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Title 32—
The current regulations issued by the Department of Defense appear in the volumes containing parts 1-189 and parts 190-399; those issued by the Department of the Army appear in the volumes containing parts 400-629 and parts 630-699; those issued by the Department of the Navy appear in the volume containing parts 700-799, and those issued by the Department of the Air Force, Defense Logistics Agency, Selective Service System, National Counterintelligence Center, Central Intelligence Agency, Information Security Oversight Office, National Security Council, Office of Science and Technology Policy, Office for Micronesian Status Negotiations, and Office of the Vice President of the United States appear in the volume containing part 800 to end.
For this volume, Cheryl E. Sirofchuck was Chief Editor. The Code of Federal Regulations publication program is under the direction of John Hyrum Martinez, assisted by Stephen J. Frattini.
(This book contains parts 630 to 699)
10 U.S.C. 3012(b)(1)(g).
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.
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.
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.
Requests for exceptions to policies contained in this part will be forwarded to HQDA (DAPM-MPD-LE), Washington, DC 20310-2800.
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.
(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.
(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.
(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.
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.
(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.
(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
(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).
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.
This subpart is not applicable to the U.S. Coast Guard.
(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
(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.
(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
(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.
(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
(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.
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.
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. 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. 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. 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. 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.
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).
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. 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. 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.
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.
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.
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.
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).
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).
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.
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.
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.
This regulation implements DOD Directive 5210.65. It sets uniform policy for use of force by DA law enforcement and security personnel.
(a) This regulation applies to all DA including Army National Guard and Army Reserve and civilian personnel engaged in law enforcement or security duties, and those civilian contract
(b) Except for personnel guarding U.S. military prisoners, this regulation does not apply to persons assigned to—
(1) A wartime combat zone.
(2) A non-wartime hostile fire area.
(3) Duties with the U.S. Secret Service.
(4) Civil disturbance control. (See para 4-12, FM 19-15.)
(a) Law enforcement and security personnel will use force only when they cannot fulfill their duties without it. They will use the minimum force needed; only as a last resort will they use deadly force. (See §§ 632.3(c), 632.4, and 632.5.)
(b) Commanders are encouraged to substitute nonlethal devices (such as night sticks) for firearms when adequate for law enorcement and security personnel to safely fulfill their duties.
(c) In evaluating the degree of force needed for specific law enforcement or security situations, consider these options:
(1) Verbal persuasion.
(2) Unarmed defense techniques.
(3) Chemical aerosol irritant projectors (M36). (May be subject to host nation or local restrictions.)
(4) MP club.
(5) MP working dogs.
(6) Deadly force. (§ 632.4)
(d) Entrapment,
(e) Use MP working dogs in accordance with the provisions of AR 190-12. Release dogs only if a lesser measure of force would not be effective.
(1) Releasing a sentry dog to apprehend a suspect is a greater measure of force than releasing a patrol dog.
(2) Before releasing a military dog for attack, give a challenge or order to halt.
(a) Deadly force is destructive physical force directed against a person or persons (e.g., firing a lethal weapon). Use it only in extreme need, when all lesser means have failed or cannot reasonably be used. Use deadly force for one or more of the following reasons only:
(1) In self-defense, when in imminent danger of death or serious injury.
(2) To protect property related to national security, when reasonably necessary to prevent—
(i) Threatened theft, damage, or espionage aimed at property or information specified by a commander or other competent authority as vital to national security. (See paragraph (b) of this section.)
(ii) Actual theft, damage, or espionage aimed at property or information which, though not vital, is substantially important to national security. (See paragraph (b) of this section.)
(iii) Escape of an individual whose unauthorized presence near property or information vital to national security is a reasonable threat of theft, sabotage, or espionage.
(3) To prevent actual theft or sabotage of property (such as operable weapons or ammunition) which could cause deadly harm to others in the hands of an unauthorized person.
(4) To prevent serious offenses against a person or persons (e.g., armed robbery, rape, or violent destruction of property by arson, bombing).
(5) To apprehend a suspect believed to have committed any of the types of offenses named in paragraphs (a) (2), (3), and (4) of this section.
(6) To prevent the escape of a prisoner (when authorized by a commander or other competent authority and reasonably necessary).
(7) To obey lawful orders from higher authority governed by this regulation.
(b) A commander or other competent authority will specify that property or information is—
(1) Vital to national security only when its loss, damage, or compromise would seriously harm national security or an essential national defense mission.
(2) Substantially important to national security based on the mission and the material or information required to perform it.
(c) To comply with local law or international agreement or arrangements, a
(d) Security criteria and standards for protection of nuclear weapons (paragraph (c) of this section AR 50-5-1) and for chemical agents (paragraph (c) of this section AR 50-6-1) also apply.
(a) If it becomes necessary to use a firearm in any of the circumstances described in § 632.4 of this part, observe the following precautions when possible:
(1) Give an order to halt before firing.
(2) Do not fire if shots are likely to harm innocent bystanders.
(3) Since warning shots could harm innocent bystanders, avoid firing them. However, when lesser degrees of force have failed, the law enforcement or security person may judge that warning shots would help to control the situation without using deadly force. If able to avoid hazards to innocent persons in these cases, fire warning shots.
(4) Aim to disable. At times it may be difficult to fire with enough precision to ensure disabling rather than killing. If the use of firearms are otherwise authorized by this regulation, such circumstances will not rule out their use.
(a) Commanders will ensure that all persons assigned to law enforcement, security, or US military prisoners' guard duties will, before performing these duties—
(1) Receive instructions on regulations regarding use of force.
(2) Show knowledge and skill in the use of—
(i) Unarmed defense techniques.
(ii) MP club.
(iii) Individual chemical aerosol irritant projectors.
(iv) Their assigned firearms.
(b) Commanders will also—
(1) Provide periodic refresher training to ensure continued proficiency and updated knowledge in these skills. (Include applicable host nation requirements.)
(2) Require MPs with law enforcement duties to qualify yearly with their assigned handguns.
(3) Require interior guards to receive instructions regarding use of force. (Give periodic refresher training to ensure continued familiarity with regulations.)
(c) Requirements concerning use of the MP club and chemical aerosol irritant projectors apply only when these weapons are issued items or are carried on duty.
(d) FM 19-5 contains procedures and methods for using unarmed defense techniques and the MP club.
Sec. 3012, 70A Stat. 157; 10 U.S.C. 3012.
All requests for access to CID reports made under the Privacy or Freedom of Information Acts will be processed in accordance with AR 340-21 and AR 25-55, respectively.
USACIDC reports of investigation (ROI) are exempt from the amendment provisions of the Privacy Act and AR 340-21. Requests for amendment will be considered only under the provisions of this regulation. Requests to amend USACIDC 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 ROI. 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
Requests for access to, or amendment of, USACIDC investigative reports will be forwarded to the Director, U.S. Army Crime Records Center (CICR-FP), 27130 Telegraph Road, Quantico, VA 22134.
10 U.S.C. 30112(g); 5 U.S.C. 2951; Pub. L. 89-564; 89-670; 91-605; and 93-87.
(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.
Required and related publications along with prescribed and referenced forms are listed in Appendix A, AR 190-5.
Abbreviations and special terms used in this subpart are explained in the Glossary of AR 190-5. It is available on the internet at:
(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.
(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.
(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.
(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.
(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.
(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).
(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.
(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]
(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
(b) Operators of Government motor vehicles must have proof of authorization to operate the vehicle.
(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.
(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.
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.
(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.
(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.
(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.
(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
(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 (
(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
(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.
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.
(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,
(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.
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.
(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.
(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
(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.
(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
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.
(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.
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
(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.
(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.
(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.
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.
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."
(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.
(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).
(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.
(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.
(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
(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.
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.
(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.
(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.
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.
(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.
(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.
(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.
(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.
(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
(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.
(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.
(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.
(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.
(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.
(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.
(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
(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.
(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.
(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.
(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.
(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
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.
(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).
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.
Violation: Driving while driver's license or installation driving privileges are under suspension or revocation.
Violation: Refusal to submit to or failure to complete chemical tests (implied consent).
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.
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.
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.
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.
(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).
(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.
Procedures will be established to ensure prompt notice to the installation law enforcement officer when a person
(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.
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.
(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
(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.
(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.
(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
(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.
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).
(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.
28 U.S.C. 534, 42 U.S.C. 10601, 18 U.S.C. 922, 10 U.S.C. 1562, 10 U.S.C. Chap. 47, 42 U.S.C. 16901
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.
(a) Military police records are unclassified except when they contain national security information as defined in AR 380-5 (Available at
(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.
(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
(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
(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,
(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
(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
(d) Local police intelligence files may be exempt from 32 CFR part 518 and the FOIA's disclosure requirements.
(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.
(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
(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
(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
(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.
(a) Army Law Enforcement (LE) personnel will collect deoxyribonucleic acid (DNA) pursuant to DoDI 5505.14 (available at
(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
(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
(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
(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.
(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
(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.
(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
(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.
(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.
(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.
(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
(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
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.
(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
(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
(a) Installation PM/DES will comply with the reporting requirements set forth in AR 608-18 (available at
(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.
(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.
(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.
(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.
(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
(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.
(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.
(a) As required by DoDD 1030.01 (Available at
(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]
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
10 U.S.C. 30112(g); 5 U.S.C. 2951; Pub. L. 89-564; 89-670; 91-605; and 93-87.
This part contains regulations which are in addition to the motor vehicle supervision regulations contained in 32 CFR part 634. Each subpart in this part contains additional regulations specific to the named installation.
In addition to the responsibilities described in § 634.4 of this subchapter, Unit Commanders will:
(a) Monitor and control parking of military and privately owned vehicles within the unit's area, to include motor pools and assigned training areas.
(b) Establish a program in accordance with 24th Infantry Division (Mechanized) and Fort Stewart Regulation 755-2 to identify abandoned privately owned vehicles in the unit's area and coordinate with the Military Police for impoundment.
(c) In coordination with the Military Police, identify problem drivers in the unit and take appropriate action to improve their driving habits.
(d) Ensure that the contents of this part are explained to all newly assigned personnel, including personnel on temporary duty with their unit for 10 days or more.
(e) Identify unit member's vehicles which have obvious safety defects (see § 636.33) and take appropriate action to have the defect corrected. Commanders who cause a vehicle to be removed from the installation without the consent of the owner could be found liable for subsequent damage done to the vehicle provided that the damage was the result of negligence on the part of the government personnel.
(f) Identify those individuals required to attend the Defensive Driving Course (DDC) or Motorcycle Defensive Driving Course (MDDC) and ensure their attendance at the course.
In addition to the requirements of § 634.5 of this subchapter:
(a) The entry of motor vehicles on the Fort Stewart/Hunter Army Airfield reservation is permitted by the Commanding General under the conditions prescribed by this part. Upon entering the military reservation, the driver subjects himself and his vehicle to reasonable search. The authority to search vehicles on post is subject to the provisions of AR 190-22 and AR 210-10. This part is not applicable to vehicle safety inspections and spot checks conducted primarily for purposes of safety.
(b) The Military Police may:
(1) Inspect any vehicle operated on the reservation for mechanical condition.
(2) Impound, exclude, or remove from the reservation any vehicle used as an instrument in a crime, suspected of being stolen, abandoned, inoperable, unregistered, or being operated by a person under the influence of intoxicants or drugs. No vehicle will be impounded unless the impoundment meets the requirements of AR 190-5, paragraph 6-2 (32 CFR 634.50) and § 636.38 of this subpart. In the event a vehicle is impounded as an instrument of crime (particularly in the transport of illegal drugs or weapons), coordination will be made with the appropriate civilian law enforcement agencies.
(3) Subsequent to a lawful apprehension, seize for administrative forfeiture proceedings all conveyances which are used, or are intended to be used to transport, sell or receive, process or conceal illegal drugs or drug paraphernalia, or in any way facilitate the foregoing. A conveyance is defined as any mobile object capable of transporting objects or people (e.g., automobile, truck, motorcycle, boat, airplane, etc.).
(c) The Commander or other persons designated authority by the Commander may suspend or revoke the installation driving privileges of any person as authorized by part 634 of this subchapter and this section.
(d) Unit commanders may request temporary suspension of an assigned member's installation driving privilege for cause (e.g., continued minor driving
In addition to the requirements of § 634.10 of this subchapter:
(a) Administrative suspension or revocation of installation driving privileges applies to the operation of a motor vehicle on Fort Stewart/Hunter Army Airfield.
(b) Installation driving privileges will be suspended for up to 6 months for drivers who accumulate 12 traffic points within 12 consecutive months, or 18 traffic points within 24 consecutive months.
(c) The Garrison Commander and Deputy Garrison Commander are designated as suspension/revocation authorities for:
(1) Suspension of driving privileges should the evidence indicate that a charge of driving under the influence is warranted or;
(2) The suspension/revocation for accumulation of 12 traffic points within 12 months or 18 points within 24 consecutive months.
In addition to the requirements of § 634.11(a) of this subchapter:
(a) The Provost Marshal or his designee will provide the written notice of pending action and offer of an administrative hearing using AFZP Form Letter 316, Suspension of Installation Driving Privileges.
(b) The Garrison Commander and Deputy Garrison Commander are designated as reviewing authorities to conduct administrative hearings.
(c) Individuals who desire an administrative hearing to review a decision to impose immediate suspension, or to appeal the decision of the administrative hearing officer, will adhere to the following procedures. A request for an administrative hearing will be forwarded through their supervisory chain of command. Requests from family members or non-employee civilians can be forwarded to the Provost Marshal's Administrative Section at Fort Stewart or Hunter Army Airfield and can either be delivered or post marked within ten days of notification of the suspension action.
(d) Individuals who were initially charged with driving under the influence (DUI) based in part on a blood alcohol content (BAC) test which has not subsequently been invalidated and who are found not guilty of DUI may request a hearing to determine if their driving privileges should be restored. Such requests shall be forwarded through their chain of command to arrive at the Provost Marshal's Office (AFZP-PMA for Fort Stewart or AFZP-PM-H for Hunter Army Airfield) not later than ten working days after the date of court action.
For this installation, in violation of State law referenced in § 634.12(a)(3) of this subchapter, means a blood alcohol content of 0.10 percent or higher as set forth in Official Code of Georgia Annotated 40-6-392(b)(3).
For this installation remedial driving training program referenced in § 634.12(b) of this subchapter is operated by the Installation Safety Office. Driving privileges may be withheld beyond expiration of the sanction to complete remedial driving or alcohol and drug rehabilitation programs in accordance with AR 190-5, paragraphs 2-12c and d, and 5-4f (32 CFR 634.17(c) and (d) and 634.17(f)).
In addition to the requirements in § 634.17(a) of this subchapter, for each subsequent violation of the suspension period, an additional five years will be added to the suspension period for this installation (see Table 634.46 in § 634.46 of this subchapter).
In addition to the requirements of § 634.19(a) of this subchapter, motor vehicles which are owned and/or operated by a person who resides, performs duty, is employed on, or "frequently uses" the facilities of Hunter Army Airfield will be registered in accordance with the requirements of § 634.20 of this subchapter. Frequent users include but are not limited to family members, retirees, and civilians whose normal route of travel between home and work takes them through the installation.
In addition to the requirements of § 634.20 of this subchapter:
(a) The Military Police will cite violators on DD Form 1408 (Warning Citation) for observed safety defects. On a periodic basis, Military Police will conduct vehicle safety inspection operations using the criteria in § 636.33.
(b) An individual possessing a valid USAREUR privately owned vehicle (POV) license may operate a motor vehicle in the State of Georgia for a period not to exceed 30 days. After the 30 day period the individual must obtain a valid license from the State of Georgia or another state to operate a motor vehicle in the State of Georgia.
(c) An individual returning a vehicle to Continental United States (CONUS) has 30 days from date of entry or 10 days after reporting for military duty to register that vehicle in the State of Georgia or another state. A temporary pass will be issued until this requirement has been met.
(i) Liability:
(A) $15,000.00 per person per accident for bodily injury.
(B) $30,000.00 per incident for bodily injury.
(C) $10,000.00 per accident for property damage.
(ii) No-Fault—$5,000.00.
(2) Proof of this insurance will be required at the time of registration.
(e) Vehicle safety inspections are not required in the State of Georgia, however, vehicles operated on Fort Stewart/Hunter Army Airfield must be in safe operating condition and be able to pass spot vehicle safety equipment checks conducted by the Military Police. Safety criteria is set forth in § 636.33 of this subpart.
Personnel assigned or employed at Hunter Army Airfield are required to register their privately owned vehicles within five days after arrival to the installation. Requirements for registration are listed in AR 190-5 and this part.
(a) Temporary passes may be issued to personnel not assigned to the installation but requiring temporary access to the installation. These include personnel employed by construction and material handling vehicles requiring on post access. Personnel requesting temporary passes must meet the same requirements as do personnel requiring decals.
(1) Temporary passes will not exceed 45 days. Renewal of temporary passes is prohibited except upon approval of the Installation Commander or his/her designee.
(2) Temporary passes will be conspicuously placed on the left side of the vehicle dashboard between the dashboard and the front windshield. Nothing will be placed so as to obscure the view of the temporary pass from the exterior of the vehicle. The pass will remain in this position during the entire time the vehicle is on the installation. Failure to conspicuously display the temporary pass could result in the vehicle being removed from the installation.
(3) Temporary passes will remain with the vehicle for which they were issued and not be transferred to other vehicles.
(4) Each person driving a vehicle on the installation must individually meet the drivers license requirement of the installation as well as sign the temporary pass.
(5) Temporary passes will be returned to the Vehicle Registration section
(b) Decals are to be issued to all military and civilian employees of Hunter Army Airfield, military retirees, and contractors/vendors doing extended business on the installations. Requirements outlined in AR 190-5 (32 CFR part 634) and this part must be met before decals are issued.
(c) Personnel requiring permanent decals, who do not meet the requirements outlined in AR 190-5 (32 CFR part 634) and this part, will be issued temporary passes not to exceed 45 days. Registration requirements will be met as soon as possible after issuance of the temporary pass. A decal may then be issued.
(d) DOD decals (DD Form 2220) will be utilized for vehicle registration. Additional installation name and expiration month and year decals will be utilized with sizes and coloration as prescribed in AR 190-5 (32 CFR part 634).
(e) Decals will be permanently affixed to the vehicles for which they are registered in one of two places:
(1) Exterior, front windshield lower left corner.
(2) Front, left bumper of the vehicle, conspicuously displayed. Decals will not be affixed to the front spoilers or any other area which obscures the viewing of the decal.
(3) Installation decals will be placed directly beneath and centered on the DOD decal. Expiration decals will be placed on each side and level with the DOD decal with the month on the left and the year on the right.
(4) Decals will not be affixed to any other portion of the vehicle other than listed in § 636.10(e) (1) through (3).
In addition to the requirements in § 634.25(d) of this subchapter, on-post violations offenders will be cited under the appropriate Georgia Traffic Code as assimilated by 18 U.S.C. 13 (for civilians) and Art 134c, Uniform Code of Military Justice (UCMJ) (for military). If no Georgia Code is appropriate for a specific offense, civilians will be cited under 40 U.S.C. 318a and military personnel will be cited under Art 92, UCMJ. The Fort Stewart/Hunter Army Airfield installation traffic code conforms to the State of Georgia Traffic Law.
In addition to the requirements in § 634.28 of this subchapter, Military Police at Fort Stewart/Hunter Army Airfield installation will investigate reportable motor vehicle accidents involving government owned or privately owned vehicles.
In addition to the requirements in § 634.29 of this subchapter:
(a) Military Police at Fort Stewart/Hunter Army Airfield installations will record traffic accident investigations on DA Form 3946 (Military Police Traffic Accident Report) and DA Form 3975 (Military Police Report).
(b) All privately owned motor vehicle accidents on Fort Stewart or Hunter Army Airfield will be immediately reported to the Military Police for investigation. Unless an emergency situation exists, vehicle(s) involved in an accident will only be moved on order of the Military Police.
In addition to the requirements in § 634.31 of this subchapter:
(a) Military Police will enforce parking in handicapped and Commanding General reserved parking spaces at Fort Stewart/Hunter Army Airfield soldier service facilities and assess points in accordance with Table 634.46 in § 634.46 of this subchapter and Table 636.19 in § 636.19. Vehicles may be towed for such violations as parking in handicapped parking spaces and parking on a yellow curb among others.
(b) Reserved parking spaces in areas under the control of units or staff sections may be designated by the commander or staff section chief who is also responsible to control the use of these spaces.
(c) Parking spaces for tactical vehicles at the Main Exchange/Commissary area will be designated at the end of rows, farthest from the facilities. Only those vehicles properly authorized by unit commanders will be parked at the Main Exchange/Commissary area.
In addition to the requirements in § 634.32 of this subchapter:
(a) The Provost Marshal in coordination with the Staff Judge Advocate will determine what traffic offenses will be referred to the U.S. Magistrate Court by means of DD Form 1805.
(b) Of the four available actions on the back of the DD Form 1408, supervisors of civilian employees may take one of the following two actions.
(c) No action taken: A finding of not guilty. There must be an explanation of the reason for no action taken.
(d) Administration: A finding of guilty. This includes, but is not limited to, such actions as a written warning, letter of reprimand, or suspension. Supervisors should coordinate with CPO, MER branch before taking adverse action.
(e) Reports of Commander's action taken will be forwarded to the Provost Marshal Office through the appropriate major subordinate commander.
In addition to the requirements in § 634.36 of this subchapter, the standard field sobriety test used by the Military Police may include the following tests:
(a) Horizontal gaze nystagmus.
(b) Walk and turn.
(c) One leg stand.
In addition to the requirements of § 634.42 of this subchapter, the Provost Marshal will conduct necessary coordination with civil enforcement agencies to ensure receipt of information and assistance as required. The Directorate of Logistics will secure any necessary permits for military movement on public roads and highways.
In addition to the requirements in § 634.44 of this subchapter, the Provost Marshal Office will maintain driver records.
In addition to the requirements of § 634.47 of this subchapter:
(a) Reports of parking violations recorded on DD Form 1408 or DD Form 1805 will serve as a basis for determining point assessment.
(b) The instructions in paragraph (a) of this section also apply to the receipt of a DD Form 1408 (Armed Forces Traffic Ticket) for a parking violation.
(a) All drivers will obey the instructions of official signs, unless directed to do otherwise by the Military Police.
(b) Official traffic control devices, such as traffic cones or barricades, are presumed to have been placed by proper authority.
(a) Georgia state speed limits apply unless otherwise specified by this part.
(b) Drivers will operate their vehicles at a reasonable and prudent speed based on traffic and road conditions, regardless of posted speed limits.
(c) The speed limit on the installation is 30 miles per hour unless otherwise posted or if it falls within one of the special speed limit situations (see paragraph (d) of this section).
(d) The following special speed limits apply:
(1) When passing troop formations, 10 miles per hour.
(2) The authorized speed limit in the school zones is 15 miles per hour when any of the following conditions are present:
(i) A school crossing attendant is present.
(ii) Children are present in the area.
(iii) The flashing, yellow, caution lights are in operation.
(3) Fort Stewart housing areas, 20 miles per hour. Hunter Army Airfield housing areas, 15 miles per hour.
(4) Tactical vehicle drivers will obey posted speed limits; however, drivers will not exceed 40 miles per hour on paved roads and 25 miles per hour on
(5) Parking lots, 10 miles per hour.
(6) The authorized maximum speed limit for rough terrain forklifts when operated on hard surface roads will not exceed 15 miles per hour. These vehicles will also bear the Triangular Symbol to alert trailing vehicles as required by the Occupational Safety and Health Administration (OSHA) (29 CFR 1910.145).
(a) U-turns are prohibited on all streets in the cantonment area.
(b) Right-turns will be made from a position as close to the right edge or right curb of the roadway as possible.
(c) Left-turns will be made from a position as close to the center line as possible or from a left turn lane, if available.
(d) All turns will be signaled continuously beginning not less than 100 feet prior to the turn.
(a) All drivers will use the right side of roadways, except:
(1) When passing a vehicle proceeding in the same direction.
(2) When an obstruction is blocking all or part of the right lane of the roadway.
(3) When driving on a one-way street.
(b) Drivers proceeding in opposite directions will pass to the right, each using one-half of the roadway.
(c) Drivers passing another vehicle traveling in the same direction will exercise the utmost caution and safety and will abide by all applicable traffic laws.
(d) Drivers of vehicles being passed will give way to the right and not increase their vehicle's speed.
(e) Drivers will allow a sufficient distance between their vehicle and the vehicle in front to allow a safe stop under all conditions.
(a) When two vehicles enter an intersection from different highways at the same time, the driver of the vehicle on the left will yield right-of-way. When entering an intersection without traffic control devices from a highway which terminates at the intersection, that driver will yield right-of-way.
(b) Drivers turning left within an intersection will yield right-of-way to vehicles approaching from the opposite direction.
(c) Drivers approaching a stop sign will stop at the marked stop line, if present, or before entering the crosswalk, if present, or at a point nearest the intersecting roadway where the driver will yield the right-of-way, if required.
(d) Drivers approaching yield signs will slow down to a speed not exceeding 10 miles per hour and yield the right-of-way to any approaching vehicles, coming to a stop if necessary.
(e) Drivers entering or crossing a roadway from any place other than another roadway will yield the right-of-way to vehicles on the roadway.
(f) Upon the immediate approach of an authorized emergency vehicle identified as such, all drivers will yield the right-of-way to the emergency vehicle.
(a) Pedestrians will obey all traffic control devices and regulations, unless directed to do otherwise by the Military Police.
(b) When traffic-control signals are not in place or not in operation, the driver of a vehicle will yield the right of way, by slowing down or stopping, when a pedestrian is in a crosswalk on the same side of the road as the driver's vehicle, or when the pedestrian is approaching so closely from the opposite half of the roadway as to be in danger.
(c) Pedestrians will not suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close to the crosswalk that it is impractical for the driver to stop.
(d) Pedestrians crossing a roadway, at a point other than a crosswalk, will yield the right-of-way.
(e) Pedestrians will not cross any intersection diagonally unless clearly authorized to do so.
(f) Every driver will exercise due care to avoid colliding with any pedestrian upon any roadway and will exercise proper precaution upon observing any child or any obviously confused, incapacitated, or intoxicated person.
(g) A person who is under the influence of intoxicating liquor or any drug to a degree which renders himself a hazard will not walk upon any roadway.
(h) Pedestrians will use sidewalks, where provided, rather than walking upon the roadway. When sidewalks are not provided, pedestrians will walk the shoulder of the roadway as far from the edge of the roadway as possible. When neither sidewalks nor a shoulder are available, pedestrians will walk on the extreme edge of the roadway, facing traffic, and will yield to all oncoming traffic.
(i) Individuals will not stand in or beside the roadway to solicit rides (hitch-hike).
(j) Individuals will not stand in or beside the roadway to solicit business, employment, or contributions from the occupant of any vehicle.
(k) Pedestrians will yield to all authorized emergency vehicles using an audible signal and/or a visual signal.
(l) The wearing of headphones or earphones by pedestrians or joggers while walking or jogging on roadways or on the shoulders of roadways is prohibited.
(a) Parents will not knowingly allow their children to violate any of the provisions of this section.
(b) Traffic laws and regulations in this part apply to persons riding bicycles. Bicycle riders are granted all the rights and are subject to all duties of motorized vehicle operators, except those which logically do not apply.
(c) Bicycles will be parked against the curb or in a rack, provided for that purpose, and will be secured.
(d) Bicycle riders will not attach the bicycle or themselves to any motorized vehicle operating upon the roadway.
(e) Bicycles will be ridden upon the roadway in single-file.
(f) Bicycles operated between dusk and dawn will utilize a headlight visible for a minimum of 300 feet and a rear reflector or red light visible for 300 feet to the rear.
(g) Bicycles will not be ridden without an operable brake system.
(h) Bicycles will not be ridden if the pedal, in its lowermost position, is more than 12 inches above the ground.
(i) If a bicycle/pedestrian path or sidewalk is present, bicyclists will use the patch or sidewalk instead of the roadway.
(j) Certain roadways have been designated and marked as being off-limits to bicyclists. Bicyclists will use an alternate roadway or a bicycle path rather than those roadways.
(a) Traffic laws and regulations in this part apply to persons riding motorcycles/mopeds. Motorcyle/moped operators are granted all the rights and are subject to all duties of motor vehicle operators, except those which logically do not apply.
(b) Motorcycles/moped operators will ride only while seated facing forward with one leg on either side of the vehicle on the permanent and regular seat of the vehicle. Passengers will not be carried unless the vehicle is designed to carry a passenger. Passengers will only be carried in a manner which neither interferes with the operation of the vehicle nor obstructs the operator's view. Operators will keep both hands on the vehicle's handlebars.
(c) Motorcycle/moped operators are entitled to the use of a full lane of traffic. Motorcycle/moped operators will not pass another vehicle using the same lane as the overtaken vehicle. Motorcycles/mopeds will not be operated between lanes of traffic or between adjacent lines or rows of vehicles.
(d) Motorcycles/moped headlights and tail lights will be illuminated at anytime the vehicle is being operated.
(e) Motorcycle/moped operators will not attach their vehicle or themselves to any other motorized vehicle operating upon the roadway.
(f) Footrests will be provided for passengers. Motorcycles/mopeds will not be operated with handlebars more than 15 inches above the seat which the operator occupies. No back rest attached to the motorcycle/moped will have a sharp point at its apex.
(g) All motorcycle/moped operators/passengers will comply with the following safety requirements:
(1) Wear the following protective equipment:
(i) Properly fastened (under the chin) DOT approved helmet.
(ii) Eye protection (clear goggles or a face shield attached to the helmet).
(iii) Full-fingered gloves.
(iv) Long trousers.
(v) Long-sleeved shirt or jacket (with sleeves rolled down).
(vi) Leather boots or over-the-ankle shoes.
(vii) High-visibility garments (bright color for day and retro-reflective for night).
(2) Motorcycle/moped headlights will be turned on at all times.
(3) Motorcycle/moped must have two rear-view mirrors (one mirror on each side of the handlebars).
(4) Use of headphones or earphones while driving is prohibited.
(h) Military personnel, civilian employees, and family member drivers of a privately or government-owned motorcycle/moped (two or three wheeled motor driven vehicles) are required to attend and complete an approved Motorcycle Defense Driving Course (MDDC) prior to operation of the motorcycle/moped on the installation. Upon completion of the course, personnel will be provided with a MDDC card. Personnel are authorized to operate their motorcycle/moped on the installation for the purpose of attending the motorcycle safety course. Attendance may be verified by contacting the Installation Safety Office.
(a) Operators of "go-carts," "minibikes," and ATV's 16 years of age or older, must comply with applicable Georgia State Law and Fort Stewart traffic laws and regulations contained in this part.
(b) "Go-carts," "minibikes," and ATV's operated on installation roadways are required to meet the requirements of this part and the Georgia Traffic Code.
(c) Off-road vehicles will only be operated in areas specified by the DPCA. The DPCA will specify conditions for off-road operation.
(d) "Go-carts," "minibikes," and ATV's will only be operated during daylight hours and will not be operated during periods of inclement weather or reduced visibility.
(e) Operators and passengers of "go-carts," "minibikes," and ATV's must wear approved protective helmets, eye protection, and footwear (open-toed footwear is prohibited).
(f) Soldiers or sponsors of persons operating "go-carts," "minibikes," and ATV's are responsible for the safe operation of the vehicle.
(a) Drivers will not stop, park, or leave standing their vehicle, whether attended or unattended, upon the roadway when it is possible to stop, park or leave their vehicle off the roadway. In any case, parking or standing the vehicle upon the roadway will only be done in an emergency.
(b) Vehicles, not clearly identified as operated by a handicapped individual, will not be parked in a handicapped parking space.
(c) Whenever Military Police find a vehicle parked or stopped in violation of this section, they may immediately move, or cause to be moved, the vehicle off the roadway. At the direction of the Provost Marshall, or his designee, vehicles parked in restricted or reserved parking spaces, may be moved.
(d) The Military Police may remove or cause to be removed, to a safe place, any unattended vehicle illegally left standing upon any highway or bridge or within 10 feet of any railroad track on the installation.
(e) As a crime prevention measure, the Military Police may pick up keys left in vehicles, secure the vehicle in place, and post a notice directing the
(f) No driver will stop, stand, or park a vehicle:
(1) On the roadway side of any vehicle stopped or parked at the edge of a curb or a street.
(2) On a sidewalk.
(3) Within an intersection.
(4) On a crosswalk.
(5) Alongside or opposite any street excavation or obstruction when traffic would be obstructed.
(6) Upon a bridge or other elevated structure.
(7) On any railroad tracks or within 10 feet of any rail road track.
(8) On any controlled-access highway.
(9) Where prohibited by official signs.
(10) Alongside any roadway in any manner which obstructs traffic.
(g) No driver will stand or park a vehicle, whether occupied or not, except momentarily to pick up or discharge a passenger or passengers:
(1) In front of a public or private driveway.
(2) Within 10 feet of a fire hydrant.
(3) Within 20 feet of a crosswalk at an intersection.
(4) Within 20 feet upon the approach to any flashing signal, a stop sign, yield sign, or traffic control signal located at the side of a roadway.
(5) Within 20 feet of a driveway entrance to any fire station and on the side of a street opposite the entrance to any fire station within 75 feet of said entrance (when properly sign posted).
(6) At any place where official signs prohibit standing.
(7) Adjacent to any curb painted yellow or identified, by signs, as a "No Parking" area.
(8) Along a roadway against the flow of traffic.
(9) Within 20 feet of any building in what would reasonably be considered a "fire-lane" unless specified as a parking space.
(10) Parallel parking along the curb is authorized in housing areas unless otherwise posted.
(11) Parking is prohibited upon lawns or grassed (seeded) areas, unless specifically authorized by the Provost Marshal. This prohibition is not intended, however, to extend to those locations designated as bivouac sites, range areas, etc.
(12) No dual-wheeled or tandem-wheeled recreational vehicles and trailers will be stored at government quarters. All other recreational vehicles, to include campers, trailers, boats, pop-up campers, and camper shells may be parked in the driveway area or under the carport of individual quarters. To prevent injury to children playing on and around trailers, one tire on each side of the trailer will be chocked in front and back. Trailer tongues, without installed supports, will either be left on the ground or supported in such a manner as to preclude the support tipping over and allowing the trailer tongue to fall. If the vehicle creates a safety hazard or is an eyesore, personnel are encouraged to use the storage facilities available at the Outdoor Recreation Center, Holbrook Pond, Fort Stewart, or at the Private Vehicle Storage area at Hunter Army Airfield. House trailers are not authorized to be parked in the quarters area. Campers, camper trailers, and tents will not be approved for occupancy in the quarters area. Parking of recreational vehicles on the street will be limited to 24 hours for owners to load and unload the vehicle at the owner's quarters.
(h) No driver will use a parking lot, sidewalk, fire lane, or vacant property to drive on in order to avoid a traffic control device or alter the traffic flow plan unless authorized to do so by the Military Police or a traffic control device.
(a) Any MP or DOD police officer who finds or has knowledge of a motor vehicle which has been left unattended or abandoned on a street, road, highway, parking lot, or any other real property of the installation for a period of at least 72 hours may be authorized by the Provost Marshal or his designee to cause said motor vehicle to be moved to an impoundment lot for storage.
(b) Any MP or DOD police officer who, under the provisions of this section, causes any motor vehicle to be moved to an impoundment lot or other temporary place of safety is acting
(c) Unit commanders, with knowledge of an abandoned vehicle in their unit area, should attempt to identify the owner and have them remove the vehicle. When owners cannot be identified or are no longer assigned to this command, unit commanders will notify the MP's to initiate impoundment procedures.
(d) Civilian vehicles left abandoned on the reservation will be towed to an impoundment lot for further disposition.
(e) Personnel experiencing motor vehicle trouble may authorize the MP desk to obtain the assistance of a civilian wrecker, but in doing so, the government assumes no liability of payment for such services or possible resulting damage.
(a) All unattended motor vehicles will have the engine stopped and the ignition locked.
(b) Vehicles will not be operated when so loaded with passengers and/or goods that the driver's view is blocked or control over the driving mechanism is interfered with.
(c) Drivers, other than on official business, will not follow any emergency vehicle, operating under emergency conditions, closer than 500 feet or park closer than 500 feet to any emergency vehicle stopped for an emergency.
(d) No vehicle will be driven over a fire hose unless directed to do so by a fire official, or the Military Police.
(e) Ground guides will be posted, during backing, at the left rear of any
(f) All vehicles carrying a load will have the load secured and/or covered to prevent the load from blowing or bouncing off the vehicle.
(g) A red flag or red light, visible for at least 100 feet from the rear will be attached to any load protruding beyond the rear of any vehicle.
(h) Troop marches, physical training runs, etc., will not be conducted in a manner that will interfere with motor vehicle traffic on the Fort Stewart/Hunter Army Airfield reservation.
(1) Units participating in parades and related practices, road marches, etc., will not conduct such marches upon any hard surface road or traffic way unless coordination has been made with the Provost Marshal Office.
(2) Physical training runs, exercises, or tests will not be conducted upon any hard surface road or traffic way unless such is specifically allowed in 24th Infantry Division (Mechanized) and Fort Stewart Regulation 350-1.
(i) Congested housing areas on the installation require special precaution on the part of drivers and persons living in those areas.
(1) Parents can assist drivers in this regard by reminding their children that housing area streets are extremely dangerous and that playing in the street is prohibited.
(2) Bus stops are sites particularly prone to large numbers of children playing immediately adjacent to or actually in the roadway while awaiting arrival of the school bus.
(3) Complaints received by the MP desk, concerning children playing in the streets, must be investigated in the interest of safety. Repeated violations could result in further action by the chain of command.
(j) Vehicles and/or trailers will not be towed with a chain or rope (vehicles may be towed by another privately owned vehicle by use of a rigid tow bar).
(k) At entrances to Fort Stewart/Hunter Army Airfield where a gate guard is positioned, drivers are required to obey his/her instructions. During hours of darkness, headlights will be switched to parking lights upon approach to the gate.
(l) Motorists will drive with headlights illuminated at any time from a half hour after sunset to a half hour before sunrise and at any time when it is raining in the driving zone and at any other time when there is not sufficient visibility to render clearly discernible persons and vehicles on the highway at a distance of 500 feet ahead.
(m) Motor vehicles will not be operated if visibility to the front, rear, or side is rendered unsafe and improper from fogged or iced-over windows.
(n) Aircraft runways, taxiways, and aprons at Hunter Army Airfield and Wright Army Airfield and "OFF-LIMITS" to all privately owned vehicles.
(o) Extensive repairs to automobiles will not be undertaken in housing areas, parking lots, or other similar areas. Repairs extending over a 24 hour period will be considered extensive.
(p) Tactical vehicles will not be driven in housing areas. Post police or vehicles on similar details may drive in the housing areas as required.
(q) Active duty personnel residing on post are encouraged to have their privately owned bicycles, "go-carts," and "minibikes" registered with the Provost Marshal's Office (Registration Branch) in conjunction with the Installation Crime Prevention Program.
(r) All personnel operating a vehicle on Fort Stewart/Hunter Army Airfield will have proof of insurance for the vehicle, in the vehicle at all times.
(a) The vehicle safety inspection criteria listed in this paragraph (a) are general in nature; specific evaluation techniques for these criteria are contained in Georgia Traffic Law.
(1) Headlights—every vehicle, except motorcycles, will have at least two headlights, one on each side of the front of the vehicle, capable of illuminating 500 feet to the front. Motorcycles will have one headlight.
(2) Tail Lamps—every vehicle will have at least one red, self-illuminating lamp, on the rear of the vehicle, visible from 500 feet to the rear.
(3) Registration Plate Lamp—every vehicle will have a lamp designed to illuminate the registration plate with white light making the plate legible from a distance of 50 feet.
(4) Rear Reflectors—every vehicle, except motorcycles, will have two red reflectors on the rear. Motorcycles will have one red reflector.
(5) Stop Lamp—every vehicle will have at least one red or yellow stop lamp on the rear which will be actuated upon application of the foot brake.
(6) Turn Signals—every vehicle will be equipped with electrical or mechanical turn signals capable of indicating any intention to turn either to the right or to the left, and visible from the front and rear. This requirement does not apply to any motorcycle or motor-driven cycle manufactured prior to 1 January 1972.
(7) Brakes—every vehicle will be equipped with brakes adequate to control the movement of and to stop and hold such vehicle.
(8) Horn—every vehicle will be equipped with an operable horn, capable of emitting sound audible for at least 200 feet.
(9) Muffler—every vehicle will have a muffler in good working order and in constant operation.
(10) Mirror—every vehicle, from which the driver's view is obstructed, will be equipped with a mirror reflecting a view of the highway for a distance of at least 200 feet to the rear.
(11) Windows—the view through vehicle windows will not be obstructed by any sign, poster, or other nontransparent material. Windshields and rear windows will not have starburst or spider webbing effect greater than 3 inches by 3 inches. No opaque or solid material including, but not limited to cardboard, plastic, or taped glass will be employed in lieu of glass.
(12) Windshield Wipers—every vehicle, except motorcycles, will be equipped with operable windshield wipers.
(13) Tires—every vehicle will be equipped with serviceable rubber tires which will have a tread depth of at least two thirty-seconds of an inch.
(14) Suspension Systems—no vehicle will have its rear end elevated above the vehicle manufacturer's designated height (49 CFR 570.8).
(b) The criteria listed in paragraph (a) of this section are not necessarily an inclusive list. A vehicle may be deemed unsafe to operate when any part of the vehicle is defective and renders the vehicle dangerous to others.
(a) Restraint systems (seat belts) will be worn by all operators and passengers of U.S. Government vehicles on or off the installations.
(b) Restraint systems will be worn by all civilian personnel (family members, guests, and visitors) driving or riding in a private owned vehicle on the Fort Stewart/Hunter Army Airfield installations.
(c) Restraint systems will be worn by all soldiers and Reserve Component members on active Federal service driving or riding in a private owned vehicle whether on or off the installations.
(d) Infant/child restraint devices (car seats) are required in private owned vehicles for children 4 years old or under and not exceeding 45 pounds in weight.
(e) Restraint systems are required only in cars manufactured after model year 1966.
(f) The operator of a vehicle is responsible for ensuring the use of seat belts, shoulder restraints, and child restraining systems when applicable and may be cited for failure to comply (40 U.S.C. 318a).
(g) Passengers (over the age of 16) are responsible for ensuring that their seat belts/shoulder restraints are used when applicable and may be cited for failure to comply (40 U.S.C. 318a).
The wearing of headphones or earphones is prohibited while driving a U.S. Government vehicle, POV, motorcycle, or other self-propelled two-wheel, three-wheel, or four-wheel vehicle powered by a motorcycle type engine. This does not negate the requirement for wearing hearing protection when conditions or good judgment dictate use of such protection.
(a) Consuming alcoholic beverages as an operator or passenger in or on U.S. Government or privately owned vehicles is prohibited.
(b) Consuming alcoholic beverages on any roadway, parking lot, or where otherwise posted is prohibited.
(c) Having open containers of alcoholic beverages in vehicles or areas not designated for the consumption of alcohol is prohibited.
The "Denver Boot" device will be used by Military Police as an additional technique to assist in the enforcement of parking violations when other reasonably effective but less restrictive means of enforcement (such as warnings, ticketing, reprimands, suspensions, or revocations of on-post driving privileges) have failed, or immobilization of the private owned vehicle is necessary for safety.
(a) The use of booting devices will be limited to application by the Military Police under the following conditions:
(1) Immobilization of unsafe, uninspected, or unregistered vehicles.
(2) Immobilization of vehicles involved in criminal activity.
(3) For repeat offenders of the parking violations outlined in this supplement. Three or more parking violations within 6 months constitutes grounds to boot the vehicle.
(4) At the discretion of the Provost Marshal or his designee, on a case-by-case basis.
(b) Booted vehicle will be marked, for driver notification, by placing an orange in color notice on the vehicle windshield. The notice will contain information on why the vehicle was booted and instructions on how to have the booting device properly removed by the Military Police (see figure 636.37).
This section provides the standards and procedures for towing, inventorying, searching, impounding, and disposing of private owned vehicles.
(2) The impoundment of a privately owned vehicle is inappropriate when reasonable alternatives to impoundment exist.
(i) An attempt will be made to locate the owner of the privately owned vehicle and have the vehicle removed.
(ii) The vehicle may be moved a short distance to a legal parking area and temporarily secured until the owner is located.
(iii) Another responsible person may be allowed to drive or tow the privately owned vehicle 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 the Military Police are not responsible for safeguarding the privately owned vehicle.
(3) Impounding of privately owned vehicle is justified when any of the following conditions exist:
(i) The privately owned vehicle is illegally parked—
(A) On a street or bridge, or is double parking and interferes with the orderly flow of traffic.
(B) On a sidewalk, within an intersection, or a cross-walk, on a railroad track, in a fire lane, or is blocking a driveway, so that the vehicle interferes with the 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.
(C) When blocking an emergency exit door of any public place (installation theater, club, dining facility, hospital, or other facility).
(D) In a "tow-away" zone that is so marked with proper signs.
(ii) The privately owned vehicle interferes with—
(A) Street cleaning operations and attempts to contact the owner have been unsuccessful.
(B) Emergency operations during a natural disaster or fire or must be removed from the disaster area during cleanup operations.
(iii) The privately owned vehicle has been used in a crime or contains evidence of criminal activity.
(iv) The owner or person in charge has been apprehended and is unable or unwilling to arrange for custody or removal.
(v) The privately owned vehicle is mechanically defective and is a menace to others using the public roadways.
(vi) The privately owned vehicle 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.
(vii) Military Police reasonably believe the vehicle is abandoned.
(2) An approved impoundment area belonging to the contracted worker service will be used for the storage of impounded vehicles. This area will assure adequate accountability and security of towed vehicles. One set of keys to the enclosed area will be maintained by the Military Police.
(3) Temporary impoundment and towing of privately owned vehicles for violations of this supplement or involvement in criminal activities will be accomplished under the direct supervision of the Military Police.
(i) DD Form 2504 (Abandoned Vehicle Notice) will be conspicuously placed on privately owned vehicles considered unattended. This action will be documented by an entry in the Military Police desk journal.
(ii) The owner will be allowed three days from the date the privately owned vehicle is tagged to remove the vehicle before impoundment action is initiated. If the vehicle has not been removed after three days, it will be removed by a contracted civilian wrecker service. A DD Form 2505 (Abandoned Vehicle Removal Authorization) will be completed and issued to the contractor by the Military Police.
(iii) After the vehicle has been removed, the Military Police will complete DD Form 2506 (Vehicle Impoundment Report) as a record of the actions taken.
(A) An inventory listing personal property will be done to protect the owner, Military Police, the Contractor, and the Commander.
(B) 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.
(C) Personal property will be placed in the Military Police found property room for safe keeping.
(iv) 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.
(ii) Recovered stolen privately owned vehicles will be released to the registered owner, unless held for evidentiary purposes, or to the law enforcement agency reporting the vehicle stolen.
(iii) A privately owned vehicle held on request of other authorities will be retained in the custody of the Military Police or CID until the vehicle can be released to such authorities.
(1) 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 sought, during duty hours, through the Chief, Criminal Law Branch of the Office of Staff Judge Advocate and after duty hours from the Duty Judge Advocate, before searching.
(2) 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 Military Police or public or if there is risk of loss or destruction of
(2) If the vehicle is unclaimed after 45 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:
(i) Release to the lienholder, if known.
(ii) Processed as abandoned property in accordance with DOD 4160.21-M.
Publications and forms referenced in this part may be viewed at the Office of the Provost Marshall on any major Army installation or may be obtained from the National Technical Information Service, U.S. Department of Commerce, 5285 Port Royal Road, Springfield, VA 22161.
In addition to the related publications listed in appendix A to part 634 of this subchapter, the following publications provide a source of additional information:
In addition to the prescribed forms used in appendix A to part 634 of this subchapter, the following forms should be used:
40 U.S.C. 318a.
Memorandum of Understanding, Subject: Seizure of Assets for Administrative Forfeiture in Drug Related Cases.
In addition to the terms listed in appendix D to part 634 of this subchapter, the following terms apply:
28 U.S.C. 534 note, 42 U.S.C. 10601, 18 U.S.C. 922, 42 U.S.C. 14071, 10 U.S.C. 1562, 10 U.S.C. Chap. 47.
(a) Military Police Investigators (MPI) and Department of the Army Civilian (DAC) detectives/investigators fulfill a special need for an investigative element within the military police to investigate many incidents, complaints, and matters not within U.S. Army Criminal Investigation Command (USACIDC) jurisdiction, but which cannot be resolved immediately through routine military police operations. Investigative personnel are assets of the installation or activity commander, under the supervision of the local provost marshal. USACIDC elements will provide investigative assistance in the form of professional expertise, laboratory examinations, polygraph examinations, or any other assistance requested which does not distract from the USACIDC mission of investigating serious crimes. A spirit of cooperation and close working relationship is essential between USACIDC and the provost marshal office in order to accomplish the mission and project a professional police image.
(b) Creation of a formalized investigation program does not constitute the establishment of a dual "detective" force. The separation of investigative responsibilities is very distinct. The MPI Program is neither a career program nor a separate Military Occupational Specialty (MOS). Individuals in the MPI Program are specially selected, trained, and experienced military or civilian men and women performing traditional military police functions. Military personnel are identified by their additional skill identifiers (ASI V5) and may be employed in any assignment appropriate to their grade and MOS.
(c) The provost marshal may authorize wearing of civilian clothing for the MPI investigative mission.
(d) MPI and DAC detective/investigator personnel must be familiar with and meet the requirements of Army Regulation (AR) 190-14 (Carrying of Firearms and Use of Force for Law Enforcement and Security Duties).
Only those matters requiring investigative development will be referred to the MPI for investigation. Provost marshals will develop procedures to determine which incidents will be referred to the MPI for completion and which will be retained and completed by uniformed MP personnel. Except as otherwise provided, MPI and DAC detectives/investigators will normally be employed in the following investigations:
(a) Offenses for which the maximum punishment listed in the Table of Maximum Punishment, Manual for Courts-Martial, United States, 2002 is confinement for 1 year or less. Provisions of the Federal Assimilative Crimes Act will also be considered when assigning cases to MPI. The same punishment criteria apply.
(b) Property-related offenses when the value is less than $1,000 provided the property is not of a sensitive nature, such as government firearms, ammunition, night vision devices, or controlled substances.
(c) Offenses involving use and/or possession of non-narcotic controlled substances when the amounts are indicative of personal use only. Military police will coordinate with the local USACIDC element in making determinations of "personal use". MPI and DAC detectives/investigators may be employed in joint MPI/USACIDC drug suppression teams; however, the conduct of such operations and activities remain the responsibility of USACIDC. When employed under USACIDC supervision, MPI and DAC detectives/investigators may also be utilized to make controlled buys of suspected controlled substances.
(d) Activities required for the security and protection of persons and property under Army control, to include support of Armed Forces Disciplinary Control Boards as prescribed in AR 190-24. If MPI detect a crime-conducive condition during the course of an investigation, the appropriate physical security activity will be promptly notified. Crime-conducive conditions will also be identified in military police reports.
(e) Allegations against MP personnel, when not within the investigative responsibilities of USACIDC.
(f) Offenses committed by juveniles, when not within the investigative responsibilities of USACIDC.
(g) Gang or hate crime related activity, when not within the investigative responsibilities of USACIDC.
The installation commander, whose responsibilities include ensuring good order and discipline on his installation, has authority to order the initiation of a criminal investigation upon receipt of information of activity of a criminal nature occurring on the installation.
(a) The military police or the USACIDC are authorized to investigate allegations of criminal activity occurring on the installation. Nothing in this paragraph is intended to conflict with or otherwise undermine the delineation of investigative responsibilities between the military police and the USACIDC as set forth in AR 195-2.
(b) When investigative responsibility is not clearly defined, and the matter cannot be resolved between military police investigations supervisors and USACIDC duty personnel, or between military police investigations supervisors and unit commanders, the provost marshal will be informed and will resolve the matter with the appropriate USACIDC activity commander/Special Agent in Charge (SAC) or unit commander.
(c) The control and processing of a crime scene and the collection and preservation of the evidence are the exclusive responsibilities of the investigator or supervisor in charge of the crime scene when the military police have investigative responsibility. To prevent the possible loss or destruction of evidence, the investigator or supervisor in charge of the crime scene is authorized to exclude all personnel from the scene. The exercise of this authority in a particular case may be subject to the requirement to preserve human life and the requirement for continuing necessary operations and security. These should be determined in conjunction with the appropriate commander and, where applicable, local host country law enforcement authorities.
(d) Unit commanders should consult with the installation provost marshal concerning all serious incidents. Examples of incidents appropriate for investigation at the unit level include simple assaults not requiring hospitalization and not involving a firearm, or wrongful damage to property of a value under $1,000. Other incidents should be immediately referred to the installation provost marshal.
(e) The military police desk is the official point of contact for initial complaints and reports of offenses. The provisions of AR 190-45 are to be followed for all military police records, reports, and reporting.
(1) When incidents are reported directly to a USACIDC field element, USACIDC may either direct the reporting person to the MP desk or report the incident to the MP desk themselves.
(2) Upon receipt of the complaint or report of offense, the MP desk will dispatch an available patrol to the scene of the incident. The patrol will take appropriate measures to include locating the complainant, witnesses, suspects, and victims, apprehending offenders, securing the crime scene, rendering emergency assistance, determining and reporting to the MP desk, by the most expeditious means possible, the appropriate activity having investigative responsibility.
(f) In those cases in which the USACIDC has an ongoing investigation (typically fraud and narcotics matters), they may delay notification to the military police to avoid compromising their investigation.
(g) Procedures will be developed to ensure mutual cooperation and support between MPI, DAC detectives/investigators and USACIDC elements at each investigative level; however, MPI, DAC detectives/investigators and USACIDC personnel will remain under command and control of their respective commanders at all times.
(1) With the concurrence of the commander concerned, MPI and DAC detectives/investigators may provide assistance to USACIDC whenever elements
(2) When requested by a USACIDC region, district, or the special agent-in-charge of a resident agency, the provost marshal may provide MPI or DAC detective/investigator assistance to USACIDC on a case-by-case basis or for a specified time period.
(3) With the concurrence of the appropriate USACIDC commander, CID personnel may be designated to assist MPI or DAC detectives/investigators on a case-by-case basis without assuming control of the investigation.
(4) Modification of investigative responsibilities is authorized on a local basis if the resources of either USACIDC or the military police cannot fully support their investigative workload and suitable alternatives are not available. Such modifications will be by written agreement signed by the provost marshal and the supporting USACIDC commander. Agreements will be in effect for no more than two years unless sooner superseded by mutual agreement.
(a) In Continental United States (CONUS), civilian law enforcement agencies, including state, county, or municipal authorities, or a Federal investigative agency normally investigate incidents occurring off-post. When an incident of substantial interest to the U.S. Army occurs off-post, involving U.S. Army property or personnel, the military police exercising area responsibility will request copies of the civilian law enforcement report.
(b) In Overseas areas, off-post incidents will be investigated in accordance with Status of Forces Agreements and other appropriate U.S. host nation agreements.
(a) Customs violations will be investigated as prescribed in AR 190-41. When customs authorities find unauthorized material such as contraband, explosives, ammunition, unauthorized or illegal weapons or property, which may be property of the U.S. Government, notification must be made via electronic message or facsimile to HQDA, Office of the Provost Marshal General (DAPM-MPD-LE). All such notifications will be made to the military police and investigated by CID or the military police, as appropriate.
(b) Military police will receipt for all seized or confiscated U.S. Government property and contraband shipped by U.S. Army personnel. Property receipted for by military police will be accounted for, and disposed of, in accordance with evidence procedures outlined in AR 195-5.
(c) When it has been determined that the subject of an MP customs investigation is no longer a member of the U.S. Army, the investigation will be terminated, a final report submitted indicating the subject was released from the U.S. Army, and an information copy of the report furnished to the appropriate civil investigative agency.
(d) Recovery of weapons and significant amounts of ammunition will be reported by the U.S. Army element receipting for them from the U.S. Customs Service in accordance with AR 190-11 and AR 190-45.
Provost marshals and U.S. Army law enforcement supervisors at all levels will ensure that active drug enforcement programs are developed and maintained, and that priorities for resources reflect the critical and important nature of the drug enforcement effort.
(a) MPI and DAC detectives/investigators will conduct investigations of offenses involving use and possession of non-narcotic controlled substances. A copy of all initial, interim and final military police reports concerning drug investigations will be provided to the USACIDC at the local level. Enforcement activities will be coordinated with the USACIDC at the local level.
(b) Any investigation of offenses involving possession/use of non-narcotic controlled substances generated as a result of another USACIDC investigation may be transferred to MPI with the concurrence of both the supporting USACIDC commander and provost marshal.
(c) Elements of USACIDC will be provided the opportunity to interview subjects, suspects or witnesses in MPI or DAC detective investigations involving
(a) During the conduct of investigations, MPI will identify themselves by presenting their credentials and referring to themselves as "INVESTIGATOR." When signing military police records the title "Military Police Investigator" may be used in lieu of military titles. Civilian personnel will refer to themselves as "INVESTIGATOR" if they are classified in the 1811 series, and as "DETECTIVE" if they are in the 083 series. Civilian personnel will use the title "DAC Investigator" or "DAC Detective"; corresponding to their classification series.
(b) The use of titles such as "Mr.", "Mrs.", "Miss" or "Ms." in connection with an individual's identification as an MPI is prohibited, except when employed in a covert investigative role. When MPI or DAC detectives/investigators are employed in covert roles, supervisors will ensure that coordination with USACIDC or civilian law enforcement agencies is accomplished as appropriate.
(a) MPI and DAC detectives/investigators will be granted access to all U.S. Army facilities, records or information when necessary for an ongoing investigation, consistent with the investigator's clearance for access to classified national defense information, the requirements of medical confidentiality, and the provisions of applicable regulations.
(b) Upon presentation of proper identification when conducting an official investigation, MPI and DAC detectives/investigators will be authorized access to information contained in medical records and may request extracts or transcripts. Medical records will remain under the control of the records custodian who will make them available for courts-martial or other legal proceedings. Procedures for obtaining information from medical records are contained in AR 40-66.
MPI and DAC detectives/investigators have authority to make apprehensions in accordance with Article 7, Uniform Code of Military Justice (UCMJ); Rule for Courts-Martial 302 (b)(1), Manual for Courts-Martial, United States 2002 (Revised Edition). They may detain personnel for identification and remand custody of persons to appropriate civil or military authority as necessary. Civilians committing offenses on U.S. Army installations may be detained until they can be released to the appropriate Federal, state, or local law enforcement agency.
MPI and DAC detectives/investigators have authority pursuant to Article 136(b)(4), UCMJ to administer oaths to military personnel who are subject to the UCMJ. The authority to administer oaths to civilians who are not subject to the UCMJ is 5 U.S.C. 303(b).
(a) Coordination between installation judge advocates and investigators must occur during the conduct of investigations.
(b) The use of the DA Form 3881 (Rights Warning Procedure/Waiver Certificate) to warn accused or suspected persons of their rights is encouraged.
(c) When necessary, investigators will coordinate with a judge advocate or civilian attorney employed in the Office of the Staff Judge Advocate for the purpose of establishing a legal opinion as to whether sufficient credible evidence has been established to title an individual in a report. Investigators should also coordinate with the Office of the Staff Judge Advocate in drafting search warrants and in determining whether probable cause exists to conduct a search.
Reports of investigation, photographs, exhibits, handwritten notes, sketches, and other materials pertinent to an investigation, including copies, negatives or reproductions, are the
Provost marshals will make maximum use of NCIC terminals available to them, and will establish liaison with the U.S. Army Deserter Information Point (USADIP) as necessary to ensure timely exchange of information on matters concerning deserters. The USADIP will ensure replies to inquiries from provost marshals on subjects of MP investigations are transmitted by the most expeditious means. Use of NCIC will be in accordance with AR 190-27.
MPI and DAC detectives/investigators will utilize the polygraph to the full extent authorized. Requests for polygraph examination assistance will be forwarded to the supporting USACIDC element in accordance with provisions of AR 195-6. The investigative or intelligence element requesting approval to conduct a polygraph examination will submit a completed DA Form 2805 (Polygraph Examination Authorization) to the authorizing official. A request may also be sent via an electronic message or electronic mail or media provided all elements of the DA Form 2805 are included in the request. Approvals will be obtained prior to the conduct of an examination. Telephonic requests, followed with written requests, may be used in emergencies. The requesting official will include the following data on every polygraph examination request for criminal investigations:
(a) The offense, which formed the basis of the investigation, is punishable under Federal law or the UCMJ by death or confinement for a term of 1 year or more. Even though such an offense may be disposed of with a lesser penalty, the person may be given a polygraph examination to eliminate suspicion.
(b) The person to be examined has been interviewed and there is reasonable cause to believe that the person has knowledge of, or was involved in, the matter under investigation.
(c) Consistent with the circumstances, data to be obtained by polygraph examination are needed for further conduct of the investigation.
(d) Investigation by other means has been as thorough as circumstances permit.
(e) Examinee has been interviewed on all relevant subjects requested for testing and the polygraph examination is essential and timely.
Military police are authorized to receive, process, safeguard and dispose of evidence, to include non-narcotic controlled substances, in accordance with AR 195-5. If no suitable facility is available for the establishment of a military police evidence depository or other operational circumstances so dictate, the evidence custodian of the appropriate USACIDC element may be requested to receipt for and assume responsibility for military police evidence. Personnel selected as military police evidence custodians need not be trained as MPI and should not be issued MPI credentials, unless they are also employed as operational MPI. Further information concerning evidence collection and examination procedures can be found in Field Manual (FM) 3-19.13, Law Enforcement Investigations.
(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. If police intelligence is developed to the point where it factually establishes a criminal offense, an investigation by the military police, (USACIDC) or other investigative agency will be initiated.
(b) Police intelligence will be actively exchanged between Department of Defense (DOD) law enforcement agencies, military police, USACIDC, local, state, federal, and international law enforcement agencies. One tool under development by DOD for sharing police intelligence is the Joint Protection Enterprise Network (JPEN). JPEN provides users with the ability to post, retrieve, filter, and analyze real-world events. There are seven reporting criteria for JPEN:
(1) Non-specific threats;
(2) Surveillance;
(3) Elicitation;
(4) Tests of Security;
(5) Repetitive Activities;
(6) Bomb Threats/Incidents; and
(7) Suspicious Activities/Incidents.
(c) If a written extract from local police intelligence files is provided to an authorized investigative agency, the following will be included on the transmittal documents: "This document is provided for information and use. Copies of this document, enclosures thereto, and information therefrom, will not be further released without the prior approval of the installation Provost Marhsall.
(d) Local police intelligence files may be exempt from certain disclosure requirements by AR 25-55 and the Freedom of Information Act (FOIA).
(a) DOD Directive 5505.9 and AR 190-53 provide policy for the wiretap, investigative monitoring and eavesdrop activities by DA personnel. The recording of telephone communications at MP operations desks is considered to be a form of command center communications monitoring which may be conducted to provide an uncontroversial record of emergency communications. This includes reports of emergencies, analysis of reported information, records of instructions, such as commands issued, warnings received, requests for assistance, and instructions as to the location of serious incidents.
(b) The following procedures are applicable to the recording of emergency telephone and/or radio communications at MP operations desks within the 50 states of the United States, the District of Columbia, the Commonwealth of Puerto Rico, Panama, and Guam.
(1) All telephones connected to recording equipment will be conspicuously marked "For Official Use Only-connected to recording device" and access to use will be restricted to MP operations desk personnel.
(2) The connection of voice-recording equipment or private-line service with the telecommunications network will be in accordance with applicable telephone company tariffs which permit direct electrical connection through telephone company recorder-connector equipment. An automatic audible-tone device is not required.
(3) Official emergency telephone numbers for MP desks will be listed in appropriate command, activity, or installation telephone directories with a statement that emergency conversations will be recorded for accuracy of record purposes. Other forms of pre-warning are not required.
(4) Recordings, which contain conversations described in this section, will be retained for a period of 60 days. Transcripts may be made for permanent files, as appropriate.
(5) The recording of telephone communications or radio transmissions by MP personnel for other than emergency purposes is prohibited. If an investigator requires the use of electronic surveillance equipment, assistance must be requested from the USACIDC. This policy is established pursuant to Department of Defense directives that limit such activity to the criminal investigative organizations of the Services and DOD.
(6) Commanders having general courts-martial convening authority will issue written authorizations for the recording of emergency telephone communications at MP operations desks. The letter of authorization will contain specific authority for the type of equipment to be used, the phone numbers identified as emergency lines and instructions limiting recordings to calls received on the phones so designated. One copy of the authorization will be forwarded to the Office of the Provost Marshal General (OPMG), 2800 Army Pentagon, Washington, DC 20310-2800.
The recording of telephone communications at MP operations desks outside the United States will be conducted within restrictions contained in international agreements between the U.S. and host nations.
Closed circuit video recording systems, to include those with an audio capability, may be employed for security purposes in public places so long
The recording of interviews and interrogations by military police personnel is authorized, provided the interviewee is on notice that the testimony or statement is being recorded. This procedure is a long-accepted law enforcement procedure, not precluded by DA policies pertaining to wiretap, investigative monitoring, and eavesdrop activities.
(a) This regulation sets forth the authority, policy, responsibility, and procedure for making military real estate, under the control of the Department of the Army, available for use by other military departments, Federal agencies, State and local governmental agencies, private organizations or individuals.
(b) This regulation implements Department of Defense Directives and Instructions (4165 series), which include policies and procedures concerning use of military real estate.
This regulation is applicable to Army military real estate, which includes land and improvements thereon and is also referred to as real property.
(a) The United States Constitution (Article IV, Section 3), provides that the Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.
(b) One of the principal authorities for the use of military real estate for commercial purposes is title 10 U.S.C., section 2667, which authorizes the Secretary of the Army (SA), whenever it is considered to be advantageous to the United States, to lease such real or personal property under Army control, which is not for the time needed for public use, upon such terms and conditions as the SA considers will promote the national defense or be in the public interest.
(c) Grants under statutory authorities cited in this regulation of real property pertaining to river and harbor, water resource development and flood control projects, will be under the policies and general guidelines set forth in this regulation.
(d) The SA may, under the general administrative powers vested in the office, authorize the use of real estate in the absence of statutory authority, in unusual circumstances, provided the property is not for the time being required for public use, the grant conveys no interest in the real estate and the proposed use will be of a direct benefit to the United States. Under this authority, the right to use real estate may also be granted to other military departments or Federal agencies.
(e) Except as otherwise provided in this regulation, an interest in real estate will not be granted unless authorized by law.
(f) Other laws authorizing grants for non-Army use of real estate for various purposes and Table of Related Army Regulations are set forth in appendixes A and B, respectively.
(a) After it is determined that real estate located in the United States, Puerto Rico, American Virgin Islands and the Panama Canal Zone, is available for non-Army use, the COE, except as otherwise provided in this regulation, is charged with responsibility for arranging for the use of real estate within the scope of this regulation. In the performance of this function, the COE is authorized to obtain such technical assistance from the using service as may be deemed necessary.
(b) COE has staff responsibility over real estate matters in Guam, American Samoa, Trust Territory of the Pacific Islands (TTPI), and in foreign countries.
(c) Except as otherwise provided in this regulation, determinations that real estate is available for non-Army use must be approved by the COE.
(d) The authority of the COE to grant use of real estate will be delegated, to the extent feasible, to U.S. Army Division and District Engineers (DE).
(e) The COE is responsible for the granting of temporary use of real estate reported excess to the General Services Administration (GSA), to the extent authorized by regulations issued pursuant to the Federal Property and Administrative Services Act of 1949, as amended (40 U.S.C. 471,
(f) In reviewing Army requirements for real estate (AR 405-10), the COE will consider the availability and adequacy of other military or federally-owned real estate to satisfy Army requirements before leasing privately-owned real estate, or renewing existing leases.
Except as otherwise provided herein, determinations of availability will be approved by the COE or higher authority. MACOMS and special staff agencies are responsible for determining the real estate which can be made available for non-Army use, specifying the authorized uses of the property which will not be incompatible with military requirements for the property, the length of the term and any restrictions to be imposed on the grantee's use. Upon approval of the determination of availability, the real estate grant will be issued by the DE or as otherwise provided in this regulation.
Overseas commanders are charged with responsibility for the granting of use of real estate in overseas areas (Puerto Rico, Guam, the American Virgin Islands, American Samoa, TTPI, and the Canal Zone), and in foreign countries, for non-Army use under the policy and guidance expressed in this regulation, provided such use is consistent with the Status of Forces Agreements, Treaties, or the Agreements under which the Army controls such real estate.
A report of availability will be prepared by the installation commander or head of the special staff agency, when it is determined that for the time being the real estate is not required for Army use and can be made available, either concurrently with the Army, or exclusively, for use by another military department, by other Federal agencies, by State or local governmental agencies, private organizations or individuals. The installation commander's recommendation will be made as far in advance as possible so as to minimize the time lapse between the determination of availability and the date of use of the property by the grantee. Where real estate suitable for agricultural or grazing purposes is involved, the normal season for planting and grazing should be taken into consideration so that the property may be advertised in a timely manner. A copy of each report will be furnished to the appropriate DE for information. The report of availability will contain the information outlined in appendix C.
The recommendation that real estate is determined available for non-Army use will be submitted by the installation commander to the major commander for approval, through the echelon of command. The major commander will approve such recommendation and submit it to the appropriate DE for action, except recommendations involving the following actions will be forwarded to the COE:
(a) A lease or license, including licenses to States for National Guard purposes, if the estimated annual rental value exceeds $50,000.
(b) A permit, license, or other grant of real estate, regardless of value, which results in a significant reduction or redirection of installation mission objectives;
(c) A lease of land where the proposed lease term is in excess of 25 years for banks and Federal credit untions and/or the building to be constructed exceeds DOD space criteria;
(d) Any permit, license, agreement, or other grant to another military department or to a Federal agency of large or significant real estate holdings for a period in excess of 5 years (including renewal options);
(e) A grant of an easement which involves the replacement or relocation of Army facilities at an estimated cost in excess of $100,000;
(f) A grant of an easement where the estimated annual fair market value of the easement exceeds $50,000.
(g) A grant which is controversial or unusual in nature and may embarrass the DA;
(h) A grant involving search for treasure trove;
(i) A grant for vehicle speed contests;
(j) A grant at an active industrial installation, excluding unimproved land areas.
The Commander, U.S. Army Materiel Development & Readiness Command (DARCOM), is authorized to approve determinations of availability at standby industrial installations where the estimated annual rental value does not exceed $50,000.
Overseas commanders may authorize the use by another military department or a Federal agency of an installation or portion thereof located in designated overseas areas and in foreign countries when the real estate is not for the time needed for Army purposes or its concurrent use for other purposes will not interfere with the mission of the installation and such other use is not inconsistent with the agreement under which the property was acquired. Overseas commanders may also authorize any use of such property which is necessary in the accomplishment of the DA mission for which the property was acquired. All other proposed uses will be coordinated with the United States diplomatic mission in the country involved prior to submission to HQDA (DAEN-REM) WASH DC 20314, for approval. Where the overseas commander is authorized to approve such use, the commander or designee will prepare and execute the necessary grant.
(a) The grants set forth in 1-8a. through f., with respect to real estate in the United States, Puerto Rico, American Virgin Islands, Guam, American Samoa, and the TTPI, require prior approval of the Assistant Secretary of Defense (I&L), and recommendations should contain information in justification thereof.
(b) The grants set forth in 1-8a., with respect to real estate in the United States and in designated overseas areas (excluding the Canal Zone), except leases for agricultural or grazing purposes, require a report to the Committees on Armed Services of the Senate and House of Representatives as provided in title 10 U.S.C., section 2662.
Pending the signing of the formal instrument, no right of entry will be granted unless authorized by the office wherein the instrument will be signed, except where contrary instructions have previously been issued by the DA. When authorized, rights of entry will be granted by the DE, or overseas commander, as appropriate.
Instuments granting temporary use of real estate will be prepared as provided in this regulation. Except where authority has been otherwise granted, the COE or designee will approve, execute, and distribute instruments to the extent authorized by the SA; otherwise they will be prepared and submitted for execution by direction of the appropriate Assistant Secretary of the Army.
When a military requirement arises for real estate which is being used under a grant of non-Army use, the
Commanders will provide general surveillance over areas made available for non-Army use and will advise the DE if and when there are any irregularities. Real estate which is being used for non-military purposes will be inspected at least once each year by the COE, or by his representative, to determine whether grantees or occupants are complyng with the terms of the instruments authorizing use and occupancy, except with respect to easements and licenses for rights-of-way for roads, streets, powerlines, pipelines, underground communication lines and similar facilities. The COE will make compliance inspections for such easements and licenses at least once during each 5-year period. However, the DE will check with installation commanders annually to assure that there are no situations which might need correction prior to the inspection. The installation commander will make interim inspections of all real estate being used for non-military purposes as are necessary for timely observation of the extent of compliance with grant provisions designed to protect and preserve the real estate for military requirements, and will furnish the appropriate DE a copy of a written report of the inspection reflecting findings and recommendations. In order that the grantee's operations not be unreasonably disrupted, the annual compliance inspection made by the DE will be coordinated with the installation commander so that, if feasible, only one inspection will be made. Where necessary, corrective action in accordance with applicable regulations will be taken for the enforcement of the terms of the grant by the responsible officer who granted the use. Overseas commanders are responsible for inspection of real estate under their jurisdiction and necessary corrective action.
Whenever it is observed that real estate under the control of the DA is being used and/or occupied by private parties without proper authority, corrective action will be taken to cause such unauthorized use to be discontinued or to formalize such use and occupancy by an appropriate grant in accordance with this regulation. In either event, compensation will be obtained for the unauthorized use of such property.
Installation Commanders will maintain constant surveillance over real estate under their jurisdiction to determine whether any of it is excess to requirements, or may be made available for other Army use, or may be made available for use for other than Army purposes and will process such determinations expeditiously in accordance with the provisions of this regulation. From time to time DOD, DA and GSA surveys will be made pursuant to Executive Order 11954, 7 January 1977, which enunciated a uniform policy for the Executive Branch of the Federal Government with respect to the identification of excess and under-utilized real estate (AR 405-70). Real estate for which is retained for future use will be a requirement which will be disposed of in accordance with AR 405-90. Real estate
(a) DA will not make available to others any real estate which is contaminated with explosives or with toxic materials or other innately or potentially harmful elements until such elements have been removed or have been rendered harmless, unless the proposed user of the area is aware of the condition of the area and is technically qualified and certified to make use of the area in its contaminated state.
(b) It is imperative that commanders keep records on and have a continuing awareness of the state of contamination of lands by explosives, military chemical or other dangerous materials.
(c) Procedures with respect to action to neutralize or decontaminate the area are set forth in AR 405-90.
Army real estate under the control of DA which is made available for use for other than Army purposes will be made available for use by other military departments or DOD activities and agencies, other Federal departments, activities or agencies, State or local governmental bodies and other private parties, in that order.
The use of real estate under the control of DA for private purposes will be granted only after reasonable efforts have been made to obtain competition for its use, through advertising. Advertising is any method of public announcement intended to aid directly or indirectly in obtaining offers on a competitive basis. Advertising may be accomplished by circulating and posting notices and by paid advertising in newspapers and trade journals. The purpose of seeking competition is to afford all qualified persons equal opportunity to bid for the use of the property, to secure for the Government the benefits which flow from competition, and to prevent criticism that favoritism has been shown by officers or employees of the Government in making public property available for private use. Although the lease of Government real estate to civilians employed by the military departments or officers or enlisted personnel of the Armed Forces is not prohibited by law, it is essential that extreme care be exercised to avoid favoritism or the appearance of favoritism. Generally leases to Federal Government personnel will be granted only after competitive bid under the sealed bid method. The provisions of this paragraph do not affect the authority contained in AR 210-10 and 210-50 for furnishing quarters to civilian employees of DA. Also the provisions of this paragraph do not affect the use of Federal facilities by uniformed personnel as may be otherwise provided for. Other exceptions to the advertising policy are as follows:
(a) Granting easements, leases and licenses to public agencies and public utilities.
(b) Granting permits to other Federal agencies.
(c) Leasing cable pairs.
(d) Leases or licenses to utility companies having an exclusive franchise in the area, for space on Government-owned poles for attaching their electric transmission communication lines.
(e) COE is authorized to grant a waiver of competition upon a determination that it will promote the national defense or will be in the public interest or upon a determination that competition is impracticable.
The use of property under DA control will not be authorized for any purpose when the proposed use or the revocation thereof might prove embarrassing to the DA.
DA will not authorize the posting of notices or erection of billboards or signs for commercial purposes on property under its control.
DA will not authorize the use of real estate, water and other natural resources when such use is not in harmony with the goals and intent of the following legislation and/or similar legislation which establishes a firm Federal policy and provides procedures to enhance the overall environmental quality.
(a) National Environmental Policy Act of 1969 (NEPA), (42 U.S.C. 4321), (AR 200-1, chapters 1 and 2).
(b) National Historic Preservation Act of 1966 (Pub. L. 89-665, 16 U.S.C. 470-47M, 1970), as amended by 16 U.S.C. 470h, 470i, 470
(c) Federal Water Pollution control Act of 1972, as amended.
(d) Endangered Species Act of 1973 (16 U.S.C. 1531
(e) Coastal Zone Management Act of 1972 (16 U.S.C. 1451).
(f) Clean Air Act of 1970, as amended, (42 U.S.C. 1857), (AR 200-1, chapter 4).
(g) Marine Protection, Research and Sanctuaries Act of 1972 (16 U.S.C. 1431), (AR 200-1, chapter 3).
(h) Solid Waste Disposal Act, as amended (42 U.S.C. 3251), (AR 200-1, chapter 6).
(i) Federal Insecticide, Fungicide and Rodenticide Act, as amended by the Federal Environmental Pesticide Control Act of 1972 (7 U.S.C. 136), (AR 200-1, chapter 6).
(j) Noise Control Act of 1972 (42 U.S.C. 4901), (AR 200-1, chapter 7).
(a) Executive Order 11593, 36
(1) Administer the cultural properties under their control in a spirit of stewardship and trusteeship for future generations;
(2) Initiate measures necessary to direct their policies, plans and programs in such a way that federally owned sites, structures and objects of historical, architectural, or archeological significance are preserved, restored and maintained for the inspection and benefit of the people; and
(3) In consultation with the Advisory Council on Historic Preservation (16 U.S.C. 470i) institute procedures to assure that Federal plans and programs contribute to the preservation and enhancement of non-federally owned sites, structures and objects of historical, architectural, or archeological significance (AR 200-1, chapter 8 and App. A).
(b) Outgrants will include conditions to assure protection of real estate as contemplated in paragraph (a) of this section.
The SA under the authority of 16, 432, may allow the examination of ruins, the excavation of archeological sites, and the gathering of objects of antiquity upon Army lands by institutions which are deemed properly qualified to conduct such examinations, excavations, and gatherings (AR 200-1, chapter 8).
The Archeological and Historical Preservation Act of 1974 (16 U.S.C. 469
Each Determination of Availability Report will include an evaluation of the flood hazards, if any, relative to the property involved in the proposed outgrant action, pursuant to the provisions of Executive Order 11296, August 10, 1966. DA will not authorize the use of lands in flood plains for habitation purposes or any other use which may be uneconomical, hazardous, or unnecessary.
The Endangered Species Act of 1973 (16 U.S.C. 1531
(a) The Coastal Zone Management Act of 1972 (16 U.S.C. 1456), directs all Federal agencies conducting or supporting activities directly affecting the coastal zone of a state, to conduct or support those activities in a manner which is, to the maximum extent practicable, consistent with approved state management programs. The opinion of the Attorney General of the United States is that Federal lands are excluded from mandatory compliance with the state's coastal zone management program, regardless of the type of Federal jurisdiction exercised thereover. However, it is Army policy that its activities will comply, to the extent practicable, with a state's approved coastal zone management program.
(b) Applications for grants for use of real estate affecting land or water uses in the coastal zone of a state will include a certification that the proposed activity complies with the state's approved program and that applicant's activity will be conducted in a manner consistent with the law.
(c) An activity affecting land or water uses in the coastal zone of a state which will not be conducted in a manner consistent with an approved state program will be exempted from this certification requirement only if the Secretary of Commerce, on his own initiative or upon appeal of the applicant, determines that the activity is consistent with the objectives of the Coastal Zone Management Act or is otherwise necessary in the interest of national security.
(a) Contracting officers, with the approval of Installation Commanders, are authorized to permit the extension of public utilities upon installations, as part of the contract for furnishing to the Government electricity, water, and gas, where such extension is necessary solely to serve the installation and not in part to serve private consumers outside the installation. The above authorization is covered by the provisions of the contract for purchase of utilities services contained in Armed Services Procurement Regulations.
(b) Contracts or agreements for the sale of surplus utilities services as authorized by law or regulations will include similar authority for the purchaser to install and maintain such facilities on the installation as necessary in connection with the sale of such utilities services, in accordance with AR 420-41 and AR 105-23.
(2) Notwithstanding the generality of the foregoing, leasing of coal and lignite deposits is subject to special restrictions. The act permits such leasing, provided the Secretary of Defense concurs, only to a governmental entity (including any corporation primarily acting as an agency or instrumentality of a State) which provides electrical energy for sale to the public if such governmental entity is located in the State in which such lands are located.
Interim outleasing of excess real property is authorized to lessen the economic impact on the local community, caused by an installation inactivation, closure or realignment. These outleases may be granted to State or local governmental bodies in consideration for care, custody, management and routine maintenance. Income derived from the use of the property in excess of the cost of care, custody, management and routine maintenance will be covered into the Treasury as miscellaneous receipts. The outleasing will generally conform to an economic recovery plan outlined by the Office of Economic Adjustment, OASD (I&L), will require coordination with the DASD (I&H) and concurrence by the GSA. Leases are limited to one year and must be revocable by the Government on 30 days notice.
Section 3755 of the Revised Statutes (40 U.S.C. 310) authorizes the Administrator of the GSA to make such contracts and provisions as he deems necessary to protect the interests of the Government in searches for and sales of treasure trove. All searches and sales authorized by GSA under this statute are subject to the Act for the Preservation of American Antiquities (16 U.S.C. 432) and will only be permitted after consent of the Department of the Army has been obtained.
(a) Rates for utilities furnished by the Army will be in accordance with AR 420-41.
(b) Payments for utilities or services furnished will be deposited to the Treasurer of the United States to the credit of the appropriation from which the costs of furnishing them was paid. Collection for utilities and services furnished by the Army is the responsibility of the officer having immediate jurisdiction over the property in accordance with AR 37-19 and AR 37-27.
(a) Title 10 U.S.C. 2670, authorizes the SA to grant revocable licenses permitting the erection and maintenance by the American National Red Cross on military reservations, of buildings suitable for the storage of supplies for the aid of the civilian population in case of serious national disaster, or the occupation for that purpose of buildings erected by the United States.
(b) Installation Commanders will furnish office space and quarters for Red Cross activities and personnel when assigned to duty with the Armed Forces in accordance with AR 930-5.
Title 10 U.S.C. 4778, authorizes the SA to grant revocable licenses pemitting the erection and maintenance by the YMCA on military reservations, of such buildings as their work for the promotion of the social, physical, intellectual, and moral welfare of the garrisons may require.
Pursuant to the authority contained in 32 U.S.C. 503, the SA is authorized to grant revocable licenses to the States and territories for the use and occupancy of installations or portions thereof by the National Guard. A license may not be granted for the erection of a permanent National Guard Armory without specific congressional authority.
Under the various easement authorities or under the administrative power in cases outside the purview of those authorities, the SA may consent to the granting of an easement by the owner of the servient estate, subject to such conditions as may be required to protect the Government's interest.
In addition to the general and policy matters covered in Chapters I and II of Title 32, the following also apply with respect to the leasing of Army real estate.
Each lease will be for a period not exceeding five years unless the SA determines that a longer period will promote the national defense or will be in the public interest.
(a) Unless otherwise authorized by this regulation or directed by the SA, the consideration for a lease of real estate will be the appraised fair market rental value. However, the value of the maintenance, protection, repair, or restoration by the lessee of the property leased, or of the entire unit or installation where a substantial part of it is leased, may be accepted as all or part of the consideration. The value of the maintenance, protection, repair or restoration, when added to the amount of the monetary payment to be made by the lessee, must equal the appraised fair market rental value of the property leased.
(b) Buildings and space may be leased to a State or political subdivision thereof for public school purposes, limited to use for classrooms and closely related academic instructions, through high school level, at no monetary consideration. Where bare land is leased for construction of a school through high school level, the acreage will not exceed criteria established by the appropriate State authority or the Department of Health, Education, and Welfare (HEW), the rental will be $1 for the term of the lease and any renewal thereof. Leases of bare land will be for a term of 25 years, with an option on tenant's part to renew for another term of 25 years. Real estate may also be leased for educational purposes to public educational institutions at a reduced rental, after consultation with the HEW, and taking into account any benefits accruing to the United States through the use of such property. In any event, the lessee will be required to assume the cost of maintenance, protection, repair, or restoration of the property leased and the administrative costs incident thereto.
(c) Lease granted for agricultural, grazing, or haying purposes will have attached thereto the land-use regulations furnished by the installation commander specifying the items required to be performed by the lessee as part of the lease obligations. It is the policy of the DA that land leased for agricultural, grazing or haying purposes be returned to the Government in as good or better condition than when initially leased. The land-use regulations will include those activities of maintenance, protection, repair, or restoration of the property leased which the lessee will be required to perform as part or all of the consideration for
(1) Performed on the leased premises, or when it constitutes a substantial part of the entire rental unit or installation,
(2) Of direct benefit to the installation in its authorized current or mobilization mission, as distinguished from desired programs, or in furtherance of the Army's leasing program,
(3) Generally related to the lessee's use of the leased property. Where all of the above criteria are met, the following activities may be authorized: Control of erosion, conservation of natural resources, and maintenance of the viability of the land for continuing leasing, such as mowing, weed control, seeding, fertilizing, mulching, crop rotation, selected cutting, and soil conservation measures such as terraces, check dams, wells, springs, ponds, title, or open channels or culverts for drainage, firebreaks, inside fencing and cattle guards. Maintenance, protection, repair or restoration of buildings, roads, perimeter fencing, and similar improvements are not authorized as offsets from rental unless the property is leased to and beneficially used by the lessee, or on a rental unit or installation in which the leased premises constitutes a substantial part or as otherwise approved by HQDA (DAEN-REM), Washington, DC 20314. Also, lessee may be required to perform activities in support of recreation and welfare, fish and wildlife, beautification, and esthetic programs and the cost of establishing and maintaining recreation, swimming and fishing areas, wildlife habitats, food plots, and similar activities when the following conditions have been met:
(1) The activities to be offset are in furtherance of the installation natural resources plan as approved by the MACOM.
(2) The overall plan for the term of the lease, has been approved by ASA (IL & FM).
(3) MACOM approval has been obtained for each lease when any activity to be offset exceeds $1,000.
Receipts will be deposited into the Treasury as miscellaneous receipts.
Each lease will contain a provision permitting the SA to revoke the lease at any time, unless it is determined that the omission of such provision from the lease will promote the national defense or will be in the public interest. In any event, the lease will be revocable by the SA during a national emergency.
The lessee's interest in leased property may be taxed by State or local governments as provided in 10 U.S.C. 2667(e). Each lease will contain a provision that if and to the extent that the property owned by the Government and included in the lease, as opposed to the leasehold interest of the lessee therein, is later made taxable by State or local governments under an act of Congress, the lease will be renegotiated.
A lease of real estate will not be subleased or assigned for direct or indirect use by another Federal agency. Except as specifically provided in the lease, a sublease or assignment of the lease will not be authorized without prior approval of HQDA (DAEN-REM), Washington, DC 20314.
In addition to the general and policy matters covered in subparts A and B, the following also apply with respect to the granting of licenses.
A license is a bare authority to do a specified act upon the property of the licensor without acquiring any estate therein. The principal effect of a license is to authorize an act which in the absence of the licensee would constitute a trespass.
The term of a license will be limited to a period reasonably necessary to accomplish the purpose for which the license is being granted, but in no event will the term exceed five years, without the approval of COE.
When a license is granted under the authority of an easement or leasing statute, the same rules will apply in regard to consideration as is applicable to the granting of an easement or lease under the statute. Since the administrative power may be relied upon for the grant of a license only when such grant is of direct benefit to the Government, such grants may be made without consideration.
In addition to the general and policy matters covered in subparts A and B, the following also apply with respect to the granting of easements.
The term for which an easement is granted will be guided by the type of easement, the period for which the land can be made available and the limitations of the authorizing statute.
Although the statutes authorizing grants of rights of way or easements do not make it mandatory that compensation be paid to the United States, such grants will reserve consideration in an amount equal to the fair market value as established by recognized appraisal practices. As an exception to this rule, grants to States, counties, municipalities, or political subdivisions thereof, will not require fair market value when the purpose of the easement is to serve the public interest or is to benefit the Federal Government.
In easement grants, grantees usually will be required to repair and restore damage done to Government land and improvements and to relocate or replace buildings and other needed facilities rendered useless or less useful by the exercise of the easement rights granted. DOD policy requires that in keeping the Army whole, the relocation or replacement of facilities will be limited to those for which there is a continuing requirement. By specific exclusion, establishment of a different category of facility is not authorized. (DODI 4165.12 III C)
Where a proposed right-of-way will require removal or destruction of improvements which are not required to be relocated or replaced to meet military needs, such improvements will be disposed of as excess property in accordance with AR 405-90, and a condition of the easement grant will be payment for such improvements as follows:
(a) Where the easement grant is to be made at fair market value to entities not entitled to grants of rights of way without charge, the charge for the grant will include the in-place fair market value of the improvements.
(b) Where the proposed grantee is a State or local Government agency normally granted a right of way without charge under Army policy and the grantee's project is subsidized wholly by an agency of the Federal Government, no charge will be made for the improvements thus lost, since any charge made would not reflect a net return to the Government.
(c) Where the proposed grantee is a State or local Government agency normally granted a right of way without charge under Army policy, and the grantee's project is not subsidized, or is subsidized only in part, the charge for such improvements removed or destroyed and not replaced will be the salvage value thereof.
Title 40 U.S.C. 319, and delegation of authority thereunder from the Secretary of Defense authorizes the SA to grant easements and concurrently to
In addition to the general and policy matters covered in subparts A and B, the following also apply with respect to the granting of permits.
A permit is the temporary authority conferred on a Government agency to use real property under the jurisdiction of another Government agency.
A permit may be granted to another military department, a DOD component, or Federal agency for a mutually agreeable period. if the permit is on a permanent or irrevocable basis, it is considered tantamount to a transfer and must be granted under special statutory authority. Where the real property involved is estimated to exceed $50,000 in value, a report must be made to the Congressional Committees on Armed Services, pursuant to title 10 U.S.C. 2662.
(a) Permits are usually granted on a rent-free basis.
(b) The Army is authorized, however, to charge for space and space-related services provided non-DOD Federal agencies. Charges will be at rates established by GSA for the particular location pursuant to 40 U.S.C. 490 (j) and (k). Exceptions to this policy will be real property and related services provided to an organization which is solely in the support of the installation's mission. (For example: Space assigned to a FAA air controller on an Army airfield; GAO activity auditing installation programs.) Proceeds which are in excess of the actual operating and maintenance costs of providing the service shall be credited to miscellaneous receipts unless otherwise authorized by law. Reimbursement for utilities and services furnished to the permittee is the responsibility of the officer having immeditate jurisdiction over the real estate. Where the use of real estate by a Federal agency under permit is authorized and the correspondence does not include information regarding charges to be made for the real estate, clarifying information will be obtained from HQDA (DAEN-REM), Washington, DC 20314.
(c) Where real property is leased to or otherwise used by the Army and a rental or charge is paid therefor, any use of the real estate, for non-Army use, either under permit or other grant, will provide for reimbursement of a proportionate part of the rental or charge, unless otherwise approved by OCE. Reimbursement is the responsibility of the DE. Any other officer authorizing such use is responsible for notifying the DE of the non-Army use.
In addition to authorities and responsibilities set forth above, the following grants may be made by commanders as indicated.
Use of space and structures by the Army Exchange and its concessionaires is governed by AR 60-10.
(a) The establishment of banks, branch banks, and banking facilities on Army installations is governed by AR 210-135.
(b) The Treasury Department determines whether a banking facility is self-sustaining and notifies the Commander, U.S. Army Finance and Accounting Center.
(c) Banking facilities which are not self-sustaining will be furnished space, utilities and custodial services without charge by the Installation Commander, provided space and services are available from existing resources.
(d) Banking facilities which are self-sustaining will be granted a lease by
(e) A bank building may not be constructed on an Army installation without the prior approval of COE, SA, and DOD.
Without reference to higher authority, and when it is found to be in the public interest, MACOM and heads of agencies having command responsibility may grant, without consideration, revocable licenses for joint use of active Army and USAR facilities during civil disturbance for not more than 30 days to the National Guard and to municipal, county, and State officials and law enforcement agencies. Licensees must agree that the privileges granted will be without expense to the DA, that the use will be subject to the control of the officer having jurisdiction over the property, that it will remove its property from the premises when the license is terminated, that it will pay the cost of any services furnished to it by the DA, and, if a non-Federal agency, that it will hold the Government harmless from any damages or claims arising out of the use. Where it is proposed to allow such use beyond 30 days, the proposal must be submitted to HQDA (DAEN-REZ) Washington, DC 20314, for approval. Federal task force commanders, acting under instructions from the Chief of Staff, in a civil disturbance control operation may approve requests for the use of installations under their control (ref. AR 500-50).
Installation commanders are authorized to permit the erection of temporary structures for use solely in connection with a Government contract for construction and related work for the period of the contract and with provision for removal and restoration of the premises upon expiration of the contract;
The establishment of credit unions on Army installations is governed by AR 210-24. Installation commanders are authorized to allot space in existing buildings, without charge for rent or services, to any credit union organized under State law or to any Federal credit union organized in accordance with the Federal Credit Union Act, (12 U.S.C. 1770), provided that, in either case, that 95 percent of the membership is composed of Federal employees, including former Federal employees who acquire membership while employed by the Federal Government and retained such membership.
Applications to hunt, trap, and fish on military reservations are governed by AR 420-74.
The authority of installation commanders to permit structures to be erected on military installations with nonappropriated funds, as well as the title status of each, is defined in AR 60-10 and AR 210-55. Use of existing space and structures for activities of a civilian nonappropriated fund is governed by AR 230-81.
Installation commanders may authorize the use of property incidental to post administration which in the absence of such authority would amount to a trespass, such as licenses to merchants to enter the reservation to make deliveries. The authority noted herein may not be used to grant licenses in situations otherwise covered by this regulation.
Title 10 U.S.C. 4779b, provides that the SA shall assign suitable space for
(a) AR 210-1 defines and classifies private organizations, such as thrift shops and child-care centers, located on Army installations and provides policy guidance for their authorization and operation. Installation commanders may authorize the use of available facilities or space to such private organizations, without monetary consideration, when the use is on a nonexclusive basis and subject to immediate termination when possession is required by the installation commander for another purpose.
(b) Where the private organization desires exclusive use of facilities or space, or for a specified period of time, the matter will be considered a leasing action, the lease will be granted by the DE and will provide for payment of a rental consideration. The installation commander will consult with the DE if there is a question whether a proposed use of facilities or space by a private organization should be authorized by the DE under lease or by the installation commander by the issuance of a license.
MACOM may approve local agreements with other Army, DOD, and Reserve elements covering temporary use of existing Army Reserve facilities,
In order to promote community relations in areas where Army Reserve Centers have been constructed, local civic and similar nonprofit organizations may be permitted to use the armory facilities during such periods that will not cause any interference with the primary use thereof for the administration and training of the Reserve components of the Armed Services of the United States. Procedures and policy are outlined in AR 140-488.
Installation commanders are authorized to grant permits for the landing of ferries and driving of livestock over military reservations under authority of 10 U.S.C. 4777.
(a) Installation commanders are authorized to grant revocable leases to military personnel and civilian personnel qualified to occupy public quarters for use and occupancy of individual trailer sites within approved trailer camp areas, and to revoke or renew such leases. (See AR 210-50.) Leases will be granted pursuant to 10 U.S.C. 2667. Necessary utilities will be provided on a reimbursable basis. In no event will the terms of the lease exceed a period of 2 years. DA Form 373 (Lease or Trailer Sites) will be used exclusively for this purpose.
(b) Leases may be revoked for nonpayment of rent, or breach of any condition of the lease or military necessity.
(c) Rents will be collected locally and turned over to the nearest Army Finance and Accounting Officer for deposit in accordance with procedure set forth in AR 37-103. A copy of the Cash Collection Voucher (DD Form 1131) will be forwarded to the appropriate DE.
Installation commanders are authorized to grant revocable licenses and to revoke such licenses in the name of an by authority of the SA, for bus and taxicab service on installations. The following policy will be observed in granting such licenses; however, if real estate is required to be leased in accordance with paragraph (e) of this section, no commitment will be made to grant licenses until approval is received for the lease.
(a) One or more licenses (revocable at will and for a period not to exceed 5 years) may be granted, based upon the free competitive proposals of all available companies or individuals.
(b) DD Form 694 (Transportation License Military Reservation) will be used for this purpose.
(c) Only duly licensed operators will be permitted to operate on installations.
(d) No distinction will be drawn between taxicab and bus transportation.
(e) If use of Government property is desired for such purposes as at bus station, waiting rooms, storage space, offices in connection with the proposed transportation service, application for a lease will be forwarded to the appropriate DE for processing.
(f) Licenses may be revoked by the installation commander for breach of any condition of the license and for military necessity.
(g) The installation commander will furnish a copy of each such license, through channels, to the MACOM or to the head of the agency having command responsibility.
The assignment and rental of quarters to civilian employees and other nonmilitary personnel will be accomplished in accordance with AR 210-50. Responsibility of the Corps of Engineers for the establishment of rental rates for quarters rented to civilian and military personnel is set forth in AR 210-12.
Without reference to higher authority, MACOM may lend certain Army real property (including the use of unoccupied barracks) to national veterans' organizations for use at State or national conventions or for national youth, athletic, or recreational tournaments sponsored by those organizations in accordance with AR 725-1.
(a) Installation commanders may grant revocable-at-will licenses for one-time use, or for intermittent or continuing use of available meeting room facilities, without monetary consideration, to on-post youth groups such as the Boy Scouts, Girl Scouts, and Little League.
(b) Installation commanders may grant revocable-at-will licenses for one-time use, or for intermittent or continuing use, to off-post youth groups such as the Boy Scouts, Girl Scouts, and the Little League for nonexclusive use of recreational areas or unimproved land areas within military reservations for recreational or camping purposes. Licenses will be granted for up to a period of 1 year without monetary consideration and will provide for a hold-harmless clause with respect to any and all claims against the Government and will require the repair of any damage or destruction resulting from such use.
Installation commanders will furnish office space without charge for JCMTO offices established in accordance with AR 55-355.
5 U.S.C. 301; 10 U.S.C. 3012, unless otherwise noted.
Subpart A sets out basic procedures to be followed in planning and scheduling for the acquisition of lands in connection with Military and Civil Works projects. It is not intended to be taken as absolute, without modification, but more as a guide to insure all aspects involved and potential problems are fully considered in planning for the acquisition of additional lands. Proper planning in the initial stages of any project can and should eliminate unnecessary delays during the acquisition phase.
(1) ER 1165-2-302 contains the practice and procedures regarding navigation.
(2) The navigational servitude affects abutting uplands, in that the special site value attributable to their location near a navigable stream is noncompensable. However, this has been partially changed by section 111 of Pub. L. 91-611. In all cases where real property is acquired by the United States for public use in connection with any improvements of rivers, harbors, canals or waterways of the United States, the compensation to be paid shall be the fair market value of such real property based upon all uses to which such real property may reasonably be put, including its highest and best use, any of which uses may be dependent upon access to or utilization of such navigable waters. In cases of partial acquisitions of real property, no depreciation in the value of any remaining real property shall be recognized, and no compensation shall be paid for any severance to the remaining real property which results from loss of or reduction of access from the remaining real property to the navigable waters because of the acquisition of real property or the purposes for which the real property is acquired.
(3) Injury to private property within or abutting non-navigable streams is compensable if inflicted in the course of an exercise of the navigation power limited to the navigable mainstream.
(2) Temporary easements may be acquired for temporary disposal of spoil, and temporary construction and borrow areas.
(3) In navigation-only projects, the right to permanently flood should be acquired in all lands located within the navigation pool and the right to occasionally flood should be acquired in lands above the pool. However, when the area to be occasionally flooded above the navigation pool consists of a narrow band of land, the right to permanently flood may be taken therein, to avoid acquisition of two different estates from the same ownership, and/or to reduce overall costs of acquisition.
A joint policy statement of the Department of the Interior and the Department of the Army was inadvertently issued as a Notice in 27 FR 1734. Publication should have been made as a final rule replacing regulations then appearing in 43 CFR part 8. The
(a) Lands necessary for permanent structures.
(b) Lands below the maximum flowage line of the reservoir including lands below a selected freeboard where necessary to safeguard against the effects of saturation, wave action, and bank erosion and to permit induced surcharge operation.
(c) Lands needed to provide for public access to the maximum flowage line as described in paragraph 1b, or for operation and maintenance of the project.
(a) Such lands as are needed to meet present and future requirements for fish and wildlife as determined pursuant to the Fish and Wildlife Coordination Act.
(b) Such lands as are needed to meet present and future public requirements for outdoor recreation, as may be authorized by Congress.
(a) Lands lying above the storage pool.
(b) Lands in remote portions of the project area.
(c) Lands determined to be of no substantial value for protection or enhancement of fish and wildlife resources, or for public outdoor recreation.
(d) It is to the financial advantage of the Government to take easements in lieu of fee title.
(ii) The lands below a guide contour line (guide acquisition line) established
(iii) Lands to be acquired for public use, being those reflected in the Recreation Resources Appendix of the Phase I General Design Memorandum (ER 1120-2-400). The Phase I General Design Memorandum is required to be prepared and submitted for approval prior to submission of the Real Estate Design Memorandum.
(iv) Lands required for operation and maintenance of the project for:
(A) Frequently used operational areas.
(B) Clearing and disposition of debris.
(C) Maintenance, repair, and restoration.
(D) Anticipated erosion.
(E) Safeguarding public health, and malaria and mosquito control.
(F) Sanitation.
(v) Lands specifically authorized by the Congress for recreation and fish and wildlife purpose as defined by the Federal Water Project Recreation Act (Pub. L. 89-72) and Fish and Wildlife Coordination Act of 1958 (Pub. L. 85-624, 16. U.S.C. 661
(A) All lands to be acquired for fish and wildlife purposes, either mitigation enhancement lands or estates therein required for other project purposes, will be presented in such a way as to distinguish clearly all such lands under each of the separate authorities involved. Specific guidance on fish and wildlife resources is contained in ER 1120-2-400 and ER 1120-2-404.
(B) The purpose of Pub. L. 89-72 is to provide a uniform policy with respect to recreation and fish and wildlife benefits and costs of Federal multiple-purpose water resource projects, and for other purposes.
(vi) Lands for resource preservation and/or enhancement in fulfillment of the National Environmental Policy Act of 1969 (Pub. L. 91-190, 83 Stat. 852) and Executive Order 11514 will be those approved in the authorizing document and/or those approved in the Recreation Resources Appendix of the General Design memorandum.
(vii) Uneconomic remnants required to be purchased in fee under section 301(9) of Pub. L. 91-646.
(viii) Recommendations may be made in the Real Estate Design Memorandum to eliminate lands from acquisition located within the approved guide acquisition line but above the guide contour line which are highly developed or devoted to public uses such as parks, golf courses, cemeteries, etc. Also, where for reasons of steep terrain, presence of highways and railroads, severe severance, or for other reasons, sound real estate practice indicates requirement for some adjustments in the area above the guide contour line, recommendations for such adjustments will be included in the real estate design memorandum, or will be subsequently submitted with proposed final real property acquisition lines, for approval of the Division Engineer in accordance with § 644.7.
(ix) Lands which will be covered by any sediment delta that is expected to form as the result of aggradation of streams draining into the reservoir. The estimate of this area shall be based upon the probable sediment inflow for a period at least equal to the economic life of the project.
(ii) Lands required for a relatively short time for temporary structures or for use during the construction period only.
(iii) The Joint Policy of 1962 provides that flowage easements
(iv) Lands downstream from the dam and required only for operational purposes.
(v) In flood control projects which do not have conservation pools, the right to occasionally flood should be acquired in all lands, except that the right to permanently flood should be acquired in those lands which may be subjected to permanent flooding, as in the case of a trash pool.
(i) In urban communities or other areas of highly concentrated developments where overtopping of levees would result in major hazards to life or unusually severe property damage under anticipated future conditions, levee grades and designs shall be adequate to withstand without failure the occurrence of the standard project flood, assuming the reservoir is filled to highest level that is reasonably likely to prevail at the beginning of such a flood.
(ii) Under circumstances where it can be reasonably shown that possible overtopping of protective levees or flood walls as proposed would not result in unusual hazards to life or major property damage, levee grades shall be as high as economically practicable in consideration of apparent risks and costs involved, and flowage easements or other appropriate assurances from local interests shall be obtained insofar as necessary to protect the Government in the event the protective structures are overtopped.
(2) Generally fee title to all subsurface interests will be acquired in areas required for all structures, areas required for project operations and public use including access, and in areas where the value of the subsurface interests is nominal. Reservation of coal, oil, gas and other minerals will be permitted whenever any aspect of mineral development will not interfere with project purposes. The reservation of mineral rights will be predicated upon the Government's right to so regulate their development as to eliminate any interference with project purposes and to minimize any adverse impact on the environment including aesthetic values.
(i) The estate providing for the subordination will not be utilized unless approved by HQDA (DAEN-REA).
(ii) Any subordination agreement, together with additional regulations incorporated by reference, must clearly define:
(A) The rights and obligations of the Government and the mineral owner, operator, and/or lessee.
(B) The control to be exercised over site development for mining purposes.
(C) Required land reclamation or restoration.
(D) Restrictions against pollution and degradation of project environment and aesthetics.
(E) Provisions for compliance inspection by the Government of all site development and mining activities over which the Government has control under paragraph (c)(1)(ii)(B) of this section.
(2) After execution of a subordination agreement as provided above, the District Engineer will develop a program for the surveillance of mineral activities at each project.
(3) The representatives of the Division and District Engineers are to be fully informed concerning the rights and responsibilities of the Government and the mineral owner and/or operator
(1) Establish and maintain liaison with Federal and State agencies having responsibility for the regulation of mineral activities and the control of environment in order to prevent adverse effects of mining on the project.
(2) Institute a system for monitoring adverse effects on the project such as sedimentation and acid drainage.
(3) Take steps to insure that Corps personnel in charge of the project are familiar with State and Federal laws governing the control of mineral recovery and the environment, as well as the Federal or State agencies responsible for the enforcement of such laws.
(4) Division and District Engineers are requested to use the Refuse Act of 1899 and any other legal remedies that may be appropriate in a particular situation in order to protect the interests of the United States and preserve the integrity of the project.
(2) Real Estate personnel will prepare the real estate section of the GDM. The requirements for current real estate estimates and necessary documentation thereof contained in § 644.6(a) are also applicable to this paragraph.
(A) A statement that this REDM is tentative in nature for planning purposes only and that both the final real property acquisition lines and the estimate of value are subject to change even after approval of this REDM.
(B) Project authorization, designation, location and date of approval of GDM Phase I, including the Recreation Resources Appendix (App A, ER 1110-2-1150).
(C) General description of the area and estimated total acreage. The total acreage will be broken down as to fee and easement areas. The fee will be further broken down to indicate, separately, the estimated acreage required for the various authorized project purposes.
(D) If any Government-owned land is within the area, indicate the Government's estate, degree of interest required for project purposes, and views of the local representative of the controlling agency as to use for project purposes (see Act of July 26, 1956 (70 Stat. 656) with respect to national forest land).
(E) Appraisal information containing a general statement as to character, present use and highest and best use of the land, local economic conditions which may affect the trend of real estate values in the community and the gross estimate of value for the area to be acquired under the REDM. The gross appraisal on which this estimate is based should be forwarded concurrently to HQDA (DAEN-REE) WASH DC 20314.
(F) Information necessary to ascertain responsibility under Pub. L. 91-646 including but not limited to the following:
(G) Estimated cost to the United States of lands, easements, and rights-of-way necessary for acquisition by the United States for:
(H) Number of structures and facilities which will come within the purview of section 111 of the Act of Congress approved July 3, 1958 (Pub. L. 85-500), and a preliminary estimate of Government costs (ER 1180-1-1, Section 73).
(I) A study, in accordance with § 644.5, of present or anticipated mineral activity in the vicinity of the project which may affect the operation thereof. A recommendation including cost estimate, if applicable, regarding the acquisition of the minerals should also be included in this section of the REDM.
(J) A discussion of standing timber and other vegetative cover in proposed recreation areas and other areas above the conservation pool which have recreation or scenic value. Recommendations should be made as to the significance of such timber and cover and as to whether reservation of standing timber should be permitted in the various parts of the fee area.
(K) A map(s) showing the area which is the subject of the REDM, indicating the acquisition guide line, contour line, the tentative blocked out fee line, multipurpose pool, and lands in which the acquisition of easements is recommended. The map(s) will show, where appropriate, the dam site, construction area, borrow areas, spoil areas, public access areas, fish and wildlife areas, and recreation areas. In addition, the appropriate map(s) will have outlined thereon the items of construction or major project features. Access roads and railroad rights-of-way required for these areas will also be shown. Chapter 3 of ER 405-1-12 relates to the preparation of maps. With respect to a project where it is planned to submit several REDMs covering portions of the project, the initial REDM will contain a map showing the entire project, with the information shown thereon as indicated above, insofar as this information covering the entire
(L) An aerial mosaic, if available, to provide a pictorial support to the rest of the report concerning involved problems.
(M) Discussion relating to the acquisition or relocation of towns and cemeteries within the project area (ER 1180-1-1, Section 73).
(N) A realistic estimate of administrative costs, giving due recognition to existing and foreseeable conditions. To assure direct relationship between costs and estimates, the breakdown of these estimates will conform to the prescribed acquisition activity cost items as set forth under Real Estate Schedule/Cost and Performance, ENG Form 4564, or any further breakdown which the District Engineer may consider desirable. Included as a minimum requirement will be: Estimated administrative costs for mapping, surveying, and boundary monumentation, appraising, title evidence, negotiating and closing direct purchases, condemnation, and relocation assistance.
(O) Summary of project real estate costs, total all project real estate costs by category,
(P) Schedule of acquisition.
(Q) Discussion and recommendations concerning the nonstandard estates proposed for acquisition and the real property boundary lines.
(R) The extent of the existing navigational servitude (ER 1165-2-302).
(S) The REDMs will be assigned a single basic number for each project; succeeding REDMs will be given alphabetical suffixes to the basic assigned number—for example, REDM Nos. 5, 5A, 5B, etc. Copies of the letter of transmittal and indorsements thereon will be inserted in the front of each copy of the REDM. A cover sheet will list chronologically all REDMs (including supplements thereto and brief letter-type memoranda) previously submitted, and will show dates submitted by the District Engineer and, if approved, dates of approval thereof.
(2) Upon approval of each REDM, the Division or District Engineer may, subject to the availability of funds, proceed with the acquisition of land and/or interests therein. The REDM, as approved, will constitute the overall real estate plan for acquisition of the area covered by the REDM. Whenever changes in the approved REDM are required, a supplementary REDM describing the proposed changes and setting forth the reasons therefor will be submitted. Approval of a supplemental REDM is required before acquisition can proceed in the area in which the changes are proposed.
(3) Prior to the approval of the REDM, Division and District Engineers should, subject to the availability of funds, proceed with preliminary real estate work, in the same manner as set out in § 644.30. No action will be taken to solicit an offer from a landowner for the purchase of his land until the acquisition has been approved and subject to availability of funds and compliance with the applicable provisions of Pub. L. 91-646.
(4) An REDM is not required for projects authorized by the Congress subject to the condition that local interests furnish without cost to the United States the necessary lands, easements, and rights-of-way. However, the GDM should include a statement enumerating the requirements of local cooperation, the name of the local interests proposing to fulfill said requirements, an estimate of land costs, and any other information pertinent thereto.
(5) Number and content of Real Estate Design Memorandum.
(i) With respect to reservoir projects involving an extensive real estate program, it is considered preferable that more than one REDM be prepared so that each will cover a segment or group of segments, making up the total project, consistent with the planned schedule of acquisition.
(ii) For those projects, requiring two or more REDMs to cover the project area, each REDM will include all contiguous lands for each public access
(iii) For smaller projects, not involving an extensive real estate program, all real estate requirements, including those for public access, fish and wildlife, and recreation, may be covered in a single REDM.
(1) Close blocking out will be accomplished in accordance with sound real estate practices.
(2) For land acquired in fee, the blocked out final real estate acquisition line will be established in such manner as to minimize costs and cause the least disruption in the use of the remainder of the ownership.
(3) Severance damages will be avoided to the extent possible consistent with real estate requirements for the project. In accordance with section 301 of Pub. L. 91-646, if the acquisition of part of a tract will render the remainder an uneconomic unit, an offer must be made to purchase the entire tract.
(4) It is conceivable that, in certain instances, acquisition of an easement will result in an uneconomic remainder and this requires application of section 301 of Pub. L. 91-646, as in paragraph (d)(3) of this section.
(5) A remnant without access need not be acquired if:
(i) The owner desires to retain the property and releases the Government from damages for lack of access, and
(ii) The obtaining of such release in lieu of acquisition is concurred in, in writing, by the local road authority, and the local road authority is released from damages due to loss of access.
(6) For lands to be acquired in fee or easements, close tangent will be used, generally following the acquisition line.
(7) When small portions of additional properties, not otherwise needed for the project, are within the acquisition line, they may be omitted if to do so will not materially affect the operation and maintenance of the project as determined by operational elements.
(1) Except for the addition or deletion of individial ownerships, or portions thereof, on the basis of the criteria contained in § 644.6(d), approval of any changes in the overall plan will be in compliance with ER 1110-2-1150.
(2) Estates in individual tracts may be changed if consistent with the overall plan. Approval, however, will be required from HQDA (DAEN-REA-P) if the estates are non-standard.
(2) It is essential that adequate funds be programmed on ENG Form 2213, Advance Engineering and Design Planning Schedule (PB-2B), to proceed with real estate planning; preparation of Real Estate Design Memoranda; determination of final project boundaries; and preliminary real estate work to the point where land acquisition can be started as soon as construction funds become available.
(3) Surveys and boundary monumentation and/or marking shall be completed prior to acquistion.
(4) Funds will be programmed for acquisition of lands for the construction area and/or other areas initially required within the first year, and for acquisition of lands for the other features of the project as rapidly as necessary real estate data can be assembled. For projects with major impoundment features and with scheduled construction periods of more than two years, funds will be programmed at a uniform level so that total real estate requirements will be covered by accepted offers to sell or declarations of taking filed in court by the end of two-thirds of the overall construction period.
(2) Section 302 of Pub. L. 86-645 (33 U.S.C. 597) is quoted, in part, for guidance:
Within six months after the date that Congress authorizes construction of a water resource development project under the jurisdiction of the Secretary of the Army, the Corps of Engineers shall make reasonable effort to advise owners and occupants in and adjacent to the project area as to the probable timing for the acquisition of lands for the project and for incidental rights-of-way, relocations, and any other requirements affecting owners and occupants. Within a reasonable time after initial appropriations are made for land acquisition or construction, including relocations, the Corps of Engineers shall conduct public meetings at locations convenient to owners and tenants to be displaced by the project in order to advise them of the proposed plans for acquisition and to afford them an opportunity to comment. To carry out the provisions of this section, the Chief of Engineers shall issue regulations to provide, among other things, dissemination of the following information to those affected: (1) Factors considered in making the appraisals; (2) desire to purchase property without going to court; (3) legal right to submit to condemnation proceedings; (4) Payments for moving expenses or other losses not covered by appraised market value; (5) occupancy during construction; (6) removal of improvements; (7) payments required from occupants of Government-acquired land; (8) withdrawals by owners of deposits made in court by Government; and (9) use of land by owner when easement is acquired.
(3) Within a reasonable time after initial appropriations are made for land acquisition or construction, including relocations, Division and District Engineers will conduct meetings with landowners. The United States Senators of the state or states and Members of the House of Representatives of the district or districts in which the project is located should be invited to attend. Normally, the public meetings should be scheduled prior to the commencement of the land acquisition program. The agenda for the meetings will include not only the nine specific items listed in section 302, Pub. L. 86-645, but all other items of a nature
(4) Inquiries, comments of landowners and tenants, and problems developed at the landowners meetings should be recorded or, at least, a detailed written resume made. HQDA (DAEN-REA-P) should be informed as to the outcome of these meetings. Effective follow-up to supply any information not available at the meeting, or to consider any particular problems presented, is essential to realize the full advantage of the public relations program.
(5) The provisions of this paragraph are applicable to all water resource development projects, including all local cooperation projects for which real estate is to be acquired in whole or in part by local interests. Initial information as to such projects for which real estate acquisition is exclusively a local interest responsibility may be given, within six months after project authorization, by either the local interest or Federal Government, through the media best adaptable under the circumstances. Advice should be given as to the timing of acquisition of the lands and lesser interests, and also as to the extent to which acquisition will be accomplished by the local interests. After appropriations, the local interests should be encouraged to sponsor and conduct a landowners meeting with attendance by Corps of Engineers representatives. If there is a joint responsibility for real estate acquisition, the local interests should explain the scheduled requirement for possession of the lands involved and their acquisition procedures, and the Corps of Engineers representatives should explain the procedures followed when lands are condemned by the Federal Government on behalf of local interests, and the authority for each action.
(6) If local interests refuse to call a landowners meeting, the District Engineer should call such a meeting, to explain the general construction features of the project, to inform the landowners and tenants that local interests are obligated to acquire the necessary lands, to state that we cannot explain the exact procedures which will be followed by local interests, but to explain the procedures followed when lands are condemned by the Federal Government on behalf of local interests. If only a very few landowners and tenants are involved, local interests may hold their meeting in the District Engineer's office or at a location more convenient to the landowners and tenants. While this would not be a formal meeting, the same type of information would be furnished. Here, also the District Engineer should call such a meeting if local interests refuse to do so.
(7) To summarize, public (landowners) meetings are required by section 302 of Pub. L. 86-645. This requirement applies to local cooperation projects as well as to the large Federal water resources development projects. The meetings will be held by Division/District Engineers, to comply with the law, if local interests refuse to call meetings at which information would normally be furnished jointly by the local interests and by the Corps of Engineers representatives.
(8) Real Estate personnel and the Public Affairs Officers of the Division and District Engineers should cooperate closely in planning vigorous public relations programs as contemplated in this paragraph and through the press, radio, and television.
New land acquisition fund. The committee has approved the budget proposal to allocate $2 million to establish a fund for land acquisition, in advance of project construction, to alleviate severe hardship cases and to avoid price escalation. The proposal has been approved with the understanding that prior committee approval will be obtained for initial purchases in each project area and that use of the fund shall be confined to those projects on which planning has progressed to the point that the damsite has been finalized, and it is known with certainty the lands to be acquired for the project.
(ii) Only those individual properties will be considered for acquisition where it can be shown that advance acquisition of the properties will alleviate severe hardship to the landowner and/or will avoid unusual land price escalation. Unusual price escalation cases involve those individually owned properties where it can be demonstrated that the land value will materially escalate, prior to commencement of the land acquisition program for the project from future appropriations for land acquisition or construction, because of imminent actions which will change the highest and best use of land, such as zoning actions, planned construction on the land and other changes in real estate market factors which will materially escalate land values. Normal land escalation occurring to all properties in general within a project will not be considered as a basis for acquisition. Hardship cases include, but are not necessarily limited to, cases involving the following:
(A) The landowner has a valid contract to purchase a replacement property and failure to dispose of his property inside the project will force him to default the contract, forfeit his deposit, or otherwise lose the benefits of the contract, and other replacement property is not available within the same area under similar terms;
(B) The property owner is forced to relocate from the area due to his employment or other circumstances beyond his control, and the Government's project has so affected the sale of properties within the project area as to make a sale to another private party at a fair and reasonable price extremely difficult; and
(C) Illness of the owner or other members of his family, or other personal hardship makes his relocation from the area necessary and the Government's project has so affected the sale of properties within the project area as to make a sale to another private party at a fair and reasonable price extremely difficult.
(D) As indicated above, these examples are not intended to exclude other cases where, in the exercise of sound judgment, actual hardship is found to exist.
(iii) Individual tract ownerships recommended for advance acquisition by Division and District Engineers and approved by OCE will be acquired by direct purchase or through the filing of condemnation proceedings, in accordance with normal procedures.
(i) Full justification must be submitted to HQDA (DAEN-CWB) WASH DC 20314 in support of the recommendation to acquire the individual ownerships.
(ii) If the recommendation is approved, action will be taken by OCE to
(iii) Appropriate records will be maintained by District or Division Engineers of allocations made from the Fund which are used for approved acquisition cases. These funds will be accounted for under a designated account number.
(iv) When appropriations for land acquisition or construction of the Federal project are specifically made by the Congress, the initial allowance of funds to the project will be reduced by the amount previously allotted from the Land Acquisition Fund in order to replenish the Fund for use at other projects.
(i) It is determined by the Secretary of the Army that the State or local interest is unable to acquire the necessary land, or unable to acquire it with sufficient promptness, and
(ii) The Governor of the State in which the site is located has requested such acquisition.
(i) All expenses of acquisition accomplished under the authority of the Act, including any award that may be made in a condemnation proceeding, the cost of title evidence, appraisals and any other costs incident to such acquisition, shall be paid by the State, agency, instrumentality or nonprofit body.
(ii) The State, agency, instrumentality or nonprofit body may repay such amount from any funds made available to it by any Federal department, agency, or instrumentality, other than the Department of the Army.
(iii) Pending such payment, the Secretary of the Army may expend from any funds appropriated for the project such sums as may be necessary to carry out section 209, Pub. L. 90-483.
(iv) To secure such payment, the State, agency, instrumentality or nonprofit body may be required to execute a proper bond before acquisition is commenced.
(v) Any sums paid by a State, agency, instrumentality or nonprofit body under section 209 shall be credited to the appropriation for the project.
(i) The development of a site is necessary in order to alleviate hardships to displaced persons;
(ii) The location of the site is suitable for development in relation to present or potential sources of employment; and
(iii) A plan for development of the site has been approved by appropriate local government authorities in the area or community in which the site is located.
(2) The policies of the Department of Energy (DOE) with respect to acquisition of real estate are generally set forth in requests of that agency for preparation of real estate design memorandums.
(3) The purpose of the planning function is to establish a sound basis for the acquisition of land and interests therein in accordance with existing law and broad procedures of higher authority; to collect all necessary real estate data; to correlate and evaluate these data from the standpoint of establishing the necessity for the proposed acquisition; to establish that no Government-owned or Government-controlled lands are available for the intended use; to determine the required estate, in accordance with existing policies, sufficient to protect the interests of the Government; and in general, to prepare each project for submission
(4) In the preparation of Real Estate Planning Reports, or Real Estate Summaries, consideration will be given to the procedures and criteria expressed in the regulations cited herein.
When a requirement develops for a new installation or the extension of an existing installation, site selection will be the primary responsibility of the using service. A representative of the appropriate Division or District Engineer will participate in selection of sites for the Department of the Army and, upon request, in Department of the Air Force site selection and preliminary investigations. Commanders and site boards should be informed of any available lands, including marginal lands in civil works projects and available lands under the control of other departments and agencies, suitable for the desired purpose. The using service will request the Chief of Engineers or the appropriate Division or District Engineer to prepare a Real Estate Planning Report or Real Estate Summary, making reference to the prior Site Selection Report if one was prepared.
(2) On Department of the Air Force projects where estimated cost is not in excess of $25,000, brief REPRs are to be prepared for issuance of directives by the approprate Air Force Regional Civil Engineer (AFRCE). Such reports need not be submitted to the Chief of Engineers except in those cases in which the major command submits a copy to Headquarters, USAF. This report should contain adequate information on the items listed in the following outline but need not be limited thereto:
(i) Requirement for the property.
(ii) Cost estimate of the property with indication of the method used in arriving at the estimate.
(iii) Summary sheet showing the acreages, interests to be acquired, improvements and estimated costs, including the administrative costs of acquiring the real property and all costs in connection with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (Pub. L. 91-646).
(iv) Map showing property to be acquired, ownerships, and relation to existing installation, where appropriate.
(v) In reports covering the acquisition of runway clearance easements, a profile, topographic, and obstruction drawing should be furnished.
(vi) Discussions of any peculiar or unusual problems anticipated in connection with the proposed acquisition including relocation assistance required by Pub. L. 91-646.
(vii) Recommendations of the office preparing the report.
(i) A list of all sites inspected with reasons for rejection of the other sites.
(ii) Description of physical characteristics of the site.
(iii) Type and extent of grading and drainage required.
(iv) Soil and foundation conditions with classification of overburden materials (to be determined by test borings only if conditions indicate this necessity).
(v) Availability of adequate access, water supply, electricity, gas for space heating, sewage disposal, drainage conditions, and telephone services. Where it is necessary to construct or extend streets, water, sewer, or other utility facilities to serve the selected site, a written commitment will be obtained from the municipal authorities assuring the United States that the municipality will perform such work without cost to the United States, or indicating the proportionate share of the costs the municipality will bear. This commitment will be made a part of the REPR.
(vi) Cost estimates of supporting facilities and any unusual building foundations, itemized to the degree practicable to indicate items, quantities, sizes, unit prices and totals.
(vii) A preliminary site plan, showing existing conditions and proposed layout, to insure adequacy of the site for its intended ultimate use.
(viii) A formal legal commitment in the form of a resolution or other instrument authorizing a long-term, nominal-rental lease or a donation, together with a reference to the authority to grant the lease or make the donation, in instances where land is owned by a State, county, city or other political subdivision.
(ix) A draft of the proposed lease in terms acceptable to the lessor, taking into consideration the requirements in DOD Directive 4165.16.
(i) Authority for request.
(ii) Acreage and estate.
(iv) Map.
(v) Excess status of land.
(vi) Description of improvements (including building numbers and square feet).
(vii) Justification for use of the property as provided by the Command. Proposed construction (if any) should be included.
(viii) Engineering Feasibility Study (if construction is planned).
(ix) Draft Acquisition Report is required for clearance under title 10
(2) The cost estimate will be prepared in accordance with subpart B.
(ii) After preparation, review and approval, the District Engineer will submit the Lease Planning Report, wherein the estimated annual rental is in excess of $25,000, to the Division Engineer. Upon review and approval, the Division Engineer will forward the original and a copy, with appropriate recommendations, to DAEN-REA-L. Simultaneously with this action, the Division Engineer will furnish the Major Air Command with two copies of the report. The Chief of Engineers will review the report and forward the original to Headquarters, USAF, with appropriate recommendations.
When a requirement develops for the acquisition of Government-owned real property and an appropriate request is received for the acquisition, the District Engineer will prepare and submit, through the Division Engineer, to HQDA (DAEN-REA-L) WASH DC 20314 a Real Estate Planning Report (Figure 2-1 in ER 405-1-12) (or a brief report, if it is determined this would be sufficient) setting forth the requirements
(a) The Act of Congress approved February 28, 1958 (Pub. L. 85-337, 72 Stat. 27) provides that all withdrawals and reservations of public domain land, water, or land and water, or restrictions on use of areas in the Continental Shelf, aggregating an area of more than 5,000 acres for any one defense project, shall be by Act of Congress. Upon receipt of a request for withdrawal or reservation of lands of the public domain or for restrictions on exploration and exploitation in the Continental Shelf, and in order that the Chief of Engineers may present the project to higher authority for approval and submission to the Congress, if approved, the District Engineer will prepare and submit, through the Division Engineer, to HQDA (DAEN-REA-L) WASH DC 20314 a Real Estate Planning Report, including the following items.
(1) A copy of the request from the Army or the using service.
(2) Complete information relative to the eight items specified in section 3 of Pub. L. 85-337 (43 U.S.C. 156).
(3) If the proposed withdrawal constitutes an expansion of an existing installation, pertinent data relative to the lands constituting the existing installation.
(4) Information relative to outstanding mineral, grazing, water and other rights.
(5) A statement as to the estimated cost:
(i) Of extinguishing such rights; and
(ii) Of suspending the exercise of such rights on a leasehold (annual rental) basis.
(6) Map(s) indicating the exterior boundaries of the project; excepted areas, if any; location of mineral rights, water rights, and other resources discussed in the report.
(b) The District Engineer will also prepare and include a draft of application for withdrawal covering the eight items specified in section 3 of Pub. L. 85-337.
(c) Upon receipt of the REPR and draft of application for withdrawal, the Chief of Engineers will prepare a Real Estate Directive.
(d) The REPR, draft of application for withdrawal, and Real Estate Directive will be transmitted through the Chief of Staff and the appropriate Assistant Secretary of the Army to the Assistant Secretary of Defense (Manpower, Reserve Affairs and Logistics) for approval of the acquisition and for coordination with the Department of the Interior (Bureau of Land Management). Upon receipt of approval from the ASD (MRA&L), the Chief of Engineers will dispatch the application to the Department of the Interior and will draft the necessary legislation for processing through normal legislative channels.
(e) It has been determined that the words "in the aggregate" in section 2 of Pub. L. 85-337 shall be interpreted as applying only to withdrawals of land since enactment of Pub. L. 85-337. For example, if 4,500 acres of public land had been withdrawn prior to enactment of Pub. L. 85-337 and the new application for withdrawal covers 1,000 acres, the requirements of Pub. L. 85-337 do not have to be satisfied. If the new application covering 1,000 acres is honored and the withdrawal completed and a later requirement for 4,500 acres of public lands developed, the requirements of Pub. L. 85-337 would have to be satisfied.
(f) Pub. L. 85-337 and the above instructions do not relate to the use of public lands under permit.
(g) In Department of Air Force cases, the District Engineer will continue to prepare such REPR's and to furnish such other services as are requested by the Major Air Commands.
(h) When the REPR contains a proposal for the acquisition of minerals, the local office of the Bureau of Land Management, Department of the Interior, will be furnished with a copy of
(a) As stated in AR 405-10 and AFR 87-1, no real estate or interests therein will be acquired until there is legislative authorization for the acquisition (41 U.S.C. 14) and an appropriation available for the purpose.
(b) AR 405-10 and AFR 87-1 also outline the clearances which must be made within the Departments of the Army and the Air Force, with the Department of Defense, and with the Committees on Armed Services of the Senate and the House of Representatives before acquisition may proceed. The Chief of Engineers is responsible for initiating all clearance actions as to Army acquisitions. The Director of Engineering and Services (AF/PRE) and the Director of Planning, Programming and Analysis (AF/RDXI), as to industrial installations, of Headquarters, USAF, are responsible for initiating all clearance actions as to Air Force acquisitions.
Where there is legislative authorization, an appropriation is available, and necessary clearances have been obtained, the formal Real Estate Directive (designating the land to be acquired, the estate to be acquired, and the amount of funds available for the acquisition) will be issued by the head of the interested department or agency, or his designee.
(a) Authority to issue all Department of the Army Real Estate Directives is vested in the Chief of Engineers. The Chief of Engineers has been delegated authority from the Secretary of the Army, and has redelegated to Division and District Engineers authority, to approve:
(1) Acquisition of permits from other Government departments and agencies, excepting the use of space in the National Capital Region.
(2) The making of minor boundary changes in approved projects to avoid severance damages, by including or excluding small tracts of land which will not decrease the usefulness of the project for the purpose for which being acquired.
(b) The delegated authority referred to in paragraph (a) of this section was redelegated to Division and District Engineers, provided it can be accomplished without the allotment of additional funds:
(c) The Chief of Engineers has been delegated authority to approve for the Secretary of the Army leasehold acquisitions, including renewals and extensions, and space assignments from the General Services Administration, where the estimated annual rental for any single project is not in excess of $50,000 and the acquisition is not controversial, unusual, or inconsistent with Department of the Army policies, excepting the acquisition by lease of industrial and commercial facilities; projects requiring a certificate of necessity in accordance with the Act of Congress approved June 30, 1932, as amended (40 U.S.C. 278a); and space in the National Capital Region. This authority has been redelegated to the Division Engineer where the annual rental does not exceed $25,000.
(d) Authority to issue all Department of the Air Force Real Estate Directives is vested in the Real Property Division, Directorate of Engineering and Services, HQ, USAF. Major Air Commands and Air Force Regional Civil Engineers may issue Real Estate Directives for acquisitions not exceeding $50,000 in cost.
(1) Division Engineers will assign numbers to Real Estate Directives
(2) All revisions to Real Estate Directives will be designated as amendments to the basic Real Estate Directive and will be appropriately numbered.
(3) Division Engineers will forward the original and one copy of each Directive, and each amendment thereto to HQDA (DAEN-REA-L) WASH DC 20314.
(4) Commanders of Major Air Commands will approve requests for leases, lease renewals, and space assignments from the General Services Administration, where the estimated cost of the project does not exceed $50,000 per annum, and subject to any necessary clearances, excepting, however, the leasehold acquisitions listed in AFR 87-1.
(e) Authority to issue DOE Real Estate Directives has been delegated by the General Manager to the Directors of Operating Divisions, DOE.
HQDA (DAEN-REA-L) is responsible for acquiring real estate for the Departments of the Army (military) and Air Force. HQDA (DAEN-REA-P) is responsible for acquiring real estate for the Department of the Army (civil works), DOE, and other Federal agencies as required.
(a) Upon receipt of the formal Real Estate Directive by the Chief of Engineers, with necessary clearances made and an allotment of funds to the District Engineer, the Division Engineer will be authorized to proceed with acquisition in accordance with the directive and the procedures outlined in subpart C and Pub. L. 91-646 instructions. Where authority has been delegated, the Division or District Engineer may proceed with the acquisition upon receipt of proper directive, any necessary clearances, and allotment of funds.
(b) Under no circumstances will offers be made to landowners or construction initiated prior to the issuance of instructions from the Chief of Engineers to proceed with the acquisition.
(c) The Division or District Engineer will maintain liaison with the local commander and advise him when possession of the land is available.
(a) Preliminary real estate work is defined as that action taken with regard to the individual ownerships leading up to, but not including, solicitation of offers from landowners. It includes preparation or procurement of tract ownership data (ENG Form 900—Tract Ownership Data, where its use is considered desirable), legal descriptions and mapping, title evidence, and individual tract appraisals. At this stage of the acquisition program, it will be necessary to make some contact with landowners, tenants, or other interested persons; for example, the appraiser's discussion of the property with the owner, his agent, or other representative (Pub. L. 91-646, sec. 301(2)). In any such contacts, information should be confined to the fact that acquisition of the real property is being considered; no acquisition action can be taken until funds are made available; and, after acquisition is approved, as much advance notice as possible will be given to all interested parties. Supply of ENG Form 900 may be requisitioned from the OCE Publications Depot in the prescribed manner.
(b) Preliminary real estate work on Army projects will be conducted as soon as design has progressed to the point at which the exact land needed has been firmly determined, or as soon as the District Engineer has determined that it is practicable to proceed.
(c) Preliminary real estate work on Air Force projects will be conducted upon request of Headquarters, USAF, or Major Air Command installations, and at the request of any of those persons designated for industrial acquisitions.
(2) These guidelines are to promote and encourage the utilization of uniform appraisal methods, standards, and techniques. Their use should result in the most effective solutions to the many appraisal problems with which the Corps of Engineers is confronted in the implementation of its real estate programs involving acquisition, disposal, and management of all kinds of real property. They are to encourage the appraiser to include in his appraisal process sufficient factual data and other supporting information to develop sound, unbiased, and independent market value estimates; promote appraisal reporting techniques that reflect acceptable judicial concepts, intelligent and convincing reasoning; and provide a sound basis for negotiations and valid testimony in court.
(2) The fair market value of the pertinent real estate interest in each parcel or tract of real property being acquired, disposed of or managed will be developed by a competent appraiser preparing an adequate appraisal report indicating sound estimates of values of each estate required. The appraisal may be prepared by either a staff employee or by a self-employed contract appraiser; however, each must have demonstrated the ability to exercise good judgment and must have had adequate experience in estimating the market value of the particular type of property involved. The qualifications and selection of staff appraisers will be based on the Civil Service Standards for the GS-1171 Series. A contract appraiser must also meet the experience requirements set forth in the Civil Service Standards.
(3) It is the practice of the Chief of Engineers to engage the services of competent appraisers and consultants to augment staff capabilities in the appraisal of various real estate interests to be acquired, disposed of or managed by the Corps. Preference will be given to local appraisers and consultants, if qualified, and the costs of their services will be paid by the Government. Any appraiser having an interest in the property being appraised or any relationship, family or business, to the owner thereof, will be disqualified from appraising that particular tract.
(4) Normally, only one appraisal per ownership or tract will be obtained. However, in cases involving controversial appraisal problems or precedent setting patterns of value in first priority areas of large projects, more than one appraisal of the same property may be obtained if considered necessary by the Division or District Engineer. If negotiations with the owners have reached an impasse and it appears that the filing of condemnation proceedings will be necessary to acquire the land or interest therein, the joint Corps of Engineers-Department of Justice policy provides that in fee takings, where the value of the property is between $50,000 and $100,000 only one appraisal need be provided to the Department of Justice so long as it is a contract appraisal; two appraisals will be provided for values exceeding $100,000. In the filing of condemnation proceedings for easement takings in excess of $50,000 two appraisals will be required. At least one of the two appraisals must be made by a contract appraiser. More often than not, both will be by contract appraisers.
(5) Each appraisal report will be carefully reviewed and acted upon by a qualified reviewing appraiser.
(6) It is essential that negotiations for any required real estate interests be conducted on the basis of an approved appraisal that reflects current fair market value. Any appraisal report with an effective date of six months or more prior to initiation of negotiations with the landowner or the date of filing of a condemnation action is considered outdated and should be reviewed and brought up to date to reflect current market conditions.
(7) The appraiser may be called upon, in condemnation proceedings or otherwise, to establish the validity and competence of his estimates. He must familiarize himself with basic rules of trial evidence so that his testimony will be admissible and of probative value. Since, as a witness, he must be prepared to offer convincing testimony, his report should contain an analysis of all factual data upon which his estimates are based.
(8) Local representatives of the Department of Justice are available for consultation in matters pertaining to acquisitions and legal principles involved in valuation problems.
(9) Appraised valuations and the supporting appraisal reports, for acquisition or disposal purposes, are privileged information and the appraiser should not divulge his findings and opinions to anyone except authorized officials of the Government. Section 301(3), Pub. L. 91-646, January 2, 1971, dictates that written statement of, and summary of the basis for, the amount of the estimate of just compensation, shall be furnished the property owner. This does not mean that the appraisal report or any part of it should be given to the landowner, but only a summary of the amount and methods of appraisal.
(10) The appraiser is usually the first personal contact the owner has with a representative of the Government. The owner is generally the prime source of information pertaining to the history, condition, management, and operation of the property. It has always been the Corps' practice for the appraiser to contact and consult with the owner of a property prior to and during the inspection of the tract. Section 301(2), Pub. L. 91-646, January 2, 1971, dictates that "* * * the owner shall be given an opportunity to accompany the appraiser during his inspection of the property." Before the appraiser makes his first visit to the property, he must make every effort to contact the owner and invite him or his designated agent or representative to accompany him on his actual field inspection. If personal contact is not possible, a registered letter should be sent to the owner. The appraisal report should reflect when and how the owner or his representative was contacted, whether or not he accompanied the appraiser, and any other pertinent comments.
(2) In the COST APPROACH, the appraiser estimates the cost of reproduction of the buildings and land improvements. A deduction is made for depreciation due to physical deterioration, and also for functional and economic obsolescence. The value of the land is
(3) In the MARKET APPROACH, the appraiser compares the subject property on an overall basis with similar properties which have recently sold. Adjustments are made for all factors of dissimilarity. All known sales are considered, but the appraiser selects only those which are verified to be good "arms length transactions" and considered to be most similar to the property appraised. After these sales are analyzed and adjusted to the subject, this data is then correlated into a final estimate of value as indicated by the market.
(4) In the INCOME APPROACH, the appraiser estimates the probable gross and net income to be expected from the rental of the property, adjusts for the quality and durability of this income stream, and processes this income into a value estimate by use of an appropriate capitalization rate.
(5) The appraiser then correlates the indicated value estimates from the three approaches into a final estimated market value. Consideration is given to the relative strengths and weaknesses of each approach. Normally, the most weight is given to the approach commonly used by the typical purchasers of the type of property appraised. In almost all routine appraisals the market approach is most applicable.
(2) The use of preprinted narrative sales data sheets is authorized. Care should be exercised to properly relate each sale to subject in the narrative. Use of individual forms is also authorized for tabular exercises, such as the "cost approach." In every instance the narrative should reflect the appraiser's reasoning.
B-1. Contents of appraisal report: The text of the appraisal report shall be divided into four parts as outlined below:
1. TITLE PAGE. This shall include (a) the name and street address of the property, (b) the name of the individual making the report, and (c) the effective date of the appraisal.
4. PHOTOGRAPHS. Pictures shall show at least the front elevation of the major improvements, plus any unusual features. There should also be views of the abutting properties on either side and that property directly opposite. When a large number of buildings are involved, including duplicates, one picture may be used for each type. Views of the best comparables should be included whenever possible. Except for the overall view, photographs may be bound as pages facing the discussion or description which the photographs concern. All graphic material shall include captions.
6. REFERENCES. If preferred, may be shown with applicable approach.
7. PURPOSE OF THE APPRAISAL. This shall include the reason for the appraisal, and a definition of all values required, and property rights appraised.
8. LEGAL DESCRIPTION. This description shall be so complete as to properly identify the property appraised. If lengthy, it should be referenced and included in Part IV. If furnished by the Government and would require lengthy reproduction, incorporate by reference only.
9. AREA, CITY AND NEIGHBORHOOD DATA. This data (mostly social and economic) should be kept to a minimum and should include only such information as directly affects the appraised property together with the appraiser's conclusions as to significant trends.
a. Site. Describe the soil, topography, mineral deposits, easements, etc. A statement must be made concerning the existence or nonexistence of mineral deposits having a commercial value. In case of a partial taking, discuss access both before and after to remaining tract. Also discuss the detrimental and hazardous factors inherent in the location of the property.
b. Improvements. This description may be by narrative or schedule form and shall include dimensions, cubic and/or square foot measurements, and where appropriate, a statement of the method of measurement used in determining rentable areas such as full floor, multitenancy, etc.
c. Equipment. This shall be described by narrative or schedule form and shall include all items of equipment, including a statement of the type and purpose of the equipment and its state of cannibalization. The current physical condition and relative use and obsolescence shall be stated for each item or group appraised, and, whenever applicable, the repair or replacement requirements to bring the property to usable condition.
Any related personalty or equipment, such as tenant trade fixtures, which are not attached or considered part of the realty, shall be separately inventoried. Where applicable, these detachable or individually owned items shall be separately valued.
d. History. State briefly the purpose for which the improvements were designed, dates of original construction and/or additions; include, for privately owned property, a ten-year record as to each parcel, of all sales and, if possible, offers to buy or sell, and recent lease(s); if no sale in the past ten years, include a report of the last sale.
e. Assessed value and annual tax load. If the property is not taxed, the appraiser shall estimate the assessment in case it is placed upon the tax roll, state the rate, and give the dollar amount of the tax estimate.
f. Zoning. Describe the zoning for subject and comparable properties (where Government owned, state what the zoning probably will be under private ownership), and if rezoning is imminent, discuss further under item 11.
11. ANALYSIS OF HIGHEST AND BEST USE. The report shall state the highest and best use that can be made of the property (land and improvements and where applicable, machinery and equipment) for which there is a current market. The valuation shall be based on this use.
12. LAND VALUE. The appraiser's opinion of the value of the land shall be supported by confirmed sales of comparable, or nearly comparable lands having like optimum uses. Differences shall be weighed and explained to show how they indicate the value of the land being appraised.
13. VALUE ESTIMATE BY COMPARATIVE (MARKET) APPROACH. All comparable sales used shall be confirmed by the buyer, seller, broker, or other person having knowledge of the price, terms and conditions of sale. Each comparable shall be weighed and explained in relation to the subject property to indicate the reasoning behind the appraiser's final value estimate from this approach.
14. VALUE ESTIMATE BY COST APPROACH, IF APPLICABLE. This section shall be in the form of computative data, arranged in sequence, beginning with reproduction or replacement cost, and shall state the source (book and page if a national service) of all figures used. The dollar amounts of physical deterioration and functional and
15. VALUE ESTIMATE BY INCOME APPROACH, IF APPLICABLE. This shall include adequate factual data to support each figure and factor used and shall be arranged in detailed form to show at least (a) estimated gross economic rent or income; (b) allowance for vacancy and credit losses; (c) an itemized estimate of total expenses including reserves for replacements.
Capitalization of net income shall be at the rate prevailing for this type of property and location. The capitalization technique, method and rate used shall be explained in narrative form supported by a statement of sources of rates and factors.
16. INTERPRETATION AND CORRELATION OF ESTIMATES. The appraiser shall interpret the foregoing estimates and shall state his reasons why one or more of the conclusions reached in items (13), (14), and (15) are indicative of the market value of the property.
17. CERTIFICATION. This shall include statement that Contractor has no undisclosed interest in property, that he has personally inspected the premises, date and amount of value estimate, etc.
18. LOCATION MAP. (Within the city or area)
19. COMPARATIVE MAP DATA. Show geographic location of the appraised property and the comparative parcels analyzed.
22. FLOOR PLANS. (When needed to explain the value estimate.)
24. QUALIFICATIONS. (Of all Appraisers and/or Technicians contributing to the report.)
(2) The following exceptions are made to the above format:
(i) Estate, either a copy of the estate appraised should be included in the report or by reference in the report to the appropriate estate.
(ii) Legal description must be included in the appraisal report, either in the body or as an exhibit.
(3) Photographs of important buildings and unusual land conditions are considered an integral part of each appraisal report. Judgment should be exercised in conserving time and expense, and several small buildings can often be covered in one photograph. The use of color film and photographs is encouraged, especially wherein development cost either "in-house" or by outside firms is reasonable.
(i) Family housing appraisals,
(ii) Inleasing of privately-owned quarters and outleasing of government-owned quarters to civilian tenants,
(iii) The purchasing or leasing of undeveloped land,
(iv) Rentals of small office-type space (example: Recruiting facilities),
(v) Rights of way for utility lines and roadways,
(vi) Leases; easements, and
(vii) Other minor interests in real property.
(2) Appraisals exceeding $2,000 per annum rental are subject to the Economy Act, and the fee value must be shown if improvements are included. A brief or short form-type of appraisal is adequate.
(3) All appraisals will be supported by at least three comparable sales or rentals of similar properties. A narrative discussion of each will be included. In bulk acquisition projects the use of prepared sales data sheets is authorized and encouraged. Each sale or rental must be discussed and compared to the subject property within the narrative of the report.
(4) Brief narrative appraisals will be reviewed under the same requirements as normal appraisal reports.
(2) Each gross appraisal will be supported by detailed analyses of an adequate number of typical comparable sales. Each index sale will be analyzed to show various land classifications
(3) Where letter-type or brief real estate design memoranda on civil works projects are submitted, comparable sales data will be presented in one of the following methods:
(i) Be submitted within the report in a brief manner, with at least three truly comparable sales discussed in narrative form and comparisons shown to the subject lands covered by the memorandum.
(ii) Be referenced to the last real estate design memorandum issued on the same project and if values have changed in the interim, additional sales data submitted to support the changes. If the last design memorandum is over a year old, new supporting data must be submitted.
(2) Most fee appraisals require the use of all three of the standard appraisal approaches.
(2) In the Cost Approach it is extremely important that the appraiser document all items of costs for development, construction, utilities, etc. It also is extremely important that he fully consider all forms of depreciation such as physical deterioration, functional obsolescence, economic obsolescence, etc., and justify his methods and factors used in developing his depreciation factors.
(3) The Market Approach or Comparative method of appraisal is the most direct approach to a market value estimate and is preferred above all others. It is basically an application of the principle of substitution wherein the sales of similar type properties are analyzed to develop a price at which an equally desirable and similar property can be obtained. It involves the collection and analyzing of current sales of comparable properties and comparing these sales to the subject property. Since no two properties are identical, the appraiser must make adjustments for differences between the two. Adjustments may be by a dollar amount (per unit, per acre, or lump sum) or on a percentage basis. Full support and justification must be given for each amount. Adjustments may be shown either by a tabular analysis or by a narrative discussion.
(4) The market value of an income-producing property is quite often governed by the net income it will produce. The fair market value may be estimated by developing the expected net income and processing it into a value estimate by use of an appropriate capitalization rate. The keynote of this approach lies in the sound development of a proper rate. The appraiser must have a basic knowledge of the principle and techniques involved and must be certain that he has adequate data to develop this rate and properly process the income into a fair market value.
(5) It is most important that the valuation estimates developed by all of the approaches used are correlated into one conclusive value. In those cases where there is a substantial spread among values, the appraiser is cautioned to recheck all his data and figures for accuracy. The cost figures and
(2) In order to promote uniformity in the reporting format, the following example of the "before" and "after" method is presented for guidance:
(3) The appraisal of the property before the taking must be a complete narrative-type appraisal containing adequate market data to support the total value. The report then must also include a full appraisal on the remainder portion of the property consisting of a full description of the residue immediately after the taking and a complete set of market data and sales other than those used in the "before" evaluation. If the remainder parcel has diminished in value as a result of the taking, the appraiser must have adequate support and justification for the reduction in value.
(4) In the case of partial takings, consideration must also be given to offsetting benefits applicable to the remaining property. A combination of legal interpretation of the law and judicial decisions with regard to such benefits must be used in determining whether offsetting benefits are applicable. Reference is made to paragraph A-9 and A-10 in the "Uniform Appraisal Standards For Federal Land Acquisitions."
(5) Paragraph A-13 of the "Uniform Appraisal Standards" is also referenced in connection with guidance regarding "navigation servitude."
(2) An appropriate certification shall be substantially in accordance with the following: I certify that I have carefully examined the property described herein and that the estimates as developed in the report represent my unbiased opinion and judgment. I further certify that I have no interest, past, present or prospective, in the subject property which would affect my opinion and that the present fair market value of the (
(2) Appraisals to establish fair rental values will be made in accordance with acceptable standards of appraisal applicable to the particular type of property and in accordance with general appraisal practices and procedures heretofore described in relating to all appraisal work. The preparation of time-consuming and lengthy appraisal reports should be kept to a minimum, particularly with regard to rental properties of low value. A brief summary of the essential facts will be sufficient to support leases by the Government of building space or unimproved land where the net rental value is not in excess of $3,600 per annum.
(2) An exception to the above procedure is in regard to the appraisal of family housing units. As an alternative, the appraiser can support his rental valuation by use of comparable rentals and a statement that the lease value does not exceed 15% of the fair market value.
(1) Land description, showing street frontages and lot depths.
(2) Adequate description of improvements and furnishings, including type of construction, total floor space, floor load for storage space, number of rentable rooms, or income-producing space, nonproductive or public space, total cubic content, and reproduction cost of improvements less depreciation.
(3) Assessed valuation and lawful ratio to market value, if the annual rental value exceeds $2,000.
(4) Analysis and discussions of current rentals of similar properties and rental history of the property appraised.
(5) Discussion of the appraisal process and rental rates applicable to the terms of the proposed lease, particularly as to any differential in the rate of return applicable to customary long term rentals.
(6) Statement showing distribution of appraised annual rental as allocated to fixed charges and fair rate of return on land, buildings, and any furnishings or equipment that are included in the proposed taking.
(1) Financial history of property, including indebtedness, the actual past income or earnings of the property based upon audit reports for the past five years or longer, and any unaudited current months of the fiscal year. In the absence of audits, corporate statements may be furnished if properly certified.
(2) Discussion of the past operation and management methods with comments relative to any excessive or insufficient charges appearing in the financial statements obtained.
(3) Appraiser's estimate of the stabilized income of the property.
(4) Appraiser's estimate of profits available for typical lessee-operator.
(5) Recommendations of the appraiser as to the relative merits of acquiring fee title to the property as against acquiring a leasehold interest.
(2) The appraisers selected to estimate the rental value should be fully informed as to all known prospective lessees and the amount of any bids, or offers made for the use of the property, and as to all terms, conditions, and limitations under which the property will be made available for use or operation.
(3) The appraisal reports will include a detailed inventory setting forth all physical factors pertaining to the land, buildings, machinery, and equipment and an adequate discussion of all local factors influencing the profitable use of the facility. Data pertinent to the prevailing rentals for other Government and privately-owned industrial plants and warehouses considered reasonably similar to the facilities to be leased will also be included. The conclusions of the appraiser as to other matters of importance to the Department of the Army in its leasing operations will likewise be presented. The appraiser should bear in mind that idle manufacturing plants, and all industrial properties, as a general rule, are valuable only to the extent and degree that they are usable in actual production. It is also a generally accepted economic fact that the plant and fixed equipment (real estate) is the production factor for which a return can ordinarily be realized after the cost of all other factors in production has been provided. Military necessity has required the construction of many plants which are designed for special purposes and which may tend to defeat the ordinary approaches to the market rental value problem. In the absence of comparable rentals of similar properties or other reliable comparative guides to value for temporary use, market rental
(2) Reappraisals of rental quarters are required every fifth year subsequent to previous appraisal. Rental rates will be adjusted annually between appraisals by application of the Consumer Price Index (CPI) maintained by the Bureau of Labor Statistics, Department of Labor, and as further required in accordance with Transmittal Memorandum No. 2, OMB Circular A-45, revised October 30, 1974.
(2) The market value of fee simple title to each property over which a flowage easement is required will first be appraised in the usual manner. This estimate will be followed by appraisal of the market value of the property after imposition of the easement. The market value of the easement is then computed on the basis of the amount the market value of fee title is reduced by imposition of the easement. The appraiser will give full consideration to all factors having a bearing on the reduction in value of the parcel on which the easement is to be imposed. Each appraisal report will include complete information as to estimated flood frequency pertaining to each parcel appraised.
(3) The appraiser's major problem in appraising tracts having considerable value is the development of his value estimate after the imposition of the easement. The market data approach to value is limited in this phase of the appraisal to index sales of land reflecting the "use adaptability" of lands to a less profitable purpose. Typical of such change in highest and best use are the conversion of row crop land and orchard land to pasture and forestry. Likewise, the cost approach to value is applicable only to land improvements
(4) In those instances where the type of land, topography, flood frequency and duration data clearly indicate that a minimal change in value (not to exceed $100) will result from exercise of the required rights, a brief appraisal is authorized. The appraisal report will contain as a minimum a complete statement of pertinent facts, including information regarding flood frequency and duration data pertaining to the property appraised. In the event condemnation is required to acquire the necessary rights, an acceptable "before" and "after" appraisal will be prepared prior to the institution of condemnation proceedings.
(5) A tract map showing each contour level of varying flood frequency will be made a part of each appraisal report. This map should facilitate review of the appraisals and serve as an aid to the negotiator in his contacts.
(2) In the event that subsurface valuation is unfamiliar to the Division or District requiring same, HQDA (DAEN-REE) WASH DC 20314 should be contacted for advice and recommendations. Mineral valuation engineers within the Corps may be utilized on a cost reimburseable basis for furnishing gross or tract appraisals.
(2) Extreme care must be exercised in the use of separate timber estimates for appraising timber land, so as to avoid "doubling up." Where a timber cruise or estimate is used, comparable sales of recently timbered land should be used to support the remaining land value. Where such sales are not available, care must be utilized to extract the timber value from sales of timber land. The optimum situation would be to have sales that were also cruised; however, this does not often happen.
(2) The crop appraisal will identify the crops by type, number of acres, estimated yield per acre taking into account all hazards, the unit value, gross market value at maturity based upon current local prices for the commodities less cost of bringing to maturity, harvest, and delivering to available markets. The expected harvest period will be reported, together with other pertinent information, in order to indicate an approximate date when the cropland may be available for construction purposes.
(i) Data of acquisition and completion of Government construction.
(ii) Complete cost data as to original purchase price and Government construction.
(iii) Detailed discussion of the predominant uses to which the property is adaptable.
(iv) Competitive position of the property with respect to availability of privately-owned properties for similar use.
(v) Estimate of market value of fee title.
(vi) Estimate of annual rental value assuming unrestricted use over a reasonable period of time.
(vii) Estimate of annual rental value under proposed Government restrictions.
(2) Time consuming and lengthy appraisal reports should be avoided in the case of low value grants involving Government-owned property. The consideration in such cases may be substantiated by a simplified appraisal report by a qualified appraiser setting forth only such facts as are required to validate his conclusions as to value. In such instances, a physical inspection of the property may be waived where the appraiser is sufficiently familiar with the property under appraisals and local market conditions to prepare a reasonable value estimate of the estate to be appraised. When a property is not physically inspected, it will be so noted in the appraisal report. The decision concerning the necessity for a physical inspection of the property and analyzing local market conditions will rest with the appraiser signing the appraisal certificate since he is personally responsible for the value conclusion developed in the appraisal report. A low value grant for the purpose of this paragraph is defined as any grant for which the fair market rental value (before applying any offset in rental for estimated savings in maintenance, protection, repair and restoration) does not exceed the following:
(3) The following are exempt from the above requirements:
(i) Leases for land on which to construct new credit union facilities, under long-term leases. See DOD Directive No. 1000.10 for formula.
(ii) Concession leases under Graduated Rental System.
(2) A review of all real estate appraisals is considered of vital importance to
(3) The review action will be documented by a separate narrative memorandum signed and dated by the authorized reviewing appraiser. Such review memorandum will indicate, but not be limited to, the following:
(i) Date and nature of physical inspection of the subject property.
(ii) Statement relative to reviewer's knowledge of comparable sales used.
(iii) Reviewer's opinion as to the appraiser's valuation.
(iv) Other pertinent data, if any, relative to the property or comparable sales that the reviewer feels would lend additional credence to value estimate.
(v) Reviewer's certification of approval, disapproval, or recommendation.
(4) If more than one appraisal is obtained for an ownership, all should be reviewed by the same reviewing appraiser. The reviewer can cover all appraisals in one review memorandum, or write individual reviews.
(5) No alterations or additions will be made to a signed appraisal report by anyone other than the appraiser who signed the report. A reviewer cannot change the value reflected or approve an amount other than the appraiser's final conclusion of value. His alternative is disapproval.
(6) A reviewing appraiser may not review other appraisal reports covering a property that he has himself previously appraised. In this instance the reports must be assigned to another reviewer or be forwarded to the next level of review for appropriate action.
(7) Appraisal reports obtained by the Department of Justice and submitted for Corps review are to be treated in the same manner as those obtained by the Corps.
(2) Division Engineers have been authorized further, at their discretion, to redelegate any part of this authority, up to $150,000, to District Engineers.
(3) All appraisals exceeding $250,000 will be forwarded to HQDA (DAEN-REE) WASH DC 20314 for final review, approval, and/or appropriate action. Each report will be thoroughly reviewed at all levels, including the Project, District and Division.
(4) A copy of all those reports between $100,000 and $250,000 will be forwarded to DAEN-REE for post review and retention.
(5) In addition to those reports which exceed the delegated authority, DAEN-REE will review and take appropriate action on complex, difficult and controversial appraisals. Where more than one appraisal has been made within either of these categories, a copy of each appraisal report should be submitted for review regardless of variances in opinions of value. At times, the Division Engineers may receive specific instructions as to appraisals which may require final approval of DAEN-REE. Also, from time to time, DAEN-REE may call for and review typical appraisals prepared by individual appraisers.
(1) Attempt to reconcile differences with the appriser in a face-to-face meeting. The reviewing appraiser should present his additional evidence of value to the appraiser and discuss the report weaknesses, if any.
(2) In the event reconciliation and approval are not possible, the reviewer
(2) Upon selection and appointment by the District Engineer of qualified staff personnel to act as reviewing appraisers, a copy of their qualifications and experience records, along with a copy of the appointing orders, will be forwarded to HQDA (DAEN-REE) WASH DC 20314.
(2) Requests from Division and District Engineers to the Chief of Engineers for names of appraisers qualified to make particularly complex appraisals are invited.
(3) Division and District Engineers will develop and maintain current lists of qualified appraisal firms, corporations and individuals, from which contractor selection will be made. These lists should be appropriately grouped or rated in accordance with special qualifications and experience in connection with various and specific types of appraisal problems.
(4) Prior to receipt of proposals and negotiations with appraisers, a target fee (Government estimate) will be developed with due consideration to the relative skill and ability required in solving the appraisal problem and the appraiser's time and expense required for preparing the desired reports.
(5) In the negotiation of appraisal contracts the following items are to be considered:
(i) The appraisal of real estate is a recognized profession governed by a code of ethics prohibiting competition in obtaining appraisal assignments. All negotiations for proposals will be conducted on an individual basis, with adequately qualified appraisal firms, corporations or individuals competent to deliver the required appraisal reports on schedule.
(ii) In view of the technical nature of appraisals, Division and District Engineers shall give consideration to designating qualified member(s) of their real estate staffs as contracting officer's representative(s) with full responsibility for all cost estimates involved in contracting for appraisal services and reports. Such contracting officer's representative(s) may also, in the designation of the contracting officer, be utilized to conduct negotiations with the prospective contractors, serve as ordering officer pursuant to the contracts, certify invoices and act in any other capacity within their authority as contracting officer's representative(s).
(6) A copy of the narrative, detailed record of contract negotiations will be forwarded to DAEN-REE, along with the contract as specified above.
(7) In contracting for appraisal reports, contract forms as set forth in Armed Services Procurement Regulations (ASPR) (chapter I of this title) and ER 1180-1-1 (Engineer Contract Instructions) will be used. An outline of the qualifications of the appraiser employed to perform the contemplated
(i) It is in the best interest of the Government, cost wise, not to issue the long-form contract.
(ii) The contractor has performed satisfactorily on at least one contract within the prior three fiscal years.
(iii) The total order, by such purchase orders, from the contractor does not exceed $10,000 for the project during the current fiscal year.
(iv) The order is accompanied by a brief history of negotiation signed by both the contractor and the contracting officer's representative(s).
(2) Care should be exercised to insure that the above provisions are used only to order supplementary reports, single appraisals, and other "one-time" reports needed.
(2) Insured certificates of title or policies of title insurance shall be obtained wherever possible. This is on the theory that the Government is buying title searching service as well as the title evidence itself and is avoiding the time and cost of examining abstracts of title, generally voluminous in nature.
(3) Where it is not possible to obtain certificates of title or title insurance,
(4) As used in these sections, an abstract of title is a synopsis or digest of all instruments of record affecting the title to a specific parcel of land. It neither guarantees nor insures the title. A certificate of title is a contract whereby a title company certifies that title to a specific parcel of land is good and unencumbered of record in a named person excepting only such defects and encumbrances as are shown therein. The liability of the company is limited to an amount specified in the certificate. A title insurance policy is a contract which insures that the owner or mortgagee will not suffer any loss or damage by reason of defects in the title to the property, or liens or encumbrances thereon existing at the date of the policy, except those defects, liens, or encumbrances which the policy specifically excepts. Liability thereunder is not limited to matters of record but extends to matters beyond the record.
(5) The Directory of the American Land Title Association may be obtained upon request to the Association at 1828 L Street, NW., Washington, DC 20036, or to any major title insurance company. This Directory lists, by States, the abstract and title companies which provide title insurance. These companies are acceptable to the Attorney General. Requests for furnishing title certificates or title insurance should be made to the major title insurance companies in addition to local abstractors and title companies.
(6) From past experience, it is considered that the procurement of certificates of title or title insurance is more economical than abstracts of title and the use of these types of title evidence expedites payment to landowners. In the majority of the States either certificates of title or title insurance are obtainable and the premium for issuance of such certificates or policies is based on a schedule of fees approved by the State Insurance Commission or some similar State agency. The premium fixed by such schedules, in most cases, includes the charge for title examination (preliminary certificate of title or preliminary binders) and the charge for insurance (final certificates of title or title guarantee policy) and any variance from the prescribed fees is considered a violation of the Sate law or regulation. Most State Insurance Commissions have recognized and approved the forms of certificates of title and title insurance policies prescribed by the Attorney General and have authorized their use in lieu of owners' policies. Division and District Engineers should familiarize themselves with the State title insurance laws and regulations. If prices quoted by all possible sources seem exorbitant, the matter should be referred to HQDA (DAEN-REA-P) WASH DC 20314 for action.
(i) In contracting for certificates of title, ENG Form 1016, Specifications for Furnishing and Delivering Certificates of Title Owner's Title Guarantee (Insurance) Policies and Continuations Thereof, will be used.
(ii) Any title or abstract company approved by the Department of Justice and authorized and qualified to issue certificates of title in the State where the land is located will be acceptable to furnish certificates of title (Department of Justice "Standards for the Preparation of Title Evidence in Land Acquisitions by the United States, 1970.") In those few jurisdictions where bar associations or other public or professional bodies hold that the issuance of certificates of title is the issuance of title opinions and therefore the practice of law and where title companies as corporations cannot engage in the practice of law, insured certificates of title may be procured from attorneys, acceptable to the Lands Division of the Department of Justice, acting as agents for title companies. The procedure for the selection of attorneys is set forth in § 644.63(b).
(iii) Certificates of title will be based on a search of all records affecting the title to the land and be unqualified as
(iv) Certificates of title or title insurance policies shall not limit the liability of the title company to a sum less than 50 percent of the reasonable value of the property. If property is acquired by donation or exchange, the value will be determined by the Corps of Engineers. However, as to acquisitions valued at more than $50,000, the liability of the title company may be limited to 50 percent of the first $50,000 and 25 percent of that portion of the value in excess of that amount. This limitation on the general rule has been approved by the Department of Justice. The appropriate ENG Forms for specifications for supplying title evidence may be amended, if that limited liability can be obtained. A certificate of title or title insurance policy by one title company for a single acquisition valued at more than 25 percent of the admitted assets (after deducting existing liabilities secured or unsecured and excluding any trust or escrow funds) of the issuing company is not acceptable.
(v) Generally, it is not necessary to obtain a final certificate of title when land is acquired by condemnation proceedings. However, it may be necessary that an intermediate certificate of title be obtained setting forth the limitation of liability of the title company. Division and District Engineers will be governed by the requirements of the local United States Attorney as to the necessity of obtaining an intermediate or final certificate of title.
(vi) Certificates of title, whether preliminary, intermediate, or final, will be procured in sufficient numbers to satisfy the needs of the District involved. Normally an original and two signed copies of each certificate of title will suffice.
(vii) The specifications may be supplemented to require the title company to have a local representative stationed convenient to the project office, when, because of the nature of the project (anticipated complexities of title; high purchase prices, or other reasons), it is considered advisable that a local representative be available to perform preclosing interim title searches on request of the Contracting Officer.
(viii) The title company's local representative must be authorized to pass on the sufficiency of the proposed deed to the United States; to give final approval of curative material furnished to satisfy title objections set forth in certificates of title; and to testify in court relative to the status of title, if called upon to do so.
(2) Title guarantee or title insurance policies are acceptable title evidence.
(i) Interim binders on owner's title guarantee or title insurance policies supplemented by an owner's title guarantee policy or title insurance policy in the forms approved by the Attorney General (ENG Form 1014), Interim Binder on Owner's Title Guarantee (Insurance) Policy, and ENG Form 1015, Owner's Title Guarantee (Insurance) Policy will be acceptable as evidence of title only in acquisition in those States where certificates of title may not be issued. ENG Form 3893-R is the form of endorsement for use with the title insurance policies when changes or corrections become necessary. No other substantial variation in the form of interim binder or the form of title guarantee or title insurance policy will be acceptable without prior approval of the Attorney General.
(ii) Companies contracting to issue such interim binders or preliminary reports and title guarantee or title insurance policies must have authority under the laws of the State of their incorporation and their charter to issue the same. They must also be financially sound and be willing and able to issue such binders and policies for all tracts for the amount of liability as set forth above.
(iii) In contracting for title guarantee or title insurance policies, ENG Form 1016, Specifications for Furnishing and Delivering Certificate of Title Owner's Title Guarantee (Insurance) Policies and Continuations Thereof, will be used.
(iv) The interim binder or preliminary report must disclose the title holders of record and contain full information on all matters set forth in the binder as affecting the title. This data
(v) The provisions of paragraphs (a)(1) (iv), (v), (vi), (vii) and (viii) of this section also apply to title guarantee or title insurance policies.
(3) Abstracts of title may be acceptable title evidence.
(i) Abstracts if title complying with the rules for abstracts in "Standards for the Preparation of Title Evidence in Land Acquisitions by the United States" issued by the Department of Justice, 1970, are acceptable title evidence if prepared by abstractors acceptable to the Attorney General. These may include abstractors employed by a department or agency of the Government. Corps of Engineers personnel generally will not prepare abstracts of title. However, where there is a comparatively small amount of abstract work to be performed, it may be desirable to have the abstracts prepared by qualified Government personnel. In such cases, the prior approval of the Chief of Engineers will be obtained. The request should justify the preparation of abstracts by Government personnel.
(ii) The form and contents of abstracts of title will meet the requirements in the "Standards for the Preparation of Title Evidence in Land Acquisitions by the United States" (Department of Justice, 1970) and ENG Form 1012, Specifications for Furnishing and Delivering Abstracts of Title.
(iii) The period of search of an abstract of title to be acceptable to the Attorney General will, wherever possible, begin with some undisputed source of title such as an original grant or patent from the sovereign. Where it is impossible or impracticable to begin with such grant or patent, refer to "Standards for the Preparation of Title Evidence in Land Acquisitions by the United States" (Department of Justice, 1970) and ENG Form 1012 for guidance.
(iv) In contracting for abstracts of title, ENG Form 1012 will be used. ENG Form 1012 provides for an unlimited period of search. For the purpose of conserving Government funds and in applicable easement acquisitions, Division and District Engineers are authorized to modify ENG Form 1012 to provide for the mimimum period of search allowable under the regulations of the Department of Justice, when deemed to be to the best interest of the Government.
(4) Where the consideration to be paid by the Government is $1,000 or less, acquisition in fee may be based upon a title search by a staff attorney when it is deemed to be in the best interest of the Government. The Preliminary Certificate of Title, ENG Form 909, shall be based upon a search of the local land records beginning with a deed or other instrument transferring title recorded at least 40 years prior to the date of the preliminary certificate. The Final Certificate of Title on ENG Form 1013, shall be executed by a qualified Corps of Engineers' attorney, preferably the same attorney who executed the preliminary certificate, and shall be based on a further search of the local land records from the date of the preliminary certificate to and including the date and time of recordation of the deed to the United States or to the date title passes in a condemnation proceeding. The attorney preparing such preliminary or final certificate of title shall also prepare an Abstract of Title evidencing the results of his search of the records. The Certificate of Title will set forth in detail all liens, encumbrances, outstanding interests and other estates adversely affecting the title.
(1) Preliminary certificates of title of approved title companies for easement acquisitions will be in the same form approved by the Attorney General for fee acquisitions and issued by the Chief of Engineers as ENG Form 903. Final certificates of title in easement acquisitions, however, must show title to the easement vested in the United States in the same land described in the certificate and the deed to the
(2) In contracting for certificates of title to easements, ENG Form 1016, Specifications for Furnishing and Delivering Certificates of Title, Owner's Title Guarantee (Insurance) Policies and Continuations Thereof, may be used provided the following paragraph is substituted in the detailed specifications: "Each certificate of title shall be executed in triplicate on legal size paper. Preliminary certificates of title shall be in the form attached hereto, ENG Form 903, and final certificates of title for easements, showing title vested in the United States, shall be in the form attached hereto, ENG Form 1017."
(3) In jurisdictions where it is not possible to obtain certificates of title commercially, title guarantee (insurance) policies may be obtained. In such cases, appropriate adjustment in forms and specifications will be made, comparable to those prescribed for certificates of title to easements above.
(4) For easements costing more than $100 but not in excess of $5,000, the requirements of the Attorney General have been waived. In such cases, it is acceptable to use certificates of title prepared and executed by a qualified Corps of Engineers' attorney. The Preliminary Certificate of Title, ENG Form 909, shall be based upon a search of the local land records beginning with a deed or other instrument transferring title recorded at least 25 years prior to the date of the preliminary certificate. The Final Certificate of Title on ENG Form 1013, shall be executed by a qualified Corps of Engineers' attorney, preferably the same attorney who executed the preliminary certificate, and shall be based on a further search of the local land records from the date of the preliminary certificate to and including the date and time of recordation of the deed to the United States or to the date title passes in a condemnation proceeding. The attorney preparing such preliminary or final certificate of title shall also prepare an Abstract of Title evidencing the results of his search of the records. The Certificate of Title will set forth in detail all liens, encumbrances, outstanding interests and other estates adversely affecting the title.
(5) As to easements which cost $100 or less, acquisition shall be in accordance with the provisions of paragraph (5) on page 5 of "Standards for the Preparation of Title Evidence in Land Acquisitions by the United States" (Department of Justice, 1970) which permit such acquisition to be based on a last owner search. Any search authorized by these provisions may be conducted by a qualified attorney employed by the Corps of Engineers.
(1) Give careful consideration to the problems involved to determine the most acceptable type of title evidence, its source, availability of title plants, costs, and time of procurement, so that the most advantageous bid(s) may be received and accepted and the acquisition schedule maintained. In considering costs of abstracts of title versus certificates of title or title insurance, the workhours involved in the examination of abstracts of title by both Corps and Department of Justice personnel should be considered.
(2) Determine the total number of tracks in the project area. In major projects, it may be desirable to invite bids for title evidence for each county or other specified areas, in addition to the entire project, in order to maintain the acquisition schedule.
(3) Determine the names and addresses of title companies and abstractors available to furnish title evidence and whether such companies or abstractors have been approved by the Attorney General as acceptable companies or abstractors. Current information on approved title companies and abstractors may be obtained direct from the Land and Natural Resources Division, Department of Justice, WASH DC 20530.
(2) In those States where the furnishing of title evidence is held to constitute the practice of law and the State canons of legal ethics prohibit attorneys from engaging in competitive bidding for such services, contracts for title evidence services must necessarily be negotiated. In such cases, negotiations shall be conducted with attorneys or law firms duly authorized to practice law in the jurisdiction within which the real property is located. Division and District Engineers shall notify HQDA (DAEN-REA-P) WASH DC 20314 before negotiating for title evidence, and submit the list of attorneys with whom negotiations may be conducted. Selections shall be in accordance with the procedures set forth below:
(i) A contract for title services shall be based upon, but not limited to, consideration of the following professional qualifications necessary for the satisfactory performance of the services required:
(A) Professionally trained for type of work;
(B) Specialized experience in the type of work required;
(C) Capacity to accomplish the work in the required time;
(D) Past experience, if any, with respect to performance on Corps of Engineers contracts;
(E) Location in the general geographical area of the project to which the services relate:
(F) Volume of work previously awarded, with the objective of effecting an equitable distribution of title evidence contracts among qualified attorneys and law firms.
(ii) A preselection list of qualified attorneys and law firms shall be prepared by a preselection board from data submitted by interested attorneys and law firms and from other pertinent information which may be available. The list shall be approved by the District Engineer or his designee.
(iii) A selection board shall review the qualifications of each of the attorneys or law firms on the preselection list, in accordance with the procedure established in paragraph (b)(2)(i) of this section and shall recommend to the District Engineer, in order of preference, a minimum of three for approval for contract negotiations.
(iv) Upon approval of the selections by the District Engineer and such approval as may be required by paragraph (b)(2)(vi) of this section, negotiations shall be initiated with the first selected attorney or law firm. If the negotiations result in a price which exceeds the Government estimate, revised to correct errors of fact or judgment, if any, by more than ten percent, the Contracting Officer shall terminate the negotiations and request a proposal from the attorney or law firm next in order of preference.
(v) Preparation of preselection lists and selections for contracts estimated to cost more than $10,000, shall be accomplished by formally constituted boards consisting of at least three members, one of whom shall be the District Counsel or an attorney on his staff, and one of whom shall be the Chief, Real Estate Division, or a member of his staff.
(vi) Special approval shall be required for certain selections as indicated below:
(A) When the estimated cost of a contract to be negotiated exceeds $100,000, the selection shall require the approval of the Division Engineer.
(B) When an attorney or law firm, to which the District has awarded contracts totalling over $100,000 during the current fiscal year, has been selected by the District for additional negotiations, the selection shall require the approval of the Division Engineer.
(C) When the estimated cost of a contract to be negotiated exceeds $200,000, the selection shall require the approval of the Director of Real Estate, OCE, or his designee, with the concurrence of the Chief Counsel or his designee.
(1) If an abstract of title in satisfactory form cannot be procured from the landowner, a new abstract will be ordered.
(2) If an abstract in satisfactory form is procured from a landowner, the abstract will be transmitted to the abstractor with an order for a continuation of the old abstract.
(1) Attorneys designated for such purposes will have as a minimum five years legal experience, from the date of
(2) A final opinion of title shall be issued in all acquisitions, except for easement acquisitions not in excess of $1,000 which are governed by § 644.69(b).
(3) Division and District Engineers are authorized to waive the issuance of written preliminary opinions of title where the closing of the case is based upon a certificate of title or title insurance issued by an acceptable and approved title company, in either fee or easement acquisitions.
(4) A preliminary and a final opinion of title shall be issued in all fee and easement acquisitions involving abstracts of title, except for easement acquisitions not in excess of $1,000 which are governed by § 644.69(b).
(5) Any final title opinion issued pursuant to the delegated authority shall substantially follow the format of the Attorney's Final Title Opinion (Figure 5-3 of ER 405-1-12).
(1) With regard to the title objections set forth in Schedule "B" of certificates of title or interim binders, it will be necessary to take such curative action as will insure the issuance of a final certificate of title or title guarantee or insurance policy showing title vested in the United States of America, subject only to those objections, if any, which have been administratively waived.
(2) As set forth in the title contract, the title company will authorize its local representative to give final approval of curative material furnished to satisfy such objections and insure their elimination from the final certificate of title or title guarantee or insurance policy. As such curative material is approved, the local representative of the title company will:
(i) Initial, or otherwise indicate, on the margin of the preliminary certificate or interim binder, the fact that the objection has been eliminated through the procurement of satisfactory curative material.
(ii) Determine whether or not he wishes the curative instrument recorded and if the instrument is to be recorded, so indicate on the margin of the certificate or interim binder. By the express terms of the offer to sell, the vendor is responsible for payment of recording fees on such curative material.
(iii) Where curative material is not recorded, the title company will be permitted to retain such material if they wish it for their files; otherwise, it will be placed with the title assembly. If the original curative instruments are retained by the title company, true copies will be transmitted with the
(1) When the signer of the offer is not the record title holder but is the holder of a contract for purchase, recorded or unrecorded, the preliminary certificate of title or interim binder will show title in the record title holder. In such cases, the certificate or binder will make appropriate reference to the contract. It will recite the action necessary to complete the contract and effect transfer of title from the record holder to the contract purchaser. When the deed to the contract purchaser is recorded, an intermediate certificate of title or interim binder, in proper form, will be obtained.
(2) In those cases in which record title is vested in a deceased person, the preliminary certificate of title or interim binder may be issued in the name of the deceased record owner, followed by the word "deceased," and will be accompanied by a letter from the title company stating whether a judicial proceeding will be required, or whether affidavits of heirship, or other forms of proof, will suffice to permit the issuance of intermediate certificate or binder showing title vested in the heirs of the deceased.
(i) Where a judicial proceeding is required, action will immediately be taken by the owners to perfect title by such proceeding, and, upon completion, an intermediate certificate of title or interim binder should be obtained. If such action cannot be completed within 60 days, action will be taken to acquire the tract by condemnation, § 644.72(a).
(ii) Where a judicial proceeding is not required, it will be necessary to effect the necessary curative action and obtain an intermediate certificate or interim binder showing title in the heirs of the deceased record owners.
(3) In those cases in which conveyance to the United States is to be made by a fiduciary, a corporation, a political subdivision, or an unincorporated association, the certificate of title or interim binder will state whether the proposed grantor has legal authority to convey valid title to the United States, and, if so, will cite the source of the authority. If the preliminary certificate of title or interim binder does not so indicate, it will be returned to the title company for correction or for issuance of an intermediate certificate of title or interim binder.
(4) Where the certificate of title or interim binder contains any objection, or reference to liens of taxes, assessments, bonds, or other indebtedness of a road improvement, school, drainage, or other type of special improvement district, the specifications provide that the certificate or interim binder will also contain reference to the statute or statutes, under which the district was created, its bonds issued, and its taxes levied; the amount of taxes and assessments levied and bonds issued; and other additional pertinent information. If the preliminary certificate or interim binder does not contain sufficient information to enable an examining attorney to determine the nature and extent of the lien, if any, on the land, of such taxes, assessments and bonds, it will be returned to the title company for correction or for issuance of an intermediate certificate of title or interim binder. If the preliminary certificate or interim binder does not clearly indicate that the bonds or taxes of such district become a lien annually at the same time as the lien of ad valorem taxes attaches to land in the State and that the lien is of the same nature as the lien of ad valorem taxes, the information specified above must be obtained and a determination must be made as to the nature and extent of the liens of such bonds and taxes.
(5) Where the certificate of title or interim binder discloses a covenant or condition restricting the use of the land, the certificate or interim binder will set forth the restriction, will quote the provision imposing the restriction or creating the right of reverter for a breach thereof, and will state whether a release will eliminate the objection. If such information is not contained in the preliminary certificate of title or interim binder, it will be returned to
(6) When the specifications require the title company to include any of the above information in the preliminary certificate of title or interim binder and it is necessary to obtain an intermediate certificate of title or interim binder due to the omission of such information from the preliminary report by the title company, the intermediate certificate of title or interim binder will be furnished without cost to the United States.
(1) Under an agreement with the Department of Justice, title to easements will be approved subject to outstanding encumbrances, such as mortgages, deeds of trust, judgments, and vendors' liens, where the tract is not encumbered in excess of 50 percent of the reasonable value of the remaining property, and the consideration being paid for the easement does not represent a sum in excess of ten percent of the value of the remaining property. (As to taxes, see § 644.70(k)(6).)
(2) For the purpose of making the determinations necessary to apply the formula set forth in paragraph (a)(1) of this section, resort may be had to the tract appraisal, provided it is based on a "before and after" approach, in which case the amount of the "after" appraisal will be used as the reasonable value of the remaining property. In the event no such appraisal has been made, a memorandum estimate by a qualified appraiser (staff or contract) will be obtained. Determination of the total encumbrances may be made on the basis of the face of the encumbering instruments. However, if it is necessary to determine that the total amount of the outstanding liens as of the date of closing has been reduced to an amount less than 50 percent of the reasonable value of the remaining property, such reduction must be evidenced by signed statements from the lienees or their authorized representatives. The appraisal or memorandum estimate and the lienee statements will be placed in the tract file.
(3) On the basis of the determinations described in paragraph (a)(2) of this section, the appropriate information will be inserted on ENG Form 3536, Statement Concerning Outstanding Encumbrances, which will be signed by the closing agent. The original will appear as a separate document in the Final Title Assembly submitted to HQDA (DAEN-REA-P) WASH DC 20314.
(2) In unusual circumstances, these requirements need not be applied if the purchase price of the easement is insufficient to satisfy the liens and interest, or the amount of such liens or interest is small in comparision with the value
(i) The easement deed contains a general warranty covenant by the grantor to satisfy all such unpaid taxes and other liens and to warrant the title against any encumbrances or interests left outstanding.
(ii) The Division or District Engineer (or the Chief, Real Estate Division, if delegated the authority) has determined that such outstanding liens, encumbrances, or interest, if left outstanding, will not interfere with the Government's use of the easement, or will not jeopardize the interests of the United States, and in his opinion the title is sufficient. A certificate to this effect should be attached to the Final Title Assembly.
(2) All encumbrances, defects, outstanding interests, and other matters shown in the preliminary certificates of title or interim binders, must be cured and eliminated before delivery of the purchase check, except those of a nature which have been waived as not interfering with the Government's use of the easement or as not jeopardizing the interest of the United States.
(1) If no adverse change in the status of title has occurred since the date of the preliminary or the latest certification of the title by the abstracter or the title company, as the case may be, the Closing Officer will proceed to close the case.
(2) In case of change in ownership during the period, the Closing Officer will order a continuation of the abstract or an intermediate certificate of title or interim binder, as the case may be, and take such action as necessary to cure the title.
(1) Taxes and assessments.
(2) Outstanding judgments—State and Federal.
(3) Mortgages, deeds of trust, and other liens.
(4) Amounts received under any contract or bond.
(5) Landowner's balance after all charges are deducted from the purchase price.
(1) The Closing Officer or an authorized Division or District employee will prepare ENG Form 798, Certificate of Inspection and Possession.
(2) If any person other than the vendor is found in possession, the Closing Officer will secure a disclaimer on ENG Form 1290, Disclaimer. The disclaimer will be modified to make allowance of any provision in the offer to sell permitting possession after closing.
(3) The Closing Officer or an authorized Division or District employee will check to determine that the buildings, improvements, and crops listed on the appraisal report are still on the land being conveyed. Where buildings, improvements, and crops have been reserved by the landowner, it will be determined that only the items reserved have been removed. Whenever possession of land is surrendered to the Government before the time of payment and closing, and immediate inspection and report ENG Form 1567, Report on Vacation of Property, will have been made. The Closing Officer may rely upon this report for the inspection required in the first part of this paragraph unless he is aware of circumstances which would make a supplemental inspection and report proper. If no such inspection and report have been made and possession has been surrendered to the Government, the inspection and report must be made at this time.
(4) The Closing Officer or an authorized Division or District employee will determine whether there have been repairs or improvements to or construction on the premises which might give rise to mechanics liens.
(5) The ENG Form 798 will be executed and placed with the title papers. If executed by an employee other than the Project Manager or Closing Officer, it must be approved by the Project Manager or Closing Officer, to indicate that the Project Manager or Closing Officer has authorized the employee signing the certificate to make the inspection and is satisfied it has been properly done.
(2) Where the landowner's name appears in various forms among the title papers, full use will be made of the "also known as" clause in identifying the grantor in the deed to the United States.
(3) The deed shall contain a quitclaim clause by which the grantor quitclaims to the United States all right, title, and interest which the grantor may have in the banks, beds, and waters of any streams bordering the said land to be conveyed, and also all interest in alleys, roads, streets, ways, strips, gores, or railroad rights-of-way abutting or adjoining said land and in any means of ingress or egress appurtenant thereto.
(4) Recording fees, transfer taxes, and similar expenses incidental to conveying real property to the United States; penalty costs for prepayment of any preexisting recorded mortgage entered into in good faith encumbering such real property; and the pro rata portion of real property taxes paid which are allocable to a period subsequent to the date of vesting title in the United States, or the effective date of possession of such real property by the United States, whichever is the earlier, shall be paid by the Government pursuant to authority of section 303, Pub. L. 91-646, approved January 2, 1971.
(i) Where closing takes place before the completion of the assessment and levy of the taxes necessary to the determination of the amount of the taxes, or before the taxes are due and payable, a sufficient sum will be withheld from the purchase price to satisfy such taxes when the amount is later determined or they later become due and payable. In cases where the amount of taxes has not been determined, an estimate will be made, after consultation with the assessor and consideration of the amount of taxes paid on the land for the preceding year. The amount withheld should be at least 20 percent in excess of the amount of taxes assessed against the property for the preceding year.
(ii) If the taxes are not due and payable under State law, though the amount has been determined at the time of closing, payment will not be made to the collector or other official charged with the collection of taxes, unless he has authority to accept payment and receipt for them in advance of the due date.
(2) Funds withheld for the payment of taxes will be transmitted promptly to the Division or District Engineer in the form of cashier's check or money order payable to the Treasurer of the United States, unless the taxes are paid or held in escrow by the title company. The Closing Officer, in transmitting such payments, must clearly identify, by name, the vendor from whom the tax money was withheld, and must identify the land for which the taxes were withheld by its tract number in the project. He must also identify the taxes for payment of which the money has been withheld by specifying the type of taxes, such as county, city, or school. He will set forth the year each became or becomes due and fully explain the manner in which payment or withholding has been handled in order that proper payment will be effected by the Division or District Engineer when
(3) Where payment of the taxes is not possible at the time of closing and funds are withheld for this purpose, the Closing Officer will immediately notify the local tax official that title to the particular tract has been conveyed to the United States and that funds have been withheld for the payment of taxes, specifying the taxes for which an amount has been withheld and stating that such funds are in the custody of the Division or District Engineer. In giving such notice, he will use ENG Form 894, Notice to Tax Official.
(4) When the taxes become due and payable, the Division or District Engineer will pay such taxes from the funds withheld from the purchase price. Any excess between the amount of taxes actually paid and the amount withheld will be refunded to the grantor by the Division or District Engineer. Refund checks will be transmitted to the grantor only after it has been definitely determined that all taxes which were liens on the tract are shown as satisfied on the books of the tax collector. This is necessary to avoid the possibility of a refund being made before satisfaction of all tax liens. The tax receipt should be forwarded to HQDA (DAEN-REP-S) WASH DC 20314 for filing with the original title papers.
(5) Where the evidence of title consists of certificates of title or title insurance, and funds are withheld for payment of taxes, the amount so withheld may be turned over to the title company, provided:
(i) The title company is financially responsible and will agree to issue a final certificate of title or title policy in which no tax liens or unpaid taxes will be noted or, if noted, will be followed by the statement:
For the payment of which provision has been made by deposit of a sufficient sum with this company.
(ii) The title company will enter into an escrow agreement with the grantor to hold such sum for the satisfaction of the taxes when they become due, and to return to the grantor any excess remaining after their payment.
(6) Agreements have been reached with the Department of Justice that, in the acquisition of easements, the following will apply:
(i) No provision need be made for the payment of taxes which are a lien but are not due and payable, provided that the purchase price of the easement, including severance damage, is not in excess of 50 percent of the reasonable value of the entire contiguous property of the vendor. In the event the value of the easement has been determined by a "before and after" appraisal, the amount of the "after" appraisal will be utilized in making the necessary determination. In the event no such appraisal has been made, it will not be necessary to prepare a complete appraisal of the value of the contiguous property. In lieu thereof, a memorandum estimate by a qualified appraiser (staff or contract) will be obtained and placed in the tract file. In either case, the appropriate information will be inserted on ENG Form 3536, Statement Concerning Outstanding Encumbrances.
(ii) It will not be necessary to withhold funds for payment of current taxes which are due and payable, if the purchase price of the easement is insufficient to pay such taxes. In such case, Item 4 of ENG Form 3536 and the third block of that form will be completed.
(iii) ENG Form 3536 will be signed by the Closing Officer and the original will appear as a separate document in the Final Title Assembly.
(i) A duly executed deed has been accepted;
(ii) All outstanding charges, liens, or encumbrances on the land have been satisfied and discharged, or a sufficient sum has been withheld from the purchase price to satisfy and discharge such charges, liens and encumbrances; and
(iii) The title is sufficient for the purposes for which it is being acquired, and all objections thereto have been eliminated or administratively waived in writing.
(2) When the requirements of paragraph (l)(i) of this section have been satisfied, the balance of the purchase
(3) The deed and all instruments which release liens or encumbrances on the property shall be promptly recorded.
(1) Obtain a power of attorney from the landowner. Standard Form 232, Power of Attorney by Individual for the Collection of a Specified Check Drawn on the United States Treasury, will be used. If the landowner is a corporation, Standard Form 236, Power of Attorney by a Corporation for the Collection of a Specified Check Drawn on the Treasurer of the United States, and Standard Form 237, Resolution by Corporation Conferring Authority Upon an Officer to Execute a Power of Attorney for the Collection of Checks Drawn on the Treasurer of the United States, will be used. The power of attorney will be drawn in favor of the Closing Officer making the payment and closing. Immediately after the post office address of the Closing Officer, the following will be inserted, "Agent for the Disbursing Officer." This insertion must be initialed by the person(s) executing the power of attorney. (Above forms are available through the local GSA Regional Office.)
(2) Obtain from the landowner ENG Form 1569, Order to Disburse Under Power of Attorney. It will be noted that this form specifically recites types of indebtedness or expense, the names of the persons to be paid under the power of attorney, and the estimated, but not necessarily the exact, amounts thereof. It is important that all items (including cost of revenue stamps, recordation fees for curative material, and bank service charges) be itemized on the form.
(3) The Closing Officer then will take the necessary action for and on behalf of the landowner to discharge the indebtedness and pay expenses under the ENG Form 1569.
(4) If it is possible to have all interested parties, other than the landowner, present at one time and to make all payments simultaneously, a round table closing will be conducted. The Closing Officer, under the power of attorney and order to disburse, will endorse and cash the Treasurer's check and will make the individual disbursements in actual cash.
(5) If it is possible to determine definitely all items of payment simultaneously, but it is not possible to have all interested parties present at one time, the Closing Officer will, under the power of attorney and order to disburse, endorse and cash the Treasurer's check, obtain separate cashier's checks for all items of payment (including the bank services charge for the issuance of such checks), and deliver the checks.
(6) Where it is not possible to determine definitely all items of payment simultaneously, the Closing Officer, under power of attorney and order to disburse, will endorse and cash the Treasurer's check and will obtain separate cashier's checks for all items of payment for which disbursements may be properly made and for any balance representing the total of any items, the amounts of which cannot be definitely determined; in other words, for the residue of the amount of the United States Treasurer's check. In every instance, the cashier's checks will be drawn to provide for endorsement by the Closing Officer or landowner as later determined to be appropriate.
(7) Curative material which requires recordation will be recorded for and on behalf of the landowner and will then be placed with the title papers.
(8) The usual tax receipts, mortgage releases, judgment satisfactions, etc., will be obtained for each monetary encumbrance which has been discharged. These instruments will be placed with the title papers, unless the landowner wishes to retain them.
(9) Separate receipts on ENG Form 1571, Receipt for Payment Under Power of Attorney, must be obtained for each disbursement made under the power of attorney and order to disburse, including a receipt for the balance of the purchase price paid to the landowner. One copy of such receipt will be placed in the project files.
(10) The Closing Officer will prepare an original and two copies of ENG Form 1570, Report of Disbursement Under Power of Attorney, showing the exact amount of each disbursement made under the power of attorney and order to disburse. The Closing Officer will prepare an original and two copies of appropriate certification thereon. The original and two copies will be signed by the landowner, who will retain one copy. The Closing Officer will place one copy in the files of the project office and will place the original with the title papers. The separate receipts on ENG Form 1571 for each disbursement made will be attached to the original ENG Form 1570.
(i) Two true copies of the preliminary opinion of the Attorney General, where required; or
(ii) Two true copies of a preliminary certificate of title or title guarantee policy where the preliminary opinion of the Attorney General is not required; or
(iii) Two copies of ENG Form 909, Attorney's Preliminary Certificate of Title, in easements acquisition which cost less than $1,000; and
(iv) Two true copies of other supporting data evidencing amount due and payable, such as statement of closing attorney; and
(v) Two true copies of the offer assembly or deed executed by the vendor, if offer form has not been utilized.
(2) The following statement, appropriately modified, signed by the Chief, Real Estate Division, may be transmitted in lieu of the above listed certificates:
I certify that the check requested hereby is to pay an obligation of the United States as reflected on the attached (Offer to Sell) (easement or deed). I further certify that the parties signatory to this document and shown on the voucher as payees are the same parties reflected in a preliminary certificate of title issued by the _____ Title Company in the possession of the Real Estate Division of this office. The completion of the transaction will be in accordance with existing regulations pertaining to the closing of real estate acquisitions.
(1) Immediately order a final continuation of the type of title evidence which has been contracted for. The final title evidence must be dated as of the date of recordation of the deed to the United States, or a subsequent date, to show a valid title vested in the United States of America subject only to those title defects which have been administratively waived or to those liens and encumbrances for which sufficient funds were withheld from the purchase price to satisfy and discharge them.
(2) Check carefully ENG Form 1566, Payment and Closing Sheet and Receipt for United States Treasurer's Check, to see that funds have been properly disbursed.
(3) Review the continued abstract, final certificate of title, or title insurance policy, as soon as they are prepared and determine that the proper preliminary and final title evidence and related papers on the case have been completed in proper order. Thereupon a Final Title Opinion will be prepared.
(4) Transmit as the Final Title Assembly to HQDA (DAEN-REA-P) WASH DC 20314, the Final Title Opinion, title
(i) Abstract of title, properly continued through time of closing; or preliminary, intermediate, and original of final certificate of title; or interim binder and original of the Title Guarantee (Insurance) Policy.
(ii) Curative instruments and material pertaining to title defects appearing in the abstract, the final certificate of title, or the title guarantee or insurance policy.
(iii) Deed to the United States, executed, stamped, acknowledged, and recorded.
(iv) Copy of the accepted offer to sell (ENG Form 42 or ENG Form 2970).
(v) Completed ENG Form 798.
(vi) Completed ENG Form 1566.
(vii) Statement regarding payment of taxes or amount withheld to pay the taxes.
(viii) Where required, completed ENG Form 1290.
(ix) If the power of attorney procedure is followed, power of attorney on proper Department of the Treasury Form and completed ENG Forms 1569 and 1571.
(x) Certified copy of any waiver letter or certificate.
(xi) Any other papers relating to the title or closing of the case.
(xii) An additional copy of the deed and the Attorney's Final Title Opinion for review by the Attorney General.
(5) A copy of the executed and recorded deed will be retained by the Division or District Engineer for the project files.
(6) Similar action will be taken by the Closing Officer in acquisition of easements costing not in excess of $1,000.
(1) All title evidence.
(2) An analysis of the title defects and a statement of the attempts which have been made to cure the defects.
(3) A statement of the attempts to have the title infirmities waived by the title company and the reasons for refusal; or
(4) The curative material which has been obtained to remedy the infirmities; and
(5) Two copies of the offer to sell from the apparent owners.
Sections 644.81 through 644.88 describe the procedures of the Corps of Engineers relating to the acquisition of land and interests therein for both military and civil works projects by purchase, donation and transfer.
D. Certain types of actions require close environmental scrutiny because of the possibility that they may either affect the quality of the environment or create environmental controversy. It may be desirable in such cases to have a complete presentation of the environmental aspects of the proposed action available for any interested party. For these reasons, consideration shall be given to documenting the environmental effect of the following types of actions in writing: (The written environmental assessment need not be elaborate for actions in which it is readily determinable that the impact would not be significant; however, negative declarations must be supported by written environmental assessments which generally meet the EIS format requirements.)
3. Real estate acquisition, disposal and outgrants.
(1) Definition of the term "fair market value."
(2) An accurate legal description and location identification of the real property and the interest(s) therein to be acquired (legal description and estate may be attached).
(3) The amount of the offer and a statement that such amount:
(i) Is the amount believed by the agency to be just compensation for the property;
(ii) Is not less than the approved appraisal of the fair market value of the property;
(iii) Disregards any increase or decrease in the fair market value caused by the project for which the property is to be acquired, or by the likelihood that the property would be acquired for such project, other than that due to physical deterioration within the reasonable control of the owner;
(iv) Does not reflect any consideration of or allowance for any relocation assistance and payments which the owner is entitled to receive.
(4) An inventory identifying the buildings, structures, fixtures, and other improvements, including appurtenant removable building equipment, which are considered to be part of the real property for which the offer of just compensation is made. The inventory shall include a statement of the utility and condition of said buildings, structures, fixtures, and other improvements.
(5) A description of the appraisal technique used,
(6) An identification of land classification categories (do not show acreage breakdown).
(7) If only a portion of a property is to be acquired, an apportionment of the total estimated just compansation for the partial acquisition between:
(i) The amount representing the just compensation for the real property to be acquired;
(ii) The amount, if any, representing severance damages to the remainder, together with a brief narrative description of the cause thereof; and
(iii) In the event "off-setting benefits" are involved, these must be shown, along with a narrative explanation and the landowner shall be given a "person-to-person" explanation by the negotiator.
(8) If the property contain a dwelling, the value of said dwelling and homesite shall be set forth separately, with the statement that this figure will be used in calculating housing relocation benefits under title II of Pub. L. 91-646.
(9) If any building, structure, fixture, or other improvement, comprising part of the real property, has been identified as being owned by a tenant who has the right or obligation to remove it at the expiration of his term, the amount of the value of such building, structure, fixture, or other improvement, being the greater of:
(i) The amount which the tenant's improvement contributes to the fair market value of the real property to be acquired; or
(ii) The fair market value of the tenant's improvement for removal from the real property. The basis of such amount shall be included.
(c) Appraisal reports or the appraiser's analysis (complete breakdown of principal value elements) will not be revealed by the negotiator unless specifically authorized. Cases involving property for which the highest and best use cannot be definitely established, and to which the exceptions mentioned
(2) The owner shall be provided with available brochures which explain the project and the Pub. L. 91-646 benefits, together with the written statement and summary required by § 644.83(b). The negotiator should explain to the landowner the Government's requirement for the land, the amount of land required, the estate(s) to be acquired, the terms and conditions of the Government's contract form, and the fact that relocation assistance benefits may be available. He should furnish the landowner a copy of a map indicating the boundaries of that portion of his land to be acquired, where the entire ownership is not being acquired or where different estates are being acquired in the same ownership, specifying the estate in each area.
(3) Negotiations will be continued in an effort to obtain acceptance of the Government's offer or a reasonable counteroffer from the landowner, or until it is definitely determined that such a counteroffer will not be forthcoming. It is not intended that negotiations be continued until an unacceptable counteroffer is finally obtained. However, in an effort to obtain a reasonable counteroffer above the Government's estimate, the negotiator will, if necessary, take the initiative in suggesting a series of prices within a range which, in accord with the guidelines discussed in § 644.84, has been predetermined to be reasonable.
(4) The interest of both owners and tenants must be considered and protected. The tenant is a proper party to the transaction, and every effort must be made to obtain the consent of the landowner and tenant as to the price to be paid to the tenant for his leasehold interest. This can be accomplished by
(5) Negotiations with landowners will be conducted in a fair and courteous manner. The negotiator must not, under any circumstances, resort to coercion or threats of condemnation.
(6) The negotiator has no authority to obligate the Government in any manner beyond the contract form. He must refrain from oral promises or understandings and include all terms and conditions in the contract form.
(7) Although appraisal reports cannot be made available for inspection by a landowner, the various elements of value considered by the appraisers may, and should, be discussed with the landowner to satisfy him that all elements of compensable values and damages have been considered in arriving at an overall value for the property being acquired. Care will be exercised during any discussion not to reveal specific amounts related to any elements considered in the appraisal, except the acquisition cost assigned to the dwelling for purpose of calculating replacement housing payment under section 203, Pub. L. 91-646.
(8) Any interest in a tract of land sought to be acquired, or any type of relationship with the owner, disqualifies the negotiator from participating in negotiations for the acquisition of that particular tract.
(9) An appraiser is not, under any circumstances, permitted to negotiate for the acquisition of a tract of land for which he has prepared the appraisal or reviewed it as reviewing appraiser.
(1) Manually accepting, on behalf of the United States, the offer to sell, as provided in § 644.87; or
(2) Manually executing a dated notation of approval of the purchase price, to be placed in the tract file, preferably on the original of the Negotiator's Report (§ 644.83(g)).
(i) Where there is a determination of value by a Federal Court; or
(ii) Purchases negotiated by the Attorney General or his designee; or
(iii) Where the estimated value is less than $25,000; or
(iv) As otherwise determined by the Secretary of Defense to be in the public interest.
(2) The above wording, except for paragraph (a)(1)(iv) of this section, constitutes a limitation on accepting or submitting a recommendation for approval of a counteroffer in excess of the appraised value. Paragraph (a)(1)(iv) brings military acquisition within the general acquisition policy required under Pub. L. 91-646. Future MCA Acts
(2) When more than one tract is operated by the owner as a unit, negotiations should take place on the two or more tracts or groups of tracts, whether or not they bear the same basic tract number.
(3) In cases where an owner insists on a "package-deal" negotiation on all tracts in the same ownership, or having at least one common owner, the negotiations will be considered as one transaction.
(4) Tracts which are in the same ownership, but which are not operated as a unit, should, unless the owner desires otherwise, be negotiated separately, on the basis of the separate appraisals which would be prepared in this type of case.
(5) Under paragraphs (c)(1), (2), and (3) of this section, the limitations of authority to accept counteroffers will be applied to the entire transaction.
(1) To provide for the expeditious payment of benefits to former owners and tenants;
(2) To complete administration of the actual relocation of owners and tenants in a timely manner;
(3) To avoid maintenance and security problems with respect to acquired improvements;
(4) To prevent vandalism, trespassing and poaching with respect to acquired improvements;
(5) To avoid any implication that former owners or tenants may be permitted to remain indefinitely on the federally acquired property;
(6) To cause land to be leased on the basis of the most practicable size and configuration rather than on the basis of the size of the units acquired;
(7) To permit the general public to bid for the lease of federally owned land rather than restricting the privilege of leasing to the former owner or tenant; and
(8) To avoid a backlog of incomplete actions when construction or flooding is imminent or the land is otherwise required.
(i) Property which the vendor is excepting or rights which he is reserving and which are created for the first time; and
(ii) Rights which third parties have acquired in the past, generally referred to as outstanding rights in third parties.
(2) Exceptions or reservations of rights which the vendor may retain, without interfering with the construction or operation of the project, will be set forth in the offer and deed by a clause following the description, beginning with the words: "Excepting * * *" or "Reserving * * *." Any other outstanding rights, subject to which the United States is acquiring title, held by third parties will be set forth in the offer and deed by a clause, following the description, beginning with words, "Said premises are conveyed subject to * * *." Negotiations with the surface owner will include the owner's interest in the subsurface, unless acquisition of a lesser interest has been authorized by directive or specific approvals. These negotiations will not include interest severed and outstanding in third parties by purchase or lease, unless the surface owner agrees to remove the outstanding interest or agrees to obtain a subordination from the holder of the outstanding interest if that is consistent with the acquisition plan. If negotiations with the surface owner are successful, an Offer to Sell will be obtained, reciting the outstanding interest in the "Subject to" paragraph of the form, unless the surface owner has agreed to remove the outstanding interest (or obtain a subordination, if appropriate), in which case the Offer to Sell must recite specifically that the surface owner is assuming this obligation. In order to carry out the requirements of this paragraph, the title evidence must be examined prior to negotiations or, in any event, prior to acceptance of the Offer to Sell.
(2) At the time of the approval of the acquisition by the Chief of Engineers, a determination will generally have been made as to whether subsurface rights and/or water rights will be acquired or left outstanding. Acquisition will be on the basis of such determination and as outlined below. Lands will be acquired subject to minerals, oil and gas rights or other similar interests severed and outstanding in third parties by purchase or lease and as approved by the Chief of Engineers.
(3) Where it is not possible to acquire or subordinate an outstanding interest by negotiation and the interest will not interfere with the operation of the project, consideration may be given to obtaining a waiver from the Office of the Chief of Engineers on the basis of taking a calculated risk rather than resorting to condemnation (paragraph (k) of this section). Waivers will be considered on a tract-by-tract basis or on a project segment basis. Since such waivers involve several elements of the Office of the Chief of Engineers (Civil Works or Military Construction as well as Real Estate), the basis for the calculated risk must be fully explained.
(4) Concurrently with the negotiations to acquire from the surface owner, negotiations should be opened with the owner of the subsurface rights or other interests severed and outstanding in third parties by purchase or lease and required for the project, unless these interests are held in "block ownership." Block ownership exists where a person, corporation, or other entity owns subsurface or other interests in connection with more than one surface tract and in sufficient amount for the entire interest holding to have added value, for operational or other reasons, because it is in a block ownership. In other words, block ownership exists when the acquisition of a part of the block would require the assessment of severance damage, even if the value of the interest or the amount of the severance damage would be in a nominal amount. On this basis, subsurface or other interests need not be contiguous to constitute a block ownership. Block ownership interests will not be acquired (or subordinated) piecemeal.
(5) Acquisition of the required interests, including subordination, held in block ownership should be started as soon as the extent of an operational unit is determined. As stated in paragraph (f)(4) of this section, all interests in a tract of land should be acquired at one time or as close in time as possible. Dual acquisitions of entire areas, one for surface rights and then for subsurface interests, should be avoided and acquisition of separate interests should be scheduled to coincide.
(1) Where the Division or District Engineer, in civil works projects, the using service in Army and Air Force projects, or the Federal agency, if other than the Army or Air Force, for which the land is being acquired, has determined that they will not be needed for the purpose of the project;
(2) The consideration to the Government for the reservation will be an amount negotiated at not less than the appraised salvage value of the building and improvements which are reserved, and such amount will be deducted from the negotiated price at the time of negotiation prior to execution of the offer;
(3) Where a reservation is permitted, the following clause will be inserted in the offer, following the description of the land:
Excepting and reserving to the Vendor the right to remove (enter description of buildings) on or before ___ 19 _, which the Vendor agrees not to relocate on other land to be acquired for the project; provided, however, that, in the event that the said buildings and improvements are not completely removed on or before said date, the right of removal shall terminate automatically, and the United States shall have a good and indefeasible title to said buildings and improvements which remain without notice to the Vendor; and provided further that, in the
(2) Where a reservation is permitted, the following clause will be inserted in the offer, following the description of the land:
Reserving to the vendor the right to harvest all of the growing crops located on the above described land on or before __________ 19__. In the event the crops are not harvested on or before said date, the right of removal shall terminate automatically, and the United States shall have a good and indefeasible title to said crops, without notice to the vendor.
(3) The consideration to the Government for the reservation will be an amount not less than the appraised value of the crops as of the date of surrender of possession as disclosed by an approved appraisal report, and such amount will be deducted from the purchase price at the time of preparation and execution of the offer.
(4) Where a tenant has an interest in growing crops, the value of his interest must be fixed by use of ENG Form 1564, Consent to Offer to Sell Real Property, which provides that the value of the tenant's interest, as agreed upon by the landowner and tenant, will be paid from the purchase price for the land. The use of this form not only protects the tenant but, in addition, provides a simple method for extinguishing rights which the United States is legally bound to recognize. Where a tenant wishes to reserve the right to remove crops, it must be done in the name of the landowner, and in like manner. To accomplish the foregoing, any other form is satisfactory, in lieu of ENG Form 1564, as long as closing requirements are satisfied.
(2) Reservation of the right to remove timber will be handled in substantially the same manner as that described for the reservation of buildings and improvements. If owned by a third party, ENG Form 1564 will be used in the same manner as for crops unless the timber interests are held in block ownerships. The consideration to the Government for the reservation will be an amount not less than the appraised value of the timber, giving full weight to any unusual difficulty in harvesting and transporting which are caused by the size, shape and location of the stand reserved, time limitations for removal, clearing requirements over the above those normally involved in prudent harvesting, and similar factors. If necessary, the stand reserved will be re-appraised on this basis. An amount not less than this appraised value will be deducted from the purchase price at the time of preparation and execution of the offer.
(3) Where a reservation is permitted, the following clause will be inserted in the offer following the description of the land:
Reserving to the vendor the right to cut and remove on or before ___ 19 _, all trees
(1) Where it has been determined that subsurface rights in the vendor, or outstanding in third parties, must be acquired, extinguished or subordinated, such arrangements will be made in the course of obtaining an offer for the surface or subsurface interests. Where the negotiations for acquisition, extinguishment or subordination of subsurface rights will be delayed, and it is considered advisable to proceed with surface acquisition to keep pace with project requirements, appropriate recommendations and justification will be submitted to HQDA (DAEN-REA) WASH DC 20314 for approval.
(2) If the owners of the surface and subsurface rights are agreeable, the separate interests can be acquired in a single transaction by use of ENG Form 1564, Consent to Offer to Sell Real Property. This method is the most desirable one, and, if used, the purchase price in the offer will cover both the surface and subsurface interests and the offer will not be taken "subject to" the subsurface rights.
(3) Subordination of the subsurface interest based upon the value of the minerals in place and which will allow continued production by the mineral owner or lessee must be pursuant to such terms as will safeguard the Government's interest and preclude a windfall to the mineral owner or lessee. Value of the minerals in place will not exceed the recoverable portion of said minerals using agreed upon production methods. See subpart A for detailed treatment in the section pertaining primarily to Real Estate Design Memoranda.
(4) When the third-party owner of subsurface rights refuses to enter into an agreement as contemplated in paragraph (j)(2) of this section, the title to the surface estate may be acquired separately, and the subsurface rights outstanding in third parties acquired as a separate transaction. The offer for the acquisition of the surface estate will provide for the conveyance of all interests of the surface owner in and to the subsurface estate, as well as all surface rights, and provide for taking "subject to" the subsurface rights outstanding in third parties. In such cases, the negotiations described in § 644.83 will be conducted on the basis of the approved appraisal, less the appraised value of the outstanding subsurface rights.
(5) Where it has been determined that the subsurface rights and interests therein need not be acquired, but the owners of such rights must be excluded from the area, and the owner of the surface is the owner of the subsurface estate, the offer will contain a clause providing that he relinquish, for the period that title to the tract is vested in the Government, all rights to enter upon the lands covered by the offer or that he will limit entry and exploration in a named manner so as not to interfere with the operation of the project. If third parties own subsurface rights or interests, a similar waiver of
(2) Title may be taken subject to an outstanding third party interest which has been administratively waived. Requests for administrative waivers shall be submitted to HQDA (DAEN-REA) WASH DC 20314 for consideration, together with recommendations from Division and District Engineers. The recommendation for waiver should be coordinated with the using agency, if other than Department of the Army land (military or civil works), and should be accompanied by a certificate signed by the Chief, Real Estate Division or the Chief Appraiser, certifying that the outstanding interest has no contributory value to the estate being acquired and will not interfere with the purpose for which the property is being acquired.
(3) It has previously been administratively determined that all lands for Department of the Army (military or civil works) or Air Force projects may be acquired "subject to existing easements for public roads, public highways, public utilities, railroads and pipelines," and "to the reservations, exceptions and any other outstanding rights contained in or referred to in patents issued by the United States," and also "to water rights, claims or title to water, if any, or other similar title exceptions." A decision as to whether any of these exceptions should be eliminated is the responsibility of the Division or District Engineer, after coordination with the using service if other than the Department of the Army. If such interests are to be left outstanding, they should be included in the "subject to" clause of the Offer to Sell.
(4) Offers to Sell may be accepted subject to subsurface mineral interests owned by third parties in accordance with § 644.86(d). In such case, the "subject to" clause of the Offer to Sell should recite the specific interest which is being left outstanding. Where it is not possible to acquire or subordinate an outstanding subsurface interest by negotiations and the outstanding interest will not interfere with construction, operation or maintenance of the project, consideration may be given to obtaining a waiver from HQDA (DAEN-REA) WASH DC 20314 on the basis of taking a calculated risk rather than resorting to condemnation. Such waivers may be considered on a tract-by-tract, segment-by-segment, or project basis. Where a number of small mineral interests in a project are to be recommended for waiver, it is preferable that the recommendation be submitted on an entire project or group of segments at one time. Such a recommendation should specifically identify the subsurface mineral interests which are to be left outstanding, together with the estimated value of each interest, and should be accompanied by a map(s) on which the areas affected by the outstanding interests have been outlined. The basis for the calculated risk should be explained fully.
(i) If the tract is to be acquired by direct purchase, the provision for retention will be written into the offer (ENG Form 42, ENG Form 2970, or ENG Form 1564) and will read substantially as follows:
Notwithstanding the provisions of paragraph __ of this offer, (and/or consent to option) the occupant (vendor and/or his tenant) now in possession of the property, in consideration of the protection and maintenance of the land, buildings, and structures, and protection of the property against loss by fire, waste, or other causes, to which the occupant hereby agrees, reserves the right to occupy the property until _____. Such occupancy is subject to revocation by the (Division) (District) Engineer at any time by giving __ days notice in writing to the occupant if possession of the property is required by the United States; and provided further that the vendor-occupant or his tenant will remove no improvements or timber unless otherwise provided herein.
(ii) When the tract is to be acquired by condemnation, the circumstances of the right to remain in possession, which has been established as hereinafter set forth, will be fully described in the correspondence forwarding the condemnation assembly to HQDA (DAEN-REA-C) WASH DC 20314. The retention of possession without payment of rent is directed to the benefit of the occupant of the property with some property maintenance consideration to the Government. This procedure will not be used to permit non-occupant owners a means of retaining possession without payment of rent and at the same time collect cash rents or unreserved crop rents from tenants.
(iii) When the land being acquired is utilized by the owner and/or tenant for agricultural or related purposes, a period of possession may be allowed, if consistent with project requirements, to permit the crop owner to harvest growing crops, and to avoid abrupt dislocations. The period of possession reserved in the offer, or for which request for the order of the court is deferred in declaration of taking cases, should generally be co-extensive with the crop season or the date that, by custom in the community, leases of such properties ordinarily expire:
(iv) In the case of owner-occupied residential property other than farm residences, possession may be permitted for a sufficient time to allow orderly relocation, but no longer than 12 months after title vests in the Government.
(v) In connection with the acquisition of commercial, industrial, tenant-occupied residential property other than residences occupied by farm tenants, and special use properties, ordinarily the procedures of reserving possession to the vendor by a clause in the offer, or deferring the right to possession under a declaration of taking proceeding, should not be utilized. In such cases, after title vests in the United States, the continued possession of the property by vendor or tenant should be formalized by an outlease from the Government. However, if in the opinion of the Division and District Engineer a reservation for possession in the offer or deferral of order of possession is desirable in certain instances from a public relations standpoint or for other compelling reasons, such cases will be forwarded to HQDA (DAEN-REA) WASH DC 20314 for consideration.
(vi) The reservation of use and occupancy in the vendor and/or tenant under the terms of the offer or deferment of possession must be based on adequate consideration to the Government. It is anticipated, however, that items such as the vendor's maintenance of the land, buildings, and structures, his protection of the property against loss by fire, waste, or other causes, and the fact that his possession can be revoked within a short period of time, will, in most instances,
(vii) Special provisions for protection of the Government, such as those appearing in ENG Form 1366, Department of the Army Lease—River and Harbor or Flood Control Property, will be added to the reservation clause in the offer in cases where, in the opinion of the Division or District Engineer, they are necessary or desirable. If the case is not to be closed by direct purchase, the letter to the vendor notifying him of the Government's intention to file a declaration of taking will set forth the fact that possession is to be deferred and for what period, and will contain a statement as to the Government's expectation that the vendor will properly maintain and protect the premises, and perform such other acts (or refrain from such acts) as deemed advisable by the Division or District Engineer. Both the letter of notice and the reservation clause in the offer will provide that the right to possession may be revoked on 30 days notice to the vendor.
(2) It is recognized that farmers may experience difficulty in finding substitute farms needed for their livelihood within one year, and other owners and tenants may encounter difficulty in relocating within one year. Therefore, the District Engineer, as an exception to the procedure in paragraph (l)(1) of this section may lease properties to former owners or tenants at the fair market rental value for up to one additional year where the circumstances justify such action, and, in such event, the record will contain the reasons justifying the action. Any occupancy by the former owner or tenant beyond 12 months from the date the property was acquired by the Government will be covered by a lease and will provide payment of the fair market rental value of the property leased.
(3) The District Engineer, through channels, may request the Chief of Engineers to grant exceptions to this policy where unusual circumstances warrant such consideration. In keeping with the intent of this action, it is hoped that such cases will be minimal in number.
(4) The following will apply with respect to advance land acquisition projects. Former owners and tenants whose properties were acquired
(1) Appraisals of all the land, buildings, improvements, timber, and crops of the particular tract are completed and approved.
(2) A determination is made by the Division or District Engineer that the buildings, improvements, and timber will not be needed, and the harvesting of timber or crops will not interfere with construction or operation of the project.
(3) ENG Form 1565, Agreement for Removal of Property, will be obtained from all persons having an interest in the property to be removed. This agreement will recite the amount which the owner is willing to have deducted from the value of the tract as a whole for the right of removal, which may not be less than the appraised salvage value of the buildings, improvements and timber, and the appraised value of the crops, as set out in paragraphs (g), (h), and (i) of this section.
(4) ENG Form 1565 will be obtained and accepted by the Division or District Engineer, or the Chief of the Real Estate Division.
(5) If an offer is obtained later, an appropriate reservation must be inserted in the Offer to Sell to reflect the prior agreement relative to reservations and removals of property and the agreed value of same.
(6) If it is necessary later to file a declaration of taking on the particular tract, a copy of the agreement (ENG Form 1565) will be forwarded with the correspondence transmitting the declaration of taking assembly for use of the Department of Justice in the court action. The agreement by its own terms will serve as a stipulation as to the amount to be deducted from the ultimate award for the right of removing buildings, improvements, timber or crops.
(ii) Under these circumstances, a landowner may be permitted to reserve an easement and right-of-way for a water pipeline and pumping unit across the land he conveys, by appropriate provisions in the offer to sell and in the deed to the United States. In "water rights" States, this reservation will be "for the exercise of established water rights, although no right to use water is created hereby." (This phraseology is to be incorporated in the reservation.) The reservation will also include any pertinent provisions considered essential by the Division or District Engineer, such as requirement to install the pipeline underground and at a specified depth.
(iii) Reservations of this nature will also be permitted in those cases where acquisition is by condemnation. In these acquisitions, the reservation may be recited in the complaint and declaration of taking, whenever full agreement except as to just compensation has been reached, or it may permitted later by stipulation.
(iv) When the project is located in an area in which the Bureau of Reclamation is developing, or planning to develop, irrigation districts or systems, prior coordination with the Bureau will provide that copies of all deeds and final condemnation judgments which recite reservations under this paragraph will be furnished to the local office of the Bureau. Thereafter, the Bureau of Reclamation will be responsible for supervising the exercise of the easements to insure compliance with Reclamation laws.
(v) Plans to provide for irrigation will be fully covered in the Real Estate Design Memorandum.
(4) Acquisitions in which these rights are to be reserved must, of course, be
(1) No changes or interlineations in the printed portions of the offer form will be permitted, unless authorized by the Chief of Engineers, except where the words "general warranty deed" are changed to another form of deed.
(2) Insert legal land description of property to be acquired, or attach description by Exhibits to be identified on page 1.
(3) The word "none" should be inserted in the blank spaces following the first and third lines, respectively, on page 2 of the offer form when title is being acquired free and clear of all rights outstanding in third parties and the vendor is not permitted to except or reserve any right or interest in the property to be conveyed to the Government.
(4) Particular attention is directed to § 644.86, regarding exceptions and reservations and outstanding rights in third parties. No exceptions or reservations of crops, timber, buildings and improvements, subsurface rights, or any other interest will be incorporated in any offer to sell unless the required approvals have first been obtained.
(5) In any case where the offer form deviates from the standard approved forms or contains any conditions, exception, or reservation contrary to these instructions, the assembly will be forwarded to HQDA (DAEN-REA) WASH DC 20314 for consideration with the recommendations of the Division and District Engineer. This may be done at the same time a counteroffer is submitted to DAEN-REA in accordance with § 644.84(d).
(6) The landowner's name will be set forth in the offer in the exact way in which it appears on record.
(7) When it is necessary for a corporate agent, fiduciary, or any person other than an individual owner to execute the offer, satisfactory evidence of the authority to act for the owner must be attached to each of the copies of the Offer to Sell.
(8) Where it is necessary to attach sheets to the offer in order to fully set forth the terms of reservations, exceptions, or outstanding rights in third parties, such additional sheets must be securely attached and initialed by all parties signing the Offer to Sell.
(9) The name and address of the person or persons to whom notice of acceptance is to be sent must be accurately set forth. The address where the landowner can be reached after he vacates the property, if different from the address to which the notice is to be sent, should be obtained.
(2) Division and District Engineers, the Chiefs of the Real Estate Divisions, and the incumbents of the position to
(i) Original offers to sell will be retained at the Division or District for site audit.
(ii) Send signed copy to vendor as provided in paragraph (b)(3) of this section below.
(iii) Attached conformed copy to title assembly.
(iv) File signed copy with project records.
(3) Upon acceptance of the Offer to Sell, the Division or District Engineer will notify the vendor by transmitting a signed copy of the contract (accepted offer) to vendor by ENG Form 53, Notice of Acceptance of Offer to Sell Real Property.
(4) Upon acceptance of the Offer to Sell, the Division or District Engineer will notify the using service, in the case of military acquisition, that the Offer to Sell has been accepted and that the Government has "the right of immediate occupancy and use of the land," subject to the terms of the accepted offer. The land should be clearly identified to the using service.
(5) Instruments which do not provide for payments to landowners will be distributed in accordance with regulations governing such cases.
(2) In the acquisition of easements for rights-of-way for access roads, utility lines, etc., which cross or encroach upon rights-of-way or property of railroad companies, public utility companies, cities, counties and States, ENG Form 893, License for Installations Upon Right-of-Way, may be accepted, at the discretion of the Division or District Engineer, provided it is determined that such companies, municipalities, counties, or States are not vested with authority to convey a perpetual easement and the granting of a license under the conditions recited in ENG Form 893 will protect the interests of the United States and grant sufficient use of the right-of-way or land for project purposes. Normally a license of this nature should be obtained
(3) The description of the tract over which an easement is being acquired should be prefaced by terminology similar to that of ENG Form 42 which makes the tract inclusive of the abutting owner's interest in contiguous roads and other easements, if any.
(4) Offer assemblies will be prepared, accepted, and distributed in the same manner as provided for fee acquisition, except that ENG Form 3422, Notice of Acceptance of Offer to Sell Easement, will be used.
(2) The offer, when approved and accepted, will be distributed in accordance with paragraph (b)(2) of this section.
(3) Title clearance and closing of donation cases are processed in the same manner as any other fee or easement acquisition.
(i) They have received notice of acceptance of an offer granting the Government the right of immediate possession; or
(ii) They have been served notice of the filing of a condemnation proceeding by which the Government has obtained the right of possession.
(ii) Where buildings, improvements, and crops have been removed under a reservation in the offer, an appropriate entry will be made in paragraph (3) of ENG Form 1567.
(iii) Where buildings, improvements, and crops have been removed or destroyed in the conduct of construction work on the project, an appropriate entry will be made in paragraph (3) of ENG Form 1567.
(iv) It will be determined whether or not the land is wholly unoccupied and vacant and whether there is evidence of present use thereof for farming and other operations.
(v) The original report will be retained in the real estate project files. The second copy will be held for the use of the closing attorneys on purchase cases, or for the use of the local representative of the Department of Justice in condemnation cases.
(2) Requests for withdrawal of public domain land will be made to the appropriate State or Regional Supervisor of the Bureau of Land Management (BLM), Department of the Interior, by the Division or District Engineer, pursuant to 43 CFR part 295, as soon as a real estate directive is issued.
(i) If use the of land is needed promptly to meet a construction deadline or for other use, the request for withdrawal will contain this information, and the BLM supervisor will be requested to expedite submission of his report to BLM in Washington, and to
(ii) A copy of the request will be forwarded to HQDA (DAEN-REA) WASH DC 20314 (with a copy to HQ, USAF (PRER), WASH DC 20330, on Air Force projects), with request for assistance in obtaining issuance of the Public Land Order in time to meet construction or military use deadline.
(3) Pursuant to authority of 43 U.S.C. 416, requests for withdrawal of public domain lands may also be made to the appropriate State or Regional BLM Supervisor by the Division or District Engineer for the reservation of those public domain lands which will eventually be required for authorized Civil Works projects, in order to proceed with planning phase work and to prevent adverse private entry thereon. Such action will permit administrative jurisdiction to remain with the present Government agency for continued utilization not in conflict with the eventual purpose of the project. A copy of the request will be furnished to DAEN-REA.
(4) If a withdrawal is requested, the BLM supervisor cannot grant a permit to use the area; however, permits can be obtained for survey and exploration purposes, since these do not involve construction or military use of the land.
(5) Necessary rights-of-way will be obtained under the authority of section 507, Pub. L. 94-579, approved October 21, 1976.
(ii) If an offer to settle is made on the basis provided in paragraph (c)(1)(i) of this section, and is not satisfactory to the possessory mineral owner, the Division or District Engineer will request the BLM to investigate the validity of the claim. In such case, under Comptroller General Decision B-143921, the District Engineer is authorized to make an agreement with the BLM for reimbursement of the following:
(A) Examination of the claim itself and assembling of the evidence to support the claim of invalidity.
(B) The presentation of the evidence, the cross-examination of witnesses for the mining claimant and other related expenses (subpart A).
(iii) The Corps of Engineers is not authorized to reimburse the BLM for hearing of the evidence and the rendering of the decision as to the validity of the mining claim.
(iv) If determined to be valid, claims will be appraised and an offer will be made to the owner at the approved appraised value. BLM is authorized to determine value of the claims and the Division or District Engineer may wish to arrange with BLM to perform this service on a reimbursable basis. In the event the offer based on the approved appraisal is not acceptable to the owner, and a reasonable settlement cannot be effected by negotiation, the Division or District Engineer will forward a report to HQDA (DAEN-REA) WASH DC 20314 with recommendation as to whether the claim should be acquired by declaration of taking or be left outstanding. Those cases in which occupants were dispossessed under the order of immediate possession, referred to in paragraph (c)(1)(i) of this section, will be given priority attention in all phases of the procedure set out herein, including preparation and submission of declaration of taking assemblies in appropriate instances.
Whenever use for war or national defense purposes of the public domain or other property owned by or under the control of the United States prevents its use for grazing, persons holding grazing permits or licenses and persons whose grazing permits or licenses have been or will be cancelled because of such use shall be paid out of the funds appropriated or allocated for such project such amounts as the head of the department or agency so using the lands shall determine to be fair and reasonable for the losses suffered by such persons as a result of the use of such lands for war or national defense purposes. Such payments shall be deemed payment in full for such losses. Nothing contained in this section shall be construed to create any liability not now existing against the United States.
(ii) Upon issuance of a real estate directive to acquire or terminate grazing rights in the public domain or other property owned or controlled by the United States and notification that the Government department controlling such lands has granted a right-of-entry or transferred the lands to the Departments of Army or Air Force, the Division or District Engineer will initiate action to acquire or terminate such grazing rights as authorized by the real estate directive.
(iii) Appraisals will be prepared in accordance with subpart B and the guidelines set forth in Comptroller General Decision No. B-132774, dated October 9, 1957.
(iv) Discussions with landowners concerning acquisition of a ranch unit will be conducted in accordance with the procedures for fee acquisition.
(v) Offers will be prepared, accepted, and distributed as provided in § 644.87.
(vi) Title procurement and title clearance relating to the acquisition of title to any fee lands within the ranch unit will be the same as in any other fee acquisition. In preparing title evidence covering leasehold interests, a search of the records will be made by the Division or District Engineer Office and ENG Form 909, Attorney's Preliminary Certificate of Title, will be prepared. In connection with the search of the records, it should be noted that Federal grazing privileges may be pledged or encumbered with mortgages.
(2) The procedures described in §§ 644.81 through 644.88 do not apply to the extinguishment of outstanding rights, including subordination of easements and similar interests, under the provisions of relocation contracts, as differentiated from the acquisition of land or easements, or the subordination of oil, gas, and other mineral rights, to be utilized for project purposes.
This Section describes procedures of the Corps of Engineers relating to the involuntary acquisition of land and interests in land on the basis of a physical appropriation or use by the United States. It is applicable to all Division and District Engineers having real estate responsibilities.
While the Secretary of the Army and Secretary of the Air Force have no authority to acquire interests in real property except under express authorization and appropriation made by Congress, the Government may, nevertheless, in the performance of an authorized act involuntarily acquire an interest in real property, for which the owner is entitled to just compensation. Whenever a plaintiff successfully prosecutes litigation which establishes that an interest in real property has been taken, the interest so taken should be confirmed in the form of a grant, wherever possible. The instrument should be recorded in the public land records and permanently retained in the real estate files, as evidence of the interest taken and as a protection against possible future claims of purchasers for value without notice. No employee or representative of the Corps of Engineers shall intentionally make it necessary for an owner to institute legal proceedings to prove the fact of the taking of his property, as prescribed by Pub. L. 91-646. Examples of involuntary acquisition are:
(a) Damage to real property caused by flooding, saturation, seepage, erosion, or other causes arising out of the construction, operation, or maintenance of an authorized project.
(b) Damage as a result of overflights of aircraft.
(c) Other instances where Government actions result in a restriction of the use of property.
In those cases where a landowner files suit alleging that the Government took his property or an interest therein, a litigation report should be furnished in accordance with ER 1180-1-1. Litigation reports will be submitted in quadruplicate in cases involving military installations, and in triplicate in cases involving civil works. District and Division Engineers will furnish an additional copy direct to the local United States Attorney in actions in a United States District Court. In addition to the information required by ER
(1) Permanency of the installation and its designated use;
(2) Dates of commencement of use of the runway involved and of each extension thereof;
(3) Date of commencement of take-offs and landings by regularly assigned aircraft of the type (identify) causing the taking;
(4) Frequency and actual height of flight of the particular aircraft over some portion of plaintiff's property;
(5) Any applicable zoning regulations affecting use of the property;
(6) A drawing at an approximate scale of 1″ to 400′ showing the location and length of the present runway, its original length, and each extension, and also showing the location of plaintiff's property with relation to the approach-departure zone of the runway and the longitudinal distance in feet, measured along the extended center line from the end of the runway and the lateral distance measured perpendicular to the extended center line, of the plaintiff's property and of any dwellings thereon.
(7) A vertical projection of the drawing at an approximate scale 1″ to 100′ showing the approach-departure clearance surface at the specified slope ratio and the mean sea level heights of the end of the runway and of the plaintiff's property and any dwellings thereon; and
(8) Name of the person qualified to testify concerning preparation of the drawing.
(1) Details of any prior acquisition of clearance easements over the same property;
(2) Statement as to any outstanding clearance easement directives, including criteria for approach and transition zones, status of negotiations, and copies of appraisal reports;
(3) Statement that all acquisition of clearance easements has been stopped, unless their prompt acquisition is necessary to provide for current flight operation; and
(4) Recommendation that there be included in the estate, in the event of settlement, provisions for the clearance of existing obstructions and prohibition against future obstructions, provided that circumstances will permit a delay in the acquistion of a clearance easement until completion of the litigation.
In any case in which the Court determines that the United States has taken an interest in real property, the Department of Justice will attempt to have included in the findings and in the judgment a precise description of the interests taken. An attempt will also be made to provide in the judgment that payment by the United States will not be required until the plaintiff has delivered a deed or other acceptable conveyance of the interest taken.
Directive by judicial decree for the acquisition of Tract No. ; being an easement (or other interest), containing __ acres.
Sections 644.111 through 644.121 describe the procedures of the Corps of Engineers relating to the acquisition of real estate and interests therein by condemnation proceedings. It is applicable to the Office of the Chief of Engineers (OCE) and to all Division and District Engineers having real estate responsibilities.
A complaint in condemnation, and any declaration of taking filed in conjunction therewith, will contain a citation of the congressional authorization and appropriation acts for the particular project, and any other applicable acts of Congress. Existing acts of Congress authorizing the acquisition of land and interests therein are outlined in AR 405-10 and subpart A. Acts of Congress applicable, generally, to condemnation proceedings are outlined below.
(2) Section 2663 of title 10, United States Code, authorizes the Secretary
(3) Section 9773 of title 10, United States Code, authorizes the Secretary of the Air Force to acquire by condemnation additional permanent air bases and depots, enlarge existing air bases and depots, bombing and machine gun ranges, and areas for the training of tactical units.
(4) Section 2233 of title 10, United States Code, authorizes the Secretary of Defense (with authority to delegate) to acquire by purchase, lease, or transfer, facilities necessary for the Reserve Components. The authority to acquire by purchase has been held to include the authority to condemn. Therefore, this section authorizes condemnation for both Army and Air Force Reserve Training Sites.
(ii) Section 5 of the Act of Congress approved July 18, 1918 (40 Stat. 911, 33 U.S.C. 594) provides that possession of lands being acquired by condemnation proceedings for river and harbor works may be taken, provided adequate provision shall have been made for payment of just compensation.
(ii) Section 6 of the Act of Congress approved August 18, 1941 (55 Stat. 650, 33 U.S.C. 701c-2) makes the provisions of section 5 of the Act of Congress approved July 18, 1918 (paragraph (b)(1)(ii) of this section) applicable to flood control works.
(2) Act of Congress approved February 26, 1931 (46 Stat. 1421, 40 U.S.C. 258a) makes provision for the filing of a declaration of taking in conjunction with condemnation proceedings and provides that title to the land or interests in land included in the declaration of taking vests in the United States upon filing with the court and deposit of the estimated compensation in the registry of the court.
(3) Title III of the Act of Congress approved January 2, 1971 (Pub. L. 91-646, 84 Stat. 1894) contains policies and guidelines for acquisition of land.
(a) Only in exceptional cases will the Chief of Engineers give favorable consideration to the filing of a complaint in condemnation, and the request for an order of possession, without the concurrent filing of a declaration of taking and deposit of estimated compensation in the registry of the court. Examples of situations in which complaints may be used are as follows:
(1) Immediate possession is required for some essential military need and time does not permit preparation of an appraisal, title work, or negotiations.
(2) Condemnation proceedings are necessary in connection with a cemetery, in order to secure court approval
(3) Where right of entry for survey and exploration, appraisal purposes, or other similar need is required, and there is no material interference with the owner's possession. However, where there is material interference with the owner's possession, or it is considered there will be significant damage to the land, a deposit of estimated compensation may be necessary.
(1) Five copies of individual tract descriptions identified as
(2) Five copies of segment or project maps, showing each tract or area to be acquired shaded or outlined in red and identified as
(3) Five copies of a list of the names and addresses of the persons purporting to own the tracts or having an interest therein, identified as
(4) Five copies of the exact estate or interest to be acquired, identified as
(5) In Air Force projects and acquisitions for other agencies, one additional copy of each exhibit will be required.
(6) In Air Force project acquisitions, the additional information set out in § 644.114(f) will be submitted, in duplicate.
(7) In those jurisdictions that adopt the alternate form declaration of taking, complaint assemblies should be similiar to the schedules submitted for the declaration of taking assembly.
(1) A statement indicating the date of approval of the Real Estate Design Memorandum in civil works projects or the date of the Real Estate Directive for other projects, and whether the land included in the complaint assembly is within the approved project boundary line, together with the citations of the authorization and appropriation acts which cover the acquisition.
(2) The approved appraised valuation and date of appraisal of the interest to be acquired or, if appraisals have not been prepared, the estimated value with a statement indicating the basis of the estimate.
(3) Information as to whether the land included in the complaint assembly is vacant or occupied, together with the date any occupants will be required to vacate the premises.
(4) If possession is required, an explanation of the need therefor and the reasons why the normal land acquisition schedule was not met.
(5) Results of contacts with the landowners and tenants and their views with respect to the filing of condemnation proceedings.
(6) A statement as to the plan and schedule to acquire such land after filing of the complaint in order to make funds available to the landowners and tenants.
(7) In assemblies concerning land for other than civil works projects, a statement indicating whether all of the land authorized in the Real Estate Directive is included in the assembly. Any variance between the area or estate authorized in the directive and those in the assembly should be fully explained.
(8) In military assemblies, a statement of expected local resistance to the proposed acquisition and efforts made to adjust military requirements to the local situation.
(9) Whether there have been any Congressional inquiries regarding the acquisition.
(1) Where a satisfactory Offer to Sell is obtained and accepted, the transaction will proceed through the stages of title clearance, payment and closing. Upon final approval of title, the Division or District Engineer will recommend to the Chief of Engineers that the Department of Justice be requested to dismiss the tract from the proceeding.
(2) Where a satisfactory lease of the premises included in a leasehold condemnation proceeding is obtained and accepted, the Division or District Engineer will recommend to the Chief of Engineers that the Department of Justice be requested to dismiss the tract from the proceeding.
(3) The recommendation of the Division or District Engineer for dismissal of a tract from condemnation will include the following information:
(i) Name of project.
(ii) Caption of the complaint and civil action number assigned thereto.
(iii) The date the final title approval was rendered; on lease cases, the date the lease was accepted.
(iv) A statement as to whether the particular deed or lease includes the same land described in the complaint under the same tract number.
(v) A statement as to whether the particular deed or lease includes all outstanding interests involved in the complaint insofar as the specific parcel of land is concerned. If all outstanding interests are not covered by the deed or lease instrument, a statement of the proposed method of acquiring those interests which remain outstanding, either by filing a declaration of taking or by direct purchase, or a recommendation that they be left outstanding permanently.
If it has been determined that acquisition of a tract cannot be accomplished by purchase due to failure to reach an agreement with the owners as to value, inability to contact the owners, title defects, or for other reasons, acquisition will be completed by the filing of a declaration of taking in a condemnation proceeding and the concurrent deposit of the estimated compensation in the registry of the court. The requirements for a declaration of taking are set forth in 40 U.S.C. 258a.
(1) Seven copies of the declaration of taking. (Reproduced copies will be accepted if clear and legible). The copy to be executed and filed in court must be free of errors and erasures.
(2) Seven copies of tract descriptions and names and addresses of purported owners, identified as Schedule "A" to the declaration of taking.
(3) Seven copies of a segment or project map, showing the individual tracts outlined in red, or shaded in such a way as to identify them, constituting Schedule "B" to the declaration of taking.
(4) In acquisitions for Air Force and other agencies, one additional copy of each of the above is required.
(5) As to tracts which are appraised at $50,000 or more, it is necessary to have a least two appraisals for each such tract in condemnation. One copy of each appraisal will be forwarded with the assembly for those tracts valued less than $100,000, and two copies where the value is $100,000 or more. Also, a copy of the appraisal should be forwarded when there is a counteroffer of $50,000 or more, no matter what the appraisal is. In all cases where two appraisals are necessary, at least one will be by a contract appraiser approved in advance by the United States Attorney in whose jurisdiction the case will be filed.
(6) Appraisals must be on a current basis so that at the time of submission of the assembly, the review certificates should indicate that the review has been made within thirty days prior to submission of the assembly.
(7) Guides in preparing declarations of taking for acquisitions for the Departments of the Army (Military and Civil) and Air Force are contained in Figure 5-5 in ER 405-1-12.
(8) Each case where there is an accepted Offer to Sell on which we will
(1) A brief physical description of the property, including its present use and highest and best use claimed by both the Government and the landowner.
(2) Number of discussions and date and place of each discussion, and a statement that the landowner was furnished a summary of the basis for the Government's valuation prior to negotiations.
(3) Statement of each offer made by the negotiator, any counteroffer received from the landowner, and any figures suggested by the negotiator in an effort to obtain a reasonable counteroffer above the Government's estimate of value.
(4) Where the discussions reveal that further negotiations would not be productive, a statement that the real estate representative explained that it was necessary that the interests be obtained through condemnation, not in the sense of a threat, but as an effort on behalf of the Government to secure an impartial determination by the court of the differences of opinion as to value, and in order to make funds available to the landowner.
(5) If the owner cannot be contacted for the purpose of conducting negotiations, a full explanation of the circumstances and the efforts made to contact the owner should be set forth in the Negotiator's Report.
(6) A statement that any remaining property of the owner enjoys access and is an economic unit, or if it is an uneconomic remainder, that the Government has offered to acquire the remainder.
(7) Where there is an Offer to Sell, the Negotiator's Report should include a statement that no separate representations were made in order to obtain the offer, if this was the case. If any such representations were made, they should be fully explained. The report should also include the negotiator's telephone number.
(1) The date of the real estate directive or the date of approval of the real estate design memorandum which includes the land to be condemned, a statement that the land is within the approved project boundary line, and the date of approval of the boundary line.
(2) A statement concerning the availability of funds.
(3) A list of the dates of the appraisals of the tracts in the assembly and the dates of the last review thereof. If more than one approved appraisal exists for any tract, the deposit will be in the amount of the highest approved appraisal. If the value of growing crops has been included in the appraisal, a statement concerning same is required in the transmittal letter pursuant to paragraph (h)(3) of this section.
(4) A statement that all owners of land included in the assembly, whose addresses are known, have been notified in writing that condemnation will be recommended and the reason therefor. The information furnished to the owners should include the name and address of the United States Attorney who will advise and assist them in applying for withdrawal of the funds deposited in the registry of the court. The notice to the owners should also state the date on which possession of their property will be required.
(5) A statement concerning the date when possession of each tract included in the assembly should be obtained. This should include information as to when the 90-day notice was given, as
(6) In assemblies involving other than civil works projects, a statement as to whether or not all of the land authorized in the real estate directive is included in the proposed declaration of taking. Any variance that may exist between the acreage in the directive and the acreage in the declaration of taking should be fully explained.
(7) For military projects, a statement of the expected local resistance to the proposed acquisition by condemnation, and the efforts which have been made to adjust requirements to the local situation.
(8) For those assemblies involving the first case in a particular project, information as to:
(i) When the initial land acquisition for the project took place.
(ii) The total acreage for the project and the estimate of the cost thereof; if available, two copies of the project brochure furnished to landowners should be forwarded.
(iii) Whether or not an environmental impact statement has been filed, and, if not, when it is expected to be filed.
(9) Two copies of each accepted Offer to Sell covering any of the tracts included in the declaration of taking will be submitted with the assembly.
(10) A statement as to whether there have been any Congressional inquiries regarding the acquisition.
(1) A map showing the base boundaries, outlining in red all land included in the applicable real estate directive, and showing the land included in the condemnation assembly hachured in red. In the case of an off-base facility, the map will show the nearest boundary of the main base with relation to the off-base facility, outlining in red all land in the applicable real estate directive, with the land covered by the condemnation assembly hachured in red.
(2) On the same map or a larger scale map, the following information on each tract in the applicable real estate directive:
(i) Tract number.
(ii) Acreage.
(iii) Ownership.
(iv) Contours.
(v) Existing improvements.
(vi) Proposed construction, including utilities, drainage ditches, and other supporting facilities.
(3) Summary of status of acquisition of all land included in the applicable real estate directive. ENG Form 3905-R will be used for this purpose. All discrepancies in figures for acreages and costs should be fully explained.
(4) If any of the land included in the applicable real estate directive is held under voluntary lease or leasehold condemnation, report for each such tract the annual rental, the period of time the leasehold interest has been held, and whether it is a voluntary lease or a condemnation leasehold. If the land is not under lease, this fact should be reported.
(5) If the United States has previously acquired an easement interest (clearance easement, safety area easement, etc.) in any of the land included in the condemnation assembly, identify the real estate directive which authorized the previous acquisition by number, date, interest acquired, acres, cost and method of acquisition (including lease number, tract number, caption with civil action number as applicable). A negative report is required.
(6) If severance damage is involved in any of the land included in the condemnation assembly, include a detailed statement of the facts and justification
(7) A copy of the appraisal report on which the deposit in a declaration of taking is based, irrespective of value.
(2) Normally, under the "unit" rule a condemnation proceeding should include all interests in a given tract authorized for acquisition even though an Offer to Sell may have been obtained and accepted from the surface owner with an outstanding interest in the subsurface estate recited in the "Subject to" paragraph. In such a case, if it is necessary to condemn due to title difficulties or failure of the owner to carry out the terms of the Offer to Sell, the deposit will be increased by the appraised value of the outstanding subsurface interest. The only exception to including subsurface interests outstanding in third parties is in the case of block ownership of subsurface interests;
(3) If future negotiations to acquire or subordinate the subsurface interests left outstanding under paragraph (g)(2) of this section (or any non-block subsurface interests "excepted" from direct purchase cases) are unsuccessful, and the outstanding interest cannot be waived under the provisions of § 644.86, then acquisition or subordination of the outstanding interest should be accomplished by condemnation proceedings. In so doing, block ownerships should be condemned as a unit rather than on a piecemeal basis. Full information should be submitted with such assemblies as to the method of acquisition of each surface ownership affected by the subsurface acquisition.
(1) If the crops have been harvested, or it is known or highly probable that the crops will be harvested by the landowner or tenant, no deposit will be made for the crops.
(2) The approved appraised value of crops will be included in the amounts to be deposited in all other cases.
(3) The letter forwarding the declaration of taking to the Chief of Engineers will state whether the value of growing crops has been included in the amount recommended for deposit, and will set forth a statement of the facts upon which the action is based.
(1) The Division or District Engineer will ascertain from the United States Attorney the date on which the condemnation proceeding with declaration of taking is filed and the date on which possession is available. The using service of the Army and Air Force or the local representative of other agencies will be informed of the date on which possession of the land is available.
(2) The above information, together with the civil number assigned to the case, and a copy of the complaint and order of possession will be furnished to HQDA (DAEN-REA-C) WASH DC 20314 within six weeks after the date the case was forwarded by the Chief of Engineers to the Department of Justice. If this cannot be accomplished, an explanation will be furnished by such date.
(3) Where an Order of Possession is obtained but the landowner refuses to comply, it may be necessary to obtain a Writ of Assistance from the court. Prior to requesting the United States Attorney to obtain such a Writ, all pertinent facts should be reported to DAEN-REA-C.
(4) The United States Attorney should be requested to have judgment entered in accordance with the terms of any accepted Offers to Sell immediately after the filing of the case, since delay in taking such action works to the disadvantage of the Government. Any difficulty in securing prompt action by the United States Attorney in this matter should be reported to DAEN-REA-C.
(2) No amendment should be submitted which will result in a revestment of an interest in property, unless a stipulation for revestment has been obtained from the former owner in accordance with § 644.115.
(3) If, after the filing of a declaration of taking, a substantially higher appraisal is approved for any reason, and a settlement does not appear imminent, an amendment will be submitted promptly to increase the amount of the deposit.
When fee title or an interest in property has been acquired by the United States by declaration of taking in a condemnation proceeding and it is determined to be in the best interest of the Government to wholly or partially exclude said property or interests therein, or to acquire a lesser estate, such exclusion or diminution in the estate can be accomplished by stipulation with the former owner under the provisions of the Act of Congress approved October 21, 1942 (40 U.S.C. 258f).
(1) The stipulation will not provide for any change in the amount of the deposit unless the stipulation provides for an overall settlement of the case or the entire tract is to be excluded from the acquisition.
(2) The areas in which the Government has acquired an interest and those in which an interest will be retained after the revestment will be fully described.
(3) The estates to be retained by the Government after the revestment will be accurately described; where the owner reserves mineral or other interests or use, appropriate restriction of exploration and subordination to the paramount right of the Government to use the property for the required purpose will be included.
(4) The stipulation should include, as part of the consideration:
(i) Consent by the former owner to the Government's acquisition of the revised area and the estates therein in the event the stipulation is approved.
(ii) Withdrawal of any answer contesting the Government's right to acquire the property and any interrogatories theretofore filed.
(iii) A waiver of any and all claims by the former owner, his heirs and assigns, against the United States, the State, County and political subdivisions thereof for loss of access to the land (where applicable).
(5) The stipulation will include, as an exhibit, maps delineating the fee area in red, the easement area in blue, and the area to be revested in yellow.
(6) The letter of transmittal in connection with any revestment in Civil Works projects should include information as to whether the area in which title is to be revested has a potential for recreational use without regard to the currently established public access areas.
Distribution of the estimated compensation deposited in the registry of the court is the responsibility of the United States District Court. However, the Division or District Engineer will assist the United States Attorney in arranging for the distribution of funds
(1) ENG Form 798, Certificate of Inspection and Possession, or such other similar form as may be requested.
(2) ENG Form 1567, Report on Vacation of Property.
(3) Title evidence and all available curative material covering the tracts of land included in the declaration of taking.
(4) Copies of all offers to Sell, leases, relocation agreements, etc., which are pertinent to the case and would be useful in making distribution.
(1) In coordination with the United States Attorney, conduct discussions for settlement with landowners and other interested parties defendant. When a satisfactory agreement has been reached, an executed stipulation in a form satisfactory to the United States Attorney will be obtained. A suggested form of stipulation as to just compensation is contained in Figure 5-8 in ER 405-1-12. In this connection, the closest cooperation and collaboration must exist between representatives of the Department of the Army and the Department of Justice; no settlement negotiations should be conducted by Corps personnel without the knowledge
(2) Furnish maps, photographs and other necessary exhibits for trial.
(3) Assist in preparing expert witnesses for trial.
(4) Take necessary action to assure the presence of witnesses at the trial. District personnel who qualify as expert witnesses will be made available.
(5) Be represented at the trial by an attorney thoroughly familiar with Federal court procedures, condemnation law, and the details of the project affected by the condemnation proceedings.
(2) Where the total settlement for all interests acquired in a given tract does not exceed $40,000 and the proposed settlement will completely dispose of the issue of compensation for all interests acquired in the tract in the proceeding, Division and District Engineers and the Chiefs of the Real Estate Divisions are also authorized to recommend approval of settlements directly to the United States Attorney. In leasehold condemnation cases the monetary limitation includes the full lease term and not merely the per annum rental. DAEN-REA-C will be informed of the action taken in the same manner as in paragraph (b)(1) of this section. Even though the total settlement for all interests acquired in a given tract does not exceed $40,000, the proposed settlement will be submitted to DAEN-REA-C for consideration in the following instances:
(i) If the United States Attorney and the Division or District Engineer cannot agree as to whether a particular settlement should be consummated.
(ii) If the stipulation involves a novel issue of law or question of policy which would adversely affect the disposition of other tracts in a project.
(iii) If revestment of any land or interests therein or change in estate is involved.
(3) All proposed settlements not covered by paragraphs (b) (1) and (2) of this section will be forwarded to DAEN-REA-C, together with specific recommendations of the Division and District Engineers and a full statement of the facts. Three copies of the signed stipulation will be forwarded to DAEN-REA-C with the report in those situations where the stipulation contains any unusual conditions or terms. The report should contain the following:
(i) The amount of the deposit and the amount of the proposed settlement.
(ii) The amounts and dates of all Government appraisals. Where the Department of Justice appraisal is substantially above or below the Corps of Engineers' appraisals, the Division and District reviewing appraisers should carefully examine the appraisals and ascertain whether the facts in the case and the appraisal techniques have been consistently applied, and should prepare a comparative analysis.
(iii) The appraisal valuations by the property owners, their appraisers, or other witnesses who may testify for the owners, if such can be ascertained.
(iv) A statement of the recommendation of the United States Attorney as to the proposed settlement.
(v) Such other matters as should be considered by the Chief of Engineers in determining whether the proposed settlement is satisfactory; e.g., any pattern of awards which has been established as the result of other trials concerning land at the same project, or in
(vi) Whether or not funds are available to satisfy any deficiency.
(vii) The report should contain the required information in tabulated form. For each item the statement should be short and concise; lengthy reports are not required.
(4) A copy of the report and recommendation sent to the Chief of Engineers will be immediately transmitted to the United States Attorney. If the settlement is satisfactory, the Chief of Engineers will forward a letter of approval to the Department of Justice, recommending that the stipulation be approved, filed and judgment entered thereon. A copy of the letter of approval will be sent to the Division or District Engineer. Receipt of such copy is authority to satisfy the judgment when entered, provided funds are available.
(5) If a stipulation is obtained by a United States Attorney in excess of their authority, they will forward the proposed settlement to the Department of Justice. Simultaneously, in accordance with procedures agreed upon by the Chief of Engineers and the Department of Justice, the United States Attorney will transmit copies of the transmittal letter and of the proposed stipulation to the Division or District. The Division or District Engineer will immediately forward the letter outlined in paragraph (b)(3) of this section to the Chief of Engineers.
(6) All settlements negotiated for interests acquired in condemnation proceedings will be inclusive of interest and will include all claims of any nature arising as a result of the taking of the estate recited in the complaint or declaration of taking, with the exception of benefits to which the landowner may be entitled under Pub. L. 91-646 (84 Stat. 1894). In lease-hold condemnation cases, all proposed settlements should include not only an agreement as to compensation for the period of the leasehold but also an agreement as to any and all claims arising from restoration of the premises, if known (§ 644.121(b)).
(7) Where surface and subsurface interests are acquired in a single condemnation proceeding, it is desirable to settle by stipulation, or to go to trial, on the "unit" basis. Many United States Attorneys insists on this course of action. However, Division or District Engineer should cooperate with United States Attorneys who wish to negotiate for stipulated settlements which may not include all of the interests acquired in a given proceeding as to a specific tract or tracts, provided appraisal reports have been prepared in such a manner as to make the appraised value of the several interests ascertainable.
(8) If an offer of settlement is not intended to include the full interest which was condemned in a particular tract, the letter transmitting the settlement offer will specifically identify the interests included in the settlement, the interests which remain unsettled, and the amount of estimated compensation remaining on deposit for the unsettled interests. The amounts remaining on deposit for the unsettled interests should be the appraised valuation of such interests.
(9) Landowners will be advised during negotiations for settlement that offers to settle are not binding on the United States until accepted by a duly authorized representative of the Department of Justice.
(10) In cases where tracts which are covered by accepted Offers to Sell are acquired by declaration of taking because of title defects or the failure of the landowner to carry out the terms of the Offer to Sell, the United States Attorney will be informed by letter and furnished copies of the Offer to Sell. The consideration contained in the Offer to Sell is considered binding upon the landowner despite the fact that condemnation is used to acquire title to the land. No settlement will be approved by the Division or District Engineer in an amount exceeding the amount contained in the Offer to Sell unless the Offer has been set aside by court order. Reports submitted in accordance with paragraph (b)(3) of this section will contain a statement as to
(i) The amount of the verdict or award.
(ii) The appraisal valuations given in testimony by all witnesses, including any pertinent comments on the effectiveness of the witnesses, as appropriate.
(iii) A statement of the recommendations of the United States Attorney as to the acceptance of the verdict or award, if available without causing a delay in submittal of the report.
(iv) Where the trial concerned less than all interests acquired in a given tract, the report should state the precise interests adjudicated at the trial, the other interests which remain unadjudicated, the proposed disposition of the unadjudicated interests and the amount of the deposit allocated to the unadjudicated interests.
(v) Whether or not funds are available to satisfy any deficiency plus interest.
(2) Long narrative reports of the events at the trial or hearing are not necessary except in unusual cases. A brief, but complete, statement of the pertinent facts will be adequate in most cases. A form for use in connection with submission of trial reports is included in Figure 5-9 in ER 405-1-12; however, it is not intended that this form constitute the entire report. Where the case was tried by a Commission, copies of the Commissioners' Report will be submitted with each copy of the trial report. Close liaison must be maintained with the United States Attorney's Office in order that these reports will be received promptly after they are filed in the case.
(3) The report outlined above should be accompanied by the recommendation of the Division or District Engineer as to what action should be taken with respect to the Commissioner's Report, court award or jury verdict. This recommendation should include a discussion of any matters which should be considered by the Chief of Engineers in determining whether the award is satisfactory, e.g., the history of past awards at this project or in the same judicial district, the basis used by the commission in arriving at its determination of value, whether enhancement from the project or a second taking was an issue, the disposition of any accepted Offer to Sell on any tract involved in the trial, etc. (The basis of findings of value to be included in the report of a commission appointed under Rule 71A(h) was considered by
(4) The report and recommendation should be received by the Chief of Engineers within five working days after the Commissioners' Report has been filed or the trial concluded. In order to accomplish reporting within the prescribed time limits, District Engineers will forward reports and recommendations direct to DAEN-REA-C, with a copy to the appropriate Division Engineer. The Division Engineer will submit comments and recommendations to DAEN-REA-C within three working days after receipt of the copy of the District Engineer's report. The District must insure that our right to object is extended if the situation warrants.
(2) The copy of the letter from the Chief of Engineers to the Department of Justice recommending approval of an award or settlement, if required under §§ 644.117(b)(3) and 644.118(b), will constitute authority for payment of the deficiency, provided funds are available. If approval is not recommended by the Chief of Engineers to the Department of Justice and the judgment is submitted to the Division or District Engineer for payment, it should be forwarded to DAEN-REA-C without action. Upon receipt of a judgment where payment is authorized and funds are available, the Division or District Engineer will immediately procure and deliver the check to the United States Attorney and inform DAEN-REA-C of the action taken.
Generally, it is not necessary to obtain a final certificate of title or title insurance policy in condemnation cases where the intermediate or continuation certificate of title is continued to a date subsequent to the date of filing of the Notice of Lis Pendens, and the liability of the title company is not limited to an amount less than 50 percent of the total consideration paid for the land by the United States.
Under the provisions of the River and Harbor Acts approved June 29, 1906 (33 U.S.C. 592) and August 8, 1917 (33 U.S.C. 593), and the Flood Control Acts approved March 1, 1917 (39 Stat. 950) and August 18, 1941 (33 U.S.C. 701c-2), respectively, the Secretary of the Army may cause proceedings to be instituted in the name of the United States for acquisition by condemnation of lands, easements or rights-of-way which local interests undertake to furnish free of cost to the United States. Requests for the institution of proceedings in the name of the United States will be addressed by the local parties to the Secretary of the Army and submitted to the Division or District Engineer. No land will be acquired on behalf of local interests by the filing of condemnation proceedings until local interests have
(1) Lacks authority to acquire the necessary real estate interests by eminent domain; or
(2) Cannot obtain possession by local eminent domain proceedings in time to meet the construction schedule; or
(3) Unusual circumstances exist so that acquisition by local inerests would not be in the best interest of the United States.
(1) Citation of authorizing act.
(2) Whether valid assurances have been accepted, giving date of acceptance.
(3) That the estate or estates to be acquired conform to the requirements set forth in subpart J (to be published).
(4) Appraisal values of the interest proposed for acquisition.
(5) That sufficient funds to cover court awards and expenses of the proceedings have been deposited by local interests with the Division or District Engineer.
(6) Efforts made by local interests to acquire the real estate interests and reasons for requesting the United States to file condemnation proceedings.
(1) The Department of the Air Force will ascertain and advise the Chief of Engineers concerning the future requirements for the land in Air Force leasehold cases. Where the Department of the Air Force has a continuing requirement for land included in condemnation leasehold cases which are not extendible, the appropriate Division and District Engineers will be informed at the earliest practicable date.
(2) Extension of the term in a leasehold condemnation case must be accomplished through the Department of Justice which, upon request of the Chief of Engineers, will issue instructions to its field representatives to prepare a notice of election to extend the term and file it in the appropriate United States District Court. The Chief of Engineers should be advised of requirements of using services for extension of leasehold condemnation cases five months prior to the time that filing notice of extension with the court is due. The majority of pending leasehold condemnation cases require that notice to extend the term be filed with the court 30 days prior to the end of the term, although a few cases require the notice of extension to be filed at least 60 days prior to the end of the term. Negative reports are required.
(3) Since the General Services Administration is the disposal agency for excess and surplus airport property, all condemnation leaseholds forming an integral part of an airport should be extended and kept in force with the concurrence of the Department of the Air Force unless and until contrary instructions are received from the General Services Administration. In the event a bombing range or other installation in which leasehold interests have been acquired by condemnation is
(4) Specific authorization for deposit of funds in condemnation leasehold cases will be issued to Division and District Engineers by the Chief of Engineers.
Sections 644.131 through 644.142 outline the procedures of the Corps of Engineers for the leasing of real estate and interests therein for military and civil works purposes. They are applicable to all division and District Engineers having real estate responsibilities. To the extent practicable, these procedures will be followed by overseas commanders, in conjuction with the provisions of AR 405-10, Chapter 3. In general, these procedures also apply to the leasing of land and improvements for other Government agencies which authorize the Corps to acquire leasehold interests.
(a) Authority to lease real property interests for the Department of the Army in the United States, the Commonwealth of Puerto Rico, and the Virgin Islands is derived from annual appropriation acts.
(b) Title 10 U.S.C. 2675 authorizes the acquisition by lease, in any foreign country, of structures and real property relating thereto that are needed for military purposes. Leases under section 2675 may not be for a period of more than five years, except that a lease under this section for military family housing facilities and real property relating thereto may be for a period of more than five years but may not be for a period of more than ten years.
(a) The Corps is responsible for acquiring space in buildings, or land, or both land and buildings, under its own authority or through the General Services Administration (GSA) in designated urban centers, for the Departments of the Army and Air Force; Department of the Navy, including the Marine Corps, for recruiting and main stations; Department of Energy and the Nuclear Regulatory Commission, excluding space in GSA urban centers; National Aeronautics and Space Administration, as requested; and other agencies, such as the Department of Defense, upon request. In carrying out these responsibilities, Division and District Engineers will:
(1) Furnish staff supervision to using services on all leasing matters, as well as technical assistance and guidance.
(2) Develop plans and studies, usually in the form of Lease Planning Reports, for commanders of using services when appropriate.
(3) Make recommendations to the using services and/or the Chief of Engineers on important lease and lease planning matters.
(4) Report controversial or unusual leasing matters to HQDA (DAEN-REA-L) WASH DC 20314 by the submission of a summary of the facts, copies or proposed lease documents, and other data, together with recommendations thereon.
(b) In accordance with Reoganization Plan No. 18 of 1950 (40 U.S.C. 304c) and under the provisions of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 471), the Public Buildings Service of GSA assumed all functions with respect to the acquisition by lease of general-purpose space; the assignment and reassignment of such leased space and of Government-owned space; and the operation, maintenance, and custody thereof in selected urban centers. The Administrator, GSA, is authorized to assign and reassign office space in the United States upon his determination that such assignments or reassignments are advantageous to the Government in terms of economy, efficiency, or national security after consulting with the heads of the executive agencies concerned.
(c) Reorganization Plan No. 18 also provided that the Administrator may delegate any function transferred to him to the head of any agency of the executive branch of the Government.
(d) Reorganization Plan No. 18 did not transfer to the Administrator any function with respect to:
(1) Buildings or space in buildings located on a military installation, or similar facility of the Department of Defense unless a permit for its use shall have been issued by the Secretary of Defense, or his duly authorized representative; or
(2) Space in Government-owned or leased buildings utilized for special purposes and not generally suitable for use by other agencies.
(a) General-purpose space is space in buildings, including land incidental thereto, suitable for the general use of Government agencies, including but not limited to office space, general storage space, inside parking space, and warehouse space.
(b) Special-purpose space is space in buildings, including land incidental thereto, wholly or predominantly utilized for the special purposes of an agency, and not generally suitable for general-purpose use, including but not limited to hospitals, housing, and laboratories.
(c) Initial alterations are any improvements, additions, repairs or structural changes which are necessary to adapt leased premises or facilities to needs of the using service and which are approved prior to occupancy.
(d) Subsequent alterations or upgrades are any improvements, additions, repairs or structural changes which are found to be necessary to further adapt leased property to the needs of the using service after occupancy.
(e) Temporary improvements are those which can be removed without damage either to the property installed or the leased property, and to which the Government retains title.
(1) The geographical area in which the availability of Government-owned space was surveyed, together with reasons for limiting the area. The mission is to be set forth in detail, along with the reason(s) why space in this particular geographical area is essential to the performance of the mission.
(2) Current and required space (including parking) for each using service. For GSA leases the square feet should be the same as reported on the SLUC. Corrected square feet may be reported if a letter of concurrence from the appropriate GSA Region is provided.
(3) Statement covering all Government-owned buildings and facilities under the control of the military departments in that area, together with the reasons why each was rejected. Even though no space is available, a list of the installations in the area will be furnished.
(4) Statement from (GSA) indicating that no space is available to that agency and other Federal agencies in the area or, in the alternative, a list of space that is available, together with reasons why the space is not acceptable to the using service.
(5) Identification of the headquarters and personnel making the determination that any available Government-owned space is not suitable.
(6) Original request, signed by the responsible head of the using agency that action be taken to obtain required clearances under 10 U.S.C. 2662. The using service shall advise whether or not a long-range use is contemplated.
(7) A statement of the current and anticipated contract rentals and current and anticipated SLUC for GSA leases. The SLUC should be as reported by GSA, unless an explanation is provided.
(2) Leases, renewals, or lease extensions, which are controversial, unusual, or inconsistent with existing policies, require the approval of the Chief of Engineers.
(3) Any lease involving clearances by higher authority will be submitted to HQDA (DAEN-REA-L) WASH DC 20314.
(4) Leases, renewals, or lease extensions of industrial properties, other than for bakeries, laundries, and drycleaning facilities, are to be submitted to DEAN-REA-L for prior approval.
(5) Division and District Engineers, and Chiefs of the Real Estate Divisions, are authorized to perform emergency maintenance and repairs to leased premises not in excess of $500 where lessors refuse to perform, or under such circumstances that the lessor cannot perform. Where the cost exceeds $500, approval by DAEN-REA-L is required. The Comptroller General has ruled that where the lessor is obligated to perform maintenance and repairs under the terms of the lease and after demand of and refusal by the lessor, the Government makes such repairs in order to utilize the property to the fullest extent, the cost should be withheld from rental payments under the lease as soon as possible after work is completed (15 Comp. Gen. 1064). However, no rental payments will be withheld and no repairs made after demand and a refusal by the lessor, without prior approval of DAEN-REA-L.
(2) District Engineers and their Chiefs of the Real Estate Divisions are authorized to approve leases wherein the rental excluding utilities and services, unless included in the recited rental consideration, does not exceed $25,000 per annum.
(3) Except for space in the National Capital Region, Division and District Engineers are authorized to process all requests for the assignment of space in Government-owned buildings or leased space in the GSA urban centers to the regional GSA office having jurisdiction.
Division and District Engineers, and the Chiefs of the Real Estate Divisions,
(i) Upon receipt of authority from the Chief of Engineers, negotiations will be conducted for obtaining an acceptable lease, in accordance with the approved lease request. The appropriate United States Property and Fiscal Officer generally makes separate service contracts for utilities, except sewage disposal, and services, and is responsible for the maintenance of all buildings used exclusively by the Air National Guard. Representatives of the Corps of Engineers do not participate in obtaining contracts for utilities and services. In cases where such a contract is impracticable, the lease may include any and all utilities and services as part of the rental consideration, with the cost of the various services and utilities to be itemized. The "use clause" in the lease will provide for occupancy of the premises for "Government purposes". The wording, "For use by the Air National Guard and/or United States Air Force, and, in time of war or national emergency, by other units of the Armed Forces of the United States or for any other use by the Federal Government," will be acceptable if it is not possible to insert the for "Government purposes" provision.
(ii) Leases made by representatives of a State with private parties for use of premises by the National Guard of the State involved, under which State funds are used for rental payments, are not the responsibility of the Division or District Engineer.
(1) A statement covering the non-availability of Government-owned space, or if such is available and not suitable, reasons why it is not suitable, for occupancy by the requesting using service, should be made for each lease executed by the Corps of Engineers, excluding family housing leases.
(2) Suitable privately-owned space shall be acquired only when satisfactory Government-owned space is not available. Rental charges will be consistent with prevailing rates in the community for comparable facilities.
(3) The quality of office space for Government occupancy shall be appropriate for the efficient and economical performance of required operations, affording employees safe, healthful and convenient facilities.
(4) Full consideration shall be given to the efficient performance of the mission and programs of the using service.
(1) The Division of District Engineer will submit a Standard Form 81, Request for Space, to the appropriate GSA Regional Office for space assignment in urban centers under the jurisdiction of GSA. The requirement to this form applies to lease renewals or lease supplements, and for space assignments in Federal office buildings. Excluded from this procedure is a proposed space assignment in the National Capitol Region.
(2) Except for the acquisition of general-purpose space of 2,500 square feet or less, outside the designated urban centers, and special-purpose space of 2,500 square feet or less, irrespective of the location, the need for any type of building space will be made kown to the appropriate GSA Regional Office by filing Standard Form 81, Request for Space.
(3) The designated urban centers are listed in Figure 5-11 in ER 405-1-12.
(2) Where buildings, structures, or growing crops are located on land to be leased, a determination will be made by the Division or District Engineer, in coordination with the appropriate command, as to whether they will interfere with the use of the premises.
(3) Where the lessor will not be permitted to harvest crops or remove improvements and timber which will be destroyed by the Government, the appraised value thereof will be determined, and such amount will be included in the rental for the initial term of the lease, together with an express provision relieving the Government of restoration.
(4) Leases of land for bombing, artillery, rifle ranges, and other extraordinary usage will specify that the leased premises are to be used for such purpose, and an effort will be made to include in the lease a provision waiving restoration and claims for damages, particularly where the premises are wastelands or unproductive.
(5) Where the lessor will not consent to a waiver of restoration, the estimated value of such damage, if it can be determined in advance, will be included in the rental for the initial term of the lease, and the lease will contain an express provision relieving the Government from responsibility for restoration.
(6) If restoration is not waived, and the damages cannot be determined in advance, a provision may be included in the lease to the effect that the rental payments do not include compensation for damages arising from the use of the premises for the purpose leased and that, upon termination of the lease, the damages, mutually determined, will be paid by supplemental agreement to the lease. In event the amount of the loss or damage cannot be mutually determined, the lessor may file a claim for the alleged loss or damage in accordance with subpart H.
(2) The survey and inspection required above will be made jointly with the lessor or his duly authorized representative. The report will be signed by both parties.
(3) The initial survey report must be made with great care since it is the basis for future restoration claims by a lessor. The use of photographs is encouraged. Full explanatory data covering condition of the premises will be added to the report if, in the opinion of the Chief, Real Estate Division, a useful purpose will be served thereby. The survey report of real property, and the inventory and condition report of personal property, will be made with care, as the condition reflected as of the date of initial occupancy will be compared with the condition shown by the terminal reports made upon vacation of premises.
(4) A survey is not required of unimproved land where an appraisal has been made and the condition of the land is set forth by the appraiser and made a part of the record.
(5) A survey will be made wherever property of another Federal agency is used, with the exception of post offices and Federal buildings. In the event privately-owned buildings, crops, or other property, are on the Federal property, a report will be made outlining the terms and conditions under which they were placed thereon, and the value thereof will be appraised as of the date of possession.
(6) Normally, ENG Forms 3143 and 3143A, Joint Survey and Inspection of Condition of Government Leased Property, are adequate for the joint survey and inspection. In certain cases, narrative reports may, at the discretion of the Division or District Engineer, be considered preferable; however, local forms will not be developed for this purpose.
(2) Any claim for rent or services due a deceased lessor which is considered doubtful will be forwarded to HQDA (DAEN-REM) WASH DC 20314 in accordance with subpart H.
(2) Upon being notified or otherwise determining that a foreclosure proceeding has been filed against the leased premises, or that the enforcement of a deed of trust or mortgage is
(1) Special attention will be given by Division and District Engineers to leases which expire by their own terms and continued occupancy is required at annual rentals of $50,000 or more. These leases require approval by the Department of Defense and reporting to the Armed Services Committees of the Congress by the Chief of Engineers. An Acquisition Report together with full justification, as set forth in § 644.135(a), in support of each lease (or project covered by more than one lease) must be furnished. For leases in which it is not clear whether Title 10 reporting is required, DAEN-REA-L will be informed of the facts for decision. Attention will be given also to existing leases having annual rentals between $30,000 and $50,000. It is probable that current appraisals will indicate annual rental rates in excess of $50,000 and, therefore, require a title 10 report.
(2) If the using command anticipates that there will be further need for the leased property, and the total estimated rentals to be paid by the Government, excluding utilities and services, for the additional period, plus the cost of restoration, will exceed, 50 percent of the estimated current market value of the property, DAEN-REA-L will be informed of all details in order that the review required by paragraph 1-8, AR 405-10, may be made. Only estimated future rent payment is to be considered and not the rental paid in the past for the property. In applying this formula, if the period of future use cannot be ascertained but it is likely that a property will be used for a long period of time, use a period of five years for calculations.
(2) No lease will be renewed or kept in existence unless it has been administratively determined, through advertising or otherwise, that other suitable property at a lower rental is not obtainable. At all times, and in particular during the lease renewal review period, the Division or District Engineer will take cognizance of the availability of property in the area of the using service that is Government-owned, or property under GSA control.
(2) Prior to payment, the Division or District Engineer, or his designee, will certify for submission to the Disbursing Officer that the leased property was occupied or available for use. The following certification, contained on Standard Form 1166, Voucher and Schedule for Payments, is used:
I hereby certify that the leases identified hereon were in effect for the month (or other period) indicated, and that the space was occupied, or available for use, by the Department of the Army.
Joint training exercises or maneuvers are conducted by elements of the Department of Defense. Land use requirements vary with the exercise objectives and the force elements which participate. The Corps participates in the planning and acquires rights to use land and other facilities for Department of the Army exercises. The current Memorandum of Understanding by Department of the Army, United States Readiness Command (USCINCRED), and United States Army Forces, Readiness Command (USCINCARRED) on acquisition of maneuver rights for United States Readiness Command (USREDCOM) Joint Training exercises is included as Figure 5-13 in ER 405-1-12. This Memorandum covers timing of requests for preliminary surveys, real estate studies, funding and acquisition of maneuver rights. The Corps also responds to requests from other Department of Defense commands for maneuver rights, and the same procedure is envisioned although no Memoranda of Understanding have been entered into. Upon receipt of a request for real estate services, an estimate of the funds required for the report should be forwarded to the using command.
Section 515 of Pub. L. 84-161 (69 Stat. 324), as amended by Pub. L. 95-82, approved 1 Aug 1977, authorizes the expenditure of an average of $280 per month for each military department for housing facilities in the United States (other than Alaska and Hawaii) and in the Commonwealth of Puerto Rico, and an average of $350 per month for each military department for housing facilities in Alaska, Hawaii and Guam. In both cases the maximum rental rate per unit per month including utilities, operations and maintenance is $450. These rental figures are subject to change each year in the annual Military Construction Authorization Acts. Updated rental figures should be obtained from the current MCA Act. The Department of Defense allocates to each department of the military the number of units it can acquire pursuant to the authorization, and each year Division and District Engineers are informed of the unit allocations by the Chief of Engineers.
It is understood and agreed that the Government will assign the demised premises to military personnel in accordance with Executive Order 11063, dated 20 November 1962, which provides that housing and related facilities shall be available without discrimination among tenants because of race, color, creed, sex or national origin.
It is understood and agreed that the lessor will be responsible to provide pest control measures and pesticides, which conform to local health department regulations, to keep the premises free from pests and in a tenantable condition.
(2) At the discretion of the Division or District Engineer and the Chief of the Real Estate Division, Standard Form 2B may be used for family housing leases, regardless of the rental rate.
(3) Emergency repairs may be accomplished in accordance with § 644.135(f)(5).
Division and District Engineers and the Chiefs of the Real Estate Division are authorized to execute leases, and renewals of leases, for river and harbor or flood control purposes, subject to necessary approvals and clearances. The provisions of 10 U.S.C. 2662, which require reporting of certain leases proposals to the Armed Services Committees of the Congress, do not apply to leases for civil works.
(1) Where the annual rental is in excess of $50,000.
(2) Where the leasing involved is for space for both military and civil functions, and the rental for the portion used for military purposes is in excess of $50,000. The report required is covered in § 644.135(a).
It is essential that the Division or District Engineer make provision for the physical protection for all facilities under Corps control. Coordination with state, county, and city law enforcement officials as well as the U.S. Attorney's Office is required. These officials should be alerted at the first indication of possible disturbances. The U.S. Attorney's Office should be provided with an up-to-date list of the locations of such facilities.
(1) The proposed alterations and improvements must be advantageous to the Government in terms of economy, efficiency, and, where applicable, to national security.
(2) For office space, the cost should be less than the cost of other space that is available and which does not require alterations or improvements to any appreciable extent.
(3) Due regard is to be given to the convenience of the public that is served and the maintenance and improvement of safe and healthful working conditions of employees.
(4) Where the proposed temporary construction at a leased facility has an estimated cost equal to or in excess of the current market value of the property, the facts will be reported promptly to DAEN-REA-L.
(2) Effort will be made to include all required alterations in the rental package with the lessor performing all of the work. Careful attention will be given to possible violations of the Economy Act. Payment for initial alterations may be in a lump sum or by the month with the rent, provided the provisions of the Economy Act are complied with and the alterations costs are stated separately in the file or in the voucher.
(3) Alterations or improvements of any nature in GSA furnished space are the responsibility of GSA. Under certain circumstances, GSA may require a Certificate of Necessity in order to perform the required construction.
(4) Although alterations and improvements subsequent to occupancy are not the responsibility of the Corps, the Division or District Engineer should always review subsequent alteration projects to determine whether or not the limitations of the Economy Act are applicable. See AR 415-34, AR 415-35, and AR 420-10 for procedures and instructions.