.4 Functions and responsibilities.
395.5 Relationships.
395.6 Authorities.
Appendix to Part 395 -- Delegations of Authority
Authority: 10 U.S.C. 133.
Source: 55 FR 2808, Jan. 29, 1990, unless otherwise noted.
32 CFR 395.1 Purpose.
This part, pursuant to the authority vested in the Secretary of
Defense under title 10, United States Code, updates the Defense Legal
Services Agency (DLSA) charter with functions, responsibilities,
relationships, and authorities as outlined herein.
32 CFR 395.2 Definition.
DoD Components. The Office of the Secretary of Defense (OSD), the
Military Departments, the Joint Chiefs of Staff (JCS), the Joint Staff,
the Unified and Specified Commands, the Inspector General of the
Department of Defense (IG, DoD), the Defense Agencies, and the DoD Field
Activities.
32 CFR 395.3 Organization and management.
(a) The DLSA is established as a separate agency of the Department of
Defense under the direction, authority, and control of the General
Counsel of the Department of Defense (GC, DoD). It shall consist of a
Director and such subordinate organizational elements as are established
by the Director within resources assigned by the Secretary of Defense.
It shall include the legal staffs assigned to the Defense Agencies and
DoD Field Activities.
(b) Budgeting, management of ceiling spaces, personnel services, and
other administrative support for DLSA personnel shall be the
responsibility of the Defense Agency or Field Activity to which those
personnel are assigned.
(c) The GC, DoD, shall serve as the Director, DLSA.
32 CFR 395.4 Functions and responsibilities.
The Director, Defense Legal Services Agency (DLSA), shall:
(a) Organize, direct, and manage the DLSA and all resources assigned
to the DLSA.
(b) Provide legal advice and services for the Defense Agencies, DoD
Field Activities, and other assigned organizations.
(c) Provide technical support and assistance for development of the
DoD Legislative Program.
(d) Coordinate DoD positions on legislation and Presidential
Executive orders.
(e) Provide a centralized legislative document reference and
distribution point for the Department of Defense, and maintain the
Department's historical legislative files.
(f) Develop DoD policy for standards of conduct and administer the
Standards of Conduct Program for the OSD and other assigned
organizations.
(g) Administer the Defense Industrial Security Clearance Review
Program.
(h) Perform such other duties as the Secretary or Deputy Secretary of
Defense may prescribe.
32 CFR 395.5 Relationships.
(a) In performance of assigned responsibilities and functions, the
Director, DLSA, shall:
(1) Coordinate actions and exchange information with other DoD
organizations having collateral or related functions.
(2) Promote coordination, cooperation, and mutual understanding of
matters pertaining to assigned functions within the Department of
Defense and between the Department of Defense, other Government
Agencies, and the public.
(3) Serve on boards, committees, and other groups concerned with
matters pertaining to assigned functions, and represent the Secretary of
Defense on assigned functions outside the Department of Defense.
(4) Use existing facilities and services, whenever practicable, to
achieve maximum efficiency and economy.
(5) Provide professional supervision for DLSA attorneys serving in
Defense Agencies, DoD Field Activities, and other organizations to which
such attorneys are assigned. This includes, in consultation with the
DoD Component head concerned, evaluation of their performance and/or
other action that may be necessary based on professional performance.
(b) All DoD Components shall coordinate with the Director, DLSA, on
matters related to the functions in 395.4.
32 CFR 395.6 Authorities.
The Director, DLSA, is delegated authority to:
(a) Obtain reports, information, advice, and assistance from other
DoD Components, consistent with DoD Directive 7750.5 /1/ to carry out
assigned functions and responsibilities, as necessary.
(b) Communicate directly with the heads of the DoD Components.
Communications to the Commanders of Unified and Specified Commands shall
be coordinated through the Chairman, Joint Chiefs of Staff (CJCS).
(c) Communicate with other Government Agencies, representatives of
the legislative branch, and members of the public, as appropriate, in
carrying out assigned functions.
/1/ Copies may be obtained, at cost, from the National Technical
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
32 CFR 395.6 Pt. 395, App.
32 CFR 395.6 Appendix to Part 395 -- Delegations of Authority
Pursuant to the authority vested in the Secretary of Defense, and
subject to his direction, authority, and control, and in accordance with
DoD policies, Directives, and Instructions, the Director, DLSA, or, in
the absence of the Director, the person acting for the Director is
hereby delegated authority, as required in the administration and
operation of DLSA, to:
1. In accordance with 5 U.S.C. 7532, Executive Order 10450, as
amended, and DoD Directive 5200.2: /2/
a. Designate positions as ''sensitive'';
b. Authorize, in case of an emergency, the appointment to a sensitive
position, for a limited period of time, of a person for whom a full
field investigation or other appropriate investigation, including the
National Agency Check, has not been completed; and
c. Authorize the suspension, but not terminate the service, of an
employee in the interest of national security.
2. Authorize and approve overtime work for civilian officers and
employees in accordance with subchapter V, chapter 55, title 5, U.S.C.,
and applicable Civil Service Regulations.
3. Develop, establish, and maintain an active and continuing Records
Management Program, pursuant to 44 U.S.C. 3102.
4. Authorize the publication of advertisements, notices, or proposals
in newspapers, magazines, or other public periodicals, consistent with
44 U.S.C. 3702.
5. Comply with the policies and procedures prescribed in DoD
5025.1-M. /3/
/2/ See footnote 1 to 395.6(a).
/3/ See footnote 1 to 395.6(a).
32 CFR 395.6 PART 396 -- DoD COORDINATOR FOR DRUG ENFORCEMENT POLICY
AND SUPPORT
Sec.
396.1 Purpose.
396.2 Applicability.
396.3 Responsibilities and Functions.
396.4 Relationships.
396.5 Authorities.
Authority: 10 U.S.C. 113.
Source: 55 FR 5006, Feb. 13, 1990, unless otherwise noted.
32 CFR 396.1 Purpose.
This part establishes the position of DoD coordinator for Drug
Enforcement Policy and Support, with responsibilities, functions,
relationships, and authorities, as prescribed herein.
32 CFR 396.2 Applicability.
This part applies to the Office of the Secretary of Defense (OSD);
the Military Departments; the Chairman, Joint Chiefs of Staff (CJCS);
the Joint Staff; the Unified and Specified Commands; the Office of the
Inspector General, Department of Defense (OIG, DoD); the Defense
Agencies; and the DoD Field Activities (hereafter referred to
collectively as ''DoD Components'').
32 CFR 396.3 Responsibilities and functions.
The DoD Coordinator for Drug Enforcement Policy and Support, as the
principal staff assistant and advisor to the Secretary of Defense for
drug control policy, requirements, priorities, systems, resources, and
programs, shall:
(a) Develop policies, conduct analysis, provide advice, make
recommendations, and issue guidance on DoD drug contol plans and
programs.
(b) Develop systems and standards for the administration and
management of approved DoD drug control plans and programs.
(c) Promulgate plans, programs, actions, and taskings pertaining to
the DoD drug control program consistent with the National Drug Control
Strategy and DoD drug control policies and objectives.
(d) Review, evaluate, coordinate, and monitor DoD drug control plans
and programs to ensure adherence to approved policies and standards.
(e) Promote coordination, cooperation, and mutual understanding
within the Department of Defense, within Congress, and between the
Department of Defense and other Federal Agencies, State and local
governments, and the civilian community.
(f) Serve on boards, committees, and other groups pertaining to
assigned functional areas and represent the Secretary of Defense on Drug
control matters outside the Department.
(g) Serve as the DoD point of contact for the Office of the Director
of National Drug Control Policy and other Federal and State agencies as
appropriate.
(h) Participate in, and oversee and monitor planning, programming,
and budgeting for the DoD counter-drug mission in coordination with OSD
officials; the CJCS; and appropriate DoD Components.
(i) Coordinate and monitor DoD support of civilian drug-law
enforcement.
(j) Coordinate and monitor interagency detection and monitoring of
maritime and aerial transit of illegal drugs into the United States.
(k) Coordinate and monitor, in conjunction with the Assistant
Secretary of Defense (Reserve Affairs) (ASD(RA)), National Guard support
to State drug-law enforcement operations, and to the Department of
Defense, as required.
(l) Coordinate and monitor, in conjunction with the Assistant
Secretary of Defense (Command, Control, Communications and Intelligence)
(ASD(C3I)), DoD intelligence and communications support of drug-law
enforcement operations.
(m) Execute such other responsibilities as the Secretary of Defense
may prescribe.