First title 36 mission of 2007

[isuhawkeye]

Ok gang who ran the first title 36 mission of 2007.  remember that title 36 means direct dupport of local authorities with out AFRCC or AFNSEP

[RiverAux]

Sorry to be picky here, but there is no such thing as a Title 10 or Title 36 mission.  Everything being called Title 10 or AF support is also authorized in Title 36 and everything authorized in Title 36 is also authorized in Title 10. 

For example Title 10 Section 9443 authorizes use of CAP in its nonprofit corporation fole for state and local missions. 

So, this sort of terminology makes no sense. 

[DNall]

They're trying to tie into the terminaology used by the guard (title 10/32), which is noce, I sure as hell don't like calling them "corporate" missions. You're right though that's not what the USC actually says. No biggie though, let 'em roll.

Of gang who rant he first title 3 6 mission of 2007.  remember that title 36 means stat of local support. (Non AFRCC, AFNSEP etc)

Now, what the hell does that mean? If you're talking about that snow flying thing it's under an AFRCC mission number, and why wouldn't it be. What state is too proud to ask AFRCC to pay for CAP to do missions on the state's behalf?

[Nick Critelli]

Gentlemen, we are not inventing anything new. Everything changed in October 2000.  It is critical that all of use use correct legal termology and understand the legal foundation for our missions and actions.  This becomes important because liability, limitations, etc. depend upon the status in which one operates. 

So here comes SAR Law 101 by the retired law professor:

You need to understand three concepts which come into play AFTER 30 October 2000: Title 10 USC 9442(a) and (b); Title 36 USC 40302 and the National SAR Plan which has been reaffirmed in HSPD5 in 2004.  The following will emerge:

1.  CAP is a dual status organization: Title 10 USC 9442 (b) and Title 36 USC 40302.  In its Title 10 status CAP is an instrumentality of the United States; in Title 36 it is not. In it's Title 10 status, CAP is the auxiliary of the AF and consequently bound by laws restricting AF missions and use; in Title 36 it is not. 

2.  Title 10 USC 9442(a) [note the section change from the previous section (b)]  makes  CAP an auxiliary of the Air Force only when CAP is performing services for any federal agency or department (USAF is one such department.) 

3.  The National SAR Plan creates a series of RCCs or rescue coordination centers to facilitate providing federal agency and department support to state and local governments providing threshold criteria are met.  AFRCC coordinates inland SAR resource support for inland SAR missions.  AFRCC can offer a state the services of any federal agency or department. It can and often does provide US Army support as well as private agency support, local civilian K9 teams, etc. When it does so, the legal liability for the element is on the United States.  CAP is one such support element. When it is tasked, the tasking is by and on behalf of a federal agency or department thus Title 10 USC 9442(b) is triggered and CAP's status is designated to be an auxiliary of the Air Force under Title 10 USC 9442(a). Liability is on the United States. CAP's costs however come out of CAP's  annual appropriation.  These are Title 10 missions. 

3.  Title 36 USC 40302 (4) grants CAP the authority to provide emergency services support directly to state and local governments.  When it does so it is not an instrumentality of the United States nor is it an auxiliary of the Air Force. Why? Because it is not tasked by or on behalf of a federal agency or department.  It is tasked directly by the state.

4.  Thus any mission tasked by and on behalf of any federal agency or department will be a Title 10 mission.  All AFRCC, AFNSEP missions fall in this catagory.  Likewise when CAP is tasked to provide HLS support, or support for the Coast Guard, Coast Guard Auxiliary or the secret service, USAF or US Army would  be Title10 missions and CAP's status is the auxiliary of the Air Force.  As such, CAP is bound by those laws that apply to the USAF, i.e. PCA.

5.  Title 36 missions are missions which are tasked by agencies or departments that are not federal, for example state and local governments, private entities with which CAP has an MOU, etc.  In this status, CAP is not the auxiliary of the Air Force or is it an instrumentality of the United States. Liability is on CAP or the entity tasking CAP. 

6.  Sometimes a state makes a request to AFRCC which is denied.  CAP can still run the mission if the state will task CAP directly. If AFRCC would have accepted the request, CAP would have been on Title 10 status. When it did not and the state issued the tasking, CAP was operating in its Title 36 status. 

7.  In its Title 36 status, PCA does not apply because 10 USC 9442(a) specifically mandates that in those situations CAP is not an auxiliary of the AF.   However CAPR 900.3 Support to Law Enforcement does apply and somewhat limits what CAP can do. 

So you can see that it makes a heck of a difference which status CAP is operating under at any one time.  There are times when CAP's status will change. For example, CAP is operating under an AFRCC tasking in a SAR situation.  After the passage of time AFRCC may determine that "rescue" is no longer a reality and person searched for could not be live.  Remember, AFRCC operates under a search and "rescue" paradigm not a search and "recover".  CAP need not go home.  If the Wing has appropriate relations with the state, the state can issue a tasking under Title 36 and the mission can proceed under the different status. 

It so happens that the legal structure regarding CAP, Title10 and Title 36 in large measure mirrors the structure regarding the National Guard, Title 10 and Title 32.  We didn't make it up...Congress did. 


NICK CRITELLI

[RiverAux]

Nick, I fully understand the distinctions between corporate and AFAMs.  However, as stated before Title 10 authorizes both AFAMs and corporate missions and Title 36 authorizes both as well. 

If you want to call AFAMs Section 9442 missions and corporate missions Section 9443 missions I can live with that.  Both are authorized under Title 10. 

Frankly, Title 36 just says what the purpose of the corporation is and doesn't really distinguish when it is working for the AF and when it is not.  For example Title 36 Section 40302(4) says we're there to meet local and national emergencies.  It doesn't distinguish when a local emergency is being done as an AFAM or as a corporate mission.  Section 40302(5) says we're there to help the AF fulfill noncombat missions and programs.  That could include both AFAMs as well as regular CAP duties. 

[Nick Critelli]

River Aux

You've got it wrong. in statutory drafting  36 USC 40302(5) is called a switchback which refers back to the Title 10 missions.  Please don't call them corporate missions.  It causes an incredible amount of confusion within government.  Firstly, CAP does not work for corporations so there are no corporate missions.  To the extent that one would call CAP a corporation that creates confusion in itself because.  CAP is what is known as a  quasi governmental corporation like the FDIC.  This always gets confused with public and private corporations.   Public corporations are corporations whose stock is traded on an exchange, private or close corporations are not. 

Stick with the federal statute and you'll avoid a lot of misconceptions.  For example, when I was working our legislation with the attorney general, I was using the "corporate" terminology. He immediately went down the corporate vendor track which required bidding, and compliance with  a lot of internal regulations by the state's executive council.  As we worked through the draft it because apparent that we were on the wrong track. We were a governmental entity, albeit a corporation.  This eliminated all of those requirements and made the relationship extremely straight forward.

There is magic in words..especially when the words and terms have significant legal impact. 

CAP has a chronic and systemic problem.  It is living with a  pre October 2000 institutional memory and culture in a post October 2000 legal structue.  Six years have passed.  It's time we adapt.

[RiverAux]

Firstly, CAP does not work for corporations so there are no corporate missions.

1.  We ARE a corporation.  When we do non-AFAM missions we are flying for THE corporation known as CAP.
2.  CAP regulations call such flight corporate flights.   Thats the final word on it as far as I'm concerned.

I agree that our status is very confusing and the "corporate" terminology is far from ideal.  However, the artificial Title 10/36 distinction you propose is not only confusing, but meaningless.   

Another reason the Title 10/36 distinction is bad when dealing with the NG is that it isn't accurate.  To them bringing up that sort of thing implies the same state vs federal distinction they face in their world.  In the world of CAP everything that isn't an AFAM is a corporate activity.  This could include flying non-AFAMs for a state agency or the NG, but it also includes attending regular meetings, training, and quite a lot of our flying.  None of these have anything to do with state activities in the terms the NG understands them. 

Since the vast majority of our AFAMs are actually federal missions being done in support of local or state governments.  So, you can end up in a situation where CAP is working an AFAM in (so-called) Title 10 status for the NG (who are actually responding to the emergency in their Title 32 status).     

So, I understand what you're trying to do, but while CAP regulations continue to use the AFAM/corporate distinctions you do our members a disservice by introducing this Title 10/36 terminology which has no basis in the regs we're supposed to live by.  If you want to come up with a better term than "corporate" to describe them I'd be happy to support you.

[Nick Critelli]

You can call them any thing you want; CAP regulations  can call them anything it wants...I'm just telling you what the law says and how it all works. 

Like I tell my clients, you don't have to believe me or even follow my advice but ignorance isn't  bliss and always comes with a high pricetag.

[RiverAux]

The price that people that use your terminology will pay is confusion about their actual status within CAP and confusion amongst our customers who get the impression that we are anything other than a private corporation when we are not on AFAMs. 

If you want to call them Section 9442 or Section 9443 missions (both within Title 10), I can live with that.  Even though it doesn't jibe with CAP regulations it at least accurately describes the difference between AFAMs and non-AFAMs.

[Nick Critelli]

End of discussion.