Last updated on April 9th, 2024 at 06:37 pm
Title 32—National Defense–Volume 4
AGCT = Army General Classification Test. AGO = Adjutant General’s Office. APP = Army Procurement Procedure. AR = Army Regulations. ASPR = Armed Services Procurement Regulations. ATC = Air Transport Command. A. W. = Articles of War. AWOL = Absent Without Leave. Comp. Gen. = Comptroller General. OCF = Office, Chief of Finance. ROTC = Reserve Officer’s Training Corps. ZI = Zone of Interior.
Subtitle A—Department of Defense (Continued)
CHAPTER V—DEPARTMENT OF THE ARMY (CONTINUED)
SUBCHAPTER I—LAW ENFORCEMENT AND CRIMINAL INVESTIGATIONS
PART 630 [RESERVED]
PART 631—ARMED FORCES DISCIPLINARY CONTROL BOARDS AND OFF-INSTALLATION LIAISON AND OPERATIONS
Subpart A—General
§ 631.1 Purpose.
This part prescribes uniform policies and procedures for the establishment, and operation of the following:
(a) Armed Forces Disciplinary Control Boards (AFDCB).
(b) Off-installation liaison and operations.
§ 631.2 Applicability.
This part applies to the following:
(a) Active U.S. Armed Forces personnel of the Army, Air Force, Navy, and Marine Corps, and the Coast Guard wherever they are stationed.
(b) U.S. Armed Forces Reserve personnel only when they are performing Federal duties or engaging in activities directly related to performing a Federal duty or function.
(c) National Guard personnel only when called or ordered to active duty in a Federal status within the meaning of Title 10, United States Code.
§ 631.3 Supervision.
The following will develop and have staff supervision over AFDCB and off-installation enforcement policies.
(a) The Office of the Provost Marshal General (OPMG), Headquarters, Department of the Army (HQDA). This official serves as the proponent for this part, and has primary responsibility for its content.
(b) U.S. Air Force Director of Security Forces and Force Protection, Department of the Air Force.
(c) Director, Naval Criminal Investigative Service.
(d) Commandant of the Marine Corps.
(e) Commandant of the Coast Guard.
(f) Installation commanders are authorized to convene joint service boards within their Army Regulation (AR) 5-9 area of responsibility.
§ 631.4 Exceptions.
Requests for exceptions to policies contained in this part will be forwarded to HQDA (DAPM-MPD-LE), Washington, DC 20310-2800.
Subpart B—Armed Forces Disciplinary Control Boards
§ 631.5 General.
AFDCBs may be established by installation, base, or station commanders to advise and make recommendations to commanders on matters concerning eliminating conditions, which adversely affect the health, safety, welfare, morale, and discipline of the Armed Forces.
(a) For the Army, routine off-limits actions must be processed by an AFDCB following the procedures in § 631.11.
(b) Coast Guard commanders must have written authorization from the Commandant (G-WP) prior to establishing an AFDCB.
§ 631.6 Responsibilities.
(a) Regional Directors of the Army Installation Management Agency, Air Force commanders, Navy regional commanders, Marine Corps commanders, and Coast Guard commanders will—
(1) Determine level and degree of participation by subordinate commanders in joint Service boards, when appropriate.
(2) Resolve differences among subordinate commanders regarding board areas of responsibility, and the designation of sponsoring commanders.
(3) Evaluate board recommendations, and actions from subordinate sponsoring commanders.
(4) Forward recommendations to HQDA, OPMG (DAPM-MPD-LE), WASH DC 20310-2800, regarding circumstances that require Service headquarters action or programs having widespread applicability.
(5) Ensure that subordinate commanders assess the availability of drug abuse paraphernalia in the vicinity of Department of Defense (DOD) installations through their AFDCBs, according to DOD Directive 1010.4. Coast Guard commanders should refer to COMDTINST M1000.6 series, chapter 20, for guidance on Coast Guard substance abuse policies.
(b) Military installation commanders for off-installation enforcement actions will—
(1) Conduct off-installation operations as authorized by law and Service policy.
(2) Coordinate off-installation operations with other Service commanders, as applicable, for uniformity of effort, and economy of resources.
(3) Assist Federal, State, and local law enforcement agencies within the limits imposed by law and DOD policy.
(c) Sponsoring commanders will provide administrative support for AFDCB programs to include the following—
(1) Promulgating implementing directives, and convening the board.
(2) Providing a recorder for the board.
(3) Providing copies of the minutes of board meetings to other Service commanders who are represented on the board, and to other AFDCBs as appropriate.
(4) Approving or disapproving the minutes, and recommendations of the board, and making appropriate distribution, as required.
(5) Publishing lists of “off-limits” establishments and areas.
(6) Ensuring that responsible individuals are notified of any unfavorable actions being contemplated or taken regarding their establishments per Annex A of appendix A of this part.
(7) Distributing pertinent information to the following—
(i) All units within their jurisdictional area.
(ii) Units stationed in other areas whose personnel frequent their area of jurisdiction.
(8) Ensuring that procedures are established to inform all Service personnel, including those who may be visiting or are in a travel status, of off-limits restrictions in effect within the respective AFDCB’s jurisdictional area.
§ 631.7 Composition of boards.
(a) Boards should be structured according to the needs of the command, with consideration given to including representatives from the following functional areas—
(1) Law enforcement.
(2) Legal counsel.
(3) Health.
(4) Environmental protection.
(5) Public affairs.
(6) Equal opportunity.
(7) Fire and safety.
(8) Chaplains’ service.
(9) Alcohol and drug abuse.
(10) Personnel and community activities.
(11) Consumer affairs.
(b) Sponsoring commanders will designate a board president, and determine by position which board members will be voting members. Such designations will be included in a written agreement establishing the board.
§ 631.8 Participation by civil agencies.
(a) Civil agencies or individuals may be invited to board meetings as observers, witnesses or to provide assistance where they possess knowledge or information pertaining to problem areas within the board’s jurisdiction.
(b) Announcements and summaries of board results may be provided to appropriate civil agencies.
§ 631.9 Duties and functions of boards.
The AFDCBs will—
(a) Meet as prescribed by appendix A of this part.
(b) Receive reports, and take appropriate action on conditions in their area of responsibility relating to any of the following—
(1) Disorders and lack of discipline.
(2) Prostitution.
(3) Sexually transmitted disease.
(4) Liquor violations.
(5) Racial and other discriminatory practices.
(6) Alcohol and drug abuse.
(7) Drug abuse paraphernalia.
(8) Criminal or illegal activities involving cults or hate groups.
(9) Illicit gambling.
(10) Areas susceptible to terrorist activity.
(11) Unfair commercial or consumer practices.
(12) Other undesirable conditions deemed unsafe which may adversely affect the health and well being of military personnel or their families.
(c) Report to all major commanders in the board’s area of responsibility—
(1) Conditions cited in paragraph (b) of this section.
(2) Recommended action as approved by the board’s sponsoring commander.
(d) Coordinate with appropriate civil authorities on problems or adverse conditions existing in the board’s area of jurisdiction.
(e) Make recommendations to commanders in the board’s area of jurisdiction concerning off-installation procedures to prevent or control undesirable conditions.
§ 631.10 Administration.
(a) Commanders are authorized to acquire, report, process, and store information concerning persons and organizations, whether or not affiliated with DOD, according to the applicable Service parts of the sponsoring commander, which—
(1) Adversely affect the health, safety, morale, welfare, or discipline of service members regardless of status.
(2) Describes crime conducive conditions where there is a direct Service interest.
(b) Boards will function under the supervision of a president (§ 631.7(b)).
(c) Certain expenses incurred by Service members in the course of an official board investigation or inspection may be reimbursable per appropriate Service finance parts or instructions. Requests for reimbursement will be submitted through the sponsoring commander.
(d) Records of board proceedings will be maintained as prescribed by records management policies, and procedures of the sponsoring commander’s Service.
§ 631.11 Off-limits establishments and areas.
(a) The establishment of off-limits areas is a function of Command. It may be used by commanders to help maintain good order and discipline, health, morale, safety, and welfare of service members. Off-limits action is also intended to prevent service members from being exposed to or victimized by crime-conducive conditions. Where sufficient cause exists, commanders retain substantial discretion to declare establishments or areas temporarily off-limits to personnel of their respective commands in emergency situations. Temporary off-limits restrictions issued by commanders in an emergency situation will be acted upon by the AFDCB as a first priority. As a matter of policy, a change in ownership, management, or name of any off-limits establishment does not, in and of itself, revoke the off-limits restriction.
(b) Service members are prohibited from entering establishments or areas declared off-limits according to this part. Violations may subject the member to disciplinary action per applicable Service parts, and the Uniform Code of Military Justice (UCMJ). Family members of service members and others associated with the Service or installation should be made aware of off-limits restrictions. As a general policy, these establishments will not be visited by Service law enforcement personnel unless specifically determined by the installation commander that visits or surveillance are warranted.
(c) Prior to initiating AFDCB action, installation commanders will attempt to correct adverse conditions or situations through the assistance of civic leaders or officials.
(d) Prior to recommending an off-limits restriction, the AFDCB will send a written notice (certified mail-return receipt requested) to the individual or firm responsible for the alleged condition or situation. The AFDCB will specify in the notice a reasonable time for the condition or situation to be corrected, along with the opportunity to present any relevant information to the board. If subsequent investigation reveals that the responsible person has failed to take corrective action, the board will recommend the imposition of the off-limits restriction.
(e) A specified time limit will not be established when an off-limits restriction is invoked. The adequacy of the corrective action taken by the responsible individual will be the determining factor in removing an off-limits restriction.
(f) A person whose establishment or area has been declared off-limits may at any time petition the president of the board to remove the off-limits restriction. The petition will be in writing and will include a detailed report of action taken to eliminate the condition or situation that caused imposition of the restriction. The president of the AFDCB may direct an investigation to determine the status of corrective actions noted in the petition. The board will either recommend removal or continuation of the off-limits restriction to the local sponsoring commander based on the results of the investigation.
(g) Off-limits procedures to be followed by the boards are in appendix A of this part. In the United States, off-limits signs will not be posted on civilian establishments by U.S. military authorities.
(h) In areas Outside of the Continental United States (OCONUS), off-limits and other AFDCB procedures must be consistent with existing Status of Forces Agreements (SOFAs).
Subpart C—Off-Installation Operations (Military Patrols and Investigative Activities) and Policy
§ 631.12 Objectives.
The primary objectives of off-installation operations are to—
(a) Render assistance and provide information to Service members.
(b) Preserve the safety, and security of service members.
(c) Preserve good order and discipline among Service members and reduce off-installation incidents and offenses.
(d) Maintain effective cooperation with civil authorities, and community leaders.
§ 631.13 Applicability.
This subpart is not applicable to the U.S. Coast Guard.
§ 631.14 Army policy.
(a) Soldiers, military and/or Department of the Army Civilian (DAC) police performing off-installation operations must be thoroughly familiar with applicable agreements, constraints of the Posse Comitatus Act (18 U.S.C. 1385) in the Continental United States (CONUS) and United States-host nation agreements in areas OCONUS.
(b) Military and/or DAC police assigned to off-installation operations have the sole purpose of enforcing parts, and orders pertaining to persons subject to their jurisdiction.
(c) Military and/or DAC police accompanying civilian law enforcement officers remain directly responsible to, and under the command of, U.S. Army superiors. Military and DAC police may come to the aid of civilian law enforcement officers to prevent the commission of a felony or injury to a civilian law enforcement officer.
(d) Regional Directors of the Army Installation Management Agency (IMA), Commander, Army Materiel Command (AMC), and Commander, Army Test and Evaluation Command (ATEC) may authorize subordinate commanders to establish off-installation operations within the limits imposed by higher authority, the Posse Comitatus Act (18 U.S.C. 1385) in CONUS, and United States-host nation agreements in OCONUS areas—
(1) To assist Federal, State, and local law enforcement agencies.
(2) In conjunction with military activities.
(3) To safeguard the health and welfare of Soldiers.
(4) When the type of offenses or the number of Soldiers frequenting an area is large enough to warrant such operations.
(e) The constraints on the authority of Soldiers and/or DAC police to act off-Installation, (Posse Comitatus Act (18 U.S.C. 1385) in CONUS and United States-host nation agreements in OCONUS areas) and the specific scope of off-installation operations will be clearly delineated in all authorizations for off-installation operations. Off-installation operations will be coordinated with the local installation commander through the Staff Judge Advocate (SJA), or higher authority, and appropriate civilian law enforcement agencies.
§ 631.15 Air Force policy.
(a) Airmen, military and/or Department of the Air Force Civilian (DAFC) police performing off-installation operations must be thoroughly familiar with applicable agreements, constraints of the Posse Comitatus Act (18 U.S.C. 1385) in CONUS and United States-host nation agreements in areas OCONUS.
(b) Military and/or DAFC police assigned to off-installation operations have the sole purpose of enforcing parts, and orders pertaining to persons subject to their jurisdiction.
(c) Military and/or DAFC police accompanying civilian law enforcement officers remain directly responsible to, and under the command of, U.S. Air Force superiors. Military and DAFC police may come to the aid of civilian law enforcement officers to prevent the commission of a felony or injury to a civilian law enforcement officer.
(d) Air Force commanders may authorize subordinate commanders to establish off-installation operations within the limits imposed by higher authority, the Posse Comitatus Act (18 U.S.C. 1385) in CONUS, and United States-host nation agreements in OCONUS areas—
(1) To assist Federal, State, and local law enforcement agencies.
(2) In conjunction with military activities.
(3) To safeguard the health and welfare of Airmen.
(4) When the type of offenses or the number of Airmen frequenting an area is large enough to warrant such operations.
(e) The constraints on the authority of Airmen and/or DAFC police to act off-installation, (Posse Comitatus Act (18 U.S.C. 1385) in CONUS and United States-host nation agreements in OCONUS areas) and the specific scope of off-installation operations will be clearly delineated in all authorizations for off-installation operations. Off-installation operations will be coordinated with the local installation commander through the Staff Judge Advocate (SJA), or higher authority, and appropriate civilian law enforcement agencies.
The following policies apply to off-installation operations—
(a) Article 1630-020, MILPERSMAN revised August 2002, and Navy Parts, Article 0922 concerning the establishment and operation of a shore patrol.
(b) In accordance with SECNAV 1620.7A, Navy Absentee Collection Units collect, and process apprehended absentees and deserters, escort apprehended absentees, and deserters to their parent commands or to designated processing activities, escort prisoners between confinement facilities, and provide liaison with civilian law enforcement authorities.
(c) Navy personnel will be thoroughly familiar with all applicable agreements and Implementing standard operating procedures, to include the constraints of the Posse Comitatus Act (18 U.S.C. 1385), in CONUS and United States-host nation agreements in OCONUS areas, as applicable.
(d) Within CONUS. (1) Installation Commanders may request authority from their Regional Commander, to establish off-installation operations—
(i) To assist Federal, State, and local law enforcement agencies within the limits imposed by higher authority and the Posse Comitatus Act (18 U.S.C. 1385).
(ii) In conjunction with military operations.
(iii) To safeguard the health, and welfare of Naval personnel.
(iv) When the type of offenses or the number of service members frequenting an area is large enough to warrant such operation.
(2) Constraints on the authority of military personnel to act off-installation (Posse Comitatus Act (18 U.S.C. 1385) and the specific scope of the authority will be clearly delineated in all authorizations for off-installation operations.
(e) Within OCONUS, off-installation operations will be kept at the minimum needed for mission accomplishment. Installation commanders may authorize off-installation operations as required by local conditions and customs, as long as they are conducted in accordance with applicable treaties and SOFAs.
(f) Off-installation operations will be coordinated with the local installation commander through the JAG or higher authority, and local law enforcement authorities.
(g) Security personnel selected for off-installation operations must—
(1) Have mature judgment and law enforcement experience.
(2) Be thoroughly familiar with all applicable agreements and implementing standard operating procedures, to include the constraints of the Posse Comitatus Act (18 U.S.C. 1385), in CONUS and United States Host Nation agreements in OCONUS area, as applicable.
(h) Security personnel accompanying civilian police during off-installation operations do so only to enforce parts and orders pertaining to persons subject to their jurisdiction. Security personnel assigned off-installation operations remain directly responsible to, and under the command of their Navy superiors when accompanying civilian police. Security personnel performing such duties may come to the aid of civilian police in order to prevent the commission of a felony or injury to a civilian police officer.
(i) Civilian police and court liaison may be established with concurrence of the Naval Criminal Investigative Service and is encouraged particularly when the intent is to reduce mishaps.
§ 631.17 Marine Corps policy.
(a) Within CONUS. (1) Commanders may request authority from Headquarters, Marine Corps (Code POS), to establish off-installation operations—
(i) To assist Federal, State, and local law enforcement agencies within the limits imposed by higher authority and the Posse Comitatus Act (18 U.S.C. 1385).
(ii) In conjunction with military operations.
(iii) To safeguard the health, and welfare of Marines.
(iv) When the type of offenses or the number of service members frequenting an area is large enough to warrant such operations.
(2) Constraints on the authority of military personnel to act off-installation (Posse Comitatus Act (18 U.S.C. 1385)) and the specific scope of the authority will be clearly delineated in all authorizations for off-installation operations.
(b) Within OCONUS, off-installation operations will be kept at the minimum needed for mission accomplishment. Installation commanders may authorize off-installation operations as required by local conditions and customs, as long as they are conducted in accordance with applicable treaties and SOFAs.
(c) Off-installation operations will be coordinated with the local installation commander through the SJA, or higher authority, and local law enforcement authorities.
(d) Marines selected for off-installation operations must—
(1) Have mature judgment and law enforcement experience.
(2) Be thoroughly familiar with all applicable agreements and implementing standard operating procedures, to include the constraints of the Posse Comitatus Act (18 U.S.C. 1385), in CONUS and United States-host nation agreements in OCONUS areas, as applicable.
(e) Marines accompanying civilian police during off-installation operations do so only to enforce parts and orders pertaining to persons subject to their jurisdiction. Marines assigned off-installation operations remain directly responsible to, and under the command of their Marine superiors when accompanying civilian police. Marines performing such duties may come to the aid of civilian police in order to prevent the commission of a felony or injury to a civilian police officer.
(f) Procedures for absentee and deserter collection units to accept an active-duty absentee or deserter from civilian authorities may be established.
(g) Civilian police and civil court liaison may be established.
§ 631.18 Operations.
When an incident of substantial interest to the Service, involving Service property or affiliated personnel, occurs off-installation, the Service law enforcement organization exercising area responsibility will—
(a) Obtain copies of civilian law enforcement reports for processing or forwarding according to applicable Service parts.
(b) Return apprehended persons to representatives of their Service as soon as practicable.
Appendix A to Part 631—Armed Forces Disciplinary Control Board Procedures Guide
A-1. Purpose. This guide prescribes procedures for the establishment, operation, and coordination of AFDCBs. AFDCB proceedings are not adversarial in nature.
A-2. Meetings.
a. The board will meet quarterly. The commander establishing the AFDCB may specify whether the meetings will be open or closed. If not specified, the decision is at the discretion of the president of the board. Normally proceedings are closed, but may be opened to the public when circumstances warrant.
b. Special meetings may be called by the president of the board. Except by unanimous consent of members present, final action will be taken only on the business for which the meeting was called.
c. A majority of voting members constitutes a quorum for board proceedings.
A-3. AFDCB composition. Voting members will be selected per section 631.7.
A-4. Attendance of observers or witnesses.
a. The board may invite individual persons or organization representatives as witnesses or observers if they are necessary or appropriate for the conduct of board proceedings. The below listed authorities may assist in addressing installation or command concerns or issues.
(1) Federal, State, and local judicial, legislative, and law enforcement officials.
(2) Housing part and enforcement authorities.
(3) Health, and social service authorities.
(4) Environmental protection authorities.
(5) Alcoholic beverage control authorities.
(6) Equal employment opportunity authorities.
(7) Consumer affairs advocates.
(8) Chamber of Commerce representatives.
(9) Public works or utility authorities.
(10) Local fire marshal, and public safety authorities.
(11) State and local school board or education officials.
(12) Any other representation deemed appropriate by the sponsoring command such as, news media, union representatives, and so forth.
b. Invited witnesses and observers will be listed in the minutes of the meeting.
A-5. Appropriate areas for board consideration.
a. Boards will study and take appropriate action on all reports of conditions considered detrimental to the good order and discipline, health, morale, welfare, safety, and morals of Armed Forces personnel. These adverse conditions include, but are not limited to, those identified in § 631.9.
b. The board will immediately forward to the local commander reported circumstances involving discrimination based on race, color, sex, religion, age, or national origin.
A-6. Off-limit procedures.
a. Off-limits restrictions should be invoked only when there is substantive information indicating that an establishment or area frequented by Armed Forces personnel presents conditions, which adversely affect their health, safety, welfare, morale, or morals. It is essential that boards do not act arbitrarily. Actions must not be of a punitive nature. Boards should work in close cooperation with local officials and proprietors of business establishments, and seek to accomplish their mission through mutually cooperative efforts. Boards should encourage personal visits by local military, and civilian enforcement or health officials to establishments considered below standard. AFDCBs should point out unhealthy conditions or undesirable practices to establishment owners or operators to produce the desired corrective action.
b. In cases involving discrimination, the board should not rely solely on letters written by the Equal Opportunity Office, and Military Affairs Committee or investigations of alleged racial discrimination.
c. If the board decides to attempt to investigate or inspect an establishment, the president or a designee will prepare, and submit a report of findings, and recommendations at the next meeting. This procedure will ensure complete, and documented information concerning questionable adverse conditions.
d. When the board concludes that conditions adverse to Armed Forces personnel do exist, the owner or manager will be sent a letter of notification (Annex A). This letter will advise him or her to raise standards by a specified date, and, if such conditions or practices continue, off-limits proceedings will be initiated. Any correspondence with the individuals responsible for adverse conditions, which may lead to off-limits action, will be by certified mail.
e. If a proprietor takes remedial action to correct undesirable conditions previously noted the board should send a letter of appreciation (Annex B) recognizing this cooperation.
f. If undesirable conditions are not corrected, the proprietor will be invited to appear before the AFDCB to explain why the establishment should not be placed off-limits (Annex C). Any proprietor may designate in writing a representative to appear before the board in his or her behalf.
g. In cases where proprietors have been invited to appear before the board, the president of the board will perform the following—
(1) Prior to calling the proprietor—
(a) Review the findings and decision of the previous meeting.
(b) Call for inspection reports.
(c) Allow those present to ask questions, and discuss the case.
(2) When the proprietor or his or her representative is called before the board—
(a) Present the proprietor with a brief summary of the complaint concerning the establishment.
(b) Afford the proprietor an opportunity to present matters in defense.
(c) Invite those present to question the proprietor. After the questioning period, provide the proprietor an opportunity to make a final statement before being dismissed.
(3) Deliberations on recommended actions will be in closed session, attended only by board members.
h. The board should recommend an off-limits restriction only after the following:
(1) The letter of notification (Annex A) has been sent.
(2) An opportunity for the proprietor to appear before the board has been extended.
(3) Further investigation indicates that improvements have not been made.
i. The minutes will indicate the AFDCB’s action in each case. When a recommendation is made to place an establishment off-limits, the minutes will show the procedural steps followed in reaching the decision.
j. Recommendations of the AFDCB will be submitted to the sponsoring commander for consideration. The recommendations will then be forwarded to other installation commanders who are represented on the board (Annex D). If no objection to the recommendations is received within 10 days, the sponsoring commander will approve or disapprove the recommendations and forward the decision to the AFDCB president.
k. Upon approval of the AFDCB’s recommendations, the president will write the proprietor that the off-limits restriction has been imposed (Annex E).
l. A time limit should not be specified when an off-limits restriction is revoked. The adequacy of the corrective action taken by the proprietor of the establishment must be the determining factor in removing the off-limits restriction.
m. Military authorities may not post off-limits signs or notices on private property.
n. In emergencies, commanders may temporarily declare establishments or areas off-limits to service members subject to their jurisdiction. The circumstances for the action will be reported as soon as possible to the commander sponsoring the board. Detailed justification for this emergency action will be provided to the board for its deliberations.
o. Appropriate installation commanders will publish a list of off-limits establishments and areas using command and media channels.
A-7. Removal of off-limits restrictions.
a. Removal of an off-limits restriction requires AFDCB action. Proprietors of establishments declared off-limits should be advised that they may appeal to the appropriate AFDCB at any time. In their appeal they should submit the reason why the restriction should be removed. A letter of notification for continuance of the off-limits restriction should be sent to the proprietor if the AFDCB does not remove the off-limits restriction (Annex F). The proprietor may appeal to the next higher commander if not satisfied with continuance after exhausting all appeals at the local sponsoring commander level. Boards should make at least quarterly inspections of off-limits establishments. A statement that an inspection has been completed should be included in AFDCB minutes.
b. When the board learns that the proprietor has taken adequate corrective measures, the AFDCB will take the following actions:
(1) Discuss the matter at the next meeting and make an appropriate recommendation.
(2) Forward a recommendation for removal of the off-limits restriction to the sponsoring commander. If approved, a letter removing the restriction (Annexes G & H) will be sent to the proprietor.
(3) The minutes will reflect action taken.
A-8. Duties of the AFDCB president.
The president of the AFDCB will—
a. Schedule and preside at all AFDCB meetings.
b. Provide an agenda to each voting member at least 72 hours prior to the meeting.
c. Ensure records, minutes, and correspondence are prepared, distributed, and maintained per § 631.10(d).
A-9. Commanders.
The installation commander, and commanders within an AFDCB’s area of responsibility must be thoroughly acquainted with the mission and services provided by AFDCBs. AFDCB members should keep their respective commanders informed of command responsibilities pertaining to AFDCB functions and actions.
A-10. Public affairs.
a. Due to the sensitive nature of the subject matter, there will not be a media release in connection with AFDCB meetings. However, any AFDCB proceeding, which is open to the public, will also be open to representatives of the news media. Representatives of the news media will be considered observers, and will not participate in matters considered by the AFDCB. Members of the news media may be invited to participate in an advisory status in coordination with the public affairs office.
b. News media interviews and releases will be handled through the public affairs office according to applicable Service parts.
A-11. Minutes.
a. Minutes will be prepared in accordance with administrative formats for minutes of meetings prescribed by the Service of the sponsoring commander (Annex I). The written minutes of AFDCB meetings will constitute the official record of the AFDCB proceedings. Verbatim transcripts of board meetings are not required. The reasons for approving or removing an off-limits restriction, to include a complete address of the establishment or area involved, should be indicated in the order of business. In addition, the AFDCB’s action will be shown in the order or sequence of actions taken. A change in the name of an establishment or areas in an off-limits restriction will also be included.
b. Distribution of the minutes of AFDCB meetings will be limited to the following—
(1) Each voting member, sponsoring command, and commands and installations represented by the board.
(2) Each civilian and military advisory member, if deemed appropriate.
(3) Civilian and Government agencies within the State in which member installations are located having an interest in the functions of the board, if appropriate.
c. AFDCB minutes are subject to release and disclosure in accordance with applicable Service parts and directives.
d. Minutes and recommendations of the board will be forwarded to the sponsoring commander for approval.
This letter is to inform you that it has come to the attention of the Armed Forces Disciplinary Control Board (AFDCB) that certain conditions reported at your establishment may adversely affect the (health, safety, or welfare) of members of the Armed Forces.
The AFDCB is initiating action to determine whether your establishment (area) should be placed off-limits to members of the Armed Forces if (cite conditions) are not corrected by (date).
A representative of the AFDCB will visit your establishment to determine if steps have been taken to correct the conditions outlined above.
Sincerely,
This is in reference to my letter of (date) concerning the condition(s) reported at your establishment which adversely affected the health and welfare of members of the Armed Forces.
The Board appreciates your action(s) to correct the condition(s) previously noted and does not contemplate further action with respect to this specific matter.
Your continued cooperation is solicited.
Sincerely,
This is in reference to my letter of (date) concerning the condition reported at your establishment which adversely affects the (health, safety, or welfare) of members of the Armed Forces. Information has been received by the board which indicates you have not taken adequate corrective action to eliminate the reported condition.
Reports presented to the Armed Forces Disciplinary Control Board (AFDCB) indicate (list and describe conditions).
You are advised that the AFDCB will initiate action to determine whether your establishment should be declared off-limits to members of the Armed Forces.
You may appear in person, with or without counsel, before the AFDCB at its next scheduled meeting on (date, time, and place). At that time you will have the opportunity to refute the allegation(s), or to inform the board of any remedial action(s) you have taken or contemplate taking to correct the condition. It is requested that you inform the President, of the AFDCB if you plan to attend.
Any questions regarding this matter may be addressed to the President, Armed Forces Disciplinary Control Board, (address). Every effort will be made to clarify the matter for you.
Sincerely,
1. On (date), the Armed Forces Disciplinary Control Board (AFDCB) recommended imposition of the following off-limits restrictions: (name and address of establishment)
2. Commanders furnishing AFDCB representatives are requested to provide any comments within 10 days as to whether (name of establishment or area) should be placed off-limits.
3. A copy of the AFDCB minutes and recommendation is enclosed.
Sincerely,
This letter is to inform you that your establishment has been declared off-limits to members of the Armed Forces effective (date). Members of the Armed Forces are prohibited from entering your establishment (premises) as long as this order is in effect. This action is being taken because of (state the conditions) which are detrimental to the (health or welfare) of members of the Armed Forces.
This restriction will remain in effect indefinitely in accordance with established Armed Forces policy. Removal of the restriction will be considered by the Armed Forces Disciplinary Control Board upon presentation of information that satisfactory corrective action has been taken.
Correspondence appealing this action may be submitted to the President, Armed Forces Disciplinary Control Board, (cite address).
Sincerely,
Proprietor
Dear Sir:
The Armed Forces Disciplinary Control Board (AFDCB) did not favorably consider your request for removal of the off-limits restriction now in effect at your establishment.
This decision does not preclude further appeals or appearances before the AFDCB at any of its scheduled meetings. Correspondence pertaining to this matter should be addressed to the President, Armed Forces Disciplinary Control Board, (cite address).
Sincerely,
Proprietor
Dear Sir:
This letter is to inform you that the off-limits restriction against (name of establishment) is removed effective (date). Members of the Armed Forces are permitted to patronize your establishment as of that date.
The corrective actions taken in response to the concerns of the Armed Forces Disciplinary Control Board are appreciated.
Sincerely,
This letter is to inform you that your request for removal of the off-limits restriction now in effect at (name of establishment) was favorably considered by the Armed Forces Disciplinary Control Board (AFDCB).
This restriction will be removed effective (date). Members of the Armed Forces will be permitted to patronize your establishment as of that date.
The corrective actions taken in response to the concerns of the AFDCB are appreciated.
Sincerely,
1. Pursuant to authority contained in AR 190-24/AFI 31-213/ OPNAVINST 1620.2A/MCO 1620.2C/and COMDTINST 1620.1D, Armed Forces Disciplinary Control Boards and Off-Installation Liaison and Operations, the (area) Armed Forces Disciplinary Control Board convened at (place), (date)
2. The following voting members were present: (List names, titles, and addresses.)
3. The following military members were present: (List names, titles, and addresses.)
4. The following civilian advisory members were present: (List names, titles, and addresses.)
5. Order of business:
a. Call to order.
b. Welcome.
c. Introduction of members and guests.
d. Explanation of purpose of board.
e. Reading of minutes.
f. Unfinished or continuing business.
g. New business (subparagraph as necessary).
h. Recommendations.
(1) List of areas and establishments being placed in an off-limits restriction.
Include complete name and address (or adequate description of an area) of any establishment listed.
(2) List of areas and establishments being removed from off-limits restrictions. Include complete name and address (or adequate description of an area) of any establishment listed.
(3) Other matters or problems of mutual concern.
i. Time, date, and place for next board meeting.
j. Adjournment of the board.
PART 634—MOTOR VEHICLE TRAFFIC SUPERVISION
Subpart A—Introduction
§ 634.1 Purpose.
(a) This subpart establishes policy, responsibilities, and procedures for motor vehicle traffic supervision on military installations in the continental United States (CONUS) and overseas areas. This includes but is not limited to the following:
(1) Granting, suspending, or revoking the privilege to operate a privately owned vehicle (POV).
(2) Registration of POVs.
(3) Administration of vehicle registration and driver performance records.
(4) Driver improvement programs.
(5) Police traffic supervision.
(6) Off-installation traffic activities.
(b) Commanders in overseas areas are authorized to modify these policies and procedures in the following instances:
(1) When dictated by host nation relationships, treaties, and agreements.
(2) When traffic operations under military supervision necessitate measures to safeguard and protect the morale, discipline, and good order in the Services.
§ 634.2 References.
Required and related publications along with prescribed and referenced forms are listed in Appendix A, AR 190-5.
§ 634.3 Explanation of abbreviations and terms.
Abbreviations and special terms used in this subpart are explained in the Glossary of AR 190-5. It is available on the internet at: www.usapa.army.mil.
§ 634.4 Responsibilities.
(a) Departmental. The Provost Marshal General, Headquarters, Department of the Army (HQDA); Director, Naval Criminal Investigative Service, U.S. Navy (USN); Headquarters, Air Force Security Forces Center; Headquarters, U.S. Marine Corps (USMC); Staff Director, Command Security Office, Headquarters, Defense Logistics Agency (DLA), and Chief, National Guard Bureau will—
(1) Exercise staff supervision over programs for motor vehicle traffic supervision.
(2) Develop standard policies and procedures that include establishing an automated records program on traffic supervision.
(3) Maintain liaison with interested staff agencies and other military departments on traffic supervision.
(4) Maintain liaison with departmental safety personnel on traffic safety and accident reporting systems.
(5) Coordinate with national, regional, and state traffic officials and agencies, and actively participate in conferences and workshops sponsored by the Government or private groups at the national level.
(6) Help organize and monitor police traffic supervision training.
(7) Maintain liaison with the Department of Transportation (DOT) and other Federal departments and agencies on the National Highway Safety Program Standards (NHSPS) and programs that apply to U.S. military traffic supervision.
(8) Participate in the national effort to reduce intoxicated driving.
(b) All major commanders. Major commanders of the Army, Navy, Air Force, Marine Corps, and DLA will—
(1) Manage traffic supervision in their commands.
(2) Cooperate with the support programs of state and regional highway traffic safety organizations.
(3) Coordinate regional traffic supervision activities with other major military commanders in assigned geographic areas of responsibility.
(4) Monitor agreements between installations and host state authorities for reciprocal reporting of suspension and revocation of driving privileges.
(5) Participate in state and host nation efforts to reduce intoxicated driving.
(6) Establish awards and recognition programs to recognize successful installation efforts to eliminate intoxicated driving. Ensure that criteria for these awards are positive in nature and include more than just apprehensions for intoxicated driving.
(7) Modify policies and procedures when required by host nation treaties or agreements.
(c) Major Army commanders. Major Army commanders will ensure subordinate installations implement all provisions of this part.
(d) Commanding General, U.S. Army Training and Doctrine Command (CG, TRADOC). The CG, TRADOC will ensure that technical training for functional users is incorporated into service school instructional programs.
(e) Installation or activity commander, Director of Military Support and State Adjutant General. The installation or activity commander (for the Navy, the term installation shall refer to either the regional commander or installation commanding officer, whoever has ownership of the traffic program) will—
(1) Establish an effective traffic supervision program.
(2) Cooperate with civilian police agencies and other local, state, or federal government agencies concerned with traffic supervision.
(3) Ensure that traffic supervision is properly integrated in the overall installation traffic safety program.
(4) Actively participate in Alcohol Safety Action Projects (ASAP) in neighboring communities.
(5) Ensure that active duty Army law enforcement personnel follow the provisions of AR 190-45 in reporting all criminal violations and utilize the Centralized Police Operations Suite (COPS) to support reporting requirements and procedures. Air Force personnel engaged in law enforcement and adjudication activities will follow the provisions of AFI 31-203 in reporting all criminal and traffic violations, and utilized the Security Forces Management Information Systems (SFMIS) to support reporting requirements and procedures.
(6) Implement the terms of this part in accordance with the provisions of the Federal Service Labor-Management Relations Statute, 5 U.S.C. Chapter 71.
(7) Revoke driving privileges in accordance with this part.
(f) Installation law enforcement officer. The installation law enforcement officer will—
(1) Exercise overall staff responsibility for directing, regulating, and controlling traffic, and enforcing laws and regulations pertaining to traffic control.
(2) Assist traffic engineering functions at installations by participating in traffic control studies designed to obtain information on traffic problems and usage patterns.
(g) Safety officer. Safety officers will participate in and develop traffic accident prevention initiatives in support of the installation traffic safety program.
(h) Facility engineer (public works officer at Navy installations). The facility engineer, engineer officer or civil engineer at Air Force installations, in close coordination with the law enforcement officer, will—
(1) Perform that phase of engineering concerned with the planning, design, construction, and maintenance of streets, highways, and abutting lands.
(2) Select, determine appropriate design, procure, construct, install, and maintain permanent traffic and parking control devices in coordination with the law enforcement officer and installation safety officer.
(3) Ensure that traffic signs, signals, and pavement markings conform to the standards in the current Manual on Uniform Traffic Control Devices for Streets and Highways.
(4) Ensure that planning, design, construction, and maintenance of streets and highways conform to the NHSPS as implemented by the Army.
(i) Traffic engineer. The traffic engineer, in close coordination with the law enforcement officer, will:
(1) Conduct formal traffic engineering studies.
(2) Apply traffic engineering measures, including traffic control devices, to reduce the number and severity of traffic accidents. (If there is no installation traffic engineer, installation commanders may request these services through channels from the Commander, Military Surface Deployment and Distribution Command, 200 Stovall Street, Alexandria, VA 22332).
(j) Army Alcohol and Drug Control Officer (ADCO). The ADCO will provide treatment and education services to personnel with alcohol or drug abuse problems.
(k) Navy Substance Abuse Rehabilitation Program (SARP) Directors. These directors will—
(1) Supervise the alcohol/drug rehabilitation services to personnel with alcohol or drug abuse problems.
(2) Provide remedial/motivational education for all persons identified as alcohol or drug abusers who are evaluated as not dependent on alcohol or drugs and who have been referred to level one rehabilitation by their commands.
(l) Marine Corps Substance Abuse Program Officer. This officer will provide alcohol/drug education, treatment, and rehabilitation services to personnel with alcohol/drug abuse problems.
(m) DLA Employee Assistance Program Officer. This officer will provide alcohol/drug counseling and referral services to identified personnel with alcohol/drug abuse problems in accordance with procedures prescribed by the Labor Relations Officer, Office of Human Resource, HQ DLA.
(n) Alcohol/Drug Abuse Prevention Treatment (ADAPT) program. Air Force Commanders will refer personnel identified with alcohol/drug abuse problems to this program in accordance with established procedures.
§ 634.5 Program objectives.
(a) The objectives of motor vehicle traffic supervision are to assure—
(1) Safe and efficient movement of personnel and vehicles.
(2) Reduction of traffic deaths, injuries, and property damage from traffic accidents. Most traffic accidents can be prevented. Investigation of motor vehicle accidents should examine all factors, operator status, vehicle condition, and supervisory control measures involved.
(3) Integration of installation safety, engineering, legal, medical, and law enforcement resources into the installation traffic planning process.
(4) Removal of intoxicated drivers from installation roadways.
(b) [Reserved]
Subpart B—Driving Privileges
§ 634.6 Requirements for driving privileges.
(a) Driving a Government vehicle or POV on military installations is a privilege granted by the installation commander. Persons who accept the privilege must—
(1) Be lawfully licensed to operate motor vehicles in appropriate classifications and not be under suspension or revocation in any state or host country.
(2) Comply with laws and regulations governing motor vehicle operations on any U. S. military installation.
(3) Comply with installation registration requirements in subpart C of this part. Vehicle registration is required on all Army installations through use of the Vehicle Registration System (VRS). Vehicle registration is required on all Air Force and DLA installations and as directed by the Chief, National Guard Bureau.
(4) Possess, while operating a motor vehicle and produce on request by law enforcement personnel, the following:
(i) Proof of vehicle ownership or state registration if required by the issuing state or host nation.
(ii) A valid state, host nation, overseas command, or international driver’s license and/or OF 346 (U.S. Government Motor Vehicle Operator’s Identification Card), as applicable to the class vehicle to be operated, supported by a DD Form 2A (U.S. Armed Forces Identification Card), Common Access Card (CAC) or other appropriate identification for non-Department of Defense (DOD) civilians.
(iii) A valid record of motor vehicle safety inspection, as required by the state or host nation and valid proof of insurance if required by the state or locality.
(iv) Any regulatory permits, or other pertinent documents relative to shipping and transportation of special cargo.
(v) When appropriate, documents that establish identification and status of cargo or occupants.
(vi) Proof of valid insurance. Proof of insurance consists of an insurance card, or other documents issued by the insurance company, that has a policy effective date and an expiration date.
(b) Operators of Government motor vehicles must have proof of authorization to operate the vehicle.
§ 634.7 Stopping and inspecting personnel or vehicles.
(a) Government vehicles may be stopped by law enforcement personnel on military installations based on the installation commander’s policy.
(1) In overseas areas, Government vehicles may be stopped on or off installations as determined by host nation agreement and command policy.
(2) Stops and inspections of vehicles at installation gates or entry points and in restricted areas will be conducted according to command policy.
(b) Stops and inspections of POVs within the military installation, other than at restricted areas or at an installation gate, are authorized only when there is a reasonable suspicion of criminal activity, or of a violation of a traffic regulation or of the installation commander’s policy. Marine Corps users will be guided by publication of Marine Corps order and Military Rules of Evidence 311-316 and local command regulations. DLA users, see DLAR 5700.7.
(c) At the time of stop, the driver and occupants may be required to display all pertinent documents, including but not limited to:
(1) DD Form 2A.
(2) Documents that establish the identity and status of civilians; for example, Common Access Card (CAC), DD Form 1173 (Uniformed Services Identification and Privilege Card), DA Form 1602 (Civilian Identification), AF Form 354 (Civilian Identification Card), DD Form 2 (Armed Forces of the United States Identification Card), post pass, national identity card, or other identification.
(3) Proper POV registration documents.
(4) Host nation vehicle registration documents, if applicable.
(5) Authorization to operate a Government vehicle, if applicable.
(6) Drivers license or OF 346 valid for the particular vehicle and area of operation.
(7) Proof of insurance.
§ 634.8 Implied consent.
(a) Implied consent to blood, breath, or urine tests. Persons who drive on the installation shall be deemed to have given their consent to evidential tests for alcohol or other drug content of their blood, breath, or urine when lawfully stopped, apprehended, or cited for any offense allegedly committed while driving or in physical control of a motor vehicle on military installations to determine the influence of intoxicants.
(b) Implied consent to impoundment. Any person granted the privilege to operate or register a motor vehicle on a military installation shall be deemed to have given his or her consent for the removal and temporary impoundment of the POV when it is parked illegally, or for unreasonable periods, as determined by the installation commander or applicable authority, interfering with military operations, creating a safety hazard, disabled by accident, left unattended in a restricted or controlled area, or abandoned. Such persons further agree to reimburse the United States for the cost of towing and storage should their motor vehicle be removed or impounded. Existence of these conditions will be determined by the installation commander or designee.
(c) Any person who operates, registers, or who is in control of a motor vehicle on a military installation involved in a motor vehicle or criminal infraction shall be informed that notice of the violation of law or regulation will be forwarded to the Department of Motor Vehicles (DMV) of the host state and/or home of record for the individual, and to the National Register, when applicable.
§ 634.9 Suspension or revocation of driving or privately owned vehicle registration privileges.
The installation commander or designee may for cause, or any lawful reason, administratively suspend or revoke driving privileges on the installation. The suspension or revocation of installation driving privileges or POV registrations, for lawful reasons unrelated to traffic violations or safe vehicle operation, is not limited or restricted by this part.
(a) Suspension. (1) Driving privileges are usually suspended when other measures fail to improve a driver’s performance. Measures should include counseling, remedial driving training, and rehabilitation programs if violator is entitled to the programs. Driving privileges may also be suspended for up to 6 months if a driver continually violates installation parking regulations. The commander will determine standards for suspension based on frequency of parking violations and publish those standards. Aboard Navy installations, any vehicle parked in a fire lane will be towed at the owner’s expense. Any vehicle parked without authorization in an area restricted due to force protection measures may subject the driver to immediate suspension by the installation commanding officer. Vehicle will be towed at the owner/operator’s expense.
(2) The installation commander has discretionary power to withdraw the authorization of active duty military personnel, DOD civilian employees, and nonappropriated funds (NAF) employees, contractors and subcontractors to operate Government vehicles.
(3) Immediate suspension of installation or overseas command POV driving privileges pending resolution of an intoxicated driving incident is authorized for active duty military personnel, family members, retired members of the military services, DOD civilian personnel, and others with installation or overseas command driving privileges, regardless of the geographic location of the intoxicated driving incident. Suspension is authorized for non-DOD affiliated civilians only with respect to incidents occurring on the installation or in areas subject to military traffic supervision. After a review of available information as specified in § 634.11, installation driving privileges will be immediately suspended pending resolution of the intoxicated driving accident in the following circumstances:
(i) Refusal to take or complete a lawfully requested chemical test to determine contents of blood for alcohol or other drugs.
(ii) Operating a motor vehicle with a blood alcohol content (BAC) of .08 percent by volume (.08 grams per 100 milliliters) or higher or in violation of the law of the jurisdiction that is being assimilated on the military installation.
(iii) Operating a motor vehicle with a BAC of 0.05 percent by volume but less than 0.08 percent blood alcohol by volume in violation of the law of the jurisdiction in which the vehicle is being operated if the jurisdiction imposes a suspension solely on the basis of the BAC level (as measured in grams per 100 milliliters).
(iv) On an arrest report or other official documentation of the circumstances of an apprehension for intoxicated driving.
(b) Revocation. (1) The revocation of installation or overseas command POV driving privileges is a severe administrative measure to be exercised for serious moving violations or when other available corrective actions fail to produce the desired driver improvement. Revocation of the driving privilege will be for a specified period, but never less than 6 months, applies at all military installations, and remains in effect upon reassignment.
(2) Driving privileges are subject to revocation when an individual fails to comply with any of the conditions requisite to the granting privilege (see § 634.6). Revocation of installation driving and registration privileges is authorized for military personnel, family members, civilian employees of DOD, contractors, and other individuals with installation driving privileges. For civilian guests, revocation is authorized only with respect to incidents occurring on the installation or in the areas subject to military traffic supervision.
(3) Driving privileges will be revoked for a mandatory period of not less than 1 year in the following circumstances:
(i) The installation commander or designee has determined that the person lawfully apprehended for driving under the influence refused to submit to or complete a test to measure the alcohol content in the blood, or detect the presence of any other drug, as required by the law of the jurisdiction, or installation traffic code, or by Service directive.
(ii) A conviction, nonjudicial punishment, or a military or civilian administrative action resulting in the suspension or revocation of driver’s license for intoxicated driving. Appropriate official documentation of such conviction is required as the basis for revocation.
(4) When temporary suspensions under paragraph (a)(3) of this section are followed by revocations, the period of revocation is computed beginning from the date the original suspension was imposed, exclusive of any period during which full driving privileges may have been restored pending resolution of charges. (Example: privileges were initially suspended on January 1, 2000 for a charge of intoxicated driving with a BAC of 0.14 percent. A hearing was held, extreme family hardship was substantiated, and privileges were restored on February 1 pending resolution of the charge. On March 1, 2000, the driver was convicted for intoxicated driving. The mandatory 1-year revocation period will consist of January 2000 plus March 2000 through January 2001, for a total of 12 months with no installation driving privileges).
(c) Army provost marshals will use the automated VRS to develop and maintain records showing that an individual’s driving privileges have been revoked.
§ 634.10 Remedial driver training programs.
(a) Navy activities will comply with OPNAVINST 5100.12 Series, and Marine Corps activities with current edition of MCO 5100.19C for establishment of remedial training programs.
(b) Installation commanders may establish a remedial driver-training program to instruct and educate personnel requiring additional training. Personnel may be referred to a remedial program on the basis of their individual driving history or incidents requiring additional training. The curriculum should provide instruction to improve driving performance and compliance with traffic laws.
(c) Installation commanders may schedule periodic courses, or if not practical, arrange for participation in courses conducted by local civil authorities.
(d) Civilian personnel employed on the installation, contractor employees, and family members of military personnel may attend remedial courses on the installation, or similar courses off the installation which incur no expense to the government.
§ 634.11 Administrative due process for suspensions and revocations.
(a) Individual Services will promulgate separate regulations establishing administrative due process procedures for suspension or revocation of driving privileges. The procedures in paragraphs (b) and (c) of this section apply to actions taken by Army commanders with respect to Army military personnel and family members and to civilian personnel operating motor vehicles on Army installations. For Marine Corps users, the provisions of this section apply. For Air Force users, a preliminary suspension for intoxicated driving remains in effect until the installation commander makes a final decision. Requested hearings must take place within a reasonable period, which is determined by the installation commander.
(b) For offenses other than intoxicated driving, suspension or revocation of the installation driving privilege will not become effective until the installation commander or designee notifies the affected person and offers that person an administrative hearing. Suspension or revocation will take place 14 calendar days after written notice is received unless the affected person makes an application for a hearing within this period. Such application will stay the pending suspension or revocation for a period of 14 calendar days.
(1) If, due to action by the government, a hearing is not held within 14 calendar days, the suspension will not take place until such time as the person is granted a hearing and is notified of the action of the installation commander or designee. However, if the affected person requests that the hearing be continued to a date beyond the 14-day period, the suspension or revocation will become effective immediately on receipt of notice that the request for continuance has been granted, and remain in force pending a hearing at a scheduled hearing date.
(2) If it is determined as a result of a hearing to suspend or revoke the affected person’s driving privilege, the suspension or revocation will become effective when the person receives the written notification of such action. In the event that written notification cannot be verified, either through a return receipt for mail or delivery through command channels, the hearing authority will determine the effective date on a case-by-case basis.
(3) If the revocation or suspension is imposed after such hearing, the person whose driving privilege has been suspended or revoked will have the right to appeal or request reconsideration. Such requests must be forwarded through command channels to the installation commander within 14 calendar days from the date the individual is notified of the suspension or revocation resulting from the administrative hearing. The suspension or revocation will remain in effect pending a final ruling on the request. Requests for restricted privileges will be considered per § 634.15.
(4) If driving privileges are temporarily restored (i.e., for family hardship) pending resolution of charges, the period of revocation (after final authority determination) will still total the mandatory 12 months. The final date of the revocation will be adjusted to account for the period when the violator’s privileges were temporarily restored, as this period does not count towards the revocation time.
(c) For drunk driving or driving under the influence offenses, reliable evidence readily available will be presented promptly to an individual designated by the installation commander for review and authorization for immediate suspension of installation driving privileges.
(1) The reviewer should be any officer to include GS-11 and above, designated in writing by the installation or garrison commander whose primary duties are not in the field of law enforcement.
(2) Reliable evidence includes witness statements, military or civilian police report of apprehension, chemical test results if completed, refusal to consent to complete chemical testing, videotapes, statements by the apprehended individual, field sobriety or preliminary breath tests results, and other pertinent evidence. Immediate suspension should not be based solely on published lists of arrested persons, statements by parties not witnessing the apprehension, or telephone conversations or other information not supported by documented and reliable evidence.
(3) Reviews normally will be accomplished within the first normal duty day following final assembly of evidence.
(4) Installation commanders may authorize the installation law enforcement officer to conduct reviews and authorize suspensions in cases where the designated reviewer is not reasonably available and, in the judgment of the installation law enforcement officer, such immediate action is warranted. Air Force Security Forces personnel act in an advisory capacity to installation commanders. Review by the designated officer will follow as soon as practical in such cases. When a suspension notice is based on the law enforcement officer’s review, there is no requirement for confirmation notice following subsequent review by the designated officer.
(5) For active duty military personnel, final written notice of suspension for intoxicated driving will be provided to the individual’s chain of command for immediate presentation to the individual. Air Force Security Forces provide a copy of the temporary suspension to the individual at the time of the incident or may provide a copy of the final determination at the time of the incident, as pre-determined by the final action authority.
(6) For civilian personnel, written notice of suspension for intoxicated driving will normally be provided without delay via certified mail. Air Force Security Forces personnel provide a copy of the temporary suspension to the individual at the time of the incident or may provide a copy of the final determination at the time of the incident, as pre-determined by the final action authority. If the person is employed on the installation, such notice will be forwarded through the military or civilian supervisor. When the notice of suspension is forwarded through the supervisor, the person whose privileges are suspended will be required to provide written acknowledgment of receipt of the suspension notice.
(7) Notices of suspension for intoxicated driving will include the following:
(i) The fact that the suspension can be made a revocation under § 634.9(b).
(ii) The right to request, in writing, a hearing before the installation commander or designee to determine if post driving privileges will be restored pending resolution of the charge; and that such request must be made within 14 calendar days of the final notice of suspension.
(iii) The right of military personnel to be represented by counsel at his or her own expense and to present evidence and witnesses at his or her own expense. Installation commanders will determine the availability of any local active duty representatives requested.
(iv) The right of Department of Defense civilian employees to have a personal representative present at the administrative hearing in accordance with applicable laws and regulations.
(v) Written acknowledgment of receipt to be signed by the individual whose privileges are to be suspended or revoked.
(8) If a hearing is requested, it must take place within 14 calendar days of receipt of the request. The suspension for intoxicated driving will remain in effect until a decision has been made by the installation commander or designee, but will not exceed 14 calendar days after the hearing while awaiting the decision. If no decision has been made by that time, full driving privileges will be restored until such time as the accused is notified of a decision to continue the suspension.
(9) Hearing on suspension actions under § 634.9(a) for drunk or impaired driving pending resolution of charges will cover only the following pertinent issues of whether—
(i) The law enforcement official had reasonable grounds to believe the person was driving or in actual physical control of a motor vehicle under the influence of alcohol or other drugs.
(ii) The person was lawfully cited or apprehended for a driving under the influence offense.
(iii) The person was lawfully requested to submit his or her blood, breath, or urine in order to determine the content of alcohol or other drugs, and was informed of the implied consent policy (consequences of refusal to take or complete the test).
(iv) The person refused to submit to the test for alcohol or other drug content of blood, breath, or urine; failed to complete the test; submitted to the test and the result was .08 or higher blood alcohol content, or between .05 and .08 in violation of the law of the jurisdiction in which the vehicle is being operated if the jurisdiction imposes a suspension solely on the basis of the BAC level; or showed results indicating the presence of other drugs for an on-post apprehension or in violation of State laws for an off-post apprehension.
(v) The testing methods were valid and reliable and the results accurately evaluated.
(10) For revocation actions under § 634.9(b) (3) for intoxicated driving, the revocation is mandatory on conviction or other findings that confirm the charge. (Pleas of nolo contendere are considered equivalent to guilty pleas).
(i) Revocations are effective as of the date of conviction or other findings that confirm the charges. Test refusal revocations will be in addition to any other revocation incurred during a hearing. Hearing authority will determine if revocations for multiple offenses will run consecutively or concurrently taking into consideration if offenses occurred on same occasion or different times, dates. The exception is that test refusal will be one year automatic revocation in addition to any other suspension.
(ii) The notice that revocation is automatic may be placed in the suspension letter. If it does not appear in the suspension letter, a separate letter must be sent and revocation is not effective until receipt of the written notice.
(iii) Revocations cancel any full or restricted driving privileges that may have been restored during suspension and the resolution of the charges. Requests for restoration of full driving privileges are not authorized.
(11) The Army Vehicle Registration System will be utilized to maintain infractions by individuals on Army installations.
§ 634.12 Army administrative actions against intoxicated drivers.
Army commanders will take appropriate action against intoxicated drivers. These actions may include the following:
(a) A written reprimand, administrative in nature, will be issued to active duty Soldiers in the cases described in this paragraph (a). Any general officer, and any officer frocked to the grade of brigadier general, may issue this reprimand. Filing of the reprimand will be in accordance with the provisions of AR 600-37.
(1) Conviction by courts-martial or civilian court or imposition of nonjudicial punishment for an offense of drunk or impaired driving either on or off the installation.
(2) Refusal to take or failure to complete a lawfully requested test to measure alcohol or drug content of the blood, breath, or urine, either on or off the installation, when there is reasonable belief of driving under the influence of alcohol or drugs.
(3) Driving or being in physical control of a motor vehicle on post when the blood alcohol content is 0.08 percent or higher, irrespective of other charges, or off post when the blood alcohol content is in violation of the law of the State involved.
(4) Driving, or being in physical control of a motor vehicle, either on or off the installation, when lawfully conducted chemical tests reflect the presence of illegal drugs.
(b) Review by the commander of the service records of active duty soldiers apprehended for offenses described in paragraph (a) of this section to determine if the following action(s) should be taken—
(1) Administrative reduction per AR 600-8-19, or
(2) Bar to reenlistment per AR 601-280, or
(3) Administrative separation per AR 635-200.
§ 634.13 Alcohol and drug abuse programs.
(a) Commanders will refer military personnel suspected of drug or alcohol abuse for evaluation in the following circumstances:
(1) Behavior indicative of alcohol or drug abuse.
(2) Continued inability to drive a motor vehicle safely because of alcohol or drug abuse.
(b) The commander will ensure military personnel are referred to the installation alcohol and drug abuse program or other comparable facilities when they are convicted of, or receive an official administrative action for, any offense involving driving under the influence. A first offender may be referred to treatment if evidence of substance abuse exists in addition to the offense of intoxicated driving. The provisions of this paragraph do not limit the commander’s prerogatives concerning other actions that may be taken against an offender under separate Service/Agency polices (Army, see AR 600-85. Marine Corps, see MCO P1700.24B).
(c) Active duty Army personnel apprehended for drunk driving, on or off the installation, will be referred to the local Army Substance Abuse Program (ASAP) for evaluation within 14 calendar days to determine if the person is dependent on alcohol or other drugs which will result in enrollment in treatment in accordance with AR 600-85. A copy of all reports on military personnel and DOD civilian employees apprehended for intoxicated driving will be forwarded to the installation alcohol and drug abuse facility.
(d) Active duty Navy personnel apprehended for drunk driving on or off the installation will be screened by the respective SARP facility within 14 calendar days to determine if the individual is dependent on alcohol or other drugs. Active duty Marines apprehended for intoxicated driving, on or off the installation, will be referred to interview by a Level II substance abuse counselor within 14 calendar days for evaluation and determination of the appropriate level of treatment required. Subsequent to this evaluation, the Marine will be assigned to the appropriate treatment programs as prescribed by MCO P1700.24B.
(e) The Services/Agencies may develop preventive treatment and rehabilitative programs for civilian employees with alcohol-related problems.
(f) Army supervisors of civilian employees apprehended for intoxicated driving will advise employees of ASAP services available. Civilian employees apprehended for intoxicated driving while on duty will be referred to the ASAP or comparable facility for evaluation in accordance with AR 600-85. Army commanders will ensure that sponsors encourage family members apprehended for drunk driving seek ASAP evaluation and assistance.
(g) Navy and DLA civilian personnel charged with intoxicated driving will be referred to the Civilian Employee Assistance Program in accordance with 5 CFR part 792. Such referral does not exempt the employee from appropriate administrative or disciplinary actions under civilian personnel regulations.
(h) Marine Corps civilian employees charged with intoxicated driving, on or off the installation, will be referred to the Employee Assistance Program as prescribed by MCO P1700.24B. Marine family members charged with intoxicated driving, on or off the installation, will be provided assistance as addressed in MCO P1700.24B. Such referral and assistance does not exempt the individual from appropriate administrative or disciplinary action under current civilian personnel regulations or State laws.
(i) For the Army, DLA, and the Marine Corps, installation driving privileges of any person who refuses to submit to, or fails to complete, chemical testing for blood-alcohol content when apprehended for intoxicated driving, or convicted of intoxicated driving, will not be reinstated unless the person successfully completes either an alcohol education or treatment program sponsored by the installation, state, county, or municipality, or other program evaluated as acceptable by the installation commander.
(j) Active duty Air Force personnel apprehended for drunk driving, on or off the installation, will be referred by their respective chain of command to the Air Force Substance Abuse office for evaluation in accordance with AFI 44-121/Alcohol Drug Abuse & Treatment Program, and local policies within seven days.
(k) Local installation commanders will determine if active duty Air Force personnel involved in any alcohol incident will immediately be subjected to a urinalysis for drug content. If consent is not given for the test, a command-directed test will be administered in accordance with local policies.
§ 634.14 Restoration of driving privileges upon acquittal of intoxicated driving.
The suspension of driving privileges for military and civilian personnel shall be restored if a final disposition indicates a finding of not guilty, charges are dismissed or reduced to an offense not amounting to intoxicated driving, or where an equivalent determination is made in a nonjudicial proceeding. The following are exceptions to the rule in which suspensions will continue to be enforced.
(a) The preliminary suspension was based on refusal to take a BAC test.
(b) The preliminary suspension resulted from a valid BAC test, (unless disposition of the charges was based on invalidity of the BAC test). In the case of a valid BAC test, the suspension will continue, pending completion of a hearing as specified in § 634.11. In such instances, the individual will be notified in writing that the suspension will continue and of the opportunity to request a hearing within 14 calendar days.
(1) At the hearing, the arrest report, the commander’s report of official disposition, information presented by the individual, and such other information as the hearing officer may deem appropriate will be considered.
(2) If the hearing officer determines by a preponderance of evidence that the individual was engaged in intoxicated driving, the revocation will be for 1 year from the date of the original preliminary suspension.
(c) The person was driving or in physical control of a motor vehicle while under a preliminary suspension or revocation.
(d) An administrative determination has been made by the state or host nation licensing authority to suspend or revoke driving privileges.
(e) The individual has failed to complete a formally directed substance abuse or driver’s training program.
§ 634.15 Restricted driving privileges or probation.
(a) For the Navy, Air Force, Marine Corps, and DLA, the installation commander, or his or her designee may modify a suspension or revocation of driving privileges in certain cases per paragraph (d) of this section.
(b) Army requests for restricted driving privileges subsequent to suspension or revocation of installation driving privileges will be referred to the installation commander or designee, except for intoxicated driving cases, which must be referred to the General Court Martial Convening Authority. Withdrawal of restricted driving privileges is within the installation commander’s discretion.
(c) Probation or restricted driving privileges will not be granted to any person whose driver license or right to operate motor vehicles is under suspension or revocation by a state, Federal, or host nation licensing authority. Prior to application for probation or restricted driving privileges, a state, Federal, or host nation driver’s license or right to operate motor vehicles must be reinstated. The burden of proof for reinstatement of driving privileges lies with the person applying for probation or restricted driving privileges. Revocations for test refusals shall remain.
(d) The installation commander or designee may grant restricted driving privileges or probation on a case-by-case basis provided the person’s state or host nation driver’s license or right to operate motor vehicles remains valid to accommodate any of the following reasons:
(1) Mission requirements.
(2) Unusual personal or family hardships.
(3) Delays exceeding 90 days, not attributed to the person concerned, in the formal disposition of an apprehension or charges that are the basis for any type of suspension or revocation.
(4) When there is no reasonably available alternate means of transportation to officially assigned duties. In this instance, a limited exception can be granted for the sole purpose of driving directly to and from the place of duty.
(e) The terms and limitations on a restricted driving privilege (for example, authorization to drive to and from place of employment or duty, or selected installation facilities such as hospital, commissary, and or other facilities) will be specified in writing and provided to the individual concerned. Persons found in violation of the restricted privilege are subject to revocation action as prescribed in § 634.9.
(f) The conditions and terms of probation will be specified in writing and provided to the individual concerned. The original suspension or revocation term in its entirety may be activated to commence from the date of the violation of probation. In addition, separate action may be initiated based on the commission of any traffic, criminal, or military offense that constitutes a probation violation.
(g) DOD employees and contractors, who can demonstrate that suspension or revocation of installation driving privileges would constructively remove them from employment, may be given a limiting suspension/revocation that restricts driving on the installation or activity (or in the overseas command) to the most direct route to and from their respective work sites (5 U.S.C. 2302(b) (10)). This is not to be construed as limiting the commander from suspension or revocation of on-duty driving privileges or seizure of OF 346, even if this action would constructively remove a person from employment in those instances in which the person’s duty requires driving from place to place on the installation.
§ 634.16 Reciprocal state-military action.
(a) Commanders will recognize the interests of the states in matters of POV administration and driver licensing. Statutory authority may exist within some states or host nations for reciprocal suspension and revocation of driving privileges. See subpart D of this part for additional information on exchanging and obtaining information with civilian law enforcement agencies concerning infractions by Armed Service personnel off post. Installation commanders will honor the reciprocal authority and direct the installation law enforcement officer to pursue reciprocity with state or host nation licensing authorities. Upon receipt of written or other official law enforcement communication relative to the suspension/revocation of driving privileges, the receiving installation will terminate driving privileges as if violations occurred within its own jurisdiction.
(b) When imposing a suspension or revocation for an off-installation offense, the effective date should be the same as civil disposition, or the date that state or host-nation driving privileges are suspended or revoked. This effective date can be retroactive.
(c) If statutory authority does not exist within the state or host nation for formal military reciprocity, the procedures below will be adopted:
(1) Commanders will recognize official documentation of suspensions/revocations imposed by state or host nation authorities. Administrative actions (suspension/revocations, or if recognized, point assessment) for moving traffic violations off the installation should not be less than required for similar offenses on the installation. When notified by state or host nation authorities of a suspension or revocation, the person’s OF 346 may also be suspended.
(2) In CONUS, the host and issuing state licensing authority will be notified as soon as practical when a person’s installation driving privileges are suspended or revoked for any period, and immediately for refusal to submit to a lawful BAC test. The notification will be sent to the appropriate state DMV(s) per reciprocal agreements. In the absence of electronic communication technology, the appropriate state DMV(s) will be notified by official certified mail. The notification will include the basis for the suspension/revocation and the BAC level if applicable.
(d) OCONUS installation commanders must follow provisions of the applicable Status of Forces Agreement (SOFA), the law of the host nation concerning reciprocal suspension and revocation, and other international agreements. To the extent an agreement concerning reciprocity may be permitted at a particular overseas installation, the commander must have prior authorization to negotiate and conclude such an international agreement in accordance with applicable international agreements, DODD 5530.3, International Agreements, June 87, and other individual Service instructions.
§ 634.17 Extensions of suspensions and revocations.
(a) Driving in violation of a suspension or revocation imposed under this part will result in the original period of suspension or revocation being increased by 2 years. In addition, administrative action may be initiated based on the commission of any traffic, criminal, or military offenses, for example, active duty military personnel driving on the installation in violation of a lawful order.
(b) For each subsequent determination within a 5-year period that revocation is authorized under § 634.9, military personnel, DOD civilians, contractors and NAF employees will be prohibited from obtaining or using an OF 346 for 6 months for each such incident. A determination whether DOD civilian personnel should be prohibited from obtaining or using an OF 346 will be made in accordance with the laws and regulations applicable to civilian personnel. This does not preclude a commander from imposing such prohibition for a first offense, or for a longer period of time for a first or subsequent offense, or for such other reasons as may be authorized.
(c) Commanders may extend a suspension or revocation of driving privileges on personnel until completion of an approved remedial driver training course or alcohol or drug counseling programs after proof is provided.
(d) Commanders may extend a suspension or revocation of driving privileges on civilian personnel convicted of intoxicated driving on the installation until successful completion of a state or installation approved alcohol or drug rehabilitation program.
(e) For Navy personnel for good cause, the appropriate authority may withdraw the restricted driving privilege and continue the suspension or revocation period (for example, driver at fault in the traffic accident, or driver cited for a moving violation.
§ 634.18 Reinstatement of driving privileges.
Reinstatement of driving privileges shall be automatic, provided all revocations applicable have expired, proper proof of completion of remedial driving course and/or substance abuse counseling has been provided, and reinstatement requirements of individual’s home state and/or state the individual may have been suspended in, have been met.
Subpart C—Motor Vehicle Registration
§ 634.19 Registration policy.
(a) Motor vehicles will be registered according to guidance in this part and in policies of each Service and DLA. A person who lives or works on an Army, DLA, Air Force, Navy, or Marine Corps installation, or Army National Guard of the U.S. (ARNGUS) facility, or often uses the facilities is required to register his or her vehicle. Also, individuals who access the installation for regular activities such as use of medical facilities and regular recurring activities on the installation should register their vehicles according to a standard operating procedure established by the installation commander. The person need not own the vehicle to register it, but must have a lease agreement, power of attorney, or notarized statement from the owner of the vehicle specifying the inclusive dates for which permission to use the vehicle has been granted.
(b) Vehicles intended for construction and material handling, or used solely off the road, are usually not registered as motor vehicles. Installation commanders may require registration of off-road vehicles and bicycles under a separate local system.
(c) Commanders can grant limited temporary registration for up to 30 days, pending permanent registration, or in other circumstances for longer terms.
(d) Except for reasons of security, all installations and activities of the Services and DLA within the United States and its territories with a vehicle registration system will use and honor the DD Form 2220, (Department of Defense Registration Decal). Registration in overseas commands may be modified in accordance with international agreements or military necessity.
(e) Army Installation commanders will establish local visitor identification for individuals who will be on installation for less than 30 days. The local policy will provide for use of temporary passes that establish a start and end date for which the pass is valid. Army installation commanders must refer to AR 190-16 Chapter 2 for guidance concerning installation access control. (Air Force, see AFI 31-204). Other Armed Services and DLA may develop and issue visitor passes locally.
(f) The conditions in § 634.20 must be met to operate a POV on an Army and DLA Installation. Other Armed Services that do not require registration will enforce § 634.20 through traffic enforcement actions. Additionally, failure to comply with § 634.20 may result in administrative suspension or revocation of driving privileges.
§ 634.20 Privately owned vehicle operation requirements.
Personnel seeking to register their POVs on military installations within the United States or its territories and in overseas areas will comply with the following requirements. (Registration in overseas commands may be modified in accordance with international agreements or military necessity.)
(a) Possess a valid state, overseas command, host nation or international drivers license (within appropriate classification), supported by DD Form 2, or other appropriate identification for DOD civilians, contractors and retirees. DA Form 1602, Civilian Identification Card, is limited for identification on Army installations only.
(b) Possess a certificate of state registration as required by the state in which the vehicle is registered.
(c) Comply with the minimum requirements of the automobile insurance laws or regulations of the state or host nation. In overseas commands where host nation laws do not require minimum personal injury and property damage liability insurance, the major overseas commander will set reasonable liability insurance requirements for registration and/or operation of POVs within the confines of military installations and areas where the commander exercises jurisdiction. Prior to implementation, insurance requirements in host states or nations should be formally coordinated with the appropriate host agency.
(d) Satisfactorily complete a safety and mechanical vehicle inspection by the state or jurisdiction in which the vehicle is licensed. If neither state nor local jurisdiction requires a periodic safety inspection, installation commanders may require and conduct an annual POV safety inspection; however, inspection facilities must be reasonably accessible to those requiring use. Inspections will meet minimum standards established by the National Highway Traffic Safety Administration (NHTSA) in 49 CFR 570.1 through 570.10. Lights, turn signals, brake lights, horn, wipers, and pollution control devices and standards in areas where applicable, should be included in the inspection. Vehicles modified from factory standards and determined unsafe may be denied access and registration.
(e) Possess current proof of compliance with local vehicle emission inspection if required by the state, and maintenance requirements.
(f) Vehicles with elevated front or rear ends that have been modified in a mechanically unsafe manner are unsafe and will be denied registration. 49 CFR 570.8 states that springs shall not be extended above the vehicle manufacturer’s design height.
§ 634.21 Department of Defense Form 2220.
(a) Use. DD Form 2220 will be used to identify registered POVs on Army, Navy, Air Force, Marine Corps, and DLA installations or facilities. The form is produced in single copy for conspicuous placement on the front of the vehicle only (windshield or bumper). If allowed by state laws, the decal is placed in the center by the rear view mirror or the lower portion of the driver’s side windshield. The requirement to affix the DD Form 2220 to the front windshield or bumper of registered vehicles is waived for General Officers and Flag Officers of all Armed Services, Armed Service Secretaries, Political Appointees, Members of Congress, and the Diplomatic Corps.
(1) Each Service and DLA will procure its own forms and installation and expiration tabs. For the Army, the basic decal will be ordered through publications channels and remain on the vehicle until the registered owner disposes of the vehicle, separates from active duty or other conditions specified in paragraph (a)(2) of this section. Air Force, DLA, and Army retirees may retain DD Form 2220. Army retirees are required to follow the same registration and VRS procedures as active duty personnel. Upon termination of affiliation with the service, the registered owner or authorized operator is responsible for removing the DD Form 2220 from the vehicle and surrender of the decal to the issuing office. Army installation commanders are responsible for the costs of procuring decals with the name of their installation and related expiration tabs. Air Force installations will use the installation tag (4″ by
(2) For other Armed Services and DLA, DD Form 2220 and installation and expiration tabs will be removed from POV’s by the owner prior to departure from their current installation, retirement, or separation from military or government affiliation, termination of ownership, registration, liability insurance, or other conditions further identified by local policy.
(b) Specifications. (1) DD Form 2220 and installation and expiration tabs will consist of international blue borders and printing on a white background. Printer information will include the following:
(i) Form title (Department of Defense Registered Vehicle).
(ii) Alphanumeric individual form identification number.
(iii) DOD seal.
(2) Name of the installation will be specified on a separate tab abutting the decal. Each Service or DLA may choose optional color codes for the registrant. Army and installations having vehicle registration programs will use the following standard color scheme for the installation tab:
(i) Blue-officers.
(ii) Red-enlisted.
(iii) Green DA civilian employees (including NAF employees).
(iv) Black-contractor personnel and other civilians employed on the installation. White will be used for contract personnel on Air Force installations.
(3) An expiration tab identifying the month and year (6-2004), the year (2000) or simply “00” will be abutted to right of the decal. For identification purposes, the date of expiration will be shown in bold block numbers on a lighter contrasting background such as traffic yellow, lime, or orange.
(4) DD Form 2220 and any adjoining tabs will be theft resistant when applied to glass, metal, painted, or rubberized surfaces and manufactured so as to obliterate or self destruct when removal is attempted. Local policy guided by state or host nation laws will specify the exact placement of DD Form 2220.
(5) For Navy and Marine Corps military personnel the grade insignia will be affixed on placards, approximately 5 inches by 8 inches in size, and placed on the driver’s side dashboard. Placards should be removed from view when the vehicle is not located on a military installation.
§ 634.22 Termination or denial of registration.
Installation commanders or their designated representatives will terminate POV registration or deny initial registration under the following conditions (decal and tabs will be removed from the vehicle when registration is terminated):
(a) The owner fails to comply with the registration requirements.
(b) The owner sells or disposes of the POV, is released from active duty, separated from the Service, or terminates civilian employment with a military Service or DOD agency. Army and Air Force personnel on a permanent change of station will retain the DD Form 2220 if the vehicle is moved to their new duty station.
(c) The owner is other than an active duty military or civilian employee and discontinues regular operations of the POV on the installation.
(d) The owner’s state, overseas command, or host nation driver’s license is suspended or revoked, or the installation driving privilege is revoked. Air Force does not require removal of the DD Form 2220 when driving privileges are suspended for an individual. When vehicle registration is terminated in conjunction with the revocation of installation driving privileges, the affected person must apply to re-register the POV after the revocation expires. Registration should not be terminated if other family members having installation driving privileges require use of the vehicle.
§ 634.23 Specified consent to impoundment.
Personnel registering POVs on DOD installations must consent to the impoundment policy. POV registration forms will contain or have appended to them a certificate with the following statement: “I am aware that (insert number and title of separate Service or DLA directive) and the installation traffic code provide for the removal and temporary impoundment of privately owned motor vehicles that are either parked illegally, or for unreasonable periods, interfering with military operations, creating a safety hazard, disabled by accident, left unattended in a restricted or control area, or abandoned. I agree to reimburse the United States for the cost of towing and storage should my motor vehicle(s), because of such circumstances, be removed and impounded.”
Subpart D—Traffic Supervision
§ 634.24 Traffic planning and codes.
(a) Safe and efficient movement of traffic on an installation requires traffic supervision. A traffic supervision program includes traffic circulation planning and control of motor vehicle traffic; publication and enforcement of traffic laws and regulations; and investigation of motor vehicle accidents.
(b) Installation commanders will develop traffic circulation plans that provide for the safest and most efficient use of primary and secondary roads. Circulation planning should be a major part of all long-range master planning at installations. The traffic circulation plan is developed by the installation law enforcement officer, engineer, safety officer, and other concerned staff agencies. Highway engineering representatives from adjacent civil communities must be consulted to ensure the installation plan is compatible with the current and future circulation plan of the community. The plan should include the following:
(1) Normal and peak load routing based on traffic control studies.
(2) Effective control of traffic using planned direction, including measures for special events and adverse road or weather conditions.
(3) Point control at congested locations by law enforcement personnel or designated traffic directors or wardens, including trained school-crossing guards.
(4) Use of traffic control signs and devices.
(5) Efficient use of available parking facilities.
(6) Efficient use of mass transportation.
(c) Traffic control studies will provide factual data on existing roads, traffic density and flow patterns, and points of congestion. The installation law enforcement officer and traffic engineer usually conduct coordinated traffic control studies to obtain the data. Accurate data will help determine major and minor routes, location of traffic control devices, and conditions requiring engineering or enforcement services.
(d) The (Military) Surface Deployment and Distribution Command Transportation Engineering Agency (SDDCTEA) will help installation commanders solve complex highway traffic engineering problems. SDDCTEA traffic engineering services include—
(1) Traffic studies of limited areas and situations.
(2) Complete studies of traffic operations of entire installations. (This can include long-range planning for future development of installation roads, public highways, and related facilities.)
(3) Assistance in complying with established traffic engineering standards.
(e) Installation commanders should submit requests for traffic engineering services in accordance with applicable service or agency directives.
§ 634.25 Installation traffic codes.
(a) Installation or activity commanders will establish a traffic code for operation of motor vehicles on the installation. Commanders in overseas areas will establish a traffic code, under provisions of this part, to the extent military authority is empowered to regulate traffic on the installation under the applicable SOFA. Traffic codes will contain the rules of the road (parking violations, towing instructions, safety equipment, and other key provisions). These codes will, where possible, conform to the code of the State or host nation in which the installation is located. In addition, the development and publication of installation traffic codes will be based on the following:
(1) Highway Safety Program Standards (23 U.S.C. 402).
(2) Applicable portions of the Uniform Vehicle Code and Model Traffic Ordinance published by the National Committee on Uniform Traffic Laws and Ordinances.
(b) The installation traffic code will contain policy and procedures for the towing, searching, impounding, and inventorying of POVs. These provisions should be well publicized and contain the following:
(1) Specific violations and conditions under which the POV will be impounded and towed.
(2) Procedures to immediately notify the vehicle owner.
(3) Procedures for towing and storing impounded vehicles.
(4) Actions to dispose of the vehicle after lawful impoundment.
(5) Violators are responsible for all costs of towing, storage and impounding of vehicles for other than evidentiary reasons.
(c) Installation traffic codes will also contain the provisions discussed as follows: (Army users, see AR 385-55).
(1) Motorcycles and mopeds. For motorcycles and other self-propelled, open, two-wheel, three-wheel, and four-wheel vehicles powered by a motorcycle-type engine, the following traffic rules apply:
(i) Headlights will be on at all times when in operation.
(ii) A rear view mirror will be attached to each side of the handlebars.
(iii) Approved protective helmets, eye protection, hard-soled shoes, long trousers and brightly colored or reflective outer upper garment will be worn by operators and passengers when in operation.
(2) Restraint systems. (i) Restraint systems (seat belts) will be worn by all operators and passengers of U.S. Government vehicles on or off the installation.
(ii) Restraint systems will be worn by all civilian personnel (family members, guests, and visitors) driving or riding in a POV on the installation.
(iii) Restraint systems will be worn by all military service members and Reserve Component members on active Federal service driving or riding in a POV whether on or off the installation.
(iv) Infant/child restraint devices (car seats) will be required in POVs for children 4 years old or under and not exceeding 45 pounds in weight.
(v) Restraint systems are required only in vehicles manufactured after model year 1966.
(3) Driver distractions. Vehicle operators on a DoD Installation and operators of Government owned vehicles shall not use cell phones unless the vehicle is safely parked or unless they are using a hands-free device. The wearing of any other portable headphones, earphones, or other listening devices (except for hand-free cellular phones) while operating a motor vehicle is prohibited. Use of those devices impairs driving and masks or prevents recognition of emergency signals, alarms, announcements, the approach of vehicles, and human speech. DoD Component safety guidance should note the potential for driver distractions such as eating and drinking, operating radios, CD players, global positioning equipment, etc. Whenever possible this should only be done when the vehicle is safely parked.
(d) Only administrative actions (reprimand, assessment of points, loss of on-post driving privileges, or other actions) will be initiated against service members for off-post violations of the installation traffic code.
(e) In States where traffic law violations are State criminal offenses, such laws are made applicable under the provisions of 18 U.S.C. 13 to military installations having concurrent or exclusive Federal jurisdiction.
(f) In those States where violations of traffic law are not considered criminal offenses and cannot be assimilated under 18 U.S.C., DODD 5525.4, enclosure 1 expressly adopts the vehicular and pedestrian traffic laws of such States and makes these laws applicable to military installations having concurrent or exclusive Federal jurisdiction. It also delegates authority to installation commanders to establish additional vehicular and pedestrian traffic rules and regulations for their installations. Persons found guilty of violating the vehicular and pedestrian traffic laws made applicable on the installation under provisions of that directive are subject to a fine as determined by the local magistrate or imprisonment for not more than 30 days, or both, for each violation. In those States where traffic laws cannot be assimilated, an extract copy of this paragraph (f) and a copy of the delegation memorandum in DODD 5525.4, enclosure 1, will be posted in a prominent place accessible to persons assigned, living, or working on the installation.
(g) In those States where violations of traffic laws cannot be assimilated because the Federal Government’s jurisdictional authority on the installation or parts of the installation is only proprietary, neither 18 U.S.C. 13 nor the delegation memorandum in DoDD 5525.4, enclosure 1, will permit enforcement of the State’s traffic laws in Federal courts. Law enforcement authorities on those military installations must rely on either administrative sanctions related to the installation driving privilege or enforcement of traffic laws by State law enforcement authorities.
§ 634.26 Traffic law enforcement principles.
(a) Traffic law enforcement should motivate drivers to operate vehicles safely within traffic laws and regulations and maintain an effective and efficient flow of traffic. Effective enforcement should emphasize voluntary compliance by drivers and can be achieved by the following actions:
(1) Publishing a realistic traffic code well known by all personnel.
(2) Adopting standard signs, markings, and signals in accordance with NHSPS and the Manual on Uniform Traffic Control Devices for Streets and Highways.
(3) Ensuring enforcement personnel establish courteous, personal contact with drivers and act promptly when driving behavior is improper or a defective vehicle is observed in operation.
(4) Maintaining an aggressive program to detect and apprehend persons who drive while privileges are suspended or revoked.
(5) Using sound discretion and judgment in deciding when to apprehend, issue citations, or warn the offender.
(b) Selective enforcement will be used when practical. Selective enforcement deters traffic violations and reduces accidents by the presence or suggested presence of law enforcement personnel at places where violations, congestion, or accidents frequently occur. Selective enforcement applies proper enforcement measures to traffic congestion and focuses on selected time periods, conditions, and violations that cause accidents. Law enforcement personnel use selective enforcement because that practice is the most effective use of resources.
(c) Enforcement activities against intoxicated driving will include—
(1) Detecting, apprehending, and testing persons suspected of driving under the influence of alcohol or drugs.
(2) Training law enforcement personnel in special enforcement techniques.
(3) Enforcing blood-alcohol concentration standards. (See § 634.34).
(4) Denying installation driving privileges to persons whose use of alcohol or other drugs prevents safe operation of a motor vehicle.
(d) Installation officials will formally evaluate traffic enforcement on a regular basis. That evaluation will examine procedures to determine if the following elements of the program are effective in reducing traffic accidents and deaths:
(1) Selective enforcement measures;
(2) Suspension and revocation actions; and
(3) Chemical breath-testing programs.
§ 634.27 Speed-measuring devices.
Speed-measuring devices will be used in traffic control studies and enforcement programs. Signs may be posted to indicate speed-measuring devices are being used.
(a) Equipment purchases. Installations will ensure operators attend an appropriate training program for the equipment in use.
(b) Training and certification standards. (1) The commander of each installation using traffic radar will ensure that personnel selected as operators of such devices meet training and certification requirements prescribed by the State (or SOFA) in which the installation is located. Specific information on course dates, costs, and prerequisites for attending may be obtained by contacting the State agency responsible for police traffic radar training.
(2) Installation commanders located in States or overseas areas where no formal training program exists, or where the military personnel are unable or ineligible to participate in police traffic radar training programs, may implement their own training program or use a selected civilian institution or manufacturer’s course.
(3) The objective of the civilian or manufacturer-sponsored course is to improve the effectiveness of speed enforcement through the proper and efficient use of speed-measurement radar. On successful completion, the course graduate must be able to—
(i) Describe the association between excessive speed and accidents, deaths, and injuries, and describe the traffic safety benefits of effective speed control.
(ii) Describe the basic principles of radar speed measurement.
(iii) Identify and describe the Service’s policy and procedures affecting radar speed measurement and speed enforcement.
(iv) Identify the specific radar instrument used and describe the instrument’s major components and functions.
(v) Demonstrate basic skills in checking calibration and operating the specific radar instrument(s).
(vi) Demonstrate basic skills in preparing and presenting records and courtroom testimony relating to radar speed measurement and enforcement.
(c) Recertification. Recertification of operators will occur every 3 years, or as prescribed by State law.
§ 634.28 Traffic accident investigation.
Installation law enforcement personnel must make detailed investigations of accidents described in this section:
(a) Accidents involving Government vehicles or Government property on the installation involving a fatality, personal injury, or estimated property damage in the amount established by separate Service/DLA policy. (Minimum damage limits are: Army, $1,000; Air Force, as specified by the installation commander; Navy and Marine Corps, $500.) The installation motor pool will provide current estimates of the cost of repairs. Investigations of off-installation accidents involving Government vehicles will be made in cooperation with the civilian law enforcement agency.
(b) POV accidents on the installation involving a fatality, personal injury, or when a POV is inoperable as a result of an accident.
(c) Any accident prescribed within a SOFA agreement.
§ 634.29 Traffic accident investigation reports.
(a) Accidents requiring immediate reports. The driver or owner of any vehicle involved in an accident, as described in § 634.28, on the installation, must immediately notify the installation law enforcement office. The operator of any Government vehicle involved in a similar accident off the installation must immediately notify the local civilian law enforcement agency having jurisdiction, as well as law enforcement personnel of the nearest military installation.
(b) Investigation records. Installation law enforcement officials will record traffic accident investigations on Service/DLA forms. Information will be released according to Service/DLA policy, the Privacy Act, and the Freedom of Information Act.
(c) Army law enforcement officers. These officers provide the local Safety Office copies of traffic accident investigation reports pertaining to accidents investigated by military police that resulted in a fatality, personal injury, or estimated damage to Government vehicles or property in excess of $1,000.
(d) POV accidents not addressed in § 634.28. Guidance for reporting these cases is provided as follows:
(1) Drivers or owners of POVs will be required to submit a written report to the installation law enforcement office within 24 hours of an accident in the following cases, with all information listed in paragraph (d)(3) of this section:
(i) The accident occurs on the installation.
(ii) The accident involves no personal injury.
(iii) The accident involves only minor damage to the POV and the vehicle can be safely and normally driven from the scene under its own power.
(2) Information in the written report cannot be used in criminal proceedings against the person submitting it unless it was originally categorized a hit and run and the violator is the person submitting the report. Rights advisement will be given prior to any criminal traffic statements provided by violators. Within the United States, the installation law enforcement official may require such reporting on Service forms or forms of the State jurisdiction.
(3) Reports required in paragraph (d) (1) of this section by the Army will include the following about the accident:
(i) Location, date, and time.
(ii) Identification of all drivers, pedestrians, and passengers involved.
(iii) Identification of vehicles involved.
(iv) Speed and direction of travel of each vehicle involved, including a sketch of the collision and roadway with street names and north arrow.
(v) Property damage involved.
(vi) Environmental conditions at the time of the incident (weather, visibility, road surface condition, and other factors).
(vii) A narrative description of the events and circumstances concerning the accident.
§ 634.30 Use of traffic accident investigation report data.
(a) Data derived from traffic accident investigation reports and from vehicle owner accident reports will be analyzed to determine probable causes of accidents. When frequent accidents occur at a location, the conditions at the location and the types of accidents (collision diagram) will be examined.
(b) Law enforcement personnel and others who prepare traffic accident investigation reports will indicate whether or not seat restraint devices were being used at the time of the accident.
(c) When accidents warrant, an installation commander may establish a traffic accident review board. The board will consist of law enforcement, engineer, safety, medical, and legal personnel. The board will determine principal factors leading to the accident and recommend measures to reduce the number and severity of accidents on and off the installation. (The Air Force will use Traffic Safety Coordinating Groups. The Navy will use Traffic Safety Councils per OPNAVINST 5100.12 Series).
(d) Data will be shared with the installation legal, engineer, safety, and transportation officers. The data will be used to inform and educate drivers and to conduct traffic engineering studies.
(e) Army traffic accident investigation reports will be provided to Army Centralized Accident Investigation of Ground Accidents (CAIG) boards on request. The CAIG boards are under the control of the Commander, U.S. Army Safety Center, Fort Rucker, AL 36362-5363. These boards investigate Class A, on-duty, non-POV accidents and other selected accidents Army-wide (See AR 385-40). Local commanders provide additional board members as required to complete a timely and accurate investigation. Normally, additional board members are senior equipment operators, maintenance officer, and medical officers. However, specific qualifications of the additional board members may be dictated by the nature of the accident.
(f) The CAIG program is not intended to interfere with, impede, or delay law enforcement agencies in the execution of regulatory responsibilities that apply to the investigation of accidents for a determination of criminal intent or criminal acts. Criminal investigations have priority.
(g) Army law enforcement agencies will maintain close liaison and cooperation with CAIG boards. Such cooperation, particularly with respect to interviews of victims and witnesses and in collection and preservation of physical evidence, should support both the CAIG and law enforcement collateral investigations.
§ 634.31 Parking.
(a) The most efficient use of existing on- and off-street parking space should be stressed on a nonreserved (first-come, first-served) basis.
(b) Reserved parking facilities should be designated as parking by permit or numerically by category of eligible parkers. Designation of parking spaces by name, grade, rank, or title should be avoided.
(c) Illegal parking contributes to congestion and slows traffic flow on an installation. Strong enforcement of parking restrictions results in better use of available parking facilities and eliminates conditions causing traffic accidents.
(d) The “Denver boot” device is authorized for use as a technique to assist in the enforcement of parking violations where immobilization of the POV is necessary for safety. Under no circumstances should the device be used to punish or “teach a lesson” to violators. Booting should not be used if other reasonably effective but less restrictive means of enforcement (such as warnings, ticketing, reprimands, revocations, or suspensions of on-post driving privileges) are available. Procedures for booting must be developed as follows:
(1) Local standing operating procedures (SOPs) must be developed to control the discretion of enforcers and limit booting to specific offenses. SOPs should focus on specific reasons for booting, such as immobilization of unsafe, uninspected, or unregistered vehicles or compelling the presence of repeat offenders. All parking violations must be clearly outlined in the installation traffic code.
(2) Drivers should be placed on notice that particular violations or multiple violations may result in booting. Also, drivers must be provided with a prompt hearing and an opportunity to obtain the release of their property.
(3) To limit liability, drivers must be warned when a boot is attached to their vehicle and instructed how to have the boot removed without damaging the vehicle.
§ 634.32 Traffic violation reports.
(a) Most traffic violations occurring on DOD installations (within the UNITED STATES or its territories) should be referred to the proper U.S. Magistrate. (Army, see AR 190-29; DLA, see DLAI 5720.4; and Air Force, see AFI 51-905). However, violations are not referred when—
(1) The operator is driving a Government vehicle at the time of the violation.
(2) A Federal Magistrate is either not available or lacks jurisdiction to hear the matter because the violation occurred in an area where the Federal Government has only proprietary legislative jurisdiction.
(3) Mission requirements make referral of offenders impractical.
(4) A U.S. Magistrate is available but the accused refuses to consent to the jurisdiction of the court and the U.S. Attorney refuses to process the case before a U.S. District Court. For the Navy, DUI and driving under the influence of drugs cases will be referred to the Federal Magistrate.
(b) Installation commanders will establish administrative procedures for processing traffic violations.
(1) All traffic violators on military installations will be issued either a DD Form 1408 (Armed Forces Traffic Ticket) or a DD Form 1805 (United States District Court Violation Notice), as appropriate. Unless specified otherwise by separate Service/DLA policy, only on-duty law enforcement personnel (including game wardens) designated by the installation law enforcement officer may issue these forms. Air Force individuals certified under the Parking Traffic Warden Program may issue DD Form 1408 in areas under their control.
(2) A copy of all reports on military personnel and DOD civilian employees apprehended for intoxicated driving will be forwarded to the installation alcohol and drug abuse facility.
(c) Installation commanders will establish procedures used for disposing of traffic violation cases through administrative or judicial action consistent with the Uniform Code of Military Justice (UCMJ) and Federal law.
(d) DD Form 1805 will be used to refer violations of State traffic laws made applicable to the installation (Assimilative Crimes Act (18 U.S.C. 13) and the delegation memorandum in DoDD 5525.4, enclosure 1, and other violations of Federal law) to the U.S. Magistrate. (Army users, see AR 190-29.)
(1) A copy of DD Form 1805 and any traffic violation reports on military personnel and DOD civilian employees will be forwarded to the commander or supervisor of the violator. DA form 3975 may be used to forward the report.
(2) Detailed instructions for properly completing DD Form 1805 are contained in separate Service policy directives.
(3) The assimilation of State traffic laws as Federal offenses should be identified by a specific State code reference in the CODE SECTION block of the DD Form 1805 (or in a complaint filed with the U.S. Magistrate).
(4) The Statement of Probable Cause on the DD Form 1805 will be used according to local staff judge advocate and U.S. Magistrate court policy. The Statement of Probable Cause is required by the Federal misdemeanor rules to support the issuance of a summons or arrest warrant.
(5) For cases referred to U.S. Magistrates, normal distribution of DD Form 1805 will be as follows:
(i) The installation law enforcement official will forward copy 1 (white) and copy 2 (yellow) to the U.S. District Court (Central Violation Bureau).
(ii) The installation law enforcement office will file copy 3 (pink).
(iii) Law enforcement personnel will provide copy 4 (envelope) to the violator.
(e) When DD Form 1408 is used, one copy (including written warnings) will be forwarded through command channels to the service member’s commander, to the commander of the military family member’s sponsor, or to the civilian’s supervisor or employer as the installation commander may establish.
(1) Previous traffic violations committed by the offender and points assessed may be shown.
(2) For violations that require a report of action taken, the DD Form 1408 will be returned to the office of record through the reviewing authority as the installation commander may establish.
(3) When the report is received by the office of record, that office will enter the action on the violator’s driving record.
§ 634.33 Training of law enforcement personnel.
(a) As a minimum, installation law enforcement personnel will be trained to do the following:
(1) Recognize signs of alcohol and other drug impairment in persons operating motor vehicles.
(2) Prepare DD Form 1920 (Alcohol Influence Report).
(3) Perform the three field tests of the improved sobriety testing techniques (§ 634.36 (b)).
(4) Determine when a person appears intoxicated but is actually physically or mentally ill and requires prompt medical attention.
(5) Understand the operation of breath-testing devices.
(b) Each installation using breath-testing devices will ensure that operators of these devices—
(1) Are chosen for integrity, maturity, and sound judgment.
(2) Meet certification requirements of the State where the installation is located.
(c) Installations located in States or overseas areas having a formal breath-testing and certification program should ensure operators attend that training.
(d) Installations located in States or overseas areas with no formal training program will train personnel at courses offered by selected civilian institutions or manufacturers of the equipment.
(e) Operators must maintain proficiency through refresher training every 18 months or as required by the State.
§ 634.34 Blood alcohol concentration standards.
(a) Administrative revocation of driving privileges and other enforcement measures will be applied uniformly to offenders driving under the influence of alcohol or drugs. When a person is tested under the implied consent provisions of § 634.8, the results of the test will be evaluated as follows:
(1) If the percentage of alcohol in the person’s blood is less than 0.05 percent, presume the person is not under the influence of alcohol.
(2) If the percentage is 0.05 but less than 0.08, presume the person may be impaired. This standard may be considered with other competent evidence in determining whether the person was under the influence of alcohol.
(3) If the percentage is 0.08 or more, or if tests reflect the presence of illegal drugs, the person was driving while intoxicated.
(b) Percentages in paragraph (a) of this section are percent of weight by volume of alcohol in the blood based on grams of alcohol per 100 milliliters of blood. These presumptions will be considered with other evidence in determining intoxication.
§ 634.35 Chemical testing policies and procedures.
(a) Validity of chemical testing. Results of chemical testing are valid under this part only under the following circumstances:
(1) Blood, urine, or other bodily substances are tested using generally accepted scientific and medical methods and standards.
(2) Breath tests are administered by qualified personnel (§ 634.33).
(3) An evidential breath-testing device approved by the State or host nation is used. For Army, Air Force, and Marine Corps, the device must also be listed on the NHTSA conforming products list published in the “Conforming Products List for instruments that conform to the Model Specification for Evidential Breath Testing Devices (58 FR 48705), and amendments.”
(4) Procedures established by the State or host nation or as prescribed in paragraph (b) of this section are followed.
(b) Breath-testing device operational procedures. If the State or host nation has not established procedures for use of breath-testing devices, the following procedures will apply:
(1) Screening breath-testing devices will be used—
(i) During the initial traffic stop as a field sobriety testing technique, along with other field sobriety testing techniques, to determine if further testing is needed on an evidential breath-testing device.
(ii) According to manufacture operating instructions. (For Army, Air Force and Marine Corps, the screening breath-testing device must also be listed on the NHTSA conforming products list published in the “Model Specifications for Evidential Breath Testers” (September 17, 1993, 58 FR 48705).
(2) Evidential breath-testing devices will be used as follows:
(i) Observe the person to be tested for at least 15 minutes before collecting the breath specimen. During this time, the person must not drink alcoholic beverages or other fluids, eat, smoke, chew tobacco, or ingest any substance.
(ii) Verify calibration and proper operation of the instrument by using a control sample immediately before the test.
(iii) Comply with operational procedures in the manufacturer’s current instruction manual.
(iv) Perform preventive maintenance as required by the instruction manual.
(c) Chemical tests of personnel involved in fatal accidents. (1) Installation medical authorities will immediately notify the installation law enforcement officer of—
(i) The death of any person involved in a motor vehicle accident.
(ii) The circumstances surrounding such an accident, based on information available at the time of admission or receipt of the body of the victim.
(2) Medical authorities will examine the bodies of those persons killed in a motor vehicle accident to include drivers, passengers, and pedestrians subject to military jurisdiction. They will also examine the bodies of dependents, who are 16 years of age or older, if the sponsors give their consent. Tests for the presence and concentration of alcohol or other drugs in the person’s blood, bodily fluids, or tissues will be made as soon as possible and where practical within 8 hours of death. The test results will be included in the medical reports.
(3) As provided by law and medical conditions permitting, a blood or breath sample will be obtained from any surviving operator whose vehicle is involved in a fatal accident.
§ 634.36 Detection, apprehension, and testing of intoxicated drivers.
(a) Law enforcement personnel usually detect drivers under the influence of alcohol or other drugs by observing unusual or abnormal driving behavior. Drivers showing such behavior will be stopped immediately. The cause of the unusual driving behavior will be determined, and proper enforcement action will be taken.
(b) When a law enforcement officer reasonably concludes that the individual driving or in control of the vehicle is impaired, field sobriety tests should be conducted on the individual. The DD Form 1920 may be used by law enforcement agencies in examining, interpreting, and recording results of such tests. Law enforcement personnel should use a standard field sobriety test (such as one-leg stand or walk and turn) horizontal gaze nystagmus tests as sanctioned by the National Highway Traffic and Safety Administration, and screening breath-testing devices to conduct field sobriety tests.
§ 634.37 Voluntary breath and bodily fluid testing based on implied consent.
(a) Implied consent policy is explained in § 634.8.
(b) Tests may be administered only if the following conditions are met:
(1) The person was lawfully stopped while driving, operating, or in actual physical control of a motor vehicle on the installation.
(2) Reasonable suspicion exists to believe that the person was driving under the influence of alcohol or drugs.
(3) A request was made to the person to consent to the tests combined with a warning that failure to voluntarily submit to or complete a chemical test of bodily fluids or breath will result in the revocation of driving privileges.
(c) As stated in paragraphs (a) and (b) of this section, the law enforcement official relying on implied consent will warn the person that driving privileges will be revoked if the person fails to voluntarily submit to or complete a requested chemical test. The person does not have the right to have an attorney present before stating whether he or she will submit to a test, or during the actual test. Installation commanders will prescribe the type or types of chemical tests to be used. Testing will follow policies and procedures in § 634.35. The results of chemical tests conducted under the implied consent provisions of this part may be used as evidence in courts-martial, nonjudicial proceedings under Article 15 of the UCMJ, administrative actions, and civilian courts.
(d) Special rules exist for persons who have hemophilia, other blood-clotting disorders, or any medical or surgical disorder being treated with an anticoagulant. These persons—
(1) May refuse a blood extraction test without penalty.
(2) Will not be administered a blood extraction test to determine alcohol or other drug concentration or presence under this part.
(3) May be given breath or urine tests, or both.
(e) If a person suspected of intoxicated driving refuses to submit to a chemical test, a test will not be administered except as specified in § 634.38.
§ 634.38 Involuntary extraction of bodily fluids in traffic cases.
(a) General. The procedures outlined in this section pertain only to the investigation of individuals stopped, apprehended, or cited on a military installation for any offense related to driving a motor vehicle and for whom probable cause exists to believe that such individual is intoxicated. Extractions of body fluids in furtherance of other kinds of investigations are governed by the Manual for Courts-Martial, United States, Military Rule of Evidence 315 (2002) (MRE 315), and regulatory rules concerning requesting and granting authorizations for searches.
(1) Air Force policy on nonconsensual extraction of blood samples is addressed in AFI 44-102.
(2) Army and Marine Corps personnel should not undertake the nonconsensual extraction of body fluids for reasons other than a valid medical purpose without first obtaining the advice and concurrence of the installation staff judge advocate or his or her designee.
(3) DLA policy on nonconsensual taking of blood samples is contained in DLAR 5700.7.
(b) Rule. Involuntary bodily fluid extraction must be based on valid search and seizure authorization. An individual subject to the UCMJ who does not consent to chemical testing, as described in § 634.37, may nonetheless be subjected to an involuntary extraction of bodily fluids, including blood and urine, only in accordance with the following procedures:
(1) An individual subject to the UCMJ who was driving a motor vehicle and suspected of being under the influence of an intoxicant may be subjected to a nonconsensual bodily fluid extraction to test for the presence of intoxicants only when there is a probable cause to believe that such an individual was driving or in control of a vehicle while under the influence of an intoxicant.
(i) A search authorization by an appropriate commander or military magistrate obtained pursuant to MRE 315, is required prior to such nonconsensual extraction.
(ii) A search authorization is not required under such circumstances when there is a clear indication that evidence of intoxication will be found and there is reason to believe that the delay necessary to obtain a search authorization would result in the loss or destruction of the evidence sought.
(iii) Because warrantless searches are subject to close scrutiny by the courts, obtaining an authorization is highly preferable. Warrantless searches generally should be conducted only after coordination with the servicing staff judge advocate or legal officer, and attempts to obtain authorization from an appropriate official prove unsuccessful due to the unavailability of a commander or military magistrate.
(2) If authorization from the military magistrate or commander proves unsuccessful due to the unavailability of such officials, the commander of a medical facility is empowered by MRE 315, to authorize such extraction from an individual located in the facility at the time the authorization is sought.
(i) Before authorizing the involuntary extraction, the commander of the medical facility should, if circumstances permit, coordinate with the servicing staff judge advocate or legal officer.
(ii) The medical facility commander authorizing the extraction under MRE 315 need not be on duty as the attending physician at the facility where the extraction is to be performed and the actual extraction may be accomplished by other qualified medical personnel.
(iii) The authorizing official may consider his or her own observations of the individual in determining probable cause.
(c) Role of medical personnel. Authorization for the nonconsensual extraction of blood samples for evidentiary purposes by qualified medical personnel is independent of, and not limited by, provisions defining medical care, such as the provision for nonconsensual medical care pursuant to AR 600-20, section IV. Extraction of blood will be accomplished by qualified medical personnel. (See MRE 312(g)).
(1) In performing this duty, medical personnel are expected to use only that amount of force that is reasonable and necessary to administer the extraction.
(2) Any force necessary to overcome an individual’s resistance to the extraction normally will be provided by law enforcement personnel or by personnel acting under orders from the member’s unit commander.
(3) Life endangering force will not be used in an attempt to effect nonconsensual extractions.
(4) All law enforcement and medical personnel will keep in mind the possibility that the individual may require medical attention for possible disease or injury.
(d) Nonconsensual extractions of blood will be done in a manner that will not interfere with or delay proper medical attention. Medical personnel will determine the priority to be given involuntary blood extractions when other medical treatment is required.
(e) Use of Army medical treatment facilities and personnel for blood alcohol testing has no relevance to whether or not the suspect is eligible for military medical treatment. The medical effort in such instances is in support of a valid military mission (law enforcement), not related to providing medical treatment to an individual.
§ 634.39 Testing at the request of the apprehended person.
(a) A person subject to tests under § 634.8 may request that an additional test be done privately. The person may choose a doctor, qualified technician, chemist, registered nurse, or other qualified person to do the test. The person must pay the cost of the test. The test must be a chemical test approved by the State or host nation in an overseas command. All tests will be completed as soon as possible, with any delay being noted on the results.
(b) If the person requests this test, the suspect is responsible for making all arrangements. If the suspect fails to or cannot obtain any additional test, the results of the tests that were done at the direction of a law enforcement official are not invalid and may still be used to support actions under separate Service regulations, UCMJ, and the U.S. Magistrate Court.
§ 634.40 General off installation traffic activities.
In areas not under military control, civil authorities enforce traffic laws. Law enforcement authorities will establish a system to exchange information with civil authorities. Army and Air Force installation law enforcement authorities will establish a system to exchange information with civil authorities to enhance the chain of command’s visibility of a soldier’s and airman’s off post traffic violations. These agreements will provide for the assessment of traffic points based on reports from state licensing authorities involving Army military personnel. The provisions of subpart E of this part and the VRS automated system provide for the collection of off post traffic incident reports and data. As provided in AR 190-45, civilian law enforcement agencies are considered routine users of Army law enforcement data and will be granted access to data when available from Army law enforcement systems of records. Off-installation traffic activities in overseas areas are governed by formal agreements with the host nation government. Procedures should be established to process reports received from civil authorities on serious traffic violations, accidents, and intoxicated driving incidents involving persons subject to this part. The exchange of information is limited to Army and Air Force military personnel. Provost marshals will not collect and use data concerning civilian employees, family members, and contract personnel except as allowed by state and Federal laws.
§ 634.41 Compliance with State laws.
(a) Installation commanders will inform service members, contractors and DOD civilian employees to comply with State and local traffic laws when operating government motor vehicles.
(b) Commanders will coordinate with the proper civil law enforcement agency before moving Government vehicles that exceed legal limits or regulations or that may subject highway users to unusual hazards. (See AR 55-162/OPNAVINST 4600.11D/AFJI 24-216/MCO 4643.5C).
(c) Installation commanders will maintain liaison with civil enforcement agencies and encourage the following:
(1) Release of a Government vehicle operator to military authorities unless one of the following conditions exists.
(i) The offense warrants detention.
(ii) The person’s condition is such that further operation of a motor vehicle could result in injury to the person or others.
(2) Prompt notice to military authorities when military personnel or drivers of Government motor vehicles have—
(i) Committed serious violations of civil traffic laws.
(ii) Been involved in traffic accidents.
(3) Prompt notice of actions by a State or host nation to suspend, revoke, or restrict the State or host nation driver’s license (vehicle operation privilege) of persons who—
(i) Operate Government motor vehicles.
(ii) Regularly operate a POV on the installation. (See also § 634.16).
§ 634.42 Civil-military cooperative programs.
(a) State-Armed Forces Traffic Workshop Program. This program is an organized effort to coordinate military and civil traffic safety activities throughout a State or area. Installation commanders will cooperate with State and local officials in this program and provide proper support and participation.
(b) Community-Installation Traffic Workshop Program. Installation commanders should establish a local workshop program to coordinate the installation traffic efforts with those of local communities. Sound and practical traffic planning depends on a balanced program of traffic enforcement, engineering, and education. Civilian and military legal and law enforcement officers, traffic engineers, safety officials, and public affairs officers should take part.
Subpart E—Driving Records and the Traffic Point System
§ 634.43 Driving records.
Each Service and DLA will use its own form to record vehicle traffic accidents, moving violations, suspension or revocation actions, and traffic point assessments involving military and DOD civilian personnel, their family members, and other personnel operating motor vehicles on a military installation. Army installations will use DA Form 3626 (Vehicle Registration/Driver Record) for this purpose. Table 5-1 of Part 634 prescribes mandatory minimum or maximum suspension or revocation periods. Traffic points are not assessed for suspension or revocation actions.
Assessment 1: Two-year revocation is mandatory on determination of facts by installation commander. (For Army, 5-year revocation is mandatory.)
Violation: Driving while driver’s license or installation driving privileges are under suspension or revocation.
Assessment 2: One-year revocation is mandatory on determination of facts by installation commander.
Violation: Refusal to submit to or failure to complete chemical tests (implied consent).
Assessment 3: One-year revocation is mandatory on conviction.
Violation: A. Manslaughter (or negligent homicide by vehicle) resulting from the operation of a motor vehicle.
B. Driving or being in actual physical control of a motor vehicle while under the influence of intoxicating liquor (0.08% or greater on DOD installations; violation of civil law off post).
C. Driving a motor vehicle while under the influence of any narcotic, or while under the influence of any other drug (including alcohol) to the degree rendered incapable of safe vehicle operation.
D. Use of a motor vehicle in the commission of a felony. Fleeing the scene of an accident involving death or personal injury (hit and run).
E. Perjury or making a false statement or affidavit under oath to responsible officials relating to the ownership or operation of motor vehicles.
F. Unauthorized use of a motor vehicle belonging to another, when the act does not amount to a felony.
Assessment 4: Suspension for a period of 6 months or less or revocation for a period not to exceed 1 year is discretionary.
Violation: A. Mental or physical impairment (not including alcohol or other drug use) to the degree rendered incompetent to drive.
B. Commission of an offense in another State which, if committed on the installation, would be grounds for suspension or revocation.
C. Permitting an unlawful or fraudulent use of an official driver’s license.
D. Conviction of fleeing, or attempting to elude, a police officer.
E. Conviction of racing on the highway.
Assessment 5: Loss of OF 46 for minimum of 6 months is discretionary.
Violation: Receiving a second 1-year suspension or revocation of driving privileges within 5 years.
1. When imposing a suspension or revocation because of an off-installation offense, the effective date should be the same as the date of civil conviction, or the date that State or host-nation driving privileges are suspended or revoked. This effective date can be retroactive.
2. No points are assessed for revocation or suspension actions. Except for implied consent violations, revocations must be based on a conviction by a civilian court or courts-martial, nonjudicial punishment under Article 15, UCMJ, or a separate hearing as addressed in this part. If revocation for implied consent is combined with another revocation, such as 1 year for intoxicated driving, revocations may run consecutively (total of 24 months) or concurrently (total of 12 months). The installation commander’s policy should be applied systematically and not on a case-by-case basis.
§ 634.44 The traffic point system.
The traffic point system provides a uniform administrative device to impartially judge driving performance of Service and DLA personnel. This system is not a disciplinary measure or a substitute for punitive action. Further, this system is not intended to interfere in any way with the reasonable exercise of an installation commander’s prerogative to issue, suspend, revoke, deny, or reinstate installation driving privileges.
§ 634.45 Point system application.
(a) The Services and DLA are required to use the point system and procedures prescribed in this section without change.
(b) The point system in table 5-2 of this part applies to all operators of U.S. Government motor vehicles, on or off Federal property. The system also applies to violators reported to installation officials in accordance with § 634.32.
(c) Points will be assessed when the person is found to have committed a violation and the finding is by either the unit commander, civilian supervisor, a military or civilian court (including a U.S. Magistrate), or by payment of fine, forfeiture of pay or allowances, or posted bond, or collateral.
1. When two or more violations are committed on a single occasion, points may be assessed for each individual violation.
2. This measure should be used for other than minor vehicle safety defects or when a driver or registrant fails to correct a minor defect (for example, a burned out headlight not replaced within the grace period on a warning ticket).
§ 634.46 Point system procedures.
(a) Reports of moving traffic violations recorded on DD Form 1408 or DD Form 1805 will serve as a basis for determining point assessment. For DD Form 1408, return endorsements will be required from commanders or supervisors.
(b) On receipt of DD Form 1408 or other military law enforcement report of a moving violation, the unit commander, designated supervisor, or person otherwise designated by the installation commander will conduct an inquiry. The commander will take or recommend proper disciplinary or administrative action. If a case involves judicial or nonjudicial actions, the final report of action taken will not be forwarded until final adjudication.
(c) On receipt of the report of action taken (including action by a U.S. Magistrate Court on DD Form 1805), the installation law enforcement officer will assess the number of points appropriate for the offense, and record the traffic points or the suspension or revocation of driving privileges on the person’s driving record. Except as specified otherwise in this part and other Service/DLA regulations, points will not be assessed or driving privileges suspended or revoked when the report of action taken indicates that neither disciplinary nor administrative action was taken.
(d) Installation commanders may require the following driver improvement measures as appropriate:
(1) Advisory letter through the unit commander or supervisor to any person who has acquired six traffic points within a 6-month period.
(2) Counseling or driver improvement interview, by the unit commander, of any person who has acquired more than six but less than 12 traffic points within a 6-month period. This counseling or interview should produce recommendations to improve driver performance.
(3) Referral for medical evaluation when a driver, based on reasonable belief, appears to have mental or physical limits that have had or may have an adverse affect on driving performance.
(4) Attendance at remedial driver training to improve driving performance.
(5) Referral to an alcohol or drug treatment or rehabilitation facility for evaluation, counseling, or treatment. This action is required for active military personnel in all cases in which alcohol or other drugs are a contributing factor to a traffic citation, incident, or accident.
(e) An individual’s driving privileges may be suspended or revoked as provided by this part regardless of whether these improvement measures are accomplished.
(f) Persons whose driving privileges are suspended or revoked (for one violation or an accumulation of 12 traffic points within 12 consecutive months, or 18 traffic points within 24 consecutive months) will be notified in writing through official channels (§ 634.11). Except for the mandatory minimum or maximum suspension or revocation periods prescribed by table 5-1 of this part, the installation commander will establish periods of suspension or revocation. Any revocation based on traffic points must be no less than 6 months. A longer period may be imposed on the basis of a person’s overall driving record considering the frequency, flagrancy, severity of moving violations, and the response to previous driver improvement measures. In all cases, military members must successfully complete a prescribed course in remedial driver training before driving privileges are reinstated.
(g) Points assessed against a person will remain in effect for point accumulation purposes for 24 consecutive months. The review of driver records to delete traffic points should be done routinely during records update while recording new offenses and forwarding records to new duty stations. Completion of a revocation based on points requires removal from the driver record of all points assessed before the revocation.
(h) Removal of points does not authorize removal of driving record entries for moving violations, chargeable accidents, suspensions, or revocations. Record entries will remain posted on individual driving records for the following periods of time.
(1) Chargeable nonfatal traffic accidents or moving violations—3 years.
(2) Nonmandatory suspensions or revocations—5 years.
(3) Mandatory revocations—7 years.
§ 634.47 Disposition of driving records.
Procedures will be established to ensure prompt notice to the installation law enforcement officer when a person assigned to or employed on the installation is being transferred to another installation, being released from military service, or ending employment.
(a) If persons being transferred to a new installation have valid points or other entries on the driving records, the law enforcement officer will forward the records to the law enforcement officer of the gaining installation. Gaining installation law enforcement officers must coordinate with applicable commanders and continue any existing suspension or revocation based on intoxicated driving or accumulation of traffic points. Traffic points for persons being transferred will continue to accumulate as specified in § 634.46 (g).
(b) Driving records of military personnel being discharged or released from active duty will be retained on file for 2 years and then destroyed. In cases of immediate reenlistment, change of officer component or military or civilian retirement when vehicle registration is continued, the record will remain active.
(c) Driving records of civilian personnel terminating employment will be retained on file for 2 years and then destroyed.
(d) Driving records of military family members containing point assessments or other entries will be forwarded to the sponsor’s gaining installation in the same manner as for service members. At the new installation, records will be analyzed and made available temporarily to the sponsor’s unit commander or supervisor for review.
(e) Driving records of retirees electing to retain installation driving privileges will be retained. Points accumulated or entries on the driver record regarding suspensions, revocations, moving violations, or chargeable accidents will not be deleted from driver records except per § 634.46 (g) and (h).
(f) Army users will comply with paragraphs (a) and (d) of this section by mailing the individual’s DA Form 3626 to the gaining installation provost marshal.
Subpart F—Impounding Privately Owned Vehicles
§ 634.48 General.
This subpart provides the standards and procedures for law enforcement personnel when towing, inventorying, searching, impounding, and disposing of POVs. This policy is based on:
(a) The interests of the Services and DLA in crime prevention, traffic safety, and the orderly flow of vehicle traffic movement.
(b) The vehicle owner’s constitutional rights to due process, freedom from unreasonable search and seizure, and freedom from deprivation of private property.
§ 634.49 Standards for impoundment.
(a) POVs should not be impounded unless the vehicles clearly interfere with ongoing operations or movement of traffic, threaten public safety or convenience, are involved in criminal activity, contain evidence of criminal activity, or are stolen or abandoned.
(b) The impoundment of a POV would be inappropriate when reasonable alternatives to impoundment exist.
(1) Attempts should be made to locate the owner of the POV and have the vehicle removed.
(2) The vehicle may be moved a short distance to a legal parking area and temporarily secured until the owner is found.
(3) Another responsible person may be allowed to drive or tow the POV with permission from the owner, operator, or person empowered to control the vehicle. In this case, the owner, operator, or person empowered to control the vehicle will be informed that law enforcement personnel are not responsible for safeguarding the POV.
(c) Impounding of POVs is justified when any of the following conditions exist:
(1) The POV is illegally parked—
(i) On a street or bridge, in a tunnel, or is double parked, and interferes with the orderly flow of traffic.
(ii) On a sidewalk, within an intersection, on a cross-walk, on a railroad track, in a fire lane, or is blocking a driveway, so that the vehicle interferes with operations or creates a safety hazard to other roadway users or the general public. An example would be a vehicle parked within 15 feet of a fire hydrant or blocking a properly marked driveway of a fire station or aircraft-alert crew facility.
(iii) When blocking an emergency exit door of any public place (installation theater, club, dining hall, hospital, and other facility).
(iv) In a “tow-away” zone that is so marked with proper signs.
(2) The POV interferes with—
(i) Street cleaning or snow removal operations and attempts to contact the owner have been unsuccessful.
(ii) Emergency operations during a natural disaster or fire or must be removed from the disaster area during cleanup operations.
(3) The POV has been used in a crime or contains evidence of criminal activity.
(4) The owner or person in charge has been apprehended and is unable or unwilling to arrange for custody or removal.
(5) The POV is mechanically defective and is a menace to others using the public roadways.
(6) The POV is disabled by a traffic incident and the operator is either unavailable or physically incapable of having the vehicle towed to a place of safety for storage or safekeeping.
(7) Law enforcement personnel reasonably believe the vehicle is abandoned.
§ 634.50 Towing and storage.
(a) Impounded POVs may be towed and stored by either the Services and DLA or a contracted wrecker service depending on availability of towing services and the local commander’s preference.
(b) The installation commander will designate an enclosed area on the installation that can be secured by lock and key for an impound lot to be used by the military or civilian wrecker service. An approved impoundment area belonging to the contracted wrecker service may also be used provided the area assures adequate accountability and security of towed vehicles. One set of keys to the enclosed area will be maintained by the installation law enforcement officer or designated individual.
(c) Temporary impoundment and towing of POVs for violations of the installation traffic code or involvement in criminal activities will be accomplished under the direct supervision of law enforcement personnel.
§ 634.51 Procedures for impoundment.
(a) Unattended POVs. (1) DD Form 2504 (Abandoned Vehicle Notice) will be conspicuously placed on POVs considered unattended. This action will be documented by an entry in the installation law enforcement desk journal or blotter.
(2) The owner will be allowed 3 days from the date the POV is tagged to remove the vehicle before impoundment action is initiated. If the vehicle has not been removed after 3 days, it will be removed by the installation towing service or the contracted wrecker service. If a contracted wrecker service is used, a DD Form 2505 (Abandoned Vehicle Removal Authorization) will be completed and issued to the contractor by the installation law enforcement office.
(3) After the vehicle has been removed, the installation law enforcement officer or the contractor will complete DD Form 2506 (Vehicle Impoundment Report) as a record of the actions taken.
(i) An inventory listing personal property will be done to protect the owner, law enforcement personnel, the contractor, and the commander.
(ii) The contents of a closed container such as a suitcase inside the vehicle need not be inventoried. Such articles should be opened only if necessary to identify the owner of the vehicle or if the container might contain explosives or otherwise present a danger to the public. Merely listing the container and sealing it with security tape will suffice.
(iii) Personal property must be placed in a secure area for safekeeping.
(4) DD Form 2507 (Notice of Vehicle Impoundment) will be forwarded by certified mail to the address of the last known owner of the vehicle to advise the owner of the impoundment action, and request information concerning the owner’s intentions pertaining to the disposition of the vehicle.
(b) Stolen POVs or vehicles involved in criminal activity. (1) When the POV is to be held for evidentiary purposes, the vehicle should remain in the custody of the applicable Service or DLA until law enforcement purposes are served.
(2) Recovered stolen POVs will be released to the registered owner, unless held for evidentiary purposes, or to the law enforcement agency reporting the vehicle stolen, as appropriate.
(3) A POV held on request of other authorities will be retained in the custody of the applicable Service or DLA until the vehicle can be released to such authorities.
§ 634.52 Search incident to impoundment based on criminal activity.
Search of a POV in conjunction with impoundment based on criminal activity will likely occur in one of the following general situations:
(a) The owner or operator is not present. This situation could arise during traffic and crime-related impoundments and abandoned vehicle seizures. A property search related to an investigation of criminal activity should not be conducted without search authority unless the item to be seized is in plain view or is readily discernible on the outside as evidence of criminal activity. When in doubt, proper search authority should be obtained before searching.
(b) The owner or operator is present. This situation can occur during either a traffic or criminal incident, or if the operator is apprehended for a crime or serious traffic violation and sufficient probable cause exists to seize the vehicle. This situation could also arise during cases of intoxicated driving or traffic accidents in which the operator is present but incapacitated or otherwise unable to make adequate arrangements to safeguard the vehicle. If danger exists to the police or public or if there is risk of loss or destruction of evidence, an investigative type search of the vehicle may be conducted without search authority. (Air Force, see AFP 125-2).
§ 634.53 Disposition of vehicles after impoundment.
(a) If a POV is impounded for evidentiary purposes, the vehicle can be held for as long as the evidentiary or law enforcement purpose exists. The vehicle must then be returned to the owner without delay unless directed otherwise by competent authority.
(b) If the vehicle is unclaimed after 120 days from the date notification was mailed to the last known owner or the owner released the vehicle by properly completing DD Form 2505, the vehicle will be disposed of by one of the following procedures:
(1) Release to the lienholder, if known.
(2) Processed as abandoned property in accordance with DOD 4160.21-M.
(i) Property may not be disposed of until diligent effort has been made to find the owner; or the heirs, next of kin, or legal representative of the owner.
(ii) The diligent effort to find one of those mentioned in paragraph (a) of this section shall begin not later than 7 days after the date on which the property comes into custody or control of the law enforcement agency.
(iii) The period for which this effort is continued may not exceed 45 days.
(iv) If the owner or those mentioned in § 634.52 are determined, but not found, the property may not be disposed of until the expiration of 45 days after the date when notice, giving the time and place of the intended sale or other disposition, has been sent by certified or registered mail to that person at his last known address.
(v) When diligent effort to determine those mentioned in paragraph (b)(2)(iv) of this section is unsuccessful, the property may be disposed of without delay, except that if it has a fair market value of more than $500, the law enforcement official may not dispose of the property until 45 days after the date it is received at the storage point.
(c) All contracts for the disposal of abandoned vehicles must comply with 10 U.S.C. 2575.
Subpart G—List of State Driver’s License Agencies
§ 634.54 List of State Driver’s License Agencies.
Notification of State driver’s license agencies. The installation commander will notify the State driver’s license agency of those personnel whose installation driving privileges are revoked for 1 year or more, following final adjudication of the intoxicated driving offense or for refusing to submit to a lawful blood-alcohol content test in accordance with § 634.8. This notification will include the basis for the suspension and the blood alcohol level. The notification will be sent to the State in which the driver’s license was issued. State driver’s license agencies are listed as follows:
PART 635—LAW ENFORCEMENT REPORTING
Subpart A—Records Administration
§ 635.1 General.
The proponent of this part is the Provost Marshal General. The proponent has the authority to approve exceptions or waivers to this Part that are consistent with controlling law and regulations. In distributing information on juvenile victims or subjects, the installation Freedom of Information Act (FOIA) Office will ensure that only individuals with a need to know of the personally identifiable information (PII) of a juvenile are provided the identifying information on the juvenile. For example, a community commander is authorized to receive pertinent information on juveniles under their jurisdiction. When a Law Enforcement Report identifying juvenile offenders must be provided to multiple commanders or supervisors, the FOIA Office must sanitize each report to withhold juvenile information not pertaining to that commander’s area of responsibility.
§ 635.2 Safeguarding official information.
(a) Military police records are unclassified except when they contain national security information as defined in AR 380-5 (Available at http://www.apd.army.mil/pdffiles/r380_5.pdf), Department of the Army Information Security Program.
(b) Military police records will also be released to Federal, state, local or foreign law enforcement agencies as prescribed by 32 CFR part 505, The Army Privacy Program. Expanded markings will be applied to these records.
§ 635.3 Special requirements of the Privacy Act of 1974.
(a) Certain PII is protected in accordance with the provisions of the Privacy Act of 1974, 5 U.S.C. 552a, as implemented by 32 CFR part 310, DoD Privacy Program, 32 CFR part 505, The Army Privacy Program, and OMB guidance defining PII.
(b) Pursuant to 5 U.S.C. 552a(e)(3), when an Army activity asks an individual for his or her PII that will be maintained in a system of records, the activity must provide the individual with a Privacy Act Statement (PAS). A PAS notifies individuals of the authority, purpose, and use of the collection, whether the information is mandatory or voluntary, and the effects of not providing all or any part of the requested information.
(c) Army law enforcement personnel performing official duties often require an individual’s PII, including SSN, for identification purposes. This PII can be used to complete law enforcement reports and records. In addition to Executive Order 9397, as amended by Executive Order 13478, the solicitation of the SSN is authorized by paragraph 2.c.(2) of DoD Instruction 1000.30, “Reduction of Social Security Number (SSN) Use Within DoD” (available at http://www.dtic.mil/whs/directives/corres/pdf/100030p.pdf). The purpose is to provide commanders and law enforcement officials with means by which information may accurately be identified. The SSN is used as an additional/alternate means of identification to facilitate filing and retrieval. The following procedures will be used for identification:
(1) Retired military personnel are required to produce their Common Access Card or DD Form 2 (Ret) (U.S. Armed Forces of the United States General Convention Identification Card), or other government issued identification, as appropriate.
(2) Family members of sponsors will be requested to produce their DD Form 1173 (Uniformed Services Identification and Privilege Card). Information contained thereon (for example, the sponsor’s SSN) will be used to verify and complete applicable sections of law enforcement reports and related forms.
(3) Non-Department of Defense (DoD) civilians, including military family members and those whose status is unknown, will be advised of the provisions of the Privacy Act Statement when requested to disclose their PII, including SSN, as required.
(d) Notwithstanding the requirement to furnish an individual with a PAS when his or her PII will be maintained in a system of records, AR 340-21, The Army Privacy Program, http://www.apd.army.mil/pdffiles/r340_21.pdf, provides that records contained in SORN A0190-45, Military Police Reporting Program Records (MRRP), http://dpcld.defense.gov/Privacy/SORNsIndex/tabid/5915/Article/6066/a0190-45-opmg.aspx, that fall within 5 U.S.C. 552a(j)(2) are exempt from the requirement in 5 U.S.C. 552a(e)(3) to provide a PAS.
§ 635.4 Police intelligence/Criminal information.
(a) The purpose of gathering police intelligence is to identify individuals or groups of individuals in an effort to anticipate, prevent, or monitor possible criminal activity. Police intelligence aids criminal investigators in developing and investigating criminal cases. 32 CFR part 633 designates the U.S. Army Criminal Investigation Command (USACIDC) as having the primary responsibility to operate a criminal intelligence program. Criminal Intelligence will be reported through the Army Criminal Investigation and Criminal Intelligence (ACI2) System and other criminal intelligence products. The crimes listed in paragraphs (a)(1)-(9) of this section, as well as the reportable incidents, behavioral threat indicators, and other matters of counterintelligence interest specified by AR 381-12, Threat Awareness and Reporting Program, (available at http://www.apd.army.mil/pdffiles/r381_12.pdf) will be reported to the nearest Army counterintelligence office.
(1) Sedition;
(2) Aiding the enemy by providing intelligence to the enemy;
(3) Spying;
(4) Espionage;
(5) Subversion;
(6) Treason;
(7) International terrorist activities or material support to terrorism (MST);
(8) Unreported contacts with foreigners involved in intelligence activities;
(9) Unauthorized or intentional disclosure of classified info.
(b) Information on persons and organizations not affiliated with DoD may not normally be acquired, reported, processed or stored. Situations justifying acquisition of this information include, but are not limited to—
(1) Theft, destruction, or sabotage of weapons, ammunition, equipment facilities, or records belonging to DoD units or installations.
(2) Protection of Army installations and activities from potential threat.
(3) Information received from the FBI, state, local, or international law enforcement agencies which directly pertains to the law enforcement mission and activity of the installation Provost Marshal Office/Directorate of Emergency Services (PMO/DES), Army Command (ACOM), Army Service Component Command (ASCC) or Direct Reporting Unit (DRU) PMO/DES, or that has a clearly identifiable military purpose and connection. A determination that specific information may not be collected, retained or disseminated by intelligence activities does not indicate that the information is automatically eligible for collection, retention, or dissemination under the provisions of this part. The policies in this section are not intended and will not be used to circumvent any federal law that restricts gathering, retaining or dissemination of information on private individuals or organizations.
(c) Retention and disposition of information on non-DoD affiliated individuals and organizations are subject to the provisions of DoD Directive 5200.27 (available at http://www.dtic.mil/whs/directives/corres/pdf/520027p.pd), AR 380-13, Acquisition and Storage of Information Concerning Non-Affiliated Persons and Organizations (available at http://www.apd.army.mil/pdffiles/r380_13.pdf) and AR 25-400-2, The Army Records Information Management System (ARIMS) (available at http://www.apd.army.mil/pdffiles/r25_400_2.pdf).
(d) Local police intelligence files may be exempt from 32 CFR part 518 and the FOIA’s disclosure requirements.
§ 635.5 Name checks.
(a) Information contained in military police records will be released under the provisions of 32 CFR part 505, The Army Privacy Program, to authorized personnel for valid background check purposes. Examples include child care/youth program providers, sexual assault response coordinator, unit victim advocate, access control, unique or special duty assignments, security clearance procedures and suitability and credentialing purposes. Any information released must be restricted to that necessary and relevant to the requester’s official purpose. Provost Marshals/Directors of Emergency Services (PM/DES) will establish written procedures to ensure that release is accomplished in accordance with 32 CFR part 505.
(b) Checks will be accomplished by a review of the Army’s Law Enforcement Reporting and Tracking System (ALERTS). Information will be disseminated according to subpart B of this part.
(c) In response to a request for local files or name checks, PM/DES will release only founded offenses with final disposition. Offenses determined to be unfounded will not be released. These limitations do not apply to requests submitted by law enforcement agencies for law enforcement purposes, and counterintelligence investigative agencies for counterintelligence purposes.
(d) A successful query of ALERTS would return the following information:
(1) Military Police Report Number;
(2) Report Date;
(3) Social Security Number;
(4) Last Name;
(5) First Name;
(6) Protected Identity (Y/N);
(7) A link to view the military police report; and
(8) Whether the individual is a subject, victim, or a person related to the report disposition.
(e) Name checks will include the information derived from ALERTS and the United States Army Crime Records Center (USACRC). All of the policies and procedures for such checks will conform to the provisions of this part. Any exceptions to this policy must be coordinated with Headquarters Department of the Army (HQDA), Office of the Provost Marshal General (OPMG) before any name checks are conducted. The following are examples of appropriate uses of the name check feature of ALERTS:
(1) Individuals named as the subjects of serious incident reports.
(2) Individuals named as subjects of investigations who must be reported to the USACRC.
(3) Individuals seeking employment as child care/youth program providers.
(4) Local checks of the ALERTS as part of placing an individual in the ALERTS.
(5) Name checks for individuals seeking employment in law enforcement positions.
§ 635.6 Registration of sex offenders on Army installations (inside and outside the Continental United States).
(a) Sex Offenders on US Army Installations. Garrison Commander’s responsibilities: Garrison Commanders will ensure that sex offenders, as defined in paragraph (b) of this section that reside or are employed on an Army Installation register with the installation PM/DES. This includes service members, civilian employees, accompanying dependent family members, and contractors subject to the incorporation of the sex offender registration requirement into the contract.
(b) Sex offender is defined as:
(1) Any person, including but not limited to a Service member, Service member’s family member, Civilian employee, Civilian employee’s family member, or contractor, who either is registered or required to register as a sex offender by any law, regulation or policy of the United States, the Department of Defense, the Army, a State, the District of Columbia, the Commonwealth of Puerto Rico, Guam, America Samoa, The Northern Mariana Islands, the United States Virgin Islands, or a Federally recognized Indian tribe. This definition is not limited to persons convicted for felony sex offenses but includes all persons who are registered or required to register as a sex offender regardless of the classification of their offenses, including felonies, misdemeanors, and offenses not classified as a felony or misdemeanor.
(2) The persons who are sex offenders as defined in paragraph (b)(1) include those convicted by a foreign government of an offense equivalent or closely analogous to a covered offense under the Uniform Code of Military Justice as provided in AR 27-10, Military Justice (available at http://www.apd.army.mil/pdffiles/r27_10.pdf), Chapter 24.” See 42 U.S.C. 16911(5)(B) and U.S. Department of Justice, Office of the Attorney General, The National Guidelines for Sex Offender Registration and Notification, Final Guidelines, 73 FR 38030, 38050-1 (July 2, 2008) for guidelines and standards. Contact the servicing Office of the Staff Judge Advocate for assistance in interpreting or applying this provision.
(c) Sex Offender Registration Requirements. Sex offenders, as defined in paragraph (b)(1) of this section must register with the installation PMO/DES within three working days of first arriving on an installation. Sex offenders must provide the installation PMO/DES with evidence of the qualifying conviction. The PMO/DES will enter the registering sex offender’s conviction information on a Raw Data File as an information entry into the Army’s Law Enforcement Reporting and Tracking System (ALERTS) with the state the sex offender was convicted, date of conviction, and results of conviction, to include length of time required to register and any specific court ordered restrictions. Registration with the PMO/DES does not relieve sex offenders of their legal obligation to comply with applicable state and local registration requirements for the state in which they reside, work, or attend school (see, AR 190-47 (available at http://www.apd.army.mil/pdffiles/r190_47.pdf), chapter 14 and AR 27-10 (available at http://www.apd.army.mil/pdffiles/r27_10.pdf), chapter 24). Registration with the state is also required under the Sex Offender Registration and Notification Act (SORNA), 42 U.S.C. 16901 et seq., and implemented by AR 27-10 (Available at http://www.apd.army.mil/pdffiles/r27_10.pdf), Military Justice, and DoDI 1325.7 (Available at http://www.dtic.mil/whs/directives/corres/pdf/132507p.pdf). In addition, upon assignment, reassignment, or change of address, sex offenders will inform the installation PM/DES within three working days. Failure to comply with registration requirements is punishable under Federal or State law and/or under the UCMJ. “State” in this paragraph includes any jurisdiction listed in paragraph (b)(1) of this section in which a sex offender is required to register.
(d) Installation PMOs and DESs will maintain and update a monthly roster of current sex offenders names and provide it to the Sexual Assault Review Board; the Army Command PM and DES and the garrison commander.
(e) Installation PMs and DESs will complete the following procedures for all other sex offenders required to register on the installation—
(1) Complete a Raw Data File as an information entry into ALERTS.
(2) Ensure the sex offender produces either evidence of the qualifying conviction or the sex offender registration paperwork in order to complete the narrative with the state in which the sex offender was convicted, date of conviction, and results of conviction, to include length of time required to register and any specific court ordered restrictions.
(f) DoD civilians, contractors, and family members that fail to register at the installation PMO/DES are subject to a range of administrative sanctions, including but not limited to a complete or limited bar to the installation and removal from military housing.
§ 635.7 Collection of deoxyribonucleic acid.
(a) Army Law Enforcement (LE) personnel will collect deoxyribonucleic acid (DNA) pursuant to DoDI 5505.14 (available at http://www.dtic.mil/whs/directives/corres/pdf/550514p.pdf), DNA Collection Requirements for Criminal Investigations. Per this subpart, a sample of an individual’s DNA is to allow for positive identification and to provide or generate evidence to solve crimes through database searches of potentially matching samples. DNA samples will not be collected from juveniles.
(b) Army LE personnel will obtain a DNA sample from a civilian in their control at the point it is determined there is probable cause to believe the detained person violated a Federal statute equivalent to the offenses identified in DoDI 5505.11 (available at http://www.dtic.mil/whs/directives/corres/pdf/550511p.pdf), Fingerprint Card and Final Disposition Report Submission Requirements, and 32 CFR part 310, Department of Defense Privacy Program, except for the listed violations that are exclusively military offenses. For the purposes of this rule, DNA shall be taken from all civilian drug offenders, except those who are arrested or detained for the offenses of simple possession and personal use.
(1) When Army LE personnel make a probable cause determination concerning a civilian not in their control, Army LE personnel are not required to collect DNA samples. Likewise, Army LE personnel are not required to obtain DNA samples when another LE agency has, or will, obtain the DNA.
(2) Army LE personnel will use the U.S. Army Criminal Investigation Laboratory (USACIL) DNA kit which includes a DNA sample card and the USACIL DNA database collection eform. Army LE personnel will forward civilian DNA samples to the USACIL. Army LE personnel will document, in the appropriate case file, when civilian LE agencies handle any aspect of the DNA processing and whether the civilian LE agency forwarded the DNA sample to the FBI laboratory.
(c) DoD Instruction 5505.14 (available at http://www.dtic.mil/whs/directives/corres/pdf/550514p.pdf) details the procedures former Soldiers and civilians must follow to request expungement of their DNA records. Former Soldiers and civilians from whom DNA samples have been taken, but who were not convicted of any offense giving rise to the collection of DNA, do not submit requests to have their DNA record expunged through installation PMO/DES channels. To request expungement of DNA records for civilians pursuant to Sections 14132 of title 42, United States Code, the requestor or legal representative must submit a written request to: FBI, Laboratory Division, 2501 Investigation Parkway, Quantico, VA 22135, Attention: Federal Convicted Offender Program Manager.
Subpart B—Release of Information
§ 635.8 General.
(a) The policy of HQDA is to conduct activities in an open manner and provide the public accurate and timely information. Accordingly, law enforcement information will be released to the degree permitted by law and Army regulations.
(b) Any release of military police records or information compiled for law enforcement purposes, whether to persons within or outside the Army, must be in accordance with the FOIA and the Privacy Act.
(c) Requests by individuals for access to military police records about themselves will be processed in compliance with FOIA and the Privacy Act.
(d) Military police records in the temporary possession of another organization remain the property of the originating law enforcement agency. The following procedures apply to any organization authorized temporary use of military police records:
(1) Any request from an individual seeking access to military police records will be immediately referred to the originating law enforcement agency for processing. The temporary custodian of military police records does not have the authority to release those records.
(2) When the temporary purpose of the using organization has been satisfied, the military police records will be returned to the originating law enforcement agency or the copies will be destroyed.
(3) A using organization may maintain information from military police records in their system of records, if approval is obtained from the originating law enforcement agency. This information may include reference to a military police record (for example, Law Enforcement Report number or date of offense), a summary of information contained in the record, or the entire military police record. When a user includes a military police record in its system of records, the originating law enforcement agency will delete portions from that record to protect special investigative techniques, maintain confidentiality, preclude compromise of an investigation, and protect other law enforcement interests.
§ 635.9 Release of information.
(a) Release of information from Army records to agencies outside DoD will be governed by 32 CFR part 518, 32 CFR part 505, AR 600-37, Unfavorable Information (Available at http://www.apd.army.mil/pdffiles/r600_37.pdf), and this part. Procedures for release of certain other records and information is contained in AR 20-1, Inspector General Activities and Procedures (available at http://www.apd.army.mil/pdffiles/r20_1.pdf), AR 27-20, Claims (available at http://www.apd.army.mil/pdffiles/r27_20.pdf), AR 27-40, Litigation (available at http://www.apd.army.mil/pdffiles/r27_40.pdf), AR 40-66, Medical Record Administration and Healthcare Documentation (available at http://www.apd.army.mil/pdffiles/r40_66.pdf), AR 195-2, Criminal Investigation Activities (available at http://www.apd.army.mil/pdffiles/r195_2.pdf), AR 360-1, The Army Public Affairs Program (available at http://www.apd.army.mil/pdffiles/r360_1.pdf), and AR 600-85, The Army Substance Abuse Program (available at http://www.apd.army.mil/pdffiles/r600_85.pdf). Installation drug and alcohol offices may be provided an extract of DA Form 3997 (Military Police Desk Blotter) for offenses involving the use of alcohol or drugs (for example, drunk driving, drunk and disorderly conduct, or positive urinalysis).
(b) Installation PM/DES are the release authorities for military police records under their control. They may release criminal record information to other activities as prescribed in 32 CFR part 518 and 32 CFR part 505, and this part.
(c) Authority to deny access to criminal records information rests with the initial denial authority (IDA) for the FOIA and the denial authority for Privacy Acts cases, as addressed in 32 CFR part 518 and 32 CFR part 505.
§ 635.10 Release of information under the Freedom of Information Act (FOIA).
(a) The release and denial authorities for all FOIA requests concerning military police records include PM/DES and the Commander, USACIDC. Authority to act on behalf of the Commander, USACIDC is delegated to the Director, USACRC.
(b) FOIA requests from members of the press will be coordinated with the installation public affairs officer prior to release of records under the control of the installation PM/DES. When the record is on file at the USACRC the request must be forwarded to the Director, USACRC.
(c) Requests will be processed as prescribed in 32 CFR part 518 and as follows:
(1) The installation FOIA Office will review requested reports to determine if any portion is exempt from release.
(2) Statutory and policy questions will be coordinated with the local staff judge advocate (SJA).
(3) Coordination will be completed with the local USACIDC activity to ensure that the release will not interfere with a criminal investigation in progress or affect final disposition of an investigation.
(4) If it is determined that a portion of the report, or the report in its entirety will not be released, the request to include a copy of the Military Police Report or other military police records will be forwarded to the Director, USACRC, ATTN: CICR-FP, 27130 Telegraph Road, Quantico, VA 22134. The requestor will be informed that their request has been sent to the Director, USACRC, and provided the mailing address for the USACRC. When forwarding FOIA requests, the outside of the envelope will be clearly marked “FOIA REQUEST.”
(5) A partial release of information by an installation FOIA Office is permissible when it is acceptable to the requester. (An example would be the redaction of a third party’s social security number, home address, and telephone number, as permitted by law). If the requester agrees to the redaction of exempt information, such cases do not constitute a denial. If the requester insists on the entire report, a copy of the report and the request for release will be forwarded to the Director, USACRC. There is no requirement to coordinate such referrals at the installation level. The request will simply be forwarded to the Director, United States Army Crime Records Center (USACRC) for action.
(6) Requests for military police records that have been forwarded to USACRC and are no longer on file at the installation PMO/DES will be forwarded to the Director, USACRC for processing.
(7) Requests concerning USACIDC reports of investigation or USACIDC files will be referred to the Director, USACRC. In each instance, the requestor will be informed of the referral and provided the Director, USACRC address.
(8) Requests concerning records that are under the supervision of an Army activity, or other DoD agency, will be referred to the appropriate agency for response.
§ 635.11 Release of information under the Privacy Act of 1974.
(a) Military police records may be released according to provisions of the Privacy Act of 1974, 5 U.S.C. 552a, as implemented by 32 CFR part 310, DoD Privacy Program, 32 CFR part 505, The Army Privacy Program, and this part.
(b) The release and denial authorities for all Privacy Act cases concerning military police records are provided in § 635.9.
(c) Privacy Act requests for access to a record, when the requester is the subject of that record, will be processed as prescribed in 32 CFR part 505.
§ 635.12 Amendment of records.
(a) Policy. An amendment of records is appropriate when such records are established as being inaccurate, irrelevant, untimely, or incomplete. Amendment procedures are not intended to permit challenging an event that actually occurred. Requests to amend reports will be granted only if the individual submits new, relevant and material facts that are determined to warrant their inclusion in or revision of the police report. The burden of proof is on the individual to substantiate the request. Requests to delete a person’s name from the title block will be granted only if it is determined that there is not probable cause to believe that the individual committed the offense for which he or she is listed as a subject. It is emphasized that the decision to list a person’s name in the title block of a police report is an investigative determination that is independent of whether or not subsequent judicial, non-judicial or administrative action is taken against the individual.
(b) In compliance with DoD policy, an individual will still remain entered in the Defense Clearance Investigations Index (DCII) to track all reports of investigation.
§ 635.13 Accounting for military police record disclosure.
(a) 32 CFR part 505 prescribes accounting policies and procedures concerning the disclosure of military police records.
(b) PM/DES will develop local procedures to ensure that disclosure of military police records as described in 32 CFR part 505 are available on request.
(c) In every instance where records are disclosed; individuals, agencies or components are reminded that use or further disclosure of any military police reports, Military Police Investigator (MPI) reports, or other information received must be in compliance with DoDI 5505.7 (available at http://www.dtic.mil/whs/directives/corres/pdf/550507p.pdf), paragraph 6.5.2. which states that “judicial or adverse administrative actions shall not be taken against individuals or entities based solely on the fact that they have been titled or indexed due to a criminal investigation.”
§ 635.14 Release of law enforcement information furnished by foreign governments or international organizations.
(a) Information furnished by foreign governments or international organizations is subject to disclosure, unless exempted by 32 CFR part 518 and 32 CFR part 505, federal statutes or executive orders.
(b) Release of U.S. information (classified military information or controlled unclassified information) to foreign governments is accomplished per AR 380-10 (available at http://www.apd.army.mil/pdffiles/r380_10.pdf).
Subpart C—Offense Reporting
§ 635.15 DA Form 4833 (Commander’s Report of Disciplinary or Administrative Action) for Civilian Subjects.
Civilian Subjects titled by Army Law Enforcement. PM/DES and USACIDC will complete and submit disposition reports to USACRC for civilian subjects, not subject to the UCMJ, who are titled by Army law enforcement. PM/DES and USACIDC will complete the DA Form 4833 and submit the form to USACRC for these subjects. PM/DES and USACIDC will not include these completed DA Form 4833 for civilian personnel in reporting compliance statistics for commanders. This ensures records of dispositions of civilian subjects titled by military LE are available in CJIS to support NCIC background checks for firearms purchases, employment, security clearances etc.
§ 635.16 Fingerprint Card and Final Disposition Report Submission Requirements.
(a) General. This paragraph implements DoDI 5505.11, Fingerprint Card and Final Disposition Report Submission Requirements, which prescribes procedures for Army LE to report offender criminal history data, by submitting FBI Form FD 249 (Suspect Fingerprint Card) to USACRC. USACRC forwards this data to the Criminal Justice Information Services (CJIS) division of the FBI for inclusion in the Next Generation Identification Database. This paragraph does not eliminate other requirements to provide criminal history data, including those concerning the DIBRS.
(b) Installation PM/DES will submit offender criminal history data to USACRC, based on a probable cause standard determined in conjunction with the servicing SJA or legal advisor for all civilians investigated for offenses equivalent to those listed in DoDI 5505.11. This includes foreign nationals, persons serving with or accompanying an armed force in the field in time of declared war or contingency operations, and persons subject to Public Law 106-523 in accordance with DoDI 5525.11 (Available at http://www.dtic.mil/whs/directives/corres/pdf/552511p.pdf), Criminal Jurisdiction Over Civilians Employed By or Accompanying the Armed Forces Outside the United States, Certain Service Members, and Former Service Members.
(c) For purposes of this paragraph commanders will notify their installation PMO/DES when they become aware that a non-DoD and/or foreign LE organization has initiated an investigation against a Soldier, military dependent, or DoD civilian employee or contractor, for the equivalent of an offense listed in DoDI 5525.11 (available at http://www.dtic.mil/whs/directives/corres/pdf/552511p.pdf), Enclosure 2, or punishable pursuant to the U.S.C.
§ 635.17 Release of domestic incidents reports to the Army Family Advocacy Program (FAP).
(a) Installation PM/DES will comply with the reporting requirements set forth in AR 608-18 (available at http://www.apd.army.mil/pdffiles/r608_18.pdf).
(b) In addition to substantiated incidents of domestic violence, installation PM/DES will notify the Family Advocacy Program Manager (FAPM) and Social Work Services (SWS) of all incidents in which a preponderance of indicators reveal a potential risk of reoccurrence and increasing severity of maltreatment which could lead to domestic violence or child abuse. Installation PM/DES will ensure these notifications are recorded in the official military police journal in ALERTS. This is to:
(1) Establish a history of incidents that indicate an emerging pattern of risk of maltreatment/victimization to Soldiers and or Family members. See AR 608-18 for incidents that define maltreatment.
(2) Develop a trend history of unsubstantiated-unresolved incidents in order to prevent possible violence or maltreatment from occurring.
§ 635.18 Domestic violence.
(a) Responding to incidents of domestic violence requires a coordinated effort by LE, medical, and social work personnel, to include sharing information and records as permitted by law and regulation. AR 608-18, Chapter 3, contains additional information about domestic violence and protective orders. AR 608-18, Glossary, Section II refers to domestic violence as including the use, attempted use, or threatened use of force or violence against a person or a violation of a lawful order issued for the protection of a person, who is:
(1) A current or former spouse;
(2) A person with whom the abuser shares a child in common; or
(3) A current or former intimate partner with whom the abuser shares or has shared a common domicile.
(b) All domestic violence incidents will be reported to the local installation PMO/DES.
§ 635.19 Protection Orders.
(a) A DD Form 2873, Military Protective Order (MPO) is a written lawful order issued by a commander that orders a Soldier to avoid contact with those persons identified in the order. MPOs may be used to facilitate a “cooling-off” period following domestic violence and sexual assault incidents, to include incidents involving children. The commander should provide a written copy of the order within 24 hours of its issuance to the person with whom the member is ordered not to have contact and to the installation LE activity.
(b) Initial notification. In the event a MPO is issued against a Soldier and any individual involved in the order does not reside on a Army installation at any time during the duration of the MPO, the installation PMO/DES will notify the appropriate civilian authorities (local magistrate courts, family courts, and local police) of:
(1) The issuance of the protective order;
(2) The individuals involved in the order;
(3) Any change made in a protective order;
(4) The termination of the protective order.
(c) A Civilian Protective Order (CPO) is an order issued by a judge, magistrate or other authorized civilian official, ordering an individual to avoid contact with his or her spouse or children. Pursuant to the Armed Forces Domestic Security Act, 10 U.S.C. 1561a, a CPO has the same force and effect on a military installation as such order has within the jurisdiction of the court that issued the order.
§ 635.20 Establishing Memoranda of Understanding.
(a) Coordination between military law enforcement personnel and local civilian law enforcement personnel is essential to improve information sharing, especially concerning investigations, arrests, and prosecutions involving military personnel. PM/DES or other law enforcement officials shall seek to establish formal Memoranda of Understanding (MOU) with their civilian counterparts to establish or improve the flow of information between their agencies, especially in instances involving military personnel. MOUs can be used to clarify jurisdictional issues for the investigation of incidents, to define the mechanism whereby local law enforcement reports involving active duty service members will be forwarded to the appropriate installation law enforcement office, to encourage the local law enforcement agency to refer victims of domestic violence to the installation Family Advocacy office or victim advocate, and to foster cooperation and collaboration between the installation law enforcement agency and local civilian agencies.
(b) Installation commanders are authorized to contract for local, state, or federal law enforcement services (enforcement of civil and criminal laws of the state) from civilian police departments. (Section 120 of the Water Resources Development Act of 1976). Section 120(a) of the Water Resources Development Act of 1976 authorizes the Secretary of the Army, acting through the Chief of Engineers, to contract with States and their political subdivisions for the purpose of obtaining increased law enforcement services at water resource development projects under the jurisdiction of the Secretary of the Army to meet needs during peak visitation periods.
(c) MOUs will address the following issues at a minimum:
(1) A general statement of the purpose of the MOU.
(2) An explanation of jurisdictional issues that affect respective responsibilities to and investigating incidents occurring on and off the installation. This section should also address jurisdictional issues when a civilian order of protection is violated on military property (see 10 U.S.C. 1561a).
(3) Procedures for responding to incidents that occur on the installation involving a civilian alleged offender.
(4) Procedures for local law enforcement to immediately (within 4 hours) notify the installation law enforcement office of incidents/investigations involving service members.
(5) Procedures for transmitting incident/investigation reports and other law enforcement information involving active duty service members from local civilian law enforcement agencies to the installation law enforcement office.
(6) Notification that a Solider is required to register as a sex offender either as the result of military judicial proceedings or civilian judicial proceedings.
(7) Procedures for transmitting civilian protection orders (CPOs) issued by civilian courts or magistrates involving active duty service members from local law enforcement agencies to the installation law enforcement office.
(8) Designation of the title of the installation law enforcement recipient of such information from the local law enforcement agency.
(9) Procedures for transmitting military protection orders (MPOs) from the installation law enforcement office to the local civilian law enforcement agency with jurisdiction over the area in which any person named in the order resides.
(10) Designation of the title of the local law enforcement agency recipient of domestic violence and CPO information from the installation law enforcement agency.
(11) Respective responsibilities for providing information to victims regarding installation resources when either the victim or the alleged offender is an active duty service member.
(12) Sharing of information and facilities during the course of an investigation in accordance with the Privacy Act of 1974 (see 5 U.S.C. 552a(b)(7)).
(13) Regular meetings between the local civilian law enforcement agency and the installation law enforcement office to review cases and MOU procedures.
§ 635.21 Suspicious Activity Reporting (SAR).
(a) The Army will use eGuardian to report, share and analyze unclassified suspicious activity information regarding potential threats or suspicious activities affecting DoD personnel, facilities, or forces in transit in both CONUS and OCONUS. USACIDC is the Army’s eGuardian program manager.
(b) eGuardian is the Federal Bureau of Investigation’s (FBI) sensitive-but-unclassified web-based platform for reporting, and in some instances, sharing, suspicious activity and threat related information with other federal, state, tribal, and territorial law enforcement and force protection entities. Information entered into eGuardian by the Army may be either shared with all eGuardian participants or reported directly to the FBI. All information entered into eGuardian by the Army will comply with the policy framework for the system and any existing agency agreements, which incorporate privacy protections. Analysis of SARs will assist CRIMINTEL analysts and commanders in mitigating potential threats and vulnerabilities, and developing annual threat assessments.
(c) Any concerned soldier or citizen can submit a SAR to the nearest installation PMO/DES, CI or CID office. The receiving office will then be responsible for reviewing the information and determining whether it is appropriate for submission into eGuardian.
Subpart D—Victim and Witness Assistance Procedures
§ 635.22 Procedures.
(a) As required by DoDD 1030.01 (Available at http://www.dtic.mil/whs/directives/corres/pdf/103001p.pdf), Army personnel involved in the detection, investigation, and prosecution of crimes must ensure that victims and witnesses rights are protected. Victim’s rights include-
(1) The right to be treated with fairness, dignity, and a respect for privacy.
(2) The right to be reasonably protected from the accused offender.
(3) The right to be notified of court proceedings.
(4) The right to be present at all public court proceedings related to the offense, unless the court determines that testimony by the victim would be materially affected if the victim heard other testimony at trial, or for other good cause.
(5) The right to confer with the attorney for the Government in the case.
(6) The right to restitution, if appropriate.
(7) The right to information regarding conviction, sentencing, imprisonment, and release of the offender from custody.
(b) [Reserved]
Subpart E—National Crime Information Center Policy
§ 635.23 Standards.
The use of NCIC is limited to authorized criminal justice purposes such as, stolen vehicle checks or wants and warrants. Subject to FBI regulations and policy, NCIC checks of visitors to a military installation may be authorized by the Installation/Garrison Commander as set forth in DoD 5200.08-R (Available at http://www.dtic.mil/whs/directives/corres/pdf/520008r.pdf) and DoDI 5200.08 (Available at http://www.dtic.mil/whs/directives/corres/pdf/520008p.pdf). Visitors to Army installations are non-DoD affiliated personnel.
SUBCHAPTER J—REAL PROPERTY
PARTS 641-649 [RESERVED]
SUBCHAPTER K—ENVIRONMENTAL QUALITY
PART 651—ENVIRONMENTAL ANALYSIS OF ARMY ACTIONS (AR 200-2)
Subpart A—Introduction
§ 651.1 Purpose.
(a) This part implements the National Environmental Policy Act of 1969 (NEPA), setting forth the Army’s policies and responsibilities for the early integration of environmental considerations into planning and decision-making.
(b) This part requires environmental analysis of Army actions affecting human health and the environment; providing criteria and guidance on actions normally requiring Environmental Assessments (EAs) or Environmental Impact Statements (EISs), and listing Army actions that are categorically excluded from such requirements, provided specific criteria are met.
(c) This part supplements the regulations of the Council on Environmental Quality (CEQ) in the Code of Federal Regulations (CFR) (40 CFR parts 1500-1508) for Army actions, and must be read in conjunction with them.
(d) All Army acquisition programs must use this part in conjunction with Department of Defense (DOD) 5000.2-R (Mandatory Procedures for Major Defense Acquisition Programs and Major Automated Information Systems).
(e) This part applies to actions of the Active Army and Army Reserve, to functions of the Army National Guard (ARNG) involving federal funding, and to functions for which the Army is the DOD executive agent. It does not apply to Civil Works functions of the US Army Corps of Engineers (USACE) or to combat or combat-related activities in a combat or hostile fire zone. Operations Other Than War (OOTW) or Stability and Support Operations (SASO) are subject to the provisions of this part as specified in subpart H of this part. This part applies to relevant actions within the United States, which is defined as all States; the District of Columbia; territories and possessions of the United States; and all waters and airspace subject to the territorial jurisdiction of the United States. The territories and possessions of the United States include the Virgin Islands, American Samoa, Wake Island, Midway Island, Guam, Palmyra Island, Johnston Atoll, Navassa Island, and Kingman Reef. This regulation also applies to actions in the Commonwealths of Puerto Rico and the Northern Marianas, the Republic of the Marshall Islands, and the Federated States of Micronesia and Palau (Republic of Belau). In addition, this part addresses the responsibility of the Army for the assessment and consideration of environmental effects for peacetime SASO operations worldwide. Throughout this part, emphasis is placed upon quality analysis of environmental effects, not the production of documents. Documentation is necessary to present and staff results of the analyses, but the objective of NEPA and Army NEPA policy is quality analysis in support of the Army decision maker. The term “analysis” also includes any required documentation to support the analysis, coordinate NEPA requirements, and inform the public and the decision maker.
§ 651.2 References.
Required and related publications and referenced forms are listed in Appendix A of this part.
§ 651.3 Explanation of abbreviations and terms.
Abbreviations and special terms used in this part are explained in the glossary in Appendix F of this part.
§ 651.4 Responsibilities.
(a) The Assistant Secretary of the Army (Installations and Environment) (ASA(I&E)). ASA(I&E) is designated by the Secretary of the Army (SA) as the Army’s responsible official for NEPA policy, guidance, and oversight. In meeting these responsibilities, ASA(I&E) will:
(1) Maintain liaison with the Office of the Secretary of Defense (OSD), Office of Management and Budget (OMB), Council on Environmental Quality (CEQ), Environmental Protection Agency (EPA), Congressional oversight committees, and other federal, state, and local agencies on Army environmental policies.
(2) Review NEPA training at all levels of the Army, including curricula at Army, DOD, other service, other agency, and private institutions; and ensure adequacy of NEPA training of Army personnel at all levels.
(3) Establish an Army library for EAs and EISs, which will serve as:
(i) A means to ascertain adherence to the policies set forth in this part, as well as potential process improvements; and
(ii) A technical resource for proponents and preparers of NEPA documentation.
(b) The Assistant Secretary of the Army (Acquisition, Logistics, and Technology) (ASA(AL&T)). ASA(AL&T) will:
(1) Under oversight of the ASA(I&E), execute those NEPA policy provisions contained herein that pertain to the ASA(AL&T) responsibilities in the Army materiel development process, as described in Army Regulation (AR) 70-1, Army Acquisition Policy.
(2) Prepare policy for the Army Acquisition Executive (AAE) to develop and administer a process of review and approval of environmental analyses during the Army materiel development process.
(3) Prepare research, development, test, and evaluation (RDT&E) and procurement budget justifications to support Materiel Developer (MATDEV) implementation of NEPA provisions.
(c) The Army Acquisition Executive (AEE). The AAE will, under the Army oversight responsibilities assigned to ASA(I&E):
(1) Administer a process to:
(i) Execute all those NEPA policy provisions contained herein that pertain to all acquisition category (ACAT) programs, projects, and products;
(ii) Ensure that Milestone Decision Authorities (MDAs), at all levels, assess the effectiveness of environmental analysis in all phases of the system acquisition process, including legal review of these requirements;
(iii) Establish resource requirements and program, plan, and budget exhibits for inclusion in annual budget decisions;
(iv) Review and approve NEPA documentation at appropriate times during materiel development, in conjunction with acquisition phases and milestone reviews as established in the Acquisition Strategy; and
(v) Establish NEPA responsibility and awareness training requirements for Army Acquisition Corps personnel.
(2) Ensure Program Executive Officers (PEOs), Deputies for Systems Acquisition (DSAs), and direct-reporting Program Managers (PMs) will:
(i) Supervise assigned programs, projects, and products to ensure that each environmental analysis addresses all applicable environmental laws, executive orders, and regulations.
(ii) Ensure that environmental considerations are integrated into system acquisition plans/strategies, Test and Evaluation Master Plans (TEMPs) and Materiel Fielding Plans, Demilitarization/Disposal Plans, system engineering reviews/Integrated Process Team (IPT) processes, and Overarching Integrated Process Team (OIPT) milestone review processes.
(iii) Coordinate environmental analysis with appropriate organizations to include environmental offices such as Army Acquisition Pollution Prevention Support Office (AAPPSO) and U.S. Army Environmental Center (USAEC) and operational offices and organizations such as testers (developmental/operational), producers, users, and disposal offices.
(3) Ensure Program, Project, Product Managers, and other MATDEVs will:
(i) Initiate the environmental analysis process prescribed herein upon receiving the project office charter to commence the materiel development process, and designate a NEPA point of contact (POC) to the Director of Environmental Programs (DEP).
(ii) Integrate the system’s environmental analysis (including NEPA) into the system acquisition strategy, milestone review planning, system engineering, and preliminary design, critical design, and production readiness reviews.
(iii) Apply policies and procedures set forth in this part to programs and actions within their organizational and staff responsibility.
(iv) Coordinate with installation managers and incorporate comments and positions of others (such as the Assistant Chief of Staff for Installation Management (ACSIM) and environmental offices of the development or operational testers, producers, users, and disposers) into the decision-making process.
(v) Initiate the analysis of environmental considerations, assess the environmental consequences of proposed programs and projects, and undergo environmental analysis, as appropriate.
(vi) Maintain the administrative record of the program’s environmental analysis in accordance with this part.
(vii) Coordinate with local citizens and other affected parties, and incorporate appropriate comments into NEPA analyses.
(viii) Coordinate with ASA(I&E) when NEPA analyses for actions under AAE purview require publication in the
(d) The Deputy Chief of Staff for Operations and Plans (DCSOPS). DCSOPS is the proponent for Training and Operations activities. DCSOPS will ensure that Major Army Commands (MACOMs) support and/or perform, as appropriate, NEPA analysis of fielding issues related to specific local or regional concerns when reviewing Materiel Fielding Plans prepared by Combat Developers (CBTDEVs) or MATDEVs. This duty will include the coordination of CBTDEV and MATDEV information with appropriate MACOMs and Deputy Chief of Staff for Logistics (DCSLOG).
(e) The Assistant Chief of Staff for Installation Management (ACSIM). ACSIM is responsible for coordinating, monitoring, and evaluating NEPA activities within the Army. The Environmental Programs Directorate is the Army Staff (ARSTAF) POC for environmental matters and serves as the Army staff advocate for the Army NEPA requirements contained in this part. The ACSIM will:
(1) Encourage environmental responsibility and awareness among Army personnel to most effectively implement the spirit of NEPA.
(2) Establish and maintain the capability (personnel and other resources) to comply with the requirements of this part. This responsibility includes the provision of an adequately trained and educated staff to ensure adherence to the policies and procedures specified by this part.
(f) The Director of Environmental Programs. The director, with support of the U.S. Army Environmental Center, and under the ACSIM, will:
(1) Advise Army agencies in the preparation of NEPA analyses, upon request.
(2) Review, as requested, NEPA analyses submitted by the Army, other DOD components, and other federal agencies.
(3) Monitor proposed Army policy and program documents that have environmental implications to determine compliance with NEPA requirements and ensure integration of environmental considerations into decision-making and adaptive management processes.
(4) Propose and develop Army NEPA guidance pursuant to policies formulated by ASA(I&E).
(5) Advise project proponents regarding support and defense of Army NEPA requirements through the budgeting process.
(6) Provide NEPA process oversight, in support of ASA(I&E), and, as appropriate, technical review of NEPA documentation.
(7) Oversee proponent implementation and execution of NEPA requirements, and develop and execute programs and initiatives to address problem areas.
(8) Assist the ASA(I&E) in the evaluation of formal requests for the delegation of NEPA responsibilities on a case-by-case basis. This assistance will include:
(i) Determination of technical sufficiency of the description of proposed action and alternatives (DOPAA) when submitted as part of the formal delegation request (§ 651.7).
(ii) Coordination of the action with the MACOM requesting the delegation.
(9) Periodically provide ASA(I&E) with a summary analysis and recommendations on needed improvements in policy and guidance to Army activities concerning NEPA implementation, in support of ASA(I&E) oversight responsibilities.
(10) Advise headquarters proponents on how to secure funding and develop programmatic NEPA analyses to address actions that are Army-wide, where a programmatic approach would be appropriate to address the action.
(11) Designate a NEPA PM to coordinate the Army NEPA program and notify ASA(I&E) of the designation.
(12) Maintain manuals and guidance for NEPA analyses for major Army programs in hard copy and make this guidance available on the World Wide Web (WWW) and other electronic means.
(13) Maintain a record of NEPA POCs in the Army, as provided by the MACOMs and other Army agencies.
(14) Forward electronic copies of all EAs, and EISs to AEC to ensure inclusion in the Army NEPA library; and ensure those same documents are forwarded to the Defense Technical Information Center (DTIC).
(g) Heads of Headquarters, Army agencies. The heads of headquarters, Army agencies will:
(1) Apply policies and procedures herein to programs and actions within their staff responsibility except for state-funded operations of the Army National Guard (ARNG).
(2) Task the appropriate component with preparation of NEPA analyses and documentation.
(3) Initiate the preparation of necessary NEPA analyses, assess proposed programs and projects to determine their environmental consequences, and initiate NEPA documentation for circulation and review along with other planning or decision-making documents. These other documents include, as appropriate, completed DD Form 1391 (Military Construction Project Data), Case Study and Justification Folders, Acquisition Strategies, and other documents proposing or supporting proposed programs or projects.
(4) Coordinate appropriate NEPA analyses with ARSTAF agencies.
(5) Designate, record, and report to the DEP the identity of the agency’s single POC for NEPA considerations.
(6) Assist in the review of NEPA documentation prepared by DOD and other Army or federal agencies, as requested.
(7) Coordinate proposed directives, instructions, regulations, and major policy publications that have environmental implications with the DEP.
(8) Maintain the capability (personnel and other resources) to comply with the requirements of this part and include provisions for NEPA requirements through the Program Planning and Budget Execution System (PPBES) process.
(h) The Assistant Secretary of the Army for Financial Management (ASA(FM)). ASA(FM) will establish procedures to ensure that NEPA requirements are supported in annual authorization requests.
(i) The Judge Advocate General (TJAG). TJAG will provide legal advice to the Army Staff and assistance in NEPA interpretation, federal implementing regulations, and other applicable legal authority; determine the legal sufficiency for Army NEPA documentation; and interface with the Army General Counsel (GC) and the Department of Justice on NEPA-related litigation.
(j) The Army General Counsel. The Army General Counsel will provide legal advice to the Secretary of the Army on all environmental matters, to include interpretation and compliance with NEPA and federal implementing regulations and other applicable legal authority.
(k) The Surgeon General. The Surgeon General will provide technical expertise and guidance to NEPA proponents in the Army, as requested, in order to assess public health, industrial hygiene, and other health aspects of proposed programs and projects.
(l) The Chief, Public Affairs. The Chief, Public Affairs will:
(1) Provide guidance on issuing public announcements such as Findings of No Significant Impact (FNSIs), Notices of Intent (NOIs), scoping procedures, Notices of Availability (NOAs), and other public involvement activities; and establish Army procedures for issuing/announcing releases in the FR.
(2) Review and coordinate planned announcements on actions of national interest with appropriate ARSTAF elements and the Office of the Assistant Secretary of Defense for Public Affairs (OASD(PA)).
(3) Assist in the issuance of appropriate press releases to coincide with the publication of notices in the FR.
(4) Provide assistance to MACOM and installation Public Affairs Officers (PAOs) regarding the development and release of public involvement materials.
(m) The Chief of Legislative Liaison. The Chief of Legislative Liaison will notify Members of Congress of impending proposed actions of national concern or interest. The Chief will:
(1) Provide guidance to proponents at all levels on issuing Congressional notifications on actions of national concern or interest.
(2) Review planned congressional notifications on actions of national concern or interest.
(3) Prior to (and in concert with) the issuance of press releases and publications in the FR, assist in the issuance of congressional notifications on actions of national concern or interest.
(n) Commanders of MACOMs, the Director of the Army National Guard, and the U.S. Army Reserve Commander. Commanders of MACOMs, the Director of the Army National Guard, and the U.S. Army Reserve Commander will:
(1) Monitor proposed actions and programs within their commands to ensure compliance with this part, including mitigation monitoring, utilizing Environmental Compliance Assessment System (ECAS), Installation Status Report (ISR), or other mechanisms.
(2) Task the proponent of the proposed action with funding and preparation of NEPA documentation and involvement of the public.
(3) Ensure that any proponent at the MACOM level initiates the required environmental analysis early in the planning process, plans the preparation of necessary NEPA documentation, and uses the analysis to aid in the final decision.
(4) Assist in the review of NEPA documentation prepared by DOD and other Army or federal agencies, as requested.
(5) Maintain official record copies of all NEPA documentation for which they are the proponent, and file electronic copies of those EAs, and final EISs with AEC.
(6) Provide coordination with Headquarters, Department of the Army (HQDA) for proposed actions that have either significant impacts requiring an EIS or are of national interest. This process will require defining the purpose and need for the action, alternatives to be considered, and other information, as requested by HQDA. It also must occur early in the process and prior to an irretrievable commitment of resources that will prejudice the ultimate decision or selection of alternatives (40 CFR 1506.1). When delegated signature authority by HQDA, this process also includes the responsibility for complying with this part and associated Army environmental policy.
(7) Approve and forward NEPA documentation, as appropriate, for actions under their purview.
(8) In the case of the Director, ARNG, or his designee, approve all federal NEPA documentation prepared by all ARNG activities.
(9) Ensure environmental information received from MATDEVs is provided to appropriate field sites to support site-specific environmental analysis and NEPA requirements.
(10) Designate a NEPA PM to coordinate the MACOM NEPA program and maintain quality control of NEPA analyses and documentation that are processed through the command.
(11) Budget for resources to maintain oversight of NEPA and this part.
(o) Installation Commanders; Commanders of U.S. Army Reserve Support Commands; and The Adjutant Generals of the Army National Guard. Installation Commanders; Commanders of U.S. Army Reserve Support Commands; and The Adjutant Generals of the Army National Guard will:
(1) Establish an installation (command organization) NEPA program and evaluate its performance through the Environmental Quality Control Committee (EQCC) as required by AR 200-1, Environmental Protection and Enhancement.
(2) Designate a NEPA POC to coordinate and manage the installation’s (command organization’s) NEPA program, integrating it into all activities and programs at the installation. The installation commander will notify the MACOM of the designation.
(3) Establish a process that ensures coordination with the MACOM, other installation staff elements (to include PAOs and tenants) and others to incorporate NEPA requirements early in the planning of projects and activities.
(4) Ensure that actions subject to NEPA are coordinated with appropriate installation organizations responsible for such activities as master planning, natural and cultural resources management, or other installation activities and programs.
(5) Ensure that funding for environmental analysis is prioritized and planned, or otherwise arranged by the proponent, and that preparation of NEPA analyses, including the involvement of the public, is consistent with the requirements of this part.
(6) Approve NEPA analyses for actions under their purview. The Adjutant General will review and endorse documents and forward to the NGB for final approval.
(7) Ensure the proponent initiates the NEPA analysis of environmental consequences and assesses the environmental consequences of proposed programs and projects early in the planning process.
(8) Assist in the review of NEPA analyses affecting the installation or activity, and those prepared by DOD and other Army or federal agencies, as requested.
(9) Provide information through the chain of command on proposed actions of national interest to higher headquarters prior to initiation of NEPA documentation.
(10) Maintain official record copies of all NEPA documentation for which they are the proponent and forward electronic copies of those final EISs and EAs through the MACOM to AEC.
(11) Ensure that the installation proponents initiate required environmental analyses early in the planning process and plan the preparation of necessary NEPA documentation.
(12) Ensure NEPA awareness and/or training is provided for professional staff, installation-level proponents, and document reviewers (for example, master planning, range control, etc.).
(13) Solicit support from MACOMs, CBTDEVs, and MATDEVs, as appropriate, in preparing site-specific environmental analysis.
(14) Ensure that local citizens are aware of and, where appropriate, involved in NEPA analyses, and that public comments are obtained and considered in decisions regarding proposals.
(15) Use environmental impact analyses to determine the best alternatives from an environmental perspective, and to ensure that these determinations are part of the Army decision process.
(p) Environmental Officers. Environmental officers (at the Installation, MACOM, and Army activity level) shall, under the authority of the Installation Commander; Commanders of U.S. Army Reserves Regional Support Commands; and Director NGB-ARE (Installation Commanders):
(1) Represent the Installation, MACOM, or activity Commander on NEPA matters.
(2) Advise the proponent on the selection, preparation, and completion of NEPA analyses and documentation. This approach will include oversight on behalf of the proponent to ensure adequacy and support for the proposed action, including mitigation monitoring.
(3) Develop and publish local guidance and procedures for use by NEPA proponents to ensure that NEPA documentation is procedurally and technically correct. (This includes approval of Records of Environmental Consideration (RECs).)
(4) Identify any additional environmental information needed to support informed Army decision-making.
(5) Budget for resources to maintain oversight with NEPA and this part.
(6) Assist proponents, as necessary, to identify issues, impacts, and possible alternatives and/or mitigations relevant to specific proposed actions.
(7) Assist, as required, in monitoring to ensure that specified mitigation measures in NEPA analyses are accomplished. This monitoring includes assessing the effectiveness of the mitigations.
(8) Ensure completion of agency and community coordination.
(q) Proponents. Proponents at all levels will:
(1) Identify the proposed action, the purpose and need, and reasonable alternatives for accomplishing the action.
(2) Fund and prepare NEPA analyses and documentation for their proposed actions. This responsibility will include negotiation for matrix support and services outside the chain of command when additional expertise is needed to prepare, review, or otherwise support the development and approval of NEPA analyses and documentation. These NEPA costs may be borne by successful contract offerors.
(3) Ensure accuracy and adequacy of NEPA analyses, regardless of the author. This work includes incorporation of comments from appropriate servicing Army environmental and legal staffs.
(4) Ensure adequate opportunities for public review and comment on proposed NEPA actions, in accordance with applicable laws and EOs as discussed in § 651.14 (e). This step includes the incorporation of public and agency input into the decision-making process.
(5) Ensure that NEPA analysis is prepared and staffed sufficiently to comply with the intent and requirements of federal laws and Army policy. These documents will provide enough information to ensure that Army decision makers (at all levels) are informed in the performance of their duties (40 CFR 1501.2, 1505.1). This result requires coordination and resolution of important issues developed during the environmental analysis process, especially when the proposed action may involve significant environmental impacts, and includes the incorporation of comments from an affected installation’s environmental office in recommendations made to decision makers.
(6) Adequately fund and implement the decision including all mitigation actions and effectiveness monitoring.
(7) Prepare and maintain the official record copy of all NEPA analyses and documentation for which they are the proponent. This step will include the provision of electronic copies of all EAs, final EISs, and Records of Decision (RODs), through their chain of command, to AEC, and forwarding of those same documents to the Defense Technical Information Center (DTIC) as part of their public distribution procedures. In addition, copies of all EAs and FNSIs (in electronic copy) will be provided to ODEP. A copy of the documentation should be maintained for six years after signature of the FNSI/ROD.
(8) Maintain the administrative record for the environmental analysis performed. The administrative record shall be retained by the proponent for a period of six years after completion of the action, unless the action is controversial or of a nature that warrants keeping it longer. The administrative record includes all documents and information used to make the decision. This administrative record should contain, but is not limited to, the following types of records:
(i) Technical information used to develop the description of the proposed action, purpose and need, and the range of alternatives.
(ii) Studies and inventories of affected environmental baselines.
(iii) Correspondence with regulatory agencies.
(iv) Correspondence with, and comments from, private citizens, Native American tribes, Alaskan Natives, local governments, and other individuals and agencies contacted during public involvement.
(v) Maps used in baseline studies.
(vi) Maps and graphics prepared for use in the analysis.
(vii) Affidavits of publications and transcripts of any public participation.
(viii) Other written records that document the preparation of the NEPA analysis.
(ix) An index or table of contents for the administrative record.
(9) Identify other requirements that can be integrated and coordinated within the NEPA process. After doing so, the proponent should establish a strategy for concurrent, not sequential, compliance; sharing similar data, studies, and analyses; and consolidating opportunities for public participation. Examples of relevant statutory and regulatory processes are given in § 651.14 (e).
(10) Identify and coordinate with public agencies, private organizations, and individuals that may have an interest in or jurisdiction over a resource that might be impacted. Coordination should be accomplished in cooperation with the Installation Environmental Offices in order to maintain contact and continuity with the regulatory and environmental communities. Applicable agencies include, but are not limited to:
(i) State Historic Preservation Officer.
(ii) Tribal Historic Preservation Officer.
(iii) U.S. Fish and Wildlife Service.
(iv) Regional offices of the EPA.
(v) State agencies charged with protection of the environment, natural resources, and fish and wildlife.
(vi) USACE Civil Works regulatory functions, including Clean Water Act, Section 404, permitting and wetland protection.
(vii) National Marine Fisheries Service.
(viii) Local agencies and/or governing bodies.
(ix) Environmental interest groups.
(x) Minority, low-income, and disabled populations.
(xi) Tribal governments.
(xii) Existing advisory groups (for example, Restoration Advisory Boards, Citizens Advisory Commissions, etc.).
(11) Identify and coordinate, in concert with environmental offices, proposed actions and supporting environmental analyses with local and/or regional ecosystem management initiatives such as the Mojave Desert Ecosystem Management Initiative or the Chesapeake Bay Initiative.
(12) Review Army policies, including AR 200-1 (Environmental Protection and Enhancement), AR 200-3 (Natural Resources—Land, Forest, and Wildlife Management), and AR 200-4 (Cultural Resources Management) to ensure that the proposed action is coordinated with appropriate resource managers, operators, and planners, and is consistent with existing Army plans and their supporting NEPA analyses.
(13) Identify potential impacts to (and consult with as appropriate) American Indian, Alaskan Native, or Native Hawaiian lands, resources, or cultures (for example, sacred sites, traditional cultural properties, treaty rights, subsistence hunting or fishing rights, or cultural items subject to the Native American Graves Protection and Repatriation Act (NAGPRA)). All consultation shall be conducted on a Government-to-Government basis in accordance with the Presidential Memorandum on Government-to-Government Relations with Tribal Governments (April 29, 1994) (3 CFR, 1994 Comp., p. 1007) and AR 200-4 (Cultural Resources Management). Proponents shall consider, as appropriate, executing Memoranda of Agreements (MOAs) with interested Native American groups and tribes to facilitate timely and effective participation in the NEPA process. These agreements should be accomplished in cooperation with Installation Environmental Offices in order to maintain contact and continuity with the regulatory and environmental communities.
(14) Review NEPA documentation that relies upon mitigations that were not accomplished to determine if the NEPA analysis needs to be rewritten or updated. Such an update is required if the unaccomplished mitigation was used to support a FNSI. Additional public notice/involvement must accompany any rewrites.
(r) The Commander, U.S. Army Training and Doctrine Command (TRADOC). The Commander, TRADOC will:
(1) Ensure that NEPA requirements are understood and options incorporated in the Officer Foundation Standards (OFS).
(2) Integrate environmental considerations into doctrine, training, leader development, organization, materiel, and soldier (DTLOMS) processes.
(3) Include environmental expert representation on all Integrated Concept Teams (ICTs) involved in requirements determinations.
(4) Ensure that TRADOC CBTDEVs retain and transfer any environmental analysis or related data (such as alternatives analysis) to the MATDEV upon approval of a materiel need. This information and data will serve as the basis for the MATDEV’s Acquisition Strategy and subsequent NEPA analyses.
(5) Ensure that environmental considerations are incorporated into the Mission Needs Statements (MNSs) and Operational Requirements Documents (ORDs).
§ 651.5 Army policies.
(a) NEPA establishes broad federal policies and goals for the protection of the environment and provides a flexible framework for balancing the need for environmental quality with other essential societal functions, including national defense. The Army is expected to manage those aspects of the environment affected by Army activities; comprehensively integrating environmental policy objectives into planning and decision-making. Meaningful integration of environmental considerations is accomplished by efficiently and effectively informing Army planners and decision makers. The Army will use the flexibility of NEPA to ensure implementation in the most cost-efficient and effective manner. The depth of analyses and length of documents will be proportionate to the nature and scope of the action, the complexity and level of anticipated effects on important environmental resources, and the capacity of Army decisions to influence those effects in a productive, meaningful way from the standpoint of environmental quality.
(b) The Army will actively incorporate environmental considerations into informed decision-making, in a manner consistent with NEPA. Communication, cooperation, and, as appropriate, collaboration between government and extra-government entities is an integral part of the NEPA process. Army proponents, participants, reviewers, and approvers will balance environmental concerns with mission requirements, technical requirements, economic feasibility, and long-term sustainability of Army operations. While carrying out its mission, the Army will also encourage the wise stewardship of natural and cultural resources for future generations. Decision makers will be cognizant of the impacts of their decisions on cultural resources, soils, forests, rangelands, water and air quality, fish and wildlife, and other natural resources under their stewardship, and, as appropriate, in the context of regional ecosystems.
(c) Environmental analyses will reflect appropriate consideration of non-statutory environmental issues identified by federal and DOD orders, directives, and policy guidance. Some examples are in § 651.14 (e). Potential issues will be discussed and critically evaluated during scoping and other public involvement processes.
(d) The Army will continually take steps to ensure that the NEPA program is effective and efficient. Effectiveness of the program will be determined by the degree to which environmental considerations are included on a par with the military mission in project planning and decision-making. Efficiency will be promoted through the following:
(1) Awareness and involvement of the proponent in the NEPA process.
(2) NEPA technical and awareness training, as appropriate, at all decision levels of the Army.
(3) Where appropriate, the use of programmatic analyses and tiering to ensure consideration at the appropriate decision levels, elimination of repetitive discussion, consideration of cumulative effects, and focus on issues that are important and appropriate for discussion at each level.
(4) Use of the scoping and public involvement processes to limit the analysis of issues to those which are of interest to the public and/or important to the decision-making at hand.
(5) Elimination of needless paperwork by focusing documents on the major environmental issues affecting those decisions.
(6) Early integration of the NEPA process into all aspects of Army planning, so as to prevent disruption in the decision-making process; ensuring that NEPA personnel function as team members, supporting the Army planning process and sound Army decision-making. All NEPA analyses will be prepared by an interdisciplinary team.
(7) Partnering or coordinating with agencies, organizations, and individuals whose specialized expertise will improve the NEPA process.
(8) Oversight of the NEPA program to ensure continuous process improvement. NEPA requirements will be integrated into other environmental reporting requirements, such as the ISR.
(9) Clear and concise communication of data, documentation, and information relevant to NEPA analysis and documentation.
(10) Environmental analysis of strategic plans based on:
(i) Scoping thoroughly with agencies, organizations, and the public;
(ii) Setting specific goals for important environmental resources;
(iii) Monitoring of impacts to these resources;
(iv) Reporting of monitoring results to the public; and
(v) Adaptive management of Army operations to stay on course with the strategic plan’s specific resource goals.
(11) Responsive staffing through HQDA and the Secretariat. To the extent possible, documents and transmittal packages will be acted upon within 30 calendar days of receipt by each office through which they are staffed. These actions will be approved and transmitted, if the subject material is adequate; or returned with comment in those cases where additional work is required. Cases where these policies are violated should be identified to ASA (I&E) for resolution.
(e) Army leadership and commanders at all levels are required to:
(1) Establish and maintain the capability (personnel and other resources) to ensure adherence to the policies and procedures specified by this part. This should include the use of the PPBES, EPR, and other established resourcing processes. This capability can be provided through the use of a given mechanism or mix of mechanisms (contracts, matrix support, and full-time permanent (FTP) staff), but sufficient FTP staff involvement is required to ensure:
(i) Army cognizance of the analyses and decisions being made; and
(ii) Sufficient institutional knowledge of the NEPA analysis to ensure that Army NEPA responsibilities (pre- and post-decision) are met. Every person preparing, implementing, supervising, and managing projects involving NEPA analysis must be familiar with the requirements of NEPA and the provisions of this part.
(2) Ensure environmental responsibility and awareness among personnel to most effectively implement the spirit of NEPA. All personnel who are engaged in any activity or combination of activities that significantly affect the quality of the human environment will be aware of their NEPA responsibility. Only through alertness, foresight, notification through the chain of command, and training and education will NEPA goals be realized.
(f) The worldwide, transboundary, and long-range character of environmental problems will be recognized, and, where consistent with national security requirements and U.S. foreign policy, appropriate support will be given to initiatives, resolutions, and programs designed to maximize international cooperation in protecting the quality of the world human and natural environment. Consideration of the environment for Army decisions involving activities outside the United States (see § 651.1(e)) will be accomplished pursuant to Executive Order 12114 (Environmental Effects Abroad of Major Federal Actions, 4 January 1979), host country final governing standards, DOD Directive (DODD) 6050.7 (Environmental Effects Abroad of Major DOD Actions), DOD Instructions (DODIs), and the requirements of this part. An environmental planning and evaluation process will be incorporated into Army actions that may substantially affect the global commons, environments of other nations, or any protected natural or ecological resources of global importance.
(g) Army NEPA documentation must be periodically reviewed for adequacy and completeness in light of changes in project conditions.
(1) Supplemental NEPA documentation is required when:
(i) The Army makes substantial changes in the proposed action that are relevant to environmental concerns; or
(ii) There are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impact.
(2) This review requires that the proponent merely initiate another “hard look” to ascertain the adequacy of the previous analyses and documentation in light of the conditions listed in paragraph (g)(1) of this section. If this review indicates no need for new or supplemental documentation, a REC can be produced in accordance with this part. Proponents are required to periodically review relevant existing NEPA analyses to ascertain the need for supplemental documentation and document this review in a REC format.
(h) Contractors frequently prepare EISs and EAs. To obtain unbiased analyses, contractors must be selected in a manner avoiding any conflict of interest. Therefore, contractors will execute disclosure statements specifying that they have no financial or other interest in the outcome of the project. The contractor’s efforts should be closely monitored throughout the contract to ensure an adequate assessment/statement and also avoid extensive, time-consuming, and costly analyses or revisions. Project proponents and NEPA program managers must be continuously informed and involved.
(i) When appropriate, NEPA analyses will reflect review for operations security principles and procedures, described in AR 530-1 (Operations Security (OPSEC)), on the cover sheet or signature page.
(j) Environmental analyses and associated investigations are advanced project planning, and will be funded from sources other than military construction (MILCON) funds. Operations and Maintenance Army (OMA), Operations and Maintenance, Army Reserve (OMAR), and Operations and Maintenance, Army National Guard (OMANG), RDT&E, or other operating funds are the proper sources of funds for such analysis and documentation. Alternative Environmental Compliance Achievement Program (non-ECAP) funds will be identified for NEPA documentation, monitoring, and other required studies as part of the MILCON approval process.
(k) Costs of design and construction mitigation measures required as a direct result of MILCON projects will be paid from MILCON funds, which will be included in the cost estimate and description of work on DD Form 1391, Military Construction Project Data.
(l) Response actions implemented in accordance with the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) or the Resource Conservation and Recovery Act (RCRA) are not legally subject to NEPA and do not require separate NEPA analysis. As a matter of Army policy, CERCLA and RCRA analysis and documentation should incorporate the values of NEPA and:
(1) Establish the scope of the analysis through full and open public participation;
(2) Analyze all reasonable alternative remedies, evaluating the significance of impacts resulting from the alternatives examined; and
(3) Consider public comments in the selection of the remedy. The decision maker shall ensure that issues involving substantive environmental impacts are addressed by an interdisciplinary team.
(m) MATDEVs, scientists and technologists, and CBTDEVs are responsible for ensuring that their programs comply with NEPA as directed in this part.
(1) Prior to assignment of a MATDEV to plan, execute, and manage a potential acquisition program, CBTDEVs will retain environmental analyses and data from requirements determination activities, and Science and Technology (S&T) organizations will develop and retain data for their technologies. These data will transition to the MATDEV upon assignment to plan, execute, and manage an acquisition program. These data (collected and produced), as well as the decisions made by the CBTDEVs, will serve as a foundation for the environment, safety, and health (ESH) evaluation of the program and the incorporation of program-specific NEPA requirements into the Acquisition Strategy. Programmatic ESH evaluation is considered during the development of the Acquisition Strategy as required by DOD 5000.2-R for all ACAT programs. Programmatic ESH evaluation is not a NEPA document. It is a planning, programming, and budgeting strategy into which the requirements of this part are integrated. Environmental analysis must be a continuous process throughout the materiel development program. During this continuous process, NEPA analysis and documentation may be required to support decision-making prior to any decision that will prejudice the ultimate decision or selection of alternatives (40 CFR 1506.1). In accordance with DOD 5000.2.R, the MATDEV is responsible for environmental analysis of acquisition life-cycle activities (including disposal). Planning to accomplish these responsibilities will be included in the appropriate section of the Acquisition Strategy.
(2) MATDEVs are responsible for the documentation regarding general environmental effects of all aspects of the system (including operation, fielding, and disposal) and the specific effects for all activities for which he/she is the proponent.
(3) MATDEVs will include, in their Acquisition Strategy, provisions for developing and supplementing their NEPA analyses and documentation, and provide data to support supplemental analyses, as required, throughout the life cycle of the system. The MATDEV will coordinate with ASA (AL&T) or MACOM proponent office, ACSIM, and ASA(I&E), identifying NEPA analyses and documentation needed to support milestone decisions. This requirement will be identified in the Acquisition Strategy and the status will be provided to the ACSIM representative prior to milestone review. The Acquisition Strategy will outline the system-specific plans for NEPA compliance, which will be reviewed and approved by the appropriate MDA and ACSIM. Compliance with this plan will be addressed at Milestone Reviews.
(n) AR 700-142 requires that environmental requirements be met to support materiel fielding. During the development of the Materiel Fielding Plan (MFP), and Materiel Fielding Agreement (MFA), the MATDEV and the materiel receiving command will identify environmental information needed to support fielding decisions. The development of generic system environmental and NEPA analyses for the system under evaluation, including military construction requirements and new equipment training issues, will be the responsibility of the MATDEV. The development of site-specific environmental analyses and NEPA documentation (EAs/EISs), using generic system environmental analyses supplied by the MATDEV, will be the responsibility of the receiving Command.
(o) Army proponents are encouraged to draw upon the special expertise available within the Office of the Surgeon General (OSG) (including the U.S. Army Center for Health Promotion and Preventive Medicine (USACHPPM)), and USACE District Environmental Staff to identify and evaluate environmental health impacts, and other agencies, such as USAEC, can be used to assess potential environmental impacts). In addition, other special expertise is available in the Army, DOD, other federal agencies, state and local agencies, tribes, and other organizations and individuals. Their participation and assistance is also encouraged.
§ 651.6 NEPA analysis staffing.
(a) NEPA analyses will be prepared by the proponent using appropriate resources (funds and manpower). The proponent, in coordination with the appropriate NEPA program manager, shall determine what proposal requires NEPA analysis, when to initiate NEPA analysis, and what level of NEPA analysis is initially appropriate. The proponent shall remain intimately involved in determining appropriate milestones, timelines, and inputs required for the successful conduct of the NEPA process, including the use of scoping to define the breadth and depth of analysis required. In cases where the document addresses impacts to an environment whose management is not in the proponents’ chain of command (for example, installation management of a range for MATDEV testing or installation management of a fielding location), the proponent shall coordinate the analysis and preparation of the document and identify the resources needed for its preparation and staffing through the command structure of that affected activity.
(b) The approving official is responsible for approving NEPA documentation and ensuring completion of the action, including any mitigation actions needed. The approving official may be an installation commander; or, in the case of combat/materiel development, the MATDEV, MDA, or AAE.
(c) Approving officials may select a lead reviewer for NEPA analysis before approving it. The lead reviewer will determine and assemble the personnel needed for the review process. Funding needed to accomplish the review shall be negotiated with the proponent, if required. Lead reviewer may be an installation EC or a NEPA POC designated by an MDA for a combat/materiel development program.
(d) The most important document is the initial NEPA document (draft EA or draft EIS) being processed. Army reviewers are accountable for ensuring thorough early review of draft NEPA analyses. Any organization that raises new concerns or comments during final staffing will explain why issues were not raised earlier. NEPA analyses requiring public release in the FR will be forwarded to ASA(I&E), through the chain of command, for review. This includes all EISs and all EAs that are of national interest or concern. The activities needed to support public release will be coordinated with ASA(I&E). Public release will not proceed without ASA(I&E) approval.
(e) Public release of NEPA analyses in the FR should be limited to EISs, or EAs that are environmentally controversial or of national interest or concern. When analyses address actions affecting numerous sites throughout the Continental United States (CONUS), the proponent will carefully evaluate the need for publishing an NOA in the FR, as this requires an extensive review process, as well as supporting documentation alerting EPA and members of Congress of the action. At a minimum, and depending on the proponent’s command structure, the following reviews must be accomplished:
(1) The NEPA analysis must be reviewed by the MACOM Legal Counsel or TJAG, ACSIM, ASA(I&E), and Office of General Counsel (OGC).
(2) The supporting documentation must be reviewed by Office of the Chief of Legislative Liaison (OCLL) and Office of the Chief of Public Affairs (OCPA).
(3) Proponents must allow a minimum of 30 days to review the documentation and must allow sufficient time to address comments from these offices prior to publishing the NOA.
(4) The proponent may consider publishing the NOA in local publication resources near each site. Proponents are strongly advised to seek the assistance of the local environmental office and command structure in addressing the need for such notification.
(a) MACOMs can request delegation authority and responsibility for an EA of national concern or an EIS from ASA(I&E). The proponent, through the appropriate chain of command, and with the concurrence of environmental offices, forwards to HQDA (ODEP) the request to propose, prepare, and finalize an EA and FNSI or EIS through the ROD stage. The request must include, at a minimum, the following:
(1) A description of the purpose and need for the action.
(2) A description of the proposed action and a preliminary list of alternatives to that proposed action, including the “no action” alternative. This constitutes the DOPAA.
(3) An explanation of funding requirements, including cost estimates, and how they will be met.
(4) A brief description of potential issues of concern or controversy, including any issues of potential Army-wide impact.
(5) A plan for scoping and public participation.
(6) A timeline, with milestones for the EIS action.
(b) If granted, a formal letter will be provided by ASA(I&E) outlining extent, conditions, and requirements for the NEPA action. Only the ASA(I&E) can delegate this authority and responsibility. When delegated signature authority by HQDA, the MACOM will be responsible for complying with this part and associated Army environmental policy. This delegation, at the discretion of ASA(I&E), can include specific authority and responsibility for coordination and staffing of:
(1) EAs and FNSIs, and associated transmittal packages, as specified in § 651.35(c).
(2) NOIs, Preliminary Draft EISs (PDEISs), Draft EISs (DEISs), Final EISs (FEISs), RODs and all associated transmittal packages as specified in § 651.45. Such delegation will specify requirements for coordination with ODEP and ASA (I&E).
§ 651.8 Disposition of final documents.
All NEPA documentation and supporting administrative records shall be retained by the proponent’s office for a minimum of six years after signature of the FNSI/ROD or the completion of the action, whichever is greater. Copies of EAs, and final EISs will be forwarded to AEC for cataloging and retention in the Army NEPA library. The DEIS and FEIS will be retained until the proposed action and any mitigation program is complete or the information therein is no longer valid. The ACSIM shall forward copies of all FEISs to DTIC, the National Archives, and Records Administration.
Subpart B—National Environmental Policy Act and the Decision Process
§ 651.9 Introduction.
(a) The NEPA process is the systematic examination of possible and probable environmental consequences of implementing a proposed action. Integration of the NEPA process with other Army projects and program planning must occur at the earliest possible time to ensure that:
(1) Planning and decision-making reflect Army environmental values, such as compliance with environmental policy, laws, and regulations; and that these values are evident in Army decisions. In addition, Army decisions must reflect consideration of other requirements such as Executive Orders and other non-statutory requirements, examples of which are enumerated in § 651.14(e).
(2) Army and DOD environmental policies and directives are implemented.
(3) Delays and potential conflicts in the process are minimized. The public should be involved as early as possible to avoid potential delays.
(b) All Army decision-making that may impact the human environment will use a systematic, interdisciplinary approach that ensures the integrated use of the natural and social sciences, planning, and the environmental design arts (section 102(2)(a), Public Law 91-190, 83 Stat. 852, National Environmental Policy Act of 1969 (NEPA)). This approach allows timely identification of environmental effects and values in sufficient detail for concurrent evaluation with economic, technical, and mission-related analyses, early in the decision process.
(c) The proponent of an action or project must identify and describe the range of reasonable alternatives to accomplish the purpose and need for the proposed action or project, taking a “hard look” at the magnitude of potential impacts of implementing the reasonable alternatives, and evaluating their significance. To assist in identifying reasonable alternatives, the proponent should consult with the installation environmental office and appropriate federal, tribal, state, and local agencies, and the general public.
§ 651.10 Actions requiring environmental analysis.
The general types of proposed actions requiring environmental impact analysis under NEPA, unless categorically excluded or otherwise included in existing NEPA documentation, include:
(a) Policies, regulations, and procedures (for example, Army and installation regulations).
(b) New management and operational concepts and programs, including logistics; RDT&E; procurement; personnel assignment; real property and facility management (such as master plans); and environmental programs such as Integrated Natural Resource Management Plan (INRMP), Integrated Cultural Resources Management Plan (ICRMP), and Integrated Pest Management Plan. NEPA requirements may be incorporated into other Army plans in accordance with 40 CFR 1506.4.
(c) Projects involving facilities construction.
(d) Operations and activities including individual and unit training, flight operations, overall operation of installations, or facility test and evaluation programs.
(e) Actions that require licenses for operations or special material use, including a Nuclear Regulatory Commission (NRC) license, an Army radiation authorization, or Federal Aviation Administration air space request (new, renewal, or amendment), in accordance with AR 95-50.
(f) Materiel development, operation and support, disposal, and/or modification as required by DOD 5000.2-R.
(g) Transfer of significant equipment or property to the ARNG or Army Reserve.
(h) Research and development including areas such as genetic engineering, laser testing, and electromagnetic pulse generation.
(i) Leases, easements, permits, licenses, or other entitlement for use, to include donation, exchange, barter, or Memorandum of Understanding (MOU). Examples include grazing leases, grants of easement for highway right-of-way, and requests by the public to use land for special events such as air shows or carnivals.
(j) Federal contracts, grants, subsidies, loans, or other forms of funding such as Government-Owned, Contractor-Operated (GOCO) industrial plants or housing and construction via third-party contracting.
(k) Request for approval to use or store materials, radiation sources, hazardous and toxic material, or wastes on Army land. If the requester is non-Army, the responsibility to prepare proper environmental documentation may rest with the non-Army requester, who will provide needed information for Army review. The Army must review and adopt all NEPA documentation before approving such requests.
(l) Projects involving chemical weapons/munitions.
§ 651.11 Environmental review categories.
The following are the five broad categories into which a proposed action may fall for environmental review:
(a) Exemption by law. The law must apply to DOD and/or the Army and must prohibit, exempt, or make impossible full compliance with the procedures of NEPA (40 CFR 1506.11). While some aspects of Army decision-making may be exempted from NEPA, other aspects of an action are still subject to NEPA analysis and documentation. The fact that Congress has directed the Army to take an action does not constitute an exemption.
(b) Emergencies. In the event of an emergency, the Army will, as necessary, take immediate actions that have environmental impacts, such as those to promote national defense or security or to protect life or property, without the specific documentation and procedural requirements of other sections of this part. In such cases, at the earliest practicable time, the HQDA proponent will notify the ODEP, which in turn will notify the ASA(I&E). ASA(I&E) will coordinate with the Deputy Under Secretary of Defense for Installations and Environment (DUSD(IE)) and the CEQ regarding the emergency and subsequent NEPA compliance after the emergency action has been completed. These notifications apply only to actions necessary to control the immediate effects of the emergency. Other actions remain subject to NEPA review (40 CFR 1506.11). A public affairs plan should be developed to ensure open communication among the media, the public, and the installation. The Army will not delay an emergency action necessary for national defense, security, or preservation of human life or property in order to comply with this part or the CEQ regulations. However, the Army’s on-site commander dealing with the emergency will consider the probable environmental consequences of proposed actions, and will minimize environmental damage to the maximum degree practicable, consistent with protecting human life, property, and national security. State call-ups of ARNG during a natural disaster or other state emergency are excluded from this notification requirement. After action reports may be required at the discretion of the ASA(I&E).
(c) Categorical Exclusions (CXs). These are categories of actions that normally do not require an EA or an EIS. The Army has determined that they do not individually or cumulatively have a substantial effect on the human environment. Qualification for a CX is further described in subpart D and appendix B of this part. In accordance with § 651.29, actions that degrade the existing environment or are environmentally controversial or adversely affect environmentally sensitive resources will require an EA.
(d) Environmental Assessment. Proposed Army actions not covered in the first three categories (paragraphs (a) through (c) of this section) must be analyzed to determine if they could cause significant impacts to the human or natural environment (see § 651.39). The EA determines whether possible impacts are significant, thereby warranting an EIS. This requires a “hard look” at the magnitude of potential impacts, evaluation of their significance, and documentation in the form of either an NOI to prepare an EIS or a FNSI. The format (§ 651.34) and requirements for this analysis are addressed in subpart E of this part (see § 651.33 for actions normally requiring an EA). The EA is a valuable planning tool to discuss and document environmental impacts, alternatives, and controversial actions, providing public and agency participation, and identifying mitigation measures.
(e) EIS. When an action clearly has significant impacts or when an EA cannot be concluded by a FNSI, an EIS must be prepared. An EIS is initiated by the NOI (§ 651.22), and will examine the significant environmental effects of the proposed action as well as accompanying measures to mitigate those impacts. This process requires formal interaction with the public, a formal “scoping” process, and specified timelines for public review of the documentation and the incorporation of public comments. The format and requirements for the EIS are addressed in subpart F of this part (see § 651.42 for actions normally requiring an EIS).
§ 651.12 Determining appropriate level of NEPA analysis.
(a) The flow chart shown in Figure 1 summarizes the process for determining documentation requirements, as follows:
(1) If the proposed action qualifies as a CX (subpart D of this part), and the screening criteria are met (§ 651.29), the action can proceed. Some CXs require a REC.
(2) If the proposed action is adequately covered within an existing EA or EIS, a REC is prepared to that effect. The REC should state the applicable EA or EIS title and date, and identify where it may be reviewed (§ 651.19, Figure 3). The REC is then attached to the proponent’s record copy of that EA or EIS.
(3) If the proposed action is within the general scope of an existing EA or EIS, but requires additional information, a supplement is prepared, considering the new, modified, or missing information. Existing documents are incorporated by reference and conclusions are published as either a FNSI or NOI to supplement the EIS.
(4) If the proposed action is not covered adequately in any existing EA or EIS, or is of a significantly larger scope than that described in the existing document, an EA is prepared, followed by either a FNSI or NOI to prepare an EIS. Initiation of an EIS may proceed without first preparing an EA, if deemed appropriate by the proponent.
(5) If the proposed action is not within the scope of any existing EA or EIS, then the proponent must begin the preparation of a new EA or EIS, as appropriate.
(b) The proponent of a proposed action may adopt appropriate environmental documents (EAs or EISs) prepared by another agency (40 CFR 1500.4(n) and 1506.3). In such cases, the proponent will document their use in a REC FNSI, or ROD.
§ 651.13 Classified actions.
(a) For proposed actions and NEPA analyses involving classified information, AR 380-5 (Department of the Army Information Security Program) will be followed.
(b) Classification does not relieve a proponent of the requirement to assess and document the environmental effects of a proposed action.
(c) When classified information can be reasonably separated from other information and a meaningful environmental analysis produced, unclassified documents will be prepared and processed in accordance with this part. Classified portions will be kept separate and provided to reviewers and decision makers in accordance with AR 380-5.
(d) When classified information is such an integral part of the analysis of a proposal that a meaningful unclassified NEPA analysis cannot be produced, the proponent, in consultation with the appropriate security and environmental offices, will form a team to review classified NEPA analysis. This interdisciplinary team will include environmental professionals to ensure that the consideration of environmental effects will be consistent with the letter and intent of NEPA, including public participation requirements for those aspects which are not classified.
§ 651.14 Integration with Army planning.
(a) Early integration. The Army goal is to concurrently integrate environmental reviews with other Army planning and decision-making actions, thereby avoiding delays in mission accomplishment. To achieve this goal, proponents shall complete NEPA analysis as part of any recommendation or report to decision makers prior to the decision (subject to 40 CFR 1506.1). Early planning (inclusion in Installation Master Plans, INRMPs, ICRMPs, Acquisition Strategies, strategic plans, etc.) will allow efficient program or project execution later in the process.
(1) The planning process will identify issues that are likely to have an effect on the environment, or to be controversial. In most cases, local citizens and/or existing advisory groups should assist in identifying potentially controversial issues during the planning process. The planning process also identifies minor issues that have little or no measurable environmental effect, and it is sound NEPA practice to reduce or eliminate discussion of minor issues to help focus analyses. Such an approach will minimize unnecessary analysis and discussion in the NEPA process and documents.
(2) Decision makers will be informed of and consider the environmental consequences at the same time as other factors such as mission requirements, schedule, and cost. If permits or coordination are required (for example, Section 404 of the Clean Water Act, Endangered Species Act consultation, Section 106 of the National Historic Preservation Act (NHPA), etc.), they should be initiated no later than the scoping phase of the process and should run parallel to the NEPA process, not sequential to it. This practice is in accordance with the recommendations presented in the CEQ publication entitled “The National Environmental Policy Act: A Study of Its Effectiveness After Twenty-five Years.”
(3) NEPA documentation will accompany the proposal through the Army review and decision-making processes. These documents will be forwarded to the planners, designers, and/or implementers, ensuring that the recommendations and mitigations upon which the decision was based are being carried out. The implementation process will provide necessary feedback for adaptive environmental management; responding to inaccuracies or uncertainties in the Army’s ability to accurately predict impacts, changing field conditions, or unexpected results from monitoring. The integration of NEPA into the ongoing planning activities of the Army can produce considerable savings to the Army.
(b) Time limits. The timing of the preparation, circulation, submission, and public availability of NEPA documentation is important to ensure that environmental values are integrated into Army planning and decisions.
(1) Categorical exclusions. When a proposed action is categorically excluded from further environmental review (subpart D and appendix B of this part), the proponent may proceed immediately with that action upon receipt of all necessary approvals, (including local environmental office confirmation that the CX applies to the proposal) and the preparation of a REC, if required.
(2) Findings of no significant impact. (i) A proponent will make an EA and draft FNSI available to the public for review and comment for a minimum of 30 days prior to making a final decision and proceeding with an action. If the proposed action is one of national concern, is unprecedented, or normally requires an EIS (§ 651.42), the FNSI must be published in the FR. Otherwise, the FNSI must be published in local newspapers and be made widely available. The FNSI must articulate the deadline for receipt of comments, availability of the EA for review, and steps required to obtain the EA. This can include a POC, address, and phone number; a location; a reference to a website; or some equivalent mechanism. (In no cases will the only coordination mechanism be a website.) At the conclusion of the appropriate comment period, as specified in Figure 2, the decision maker may sign the FNSI and take immediate action, unless sufficient public comments are received to warrant more time for their resolution. Figure 2 follows:
(ii) A news release is required to publicize the availability of the EA and draft FNSI, and a simultaneous announcement that includes publication in the FR must be made by HQDA, if warranted (see § 651.35 (e)). The 30-day waiting period begins at the time that the draft FNSI is publicized (40 CFR 1506.6(b)).
(iii) In cases where the 30-day comment period jeopardizes the project and the full comment period would provide no public benefit, the period may be shortened with appropriate approval by a higher decision authority (such as a MACOM). In no circumstances should the public comment period for an EA/draft FNSI be less than 15 days. A deadline and POC for receipt of comments must be included in the draft FNSI and the news release.
(3) EIS. The EPA publishes a weekly notice in the FR of the EISs filed during the preceding week. This notice usually occurs each Friday. An NOA reaching EPA on a Friday will be published in the following Friday issue of the FR. Failure to deliver an NOA to EPA by close of business on Friday will result in an additional one-week delay. A news release publicizing the action will be made in conjunction with the notice in the FR. The following time periods, calculated from the publication date of the EPA notice, will be observed:
(i) Not less than 45 days for public comment on DEISs (40 CFR 1506.10(c)).
(ii) Not less than 15 days for public availability of DEISs prior to any public hearing on the DEIS (40 CFR 1506(c)(2)).
(iii) Not less than 90 days from filing the DEIS prior to any decision on the proposed action. These periods may run concurrently (40 CFR 1506.10(b) and (c)).
(iv) The time periods prescribed here may be extended or reduced in accordance with 40 CFR 1506.10(b)(2) and (d).
(v) When variations to these time limits are set, the Army agency should consider the factors in 40 CFR 1501.8(b)(1).
(vi) The proponent may also set time limits for other procedures or decisions related to DEISs and FEISs as listed in 40 CFR 1501.8(b)(2).
(vii) Because the entire EIS process could require more than one year (Figure 2 in paragraph (b)(2)(i) of this section), the process must begin as soon as the project is sufficiently mature to allow analysis of alternatives and the proponent must coordinate with all staff elements with a role to play in the NEPA process. DEIS preparation and response to comments constitute the largest portion of time to prepare an FEIS.
(viii) A public affairs plan should be developed that provides for periodic interaction with the community. There is a minimum public review time of 90 days between the publication of the DEIS and the announcement of the ROD. After the availability of the ROD is announced, the action may proceed. This announcement must be made through the FR for those EISs for which HQDA signs the ROD. For other EISs, announcements in the local press are adequate. Figure 2 in paragraph (b)(2)(i) of this section indicates typical and required time periods for EISs.
(c) Programmatic environmental review (tiering). (1) Army agencies are encouraged to analyze actions at a programmatic level for those programs that are similar in nature or broad in scope (40 CFR 1502.4(c), 1502.20, and 1508.23). This level of analysis will eliminate repetitive discussions of the same issues and focus on the key issues at each appropriate level of project review. When a broad programmatic EA or EIS has been prepared, any subsequent EIS or EA on an action included within the entire program or policy (particularly a site-specific action) need only summarize issues discussed in the broader statement and concentrate on the issues specific to the subsequent action.
(2) Army proponents are normally required to prepare many types of management plans that must include or be accompanied by appropriate NEPA analysis. NEPA analysis for these types of plans can often be accomplished with a programmatic approach, creating an analysis that covers a number of smaller projects or activities. In cases where such activities are adequately assessed as part of these normal planning activities, a REC can be prepared for smaller actions that cite the document in which the activities were previously assessed. Care must be taken to ensure that site-specific or case-specific conditions are adequately addressed in the existing programmatic document before a REC can be used, and the REC must reflect this consideration. If additional analyses are required, they can “tier” off the original analyses, eliminating duplication. Tiering, in this manner, is often applicable to Army actions that are long-term, multi-faceted, or multi-site.
(d) Scoping. (1) When the planning for an Army project or action indicates a need for an EIS, the proponent initiates the scoping process (see subpart G of this part for procedures and actions). This process determines the scope of issues to address in the EIS and identifies the significant issues related to the proposed action. During the scoping, process participants identify the range of actions, alternatives, and impacts to consider in the EIS (40 CFR 1508.25). For an individual action, the scope may depend on the relationship of the proposed action to other NEPA documents. The scoping phase of the NEPA process, as part of project planning, will identify aspects of the proposal that are likely to have an effect or be controversial; and will ensure that the NEPA analyses are useful for a decision maker. For example, the early identification and initiation of permit or coordination actions can facilitate problem resolution, and, similarly, cumulative effects can be addressed early in the process and at the appropriate spatial and temporal scales.
(2) The extent of the scoping process, including public involvement, will depend on several factors. These factors include:
(i) The size and type of the proposed action.
(ii) Whether the proposed action is of regional or national interest.
(iii) Degree of any associated environmental controversy.
(iv) Size of the affected environmental parameters.
(v) Significance of any effects on them.
(vi) Extent of prior environmental review.
(vii) Involvement of any substantive time limits.
(viii) Requirements by other laws for environmental review.
(ix) Cumulative impacts.
(3) Through scoping, many future controversies can be eliminated, and public involvement can be used to narrow the scope of the study, concentrating on those aspects of the analysis that are truly important.
(4) The proponent may incorporate scoping as part of the EA process, as well. If the proponent chooses a public involvement strategy, the extent of scoping incorporated is at the proponent’s discretion.
(e) Analyses and documentation. Several statutes, regulations, and Executive Orders require analyses, consultation, documentation, and coordination, which duplicate various elements and/or analyses required by NEPA and the CEQ regulations; often leading to confusion, duplication of effort, omission, and, ultimately, unnecessary cost and delay. Therefore, Army proponents are encouraged to identify, early in the NEPA process, opportunities for integrating those requirements into proposed Army programs, policies, and projects. Environmental analyses required by this part will be integrated as much as practicable with other environmental reviews, laws, and Executive Orders (40 CFR 1502.25). Incorporation of these processes must ensure that the individual requirements are met, in addition to those required by NEPA. The NEPA process does not replace the procedural or substantive requirements of other environmental statutes and regulations. Rather, it addresses them in one place so the decision maker has a concise and comprehensive view of the major environmental issues and understands the interrelationships and potential conflicts among the environmental components. NEPA is the “umbrella” that facilitates such coordination by integrating processes that might otherwise proceed independently. Prime candidates for such integration include, but are not limited to, the following:
(1) Clean Air Act, as amended (General Conformity Rule, 40 CFR parts 51 and 93).
(2) Endangered Species Act.
(3) NHPA, sections 106 and 110.
(4) NAGPRA (Public Law 101-601, 104 Stat. 3048).
(5) Clean Water Act, including Section 404(b)(1).
(6) American Indian Religious Freedom Act.
(7) Fish and Wildlife Coordination Act.
(8) Comprehensive Environmental Response, Compensation, and Liability Act.
(9) Resource Conservation and Recovery Act.
(10) Pollution Prevention Act.
(11) The Sikes Act, Public Law 86-797, 74 Stat. 1052.
(12) Federal Compliance with Right-to-Know Laws and Pollution Prevention Requirements (Executive Order 12856, 3 CFR, 1993 Comp., p. 616).
(13) Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (Executive Order 12898, 3 CFR, 1994 Comp., p. 859).
(14) Indian Sacred Sites (Executive Order 13007, 3 CFR, 1996 Comp., p. 196).
(15) Protection of Children From Environmental Health Risks and Safety Risks (Executive Order 13045, 3 CFR, 1997 Comp., p. 198).
(16) Federal Support of Community Efforts Along American Heritage Rivers (Executive Order 13061, 3 CFR, 1997 Comp., p. 221).
(17) Floodplain Management (Executive Order 11988, 3 CFR, 1977 Comp., p. 117).
(18) Protection of Wetlands (Executive Order 11990, 3 CFR, 1977 Comp., p. 121).
(19) Environmental Effects Abroad of Major Federal Actions (Executive Order 12114, 3 CFR, 1979 Comp., p. 356).
(20) Invasive Species (Executive Order 13112, 3 CFR, 1999 Comp., p. 159).
(21) AR 200-3, Natural Resources—Land, Forest, and Wildlife Management.
(22) Environmental analysis and documentation required by various state laws.
(23) Any cost-benefit analyses prepared in relation to a proposed action (40 CFR 1502.23).
(24) Any permitting and licensing procedures required by federal and state law.
(25) Any installation and Army master planning functions and plans.
(26) Any installation management plans, particularly those that deal directly with the environment.
(27) Any stationing and installation planning, force development planning, and materiel acquisition planning.
(28) Environmental Noise Management Program.
(29) Hazardous waste management plans.
(30) Integrated Cultural Resource Management Plan as required by AR 200-4 and DODD 4700.4, Natural Resources Management Program.
(31) Asbestos Management Plans.
(32) Integrated Natural Resource Management Plans, AR 200-3, Natural Resources—Land, Forest, and Wildlife Management, and DODD 4700.4, Natural Resources Management Program.
(33) Environmental Baseline Surveys.
(34) Programmatic Environment, Safety, and Health Evaluation (PESHE) as required by DOD 5000.2-R and DA Pamphlet 70-3, Army Acquisition Procedures, supporting AR 70-1, Acquisition Policy.
(35) The DOD MOU to Foster the Ecosystem Approach signed by CEQ, and DOD, on 15 December 1995; establishing the importance of “non-listed,” “non-game,” and “non-protected” species.
(36) Other requirements (such as health risk assessments), when efficiencies in the overall Army environmental program will result.
(f) Integration into Army acquisition. The Army acquisition community will integrate environmental analyses into decision-making, as required in this part ensuring that environmental considerations become an integral part of total program planning and budgeting, PEOs, and Program, Product, and Project Managers integrate the NEPA process early, and acquisition planning and decisions reflect national and Army environmental values and considerations. By integrating pollution prevention and other aspects of any environmental analysis early into the materiel acquisition process, the PEO and PM facilitate the identification of environmental cost drivers at a time when they can be most effectively controlled. NEPA program coordinators should refer to DA Pamphlet 70-3, Army Acquisition Procedures, and the Defense Acquisition Deskbook (DAD) for current specific implementation guidance, procedures, and POCs.
(g) Relations with local, state, regional, and tribal agencies. (1) Army installation, agency, or activity environmental officers or planners should establish a continuing relationship with other agencies, including the staffs of adjacent local, state, regional, and tribal governments and agencies. This relationship will promote cooperation and resolution of mutual land use and environment-related problems, and promote the concept of regional ecosystem management as well as general cooperative problem solving. Many of these “partners” will have specialized expertise and access to environmental baseline data, which will assist the Army in day-to-day planning as well as NEPA-related issues. MOUs are encouraged to identify areas of mutual interest, establish POCs, identify lines of communication between agencies, and specify procedures to follow in conflict resolution. Additional coordination is available from state and area-wide planning and development agencies. Through this process, the proponent may gain insights on other agencies’ approaches to EAs, surveys, and studies applicable to the current proposal. These other agencies would also be able to assist in identifying possible participants in scoping procedures for projects requiring an EIS.
(2) In some cases, local, state, regional, or tribal governments or agencies will have sufficient jurisdiction by law or special expertise with respect to reasonable alternatives or significant environmental, social, or economic impacts associated with a proposed action. When appropriate, proponents of an action should determine whether these entities have an interest in becoming a cooperating agency (§ 651.45 (b) and 40 CFR 1501.6). If cooperating agency status is established, a memorandum of agreement is required to document specific expectations, roles, and responsibilities, including analyses to be performed, time schedules, availability of pre-decisional information, and other issues. Cooperating agencies may use their own funds, and the designation of cooperating agency status neither enlarges nor diminishes the decision-making status of any federal or non-federal entities (see CEQ Memorandum for Heads of Federal Agencies entitled “Designation of Non-Federal Agencies to be Cooperating Agencies in Implementing the Procedural Requirements of the National Environmental Policy Act” dated 28 July 1999, available from the President’s Council on Environmental Quality (CEQ), Executive Office of the President of the U.S.). In determining sufficient jurisdiction or expertise, CEQ regulations can be used as guidance.
(h) The Army as a cooperating agency. Often, other agencies take actions that can negatively impact the Army mission. In such cases, the Army may have some special or unique expertise or jurisdiction.
(1) The Army may be a cooperating agency (40 CFR 1501.6) in order to:
(i) Provide information or technical expertise to a lead agency.
(ii) Approve portions of a proposed action.
(iii) Ensure the Army has an opportunity to be involved in an action of another federal agency that will affect the Army.
(iv) Provide review and approval of the portions of EISs and RODs that affect the Army.
(2) Adequacy of an EIS is primarily the responsibility of the lead agency. However, as a cooperating agency with approval authority over portions of a proposal, the Army may adopt an EIS if review concludes the EIS adequately satisfies the Army’s comments and suggestions.
(3) If the Army is a major approval authority for the proposed action, the appropriate Army official may sign the ROD prepared by the lead agency, or prepare a separate, more focused ROD. If the Army’s approval authority is only a minor aspect of the overall proposal, such as issuing a temporary use permit, the Army need not sign the lead agency’s ROD or prepare a separate ROD.
(4) The magnitude of the Army’s involvement in the proposal will determine the appropriate level and scope of Army review of NEPA documents. If the Army is a major approval authority or may be severely impacted by the proposal or an alternative, the Army should undertake the same level of review as if it were the lead agency. If the involvement is limited, the review may be substantially less. The lead agency is responsible for overall supervision of the EIS, and the Army will attempt to meet all reasonable time frames imposed by the lead agency.
(5) If an installation (or other Army organization) should become aware of an EIS being prepared by another federal agency in which they may be involved within the discussion of the document, they should notify ASA(I&E) through the chain of command. ASA(I&E) will advise regarding appropriate Army participation as a cooperating agency, which may simply involve local coordination.
§ 651.15 Mitigation and monitoring.
(a) Throughout the environmental analysis process, the proponent will consider mitigation measures to avoid or minimize environmental harm. Mitigation measures include:
(1) Avoiding the impact altogether, by eliminating the action or parts of the action.
(2) Minimizing impacts by limiting the degree or magnitude of the action and its implementation.
(3) Rectifying the impact; by repairing, rehabilitating, or restoring the adverse effect on the environment.
(4) Reducing or eliminating the impact over time, by preservation and maintenance operations during the life of the action.
(5) Compensating for the impact, by replacing or providing substitute resources or environments. (Examples and further clarification are presented in appendix C of this part.)
(b) When the analysis proceeds to an EA or EIS, mitigation measures will be clearly assessed and those selected for implementation will be identified in the FNSI or the ROD. The proponent must implement those identified mitigations, because they are commitments made as part of the Army decision. The proponent is responsible for responding to inquiries from the public or other agencies regarding the status of mitigation measures adopted in the NEPA process. The mitigation shall become a line item in the proponent’s budget or other funding document, if appropriate, or included in the legal document implementing the action (for example, contracts, leases, or grants). Only those practical mitigation measures that can reasonably be accomplished as part of a proposed alternative will be identified. Any mitigation measures selected by the proponent will be clearly outlined in the NEPA decision document, will be budgeted and funded (or funding arranged) by the proponent, and will be identified, with the appropriate fund code, in the EPR (AR 200-1). Mitigations will be monitored through environmental compliance reporting, such as the ISR (AR 200-1) or the Environmental Quality Report. Mitigation measures are identified and funded in accordance with applicable laws, regulations, or other media area requirements.
(c) Based upon the analysis and selection of mitigation measures that reduce environmental impacts until they are no longer significant, an EA may result in a FNSI. If a proponent uses mitigation measures in such a manner, the FNSI must identify these mitigating measures, and they become legally binding and must be accomplished as the project is implemented. If any of these identified mitigation measures do not occur, so that significant adverse environmental effects could reasonably expected to result, the proponent must publish an NOI and prepare an EIS.
(d) Potential mitigation measures that appear practical, and are unobtainable within expected Army resources, or that some other agency (including non-Army agencies) should perform, will be identified in the NEPA analysis to the maximum extent practicable. A number of factors determine what is practical, including military mission, manpower restrictions, cost, institutional barriers, technical feasibility, and public acceptance. Practicality does not necessarily ensure resolution of conflicts among these items, rather it is the degree of conflict that determines practicality. Although mission conflicts are inevitable, they are not necessarily insurmountable; and the proponent should be cautious about declaring all mitigations impractical and carefully consider any manpower requirements. The key point concerning both the manpower and cost constraints is that, unless money is actually budgeted and manpower assigned, the mitigation does not exist. Coordination by the proponent early in the process will be required to allow ample time to get the mitigation activities into the budget cycle. The project cannot be undertaken until all required mitigation efforts are fully resourced, or until the lack of funding and resultant effects, are fully addressed in the NEPA analysis.
(e) Mitigation measures that were considered but rejected, including those that can be accomplished by other agencies, must be discussed, along with the reason for the rejection, within the EA or EIS. If they occur in an EA, their rejection may lead to an EIS, if the resultant unmitigated impacts are significant.
(f) Proponents may request assistance with mitigation from cooperating non-Army agencies, when appropriate. Such assistance is appropriate when the requested agency was a cooperating agency during preparation of a NEPA document, or has the technology, expertise, time, funds, or familiarity with the project or the local ecology necessary to implement the mitigation measure more effectively than the lead agency.
(g) The proponent agency or other appropriate cooperating agency will implement mitigations and other conditions established in the EA or EIS, or commitments made in the FNSI or ROD. Legal documents implementing the action (such as contracts, permits, grants) will specify mitigation measures to be performed. Penalties against a contractor for noncompliance may also be specified as appropriate. Specification of penalties should be fully coordinated with the appropriate legal advisor.
(h) A monitoring and enforcement program for any mitigation will be adopted and summarized in the NEPA documentation (see appendix C of this part for guidelines on implementing such a program). Whether adoption of a monitoring and enforcement program is applicable (40 CFR 1505.2(c)) and whether the specific adopted action requires monitoring (40 CFR 1505.3) may depend on the following:
(1) A change in environmental conditions or project activities assumed in the EIS (such that original predictions of the extent of adverse environmental impacts may be too limited);
(2) The outcome of the mitigation measure is uncertain (for example, new technology);
(3) Major environmental controversy remains associated with the selected alternative; or
(4) Failure of a mitigation measure, or other unforeseen circumstances, could result in a failure to meet achievement of requirements (such as adverse effects on federal or state listed endangered or threatened species, important historic or archaeological sites that are either listed or eligible for nomination to the National Register of Historic Places, wilderness areas, wild and scenic rivers, or other public or private protected resources). Proponents must follow local installation environmental office procedures to coordinate with appropriate federal, tribal, state, or local agencies responsible for a particular program to determine what would constitute “adverse effects.”
(i) Monitoring is an integral part of any mitigation system.
(1) Enforcement monitoring ensures that mitigation is being performed as described in the NEPA documentation, mitigation requirements and penalty clauses are written into any contracts, and required provisions are enforced. The development of an enforcement monitoring program is governed by who will actually perform the mitigation: a contractor, a cooperating agency, or an in-house (Army) lead agency. Detailed guidance is contained in Appendix C of this part. The proponent is ultimately responsible for performing any mitigation activities. All monitoring results will be sent to the installation Environmental Office; in the case of the Army Reserves, the Regional Support Commands (RSCs); and, in the case of the National Guard, the NGB.
(2) Effectiveness monitoring measures the success of the mitigation effort and/or the environmental effect. While quantitative measurements are desired, qualitative measures may be required. The objective is to obtain enough information to judge the effect of the mitigation. In establishing the monitoring system, the responsible agent should coordinate the monitoring with the Environmental Office. Specific steps and guidelines are included in appendix C of this part.
(j) The monitoring program, in most cases, should be established well before the action begins, particularly when biological variables are being measured and investigated. At this stage, any necessary contracts, funding, and manpower assignments must be initiated. Technical results from the analysis should be summarized by the proponent and coordinated with the installation Environmental Office. Subsequent coordination with the concerned public and other agencies, as arranged through development of the mitigation plan, will be handled through the Environmental Office.
(k) If the mitigations are effective, the monitoring should be continued as long as the mitigations are needed to address impacts of the initial action. If the mitigations are ineffective, the proponent and the responsible group should re-examine the mitigation measures, in consultation with the Environmental Office and appropriate experts, and resolve the inadequacies of the mitigation or monitoring. Professionals with specialized and recognized expertise in the topic or issue, as well as concerned citizens, are essential to the credibility of this review. If a different program is required, then a new system must be established. If ineffective mitigations are identified which were required to reduce impact below significance levels (§ 651.35 (g)), the proponent may be required to publish an NOI and prepare an EIS (paragraph (c) of this section).
(l) Environmental monitoring report. An environmental monitoring report is prepared at one or more points after program or action execution. Its purpose is to determine the accuracy of impact predictions. It can serve as the basis for adjustments in mitigation programs and to adjust impact predictions in future projects. Further guidance and clarification are included in appendix C of this part.
§ 651.16 Cumulative impacts.
(a) NEPA analyses must assess cumulative effects, which are the impact on the environment resulting from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions. Actions by federal, non-federal agencies, and private parties must be considered (40 CFR 1508.7).
(b) The scoping process should be used to identify possible cumulative impacts. The proponent should also contact appropriate off-post officials, such as tribal, state, county, or local planning officials, to identify other actions that should be considered in the cumulative effects analysis.
(c) A suggested cumulative effects approach is as follows:
(1) Identify the boundary of each resource category. Boundaries may be geographic or temporal. For example, the Air Quality Control Region (AQCR) might be the appropriate boundary for the air quality analysis, while a watershed could be the boundary for the water quality analysis. Depending upon the circumstances, these boundaries could be different and could extend off the installation.
(2) Describe the threshold level of significance for that resource category. For example, a violation of air quality standards within the AQCR would be an appropriate threshold level.
(3) Determine the environmental consequence of the action. The analysis should identify the cause and effect relationships, determine the magnitude and significance of cumulative effects, and identify possible mitigation measures.
§ 651.17 Environmental justice.
Executive Order 12898 (Federal Actions to Address Environmental Justice in Minority and Low-Income Populations, 11 February 1994, 3 CFR, 1994 Comp., p. 859) requires the proponent to determine whether the proposed action will have a disproportionate impact on minority or low-income communities, both off-post and on-post.
Subpart C—Records and Documents
§ 651.18 Introduction.
NEPA documentation will be prepared and published double-sided on recycled paper. The recycled paper symbol should be presented on the inside of document covers.
§ 651.19 Record of environmental consideration.
A Record of Environmental Consideration (REC) is a signed statement submitted with project documentation that briefly documents that an Army action has received environmental review. RECs are prepared for CXs that require them, and for actions covered by existing or previous NEPA documentation. A REC briefly describes the proposed action and timeframe, identifies the proponent and approving official(s), and clearly shows how an action qualifies for a CX, or is already covered in an existing EA or EIS. When used to support a CX, the REC must address the use of screening criteria to ensure that no extraordinary circumstances or situations exist. A REC has no prescribed format, as long as the above information is included. To reduce paperwork, a REC can reference such documents as real estate Environmental Baseline Studies (EBSs) and other documents, as long as they are readily available for review. While a REC may document compliance with the requirements of NEPA, it does not fulfill the requirements of other environmental laws and regulations. Figure 3 illustrates a possible format for the REC as follows:
§ 651.20 Environmental assessment.
An EA is intended to assist agency planning and decision-making. While required to assess environmental impacts and evaluate their significance, it is routinely used as a planning document to evaluate environmental impacts, develop alternatives and mitigation measures, and allow for agency and public participation. It:
(a) Briefly provides the decision maker with sufficient evidence and analysis for determining whether a FNSI or an EIS should be prepared.
(b) Assures compliance with NEPA, if an EIS is not required and a CX is inappropriate.
(c) Facilitates preparation of an EIS, if required.
(d) Includes brief discussions of the need for the proposed action, alternatives to the proposed action (NEPA, section 102(2)(e)), environmental impacts, and a listing of persons and agencies consulted (see subpart E of this part for requirements).
(e) The EA provides the proponent, the public, and the decision maker with sufficient evidence and analysis for determining whether environmental impacts of a proposed action are potentially significant. An EA is substantially less rigorous and costly than an EIS, but requires sufficient detail to identify and ascertain the significance of expected impacts associated with the proposed action and its alternatives. The EA can often provide the required “hard look” at the potential environmental effects of an action, program, or policy within 1 to 25 pages, depending upon the nature of the action and project-specific conditions.
§ 651.21 Finding of no significant impact.
A Finding of No Significant Impact (FNSI) is a document that briefly states why an action (not otherwise excluded) will not significantly affect the environment, and, therefore, that an EIS will not be prepared. The FNSI includes a summary of the EA and notes any related NEPA documentation. If the EA is attached, the FNSI need not repeat any of the EA discussion, but may incorporate it by reference. The draft FNSI will be made available to the public for review and comment for 30 days prior to the initiation of an action, except in special circumstances when the public comment period is reduced to 15 days, as discussed in § 651.14(b)(2)(iii). Following the comment period and review of public comments, the proponent forwards a decision package that includes a comparison of environmental impacts associated with reasonable alternatives, summary of public concerns, revised FNSI (if necessary), and recommendations for the decision maker. The decision maker reviews the package, makes a decision, and signs the FNSI or the NOI (if the FNSI no longer applies). If a FNSI is signed by the decision maker, the action can proceed immediately.
§ 651.22 Notice of intent.
A Notice of Intent (NOI) is a public notice that an EIS will be prepared. The NOI will briefly:
(a) Describe the proposed and alternative actions.
(b) Describe the proposed scoping process, including when and where any public meetings will be held.
(c) State the name and address of the POC who can answer questions on the proposed action and the EIS (see § 651.45(a) and § 651.49 for application).
§ 651.23 Environmental impact statement.
An Environmental Impact statement (EIS) is a detailed written statement required by NEPA for major federal actions significantly affecting the quality of the human environment (42 U.S.C. 4321). A more complete discussion of EIS requirements is presented in subpart F of this part.
§ 651.24 Supplemental EAs and supplemental EISs.
As detailed in § 651.5(g) and in 40 CFR 1502.9(c), proposed actions may require review of existing NEPA documentation. If conditions warrant a supplemental document, these documents are processed in the same way as an original EA or EIS. No new scoping is required for a supplemental EIS filed within one year of the filing of the original ROD. If the review indicates no need for a supplement, that determination will be documented in a REC.
§ 651.25 Notice of availability.
The Notice of Availability (NOA) is published by the Army to inform the public and others that a NEPA document is available for review. A NOA will be published in the FR, coordinating with EPA for draft and final EISs (including supplements), for RODs, and for EAs and FNSIs which are of national concern, are unprecedented, or normally require an EIS. EAs and FNSIs of local concern will be made available in accordance with § 651.36. This agency NOA should not be confused with the EPA’s notice of availability of weekly receipts (NWR)
§ 651.26 Record of decision.
The Record of Decision (ROD) is a concise public document summarizing the findings in the EIS and the basis for the decision. A public ROD is required under the provisions of 40 CFR 1505.2 after completion of an EIS (see § 651.45 (j) for application). The ROD must identify mitigations which were important in supporting decisions, such as those mitigations which reduce otherwise significant impacts, and ensure that appropriate monitoring procedures are implemented (see § 651.15 for application).
§ 651.27 Programmatic NEPA analyses.
These analyses, in the form of an EA or EIS, are useful to examine impacts of actions that are similar in nature or broad in scope. These documents allow the “tiering” of future NEPA documentation in cases where future decisions or unknown future conditions preclude complete NEPA analyses in one step. These documents are discussed further in § 651.14(c).
Subpart D—Categorical Exclusions
§ 651.28 Introduction.
Categorical Exclusions (CXs) are categories of actions with no individual or cumulative effect on the human or natural environment, and for which neither an EA nor an EIS is required. The use of a CX is intended to reduce paperwork and eliminate delays in the initiation and completion of proposed actions that have no significant impact.
§ 651.29 Determining when to use a CX (screening criteria).
(a) To use a CX, the proponent must satisfy the following three screening conditions:
(1) The action has not been segmented. Determine that the action has not been segmented to meet the definition of a CX. Segmentation can occur when an action is broken down into small parts in order to avoid the appearance of significance of the total action. An action can be too narrowly defined, minimizing potential impacts in an effort to avoid a higher level of NEPA documentation. The scope of an action must include the consideration of connected, cumulative, and similar actions (see § 651.51(a)).
(2) No exceptional circumstances exist. Determine if the action involves extraordinary circumstances that would preclude the use of a CX (see paragraphs (b) (1) through (14) of this section).
(3) One (or more) CX encompasses the proposed action. Identify a CX (or multiple CXs) that potentially encompasses the proposed action (Appendix B of this part). If no CX is appropriate, and the project is not exempted by statute or emergency provisions, an EA or an EIS must be prepared, before a proposed action may proceed.
(b) Extraordinary circumstances that preclude the use of a CX are:
(1) Reasonable likelihood of significant effects on public health, safety, or the environment.
(2) Reasonable likelihood of significant environmental effects (direct, indirect, and cumulative).
(3) Imposition of uncertain or unique environmental risks.
(4) Greater scope or size than is normal for this category of action.
(5) Reportable releases of hazardous or toxic substances as specified in 40 CFR part 302, Designation, Reportable Quantities, and Notification.
(6) Releases of petroleum, oils, and lubricants (POL) except from a properly functioning engine or vehicle, application of pesticides and herbicides, or where the proposed action results in the requirement to develop or amend a Spill Prevention, Control, or Countermeasures Plan.
(7) When a review of an action that might otherwise qualify for a Record of Non-applicability (RONA) reveals that air emissions exceed de minimis levels or otherwise that a formal Clean Air Act conformity determination is required.
(8) Reasonable likelihood of violating any federal, state, or local law or requirements imposed for the protection of the environment.
(9) Unresolved effect on environmentally sensitive resources, as defined in paragraph (c) of this section.
(10) Involving effects on the quality of the environment that are likely to be highly controversial.
(11) Involving effects on the environment that are highly uncertain, involve unique or unknown risks, or are scientifically controversial.
(12) Establishes a precedent (or makes decisions in principle) for future or subsequent actions that are reasonably likely to have a future significant effect.
(13) Potential for degradation of already existing poor environmental conditions. Also, initiation of a degrading influence, activity, or effect in areas not already significantly modified from their natural condition.
(14) Introduction/employment of unproven technology.
(c) If a proposed action would adversely affect “environmentally sensitive” resources, unless the impact has been resolved through another environmental process (e.g., CZMA, NHPA, CWA, etc.) a CX cannot be used (see paragraph (e) of this section). Environmentally sensitive resources include:
(1) Proposed federally listed, threatened, or endangered species or their designated critical habitats.
(2) Properties listed or eligible for listing on the National Register of Historic Places (AR 200-4).
(3) Areas having special designation or recognition such as prime or unique agricultural lands; coastal zones; designated wilderness or wilderness study areas; wild and scenic rivers; National Historic Landmarks (designated by the Secretary of the Interior); 100-year floodplains; wetlands; sole source aquifers (potential sources of drinking water); National Wildlife Refuges; National Parks; areas of critical environmental concern; or other areas of high environmental sensitivity.
(4) Cultural Resources as defined in AR 200-4.
(d) The use of a CX does not relieve the proponent from compliance with other statutes, such as RCRA, or consultations under the Endangered Species Act or the NHPA. Such consultations may be required to determine the applicability of the CX screening criteria.
(e) For those CXs that require a REC, a brief (one to two sentence) presentation of conclusions reached during screening is required in the REC. This determination can be made using current information and expertise, if available and adequate, or can be derived through conversation, as long as the basis for the determination is included in the REC. Copies of appropriate interagency correspondence can be attached to the REC. Example conclusions regarding screening criteria are as follows:
(1) “USFWS concurred in informal coordination that E/T species will not be affected”.
(2) “Corps of Engineers determined action is covered by nationwide general permit”.
(3) “SHPO concurred with action”.
(4) “State Department of Natural Resources concurred that no effect to state sensitive species is expected”.
§ 651.30 CX actions.
Types of actions that normally qualify for CX are listed in Appendix B of this part.
§ 651.31 Modification of the CX list.
The Army list of CXs is subject to continual review and modification, in consultation with CEQ. Additional modifications can be implemented through submission, through channels, to ASA (I&E) for consideration and consultation. Subordinate Army headquarters may not modify the CX list through supplements to this part. Upon approval, proposed modifications to the list of CXs will be published in the
Subpart E—Environmental Assessment
§ 651.32 Introduction.
(a) An EA is intended to facilitate agency planning and informed decision-making, helping proponents and other decision makers understand the potential extent of environmental impacts of a proposed action and its alternatives, and whether those impacts (or cumulative impacts) are significant. The EA can aid in Army compliance with NEPA when no EIS is necessary. An EA will be prepared if a proposed action:
(1) Is not an emergency (§ 651.11(b)).
(2) Is not exempt from (or an exception to) NEPA (§ 651.11(a)).
(3) Does not qualify as a CX (§ 651.11(c)).
(4) Is not adequately covered by existing NEPA analysis and documentation (§ 651.19).
(5) Does not normally require an EIS (§ 651.42).
(b) An EA can be 1 to 25 pages in length and be adequate to meet the requirements of this part, depending upon site-specific circumstances and conditions. Any analysis that exceeds 25 pages in length should be evaluated to consider whether the action and its effects are significant and thus warrant an EIS.
§ 651.33 Actions normally requiring an EA.
The following Army actions normally require an EA, unless they qualify for the use of a CX:
(a) Special field training exercises or test activities in excess of five acres on Army land of a nature or magnitude not within the annual installation training cycle or installation master plan.
(b) Military construction that exceeds five contiguous acres, including contracts for off-post construction.
(c) Changes to established installation land use that generate impacts on the environment.
(d) Alteration projects affecting historically significant structures, archaeological sites, or places listed or eligible for listing on the National Register of Historic Places.
(e) Actions that could cause significant increase in soil erosion, or affect prime or unique farmland (off Army property), wetlands, floodplains, coastal zones, wilderness areas, aquifers or other water supplies, prime or unique wildlife habitat, or wild and scenic rivers.
(f) Actions proposed during the life cycle of a weapon system if the action produces a new hazardous or toxic material or results in a new hazardous or toxic waste, and the action is not adequately addressed by existing NEPA documentation. Examples of actions normally requiring an EA during the life cycle include, but are not limited to, testing, production, fielding, and training involving natural resources, and disposal/demilitarization. System design, development, and production actions may require an EA, if such decisions establish precedent (or make decisions, in principle) for future actions with potential environmental effects. Such actions should be carefully considered in cooperation with the development or production contractor or government agency, and NEPA analysis may be required.
(g) Development and approval of installation master plans.
(h) Development and implementation of Integrated Natural Resources Management Plans (INRMPs) (land, forest, fish, and wildlife) and Integrated Cultural Resources Management Plans (ICRMPs).
(i) Actions that take place in, or adversely affect, important wildlife habitats, including wildlife refuges.
(j) Field activities on land not controlled by the military, except those that do not alter land use to substantially change the environment (for example, patrolling activities in a forest). This includes firing of weapons, missiles, or lasers over navigable waters of the United States, or extending 45 meters or more above ground level into the national airspace. It also includes joint air attack training that may require participating aircraft to exceed 250 knots at altitudes below 3000 feet above ground level, and helicopters, at any speed, below 500 feet above ground level.
(k) An action with substantial adverse local or regional effects on energy or water availability. Such impacts can only be adequately identified with input from local agencies and/or citizens.
(l) Production of hazardous or toxic materials.
(m) Changes to established airspace use that generate impacts on the environment or socioeconomic systems, or create a hazard to non-participants.
(n) An installation pesticide, fungicide, herbicide, insecticide, and rodenticide-use program/plan.
(o) Acquisition, construction, or alteration of (or space for) a laboratory that will use hazardous chemicals, drugs, or biological or radioactive materials.
(p) An activity that affects a federally listed threatened or endangered plant or animal species, a federal candidate species, a species proposed for federal listing, or critical habitat.
(q) Substantial proposed changes in Army-wide doctrine or policy that potentially have an adverse effect on the environment (40 CFR 1508.18 (b)(1)).
(r) An action that may threaten a violation of federal, state, or local law or requirements imposed for the protection of the environment.
(s) The construction and operation of major new fixed facilities or the substantial commitment of installation natural resources supporting new materiel at the installation.
§ 651.34 EA components.
EAs should be 1 to 25 pages in length, and will include:
(a) Signature (Review and Approval) page.
(b) Purpose and need for the action.
(c) Description of the proposed action.
(d) Alternatives considered. The alternatives considered, including appropriate consideration of the “No Action” alternative, the “Proposed Action,” and all other appropriate and reasonable alternatives that can be realistically accomplished. In the discussion of alternatives, any criteria for screening alternatives from full consideration should be presented, and the final disposition of any alternatives that were initially identified should be discussed.
(e) Affected environment. This section must address the general conditions and nature of the affected environment and establish the environmental setting against which environmental effects are evaluated. This should include any relevant general baseline conditions focusing on specific aspects of the environment that may be impacted by the alternatives. EBSs and similar real estate or construction environmental baseline documents, or their equivalent, may be incorporated and/or referenced.
(f) Environmental consequences. Environmental consequences of the proposed action and the alternatives. The document must state and assess the effects (direct, indirect, and cumulative) of the proposed action and its alternatives on the environment, and what practical mitigation is available to minimize these impacts. Discussion and comparison of impacts should provide sufficient analysis to reach a conclusion regarding the significance of the impacts, and is not merely a quantification of facts.
(g) Conclusions regarding the impacts of the proposed action. A clear statement will be provided regarding whether or not the described impacts are significant. If the EA identifies potential significant impacts associated with the proposed action, the conclusion should clearly state that an EIS will be prepared before the proposed action is implemented. If no significant impacts are associated with the project, the conclusion should state that a FNSI will be prepared. Any mitigations that reduce adverse impacts must be clearly presented. If the EA depends upon mitigations to support a resultant FNSI, these mitigations must be clearly identified as a subsection of the Conclusions.
(h) Listing of preparers, and agencies and persons consulted. Copies of correspondence to and from agencies and persons contacted during the preparation of the EA will be available in the administrative record and may be included in the EA as appendices. In addition, the list of analysts/preparers will be presented.
(i) References. These provide bibliographic information for cited sources. Draft documents should not be cited as references without the expressed permission of the proponent of the draft material.
§ 651.35 Decision process.
(a) An EA results in either a FNSI or an NOI to prepare an EIS. Initiation of an NOI to prepare an EIS should occur at any time in the decision process when it is determined that significant effects may occur as a result of the proposed action. The proponent should notify the decision maker of any such determination as soon as possible.
(b) The FNSI is a document (40 CFR 1508.13) that briefly states why an action (not otherwise excluded) will not significantly affect the environment, and, therefore, an EIS will not be prepared. It summarizes the EA, noting any NEPA documents that are related to, but are not part of, the scope of the EA under consideration. If the EA is attached, the FNSI may incorporate the EA’s discussion by reference. The draft FNSI will be made available to the public for review and comment for 30 days prior to the initiation of an action (see § 651.14(b)(2)(iii) for an exception). Following the comment period, the decision maker signs the FNSI, and the action can proceed. It is important that the final FNSI reflect the decision made, the response to public comments, and the basis for the final decision.
(c) The FNSI must contain the following:
(1) The name of the action.
(2) A brief description of the action (including any alternatives considered).
(3) A short discussion of the anticipated environmental effects.
(4) The facts and conclusions that have led to the FNSI.
(5) A deadline and POC for further information or receipt of public comments (see § 651.47).
(d) The FNSI is normally no more than two typewritten pages in length.
(e) The draft FNSI will be made available to the public prior to initiation of the proposed action, unless it is a classified action (see § 651.13 for security exclusions). Draft FNSIs that have national interest should be submitted with the proposed press release, along with a Questions and Answers (Q&A) package, through command channels to ASA(I&E) for approval and subsequent publication in the FR. Draft FNSIs having national interest will be coordinated with OCPA. Local publication of the FNSI will not precede the FR publication. The text of the publication should be identical to the FR publication.
(f) For actions of only regional or local interest, the draft FNSI will be publicized in accordance with § 651.14(b)(2). Distribution of the draft FNSI should include any agencies, organizations, and individuals that have expressed interest in the project, those who may be affected, and others deemed appropriate.
(g) Some FNSIs will require the implementation of mitigation measures to reduce potential impacts below significance levels, thereby eliminating the requirement for an EIS. In such instances, the following steps must be taken:
(1) The EA must be made readily available to the public for review through traditional publication and distribution, and through the World Wide Web (WWW) or similar technology. This distribution must be planned to ensure that all appropriate entities and stakeholders have easy access to the material. Ensuring this availability may necessitate the distribution of printed information at locations that are readily accessible and frequented by those who are affected or interested.
(2) Any identified mitigations must be tracked to ensure implementation, similar to those specified in an EIS and ROD.
(3) The EA analysis procedures must be sufficiently rigorous to identify and analyze impacts that are individually or cumulatively significant.
(h) The proponent is responsible for funding the preparation, staffing, and distribution of the draft FNSI and EA package, and the incorporation of public/agency review and comment. The proponent shall also ensure appropriate public and agency meetings, which may be required to facilitate the NEPA process in completing the EA. The decision maker will approve and sign the EA and FNSI documents. Proponents will ensure that the EA and FNSI, to include drafts, are provided in electronic format to allow for maximum information flow throughout the process.
(i) The proponent should ensure that the decision maker is continuously informed of key findings during the EA process, particularly with respect to potential impacts and controversy related to the proposed action.
§ 651.36 Public involvement.
(a) The involvement of other agencies, organizations, and individuals in the development of EAs and EISs enhances collaborative issue identification and problem solving. Such involvement demonstrates that the Army is committed to open decision-making and builds the necessary community trust that sustains the Army in the long term. Public involvement is mandatory for EISs (see § 651.47 and Appendix D of this part for information on public involvement requirements).
(b) Environmental agencies and the public will be involved to the extent practicable in the preparation of an EA. If the proponent elects to involve the public in the development of an EA, § 651.47 and Appendix D of this part may be used as guidance. When considering the extent practicable of public interaction (40 CFR 1501.4(b)), factors to be weighed include:
(1) Magnitude of the proposed project/action.
(2) Extent of anticipated public interest, based on experience with similar proposals.
(3) Urgency of the proposal.
(4) National security classification.
(5) The presence of minority or economically-disadvantaged populations.
(c) Public involvement must begin early in the proposal development stage, and during preparation of an EA. The direct involvement of agencies with jurisdiction or special expertise is an integral part of impact analysis, and provides information and conclusions for incorporation into EAs. Unclassified documents incorporated by reference into the EA or FNSI are public documents.
(d) Copies of public notices, “scoping” letters, EAs, draft FNSIs, FNSIs, and other documents routinely sent to the public will be sent directly to appropriate congressional, state, and district offices.
(e) To ensure early incorporation of the public into the process, a plan to include all interested or affected parties should be developed at the beginning of the analysis and documentation process. Open communication with the public is encouraged as a matter of Army policy, and the degree of public involvement varies. Appropriate public notice of the availability of the completed EA/draft FNSI shall be made (see § 651.35) (see also AR 360-5 (Public Information)). The plan will include the following:
(1) Dissemination of information to local and installation communities.
(2) Invitation and incorporation of public comments on Army actions.
(3) Consultation with appropriate persons and agencies.
(f) Further guidance on public participation requirements (to potentially be used for EAs and EISs, depending on circumstances) is presented in Appendix D of this part.
§ 651.37 Public availability.
Documents incorporated into the EA or FNSI by reference will be available for public review. Where possible, use of public libraries and a list of POCs for supportive documents is encouraged. A depository should be chosen which is open beyond normal business hours. To the extent possible, the WWW should also be used to increase public availability of documents.
§ 651.38 Existing environmental assessments.
EAs are dynamic documents. To ensure that the described setting, actions, and effects remain substantially accurate, the proponent or installation Environmental Officer is encouraged to periodically review existing documentation that is still relevant or supporting current action. If an action is not yet completed, substantial changes in the proposed action may require supplementation, as specified in § 651.5 (g).
§ 651.39 Significance.
(a) If the proposed action may or will result in significant impacts to the environment, an EIS is prepared to provide more comprehensive analyses and conclusions about the impacts. Significant impacts of socioeconomic consequence alone do not merit an EIS.
(b) Significance of impacts is determined by examining both the context and intensity of the proposed action (40 CFR 1508.27). The analysis should establish, by resource category, the threshold at which significance is reached. For example, an action that would violate existing pollution standards; cause water, air, noise, soil, or underground pollution; impair visibility for substantial periods; or cause irreparable harm to animal or plant life could be determined significant. Significant beneficial effects also occur and must be addressed, if applicable.
(c) The proponent should use appropriate methods to identify and ascertain the “significance” of impacts. The use of simple analytical tools, which are subject to independent peer review, fully documented, and available to the public, is encouraged.
Subpart F—Environmental Impact Statement
§ 651.40 Introduction.
(a) An EIS is a public document designed to ensure that NEPA policies and goals are incorporated early into the programs and actions of federal agencies. An EIS is intended to provide a full, open, and balanced discussion of significant environmental impacts that may result from a proposed action and alternatives, allowing public review and comment on the proposal and providing a basis for informed decision-making.
(b) The NEPA process should support sound, informed, and timely (early) decision-making; not produce encyclopedic documents. CEQ guidance (40 CFR 1502.7) should be followed, establishing a page limit of 150 pages (300 pages for complex projects). To the extent practicable, EISs will “incorporate by reference” any material that is reasonably available for inspection by potentially interested persons within the time allowed for comment. The incorporated material shall be cited in the EIS and its content will be briefly described. Material based on proprietary data, that is itself not available for review and comment, shall not be incorporated by reference.
§ 651.41 Conditions requiring an EIS.
An EIS is required when a proponent, preparer, or approving authority determines that the proposed action has the potential to:
(a) Significantly affect environmental quality, or public health or safety.
(b) Significantly affect historic (listed or eligible for listing in the National Register of Historic Places, maintained by the National Park Service, Department of Interior), or cultural, archaeological, or scientific resources, public parks and recreation areas, wildlife refuge or wilderness areas, wild and scenic rivers, or aquifers.
(c) Significantly impact prime and unique farmlands located off-post, wetlands, floodplains, coastal zones, or ecologically important areas, or other areas of unique or critical environmental sensitivity.
(d) Result in significant or uncertain environmental effects, or unique or unknown environmental risks.
(e) Significantly affect a federally listed threatened or endangered plant or animal species, a federal candidate species, a species proposed for federal listing, or critical habitat.
(f) Either establish a precedent for future action or represent a decision in principle about a future consideration with significant environmental effects.
(g) Adversely interact with other actions with individually insignificant effects so that cumulatively significant environmental effects result.
(h) Involve the production, storage, transportation, use, treatment, and disposal of hazardous or toxic materials that may have significant environmental impact.
(i) Be highly controversial from an environmental standpoint.
(j) Cause loss or destruction of significant scientific, cultural, or historical resources.
§ 651.42 Actions normally requiring an EIS.
The following actions normally require an EIS:
(a) Significant expansion of a military facility or installation.
(b) Construction of facilities that have a significant effect on wetlands, coastal zones, or other areas of critical environmental concern.
(c) The disposal of nuclear materials, munitions, explosives, industrial and military chemicals, and other hazardous or toxic substances that have the potential to cause significant environmental impact.
(d) Land acquisition, leasing, or other actions that may lead to significant changes in land use.
(e) Realignment or stationing of a brigade or larger table of organization equipment (TOE) unit during peacetime (except where the only significant impacts are socioeconomic, with no significant biophysical environmental impact).
(f) Training exercises conducted outside the boundaries of an existing military reservation where significant environmental damage might occur.
(g) Major changes in the mission or facilities either affecting environmentally sensitive resources (see § 651.29(c)) or causing significant environmental impact (see § 651.39).
§ 651.43 Format of the EIS.
The EIS should not exceed 150 pages in length (300 pages for very complex proposals), and must contain the following (detailed content is discussed in appendix E of this part):
(a) Cover sheet.
(b) Summary.
(c) Table of contents.
(d) Purpose of and need for the action.
(e) Alternatives considered, including proposed action and no-action alternative.
(f) Affected environment (baseline conditions) that may be impacted.
(g) Environmental and socioeconomic consequences.
(h) List of preparers.
(i) Distribution list.
(j) Index.
(k) Appendices (as appropriate).
§ 651.44 Incomplete information.
When the proposed action will have significant adverse effects on the human environment, and there is incomplete or unavailable information, the proponent will ensure that the EIS addresses the issue as follows:
(a) If the incomplete information relevant to reasonably foreseeable significant adverse impacts is essential to a reasoned choice among alternatives and the overall costs of obtaining it are not exorbitant, the Army will include the information in the EIS.
(b) If the information relevant to reasonably foreseeable significant adverse impacts cannot be obtained because the overall costs of obtaining it are exorbitant or the means to obtain it are not known (for example, the means for obtaining it are beyond the state of the art), the proponent will include in the EIS:
(1) A statement that such information is incomplete or unavailable.
(2) A statement of the relevance of the incomplete or unavailable information to evaluating the reasonably foreseeable significant adverse impacts on the human environment.
(3) A summary of existing credible scientific evidence that is relevant to evaluating the reasonably foreseeable significant adverse impacts on the human environment.
(4) An evaluation of such impacts based upon theoretical approaches or research methods generally accepted in the scientific community.
§ 651.45 Steps in preparing and processing an EIS.
(a) NOI. The NOI initiates the formal scoping process and is prepared by the proponent.
(1) Prior to preparing an EIS, an NOI will be published in the FR and in newspapers with appropriate or general circulation in the areas potentially affected by the proposed action. The OCLL will be notified by the ARSTAF proponent of pending EISs so that congressional coordination may be effected. After the NOI is published in the FR, copies of the notice may also be distributed to agencies, organizations, and individuals, as the responsible official deems appropriate.
(2) The NOI transmittal package includes the NOI, the press release, information for Members of Congress, memorandum for correspondents, and a “questions and answers” (Q&A) package. The NOI shall clearly state the proposed action and alternatives, and state why the action may have unknown and/or significant environmental impacts.
(3) The proponent forwards the NOI and the transmittal package to the appropriate HQDA (ARSTAF) proponent for coordination and staffing prior to publication. The ARSTAF proponent will coordinate the NOI with HQDA (ODEP), OCLL, TJAG, OGC, OCPA, relevant MACOMs, and others). Only the Deputy Assistant Secretary of the Army for Environment, Safety, and Occupational Health (DASA(ESOH)) can authorize release of an NOI to the FR for publication, unless that authority has been delegated. A cover letter (similar to Figure 5 in § 651.46) will accompany the NOI. An example NOI is shown in Figure 6 in § 651.46.
(b) Lead and cooperating agency determination. As soon as possible after the decision is made to prepare an EIS, the proponent will contact appropriate federal, tribal, state, and local agencies to identify lead or cooperating agency responsibilities concerning EIS preparation. At this point, a public affairs plan must be developed. In the case of State ARNG actions that have federal funding, the NGB will be the lead agency for the purpose of federal compliance with NEPA. The State may be either a joint lead or a cooperating agency, as determined by NGB.
(c) Scoping. The proponent will begin the scoping process described in § 651.48. Portions of the scoping process may take place prior to publication of the NOI.
(d) DEIS preparation and processing. Prior to publication of a DEIS, the proponent can prepare a PDEIS, allowing for internal organization and the resolution of internal Army consideration, prior to a formal request for comments.
(1) PDEIS. Based on information obtained and decisions made during the scoping process, the proponent may prepare the PDEIS. To expedite headquarters review, a summary document is also required to present the purpose and need for the action, DOPAA, major issues, unresolved issues, major potential controversies, and required mitigations or monitoring. This summary will be forwarded, through the chain of command, to ODEP, the DASA(ESOH), and other interested offices for review and comment. If requested by these offices, a draft PDEIS can be provided following review of the summary. The PDEIS is not normally made available to the public and should be stamped “For Internal Use Only-Deliberative Process.”
(2) DEIS. The Army proponent will advise the DEIS preparer of the number of copies to be forwarded for final HQDA review and those for filing with the EPA. Distribution may include interested congressional delegations and committees, governors, national environmental organizations, the DOD and federal agency headquarters, and other selected entities. The Army proponent will finalize the FR NOA, the proposed news release, and the EPA filing letter for signature of the DASA(ESOH). A revised process summary of the contents (purpose and need for the action, DOPAA, major issues, unresolved issues, major potential controversies, and required mitigations or monitoring) will accompany the DEIS to HQDA for review and comment. If the action has been delegated by the ASA(I&E), only the process summary is required, unless the DEIS is requested by HQDA.
(i) When the DEIS has been formally approved, the preparer can distribute the DEIS to the remainder of the distribution list. The DEIS must be distributed prior to, or simultaneously with, filing with EPA. The list includes federal, state, regional, and local agencies, private citizens, and local organizations. The EPA will publish the NOA in the FR. The 45-day comment period begins on the date of the EPA notice in the FR.
(ii) Following approval, the proponent will forward five copies of the DEIS to EPA for filing and notice in the FR; publication of EPA’s NWR commences the public comment period. The proponent will distribute the DEIS prior to, or simultaneously with, filing with EPA. Distribution will include appropriate federal, state, regional, and local agencies; Native American tribes; and organizations and private citizens who have expressed interest in the proposed action.
(iii) For proposed actions that are environmentally controversial, or of national interest, the OCLL shall be notified of the pending action so that appropriate congressional coordination may be effected. The OCPA will coordinate public announcements through its chain of command. Proponents will ensure that the DEIS and subsequent NEPA documents are provided in electronic format to allow for maximum information flow throughout the process.
(e) Public review of DEIS. The DEIS public comment period will be no less than 45 days. If the statement is unusually long, a summary of the DEIS may be circulated, with an attached list of locations where the entire DEIS may be reviewed (for example, local public libraries). Distribution of the complete DEIS should be accompanied by the announcement of availability in established newspapers of major circulation, and must include the following:
(1) Any federal agency that has jurisdiction by law or special expertise with respect to any environmental impact involved and any appropriate federal, state, or local agency authorized to develop and enforce environmental standards.
(2) The applicant, if the proposed action involves any application of proposal for the use of Army resources.
(3) Any person, organization, or agency requesting the entire DEIS.
(4) Any Indian tribes, Native Alaskan organizations, or Native Hawaiian organizations potentially impacted by the proposed action.
(5) Chairs/co-chairs of any existing citizen advisory groups (for example, Restoration Advisory Boards).
(f) Public meetings or hearings. Public meetings or hearings on the DEIS will be held in accordance with the criteria established in 40 CFR 1506.6(c) and (d) or for any other reason the proponent deems appropriate. News releases should be prepared and issued to publicize the meetings or hearings at least 15 days prior to the meeting.
(g) Response to comments. Comments will be incorporated in the DEIS by modification of the text and/or written explanation. Where possible, similar comments will be grouped for a common response. The preparer or a higher authority may make individual response, if considered desirable.
(h) The FEIS. If the changes to the DEIS are exclusively clarifications or minor factual corrections, a document consisting of only the DEIS comments, responses to the comments, and errata sheets may be prepared and circulated. If such an abbreviated FEIS is anticipated, the DEIS should contain a statement advising reviewers to keep the document so they will have a complete set of “final” documents. The final EIS to be filed with EPA will consist of a complete document containing a new cover sheet, the errata sheets, comments and responses, and the text of the draft EIS. Coordination, approval, filing, and public notice of an abbreviated FEIS are the same as for a draft DEIS. If extensive modifications are warranted, the proponent will prepare a new, complete FEIS. Preparation, coordination, approval, filing, and public notice of the FEIS are the same as the process outlined for the DEIS. The FEIS distribution must include any person, organization, or agency that submitted substantive comments on the DEIS. One copy (electronic) of the FEIS will be forwarded to ODEP. The FEIS will clearly identify the Army’s preferred alternative unless prohibited by law.
(i) Decision. No decision will be made on a proposed action until 30 days after EPA has published the NWR of the FEIS in the FR, or 90 days after the NWR of the DEIS, whichever is later. EPA publishes NWRs weekly. Those NWRs ready for EPA by close of business Friday are published in the next Friday’s issue of the FR.
(j) ROD. The ROD documents the decision made and the basis for that decision.
(1) The proponent will prepare a ROD for the decision maker’s signature, which will:
(i) Clearly state the decision by describing it in sufficient detail to address the significant issues and ensure necessary long-term monitoring and execution.
(ii) Identify all alternatives considered by the Army in reaching its decision, specifying the environmentally preferred alternative(s). The Army will discuss preferences among alternatives based on relevant factors including environmental, economic, and technical considerations and agency statutory missions.
(iii) Identify and discuss all such factors, including any essential considerations of national policy that were balanced by the Army in making its decision. Because economic and technical analyses are balanced with environmental analysis, the agency preferred alternative will not necessarily be the environmentally preferred alternative.
(iv) Discuss how those considerations entered into the final decision.
(v) State whether all practicable means to avoid or minimize environmental harm from the selected alternative have been adopted, and if not, why they were not.
(vi) Identify or incorporate by reference the mitigation measures that were incorporated into the decision.
(2) Implementation of the decision may begin immediately after approval of the ROD.
(3) The proponent will prepare an NOA to be published in the FR by the HQDA proponent, following congressional notification. Processing and approval of the NOA is the same as for an NOI.
(4) RODs will be distributed to agencies with authority or oversight over aspects of the proposal, cooperating agencies, appropriate congressional, state, and district offices, all parties that are directly affected, and others upon request.
(5) One electronic copy of the ROD will be forwarded to ODEP.
(6) A monitoring and enforcement program will be adopted and summarized for any mitigation (see Appendix C of this part).
(k) Pre-decision referrals. 40 CFR part 1504 specifies procedures to resolve federal agency disagreements on the environmental effects of a proposed action. Pre-decision referrals apply to interagency disagreement on a proposed action’s potential unsatisfactory effects.
(l) Changes during preparation. If there are substantial changes in the proposed action, or significant new information relevant to environmental concerns during the proposed action’s planning process, the proponent will prepare revisions or a supplement to any environmental document or prepare new documentation as necessary.
(m) Mitigation. All measures planned to minimize or mitigate expected significant environmental impacts will be identified in the EIS and the ROD. Implementation of the mitigation plan is the responsibility of the proponent (see Appendix C of this part). The proponent will make available to the public, upon request, the status and results of mitigation measures associated with the proposed action. For weapon system acquisition programs, the proponent will coordinate with the appropriate responsible parties before identifying potential mitigations in the EIS/ROD.
(n) Implementing the decision. The proponent will provide for monitoring to assure that decisions are carried out, particularly in controversial cases or environmentally sensitive areas (Appendix C of this part). Mitigation and other conditions that have been identified in the EIS, or during its review and comment period, and made part of the decision (and ROD), will be implemented by the lead agency or other appropriate consenting agency. The proponent will:
(1) Include appropriate conditions in grants, permits, or other approvals.
(2) Ensure that the proponent’s project budget includes provisions for mitigations.
(3) Upon request, inform cooperating or commenting agencies on the progress in carrying out adopted mitigation measures that they have proposed and that were adopted by the agency making the decision.
(4) Upon request, make the results of relevant monitoring available to the public and Congress.
(5) Make results of relevant monitoring available to citizens advisory groups, and others that expressed such interest during the EIS process.
§ 651.46 Existing EISs.
A newly proposed action must be the subject of a separate EIS. The proponent may extract and revise the existing environmental documents in such a way as to bring them completely up to date, in light of the new proposals. Such a revised EIS will be prepared and processed entirely under the provisions of this part. If an EIS of another agency is adopted, it must be processed in accordance with 40 CFR 1506.3. Figures 4 through 8 to Subpart F of part 651 follow:
Figures 4-8 to Subpart F of Part 651
Subpart G—Public Involvement and the Scoping Process
§ 651.47 Public involvement.
(a) As a matter of Army policy, public involvement is required for all EISs, and is strongly encouraged for all Army actions, including EAs. The requirement (40 CFR 1506.6) for public involvement recognizes that all potentially interested or affected parties will be involved, when practicable, whenever analyzing environmental considerations. This requirement can be met at the very beginning of the process by developing a plan to include all affected parties and implementing the plan with appropriate adjustments as it proceeds (AR 360-5). The plan will include the following:
(1) Information dissemination to local and installation communities through such means as news releases to local media, announcements to local citizens groups, and Commander’s letters at each phase or milestone (more frequently if needed) of the project. The dissemination of this information will be based on the needs and desires of the local communities.
(2) Each phase or milestone (more frequently if needed) of the project will be coordinated with representatives of local, state, tribal, and federal government agencies.
(3) Public comments will be invited and two-way communication channels will be kept open through various means as stated above. These two-way channels will be dynamic in nature, and should be updated regularly to reflect the needs of the local community.
(4) Public affairs officers at all levels will be kept informed.
(b) When an EIS is being prepared, public involvement is a requisite element of the scoping process (40 CFR 1501.7(a)(1)).
(c) Proponents will invite public involvement in the review and comment of EAs and draft FNSIs (40 CFR 1506.6).
(d) Persons and agencies to be consulted include the following:
(1) Municipal, township, and county elected and appointed officials.
(2) Tribal, state, county, and local government officials and administrative personnel whose official duties include responsibility for activities or components of the affected environment related to the proposed Army action.
(3) Local and regional administrators of other federal agencies or commissions that may either control resources potentially affected by the proposed action (for example, the U.S. Fish and Wildlife Service); or who may be aware of other actions by different federal agencies whose effects must be considered with the proposed Army action (for example, the GSA).
(4) Members of existing citizen advisory groups, such as Restoration Advisory Boards and Citizen Advisory Commissions.
(5) Members of identifiable population segments within the potentially affected environments, whether or not they have clearly identifiable leaders or an established organization, such as farmers and ranchers, homeowners, small business owners, minority communities and disadvantaged communities, and tribal governments in accordance with White House Memorandum on Government to Government Relations with Native American Tribal Governments (April 29, 1994).
(6) Members and officials of those identifiable interest groups of local or national scope that may have interest in the environmental effects of the proposed action or activity (for example, hunters and fishermen, Izaak Walton League, Sierra Club, and the Audubon Society).
(7) Any person or group that has specifically requested involvement in the specific action or similar actions.
(e) The public involvement processes and procedures through which participation may be solicited include the following:
(1) Direct individual contact. Such interaction can identify persons and their opinions and initial positions, affecting the scope of issues that the EIS must address. Such limited contact may satisfy public involvement requirements when the expected significance and controversy of environmental effects is very limited.
(2) Small workshops or discussion groups.
(3) Larger public gatherings that are held after some formulation of the potential issues. The public is invited to express its views on the proposed courses of action. Public suggestions or alternative courses of action not already identified may be expressed at these gatherings that need not be formal public hearings.
(4) Identifying and applying other processes and procedures to accomplish the appropriate level of public involvement.
(f) The meetings described in paragraph (e) of this section should not be public hearings in the early stages of evaluating a proposed action. Public hearings do not substitute for the full range of public involvement procedures under the purposes and intent, as described in paragraph (e) of this section.
(g) Public surveys or polls may be performed to identify public opinion of a proposed action, as appropriate (AR 335-15).
§ 651.48 Scoping process.
(a) The scoping process (40 CFR 1501.7) is intended to aid in determining the scope of the analyses and significant issues related to the proposed action. The process requires appropriate public participation immediately following publication of the NOI in the FR. It is important to note that scoping is not synonymous with a public meeting. The Army policy is that EISs for legislative proposals significantly affecting the environment will go through scoping unless extenuating circumstances make it impractical. In some cases, the scoping process may be useful in the preparation of EAs and should be employed when it is useful.
(b) The scoping process identifies relevant issues related to a proposed action through the involvement of all potentially interested or affected parties (affected federal, state, and local agencies; recognized Indian tribes; interest groups, and other interested persons) in the environmental analysis and documentation. This process should:
(1) Eliminate issues from detailed consideration which are not significant, or which have been covered by prior environmental review; and
(2) Make the analysis and documentation more efficient by providing focus to the effort. Proper scoping identifies reasonable alternatives and the information needed for their evaluation, thereby increasing public confidence in the Army decisionmaking process.
(c) Proper scoping will reduce both costs and time required for an EA or EIS. This is done through the documentation of all potential impacts and the focus of detailed consideration on those aspects of the action which are potentially significant or controversial. To assist in this process the Army will use the Environmental Impact Computer System (EICS) starting in Fiscal Year (FY) 04, as appropriate. This system will serve to structure all three stages of the scoping process (§ 651.49, 651.50, and 651.51) and provide focus on those actions that are important and of interest to the public. While these discussions focus on EIS preparation and documents to support that process, the three phases also apply if scoping is used for an EA. If used in the preparation of an EA, scoping, and documents to support that process, can be modified and adopted to ensure efficient public iteration and input to the decision-making process.
(d) When the planning for a project or action indicates the need for an EIS, the proponent initiates the scoping process to identify the range of actions, alternatives, and impacts for consideration in the EIS (40 CFR 1508.25). The extent of the scoping process (including public involvement) will depend upon:
(1) The size and type of the proposed action.
(2) Whether the proposed action is of regional or national interest.
(3) Degree of any associated environmental controversy.
(4) Importance of the affected environmental parameters.
(5) Significance of any effects on them.
(6) Extent of prior environmental review.
(7) Involvement of any substantive time limits.
(8) Requirements by other laws for environmental review.
(e) The proponent may incorporate scoping in the public involvement (or environmental review) process of other requirements, such as an EA. In such cases, the extent of incorporation is at the discretion of the proponent, working with the affected Army organization or installation. Such integration is encouraged.
(f) Scoping procedures fall into preliminary, public interaction, and final phases. These phases are discussed in §§ 651.49, 651.50, and 651.51, respectively.
§ 651.49 Preliminary phase.
In the preliminary phase, the proponent agency or office identifies, as early as possible, how it will accomplish scoping and with whose involvement. Key points will be identified or briefly summarized by the proponent, as appropriate, in the NOI, which will:
(a) Identify the significant issues to be analyzed in the EIS.
(b) Identify the office or person responsible for matters related to the scoping process. If they are not the same as the proponent of the action, that distinction will be made.
(c) Identify the lead and cooperating agency, if already determined (40 CFR 1501.5 and 1501.6).
(d) Identify the method by which the agency will invite participation of affected parties, and identify a tentative list of the affected parties to be notified. A key part of this preliminary identification is to solicit input regarding other parties who would be interested in the proposed project or affected by it.
(e) Identify the proposed method for accomplishing the scoping procedure.
(f) Indicate the relationship between the timing of the preparation of environmental analyses and the tentative planning and decisionmaking schedule including:
(1) The scoping process itself.
(2) Collection or analysis of environmental data, including required studies.
(3) Preparation of draft and final EISs (DEISs and FEISs), and associated review periods.
(4) Filing of the ROD.
(5) Taking the action.
(6) For a programmatic EIS, preparation of a general expected schedule for future specific implementing (tiered) actions that will involve separate environmental analysis.
(g) If applicable, identify the extent to which the EIS preparation process is exempt from any of the normal procedural requirements of this part, including scoping.
§ 651.50 Public interaction phase.
(a) During this portion of the process, the proponent will invite comments from all affected parties and respondents to the NOI to assist in developing issues for detailed discussion in the EIS. Assistance in identifying possible participants is available from the ODEP.
(b) In addition to the affected parties identified in paragraph (a) of this section, participants should include the following:
(1) Technical representatives of the proponent. Such persons must be able to describe the technical aspects of the proposed action and alternatives to other participants.
(2) One or more representatives of any Army-contracted consulting firm, if one has been retained to participate in writing the EIS or providing reports that the Army will use to create substantial portions of the EIS.
(3) Experts in various environmental disciplines, in any technical area where foreseen impacts are not already represented among the other scoping participants.
(c) In all cases, the participants will be provided with information developed during the preliminary phase and with as much of the following information that may be available:
(1) A brief description of the environment at the affected location. When descriptions for a specific location are not available, general descriptions of the probable environmental effects will be provided. This will also address the extent to which the environment has been modified or affected in the past.
(2) A description of the proposed alternatives. The description will be sufficiently detailed to enable evaluation of the range of impacts that may be caused by the proposed action and alternatives. The amount of detail that is sufficient will depend on the stage of the development of the proposal, its magnitude, and its similarity to other actions with which participants may be familiar.
(3) A tentative identification of “any public environmental assessments and other environmental impact statements that are being or will be prepared that are related to but are not part of the scope of the impact statement under consideration” (40 CFR 1501.7(a)(5)).
(4) Any additional scoping issues or limitations on the EIS, if not already described during the preliminary phase.
(d) The public involvement should begin with the NOI to publish an EIS. The NOI may indicate when and where a scoping meeting will take place and who to contact to receive preliminary information. The scoping meeting is an informal public meeting, and initiates a continuous scoping process, allowing the Army to scope the action and the impacts of alternatives. It is a working session where the gathering and evaluation of information relating to potential environmental impacts can be initiated.
(e) Starting with this information (paragraph (d) of this section), the person conducting the scoping process will use input from any of the involved or affected parties. This will aid in developing the conclusions. The proponent determines the final scope of the EIS. If the proponent chooses not to require detailed treatment of significant issues or factors in the EIS, in spite of relevant technical or scientific objections by any participant, the proponent will clearly identify (in the environmental consequences section of the EIS) the criteria that were used to eliminate such factors.
§ 651.51 The final phase.
(a) The initial scope of the DEIS is determined by the proponent during and after the public interaction phase of the process. Detailed analysis should focus on significant issues (40 CFR 1501.7(a)(2)). To determine the appropriate scope, the proponent must consider three categories of actions, alternatives, and impacts.
(1) The three categories of actions (other than unconnected single actions) are as follows:
(i) Connected actions are those that are closely related and should be discussed in the same impact statement. Actions are connected if they automatically trigger other actions that may require EISs, cannot or will not proceed unless other actions are previously or simultaneously taken, are interdependent parts of a larger action, and depend on the larger action for their justification.
(ii) Cumulative actions are those that, when viewed with other past and proposed actions, have cumulatively significant impacts and should be discussed in the same impact statement.
(iii) Similar actions are those that have similarities which provide a basis for evaluating their environmental consequences together, such as common timing or geography, and may be analyzed in the EIS. Agencies should do so when the best way to assess such actions is to treat them in a single EIS.
(2) The three categories of alternatives are as follows:
(i) No action.
(ii) Other reasonable courses of action.
(iii) Mitigation measures (not in the proposed action).
(3) The three categories of impacts are as follows:
(i) Direct.
(ii) Indirect.
(iii) Cumulative.
(4) The proponent can also identify any public EAs and EISs, prepared by the Army or another federal agency, related to, but not part of, the EIS under consideration (40 CFR 1501.7(a)(5)). Assignments for the preparation of the EIS among the lead and any cooperating agencies can be identified, with the lead agency retaining responsibility for the statement (40 CFR 1501.7(a)(4)); along with the identification of any other environmental review and consultation requirements so the lead and cooperating agencies may prepare other required analyses and studies concurrently with the EIS (40 CFR 1501.7(a)(6)).
(b) The identification and elimination of issues that are insignificant, non-controversial, or covered by prior environmental review can narrow the analysis to remaining issues and their significance through reference to their coverage elsewhere (40 CFR 1501.7(a)(3)).
(c) As part of the scoping process, the lead agency may:
(1) Set time limits, as provided in § 651.14(b), if they were not already indicated in the preliminary phase.
(2) Prescribe overall page limits for the EIS in accordance with the CEQ regulations that emphasize conciseness.
(d) All determinations reached by the proponent during the scoping process will be clearly conveyed to the preparers of the EIS in a Scope of Statement. The Scope of Statement will be made available to participants in the scoping process and to other interested parties upon request. Any scientific or technical conflicts that arise between the proponent and scoping participants, cooperating agencies, other federal agencies, or preparers will be identified during the scoping process and resolved or discussed by the proponent in the DEIS.
§ 651.52 Aids to information gathering.
The proponent may use or develop graphic or other innovative methods to aid information gathering, presentation, and transfer during the three scoping phases. These include methods for presenting preliminary information to scoping participants, obtaining and consolidating input from participants, and organizing determinations on scope for use during preparation of the DEIS. The use of the World Wide Web (WWW) for these purposes is encouraged. Suggested uses include the implementation of a continuous scoping process, facilitating “virtual” public participation, as well as the dissemination of analyses and information as they evolve.
§ 651.53 Modifications of the scoping process.
(a) If a lengthy period exists between a decision to prepare an EIS and the time of preparation, the proponent will initiate the NOI at a reasonable time in advance of preparation of the DEIS. The NOI will state any tentative conclusions regarding the scope of the EIS made prior to publication of the NOI. Reasonable time for public participation will be allowed before the proponent makes any final decisions or commitments on the EIS.
(b) The proponent of a proposed action may use scoping during preparation of environmental review documents other than an EIS, if desired. In such cases, the proponent may use these procedures or may develop modified procedures, as needed.
Subpart H—Environmental Effects of Major Army Action Abroad
§ 651.54 Introduction.
(a) Protection of the environment is an Army priority, no matter where the Army actions are undertaken. The Army is committed to pursuing an active role in addressing environmental quality issues in Army relations with neighboring communities and assuring that consideration of the environment is an integral part of all decisions. This section assigns responsibilities for review of environmental effects abroad of major Army actions, as required by Executive Order 12114, Environmental Effects Abroad of Major Federal Actions, dated January 4, 1979, 3 CFR, 1979 Comp.,p.356. This section applies to HQDA and Army agencies’ actions that would significantly affect the quality of the human environment outside the United States.
(b) Executive Order 12114 and DODD 6050.7, Environmental Effects Abroad of Major Department of Defense Actions (planned currently to be replaced by a DODI, Analyzing Defense Actions With the Potential for Significant Impacts Outside the United States) provide guidance for analyzing the environmental impacts of Army actions abroad and in the global commons. Army components will, consistent with diplomatic factors (including applicable Status of Forces Agreements (SOFAs) and stationing agreements), national security considerations, and difficulties of obtaining information, document the review of potential environmental impacts of Army actions abroad and in the global commons as set forth in DODD 6050.7 (or DODI upon publication). The analysis and documentation of potential environmental impacts of Army actions abroad and in the global commons should, to the maximum extent possible, be incorporated into existing decision-making processes; planning for military exercises, training plans, and military operations.
§ 651.55 Categorical exclusions.
The list of CXs in Appendix B of this part may be used in reviewing potential environmental impacts of major actions abroad and in the global commons, in accordance with DODD 6050.7 (or DODI upon publication) and Executive Order 12114, section 2-5(c).
§ 651.56 Responsibilities.
(a) The ASA(I&E) will:
(1) Serve as the Secretary of the Army’s responsible official for environmental matters abroad.
(2) Maintain liaison with the DUSD(IE) on matters concerning Executive Order 12114, DODD 6050.7, and this part.
(3) Coordinate actions with other Secretariat offices as appropriate.
(b) The DEP will:
(1) Serve as ARSTAF proponent for implementation of Executive Order 12114, DODD 6050.7, and this part.
(2) Apply this part when planning and executing overseas actions, where appropriate in light of applicable statutes and SOFAs.
(c) The DCSOPS will:
(1) Serve as the focal point on the ARSTAF for integrating environmental considerations required by Executive Order 12114 into Army plans and activities. Emphasis will be placed on those actions reasonably expected to have widespread, long-term, and severe impacts on the global commons or the territories of foreign nations.
(2) Consult with the Office of Foreign Military Rights Affairs of the Assistant Secretary of Defense (International Security Affairs) (ASD(ISA)) on significant or sensitive actions affecting relations with another nation.
(d) TJAG, in coordination with the OGC, will provide advice and assistance concerning the requirements of Executive Order 12114 and DODD 6050.7.
(e) The Chief of Public Affairs will provide advice and assistance on public affairs as necessary.
Appendix A to Part 651—References
Military publications and forms are accessible from a variety of sources through the use of electronic media or paper products. In most cases, electronic publications and forms that are associated with military organizations can be accessed at various address or web sites on the Internet. Since electronic addresses can frequently change, or similar web links can also be modified at several locations on the Internet, it’s advisable to access those sites using a search engine that is most accommodative, yet beneficial to the user. Additionally, in an effort to facilitate the public right to information, certain publications can also be purchased through the National Technical Information Service (NTIS). Persons interested in obtaining certain types of publications can write to the National Technical Information Service, 5285 Port Royal Road, Springfield, VA 22161.
Army Public Affairs, Public Information.
A related publication is merely a source of additional information. The user does not have to read it to understand this part.
Reduction and Realignment Actions.
Army Energy Program.
Airspace and Special Military Operation Requirements.
Real Estate Selection and Acquisition: Procedures and Criteria.
Environmental Protection and Enhancement.
Natural Resources—Land, Forest, and Wildlife Management.
Cultural Resources Management.
Administration.
Master Planning for Army Installations.
Management Information Control System.
Department of the Army Information Security Program.
Army Safety Program.
Operations Security (OPSEC).
Army Acquisition Procedures.
An electronic knowledge presentation system available through the Deputy Under Secretary of Defense (Acquisition Reform) and the Office of the Under Secretary of Defense (Acquisition and Technology).
Mandatory Procedures for Major Defense Acquisition Programs and Major Automated Information Systems.
Commercial Activities Program.
Natural Resources Management Program, Integrated Natural Resources Management Plan (INRMP), Integrated Cultural Resources Management Plan (ICRMP).
Environmental Effects Abroad of Major Department of Defense Actions.
Environmental Planning and Analysis
Floodplain Management, 3 CFR, 1977 Comp., p. 117
Protection of Wetlands, 3 CFR, 1977 Comp., p. 121.
Environmental Effects Abroad of Major Federal Actions, 3 CFR, 1979 comp., p. 356.
Civil Justice Reform, 3 CFR, 1991 Comp., p. 359.
Federal Compliance with Right-to-Know Laws and Pollution Prevention Requirements, 3 CFR, 1993 Comp., p. 616.
Elimination of One-Half of Executive Branch Internal Regulations, 3 CFR, 1993 Comp., p. 630.
Regulatory Planning and Review, 3 CFR, 1993 Comp., p. 638.
Federal Actions to Address Environmental Justice in Minority and Low-Income Populations, 3 CFR, 1994 Comp., p. 859.
Indian Sacred Sites, 3 CFR, 1996 Comp., p. 196.
Protection of Children from Environmental Health Risks and Safety Risks, 3 CFR, 1997 Comp., p. 198.
Federal Support of Community Efforts Along American Heritage Rivers, 3 CFR, 1997 Comp., p. 221.
Federalism, 3 CFR, 1998 Comp., p. 146.
Public Laws: American Indian Religious Freedom Act.
42 U.S.C. 1996.
As amended (42 U.S.C. 7401, et seq.).
Public Law 95-217, 91 Stat. 1566 and Public Law 96-148, Sec. 1(a)-(c), 93 Stat. 1088.
Comprehensive Environmental Response, Compensation, and Liability Act of 1980.
As amended (CERCLA, Superfund) (42 U.S.C. 9601 et seq.) Endangered Species Act of 1973.
Public Law 93-205, 87 Stat. 884.
Public Law 85-624, Sec. 2, 72 Stat. 563 and Public Law 89-72, Sec. 6(b), 79 Stat. 216.
Public Law 91-190, 83 Stat. 852.
Public Law 89-665, 80 Stat. 915.
Public Law 101-601, 104 Stat. 3048.
Public Law 101-508, Title VI, Subtitle G, 104 Stat. 13880-321.
Public Law 94-580, 90 Stat. 2795.
Public Law 86-797, 74 Stat. 1052.
The following CFRs may be found in your legal office or law library. Copies may be purchased from the Superintendent of Documents, Government Printing Office, Washington, DC 20401.
Advisory Council on Historic Preservation.
Council on Environmental Quality.
This section contains no entries.
Recommended Changes to Publications and Blank Forms.
Military Construction Project Data.
Appendix B to Part 651—Categorical Exclusions
Before any CXs can be used, Screening Criteria as referenced in § 651.29 must be met.
(a) For convenience only, the CXs are grouped under common types of activities (for example, administration/ operation, construction/demolition, and repair and maintenance). Certain CXs require a REC, which will be completed and signed by the proponent. Concurrence on the use of a CX is required from the appropriate environmental officer (EO), and that signature is required on the REC. The list of CXs is subject to continual review and modification. Requests for additions or changes to the CXs (along with justification) should be sent, through channels, to the ASA (I&E). Subordinate Army headquarters may not modify the CX list through supplements to this part. Proposed modifications to the list of CXs will be published in the FR by HQDA, to provide opportunity for public comment.
(b) Administration/operation activities:
(1) Routine law and order activities performed by military/military police and physical plant protection and security personnel, and civilian natural resources and environmental law officers.
(2) Emergency or disaster assistance provided to federal, state, or local entities (REC required).
(3) Preparation of regulations, procedures, manuals, and other guidance documents that implement, without substantive change, the applicable HQDA or other federal agency regulations, procedures, manuals, and other guidance documents that have been environmentally evaluated (subject to previous NEPA review).
(4) Proposed activities and operations to be conducted in an existing non-historic structure which are within the scope and compatibility of the present functional use of the building, will not result in a substantial increase in waste discharged to the environment, will not result in substantially different waste discharges from current or previous activities, and emissions will remain within established permit limits, if any (REC required).
(5) Normal personnel, fiscal, and administrative activities involving military and civilian personnel (recruiting, processing, paying, and records keeping).
(6) Routinely conducted recreation and welfare activities not involving off-road recreational vehicles.
(7) Deployment of military units on a temporary duty (TDY) or training basis where existing facilities are used for their intended purposes consistent with the scope and size of existing mission.
(8) Preparation of administrative or personnel-related studies, reports, or investigations.
(9) Approval of asbestos or lead-based paint management plans drafted in accordance with applicable laws and regulations (REC required).
(10) Non-construction activities in support of other agencies/organizations involving community participation projects and law enforcement activities.
(11) Ceremonies, funerals, and concerts. This includes events such as state funerals, to include flyovers.
(12) Reductions and realignments of civilian and/or military personnel that: fall below the thresholds for reportable actions as prescribed by statute (10 U.S.C. 2687) and do not involve related activities such as construction, renovation, or demolition activities that would otherwise require an EA or an EIS to implement (REC required). This includes reorganizations and reassignments with no changes in force structure, unit redesignations, and routine administrative reorganizations and consolidations (REC required).
(13) Actions affecting Army property that fall under another federal agency’s list of categorical exclusions when the other federal agency is the lead agency (decision maker), or joint actions on another federal agency’s property that fall under that agency’s list of categorical exclusions (REC required).
(14) Relocation of personnel into existing federally-owned (or state-owned in the case of ARNG) or commercially-leased space, which does not involve a substantial change in the supporting infrastructure (for example, an increase in vehicular traffic beyond the capacity of the supporting road network to accommodate such an increase is an example of substantial change) (REC required).
(c) Construction and demolition:
(1) Construction of an addition to an existing structure or new construction on a previously undisturbed site if the area to be disturbed has no more than 5.0 cumulative acres of new surface disturbance. This does not include construction of facilities for the transportation, distribution, use, storage, treatment, and disposal of solid waste, medical waste, and hazardous waste (REC required).
(2) Demolition of non-historic buildings, structures, or other improvements and disposal of debris therefrom, or removal of a part thereof for disposal, in accordance with applicable regulations, including those regulations applying to removal of asbestos, polychlorinated biphenyls (PCBs), lead-based paint, and other special hazard items (REC required).
(3) Road or trail construction and repair on existing rights-of-ways or on previously disturbed areas.
(d) Cultural and natural resource management activities:
(1) Land regeneration activities using only native trees and vegetation, including site preparation. This does not include forestry operations (REC required).
(2) Routine maintenance of streams and ditches or other rainwater conveyance structures (in accordance with USACE permit authority under Section 404 of the Clean Water Act and applicable state and local permits), and erosion control and stormwater control structures (REC required).
(3) Implementation of hunting and fishing policies or regulations that are consistent with state and local regulations.
(4) Studies, data collection, monitoring and information gathering that do not involve major surface disturbance. Examples include topographic surveys, bird counts, wetland mapping, and other resources inventories (REC required).
(5) Maintenance of archaeological, historical, and endangered/threatened species avoidance markers, fencing, and signs.
(e) Procurement and contract activities:
(1) Routine procurement of goods and services (complying with applicable procedures for sustainable or “green” procurement) to support operations and infrastructure, including routine utility services and contracts.
(2) Acquisition, installation, and operation of utility and communication systems, mobile antennas, data processing cable and similar electronic equipment that use existing right-of-way, easement, distribution systems, and/or facilities (REC required).
(3) Conversion of commercial activities under the provisions of AR 5-20. This includes only those actions that do not change the actions or the missions of the organization or alter the existing land-use patterns.
(4) Modification, product improvement, or configuration engineering design change to materiel, structure, or item that does not change the original impact of the materiel, structure, or item on the environment (REC required).
(5) Procurement, testing, use, and/or conversion of a commercially available product (for example, forklift, generator, chain saw, etc.) which does not meet the definition of a weapon system (Title 10, U.S.C., Section 2403. “Major weapon systems: Contractor guarantees”), and does not result in any unusual disposal requirements.
(6) Acquisition or contracting for spares and spare parts, consistent with the approved Technical Data Package (TDP).
(7) Modification and adaptation of commercially available items and products for military application (for example, sportsman’s products and wear such as holsters, shotguns, sidearms, protective shields, etc.), as long as modifications do not alter the normal impact to the environment (REC required).
(8) Adaptation of non-lethal munitions and restraints from law enforcement suppliers and industry (such as rubber bullets, stun grenades, smoke bombs, etc.) for military police and crowd control activities where there is no change from the original product design and there are no unusual disposal requirements. The development and use by the military of non-lethal munitions and restraints which are similar to those used by local police forces and in which there are no unusual disposal requirements (REC required).
(f) Real estate activities:
(1) Grants or acquisitions of leases, licenses, easements, and permits for use of real property or facilities in which there is no significant change in land or facility use. Examples include, but are not limited to, Army controlled property and Army leases of civilian property to include leases of training, administrative, general use, special purpose, or warehouse space (REC required).
(2) Disposal of excess easement areas to the underlying fee owner (REC required).
(3) Transfer of real property administrative control within the Army, to another military department, or to other federal agency, including the return of public domain lands to the Department of Interior, and reporting of property as excess and surplus to the GSA for disposal (REC required).
(4) Transfer of active installation utilities to a commercial or governmental utility provider, except for those systems on property that has been declared excess and proposed for disposal (REC required).
(5) Acquisition of real property (including facilities) where the land use will not change substantially or where the land acquired will not exceed 40 acres and the use will be similar to current or ongoing Army activities on adjacent land (REC required).
(6) Disposal of real property (including facilities) by the Army where the reasonably foreseeable use will not change significantly (REC required).
(g) Repair and maintenance activities:
(1) Routine repair and maintenance of buildings, airfields, grounds, equipment, and other facilities. Examples include, but are not limited to: Removal and disposal of asbestos-containing material (for example, roof material and floor tile) or lead-based paint in accordance with applicable regulations; removal of dead, diseased, or damaged trees; and repair of roofs, doors, windows, or fixtures (REC required for removal and disposal of asbestos-containing material and lead-based paint or work on historic structures).
(2) Routine repairs and maintenance of roads, trails, and firebreaks. Examples include, but are not limited to: grading and clearing the roadside of brush with or without the use of herbicides; resurfacing a road to its original conditions; pruning vegetation, removal of dead, diseased, or damaged trees and cleaning culverts; and minor soil stabilization activities.
(3) Routine repair and maintenance of equipment and vehicles (for example, autos, tractors, lawn equipment, military vehicles, etc.) which is substantially the same as that routinely performed by private sector owners and operators of similar equipment and vehicles. This does not include depot maintenance of unique military equipment.
(h) Hazardous materials/hazardous waste management and operations:
(1) Use of gauging devices, analytical instruments, and other devices containing sealed radiological sources; use of industrial radiography; use of radioactive material in medical and veterinary practices; possession of radioactive material incident to performing services such as installation, maintenance, leak tests, and calibration; use of uranium as shielding material in containers or devices; and radioactive tracers (REC required).
(2) Immediate responses in accordance with emergency response plans (for example, Spill Prevention Control and Countermeasure Plan (SPCCP)/Installation Spill Contingency Plan (ISCP), and Chemical Accident and Incident Response Plan) for release or discharge of oil or hazardous materials/substances; or emergency actions taken by Explosive Ordnance Demolition (EOD) detachment or Technical Escort Unit.
(3) Sampling, surveying, well drilling and installation, analytical testing, site preparation, and intrusive testing to determine if hazardous wastes, contaminants, pollutants, or special hazards (for example, asbestos, PCBs, lead-based paint, or unexploded ordnance) are present (REC required).
(4) Routine management, to include transportation, distribution, use, storage, treatment, and disposal of solid waste, medical waste, radiological and special hazards (for example, asbestos, PCBs, lead-based paint, or unexploded ordnance), and/or hazardous waste that complies with EPA, Army, or other regulatory agency requirements. This CX is not applicable to new construction of facilities for such management purposes.
(5) Research, testing, and operations conducted at existing enclosed facilities consistent with previously established safety levels and in compliance with applicable federal, state, and local standards. For facilities without existing NEPA analysis, including contractor-operated facilities, if the operation will substantially increase the extent of potential environmental impacts or is controversial, an EA (and possibly an EIS) is required.
(6) Reutilization, marketing, distribution, donation, and resale of items, equipment, or materiel; normal transfer of items to the Defense Logistics Agency. Items, equipment, or materiel that have been contaminated with hazardous materials or wastes will be adequately cleaned and will conform to the applicable regulatory agency’s requirements.
(i) Training and testing:
(1) Simulated war games (classroom setting) and on-post tactical and logistical exercises involving units of battalion size or smaller, and where tracked vehicles will not be used (REC required to demonstrate coordination with installation range control and environmental office).
(2) Training entirely of an administrative or classroom nature.
(3) Intermittent on-post training activities (or off-post training covered by an ARNG land use agreement) that involve no live fire or vehicles off established roads or trails. Uses include, but are not limited to, land navigation, physical training, Federal Aviation Administration (FAA) approved aerial overflights, and small unit level training.
(j) Aircraft and airfield activities:
(1) Infrequent, temporary (less than 30 days) increases in air operations up to 50 percent of the typical installation aircraft operation rate (REC required).
(2) Flying activities in compliance with Federal Aviation Administration Regulations and in accordance with normal flight patterns and elevations for that facility, where the flight patterns/elevations have been addressed in an installation master plan or other planning document that has been subject to NEPA public review.
(3) Installation, repair, or upgrade of airfield equipment (for example, runway visual range equipment, visual approach slope indicators).
(4) Army participation in established air shows sponsored or conducted by non-Army entities on other than Army property.
Appendix C to Part 651—Mitigation and Monitoring
(a) The CEQ regulations (40 CFR parts 1500-1508) recognize the following five means of mitigating an environmental impact. These five approaches to mitigation are presented in order of desirability.
(1) Avoiding the impact altogether by not taking a certain action or parts of an action. This method avoids environmental impact by eliminating certain activities in certain areas. As an example, the Army’s Integrated Training Area Management (ITAM) program accounts for training requirements and activities while considering natural and cultural resource conditions on ranges and training land. This program allows informed management decisions associated with the use of these lands, and has mitigated potential impacts by limiting activities to areas that are compatible with Army training needs. Sensitive habitats and other resources are thus protected, while the mission requirements are still met.
(2) Minimizing impacts by limiting the degree or magnitude of the action and its implementation. Limiting the degree or magnitude of the action can reduce the extent of an impact. For example, changing the firing time or the number of rounds fired on artillery ranges will reduce the noise impact on nearby residents. Using the previous ITAM example, the conditions of ranges can be monitored, and, when the conditions on the land warrant, the intensity or magnitude of the training on that parcel can be modified through a variety of decisions.
(3) Rectifying the impact by repairing, rehabilitating, or restoring the effect on the environment. This method restores the environment to its previous condition or better. Movement of troops and vehicles across vegetated areas often destroys vegetation. Either reseeding or replanting the areas with native plants after the exercise can mitigate this impact.
(4) Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action. This method designs the action so as to reduce adverse environmental effects. Examples include maintaining erosion control structures, using air pollution control devices, and encouraging car pools in order to reduce transportation effects such as air pollution, energy consumption, and traffic congestion.
(5) Compensating for the impact by replacing or providing substitute resources or environments (40 CFR 1508.20). This method replaces the resource or environment that will be impacted by the action. Replacement can occur in-kind or otherwise; for example, deer habitat in the project area can be replaced with deer habitat in another area; an in-kind replacement at a different location. This replacement can occur either on the impact site or at another location. This type of mitigation is often used in water resources projects.
(b) The identification and evaluation of mitigations involves the use of experts familiar with the predicted environmental impacts. Many potential sources of information are available for assistance. These include sources within the Army such as the USACHPPM, the USAEC, the MACOM environmental office, the ODEP, COE research laboratories, COE districts and divisions, and DoD Regional Support Centers. State agencies are another potential source of information, and the appropriate POC within these agencies may be obtained from the installation environmental office. Local interest groups may also be able to help identify potential mitigation measures. Other suggested sources of assistance include:
(1) Aesthetics:
(i) Installation Landscape Architect.
(ii) COE District Landscape Architects.
(2) Air Quality:
(i) Installation Environmental Specialist.
(ii) Installation Preventive Medicine Officer.
(3) Airspace:
(i) Installation Air Traffic and Airspace Officers.
(ii) DA Regional Representative to the FAA.
(iii) DA Aeronautical Services.
(iv) Military Airspace Management System Office.
(v) Installation Range Control Officer.
(4) Earth Science:
(i) Installation Environmental Specialist.
(ii) USACE District Geotechnical Staff.
(5) Ecology:
(i) Installation Environmental Specialist.
(ii) Installation Wildlife Officer.
(iii) Installation Forester.
(iv) Installation Natural Resource Committee.
(v) USACE District Environmental Staff.
(6) Energy/Resource Conservation: Installation Environmental Specialist.
(7) Health and Safety:
(i) Installation Preventive Medicine Officer.
(ii) Installation Safety Officer.
(iii) Installation Hospital.
(iv) Installation Mental Hygiene or Psychiatry Officer.
(v) Chaplain’s Office.
(8) Historic/Archaeological Resources:
(i) Installation Environmental Specialist.
(ii) Installation Historian or Architect.
(iii) USACE District Archaeologist.
(9) Land Use Impacts: (i) Installation Master Planner.
(ii) USACE District Community Planners.
(10) Socioeconomics:
(i) Personnel Office.
(ii) Public Information Officer.
(iii) USACE District Economic Planning Staff.
(11) Water Quality:
(i) Installation Environmental Specialist.
(ii) Installation Preventive Medicine Officer.
(iii) USACE District Environmental Staff.
(12) Noise:
(i) Preventive Medicine Officer.
(ii) Directorate of Public Works.
(iii) Installation Master Planner.
(13) Training Impacts:
Installation Director of Plans, Training, and Mobilization
(c) Several different mitigation techniques have been used on military installations for a number of years. The following examples illustrate the variety of possible measures:
(1) There are maneuver restrictions in areas used extensively for tracked vehicle training. These restrictions are not designed to infringe on the military mission, but rather to reduce the amount of damage to the training area.
(2) Aerial seeding has been done on some installations to reduce erosion problems.
(3) Changing the time and/or frequency of operations has been used. This may involve changing the season of the year, the time of day, or even day of the week for various activities. These changes avoid noise impacts as well as aesthetic, transportation, and some ecological problems.
(4) Reducing the effects of construction has involved using techniques that keep heavy equipment away from protected trees and quickly re-seeding areas after construction.
(d) Monitoring and enforcement programs are applicable (40 CFR 1505.2(c)) and the specific adopted action is an important case (40 CFR 1505.3) if:
(1) There is a change in environmental conditions or project activities that were assumed in the EIS, such that original predictions of the extent of adverse environmental impacts may be too limited.
(2) The outcome of the mitigation measure is uncertain, such as in the case of the application of new technology.
(3) Major environmental controversy remains associated with the selected alternative.
(4) Failure of a mitigation measure, or other unforeseen circumstances, could result in serious harm to federal-or state-listed endangered or threatened species; important historic or archaeological sites that are either on, or meet eligibility requirements for nomination to the National Register of Historic Places; wilderness areas, wild and scenic rivers, or other public or private protected resources. Evaluation and determination of what constitutes serious harm must be made in coordination with the appropriate federal, state, or local agency responsible for each particular program.
(e) Five basic considerations affect the establishment of monitoring programs:
(1) Legal requirements. Permits for some actions will require that a monitoring system be established (for example, dredge and fill permits from the USACE). These permits will generally require both enforcement and effectiveness monitoring programs.
(2) Protected resources. These include federal-or state-listed endangered or threatened species, important historic or archaeological sites (whether or not these are listed or eligible for listing on the National Register of Historic Places), wilderness areas, wild and scenic rivers, and other public or private protected resources. Private protected resources include areas such as Audubon Society Refuges, Nature Conservancy lands, or any other land that would be protected by law if it were under government ownership, but is privately owned. If any of these resources are affected, an effectiveness and enforcement-monitoring program must be undertaken in conjunction with the federal, state, or local agency that manages the type of resource.
(3) Major environmental controversy. If a controversy remains regarding the effect of an action or the effectiveness of a mitigation, an enforcement and effectiveness monitoring program must be undertaken. Controversy includes not only scientific disagreement about the mitigation’s effectiveness, but also public interest or debate.
(4) Mitigation outcome. The probability of the mitigation’s success must be carefully considered. The proponent must know if the mitigation has been successful elsewhere. The validity of the outcome should be confirmed by expert opinion. However, the proponent should note that a certain technique, such as artificial seeding with the natural vegetation, which may have worked successfully in one area, may not work in another.
(5) Changed conditions. The final consideration is whether any condition, such as the environmental setting, has changed (for example, a change in local land use around the area, or a change in project activities, such as increased amount of acreage being used or an increased movement of troops). Such changes will require preparation of a supplemental document (see §§ 651.5(g) and 651.24) and additional monitoring. If none of these conditions are met (that is, requirement by law, protected resources, no major controversy is involved, effectiveness of the mitigation is known, and the environmental or project conditions have not changed), then only an enforcement monitoring program is needed. Otherwise, both an enforcement and effectiveness monitoring program will be required.
(f) Enforcement monitoring program. The development of an enforcement monitoring program is governed by who will actually perform the mitigation; a contractor, a cooperating agency, or an in-house (Army) lead agency. The lead agency is ultimately responsible for performing any mitigation activities.
(1) Contract performance. Several provisions must be made in work to be performed by contract. The lead agency must ensure that contract provisions include the performance of the mitigation activity and that penalty clauses are written into the contracts. It must provide for timely inspection of the mitigation measures and is responsible for enforcing all contract provision.
(2) Cooperating agency performance. The lead agency must ensure that, if a cooperating agency performs the work, it understands its role in the mitigation. The lead agency must determine and agree upon how the mitigation measures will be funded. It must also ensure that any necessary formal paperwork such as cooperating agreements is complete.
(3) Lead agency performance. If the lead agency performs the mitigation, the proponent must ensure that needed tasks are performed, provide appropriate funding in the project budget, arrange for necessary manpower allocations, and make any necessary changes in the agency (installation) regulations (such as environmental or range regulations).
(g) Effectiveness monitoring. Effectiveness monitoring is often difficult to establish. The first step is to determine what must be monitored, based on criteria discussed during the establishment of the system; for example, the legal requirements, protected resources, area of controversy, known effectiveness, or changed conditions. Initially, this can be a very broad statement, such as reduction of impacts on a particular stream by a combination of replanting, erosion control devices, and range regulations. The next step is finding the expertise necessary to establish the monitoring system. The expertise may be available on-post or may be obtained from an outside source. After a source of expertise is located, the program can be established using the following criteria:
(1) Any technical parameters used must be measurable; for example, the monitoring program must be quantitative and statistically sound.
(2) A baseline study must be completed before the monitoring begins in order to identify the actual state of the system prior to any disturbance.
(3) The monitoring system must have a control, so that it can isolate the effects of the mitigation procedures from effects originating outside the action.
(4) The system’s parameters and means of measuring them must be replicable.
(5) Parameter results must be available in a timely manner so that the decision maker can take any necessary corrective action before the effects are irreversible.
(6) Not every mitigation has to be monitored separately. The effectiveness of several mitigation actions can be determined by one measurable parameter. For example, the turbidity measurement from a stream can include the combined effectiveness of mitigation actions such as reseeding, maneuver restrictions, and erosion control devices. However, if a method combines several parameters and a critical change is noted, each mitigation measurement must be examined to determine the problem.
Appendix D to Part 651—Public Participation Plan
The objective of the plan will be to encourage the full and open discussion of issues related to Army actions. Some NEPA actions will be very limited in scope, and may not require full public participation and involvement. Other NEPA actions will obviously be of interest, not only to the local community, but to others across the country as well.
(a) To accomplish this objective, the plan will require:
(1) Dissemination of information to local and installation communities through such means as news releases to local media, announcements to local citizens groups, and Commander’s letters. Such information may be subject to Freedom of Information Act and operations security review.
(2) The invitation of public comments through two-way communication channels that will be kept open through various means.
(3) The use of fully informed public affairs officers at all levels.
(4) Preparation of EAs which incorporate public involvement processes whenever appropriate (40 CFR 1506.6).
(5) Consultation of persons and agencies such as:
(i) Municipal, township, and county elected and appointed officials.
(ii) Tribal, state, county, and local government officials and administrative personnel whose official duties include responsibility for activities or components of the affected environment related to the proposed Army action.
(iii) Local and regional administrators of other federal agencies or commissions that may either control resources potentially affected by the proposed action (for example, the U.S. Fish and Wildlife Service) or who may be aware of other actions by different federal agencies whose effects must be considered with the proposed Army action (for example, the GSA).
(iv) Members of identifiable population segments within the potentially affected environments, whether or not they have clearly identifiable leaders or an established organization such as farmers and ranchers, homeowners, small business owners, and Native Americans.
(v) Members and officials of those identifiable interest groups of local or national scope that may have an interest in the environmental effects of the proposed action or activity (for example, hunters and fishermen, Isaak Walton League, Sierra Club, and the Audubon Society).
(vi) Any person or group that has specifically requested involvement in the specific action or similar actions.
(b) Public involvement should be solicited using the following processes and procedures:
(1) Direct individual contact. Such limited contact may suffice for all required public involvement, when the expected environmental effect is of a very limited scope. This contact should identify:
(i) Persons expected to express an opinion and later participate.
(ii) Preliminary positions of such persons on the scope of issues that the analysis must address.
(2) Small workshops or discussion groups.
(3) Larger public gatherings that are held after some formulation of the potential issues, inviting the public to express views on the proposed courses of action. Public suggestions or additional alternative courses of action may be expressed at these gatherings which need not be formal public hearings.
(4) Any other processes and procedures to accomplish the appropriate level of public involvement.
(c) Scoping Guidance. All affected parties must be included in the scoping process (AR 360-5). The plan must include the following:
(1) Information disseminated to local and installation communities through such means as news releases to local media, announcements to local citizens groups, and Commander’s letters at each phase or milestone (more frequently if needed) of the project. Such information may be subject to Freedom of Information Act and operations security review.
(2) Each phase or milestone (more frequently if needed) of the project will be coordinated with representatives of local, state, and federal government agencies.
(3) Public comments will be invited and two-way communication channels will be kept open through various means as stated above.
(4) Public affairs officers at all levels will be kept informed.
(5) When an EIS is being prepared, public involvement is a requisite element of the scoping process (40 CFR 1501.7(a)(1)).
(6) Preparation of EAs will incorporate public involvement processes whenever appropriate (40 CFR 1506.6).
(7) Persons and agencies to be consulted include the following:
(i) Municipal, township, and county elected and appointed officials.
(ii) Tribal, state, county, and local government officials and administrative personnel whose official duties include responsibility for activities or components of the affected environment related to the proposed Army action.
(iii) Local and regional administrators of other federal agencies or commissions that may either control resources potentially affected by the proposed action (for example, the U.S. Fish and Wildlife Service); or who may be aware of other actions by different federal agencies whose effects must be considered with the proposed Army action, (for example, the GSA).
(iv) Members of identifiable population segments within the potentially affected environments, whether or not they have clearly identifiable leaders or an established organization such as farmers and ranchers, homeowners, small business owners, and Indian tribes.
(v) Members and officials of those identifiable interest groups of local or national scope that may have interest in the environmental effects of the proposed action or activity (for example, hunters and fishermen, Isaak Walton League, Sierra Club, and the Audubon Society).
(vi) Any person or group that has specifically requested involvement in the specific action or similar actions.
(8) The public involvement processes and procedures by which participation may be solicited include the following:
(i) The direct individual contact process identifies persons expected to express an opinion and participate in later public meetings. Direct contact may also identify the preliminary positions of such persons on the scope of issues that the EIS will address. Such limited contact may suffice for all required public involvement, when the expected environmental effect is of very limited scope.
(ii) Small workshops or discussion groups.
(iii) Larger public gatherings that are held after some formulation of the potential issues. The public is invited to express its views on the proposed courses of action. Public suggestions or alternative courses of action not already identified may be expressed at these gatherings that need not be formal public hearings.
(iv) Identifying and applying other processes and procedures to accomplish the appropriate level of public involvement.
(9) The meetings described above should not be public hearings in the early stages of evaluating a proposed action. Public hearings do not substitute for the full range of public involvement procedures under the purposes and intent of (a) of this appendix.
(10) Public surveys or polls to identify public opinion of a proposed action will be performed (AR 335-15, chapter 10).
(d) Preparing the Notice of Intent. In preparing the NOI, the proponent will:
(1) In the NOI, identify the significant issues to be analyzed in the EIS.
(2) In the NOI, identify the office or person responsible for matters related to the scoping process. If they are not the same as the proponent of the action, make that distinction.
(3) Identify the lead and cooperating agency, if already determined (40 CFR 1501.5 and 1501.6).
(4) Identify the method by which the agency will invite participation of affected parties; and identify a tentative list of the affected parties to be notified.
(5) Identify the proposed method for accomplishing the scoping procedure.
(6) Indicate the relationship between the timing of the preparation of environmental analyses and the tentative planning and decision-making schedule including:
(i) The scoping process itself.
(ii) Collecting or analyzing environmental data, including studies required of cooperating agencies.
(iii) Preparation of DEISs and FEISs.
(iv) Filing of the ROD.
(v) Taking the action.
(7) For a programmatic EIS, preparing a general expected schedule for future specific implementing actions that will involve separate environmental analysis.
(8) If applicable, in the NOI, identify the extent to which the EIS preparation process is exempt from any of the normal procedural requirements of this part, including scoping.
Appendix E to Part 651—Content of the Environmental Impact Statement
(a) EISs will:
(1) Be analytic rather than encyclopedic. Impacts will be discussed in proportion to their significance; and insignificant impacts will only be briefly discussed, sufficient to show why more analysis is not warranted.
(2) Be kept concise and no longer than absolutely necessary to comply with NEPA, CEQ regulations, and this part. Length should be determined by potential environmental issues, not project size. The EIS should be no longer than 300 pages.
(3) Describe the criteria for selecting alternatives, and discuss those alternatives, including the “no action” alternative, to be considered by the ultimate decision maker.
(4) Serve as a means to assess environmental impacts of proposed military actions, rather than justifying decisions.
(b) The EIS will consist of the following:
(1) Cover sheet. The cover sheet will not exceed one page (40 CFR 1502.11) and will be accompanied by a signature page for the proponent, designated as preparer; the installation environmental office (or other source of NEPA expertise), designated as reviewer; and the Installation Commander (or other Activity Commander), designated as approver. It will include:
(i) The following statement: “The material contained in the attached (final or draft) EIS is for internal coordination use only and may not be released to non-Department of Defense agencies or individuals until coordination has been completed and the material has been cleared for public release by appropriate authority.” This sheet will be removed prior to filing the document with the EPA.
(ii) A list of responsible agencies including the lead agency and any cooperating agency.
(iii) The title of the proposed action that is the subject of the statement and, if appropriate, the titles of related cooperating agency actions, together with state and county (or other jurisdiction as applicable) where the action is located.
(iv) The name, address, and telephone number of the person at the agency who can supply further information, and, as appropriate, the name and title of the major approval authority in the command channel through HQDA staff proponent.
(v) A designation of the statement as a draft, final, or draft or final supplement.
(vi) A one-paragraph abstract of the statement that describes only the need for the proposed action, alternative actions, and the significant environmental consequences of the proposed action and alternatives.
(vii) The date by which comments must be received, computed in cooperation with the EPA.
(2) Summary. The summary will stress the major conclusions of environmental analysis, areas of controversy, and issues yet to be resolved. The summary presentation will focus on the scope of the EIS, including issues that will not be evaluated in detail. It should list all federal permits, licenses, and other entitlements that must be obtained prior to proposal implementation. Further, a statement of compliance with the requirements of other federal environmental protection laws will be included (40 CFR 1502.25). To simplify consideration of complex relationships, every effort will be made to present the summary of alternatives and their impacts in a graphic format with the narrative. The EIS summary should be written at the standard middle school reading level. This summary should not exceed 15 pages. An additional summary document will be prepared for separate submission to the DEP and the ASA(I&E). This will identify progress “to the date,” in addition to the standard EIS summary which:
(i) Summarizes the content of the document (from an oversight perspective).
(ii) Outlines mitigation requirements (to improve mitigation tracking and the programming of funds).
(iii) Identifies major and unresolved issues and potential controversies. For EIS actions that have been delegated by the ASA(I&E), this document will also include status of requirements and conditions established by the delegation letter.
(3) Table of contents. This section will provide for the table of contents, list of figures and tables, and a list of all referenced documents, including a bibliography of references within the body of the EIS. The table of contents should have enough detail so that searching for sections of text is not difficult.
(4) Purpose of and need for the action. This section should clearly state the nature of the problem and discuss how the proposed action or range of alternatives would solve the problem. This section will briefly give the relevant background information on the proposed action and summarize its operational, social, economic, and environmental objectives. This section is designed specifically to call attention to the benefits of the proposed action. If a cost-benefit analysis has been prepared for the proposed action, it may be included here, or attached as an appendix and referenced here.
(5) Alternatives considered, including proposed action and no action alternative. This section presents all reasonable alternatives and their likely environmental impacts, written in simple, nontechnical language for the lay reader. A no action alternative must be included (40 CFR 1502.14(d)). A preferred alternative need not be identified in the DEIS; although a preferred alternative generally must be included in the FEIS (40 CFR 1502.14(e)). The environmental impacts of the alternatives should be presented in comparative form, thus sharply defining the issues and providing a clear basis for choice among the options that are provided the decision maker and the public (40 CFR 1502.14). The information should be summarized in a brief, concise manner. The use of graphics and tabular or matrix format is encouraged to provide the reviewer with an at-a-glance review. In summary, the following points are required:
(i) A description of all reasonable alternatives, including the preferred action, alternatives beyond DA jurisdiction (40 CFR 1502.14(c)), and the no action alternative.
(ii) A comparative presentation of the environmental consequences of all reasonable alternative actions, including the preferred alternative.
(iii) A description of the mitigation measures and/or monitoring procedures (§ 651.15) nominated for incorporation into the proposed action and alternatives, as well as mitigation measures that are available but not incorporated and/or monitoring procedures (§ 651.15).
(iv) Listing of any alternatives that were eliminated from detailed study. A brief discussion of the reasons for which each alternative was eliminated.
(6) Affected environment (baseline conditions) that may be impacted. This section will contain information about existing conditions in the affected areas in sufficient detail to understand the potential effects of the alternatives under consideration (40 CFR 1502.15). Affected elements could include, for example, biophysical characteristics (ecology and water quality); land use and land use plans; architectural, historical, and cultural amenities; utilities and services; and transportation. This section will not be encyclopedic. It will be written clearly and the degree of detail for points covered will be related to the significance and magnitude of expected impacts. Elements not impacted by any of the alternatives need only be presented in summary form, or referenced.
(7) Environmental and socioeconomic consequences. This section forms the scientific and analytic basis for the comparison of impacts. It should discuss:
(i) Direct effects and their significance.
(ii) Indirect effects and their significance.
(iii) Possible conflicts between the proposed action and existing land use plans, policies, and controls.
(iv) Environmental effects of the alternatives, including the proposed action and the no action alternative.
(v) Energy requirements and conservation potential of various alternatives and mitigation measures.
(vi) Irreversible and irretrievable commitments of resources associated with the proposed action.
(vii) Relationship between short-term use of the environment and maintenance and enhancement of long-term productivity.
(viii) Urban quality, historic, and cultural resources, and design of the built environment, including the reuse and conservation potential of various alternatives and mitigation measures.
(ix) Cumulative effects of the proposed action in light of other past, present, and foreseeable actions.
(x) Means to mitigate or monitor adverse environmental impacts.
(xi) Any probable adverse environmental effects that cannot be avoided.
(8) List of preparers. The EIS will list the names of its preparers, together with their qualifications (expertise, experience, and professional disciplines) (40 CFR 1502.17), including those people who were primarily responsible for preparing (research, data collection, and writing) the EIS or significant background or support papers, and basic components of the statement. When possible, the people who are responsible for a particular analysis, as well as an analysis of background papers, will be identified. If some or all of the preparers are contractors’ employees, they must be identified as such. Identification of the firm that prepared the EIS is not, by itself, adequate to meet the requirements of this point. Normally, this list will not exceed two pages. Contractors will execute disclosure statements specifying that they have no financial or other interest in the outcome of the project. These statements will be referenced in this section of the EIS.
(9) Distribution list. For the DEIS, a list will be prepared indicating from whom review and comment is requested. The list will include public agencies and private parties or organizations. The distribution of the DEIS and FEIS will include the CBTDEVs from whom comments were requested, irrespective of whether they provided comments.
(10) Index. The index will be an alphabetical list of topics in the EIS, especially of the types of effects induced by the various alternative actions. Reference may be made to either page number or paragraph number.
(11) Appendices (as appropriate). If an agency prepares an appendix to an EIS, the appendix will consist of material prepared in connection with an EIS (distinct from material not so prepared and incorporated by reference), consist only of material that substantiates any analysis fundamental to an impact statement, be analytic and relevant to the decision to be made, and be circulated with the EIS or readily available.
Appendix F to Part 651—Glossary
Army Acquisition Executive.
Army Acquisition Pollution Prevention Support Office.
Acquisition Category.
Assistant Chief of Staff for Installation Management.
A-weighted day-night levels.
Air Quality Control Region.
Army Regulation.
Army National Guard.
Army Staff.
Assistant Secretary of the Army (Acquisition, Logistics, and Technology).
Assistant Secretary of the Army for Financial Management.
Assistant Secretary of the Army (Installations and Environment).
Assistant Secretary of Defense (International Security Affairs).
Cost Analysis Requirements Description.
Council on Environmental Quality.
Comprehensive Environmental Response Compensation and Liability Act.
C-Weighted Day-Night Levels.
Code of Federal Regulations.
Continental United States.
Categorical Exclusion.
Department of the Army.
Defense Acquisition Deskbook.
Deputy Assistant Secretary of the Army (Environment, Safety, and Occupational Health).
Deputy Chief of Staff for Logistics.
Deputy Chief of Staff for Operations and Plans.
Draft Environmental Impact Statement.
Director of Environmental Programs.
Department of Defense.
Description of Proposed Action and Alternatives.
Deputy for System Acquisition.
Defense Technical Information Center.
Doctrine, Training, Leader Development, Organization, Materiel, and Soldier.
Deputy Under Secretary of Defense for Installations and Environment.
Environmental Assessment.
Environmental Baseline Studies.
Environmental Coordinator.
Environmental Compliance Achievement Program.
Environmental Compliance Assessment System.
Engineering Evaluation/Cost Analysis.
Environmental Impact Computer System.
Economic Impact Forecast System.
Environmental Impact Statement.
Environmental Justice.
Explosive Ordnance Demolition.
Environmental Protection Agency.
Environmental Program Requirements.
Environmental Quality Control Committee.
Environment, Safety, and Health.
Federal Aviation Administration.
Final Environmental Impact Statement.
Finding of No Significant Impact.
Federal Register.
Feasibility Study.
Full-Time Permanent.
General Counsel.
Government-Owned, Contractor-Operated.
General Services Administration.
Headquarters, Department of the Army.
Integrated Cultural Resources Management Plan.
Integrated Concept Team.
Integrated Natural Resources Management Plan.
Integrated Process Team.
Installation Spill Contingency Plan.
Installation Status Report.
Integrated Training Area Management.
Life Cycle Environmental Documentation.
Major Army Command.
Materiel Developer.
Milestone Decision Authority.
Materiel Fielding Agreement.
Materiel Fielding Plan.
Military Construction.
Mission Needs Statement.
Memorandum of Agreement.
Memorandum of Understanding.
Native American Graves Protection and Repatriation Act.
National Environmental Policy Act.
National Guard Bureau.
National Historic Preservation Act.
Notice of Availability.
Notice of Intent.
National Performance Review.
Nuclear Regulatory Commission.
Notice of Availability of Weekly Receipts (EPA).
Office of the Assistant Secretary of Defense for Public Affairs.
Office of the Chief of Legislative Liaison.
Office of the Chief of Public Affairs.
Office of the Director of Environmental Programs.
Officer Foundation Standards.
Office of General Counsel.
Overarching Integrated Process Team.
Operations and Maintenance Army.
Operations and Maintenance Army National Guard.
Operations and Maintenance Army Reserve.
Operations Other Than War.
Operations Security.
Operating Requirements Document.
Office of the Secretary of Defense.
Office of the Surgeon General.
Public Affairs Officer.
Polychlorinated Biphenyls.
Preliminary Draft Environmental Impact Statement.
Program Executive Officer.
Program Manager.
Point of Contact.
Petroleum, Oils, and Lubricants.
Program Planning and Budget Execution System.
Resource Conservation and Recovery Act.
Research, Development, Test, and Evaluation.
Record of Environmental Consideration.
Record of Decision.
Record of Non-Applicability.
Regional Support Command.
Science and Technology.
Secretary of the Army.
Superfund Amendments and Reauthorization Act.
Stability and Support Operations.
Status of Forces Agreement.
Spill Prevention Control and Countermeasure Plan.
Technical Data Package.
Temporary Duty.
Test and Evaluation Master Plan.
The Judge Advocate General.
Table of Organization Equipment.
U.S. Army Training and Doctrine Command.
U.S. Army Corps of Engineers.
U.S. Army Center for Health Promotion and Preventive Medicine.
U.S. Army Environmental Center.
United States Code.
A category of actions that do not require an EA or an EIS because Department of the Army (DA) has determined that the actions do not have an individual or cumulative impact on the environment.
This term, as used in this part, will include all documentation necessary to coordinate and staff analyses or present the results of the analyses to the public or decision maker.
A government, regardless of recognition by the United States, political factions, and organizations, that exercises governmental power outside the United States.
Any geographic area (land, water, and airspace) that is under the jurisdiction of one or more foreign governments. It also refers to any area under military occupation by the United States alone or jointly with any other foreign government. Includes any area that is the responsibility of an international organization of governments; also includes contiguous zones and fisheries zones of foreign nations.
Geographical areas outside the jurisdiction of any nation. They include the oceans outside territorial limits and Antarctica. They do not include contiguous zones and fisheries zones of foreign nations.
As the principal planner, implementer, and decision authority for a proposed action, the HQDA proponent is responsible for the substantive review of the environmental documentation and its thorough consideration in the decision-making process.
Reinforces, but does not have a meaning independent of, “significantly affecting the environment,” and will be interpreted in that context. A federal proposal with “significant effects” requires an EIS, whether it is “major” or not. Conversely, a “major federal action” without “significant effects” does not necessarily require an EIS.
Personnel from a variety of disciplines who write environmental documentation in clear and analytical prose. They are primarily responsible for the accuracy of the document.
Proponent identification depends on the nature and scope of a proposed action as follows:
(1) Any Army structure may be a proponent. For instance, the installation/activity Facility Engineer (FE)/Director of Public Works becomes the proponent of installation-wide Military Construction Army (MCA) and Operations and Maintenance (O&M) Activity; Commanding General, TRADOC becomes the proponent of a change in initial entry training; and the Program Manager becomes the proponent for a major acquisition program. The proponent may or may not be the preparer.
(2) In general, the proponent is the unit, element, or organization that is responsible for initiating and/or carrying out the proposed action. The proponent has the responsibility to prepare and/or secure funding for preparation of the environmental documentation.
The significance of an action’s, program’s, or project’s effects must be evaluated in light of its context and intensity, as defined in 40 CFR 1508.27.
This part uses the following abbreviations, brevity codes or acronyms not contained in AR 310-50. These include use for electronic publishing media and computer terminology, as follows:
WWW World Wide Web.
PARTS 652-654 [RESERVED]
PART 655—RADIATION SOURCES ON ARMY LAND
§ 655.10 Oversight of radiation sources brought on Army land by non-Army entities (AR 385-10).
(a) As used in this section:
Agreement State has the same meaning as provided in 10 CFR 30.4.
Byproduct material has the same meaning as provided in 10 CFR 20.1003.
Radiation has the same meaning as provided in 10 CFR 20.1003.
Radioactive material includes byproduct material, source material, and special nuclear material.
Source material has the same meaning as provided in 10 CFR 20.1003.
Special nuclear material has the same meaning as provided in 10 CFR 20.1003.
(b) Army radiation permits are required for use, storage, or possession of ionizing radiation sources by non-Army entities (including their civilian contractors) on an Army installation. Such use, storage, or possession of ionizing radiation sources must be in connection with an activity of the Department of Defense or in connection with a service to be performed on the installation for the benefit of the Department of Defense, in accordance with 10 U.S.C. 2692(b)(1). Approval by the garrison commander is required to obtain an Army radiation permit. For the purposes of this section, an ionizing radiation source is:
(1) Radioactive material used, stored, or possessed under the authority of a specific license issued by the Nuclear Regulatory Commission (NRC) or an Agreement State (10 CFR parts 30, 40, and 70 or the equivalent regulations of an Agreement State); or
(2) A machine-produced ionizing radiation source capable of producing an area, accessible to individuals, in which radiation levels could result in an individual receiving a dose equivalent in excess of 0.1 rem (1 mSv) in 1 hour at 30 centimeters from the ionizing radiation source or from any surface that the radiation penetrates.
(c) A permit is not required for non-Army entities (including their civilian contractors) that use Army licensed radioactive material on an Army installation in coordination with the Army NRC licensee. The non-Army entity must obtain permission from the Army NRC licensee to use the radioactive materials and be in compliance with all of the Army NRC license conditions prior to beginning work on Army land.
(d) Other Military Departments are exempt from the requirement of paragraph (b) of this section to obtain an Army radiation permit; however, the garrison Radiation Safety Officer (RSO) must be notified prior to ionizing radiation sources being brought onto the installation.
(e) Applicants will apply for an Army radiation permit by letter with supporting documentation (paragraph (f) of this section) to the garrison commander through the appropriate tenant commander or garrison director. Submit the letter so that the garrison commander receives the application at least 30 calendar days before the requested effective date of the permit.
(f) The Army radiation permit application will include a proposed effective date and duration (not to exceed 12 months) for the Army radiation permit and describe the purposes for which the ionizing radiation source will be used. The application will include: Identification of the trained operating personnel who will be responsible for implementation of the activities authorized by the permit and a summary of their professional qualifications; the applicant’s point-of-contact name and phone number; the applicant’s radiation safety Standing Operating Procedures (SOPs); storage provisions when the ionizing radiation source is not in use; and procedures for notifying the garrison of reportable incidents/accidents.
(g) The garrison commander may approve the application only if the applicant provides evidence to show that one of the following is true:
(1) The applicant possesses a valid NRC license or Department of Energy (DOE) radiological work permit that allows the applicant to use the ionizing radiation source in the manner requested in the Army radiation permit application;
(2) The applicant possesses a valid Agreement State license that allows the applicant to use the ionizing radiation source in the manner requested in the Army radiation permit application. An applicant operating in areas subject to exclusive Federal jurisdiction (Agreement States Letter SP-96-022) has to file a NRC Form-241, Report of Proposed Activities in Non-Agreement States, with the NRC in accordance with 10 CFR 150.20(b);
(3) For machine-produced ionizing radiation sources, the applicant has an appropriate State authorization that allows the applicant to use the ionizing radiation source as requested in the Army radiation permit application and has in place a radiation safety program that complies with applicable Army regulations; or
(4) For installations outside of the United States, the applicant has an appropriate host-nation authorization as necessary that allows the applicant to use the ionizing radiation source in the manner requested in the Army radiation permit application and has in place a radiation safety program that complies with applicable Army regulations and host nation laws and regulations.
(h) Applicants and permit holders shall comply with all applicable Federal, state, interstate, and local laws and regulations, status-of-forces agreements (SOFAs), and other international agreements.
(i) Each Army radiation permit will require the permit holder to remove its permitted ionizing radiation sources from Army property prior to the expiration of the permit and restore all real or personal property of the Army that was modified, altered, or otherwise changed as a result of the permit holder’s activities to the condition such property was in prior to the effective date of the permit.
(j) An Army radiation permit issued pursuant to this section shall be valid for no more than 12 months.
(k) Disposal of radioactive material by non-Army entities on Army property is prohibited. However, the garrison commander may give written authorization for releases of radioactive material to the atmosphere or to the sanitary sewerage system if such releases are in compliance with all applicable Federal, State, interstate, and local laws and regulations, including but not limited to, the NRC regulations at 10 CFR part 20, Subpart K, or the equivalent requirements of an Agreement State, and regulations issued by the Army or the Department of Defense, to include compliance with any applicable requirement to obtain a permit, license, or other authorization, or to submit any information, notification, or report for such release.