80_FR_39207 80 FR 39077 - Manual for Courts-Martial; Publication of Supplementary Materials

80 FR 39077 - Manual for Courts-Martial; Publication of Supplementary Materials

DEPARTMENT OF DEFENSE
Office of the Secretary

Federal Register Volume 80, Issue 130 (July 8, 2015)

Page Range39077-39089
FR Document2015-16696

The JSC hereby publishes Supplementary Materials accompanying the MCM as amended by Executive Orders 13643, 13669, and 13696. The language of the Subsection or Subparagraph immediately preceding the new or amended Discussion has been inserted above each new or amended Discussion within this notice, and all new Analyses are located at the end of this notice. These changes have not been coordinated within the Department of Defense under DoD Directive 5500.1, ``Preparation, Processing and Coordinating Legislation, Executive Orders, Proclamations, Views Letters and Testimony,'' June 15, 2007, and do not constitute the official position of the Department of Defense, the Military Departments, or any other Government agency. These Supplementary Materials have been approved by the JSC and the General Counsel of the Department of Defense, and shall be applied in conjunction with the rule with which they are associated. The Discussions are effective insofar as the Rules they supplement are effective, but may not be applied earlier than the date of publication in the Federal Register.

Federal Register, Volume 80 Issue 130 (Wednesday, July 8, 2015)
[Federal Register Volume 80, Number 130 (Wednesday, July 8, 2015)]
[Notices]
[Pages 39077-39089]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-16696]


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DEPARTMENT OF DEFENSE

Office of the Secretary

[Docket ID: DoD-2015-OS-0067]


Manual for Courts-Martial; Publication of Supplementary Materials

AGENCY: Joint Service Committee on Military Justice (JSC), Department 
of Defense.

ACTION: Publication of Discussion and Analysis (Supplementary 
Materials) accompanying the Manual for Courts-Martial, United States 
(2012 ed.) (MCM).

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SUMMARY: The JSC hereby publishes Supplementary Materials accompanying 
the MCM as amended by Executive Orders 13643, 13669, and 13696. The 
language of the Subsection or Subparagraph immediately preceding the 
new or amended Discussion has been inserted above each new or amended 
Discussion within this notice, and all new Analyses are located at the 
end of this notice. These changes have not been coordinated within the 
Department of Defense under DoD Directive 5500.1, ``Preparation, 
Processing and Coordinating Legislation, Executive Orders, 
Proclamations, Views Letters and Testimony,'' June 15, 2007, and do not 
constitute the official position of the Department of Defense, the 
Military Departments, or any other Government agency. These 
Supplementary Materials have been approved by the JSC and the General 
Counsel of the Department of Defense, and shall be applied in 
conjunction with the rule with which they are associated. The 
Discussions are effective insofar as the Rules they supplement are 
effective, but may not be applied earlier than the date of publication 
in the Federal Register.

[[Page 39078]]


DATES: The Analysis is effective as of July 8, 2015.

FOR FURTHER INFORMATION CONTACT: Capt. Harlye S. Carlton, USMC, (703) 
963-9299 or [email protected]. The JSC Web site is located at: 
http://jsc.defense.gov.

SUPPLEMENTARY INFORMATION: 
    Public Comments: The JSC solicited public comments for these 
changes to the MCM via the Federal Register on October 3, 2014 (79 FR 
59938-59959, Docket ID: DoD-2014-OS-0140), held a public meeting at the 
Court of Appeals for the Armed Forces on December 2, 2014, and 
published the JSC response to public comments via the Federal Register 
on February 4, 2015 (80 FR 6057-6060, Docket ID: DoD-2014-OS-0140).
    The amendments to the Discussion and Analysis of the MCM are as 
follows:

Annex

    Section 1. Part II, Rules for Courts-Martial, is Amended as 
Follows:
    (a) The Discussion section following R.C.M. 201(a)(2) is amended to 
read as follows:
    (2) The code applies in all places.

Discussion

    ``Except insofar as required by the Constitution, the Code, or the 
Manual, such as jurisdiction over persons listed under Article 
2(a)(10), jurisdiction of courts-martial does not depend on where the 
offense was committed.''
    (b) A new Discussion section is added immediately after R.C.M. 
201(f)(2)(D) to read as follows:
    (D) Certain Offenses under Articles 120, 120b, and 125. 
Notwithstanding subsection (f)(2)(A), special courts-martial do not 
have jurisdiction over offenses under Article 120(a), 120(b), 120b(a), 
and 120b(b), forcible sodomy under Article 125, and attempts thereof 
under Article 80. Such offenses shall not be referred to a special 
court-martial.

Discussion

    ``Pursuant to the National Defense Authorization Act for Fiscal 
Year 2014, only a general court-martial has jurisdiction over 
penetrative sex offenses under subsections (a) and (b) of Article 120, 
subsections (a) and (b) of Article 120b, Article 125, and attempts to 
commit such penetrative sex offenses under Article 80.''
    (c) A new Discussion section is added immediately after R.C.M. 
305(i)(2)(A)(iv):
    (iv) Victim's right to be reasonably heard. A victim of an alleged 
offense committed by the prisoner has the right to reasonable, 
accurate, and timely notice of the 7-day review; the right to confer 
with the representative of the command and counsel for the government, 
if any, and the right to be reasonably heard during the review. 
However, the hearing may not be unduly delayed for this purpose. The 
right to be heard under this rule includes the right to be heard 
through counsel. The victim of an alleged offense shall be notified of 
these rights in accordance with regulations of the Secretary concerned.

Discussion

    ``Personal appearance by the victim is not required. A victim's 
right to be reasonably heard at a 7-day review may also be accomplished 
telephonically, by video teleconference, or by written statement. The 
right to be heard under this rule includes the right to be heard 
through counsel.''
    (d) A new Discussion section is added immediately after R.C.M. 
305(j)(1)(C):
    (C) The provisions of subsection (i)(1) or (2) of this rule have 
not been complied with and information presented to the military judge 
does not establish sufficient grounds for continued confinement under 
subsection (h)(2)(B) of this rule.

Discussion

    ``Upon a motion for release from pretrial confinement, a victim of 
an alleged offense committed by the prisoner has the right to 
reasonable, accurate, and timely notice of the motion and any hearing, 
the right to confer with counsel representing the government, and the 
right to be reasonably heard. Inability to reasonably afford a victim 
these rights shall not delay the proceedings. The right to be heard 
under this rule includes the right to be heard through counsel. See 
R.C.M. 906(b)(8).''
    (e) A new Discussion section is added immediately after R.C.M. 
305(n):
    (n) Notice to victim of escaped prisoner. A victim of an alleged 
offense committed by the prisoner for which the prisoner has been 
placed in pretrial confinement has the right to reasonable, accurate, 
and timely notice of the escape of the prisoner, unless such notice may 
endanger the safety of any person.

Discussion

    ``For purposes of this rule, the term ``victim of an alleged 
offense'' means a person who has suffered direct physical, emotional, 
or pecuniary harm as a result of the commission of an offense under the 
UCMJ.''
    (f) The Discussion section following R.C.M. 404(e) is amended to 
read as follows:
    (e) Unless otherwise prescribed by the Secretary concerned, direct 
a preliminary hearing under R.C.M. 405, and, if appropriate, forward 
the report of preliminary hearing with the charges to a superior 
commander for disposition.

Discussion

    ``A preliminary hearing should be directed when it appears that the 
charges are of such a serious nature that trial by general court-
martial may be warranted. See R.C.M. 405. If a preliminary hearing of 
the subject matter already has been conducted, see R.C.M. 405(b) and 
405(e)(2).''
    (g) A new Discussion section is added immediately after R.C.M. 
404A(d):
    (d) Protective order if privileged information is disclosed. If the 
government agrees to disclose to the accused information to which the 
protections afforded by Section V of Part III may apply, the convening 
authority, or other person designated by regulation of the Secretary 
concerned, may enter an appropriate protective order, in writing, to 
guard against the compromise of information disclosed to the accused. 
The terms of any such protective order may include prohibiting the 
disclosure of the information except as authorized by the authority 
issuing the protective order, as well as those terms specified by Mil. 
R. Evid. 505(g)(2)-(6) or 506(g)(2)-(5).

Discussion

    ``The purposes of this rule are to provide the accused with the 
documents used to make the determination to prefer charges and direct a 
preliminary hearing, and to allow the accused to prepare for the 
preliminary hearing. This rule is not intended to be a tool for 
discovery and does not impose the same discovery obligations found in 
R.C.M. 405 prior to amendments required by the National Defense 
Authorization Act for Fiscal Year 2014 or R.C.M. 701. Additional rules 
for disclosure of witnesses and other evidence in the preliminary 
hearing are provided in R.C.M. 405(g).''
    (h) Discussions are added throughout the new R.C.M. 405 as follows:
Rule 405. Preliminary Hearing
    (a) In general. Except as provided in subsection (k) of this rule, 
no charge or specification may be referred to a general court-martial 
for trial until completion of a preliminary hearing in substantial 
compliance with this rule. A preliminary hearing conducted under this 
rule is not intended to serve as a

[[Page 39079]]

means of discovery and will be limited to an examination of those 
issues necessary to determine whether there is probable cause to 
conclude that an offense or offenses have been committed and whether 
the accused committed it; to determine whether a court-martial would 
have jurisdiction over the offense(s) and the accused; to consider the 
form of the charge(s); and to recommend the disposition that should be 
made of the charge(s). Failure to comply with this rule shall have no 
effect on the disposition of the charge(s) if the charge(s) is not 
referred to a general court-martial.

Discussion

    ``The function of the preliminary hearing is to ascertain and 
impartially weigh the facts needed for the limited scope and purpose of 
the preliminary hearing. The preliminary hearing is not intended to 
perfect a case against the accused and is not intended to serve as a 
means of discovery or to provide a right of confrontation required at 
trial. Determinations and recommendations of the preliminary hearing 
officer are advisory.
    Failure to substantially comply with the requirements of Article 
32, which failure prejudices the accused, may result in delay in 
disposition of the case or disapproval of the proceedings. See R.C.M. 
905(b)(1) and 906(b)(3) concerning motions for appropriate relief 
relating to the preliminary hearing.
    The accused may waive the preliminary hearing. See subsection (k) 
of this rule. In such case, no preliminary hearing need be held. 
However, the convening authority authorized to direct the preliminary 
hearing may direct that it be conducted notwithstanding the waiver.''
    (b) Earlier preliminary hearing. If a preliminary hearing of the 
subject matter of an offense has been conducted before the accused is 
charged with an offense, and the accused was present at the preliminary 
hearing and afforded the rights to counsel, cross-examination, and 
presentation of evidence required by this rule, no further preliminary 
hearing is required.
    (c) Who may direct a preliminary hearing. Unless prohibited by 
regulations of the Secretary concerned, a preliminary hearing may be 
directed under this rule by any court-martial convening authority. That 
authority may also give procedural instructions not inconsistent with 
these rules.
    (d) Personnel.
    (1) Preliminary hearing officer. Whenever practicable, the 
convening authority directing a preliminary hearing under this rule 
shall detail an impartial judge advocate certified under Article 27(b), 
not the accuser, as a preliminary hearing officer, who shall conduct 
the preliminary hearing and make a report that addresses whether there 
is probable cause to believe that an offense or offenses have been 
committed and that the accused committed the offense(s); whether a 
court-martial would have jurisdiction over the offense(s) and the 
accused; the form of the charges(s); and a recommendation as to the 
disposition of the charge(s).
    When the appointment of a judge advocate as the preliminary hearing 
officer is not practicable, or in exceptional circumstances in which 
the interest of justice warrants, the convening authority directing the 
preliminary hearing may detail an impartial commissioned officer, who 
is not the accuser, as the preliminary hearing officer. If the 
preliminary hearing officer is not a judge advocate, an impartial judge 
advocate certified under Article 27(b) shall be available to provide 
legal advice to the preliminary hearing officer.
    When practicable, the preliminary hearing officer shall be equal or 
senior in grade to the military counsel detailed to represent the 
accused and the government at the preliminary hearing. The Secretary 
concerned may prescribe additional limitations on the appointment of 
preliminary hearing officers.
    The preliminary hearing officer shall not depart from an impartial 
role and become an advocate for either side. The preliminary hearing 
officer is disqualified to act later in the same case in any other 
capacity.

Discussion

    ``The preliminary hearing officer, if not a judge advocate, should 
be an officer in the grade of O-4 or higher. The preliminary hearing 
officer may seek legal advice concerning the preliminary hearing 
officer's responsibilities from an impartial source, but may not obtain 
such advice from counsel for any party or counsel for a victim.''
    (2) Counsel to represent the United States. A judge advocate, not 
the accuser, shall serve as counsel to represent the United States, and 
shall present evidence on behalf of the government relevant to the 
limited scope and purpose of the preliminary hearing as set forth in 
subsection (a) of this rule.
    (3) Defense counsel.
    (A) Detailed counsel. Except as provided in subsection (d)(3)(B) of 
this rule, military counsel certified in accordance with Article 27(b) 
shall be detailed to represent the accused.
    (B) Individual military counsel. The accused may request to be 
represented by individual military counsel. Such requests shall be 
acted on in accordance with R.C.M. 506(b).
    (C) Civilian counsel. The accused may be represented by civilian 
counsel at no expense to the United States. Upon request, the accused 
is entitled to a reasonable time to obtain civilian counsel and to have 
such counsel present for the preliminary hearing. However, the 
preliminary hearing shall not be unduly delayed for this purpose. 
Representation by civilian counsel shall not limit the rights to 
military counsel under subsections (d)(3)(A) and (B) of this rule.
    (4) Others. The convening authority who directed the preliminary 
hearing may also, as a matter of discretion, detail or request an 
appropriate authority to detail:
    (A) A reporter; and
    (B) An interpreter.
    (e) Scope of preliminary hearing.
    (1) The preliminary hearing officer shall limit the inquiry to the 
examination of evidence, including witnesses, necessary to:
    (A) Determine whether there is probable cause to believe an offense 
or offenses have been committed and whether the accused committed it;
    (B) Determine whether a court-martial would have jurisdiction over 
the offense(s) and the accused;
    (C) Consider whether the form of the charge(s) is proper; and
    (D) Make a recommendation as to the disposition of the charge(s).
    (2) If evidence adduced during the preliminary hearing indicates 
that the accused committed any uncharged offense(s), the preliminary 
hearing officer may examine evidence and hear witnesses relating to the 
subject matter of such offense(s) and make the findings and 
recommendations enumerated in subsection (e)(1) of this rule regarding 
such offense(s) without the accused first having been charged with the 
offense. The accused's rights under subsection (f)(2) of this rule, 
and, where it would not cause undue delay to the proceedings, 
subsection (g) of this rule, are the same with regard to both charged 
and uncharged offenses. When considering uncharged offenses identified 
during the preliminary hearing, the preliminary hearing officer shall 
inform the accused of the general nature of each uncharged offense 
considered, and otherwise afford the accused the same opportunity for 
representation, cross examination, and presentation afforded during the

[[Page 39080]]

preliminary hearing of any charged offense.

Discussion

    ``Except as set forth in subsection (h) of this rule, the Mil. R. 
Evid. do not apply at a preliminary hearing. Except as prohibited 
elsewhere in this rule, a preliminary hearing officer may consider 
evidence, including hearsay, which would not be admissible at trial.''
    (f) Rights of the accused.
    (1) Prior to any preliminary hearing under this rule the accused 
shall have the right to:
    (A) Notice of any witnesses that the government intends to call at 
the preliminary hearing and copies of or access to any written or 
recorded statements made by those witnesses that relate to the subject 
matter of any charged offense;
    (i) For purposes of this rule, a ``written statement'' is one that 
is signed or otherwise adopted or approved by the witness that is 
within the possession or control of counsel for the government; and
    (ii) For purposes of this rule, a ``recorded statement'' is an oral 
statement made by the witness that is recorded contemporaneously with 
the making of the oral statement and contained in a digital or other 
recording or a transcription thereof that is within the possession or 
control of counsel for the government.
    (B) Notice of, and reasonable access to, any other evidence that 
the government intends to offer at the preliminary hearing; and
    (C) Notice of, and reasonable access to, evidence that is within 
the possession or control of counsel for the government that negates or 
reduces the degree of guilt of the accused for an offense charged.
    (2) At any preliminary hearing under this rule the accused shall 
have the right to:
    (A) Be advised of the charges under consideration;
    (B) Be represented by counsel;
    (C) Be informed of the purpose of the preliminary hearing;
    (D) Be informed of the right against self-incrimination under 
Article 31;
    (E) Except in the circumstances described in R.C.M. 804(c)(2), be 
present throughout the taking of evidence;
    (F) Cross-examine witnesses on matters relevant to the limited 
scope and purpose of the preliminary hearing;
    (G) Present matters in defense and mitigation relevant to the 
limited scope and purpose of the preliminary hearing; and

Discussion

    ``Unsworn statements by the accused, unlike those made under R.C.M. 
1001(c)(2), shall be limited to matters in defense and mitigation.''
    (H) Make a statement relevant to the limited scope and purpose of 
the preliminary hearing.
    (g) Production of Witnesses and Other Evidence.
    (1) Military Witnesses.
    (A) Prior to the preliminary hearing, defense counsel shall provide 
to counsel for the government the names of proposed military witnesses 
whom the accused requests that the government produce to testify at the 
preliminary hearing, and the requested form of the testimony, in 
accordance with the timeline established by the preliminary hearing 
officer. Counsel for the government shall respond that either: (1) The 
government agrees that the witness's testimony is relevant, not 
cumulative, and necessary for the limited scope and purpose of the 
preliminary hearing and will seek to secure the witness's testimony for 
the hearing; or (2) the government objects to the proposed defense 
witness on the grounds that the testimony would be irrelevant, 
cumulative, or unnecessary based on the limited scope and purpose of 
the preliminary hearing.
    (B) If the government objects to the proposed defense witness, 
defense counsel may request that the preliminary hearing officer 
determine whether the witness is relevant, not cumulative, and 
necessary based on the limited scope and purpose of the preliminary 
hearing.
    (C) If the government does not object to the proposed defense 
military witness or the preliminary hearing officer determines that the 
military witness is relevant, not cumulative, and necessary, counsel 
for the government shall request that the commanding officer of the 
proposed military witness make that person available to provide 
testimony. The commanding officer shall determine whether the 
individual is available based on operational necessity or mission 
requirements, except that a victim, as defined in this rule, who 
declines to testify shall be deemed to be not available. If the 
commanding officer determines that the military witness is available, 
counsel for the government shall make arrangements for that 
individual's testimony. The commanding officer's determination of 
unavailability due to operational necessity or mission requirements is 
final. If there is a dispute among the parties, the military witness's 
commanding officer shall determine whether the witness testifies in 
person, by video teleconference, by telephone, or by similar means of 
remote testimony.

Discussion

    ``A commanding officer's determination of whether an individual is 
available, as well as the means by which the individual is available, 
is a balancing test. The more important the testimony of the witness, 
the greater the difficulty, expense, delay, or effect on military 
operations must be to deny production of the witness. Based on 
operational necessity and mission requirements, the witness's 
commanding officer may authorize the witness to testify by video 
teleconference, telephone, or similar means of remote testimony. 
Factors to be considered in making this determination include the costs 
of producing the witness; the timing of the request for production of 
the witness; the potential delay in the proceeding that may be caused 
by the production of the witness; and the likelihood of significant 
interference with operational deployment, mission accomplishment, or 
essential training.''
    (2) Civilian Witnesses.
    (A) Defense counsel shall provide to counsel for the government the 
names of proposed civilian witnesses whom the accused requests that the 
government produce to testify at the preliminary hearing, and the 
requested form of the testimony, in accordance with the timeline 
established by the preliminary hearing officer. Counsel for the 
government shall respond that either: (1) The government agrees that 
the witness's testimony is relevant, not cumulative, and necessary for 
the limited scope and purpose of the preliminary hearing and will seek 
to secure the witness's testimony for the hearing; or (2) the 
government objects to the proposed defense witness on the grounds that 
the testimony would be irrelevant, cumulative, or unnecessary based on 
the limited scope and purpose of the preliminary hearing.
    (B) If the government objects to the proposed defense witness, 
defense counsel may request that the preliminary hearing officer 
determine whether the witness is relevant, not cumulative, and 
necessary based on the limited scope and purpose of the preliminary 
hearing.
    (C) If the government does not object to the proposed civilian 
witness or the preliminary hearing officer determines that the civilian 
witness's testimony is relevant, not cumulative, and necessary, counsel 
for the government shall invite the civilian witness to provide

[[Page 39081]]

testimony and, if the individual agrees, shall make arrangements for 
that witness's testimony. If expense to the government is to be 
incurred, the convening authority who directed the preliminary hearing, 
or the convening authority's delegate, shall determine whether the 
witness testifies in person, by video teleconference, by telephone, or 
by similar means of remote testimony.

Discussion

    ``Factors to be considered in making this determination include the 
costs of producing the witness; the timing of the request for 
production of the witness; the potential delay in the proceeding that 
may be caused by the production of the witness; the willingness of the 
witness to testify in person; and, for child witnesses, the traumatic 
effect of providing in-person testimony. Civilian witnesses may not be 
compelled to provide testimony at a preliminary hearing. Civilian 
witnesses may be paid for travel and associated expenses to testify at 
a preliminary hearing. See Department of Defense Joint Travel 
Regulations.''
    (3) Other evidence.
    (A) Evidence under the control of the government.
    (i) Prior to the preliminary hearing, defense counsel shall provide 
to counsel for the government a list of evidence under the control of 
the government the accused requests the government produce to the 
defense for introduction at the preliminary hearing. The preliminary 
hearing officer may set a deadline by which defense requests must be 
received. Counsel for the government shall respond that either: (1) The 
government agrees that the evidence is relevant, not cumulative, and 
necessary for the limited scope and purpose of the preliminary hearing 
and shall make reasonable efforts to obtain the evidence; or (2) the 
government objects to production of the evidence on the grounds that 
the evidence would be irrelevant, cumulative, or unnecessary based on 
the limited scope and purpose of the preliminary hearing.
    (ii) If the government objects to production of the evidence, 
defense counsel may request that the preliminary hearing officer 
determine whether the evidence should be produced. The preliminary 
hearing officer shall determine whether the evidence is relevant, not 
cumulative, and necessary based on the limited scope and purpose of the 
hearing. If the preliminary hearing officer determines that the 
evidence shall be produced, counsel for the government shall make 
reasonable efforts to obtain the evidence.
    (B) Evidence not under the control of the government.
    (i) Evidence not under the control of the government may be 
obtained through noncompulsory means or by subpoenas duces tecum issued 
by counsel for the government in accordance with the process 
established by R.C.M. 703.
    (ii) Prior to the preliminary hearing, defense counsel shall 
provide to counsel for the government a list of evidence not under the 
control of the government that the accused requests the government 
obtain. The preliminary hearing officer may set a deadline by which 
defense requests must be received. Counsel for the government shall 
respond that either: (1) the government agrees that the evidence is 
relevant, not cumulative, and necessary for the limited scope and 
purpose of the preliminary hearing and shall issue subpoenas duces 
tecum for the evidence; or (2) the government objects to production of 
the evidence on the grounds that the evidence would be irrelevant, 
cumulative, or unnecessary based on the limited scope and purpose of 
the preliminary hearing.
    (iii) If the government objects to production of the evidence, 
defense counsel may request that the preliminary hearing officer 
determine whether the evidence should be produced. If the preliminary 
hearing officer determines that the evidence is relevant, not 
cumulative, and necessary based on the limited scope and purpose of the 
preliminary hearing and that the issuance of subpoenas duces tecum 
would not cause undue delay to the preliminary hearing, the preliminary 
hearing officer shall direct counsel for the government to issue 
subpoenas duces tecum for the defense-requested evidence. The 
preliminary hearing officer shall note in the report of preliminary 
hearing any failure on the part of counsel for the government to issue 
subpoenas duces tecum directed by the preliminary hearing officer.

Discussion

    ``A subpoena duces tecum to produce books, papers, documents, data, 
electronically stored information, or other objects for a preliminary 
hearing pursuant to Article 32 may be issued by counsel for the 
government. The preliminary hearing officer has no authority to issue a 
subpoena duces tecum. However, the preliminary hearing officer may 
direct counsel for the government to issue a subpoena duces tecum for 
defense-requested evidence.''
    (h) Military Rules of Evidence. The Military Rules of Evidence do 
not apply in preliminary hearings under this rule except as follows:
    (1) Mil. R. Evid. 301-303 and 305 shall apply in their entirety.
    (2) Mil. R. Evid. 412 shall apply in any case that includes a 
charge defined as a sexual offense in Mil. R. Evid. 412(d), except that 
Mil. R. Evid. 412(b)(1)(C) shall not apply.
    (3) Mil. R. Evid., Section V, Privileges, shall apply, except that 
Mil. R. Evid. 505(f)-(h) and (j); 506(f)-(h), (j), (k), and (m); and 
514(d)(6) shall not apply.
    (4) In applying these rules to a preliminary hearing, the term 
``military judge,'' as used in these rules, shall mean the preliminary 
hearing officer, who shall assume the military judge's authority to 
exclude evidence from the preliminary hearing, and who shall, in 
discharging this duty, follow the procedures set forth in the rules 
cited in subsections (h)(1)-3) of this rule. However, the preliminary 
hearing officer is not authorized to order production of communications 
covered by Mil. R. Evid. 513 and 514.

Discussion

    ``The prohibition against ordering production of evidence does not 
preclude a preliminary hearing officer from considering evidence 
offered by the parties under Mil. R. Evid. 513 or 514.''
    (5) Failure to meet the procedural requirements of the applicable 
rules of evidence shall result in exclusion of that evidence from the 
preliminary hearing, unless good cause is shown.

Discussion

    ``Before considering evidence offered under subsection (h)(2), the 
preliminary hearing officer must determine that the evidence offered is 
relevant for the limited scope and purpose of the hearing, that the 
evidence is proper under subsection (h)(2), and that the probative 
value of such evidence outweighs the danger of unfair prejudice to the 
alleged victim's privacy. The preliminary hearing officer shall set 
forth any limitations on the scope of such evidence. Evidence offered 
under subsection (h)(2) must be protected pursuant to the Privacy Act 
of 1974, 5 U.S.C. 552a. Although Mil. R. Evid. 412(b)(1)(C) allows 
admission of evidence of the victim's sexual behavior or predisposition 
at trial when it is constitutionally required, there is no 
constitutional requirement at an Article 32 hearing. There is likewise 
no constitutional requirement for a preliminary hearing officer to 
consider evidence under Mil. R. Evid. 514(d)(6)

[[Page 39082]]

at an Article 32 hearing. Evidence deemed admissible by the preliminary 
hearing officer should be made a part of the report of preliminary 
hearing. See subsection (j)(2)(C), of this Rule. Evidence not 
considered, and the testimony taken during a closed hearing, should not 
be included in the report of preliminary hearing but should be 
appropriately safeguarded or sealed. The preliminary hearing officer 
and counsel representing the government are responsible for careful 
handling of any such evidence to prevent unauthorized viewing or 
disclosure.''
    (i) Procedure.
    (1) Generally. The preliminary hearing shall begin with the 
preliminary hearing officer informing the accused of the accused's 
rights under subsection (f) of this rule. Counsel for the government 
will then present evidence. Upon the conclusion of counsel for the 
government's presentation of evidence, defense counsel may present 
matters in defense and mitigation consistent with subsection (f) of 
this rule. For the purposes of this rule, ``matters in mitigation'' are 
defined as matters that may serve to explain the circumstances 
surrounding a charged offense. Both counsel for the government and 
defense shall be afforded an opportunity to cross-examine adverse 
witnesses. The preliminary hearing officer may also question witnesses 
called by the parties. If the preliminary hearing officer determines 
that additional evidence is necessary to satisfy the requirements of 
subsection (e) of this rule, the preliminary hearing officer may 
provide the parties an opportunity to present additional testimony or 
evidence relevant to the limited scope and purpose of the preliminary 
hearing. The preliminary hearing officer shall not consider evidence 
not presented at the preliminary hearing. The preliminary hearing 
officer shall not call witnesses sua sponte.

Discussion

    ``A preliminary hearing officer may only consider evidence within 
the limited purpose of the preliminary hearing and shall ensure that 
the scope of the hearing is limited to that purpose. When the 
preliminary hearing officer finds that evidence offered by either party 
is not within the scope of the hearing, he shall inform the parties and 
halt the presentation of that information.''
    (2) Notice to and presence of the victim(s).
    (A) The victim(s) of an offense under the UCMJ has the right to 
reasonable, accurate, and timely notice of a preliminary hearing 
relating to the alleged offense and the reasonable right to confer with 
counsel for the government. For the purposes of this rule, a ``victim'' 
is a person who is alleged to have suffered a direct physical, 
emotional, or pecuniary harm as a result of the matters set forth in a 
charge or specification under consideration and is named in one of the 
specifications under consideration.
    (B) A victim of an offense under consideration at the preliminary 
hearing is not required to testify at the preliminary hearing.
    (C) A victim has the right not to be excluded from any portion of a 
preliminary hearing related to the alleged offense, unless the 
preliminary hearing officer, after receiving clear and convincing 
evidence, determines the testimony by the victim would be materially 
altered if the victim heard other testimony at the proceeding.
    (D) A victim shall be excluded if a privilege set forth in Mil. R. 
Evid. 505 or 506 is invoked or if evidence is offered under Mil. R. 
Evid. 412, 513, or 514, for charges other than those in which the 
victim is named.
    (3) Presentation of evidence.
    (A) Testimony. Witness testimony may be provided in person, by 
video teleconference, by telephone, or by similar means of remote 
testimony. All testimony shall be taken under oath, except that the 
accused may make an unsworn statement. The preliminary hearing officer 
shall only consider testimony that is relevant to the limited scope and 
purpose of the preliminary hearing.

Discussion

    ``The following oath may be given to witnesses:
    ``Do you (swear) (affirm) that the evidence you give shall be the 
truth, the whole truth, and nothing but the truth (so help you God)?''
    The preliminary hearing officer is required to include in the 
report of the preliminary hearing, at a minimum, a summary of the 
substance of all testimony. See subsection (j)(2)(B) of this rule.
    All preliminary hearing officer notes of testimony and recordings 
of testimony should be preserved until the end of trial.
    If during the preliminary hearing any witness subject to the Code 
is suspected of an offense under the Code, the preliminary hearing 
officer should comply with the warning requirements of Mil. R. Evid. 
305(c), (d), and, if necessary, (e).
    Bearing in mind that counsel are responsible for preparing and 
presenting their cases, the preliminary hearing officer may ask a 
witness questions relevant to the limited scope and purpose of the 
hearing. When questioning a witness, the preliminary hearing officer 
may not depart from an impartial role and become an advocate for either 
side.''
    (B) Other evidence. If relevant to the limited scope and purpose of 
the preliminary hearing, and not cumulative, a preliminary hearing 
officer may consider other evidence, in addition to or in lieu of 
witness testimony, including statements, tangible evidence, or 
reproductions thereof, offered by either side, that the preliminary 
hearing officer determines is reliable. This other evidence need not be 
sworn.
    (4) Access by spectators. Preliminary hearings are public 
proceedings and should remain open to the public whenever possible. The 
convening authority who directed the preliminary hearing or the 
preliminary hearing officer may restrict or foreclose access by 
spectators to all or part of the proceedings if an overriding interest 
exists that outweighs the value of an open preliminary hearing. 
Examples of overriding interests may include: preventing psychological 
harm or trauma to a child witness or an alleged victim of a sexual 
crime, protecting the safety or privacy of a witness or alleged victim, 
protecting classified material, and receiving evidence where a witness 
is incapable of testifying in an open setting. Any closure must be 
narrowly tailored to achieve the overriding interest that justified the 
closure. Convening authorities or preliminary hearing officers must 
conclude that no lesser methods short of closing the preliminary 
hearing can be used to protect the overriding interest in the case. 
Convening authorities or preliminary hearing officers must conduct a 
case-by-case, witness-by-witness, circumstance-by-circumstance analysis 
of whether closure is necessary. If a convening authority or 
preliminary hearing officer believes closing the preliminary hearing is 
necessary, the convening authority or preliminary hearing officer must 
make specific findings of fact in writing that support the closure. The 
written findings of fact must be included in the report of preliminary 
hearing.
    (5) Presence of accused. The further progress of the taking of 
evidence shall not be prevented and the accused shall be considered to 
have waived the right to be present whenever the accused:
    (A) After being notified of the time and place of the proceeding is 
voluntarily absent; or

[[Page 39083]]

    (B) After being warned by the preliminary hearing officer that 
disruptive conduct will cause removal from the proceeding, persists in 
conduct that is such as to justify exclusion from the proceeding.
    (6) Recording of the preliminary hearing. Counsel for the 
government shall ensure that the preliminary hearing is recorded by a 
suitable recording device. A victim, as defined by subsection (i)(2)(A) 
of this rule, may request access to, or a copy of, the recording of the 
proceedings. Upon request, counsel for the government shall provide the 
requested access to, or a copy of, the recording to the victim not 
later than a reasonable time following dismissal of the charges, unless 
charges are dismissed for the purpose of re-referral, or court-martial 
adjournment. A victim is not entitled to classified information or 
access to or a copy of a recording of closed sessions that the victim 
did not have the right to attend under subsections (i)(2)(C) or 
(i)(2)(D) of this rule.

Discussion

    ``Counsel for the government shall provide victims with access to, 
or a copy of, the recording of the proceedings in accordance with such 
regulations as the Secretary concerned may prescribe.''
    (7) Objections. Any objection alleging a failure to comply with 
this rule shall be made to the convening authority via the preliminary 
hearing officer.
    (8) Sealed exhibits and proceedings. The preliminary hearing 
officer has the authority to order exhibits, proceedings, or other 
matters sealed as described in R.C.M. 1103A.
    (j) Report of preliminary hearing.
    (1) In general. The preliminary hearing officer shall make a timely 
written report of the preliminary hearing to the convening authority 
who directed the preliminary hearing.

Discussion

    ``If practicable, the charges and the report of preliminary hearing 
should be forwarded to the general court-martial convening authority 
within 8 days after an accused is ordered into arrest or confinement. 
See Article 33. ``
    (2) Contents. The report of preliminary hearing shall include:
    (A) A statement of names and organizations or addresses of defense 
counsel and whether defense counsel was present throughout the taking 
of evidence, or, if not present, the reason why;
    (B) The substance of the testimony taken on both sides;
    (C) Any other statements, documents, or matters considered by the 
preliminary hearing officer, or recitals of the substance or nature of 
such evidence;
    (D) A statement that an essential witness may not be available for 
trial;
    (E) An explanation of any delays in the preliminary hearing;
    (F) A notation if counsel for the government failed to issue a 
subpoena duces tecum that was directed by the preliminary hearing 
officer;
    (G) The preliminary hearing officer's determination as to whether 
there is probable cause to believe the offense(s) listed on the charge 
sheet or otherwise considered at the preliminary hearing occurred;
    (H) The preliminary hearing officer's determination as to whether 
there is probable cause to believe the accused committed the offense(s) 
listed on the charge sheet or otherwise considered at the preliminary 
hearing;
    (I) The preliminary hearing officer's determination as to whether a 
court-martial has jurisdiction over the offense(s) and the accused;
    (J) The preliminary hearing officer's determination as to whether 
the charge(s) and specification(s) are in proper form; and
    (K) The preliminary hearing officer's recommendations regarding 
disposition of the charge(s).

Discussion

    ``The preliminary hearing officer may include any additional 
matters useful to the convening authority in determining disposition. 
The preliminary hearing officer may recommend that the charges and 
specifications be amended or that additional charges be preferred. See 
R.C.M. 306 and 401 concerning other possible dispositions.''
    (3) Sealed exhibits and proceedings. If the report of preliminary 
hearing contains exhibits, proceedings, or other matters ordered sealed 
by the preliminary hearing officer in accordance with R.C.M. 1103A, 
counsel for the government shall cause such materials to be sealed so 
as to prevent unauthorized viewing or disclosure.
    (4) Distribution of the report. The preliminary hearing officer 
shall cause the report to be delivered to the convening authority who 
directed the preliminary hearing. That convening authority shall 
promptly cause a copy of the report to be delivered to each accused.
    (5) Objections. Any objection to the report shall be made to the 
convening authority who directed the preliminary hearing, via the 
preliminary hearing officer. Upon receipt of the report, the accused 
has 5 days to submit objections to the preliminary hearing officer. The 
preliminary hearing officer will forward the objections to the 
convening authority as soon as practicable. This subsection does not 
prohibit a convening authority from referring the charge(s) or taking 
other action within the 5-day period.
    (k) Waiver. The accused may waive a preliminary hearing under this 
rule. However, the convening authority authorized to direct the 
preliminary hearing may direct that it be conducted notwithstanding the 
waiver. Failure to make a timely objection under this rule, including 
an objection to the report, shall constitute waiver of the objection. 
Relief from the waiver may be granted by the convening authority who 
directed the preliminary hearing, a superior convening authority, or 
the military judge, as appropriate, for good cause shown.

Discussion

    ``See also R.C.M. 905(b)(1); 906(b)(3).
    The convening authority who receives an objection may direct that 
the preliminary hearing be reopened or take other action, as 
appropriate.''
    (i) A new Discussion section is added immediately after R.C.M. 
601(g):
    (g) Parallel convening authorities. If it is impracticable for the 
original convening authority to continue exercising authority over the 
charges, the convening authority may cause the charges, even if 
referred, to be transmitted to a parallel convening authority. This 
transmittal must be in writing and in accordance with such regulations 
as the Secretary concerned may prescribe. Subsequent actions taken by 
the parallel convening authority are within the sole discretion of that 
convening authority.''

Discussion

    ``Parallel convening authorities are those convening authorities 
that possess the same court-martial jurisdiction authority. Examples of 
permissible transmittal of charges under this rule include the 
transmittal from a general court-martial convening authority to another 
general court-martial convening authority, or from one special court-
martial convening authority to another special court-martial convening 
authority. It would be impracticable for an original convening 
authority to continue exercising authority over the charges, for 
example, when a command is being decommissioned or inactivated, or when 
deploying or redeploying and the accused is remaining behind. If 
charges have been referred, there is no requirement that the charges be

[[Page 39084]]

withdrawn or dismissed prior to transfer. See R.C.M. 604. In the event 
that the case has been referred, the receiving convening authority may 
adopt the original court-martial convening order, including the court-
martial panel selected to hear the case as indicated in that convening 
order. When charges are transmitted under this rule, no recommendation 
as to disposition may be made.''
    (j) The first sentence of the third paragraph of the Discussion 
section immediately after R.C.M. 702(a) is deleted.
    (k) The Discussion section immediately following R.C.M. 
702(c)(3)(A) is deleted.
    (l) New Discussions sections are added throughout R.C.M. 801(a)(6) 
as follows:
    (6) In the case of a victim of an offense under the UCMJ who is 
under 18 years of age and not a member of the armed forces, or who is 
incompetent, incapacitated, or deceased, designate in writing a family 
member, a representative of the estate of the victim, or another 
suitable individual to assume the victim's rights under the UCMJ.
    (A) For the purposes of this rule, the individual is designated for 
the sole purpose of assuming the legal rights of the victim as they 
pertain to the victim's status as a victim of any offense(s) properly 
before the court.

Discussion

    ``The rights that a designee may exercise on behalf of a victim 
include the right to receive notice of public hearings in the case; the 
right to be reasonably heard at such hearings, if permitted by law; and 
the right to confer with counsel representing the government at such 
hearings. The designee may also be the custodial guardian of the child.
    When determining whom to appoint under this rule, the military 
judge may consider the following: the age and maturity, relationship to 
the victim, and physical proximity of any proposed designee; the costs 
incurred in effecting the appointment; the willingness of the proposed 
designee to serve in such a role; the previous appointment of a 
guardian by another court of competent jurisdiction; the preference of 
the victim; any potential delay in any proceeding that may be caused by 
a specific appointment; and any other relevant information.''
    (B) Procedure to determine appointment of designee.
    (i) As soon as practicable, trial counsel shall notify the military 
judge, counsel for the accused, and the victim(s) of any offense(s) 
properly before the court when there is an apparent requirement to 
appoint a designee under this rule.

Discussion

    ``In the event a case involves multiple victims who are entitled to 
notice under this rule, each victim is only entitled to notice relating 
to his or her own designated representative.''
    (ii) The military judge will determine if the appointment of a 
designee is required under this rule.
    (iii) At the discretion of the military judge, victim(s), trial 
counsel, and the accused may be given the opportunity to recommend to 
the military judge individual(s) for appointment.
    (iv) The military judge is not required to hold a hearing before 
determining whether a designation is required or making such an 
appointment under this rule.
    (v) If the military judge determines a hearing pursuant to Article 
39(a), UCMJ, is necessary, the following shall be notified of the 
hearing and afforded the right to be present at the hearing: trial 
counsel, accused, and the victim(s).
    (vi) The individual designated shall not be the accused.
    (C) At any time after appointment, a designee shall be excused upon 
request by the designee or a finding of good cause by the military 
judge.
    (D) If the individual appointed to assume the victim's rights is 
excused, the military judge shall appoint a successor consistent with 
this rule.

Discussion

    ``The term ``victim of an offense under the UCMJ'' means a person 
who has suffered direct physical, emotional, or pecuniary harm as a 
result of the commission of an offense under the UCMJ. ``Good Cause'' 
means adequate or reasonable grounds to believe that the individual 
appointed to assume the victim's rights is not acting or does not 
intend to act in the best interest of the victim.''
    (m) The Discussion section following R.C.M. 806(b)(1) is amended to 
read as follows:
    (b) Control of spectators and closure.
    (1) Control of spectators. In order to maintain the dignity and 
decorum of the proceedings or for other good cause, the military judge 
may reasonably limit the number of spectators in, and the means of 
access to, the courtroom, and exclude specific persons from the 
courtroom. When excluding specific persons, the military judge must 
make findings on the record establishing the reason for the exclusion, 
the basis for the military judge's belief that exclusion is necessary, 
and that the exclusion is as narrowly tailored as possible.

Discussion

    ``The military judge must ensure that the dignity and decorum of 
the proceedings are maintained and that the other rights and interests 
of the parties and society are protected. Public access to a session 
may be limited, specific persons may be excluded from the courtroom, 
and, under unusual circumstances, a session may be closed.
    Exclusion of specific persons, if unreasonable under the 
circumstances, may violate the accused's right to a public trial, even 
though other spectators remain. Whenever specific persons or some 
members of the public are excluded, exclusion must be limited in time 
and scope to the minimum extent necessary to achieve the purpose for 
which it is ordered. Prevention of over-crowding or noise may justify 
limiting access to the courtroom. Disruptive or distracting appearance 
or conduct may justify excluding specific persons. Specific persons may 
be excluded when necessary to protect witnesses from harm or 
intimidation. Access may be reduced when no other means is available to 
relieve a witness' inability to testify due to embarrassment or extreme 
nervousness. Witnesses will ordinarily be excluded from the courtroom 
so that they cannot hear the testimony of other witnesses. See Mil. R. 
Evid. 615.
    For purposes of this rule, the term ``victim of an alleged 
offense'' means a person who has suffered direct physical, emotional, 
or pecuniary harm as a result of the commission of an offense under the 
UCMJ.''
    (n) The Discussion section following R.C.M. 807(b)(1)(B) is amended 
to read as follows:
    (B) Witnesses. Each witness before a court-martial shall be 
examined on oath.

Discussion

    ``See R.C.M. 307 concerning the requirement for an oath in 
preferral of charges. See R.C.M. 405 and 702 concerning the 
requirements for an oath in Article 32 preliminary hearings and 
depositions.
    An accused making an unsworn statement is not a ``witness.'' See 
R.C.M. 1001(c)(2)(C).
    A victim of an offense for which the accused has been found guilty 
is not a ``witness'' when making an unsworn statement during the 
presentencing phase of a court-martial. See R.C.M. 1001A.''
    (o) The Discussion section following R.C.M. 906(b)(9) is amended to 
read as follows:

[[Page 39085]]

    (9) Severance of multiple accused, if it appears that an accused or 
the Government is prejudiced by a joint or common trial. In a common 
trial, a severance shall be granted whenever any accused, other than 
the moving accused, faces charges unrelated to those charged against 
the moving accused.

Discussion

    ``A motion for severance is a request that one or more accused 
against whom charges have been referred to a joint or common trial be 
tried separately. Such a request should be granted if good cause is 
shown. For example, a severance may be appropriate when: the moving 
party wishes to use the testimony of one or more of the coaccused or 
the spouse of a coaccused; a defense of a coaccused is antagonistic to 
the moving party; or evidence as to any other accused will improperly 
prejudice the moving accused.
    If a severance is granted by the military judge, the military judge 
will decide which accused will be tried first. See R.C.M. 801(a)(1). In 
the case of joint charges, the military judge will direct an 
appropriate amendment of the charges and specifications.
    See also R.C.M. 307(c)(5); 601(e)(3); 604; 812.''
    (p) A new Discussion section is added immediately after R.C.M. 
1001(g):
    (g) Argument. After introduction of matters relating to sentence 
under this rule, counsel for the prosecution and defense may argue for 
an appropriate sentence. Trial counsel may not in argument purport to 
speak for the convening authority or any higher authority, or refer to 
the views of such authorities or any policy directive relative to 
punishment or to any punishment or quantum of punishment greater than 
that court-martial may adjudge. Trial counsel may, however, recommend a 
specific lawful sentence and may also refer to generally accepted 
sentencing philosophies, including rehabilitation of the accused, 
general deterrence, specific deterrence of misconduct by the accused, 
and social retribution. Failure to object to improper argument before 
the military judge begins to instruct the members on sentencing shall 
constitute waiver of the objection.

Discussion

    ``A victim, victims' counsel, or designee has no right to present 
argument under this rule.''
    (q) Discussions are inserted throughout R.C.M. 1001A(e)(1) as 
follows:
Rule 1001A. Crime victims and Presentencing
    (a) In general. A crime victim of an offense of which the accused 
has been found guilty has the right to be reasonably heard at a 
sentencing hearing relating to that offense. A victim under this rule 
is not considered a witness for purposes of Article 42(b). Trial 
counsel shall ensure the victim is aware of the opportunity to exercise 
that right. If the victim exercises the right to be reasonably heard, 
the victim shall be called by the court-martial. This right is 
independent of whether the victim testified during findings or is 
called to testify under R.C.M. 1001.
    (b) Definitions.
    (1) Crime victim. For purposes of this rule, a ``crime victim'' is 
an individual who has suffered direct physical, emotional, or pecuniary 
harm as a result of the commission of an offense of which the accused 
was found guilty.
    (2) Victim Impact. For the purposes of this rule, ``victim impact'' 
includes any financial, social, psychological, or medical impact on the 
victim directly relating to or arising from the offense of which the 
accused has been found guilty.
    (3) Mitigation. For the purposes of this rule, ``mitigation'' 
includes a matter to lessen the punishment to be adjudged by the court-
martial or to furnish grounds for a recommendation of clemency.
    (4) Right to be reasonably heard.
    (A) Capital cases. In capital cases, for purposes of this rule, the 
``right to be reasonably heard'' means the right to make a sworn 
statement.
    (B) Non-capital cases. In non-capital cases, for purposes of this 
rule, the ``right to be reasonably heard'' means the right to make a 
sworn or unsworn statement.
    (c) Content of statement. The content of statements made under 
subsections (d) and (e) of this rule may include victim impact or 
matters in mitigation.
    (d) Sworn statement. The victim may give a sworn statement under 
this rule and shall be subject to cross-examination concerning the 
statement by the trial counsel or defense counsel or examination on the 
statement by the court-martial, or all or any of the three. When a 
victim is under 18 years of age, incompetent, incapacitated, or 
deceased, the sworn statement may be made by the victim's designee 
appointed under R.C.M. 801(a)(6). Additionally, a victim under 18 years 
of age may elect to make a sworn statement.
    (e) Unsworn statement. The victim may make an unsworn statement and 
may not be cross-examined by the trial counsel or defense counsel upon 
it or examined upon it by the court-martial. The prosecution or defense 
may, however, rebut any statements of facts therein. The unsworn 
statement may be oral, written, or both. When a victim is under 18 
years of age, incompetent, incapacitated, or deceased, the unsworn 
statement may be made by the victim's designee appointed under R.C.M. 
801(a)(6). Additionally, a victim under 18 years of age may elect to 
make an unsworn statement.
    (1) Procedure for presenting unsworn statement. After the 
announcement of findings, a victim who would like to present an unsworn 
statement shall provide a copy to the trial counsel, defense counsel, 
and military judge. The military judge may waive this requirement for 
good cause shown.

Discussion

    ``When the military judge waives the notice requirement under this 
rule, the military judge may conduct a session under Article 39(a) to 
ascertain the content of the victim's anticipated unsworn statement.''
    (2) Upon good cause shown, the military judge may permit the 
victim's counsel to deliver all or part of the victim's unsworn 
statement.

Discussion

    ``If there are numerous victims, the military judge may reasonably 
limit the form of the statements provided.
    A victim's unsworn statement should not exceed what is permitted 
under R.C.M. 1001A(c) and may not include a recommendation of a 
specific sentence. Upon objection by either party or sua sponte, a 
military judge may stop or interrupt a victim's unsworn statement that 
includes matters outside the scope of R.C.M. 1001A(c). A victim, 
victim's counsel, or designee has no separate right to present argument 
under R.C.M. 1001(g).''
    (r) A new Discussion section is added immediately after R.C.M. 
1103A(b)(3):
    (3) Authentication through action. After authentication and prior 
to disposition of the record of trial pursuant to Rule for Courts-
Martial 1111, sealed materials may not be examined in the absence of an 
order from the military judge upon a showing of good cause at a post-
trial Article 39a session directed by the Convening Authority.

Discussion

    ``A convening authority who has granted clemency based upon review 
of sealed materials in the record of trial is not permitted to disclose 
the contents of

[[Page 39086]]

the sealed materials when providing a written explanation of the reason 
for such action, as directed under R.C.M. 1107.''
    (s) The Discussion section following R.C.M. 1106(d)(3) is amended 
to read as follows:
    (3) Required contents. Except as provided in subsection (e), the 
staff judge advocate or legal advisor shall provide the convening 
authority with a copy of the report of results of the trial, setting 
forth the findings, sentence, and confinement credit to be applied; a 
copy or summary of the pretrial agreement, if any; a copy of any 
statement submitted by a crime victim pursuant to R.C.M. 1l05A; any 
recommendation for clemency by the sentencing authority made in 
conjunction with the announced sentence; and the staff judge advocate's 
concise recommendation.

Discussion

    ``The recommendation required by this rule need not include 
information regarding other recommendations for clemency. It may 
include a summary of clemency actions authorized under R.C.M. 1107. See 
R.C.M. 1105(b)(2)(D) (pertaining to clemency recommendations that may 
be submitted by the accused to the convening authority).''
    (t) The Discussion section immediately following R.C.M. 1107(c) is 
deleted.
    (u) The Discussion section immediately following R.C.M. 1107(d)(1) 
is deleted.
    (v) Discussions are inserted throughout R.C.M. 1107(d)(1) as 
follows:
    (1) In general.
    (A) The convening authority may not disapprove, commute, or 
suspend, in whole or in part, any portion of an adjudged sentence of 
confinement for more than six months.
    (B) The convening authority may not disapprove, commute, or suspend 
that portion of an adjudged sentence that includes a dismissal, 
dishonorable discharge, or bad-conduct discharge.
    (C) The convening authority may disapprove, commute, or suspend, in 
whole or in part, any portion of an adjudged sentence when doing so is 
not explicitly prohibited by this Rule. Actions affecting reduction in 
pay grade, forfeitures of pay and allowances, fines, reprimands, 
restrictions, and hard labor without confinement are not explicitly 
prohibited by this Rule.
    (D) The convening authority shall not disapprove, commute, or 
suspend any mandatory minimum sentence of dismissal or dishonorable 
discharge except in accordance with subsection (E) of this rule.
    (E) Exceptions.
    (i) Trial counsel recommendation. Upon the recommendation of the 
trial counsel, in recognition of the substantial assistance by the 
accused in the investigation or prosecution of another person who has 
committed an offense, the convening authority or another person 
authorized to act under this section shall have the authority to 
disapprove, commute, or suspend the adjudged sentence, in whole or in 
part, even with respect to an offense for which a mandatory minimum 
sentence exists.

Discussion

    ``The phrase ``investigation or prosecution of another person who 
has committed an offense'' includes offenses under the UCMJ or other 
Federal, State, local, or foreign criminal statutes.''
    (ii) Pretrial agreement. If a pretrial agreement has been entered 
into by the convening authority and the accused as authorized by R.C.M. 
705, the convening authority shall have the authority to approve, 
disapprove, commute, or suspend a sentence, in whole or in part, 
pursuant to the terms of the pretrial agreement. The convening 
authority may commute a mandatory sentence of a dishonorable discharge 
to a bad-conduct discharge pursuant to the terms of the pretrial 
agreement.
    (F) If the convening authority acts to disapprove, commute, or 
suspend, in whole or in part, the sentence of the court-martial for an 
offense, the convening authority shall provide, at the same time, a 
written explanation of the reasons for such action. The written 
explanation shall be made a part of the record of trial and action 
thereon.''

Discussion

    ``A sentence adjudged by a court-martial may be approved if it was 
within the jurisdiction of the court-martial to adjudge (see R.C.M. 
201(f)) and did not exceed the maximum limits prescribed in Part IV and 
Chapter X of this Part for the offense(s) of which the accused legally 
has been found guilty.
    When mitigating forfeitures, the duration and amounts of forfeiture 
may be changed as long as the total amount forfeited is not increased 
and neither the amount nor duration of the forfeitures exceeds the 
jurisdiction of the court-martial. When mitigating confinement or hard 
labor without confinement, the convening authority should use the 
equivalencies at R.C.M. 1003(b)(5)-(6), as appropriate.
    Unless prohibited by this rule, the convening authority may 
disapprove, mitigate, or change to a less severe punishment any 
individual component of a sentence. For example, if an accused is found 
guilty of assault consummated by a battery and sentenced to a bad-
conduct discharge, three months of confinement, and reduction to E-1, 
without a pre-trial agreement and without being able to apply the 
substantial assistance exception, the convening authority may 
disapprove or reduce any part of the sentence except the bad-conduct 
discharge.''
    (w) The Discussion section following R.C.M. 1107(d)(2) is amended 
to read as follows:
    (2) Determining what sentence should be approved. The convening 
authority shall, subject to the limitations in subsection (d)(1) above, 
approve that sentence that is warranted by the circumstances of the 
offense and appropriate for the accused.''

Discussion

    ``In determining what sentence should be approved, the convening 
authority should consider all relevant and permissible factors 
including the possibility of rehabilitation, the deterrent effect of 
the sentence, and all matters relating to clemency, such as pretrial 
confinement. See also R.C.M. 1001-1004.
    When an accused is not serving confinement, the accused should not 
be deprived of more than two-thirds pay for any month as a result of 
one or more sentences by court-martial and other stoppages or 
involuntary deductions, unless requested by the accused. Since court-
martial forfeitures constitute a loss of entitlement of the pay 
concerned, they take precedence over all debts.''
    (x) The Discussion section immediately following R.C.M. 
1107(e)(1)(C) is deleted.
    (y) A new Discussion section is added immediately after R.C.M. 
1301(c)(2):
    (2) Notwithstanding subsection (c)(1) of this rule, summary courts-
martial do not have jurisdiction over offenses under Articles 120(a), 
120(b), 120b(a), 120b(b), forcible sodomy under Article 125, and 
attempts thereof under Article 80. Such offenses shall not be referred 
to a summary court-martial.

Discussion

    ``Pursuant to the National Defense Authorization Act for Fiscal 
Year 2014, only a general court-martial has jurisdiction to try 
penetrative sex offenses under subsections (a) and (b) of Article 120, 
subsections (a) and (b) of Article 120b, Article 125, and attempts to 
commit such penetrative sex offenses under Article 80.''
    (z) The Discussion sections to R.C.M. 406(b)(4), R.C.M. 503(a)(1), 
and

[[Page 39087]]

707(c)(1) are amended by changing ``investigating officer'' to 
``preliminary hearing officer'' for preliminary hearings occurring on 
or after 26 December 2014.
    (aa) The Discussion section to R.C.M. 701(a)(6)(c) is amended by 
changing ``report of Article 32 investigation'' to ``report of Article 
32 preliminary hearing'' for preliminary hearings occurring on or after 
26 December 2014.
    (bb) The Discussion sections to R.C.M. 705(d)(2) and R.C.M. 919(b) 
are amended by changing ``Article 32 investigation'' to ``Article 32 
preliminary hearing'' for preliminary hearings occurring on or after 26 
December 2014.
    Section 2. Part IV, Punitive Articles, is Amended as Follows:
    A new Discussion section is added immediately after Paragraph 16, 
Article 92--Failure to obey order or regulation, subsection 
subparagraph e(3)(d):
    [Note: In cases where the dereliction of duty resulted in death or 
grievous bodily harm, add the following as applicable]
    (d) That such dereliction of duty resulted in death or grievous 
bodily harm to a person other than the accused.

Discussion

    ``If the dereliction of duty resulted in death, the accused may 
also be charged under Article 119 or Article 134 (negligent homicide), 
as applicable.''
    Section 3. Appendix 21, Analysis of the Rules for Courts-Martial, 
is Amended as Follows:
    (a) The Analysis for Rule 201 is amended by inserting the following 
at the end:
    ``2015 Amendment: The discussion was amended in light of Solorio v. 
United States, 483 U.S. 435 (1987). Solorio overruled O'Callahan v. 
Parker, 395 U.S. 258 (1969), which had held that an offense under the 
Code could not be tried by court-martial unless the offense was 
``service connected.'' Solorio overruled O'Callahan. The amendment 
strikes language that was inadvertently left in prior revisions of the 
Manual.''
    (b) The Analysis for Rule 201(f) is amended by inserting the 
following at the end:
    ``(f) 2015 Amendment: R.C.M. 201(f)(2)(D) was created to implement 
Section 1705(c) of the National Defense Authorization Act for Fiscal 
Year 2014, P.L. 113-66, 26 December 2013, and applies to offenses 
occurring on or after 24 June 2014.''
    (c) The Analysis for Rule 305 is amended by inserting the following 
at the end:
    ``(i) 2015 Amendment: R.C.M. 305(i)(2) was revised to implement 
Articles 6b(a)(2)(E) and 6b(a)(4)(A), UCMJ, as created by Section 1701 
of the National Defense Authorization Act for Fiscal Year 2014, P.L. 
113-66, 26 December 2013.''
    (d) The Analysis for Rule 305 is amended by inserting the following 
at the end:
    ``(n) 2015 Amendment: R.C.M. 305(n) was created to implement 
Article 6b(a)(2)(E), UCMJ, as created by Section 1701 of the National 
Defense Authorization Act for Fiscal Year 2014, P.L. 113-66, 26 
December 2013.''
    (e) A new Analysis section is inserted for Rule 404A and reads as 
follows:
    ``2015 Amendment: This is a new rule created to implement Section 
1702(a) of the National Defense Authorization Act for Fiscal Year 2014, 
P.L. 113-66, 26 December 2013, and applies to preliminary hearings 
occurring on or after 26 December 2014.
    (f) The Analysis to Rule 405 is amended to read as follows:
    ``2015 Amendment: This rule was created to implement Section 
1702(a) of the National Defense Authorization Act for Fiscal Year 2014, 
P.L. 113-66, 26 December 2013. This new rule took effect on 26 December 
2014 pursuant to Section 531(g)(1) of the National Defense 
Authorization Act for Fiscal Year 2015, P.L. 113-291, 19 December 2014, 
and applies to preliminary hearings occurring on or after 26 December 
2014.''
    (g) The Analysis to Rule 601 is amended in paragraph (f) by 
removing the word ``new'' before ``provision.''
    (h) The Analysis to Rule 601 is amended by inserting the following 
at the end:
    ``2015 Amendment: (g) Parallel convening authorities. The intent of 
this new provision is to allow a successor convening authority to 
exercise full authority over charges, without having to effectuate re-
referral or potentially a new trial. The subsection incorporates a 
recommendation of the May 2013 report of the Defense Legal Policy Board 
(DLPB), Report of the Subcommittee on Military Justice in Combat Zones. 
The DLPB is a Federal Advisory Committee established to provide 
independent advice to the Secretary of Defense. The DLPB found that an 
inhibition to retaining cases in an area of operations is the inability 
of a convening authority to transmit a case to another convening 
authority after referral of charges without having to withdraw the 
charges.''
    (i) The Analysis to Rule 702 is amended by inserting the following 
at the end:
    ``2015 Amendment: This rule was revised to implement Article 49, 
UCMJ, as amended by Section 532 of the Carl Levin and Howard P. 
``Buck'' McKeon National Defense Authorization Act for Fiscal Year 
2015, P.L. 113-291, 19 December 2014.''
    (j) The Analysis to Rule 801(a) is amended by inserting the 
following at the end:
    ``2015 Amendment: R.C.M. 801(a)(6) was created to implement Section 
1701 of the National Defense Authorization Act for Fiscal Year 2014, 
P.L. 113-66, 26 December 2013.''
    (k) The Analysis to Rule 806(b) is amended by inserting the 
following at the end:
    ``2015 Amendment: R.C.M. 806(b)(2) was revised to implement Article 
6b(a)(2), Article 6b(a)(3), and Article 6b(a)(5), UCMJ, as created by 
Section 1701 of the National Defense Authorization Act for Fiscal Year 
2014, P.L. 113-66, 26 December 2013.''
    (l) The Analysis to Rule 906(b) is amended by inserting the 
following at the end:
    ``2015 Amendment: R.C.M. 906(b)(8) was revised to implement 
Articles 6b(a)(2)(E) and 6b(a)(4)(A), UCMJ, as created by Section 1701 
of the National Defense Authorization Act for Fiscal Year 2014, P.L. 
113-66, 26 December 2013.''
    (m) The Analysis to Rule 1001(a) is amended by inserting the 
following at the end:
    ``2015 Amendment: R.C.M. 1001(a)(1) was revised to implement 
Article 6b(a)(4)(B), UCMJ, as created by Section 1701 of the National 
Defense Authorization Act for Fiscal Year 2014, P.L. 113-66, 26 
December 2013.''
    (n) A new Analysis section is inserted for Rule 1001A and reads as 
follows:
    ``2015 Amendment: R.C.M. 1001A was added to implement Article 
6b(a)(4)(B), UCMJ, as created by Section 1701 of the National Defense 
Authorization Act for Fiscal Year 2014, P.L. 113-66, 26 December 2013, 
concerning the right of a victim to be reasonably heard at a sentencing 
hearing relating to the offense. It is consistent with the principles 
of law and federal practice prescribed in 18 U.S.C. 3771(a)(4) and 
Federal Rule of Criminal Procedure 32(i)(4)(B), which requires the 
court to ``address any victim of the crime who is present at 
sentencing'' and ``permit the victim to be reasonably heard.'' See 10 
U.S.C. 836(a). Additionally, the June 2014 report of the Response 
Systems to Adult Sexual Assault Crimes Panel (RSP) recommended that the 
President prescribe appropriate regulations to provide victims the 
right to make an unsworn victim impact statement, not subject to cross 
examination, during the

[[Page 39088]]

presentencing proceeding. The RSP was a congressionally mandated panel 
tasked to conduct an independent review and assessment of the systems 
used to investigate, prosecute, and adjudicate crimes involving adult 
sexual assault and related offenses.''
    (o) The Analysis to Rule 1103A is amended by inserting the 
following at the end:
    ``2015 Amendment: This rule shall be implemented in a manner 
consistent with Executive Order 13526, as amended, concerning 
classified national security information.''
    (p) The Analysis to Rule 1105(b) is amended by inserting the 
following at the end:
    ``2015 Amendment: R.C.M. 1105(b) was revised to implement Section 
1706 of the National Defense Authorization Act for Fiscal Year 2014, 
P.L. 113-66, 26 December 2013, and applies to offenses occurring on or 
after 24 June 2014.''
    (q) The Analysis to Rule 1107(b) is amended by inserting the 
following at the end:
    ``2015 Amendment: This subsection was revised to implement Article 
60(c), UCMJ, as amended by Section 1702 of the National Defense 
Authorization Act for Fiscal Year 2014, P.L. 113-66, 26 December 2013, 
as well as Section 1706 of the National Defense Authorization Act for 
Fiscal Year 2014, P.L. 113-66, 26 December 2013, and applies to 
offenses occurring on or after 24 June 2014. For offenses occurring 
prior to 24 June 2014, refer to prior versions of R.C.M. 1107(b).''
    (r) The Analysis to Rule 1107(c) is amended to read as follows:
    ``2015 Amendment: This subsection was substantially revised to 
implement Article 60(c), UCMJ, as amended by Section 1702 of the 
National Defense Authorization Act for Fiscal Year 2014, P.L. 113-66, 
26 December 2013, and applies to offenses occurring on or after 24 June 
2014. For offenses occurring prior to 24 June 2014, refer to prior 
versions of R.C.M. 1107(c).''
    (s) The Analysis to Rule 1107(d) is removed and new analysis is 
amended to read as follows:
    ``2015 Amendment: This subsection was substantially revised to 
implement Article 60(c), UCMJ, as amended by Section 1702 of the 
National Defense Authorization Act for Fiscal Year 2014, P.L. 113-66, 
26 December 2013, and applies to offenses occurring on or after 24 June 
2014. For offenses occurring prior to 24 June 2014, refer to prior 
versions of R.C.M. 1107(d).''
    (t) The Analysis to Rule 1107(f) is amended by inserting the 
following at the end:
    ``2015 Amendment: This subsection was revised to implement Article 
60(c), UCMJ, as amended by Section 1702 of the National Defense 
Authorization Act for Fiscal Year 2014, P.L. 113-66, 26 December 2013, 
and applies to offenses occurring on or after 24 June 2014. For 
offenses occurring prior to 24 June 2014, refer to prior versions of 
R.C.M. 1107(f).''
    (u) The Analysis to Rule 1108(b) is amended by inserting the 
following at the end:
    ``2015 Amendment: This subsection was revised to implement Article 
60(c), UCMJ, as amended by Section 1702 of the National Defense 
Authorization Act for Fiscal Year 2014, P.L. 113-66, 26 December 2013, 
and applies to offenses occurring on or after 24 June 2014. For 
offenses occurring prior to 24 June 2014, refer to prior versions of 
R.C.M. 1108(b).''
    (v) The Analysis to Rule 1301(c) is amended by inserting the 
following at the end:
    ``2015 Amendment: This subsection was revised to implement Section 
1705 of the National Defense Authorization Act for Fiscal Year 2014, 
P.L. 113-66, 26 December 2013, and applies to offenses occurring on or 
after 24 June 2014.''
    Section 4. Appendix 22, Analysis of the Military Rules of Evidence, 
is Amended as Follows:
    (a) The Analysis to Rule 404 is amended by inserting the following 
at the end:
    ``2015 Amendment: This rule was revised to implement Section 536 of 
the Carl Levin and Howard P. ``Buck'' McKeon National Defense 
Authorization Act for Fiscal Year 2015, P.L. 113-291, 19 December 
2014.''
    (b) The Analysis to Rule 412 is amended by inserting the following 
at the end:
    ``2015 Amendment: Rule 412(c)(2) was revised in accordance with LRM 
v. Kastenberg, 72 M.J. 364 (C.A.A.F. 2013), and Section 534(c) of the 
Carl Levin and Howard P. ``Buck'' McKeon National Defense Authorization 
Act for Fiscal Year 2015, P.L. 113-291, 19 December 2014.''
    (c) The Analysis to Rule 513 is amended by inserting the following 
at the end:
    ``2015 Amendment: Rule 513(e)(2) was revised in accordance with LRM 
v. Kastenberg, 72 M.J. 364 (C.A.A.F. 2013), and Sections 534(c) and 537 
of the Carl Levin and Howard P. ``Buck'' McKeon National Defense 
Authorization Act for Fiscal Year 2015, P.L. 113-291, 19 December 
2014.''
    (d) The Analysis to Rule 514 is amended by inserting the following 
at the end:
    ``2015 Amendment: Rule 514(e)(2) was revised in accordance with LRM 
v. Kastenberg, 72 M.J. 364 (C.A.A.F. 2013), and Section 534(c) of the 
Carl Levin and Howard P. ``Buck'' McKeon National Defense Authorization 
Act for Fiscal Year 2015, P.L. 113-291, 19 December 2014. Rule 514 was 
also revised to protect communications made to the Department of 
Defense Safe Helpline, which is a crisis support service for victims of 
sexual assault in the Department of Defense. The Department of Defense 
Safe Helpline was established in 2011 under a contract with the Rape, 
Abuse & Incest National Network. Rule 514(e) was amended to adopt a 
legal threshold that must be satisfied before a military judge may 
order an in camera review of records or communications falling within 
the privilege. While not required by Section 537 of the Carl Levin and 
Howard P. ``Buck'' McKeon National Defense Authorization Act for Fiscal 
Year 2015, the Rule 514 threshold was modeled after the Rule 513 
threshold required by that Section.''
    (e) The Analysis to Rule 615 is amended by inserting the following 
at the end:
    ``2015 Amendment: Rule 615(e) was revised to implement Section 1701 
of the National Defense Authorization Act for Fiscal Year 2014, P.L. 
113-66, 26 December 2013.''
    Section 5. Appendix 23, Analysis of Punitive Articles, is Amended 
as Follows:
    Paragraph 16, Article 92--Failure to obey order or regulation, is 
amended by inserting the following at the end:
    ``2015 Amendment: Subparagraph b(3) was amended to increase the 
punishment for dereliction of duty when such dereliction results in 
grievous bodily harm or death. Subsection b(3)(d) incorporates a 
recommendation of the May 2013 report of the Defense Legal Policy Board 
(DLPB), Report of the Subcommittee on Military Justice in Combat Zones. 
The DLPB is a Federal Advisory Committee established to provide 
independent advice to the Secretary of Defense. The DLPB subcommittee 
primarily focused on civilian casualties in a deployed environment, and 
the DLPB found that the maximum punishment for dereliction of duty was 
not commensurate with the potential consequences of dereliction 
resulting in civilian casualties. The DLPB also found that the 
available punishment did not make alternative dispositions to court-
martial a practical option because there was little incentive for an 
accused to accept these alternatives. This rule expands on the 
recommendation of the

[[Page 39089]]

DLPB and includes elevated maximum punishment for dereliction of duty 
that results in death or grievous bodily harm suffered by any person.''

    Dated: July 2, 2015.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2015-16696 Filed 7-7-15; 8:45 am]
 BILLING CODE 5001-06-P



                                                                              Federal Register / Vol. 80, No. 130 / Wednesday, July 8, 2015 / Notices                                                  39077

                                                SUMMARY:    Pursuant to the provisions of                as applicable. This may impact multiple               of the draft PEA is to assess impacts of
                                                the Federal Advisory Committee Act                       species and taxa groups of protected                  UVS on protected species for issuance
                                                (FACA), 5 U.S.C. App., and after                         species (marine mammals and sea                       of future permits and permit
                                                consultation with the General Services                   turtles) by authorizing the use of                    amendments.
                                                Administration, the Chief Financial                      unmanned vehicle systems (UVS),                         NMFS will consider all comments
                                                Officer and Assistant Secretary for                      mainly small unmanned aircraft systems                received during the comment period.
                                                Administration has determined that                       (UAS). The objectives of using UVS for                NMFS requests that you include with
                                                renewal of the NOAA Science Advisory                     research and enhancement may include                  your comments: (1) Your name and
                                                Board is in the public interest. The                     determining the abundance,                            address; and (2) Any background
                                                committee has been a successful                          distribution, movement patterns,                      documents to support your comments,
                                                undertaking and has provided advice to                   behavior, health and fitness, and stock               as you feel necessary.
                                                the Under Secretary for Oceans and                       structure of protected species found in                 Dated: July 2, 2015.
                                                Atmosphere on strategies for research,                   U.S. territorial and international waters
                                                                                                                                                               Julia Harrison,
                                                education, and application of science to                 and coastal areas.
                                                                                                                                                               Chief, Permits and Conservation Division,
                                                operations and information services.                     DATES: Written, telefaxed, or email
                                                                                                                                                               Office of Protected Resources, National
                                                The committee will continue to provide                   comments must be received on or before                Marine Fisheries Service.
                                                such advice and recommendations in                       August 7, 2015.                                       [FR Doc. 2015–16669 Filed 7–7–15; 8:45 am]
                                                the future. The structure and                            ADDRESSES: The draft PEA is available
                                                                                                                                                               BILLING CODE 3510–22–P
                                                responsibilities of the Committee are                    upon written request or by appointment
                                                unchanged from when it was originally                    in the Permits and Conservation
                                                established in September 1997. The                       Division, Office of Protected Resources,
                                                Committee will continue to operate in                    NMFS, 1315 East-West Highway, Room                    DEPARTMENT OF DEFENSE
                                                accordance with the provisions of the                    13705, Silver Spring, MD 20910; phone
                                                Federal Advisory Committee Act.                          (301) 427–8401; fax (301) 713–0376.                   Office of the Secretary
                                                FOR FURTHER INFORMATION CONTACT: Dr.                     Written comments must be postmarked
                                                Elizabeth Turner, Acting Executive                       by August 7, 2015, and should be                      [Docket ID: DoD–2015–OS–0067]
                                                Director, Science Advisory Board,                        mailed to: Chief, Permits and
                                                                                                         Conservation Division, Office of                      Manual for Courts-Martial; Publication
                                                NOAA, 35 Colovos Road, Durham, NH
                                                                                                         Protected Resources, National Marine                  of Supplementary Materials
                                                03824. Email: Elizabeth.Turner@
                                                noaa.gov; or visit the NOAA SAB Web                      Fisheries Service, 1315 East-West                     AGENCY:  Joint Service Committee on
                                                site at http://www.sab.noaa.gov.                         Highway, Room 13705, Silver Spring,                   Military Justice (JSC), Department of
                                                                                                         MD 20910–3226. Comments may also be                   Defense.
                                                  Dated: July 2, 2015.
                                                                                                         submitted by facsimile to (301) 713–
                                                Jason Donaldson,                                                                                               ACTION: Publication of Discussion and
                                                                                                         0376, or by email to
                                                Chief Financial Officer, Office of Oceanic and                                                                 Analysis (Supplementary Materials)
                                                                                                         NMFS.Pr1Comments@noaa.gov. Please
                                                Atmospheric Research, National Oceanic and                                                                     accompanying the Manual for Courts-
                                                                                                         include ‘‘Draft UVS PEA Comments’’ in
                                                Atmospheric Administration.                                                                                    Martial, United States (2012 ed.) (MCM).
                                                                                                         the subject line of the email.
                                                [FR Doc. 2015–16732 Filed 7–7–15; 8:45 am]
                                                                                                         FOR FURTHER INFORMATION CONTACT:                      SUMMARY:   The JSC hereby publishes
                                                BILLING CODE 3510–KD–P
                                                                                                         Courtney Smith or Amy Sloan, (301)                    Supplementary Materials accompanying
                                                                                                         427–8401.                                             the MCM as amended by Executive
                                                DEPARTMENT OF COMMERCE                                   SUPPLEMENTARY INFORMATION: NMFS is                    Orders 13643, 13669, and 13696. The
                                                                                                         the federal agency responsible for                    language of the Subsection or
                                                National Oceanic and Atmospheric                         management of sea turtles (in water),                 Subparagraph immediately preceding
                                                Administration                                           cetaceans, and pinnipeds (except                      the new or amended Discussion has
                                                                                                         walrus). NMFS’ Office of Protected                    been inserted above each new or
                                                RIN 0648–XD919                                           Resources administers a program that                  amended Discussion within this notice,
                                                                                                         issues permits to various individuals                 and all new Analyses are located at the
                                                Notice of Availability of a Draft
                                                                                                         and institutions to take these protected              end of this notice. These changes have
                                                Programmatic Environmental
                                                                                                         species in lands and waters under U.S.                not been coordinated within the
                                                Assessment (PEA) of Issuance of
                                                                                                         jurisdiction, and to U.S. citizens                    Department of Defense under DoD
                                                Scientific Research and Enhancement
                                                                                                         operating in international waters.                    Directive 5500.1, ‘‘Preparation,
                                                Permits for Use of Unmanned Vehicle
                                                                                                         Permits to take marine mammals are                    Processing and Coordinating
                                                Systems on Protected Species
                                                                                                         issued pursuant to the provisions of the              Legislation, Executive Orders,
                                                AGENCY:  National Marine Fisheries                       MMPA, FSA (where applicable), and                     Proclamations, Views Letters and
                                                Service (NMFS), National Oceanic and                     NMFS regulations governing the taking                 Testimony,’’ June 15, 2007, and do not
                                                Atmospheric Administration (NOAA),                       and importing of marine mammals (50                   constitute the official position of the
                                                Commerce.                                                CFR part 216). For threatened and                     Department of Defense, the Military
                                                ACTION: Notice; availability of draft                    endangered species, permits are                       Departments, or any other Government
                                                environmental assessment.                                governed by the requirements of the                   agency. These Supplementary Materials
                                                                                                         ESA and the regulations governing the                 have been approved by the JSC and the
                                                SUMMARY:   The National Marine                           taking, importing, and exporting of                   General Counsel of the Department of
srobinson on DSK5SPTVN1PROD with NOTICES




                                                Fisheries Service (NMFS) proposes to                     endangered and threatened species (50                 Defense, and shall be applied in
                                                issue permits and permit amendments                      CFR parts 222–226). NMFS has                          conjunction with the rule with which
                                                for take of protected species in the wild,               prepared a draft PEA that evaluates the               they are associated. The Discussions are
                                                pursuant to the Marine Mammal                            potential environmental impacts of                    effective insofar as the Rules they
                                                Protection Act of 1972, as amended; the                  scientific research or enhancement                    supplement are effective, but may not be
                                                Endangered Species Act of 1973; and                      activities involving UVS, including                   applied earlier than the date of
                                                the Fur Seal Act of 1966, as amended,                    UAS, on protected species. The purpose                publication in the Federal Register.


                                           VerDate Sep<11>2014   18:49 Jul 07, 2015   Jkt 235001   PO 00000   Frm 00028   Fmt 4703   Sfmt 4703   E:\FR\FM\08JYN1.SGM   08JYN1


                                                39078                         Federal Register / Vol. 80, No. 130 / Wednesday, July 8, 2015 / Notices

                                                DATES:  The Analysis is effective as of                  to reasonable, accurate, and timely                      (f) The Discussion section following
                                                July 8, 2015.                                            notice of the 7-day review; the right to              R.C.M. 404(e) is amended to read as
                                                FOR FURTHER INFORMATION CONTACT:                         confer with the representative of the                 follows:
                                                Capt. Harlye S. Carlton, USMC, (703)                     command and counsel for the                              (e) Unless otherwise prescribed by the
                                                963–9299 or harlye.carlton@usmc.mil.                     government, if any, and the right to be               Secretary concerned, direct a
                                                The JSC Web site is located at: http://                  reasonably heard during the review.                   preliminary hearing under R.C.M. 405,
                                                jsc.defense.gov.                                         However, the hearing may not be                       and, if appropriate, forward the report of
                                                                                                         unduly delayed for this purpose. The                  preliminary hearing with the charges to
                                                SUPPLEMENTARY INFORMATION:                                                                                     a superior commander for disposition.
                                                                                                         right to be heard under this rule
                                                  Public Comments: The JSC solicited                     includes the right to be heard through
                                                public comments for these changes to                                                                           Discussion
                                                                                                         counsel. The victim of an alleged
                                                the MCM via the Federal Register on                      offense shall be notified of these rights                ‘‘A preliminary hearing should be
                                                October 3, 2014 (79 FR 59938–59959,                      in accordance with regulations of the                 directed when it appears that the
                                                Docket ID: DoD–2014–OS–0140), held a                     Secretary concerned.                                  charges are of such a serious nature that
                                                public meeting at the Court of Appeals                                                                         trial by general court-martial may be
                                                for the Armed Forces on December 2,                      Discussion                                            warranted. See R.C.M. 405. If a
                                                2014, and published the JSC response to                                                                        preliminary hearing of the subject
                                                                                                           ‘‘Personal appearance by the victim is
                                                public comments via the Federal                                                                                matter already has been conducted, see
                                                                                                         not required. A victim’s right to be
                                                Register on February 4, 2015 (80 FR                                                                            R.C.M. 405(b) and 405(e)(2).’’
                                                                                                         reasonably heard at a 7-day review may
                                                6057–6060, Docket ID: DoD–2014–OS–                                                                                (g) A new Discussion section is added
                                                                                                         also be accomplished telephonically, by
                                                0140).                                                                                                         immediately after R.C.M. 404A(d):
                                                  The amendments to the Discussion                       video teleconference, or by written
                                                                                                                                                                  (d) Protective order if privileged
                                                and Analysis of the MCM are as follows:                  statement. The right to be heard under
                                                                                                                                                               information is disclosed. If the
                                                                                                         this rule includes the right to be heard
                                                                                                                                                               government agrees to disclose to the
                                                Annex                                                    through counsel.’’
                                                                                                                                                               accused information to which the
                                                  Section 1. Part II, Rules for Courts-                    (d) A new Discussion section is added               protections afforded by Section V of Part
                                                Martial, is Amended as Follows:                          immediately after R.C.M. 305(j)(1)(C):                III may apply, the convening authority,
                                                  (a) The Discussion section following                     (C) The provisions of subsection (i)(1)             or other person designated by regulation
                                                R.C.M. 201(a)(2) is amended to read as                   or (2) of this rule have not been                     of the Secretary concerned, may enter
                                                follows:                                                 complied with and information                         an appropriate protective order, in
                                                  (2) The code applies in all places.                    presented to the military judge does not              writing, to guard against the
                                                Discussion                                               establish sufficient grounds for                      compromise of information disclosed to
                                                                                                         continued confinement under                           the accused. The terms of any such
                                                  ‘‘Except insofar as required by the                    subsection (h)(2)(B) of this rule.                    protective order may include
                                                Constitution, the Code, or the Manual,                                                                         prohibiting the disclosure of the
                                                such as jurisdiction over persons listed                 Discussion
                                                                                                                                                               information except as authorized by the
                                                under Article 2(a)(10), jurisdiction of                     ‘‘Upon a motion for release from                   authority issuing the protective order, as
                                                courts-martial does not depend on                        pretrial confinement, a victim of an                  well as those terms specified by Mil. R.
                                                where the offense was committed.’’                       alleged offense committed by the                      Evid. 505(g)(2)–(6) or 506(g)(2)–(5).
                                                  (b) A new Discussion section is added                  prisoner has the right to reasonable,
                                                immediately after R.C.M. 201(f)(2)(D) to                                                                       Discussion
                                                                                                         accurate, and timely notice of the
                                                read as follows:                                         motion and any hearing, the right to                    ‘‘The purposes of this rule are to
                                                  (D) Certain Offenses under Articles                    confer with counsel representing the                  provide the accused with the documents
                                                120, 120b, and 125. Notwithstanding                      government, and the right to be                       used to make the determination to
                                                subsection (f)(2)(A), special courts-                    reasonably heard. Inability to reasonably             prefer charges and direct a preliminary
                                                martial do not have jurisdiction over                    afford a victim these rights shall not                hearing, and to allow the accused to
                                                offenses under Article 120(a), 120(b),                   delay the proceedings. The right to be                prepare for the preliminary hearing.
                                                120b(a), and 120b(b), forcible sodomy                    heard under this rule includes the right              This rule is not intended to be a tool for
                                                under Article 125, and attempts thereof                  to be heard through counsel. See R.C.M.               discovery and does not impose the same
                                                under Article 80. Such offenses shall                    906(b)(8).’’                                          discovery obligations found in R.C.M.
                                                not be referred to a special court-                                                                            405 prior to amendments required by
                                                martial.                                                    (e) A new Discussion section is added
                                                                                                         immediately after R.C.M. 305(n):                      the National Defense Authorization Act
                                                Discussion                                                                                                     for Fiscal Year 2014 or R.C.M. 701.
                                                                                                            (n) Notice to victim of escaped                    Additional rules for disclosure of
                                                  ‘‘Pursuant to the National Defense                     prisoner. A victim of an alleged offense              witnesses and other evidence in the
                                                Authorization Act for Fiscal Year 2014,                  committed by the prisoner for which the               preliminary hearing are provided in
                                                only a general court-martial has                         prisoner has been placed in pretrial                  R.C.M. 405(g).’’
                                                jurisdiction over penetrative sex                        confinement has the right to reasonable,                (h) Discussions are added throughout
                                                offenses under subsections (a) and (b) of                accurate, and timely notice of the escape             the new R.C.M. 405 as follows:
                                                Article 120, subsections (a) and (b) of                  of the prisoner, unless such notice may
                                                Article 120b, Article 125, and attempts                  endanger the safety of any person.                    Rule 405. Preliminary Hearing
                                                to commit such penetrative sex offenses                                                                          (a) In general. Except as provided in
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                                                                                                         Discussion
                                                under Article 80.’’                                                                                            subsection (k) of this rule, no charge or
                                                  (c) A new Discussion section is added                     ‘‘For purposes of this rule, the term              specification may be referred to a
                                                immediately after R.C.M.                                 ‘‘victim of an alleged offense’’ means a              general court-martial for trial until
                                                305(i)(2)(A)(iv):                                        person who has suffered direct physical,              completion of a preliminary hearing in
                                                  (iv) Victim’s right to be reasonably                   emotional, or pecuniary harm as a result              substantial compliance with this rule. A
                                                heard. A victim of an alleged offense                    of the commission of an offense under                 preliminary hearing conducted under
                                                committed by the prisoner has the right                  the UCMJ.’’                                           this rule is not intended to serve as a


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                                                                              Federal Register / Vol. 80, No. 130 / Wednesday, July 8, 2015 / Notices                                           39079

                                                means of discovery and will be limited                   hearing under this rule shall detail an               accordance with Article 27(b) shall be
                                                to an examination of those issues                        impartial judge advocate certified under              detailed to represent the accused.
                                                necessary to determine whether there is                  Article 27(b), not the accuser, as a                     (B) Individual military counsel. The
                                                probable cause to conclude that an                       preliminary hearing officer, who shall                accused may request to be represented
                                                offense or offenses have been committed                  conduct the preliminary hearing and                   by individual military counsel. Such
                                                and whether the accused committed it;                    make a report that addresses whether                  requests shall be acted on in accordance
                                                to determine whether a court-martial                     there is probable cause to believe that an            with R.C.M. 506(b).
                                                would have jurisdiction over the                         offense or offenses have been committed                  (C) Civilian counsel. The accused may
                                                offense(s) and the accused; to consider                  and that the accused committed the                    be represented by civilian counsel at no
                                                the form of the charge(s); and to                        offense(s); whether a court-martial                   expense to the United States. Upon
                                                recommend the disposition that should                    would have jurisdiction over the                      request, the accused is entitled to a
                                                be made of the charge(s). Failure to                     offense(s) and the accused; the form of               reasonable time to obtain civilian
                                                comply with this rule shall have no                      the charges(s); and a recommendation as               counsel and to have such counsel
                                                effect on the disposition of the charge(s)               to the disposition of the charge(s).                  present for the preliminary hearing.
                                                if the charge(s) is not referred to a                      When the appointment of a judge                     However, the preliminary hearing shall
                                                general court-martial.                                   advocate as the preliminary hearing                   not be unduly delayed for this purpose.
                                                                                                         officer is not practicable, or in                     Representation by civilian counsel shall
                                                Discussion                                               exceptional circumstances in which the                not limit the rights to military counsel
                                                   ‘‘The function of the preliminary                     interest of justice warrants, the                     under subsections (d)(3)(A) and (B) of
                                                hearing is to ascertain and impartially                  convening authority directing the                     this rule.
                                                weigh the facts needed for the limited                   preliminary hearing may detail an                        (4) Others. The convening authority
                                                scope and purpose of the preliminary                     impartial commissioned officer, who is                who directed the preliminary hearing
                                                hearing. The preliminary hearing is not                  not the accuser, as the preliminary                   may also, as a matter of discretion,
                                                intended to perfect a case against the                   hearing officer. If the preliminary                   detail or request an appropriate
                                                accused and is not intended to serve as                  hearing officer is not a judge advocate,              authority to detail:
                                                a means of discovery or to provide a                     an impartial judge advocate certified                    (A) A reporter; and
                                                right of confrontation required at trial.                under Article 27(b) shall be available to                (B) An interpreter.
                                                Determinations and recommendations                       provide legal advice to the preliminary                  (e) Scope of preliminary hearing.
                                                of the preliminary hearing officer are                   hearing officer.                                         (1) The preliminary hearing officer
                                                advisory.                                                  When practicable, the preliminary                   shall limit the inquiry to the
                                                   Failure to substantially comply with                  hearing officer shall be equal or senior              examination of evidence, including
                                                the requirements of Article 32, which                    in grade to the military counsel detailed             witnesses, necessary to:
                                                failure prejudices the accused, may                      to represent the accused and the                         (A) Determine whether there is
                                                result in delay in disposition of the case               government at the preliminary hearing.                probable cause to believe an offense or
                                                or disapproval of the proceedings. See                   The Secretary concerned may prescribe                 offenses have been committed and
                                                R.C.M. 905(b)(1) and 906(b)(3)                           additional limitations on the                         whether the accused committed it;
                                                concerning motions for appropriate                       appointment of preliminary hearing                       (B) Determine whether a court-martial
                                                relief relating to the preliminary                       officers.                                             would have jurisdiction over the
                                                hearing.                                                   The preliminary hearing officer shall               offense(s) and the accused;
                                                   The accused may waive the                             not depart from an impartial role and                    (C) Consider whether the form of the
                                                preliminary hearing. See subsection (k)                  become an advocate for either side. The               charge(s) is proper; and
                                                of this rule. In such case, no preliminary               preliminary hearing officer is                           (D) Make a recommendation as to the
                                                hearing need be held. However, the                       disqualified to act later in the same case            disposition of the charge(s).
                                                convening authority authorized to direct                 in any other capacity.                                   (2) If evidence adduced during the
                                                the preliminary hearing may direct that                                                                        preliminary hearing indicates that the
                                                it be conducted notwithstanding the                      Discussion                                            accused committed any uncharged
                                                waiver.’’                                                  ‘‘The preliminary hearing officer, if               offense(s), the preliminary hearing
                                                   (b) Earlier preliminary hearing. If a                 not a judge advocate, should be an                    officer may examine evidence and hear
                                                preliminary hearing of the subject                       officer in the grade of O–4 or higher.                witnesses relating to the subject matter
                                                matter of an offense has been conducted                  The preliminary hearing officer may                   of such offense(s) and make the findings
                                                before the accused is charged with an                    seek legal advice concerning the                      and recommendations enumerated in
                                                offense, and the accused was present at                  preliminary hearing officer’s                         subsection (e)(1) of this rule regarding
                                                the preliminary hearing and afforded                     responsibilities from an impartial                    such offense(s) without the accused first
                                                the rights to counsel, cross-examination,                source, but may not obtain such advice                having been charged with the offense.
                                                and presentation of evidence required                    from counsel for any party or counsel                 The accused’s rights under subsection
                                                by this rule, no further preliminary                     for a victim.’’                                       (f)(2) of this rule, and, where it would
                                                hearing is required.                                       (2) Counsel to represent the United                 not cause undue delay to the
                                                   (c) Who may direct a preliminary                      States. A judge advocate, not the                     proceedings, subsection (g) of this rule,
                                                hearing. Unless prohibited by                            accuser, shall serve as counsel to                    are the same with regard to both charged
                                                regulations of the Secretary concerned,                  represent the United States, and shall                and uncharged offenses. When
                                                a preliminary hearing may be directed                    present evidence on behalf of the                     considering uncharged offenses
                                                                                                                                                               identified during the preliminary
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                                                under this rule by any court-martial                     government relevant to the limited
                                                convening authority. That authority may                  scope and purpose of the preliminary                  hearing, the preliminary hearing officer
                                                also give procedural instructions not                    hearing as set forth in subsection (a) of             shall inform the accused of the general
                                                inconsistent with these rules.                           this rule.                                            nature of each uncharged offense
                                                   (d) Personnel.                                          (3) Defense counsel.                                considered, and otherwise afford the
                                                   (1) Preliminary hearing officer.                        (A) Detailed counsel. Except as                     accused the same opportunity for
                                                Whenever practicable, the convening                      provided in subsection (d)(3)(B) of this              representation, cross examination, and
                                                authority directing a preliminary                        rule, military counsel certified in                   presentation afforded during the


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                                                39080                         Federal Register / Vol. 80, No. 130 / Wednesday, July 8, 2015 / Notices

                                                preliminary hearing of any charged                       Discussion                                            whether the witness testifies in person,
                                                offense.                                                    ‘‘Unsworn statements by the accused,               by video teleconference, by telephone,
                                                                                                         unlike those made under R.C.M.                        or by similar means of remote
                                                Discussion
                                                                                                         1001(c)(2), shall be limited to matters in            testimony.
                                                   ‘‘Except as set forth in subsection (h)               defense and mitigation.’’                             Discussion
                                                of this rule, the Mil. R. Evid. do not                      (H) Make a statement relevant to the
                                                apply at a preliminary hearing. Except                                                                            ‘‘A commanding officer’s
                                                                                                         limited scope and purpose of the                      determination of whether an individual
                                                as prohibited elsewhere in this rule, a                  preliminary hearing.
                                                preliminary hearing officer may                                                                                is available, as well as the means by
                                                                                                            (g) Production of Witnesses and Other              which the individual is available, is a
                                                consider evidence, including hearsay,                    Evidence.
                                                which would not be admissible at trial.’’                                                                      balancing test. The more important the
                                                                                                            (1) Military Witnesses.                            testimony of the witness, the greater the
                                                   (f) Rights of the accused.                               (A) Prior to the preliminary hearing,
                                                                                                                                                               difficulty, expense, delay, or effect on
                                                   (1) Prior to any preliminary hearing                  defense counsel shall provide to counsel              military operations must be to deny
                                                under this rule the accused shall have                   for the government the names of                       production of the witness. Based on
                                                the right to:                                            proposed military witnesses whom the                  operational necessity and mission
                                                   (A) Notice of any witnesses that the                  accused requests that the government                  requirements, the witness’s
                                                government intends to call at the                        produce to testify at the preliminary                 commanding officer may authorize the
                                                preliminary hearing and copies of or                     hearing, and the requested form of the                witness to testify by video
                                                access to any written or recorded                        testimony, in accordance with the                     teleconference, telephone, or similar
                                                statements made by those witnesses that                  timeline established by the preliminary               means of remote testimony. Factors to
                                                relate to the subject matter of any                      hearing officer. Counsel for the                      be considered in making this
                                                charged offense;                                         government shall respond that either:                 determination include the costs of
                                                   (i) For purposes of this rule, a                      (1) The government agrees that the                    producing the witness; the timing of the
                                                ‘‘written statement’’ is one that is signed              witness’s testimony is relevant, not                  request for production of the witness;
                                                or otherwise adopted or approved by the                  cumulative, and necessary for the                     the potential delay in the proceeding
                                                witness that is within the possession or                 limited scope and purpose of the                      that may be caused by the production of
                                                control of counsel for the government;                   preliminary hearing and will seek to                  the witness; and the likelihood of
                                                and                                                      secure the witness’s testimony for the                significant interference with operational
                                                   (ii) For purposes of this rule, a                     hearing; or (2) the government objects to             deployment, mission accomplishment,
                                                ‘‘recorded statement’’ is an oral                        the proposed defense witness on the                   or essential training.’’
                                                statement made by the witness that is                    grounds that the testimony would be                      (2) Civilian Witnesses.
                                                recorded contemporaneously with the                      irrelevant, cumulative, or unnecessary                   (A) Defense counsel shall provide to
                                                making of the oral statement and                         based on the limited scope and purpose                counsel for the government the names of
                                                contained in a digital or other recording                of the preliminary hearing.                           proposed civilian witnesses whom the
                                                or a transcription thereof that is within                   (B) If the government objects to the               accused requests that the government
                                                the possession or control of counsel for                 proposed defense witness, defense                     produce to testify at the preliminary
                                                the government.                                          counsel may request that the                          hearing, and the requested form of the
                                                   (B) Notice of, and reasonable access                  preliminary hearing officer determine                 testimony, in accordance with the
                                                to, any other evidence that the                          whether the witness is relevant, not                  timeline established by the preliminary
                                                government intends to offer at the                       cumulative, and necessary based on the                hearing officer. Counsel for the
                                                preliminary hearing; and                                 limited scope and purpose of the                      government shall respond that either:
                                                   (C) Notice of, and reasonable access                  preliminary hearing.                                  (1) The government agrees that the
                                                to, evidence that is within the                             (C) If the government does not object              witness’s testimony is relevant, not
                                                possession or control of counsel for the                 to the proposed defense military witness              cumulative, and necessary for the
                                                government that negates or reduces the                   or the preliminary hearing officer                    limited scope and purpose of the
                                                degree of guilt of the accused for an                    determines that the military witness is               preliminary hearing and will seek to
                                                offense charged.                                         relevant, not cumulative, and necessary,              secure the witness’s testimony for the
                                                   (2) At any preliminary hearing under                  counsel for the government shall request              hearing; or (2) the government objects to
                                                this rule the accused shall have the right               that the commanding officer of the                    the proposed defense witness on the
                                                to:                                                      proposed military witness make that                   grounds that the testimony would be
                                                                                                         person available to provide testimony.                irrelevant, cumulative, or unnecessary
                                                   (A) Be advised of the charges under
                                                                                                         The commanding officer shall                          based on the limited scope and purpose
                                                consideration;
                                                                                                         determine whether the individual is                   of the preliminary hearing.
                                                   (B) Be represented by counsel;                        available based on operational necessity                 (B) If the government objects to the
                                                   (C) Be informed of the purpose of the                 or mission requirements, except that a                proposed defense witness, defense
                                                preliminary hearing;                                     victim, as defined in this rule, who                  counsel may request that the
                                                   (D) Be informed of the right against                  declines to testify shall be deemed to be             preliminary hearing officer determine
                                                self-incrimination under Article 31;                     not available. If the commanding officer              whether the witness is relevant, not
                                                   (E) Except in the circumstances                       determines that the military witness is               cumulative, and necessary based on the
                                                described in R.C.M. 804(c)(2), be present                available, counsel for the government                 limited scope and purpose of the
                                                throughout the taking of evidence;                       shall make arrangements for that                      preliminary hearing.
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                                                   (F) Cross-examine witnesses on                        individual’s testimony. The                              (C) If the government does not object
                                                matters relevant to the limited scope                    commanding officer’s determination of                 to the proposed civilian witness or the
                                                and purpose of the preliminary hearing;                  unavailability due to operational                     preliminary hearing officer determines
                                                   (G) Present matters in defense and                    necessity or mission requirements is                  that the civilian witness’s testimony is
                                                mitigation relevant to the limited scope                 final. If there is a dispute among the                relevant, not cumulative, and necessary,
                                                and purpose of the preliminary hearing;                  parties, the military witness’s                       counsel for the government shall invite
                                                and                                                      commanding officer shall determine                    the civilian witness to provide


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                                                                              Federal Register / Vol. 80, No. 130 / Wednesday, July 8, 2015 / Notices                                              39081

                                                testimony and, if the individual agrees,                 reasonable efforts to obtain the                        (h) Military Rules of Evidence. The
                                                shall make arrangements for that                         evidence.                                             Military Rules of Evidence do not apply
                                                witness’s testimony. If expense to the                      (B) Evidence not under the control of              in preliminary hearings under this rule
                                                government is to be incurred, the                        the government.                                       except as follows:
                                                convening authority who directed the                        (i) Evidence not under the control of                (1) Mil. R. Evid. 301–303 and 305
                                                preliminary hearing, or the convening                    the government may be obtained                        shall apply in their entirety.
                                                authority’s delegate, shall determine                    through noncompulsory means or by                       (2) Mil. R. Evid. 412 shall apply in
                                                whether the witness testifies in person,                 subpoenas duces tecum issued by                       any case that includes a charge defined
                                                by video teleconference, by telephone,                   counsel for the government in                         as a sexual offense in Mil. R. Evid.
                                                or by similar means of remote                            accordance with the process established               412(d), except that Mil. R. Evid.
                                                testimony.                                               by R.C.M. 703.                                        412(b)(1)(C) shall not apply.
                                                                                                            (ii) Prior to the preliminary hearing,               (3) Mil. R. Evid., Section V, Privileges,
                                                Discussion                                                                                                     shall apply, except that Mil. R. Evid.
                                                                                                         defense counsel shall provide to counsel
                                                   ‘‘Factors to be considered in making                  for the government a list of evidence not             505(f)–(h) and (j); 506(f)–(h), (j), (k), and
                                                this determination include the costs of                  under the control of the government that              (m); and 514(d)(6) shall not apply.
                                                producing the witness; the timing of the                                                                         (4) In applying these rules to a
                                                                                                         the accused requests the government
                                                request for production of the witness;                                                                         preliminary hearing, the term ‘‘military
                                                                                                         obtain. The preliminary hearing officer
                                                the potential delay in the proceeding                                                                          judge,’’ as used in these rules, shall
                                                                                                         may set a deadline by which defense
                                                that may be caused by the production of                                                                        mean the preliminary hearing officer,
                                                                                                         requests must be received. Counsel for
                                                the witness; the willingness of the                                                                            who shall assume the military judge’s
                                                                                                         the government shall respond that
                                                witness to testify in person; and, for                                                                         authority to exclude evidence from the
                                                                                                         either: (1) the government agrees that
                                                child witnesses, the traumatic effect of                                                                       preliminary hearing, and who shall, in
                                                                                                         the evidence is relevant, not cumulative,
                                                providing in-person testimony. Civilian                                                                        discharging this duty, follow the
                                                                                                         and necessary for the limited scope and
                                                witnesses may not be compelled to                                                                              procedures set forth in the rules cited in
                                                                                                         purpose of the preliminary hearing and
                                                provide testimony at a preliminary                                                                             subsections (h)(1)–3) of this rule.
                                                                                                         shall issue subpoenas duces tecum for
                                                hearing. Civilian witnesses may be paid                                                                        However, the preliminary hearing
                                                                                                         the evidence; or (2) the government
                                                for travel and associated expenses to                                                                          officer is not authorized to order
                                                                                                         objects to production of the evidence on
                                                testify at a preliminary hearing. See                                                                          production of communications covered
                                                                                                         the grounds that the evidence would be
                                                Department of Defense Joint Travel                                                                             by Mil. R. Evid. 513 and 514.
                                                                                                         irrelevant, cumulative, or unnecessary
                                                Regulations.’’                                           based on the limited scope and purpose                Discussion
                                                   (3) Other evidence.                                   of the preliminary hearing.                              ‘‘The prohibition against ordering
                                                   (A) Evidence under the control of the                    (iii) If the government objects to                 production of evidence does not
                                                government.                                              production of the evidence, defense                   preclude a preliminary hearing officer
                                                   (i) Prior to the preliminary hearing,                 counsel may request that the                          from considering evidence offered by
                                                defense counsel shall provide to counsel                 preliminary hearing officer determine                 the parties under Mil. R. Evid. 513 or
                                                for the government a list of evidence                    whether the evidence should be                        514.’’
                                                under the control of the government the                  produced. If the preliminary hearing                     (5) Failure to meet the procedural
                                                accused requests the government                          officer determines that the evidence is               requirements of the applicable rules of
                                                produce to the defense for introduction                  relevant, not cumulative, and necessary               evidence shall result in exclusion of that
                                                at the preliminary hearing. The                          based on the limited scope and purpose                evidence from the preliminary hearing,
                                                preliminary hearing officer may set a                    of the preliminary hearing and that the               unless good cause is shown.
                                                deadline by which defense requests                       issuance of subpoenas duces tecum
                                                must be received. Counsel for the                        would not cause undue delay to the                    Discussion
                                                government shall respond that either:                    preliminary hearing, the preliminary                    ‘‘Before considering evidence offered
                                                (1) The government agrees that the                       hearing officer shall direct counsel for              under subsection (h)(2), the preliminary
                                                evidence is relevant, not cumulative,                    the government to issue subpoenas                     hearing officer must determine that the
                                                and necessary for the limited scope and                  duces tecum for the defense-requested                 evidence offered is relevant for the
                                                purpose of the preliminary hearing and                   evidence. The preliminary hearing                     limited scope and purpose of the
                                                shall make reasonable efforts to obtain                  officer shall note in the report of                   hearing, that the evidence is proper
                                                the evidence; or (2) the government                      preliminary hearing any failure on the                under subsection (h)(2), and that the
                                                objects to production of the evidence on                 part of counsel for the government to                 probative value of such evidence
                                                the grounds that the evidence would be                   issue subpoenas duces tecum directed                  outweighs the danger of unfair prejudice
                                                irrelevant, cumulative, or unnecessary                   by the preliminary hearing officer.                   to the alleged victim’s privacy. The
                                                based on the limited scope and purpose                                                                         preliminary hearing officer shall set
                                                of the preliminary hearing.                              Discussion
                                                                                                                                                               forth any limitations on the scope of
                                                   (ii) If the government objects to                       ‘‘A subpoena duces tecum to produce                 such evidence. Evidence offered under
                                                production of the evidence, defense                      books, papers, documents, data,                       subsection (h)(2) must be protected
                                                counsel may request that the                             electronically stored information, or                 pursuant to the Privacy Act of 1974, 5
                                                preliminary hearing officer determine                    other objects for a preliminary hearing               U.S.C. 552a. Although Mil. R. Evid.
                                                whether the evidence should be                           pursuant to Article 32 may be issued by               412(b)(1)(C) allows admission of
                                                produced. The preliminary hearing                        counsel for the government. The                       evidence of the victim’s sexual behavior
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                                                officer shall determine whether the                      preliminary hearing officer has no                    or predisposition at trial when it is
                                                evidence is relevant, not cumulative,                    authority to issue a subpoena duces                   constitutionally required, there is no
                                                and necessary based on the limited                       tecum. However, the preliminary                       constitutional requirement at an Article
                                                scope and purpose of the hearing. If the                 hearing officer may direct counsel for                32 hearing. There is likewise no
                                                preliminary hearing officer determines                   the government to issue a subpoena                    constitutional requirement for a
                                                that the evidence shall be produced,                     duces tecum for defense-requested                     preliminary hearing officer to consider
                                                counsel for the government shall make                    evidence.’’                                           evidence under Mil. R. Evid. 514(d)(6)


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                                                39082                         Federal Register / Vol. 80, No. 130 / Wednesday, July 8, 2015 / Notices

                                                at an Article 32 hearing. Evidence                       alleged offense and the reasonable right              officer may ask a witness questions
                                                deemed admissible by the preliminary                     to confer with counsel for the                        relevant to the limited scope and
                                                hearing officer should be made a part of                 government. For the purposes of this                  purpose of the hearing. When
                                                the report of preliminary hearing. See                   rule, a ‘‘victim’’ is a person who is                 questioning a witness, the preliminary
                                                subsection (j)(2)(C), of this Rule.                      alleged to have suffered a direct                     hearing officer may not depart from an
                                                Evidence not considered, and the                         physical, emotional, or pecuniary harm                impartial role and become an advocate
                                                testimony taken during a closed hearing,                 as a result of the matters set forth in a             for either side.’’
                                                should not be included in the report of                  charge or specification under                            (B) Other evidence. If relevant to the
                                                preliminary hearing but should be                        consideration and is named in one of                  limited scope and purpose of the
                                                appropriately safeguarded or sealed.                     the specifications under consideration.               preliminary hearing, and not
                                                The preliminary hearing officer and                         (B) A victim of an offense under                   cumulative, a preliminary hearing
                                                counsel representing the government are                  consideration at the preliminary hearing              officer may consider other evidence, in
                                                responsible for careful handling of any                  is not required to testify at the                     addition to or in lieu of witness
                                                such evidence to prevent unauthorized                    preliminary hearing.                                  testimony, including statements,
                                                viewing or disclosure.’’                                    (C) A victim has the right not to be               tangible evidence, or reproductions
                                                   (i) Procedure.                                        excluded from any portion of a                        thereof, offered by either side, that the
                                                   (1) Generally. The preliminary                        preliminary hearing related to the                    preliminary hearing officer determines
                                                hearing shall begin with the preliminary                 alleged offense, unless the preliminary               is reliable. This other evidence need not
                                                hearing officer informing the accused of                 hearing officer, after receiving clear and            be sworn.
                                                the accused’s rights under subsection (f)                convincing evidence, determines the                      (4) Access by spectators. Preliminary
                                                of this rule. Counsel for the government                 testimony by the victim would be                      hearings are public proceedings and
                                                will then present evidence. Upon the                     materially altered if the victim heard                should remain open to the public
                                                conclusion of counsel for the                            other testimony at the proceeding.                    whenever possible. The convening
                                                government’s presentation of evidence,                      (D) A victim shall be excluded if a                authority who directed the preliminary
                                                defense counsel may present matters in                   privilege set forth in Mil. R. Evid. 505              hearing or the preliminary hearing
                                                defense and mitigation consistent with                   or 506 is invoked or if evidence is                   officer may restrict or foreclose access
                                                subsection (f) of this rule. For the                     offered under Mil. R. Evid. 412, 513, or              by spectators to all or part of the
                                                purposes of this rule, ‘‘matters in                      514, for charges other than those in                  proceedings if an overriding interest
                                                mitigation’’ are defined as matters that                 which the victim is named.                            exists that outweighs the value of an
                                                may serve to explain the circumstances                      (3) Presentation of evidence.                      open preliminary hearing. Examples of
                                                surrounding a charged offense. Both                         (A) Testimony. Witness testimony                   overriding interests may include:
                                                counsel for the government and defense                   may be provided in person, by video                   preventing psychological harm or
                                                shall be afforded an opportunity to                      teleconference, by telephone, or by                   trauma to a child witness or an alleged
                                                cross-examine adverse witnesses. The                     similar means of remote testimony. All                victim of a sexual crime, protecting the
                                                preliminary hearing officer may also                     testimony shall be taken under oath,                  safety or privacy of a witness or alleged
                                                question witnesses called by the parties.                except that the accused may make an                   victim, protecting classified material,
                                                If the preliminary hearing officer                       unsworn statement. The preliminary                    and receiving evidence where a witness
                                                determines that additional evidence is                   hearing officer shall only consider                   is incapable of testifying in an open
                                                necessary to satisfy the requirements of                 testimony that is relevant to the limited             setting. Any closure must be narrowly
                                                subsection (e) of this rule, the                         scope and purpose of the preliminary                  tailored to achieve the overriding
                                                preliminary hearing officer may provide                  hearing.                                              interest that justified the closure.
                                                the parties an opportunity to present
                                                                                                         Discussion                                            Convening authorities or preliminary
                                                additional testimony or evidence
                                                                                                           ‘‘The following oath may be given to                hearing officers must conclude that no
                                                relevant to the limited scope and
                                                                                                         witnesses:                                            lesser methods short of closing the
                                                purpose of the preliminary hearing. The
                                                                                                           ‘‘Do you (swear) (affirm) that the                  preliminary hearing can be used to
                                                preliminary hearing officer shall not
                                                                                                         evidence you give shall be the truth, the             protect the overriding interest in the
                                                consider evidence not presented at the
                                                                                                         whole truth, and nothing but the truth                case. Convening authorities or
                                                preliminary hearing. The preliminary
                                                                                                         (so help you God)?’’                                  preliminary hearing officers must
                                                hearing officer shall not call witnesses
                                                                                                           The preliminary hearing officer is                  conduct a case-by-case, witness-by-
                                                sua sponte.
                                                                                                         required to include in the report of the              witness, circumstance-by-circumstance
                                                Discussion                                               preliminary hearing, at a minimum, a                  analysis of whether closure is necessary.
                                                   ‘‘A preliminary hearing officer may                   summary of the substance of all                       If a convening authority or preliminary
                                                only consider evidence within the                        testimony. See subsection (j)(2)(B) of                hearing officer believes closing the
                                                limited purpose of the preliminary                       this rule.                                            preliminary hearing is necessary, the
                                                hearing and shall ensure that the scope                    All preliminary hearing officer notes               convening authority or preliminary
                                                of the hearing is limited to that purpose.               of testimony and recordings of                        hearing officer must make specific
                                                When the preliminary hearing officer                     testimony should be preserved until the               findings of fact in writing that support
                                                finds that evidence offered by either                    end of trial.                                         the closure. The written findings of fact
                                                party is not within the scope of the                       If during the preliminary hearing any               must be included in the report of
                                                hearing, he shall inform the parties and                 witness subject to the Code is suspected              preliminary hearing.
                                                                                                         of an offense under the Code, the                        (5) Presence of accused. The further
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                                                halt the presentation of that
                                                information.’’                                           preliminary hearing officer should                    progress of the taking of evidence shall
                                                   (2) Notice to and presence of the                     comply with the warning requirements                  not be prevented and the accused shall
                                                victim(s).                                               of Mil. R. Evid. 305(c), (d), and, if                 be considered to have waived the right
                                                   (A) The victim(s) of an offense under                 necessary, (e).                                       to be present whenever the accused:
                                                the UCMJ has the right to reasonable,                      Bearing in mind that counsel are                       (A) After being notified of the time
                                                accurate, and timely notice of a                         responsible for preparing and presenting              and place of the proceeding is
                                                preliminary hearing relating to the                      their cases, the preliminary hearing                  voluntarily absent; or


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                                                                              Federal Register / Vol. 80, No. 130 / Wednesday, July 8, 2015 / Notices                                              39083

                                                   (B) After being warned by the                            (C) Any other statements, documents,               accused has 5 days to submit objections
                                                preliminary hearing officer that                         or matters considered by the                          to the preliminary hearing officer. The
                                                disruptive conduct will cause removal                    preliminary hearing officer, or recitals of           preliminary hearing officer will forward
                                                from the proceeding, persists in conduct                 the substance or nature of such                       the objections to the convening
                                                that is such as to justify exclusion from                evidence;                                             authority as soon as practicable. This
                                                the proceeding.                                             (D) A statement that an essential                  subsection does not prohibit a
                                                   (6) Recording of the preliminary                      witness may not be available for trial;               convening authority from referring the
                                                hearing. Counsel for the government                         (E) An explanation of any delays in                charge(s) or taking other action within
                                                shall ensure that the preliminary                        the preliminary hearing;                              the 5-day period.
                                                hearing is recorded by a suitable                           (F) A notation if counsel for the                    (k) Waiver. The accused may waive a
                                                recording device. A victim, as defined                   government failed to issue a subpoena                 preliminary hearing under this rule.
                                                by subsection (i)(2)(A) of this rule, may                duces tecum that was directed by the                  However, the convening authority
                                                request access to, or a copy of, the                     preliminary hearing officer;                          authorized to direct the preliminary
                                                recording of the proceedings. Upon                          (G) The preliminary hearing officer’s              hearing may direct that it be conducted
                                                request, counsel for the government                      determination as to whether there is                  notwithstanding the waiver. Failure to
                                                shall provide the requested access to, or                probable cause to believe the offense(s)              make a timely objection under this rule,
                                                a copy of, the recording to the victim                   listed on the charge sheet or otherwise               including an objection to the report,
                                                not later than a reasonable time                         considered at the preliminary hearing                 shall constitute waiver of the objection.
                                                following dismissal of the charges,                      occurred;                                             Relief from the waiver may be granted
                                                unless charges are dismissed for the                        (H) The preliminary hearing officer’s              by the convening authority who
                                                purpose of re-referral, or court-martial                 determination as to whether there is                  directed the preliminary hearing, a
                                                adjournment. A victim is not entitled to                 probable cause to believe the accused                 superior convening authority, or the
                                                classified information or access to or a                 committed the offense(s) listed on the                military judge, as appropriate, for good
                                                copy of a recording of closed sessions                   charge sheet or otherwise considered at               cause shown.
                                                that the victim did not have the right to                the preliminary hearing;
                                                                                                            (I) The preliminary hearing officer’s              Discussion
                                                attend under subsections (i)(2)(C) or
                                                (i)(2)(D) of this rule.                                  determination as to whether a court-                     ‘‘See also R.C.M. 905(b)(1); 906(b)(3).
                                                                                                         martial has jurisdiction over the                        The convening authority who receives
                                                Discussion                                               offense(s) and the accused;                           an objection may direct that the
                                                   ‘‘Counsel for the government shall                       (J) The preliminary hearing officer’s              preliminary hearing be reopened or take
                                                provide victims with access to, or a                     determination as to whether the                       other action, as appropriate.’’
                                                                                                         charge(s) and specification(s) are in                    (i) A new Discussion section is added
                                                copy of, the recording of the
                                                                                                         proper form; and                                      immediately after R.C.M. 601(g):
                                                proceedings in accordance with such                                                                               (g) Parallel convening authorities. If it
                                                                                                            (K) The preliminary hearing officer’s
                                                regulations as the Secretary concerned                                                                         is impracticable for the original
                                                                                                         recommendations regarding disposition
                                                may prescribe.’’                                                                                               convening authority to continue
                                                                                                         of the charge(s).
                                                   (7) Objections. Any objection alleging                                                                      exercising authority over the charges,
                                                a failure to comply with this rule shall                 Discussion                                            the convening authority may cause the
                                                be made to the convening authority via                     ‘‘The preliminary hearing officer may               charges, even if referred, to be
                                                the preliminary hearing officer.                         include any additional matters useful to              transmitted to a parallel convening
                                                   (8) Sealed exhibits and proceedings.                  the convening authority in determining                authority. This transmittal must be in
                                                The preliminary hearing officer has the                  disposition. The preliminary hearing                  writing and in accordance with such
                                                authority to order exhibits, proceedings,                officer may recommend that the charges                regulations as the Secretary concerned
                                                or other matters sealed as described in                  and specifications be amended or that                 may prescribe. Subsequent actions taken
                                                R.C.M. 1103A.                                            additional charges be preferred. See                  by the parallel convening authority are
                                                   (j) Report of preliminary hearing.                    R.C.M. 306 and 401 concerning other                   within the sole discretion of that
                                                   (1) In general. The preliminary                       possible dispositions.’’                              convening authority.’’
                                                hearing officer shall make a timely                        (3) Sealed exhibits and proceedings. If
                                                written report of the preliminary                        the report of preliminary hearing                     Discussion
                                                hearing to the convening authority who                   contains exhibits, proceedings, or other                 ‘‘Parallel convening authorities are
                                                directed the preliminary hearing.                        matters ordered sealed by the                         those convening authorities that possess
                                                                                                         preliminary hearing officer in                        the same court-martial jurisdiction
                                                Discussion
                                                                                                         accordance with R.C.M. 1103A, counsel                 authority. Examples of permissible
                                                  ‘‘If practicable, the charges and the                  for the government shall cause such                   transmittal of charges under this rule
                                                report of preliminary hearing should be                  materials to be sealed so as to prevent               include the transmittal from a general
                                                forwarded to the general court-martial                   unauthorized viewing or disclosure.                   court-martial convening authority to
                                                convening authority within 8 days after                    (4) Distribution of the report. The                 another general court-martial convening
                                                an accused is ordered into arrest or                     preliminary hearing officer shall cause               authority, or from one special court-
                                                confinement. See Article 33. ‘‘                          the report to be delivered to the                     martial convening authority to another
                                                  (2) Contents. The report of                            convening authority who directed the                  special court-martial convening
                                                preliminary hearing shall include:                       preliminary hearing. That convening                   authority. It would be impracticable for
                                                  (A) A statement of names and                           authority shall promptly cause a copy of              an original convening authority to
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                                                organizations or addresses of defense                    the report to be delivered to each                    continue exercising authority over the
                                                counsel and whether defense counsel                      accused.                                              charges, for example, when a command
                                                was present throughout the taking of                       (5) Objections. Any objection to the                is being decommissioned or inactivated,
                                                evidence, or, if not present, the reason                 report shall be made to the convening                 or when deploying or redeploying and
                                                why;                                                     authority who directed the preliminary                the accused is remaining behind. If
                                                  (B) The substance of the testimony                     hearing, via the preliminary hearing                  charges have been referred, there is no
                                                taken on both sides;                                     officer. Upon receipt of the report, the              requirement that the charges be


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                                                39084                         Federal Register / Vol. 80, No. 130 / Wednesday, July 8, 2015 / Notices

                                                withdrawn or dismissed prior to                          before the court when there is an                     necessary, and that the exclusion is as
                                                transfer. See R.C.M. 604. In the event                   apparent requirement to appoint a                     narrowly tailored as possible.
                                                that the case has been referred, the                     designee under this rule.
                                                                                                                                                               Discussion
                                                receiving convening authority may
                                                                                                         Discussion                                               ‘‘The military judge must ensure that
                                                adopt the original court-martial
                                                convening order, including the court-                       ‘‘In the event a case involves multiple            the dignity and decorum of the
                                                martial panel selected to hear the case                  victims who are entitled to notice under              proceedings are maintained and that the
                                                as indicated in that convening order.                    this rule, each victim is only entitled to            other rights and interests of the parties
                                                When charges are transmitted under this                  notice relating to his or her own                     and society are protected. Public access
                                                rule, no recommendation as to                            designated representative.’’                          to a session may be limited, specific
                                                disposition may be made.’’                                  (ii) The military judge will determine             persons may be excluded from the
                                                   (j) The first sentence of the third                   if the appointment of a designee is                   courtroom, and, under unusual
                                                paragraph of the Discussion section                      required under this rule.                             circumstances, a session may be closed.
                                                immediately after R.C.M. 702(a) is                          (iii) At the discretion of the military               Exclusion of specific persons, if
                                                deleted.                                                 judge, victim(s), trial counsel, and the              unreasonable under the circumstances,
                                                   (k) The Discussion section                            accused may be given the opportunity to               may violate the accused’s right to a
                                                immediately following R.C.M.                             recommend to the military judge                       public trial, even though other
                                                702(c)(3)(A) is deleted.                                 individual(s) for appointment.                        spectators remain. Whenever specific
                                                   (l) New Discussions sections are                         (iv) The military judge is not required            persons or some members of the public
                                                added throughout R.C.M. 801(a)(6) as                     to hold a hearing before determining                  are excluded, exclusion must be limited
                                                follows:                                                 whether a designation is required or                  in time and scope to the minimum
                                                   (6) In the case of a victim of an offense             making such an appointment under this                 extent necessary to achieve the purpose
                                                under the UCMJ who is under 18 years                     rule.                                                 for which it is ordered. Prevention of
                                                of age and not a member of the armed                        (v) If the military judge determines a             over-crowding or noise may justify
                                                forces, or who is incompetent,                           hearing pursuant to Article 39(a), UCMJ,              limiting access to the courtroom.
                                                incapacitated, or deceased, designate in                 is necessary, the following shall be                  Disruptive or distracting appearance or
                                                writing a family member, a                               notified of the hearing and afforded the              conduct may justify excluding specific
                                                representative of the estate of the victim,              right to be present at the hearing: trial             persons. Specific persons may be
                                                or another suitable individual to assume                 counsel, accused, and the victim(s).                  excluded when necessary to protect
                                                the victim’s rights under the UCMJ.                         (vi) The individual designated shall               witnesses from harm or intimidation.
                                                   (A) For the purposes of this rule, the                                                                      Access may be reduced when no other
                                                                                                         not be the accused.
                                                individual is designated for the sole                                                                          means is available to relieve a witness’
                                                                                                            (C) At any time after appointment, a
                                                purpose of assuming the legal rights of                                                                        inability to testify due to embarrassment
                                                                                                         designee shall be excused upon request
                                                the victim as they pertain to the victim’s                                                                     or extreme nervousness. Witnesses will
                                                                                                         by the designee or a finding of good
                                                status as a victim of any offense(s)                                                                           ordinarily be excluded from the
                                                                                                         cause by the military judge.
                                                properly before the court.                                                                                     courtroom so that they cannot hear the
                                                                                                            (D) If the individual appointed to
                                                Discussion                                               assume the victim’s rights is excused,                testimony of other witnesses. See Mil. R.
                                                                                                         the military judge shall appoint a                    Evid. 615.
                                                  ‘‘The rights that a designee may                                                                                For purposes of this rule, the term
                                                exercise on behalf of a victim include                   successor consistent with this rule.
                                                                                                                                                               ‘‘victim of an alleged offense’’ means a
                                                the right to receive notice of public                    Discussion                                            person who has suffered direct physical,
                                                hearings in the case; the right to be                                                                          emotional, or pecuniary harm as a result
                                                reasonably heard at such hearings, if                      ‘‘The term ‘‘victim of an offense under
                                                                                                         the UCMJ’’ means a person who has                     of the commission of an offense under
                                                permitted by law; and the right to confer                                                                      the UCMJ.’’
                                                with counsel representing the                            suffered direct physical, emotional, or
                                                                                                                                                                  (n) The Discussion section following
                                                government at such hearings. The                         pecuniary harm as a result of the
                                                                                                                                                               R.C.M. 807(b)(1)(B) is amended to read
                                                designee may also be the custodial                       commission of an offense under the
                                                                                                                                                               as follows:
                                                guardian of the child.                                   UCMJ. ‘‘Good Cause’’ means adequate or                   (B) Witnesses. Each witness before a
                                                  When determining whom to appoint                       reasonable grounds to believe that the                court-martial shall be examined on oath.
                                                under this rule, the military judge may                  individual appointed to assume the
                                                consider the following: the age and                      victim’s rights is not acting or does not             Discussion
                                                maturity, relationship to the victim, and                intend to act in the best interest of the                ‘‘See R.C.M. 307 concerning the
                                                physical proximity of any proposed                       victim.’’                                             requirement for an oath in preferral of
                                                designee; the costs incurred in effecting                  (m) The Discussion section following                charges. See R.C.M. 405 and 702
                                                the appointment; the willingness of the                  R.C.M. 806(b)(1) is amended to read as                concerning the requirements for an oath
                                                proposed designee to serve in such a                     follows:                                              in Article 32 preliminary hearings and
                                                role; the previous appointment of a                        (b) Control of spectators and closure.              depositions.
                                                guardian by another court of competent                     (1) Control of spectators. In order to                 An accused making an unsworn
                                                jurisdiction; the preference of the                      maintain the dignity and decorum of the               statement is not a ‘‘witness.’’ See R.C.M.
                                                victim; any potential delay in any                       proceedings or for other good cause, the              1001(c)(2)(C).
                                                proceeding that may be caused by a                       military judge may reasonably limit the                  A victim of an offense for which the
                                                                                                         number of spectators in, and the means                accused has been found guilty is not a
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                                                specific appointment; and any other
                                                relevant information.’’                                  of access to, the courtroom, and exclude              ‘‘witness’’ when making an unsworn
                                                  (B) Procedure to determine                             specific persons from the courtroom.                  statement during the presentencing
                                                appointment of designee.                                 When excluding specific persons, the                  phase of a court-martial. See R.C.M.
                                                  (i) As soon as practicable, trial                      military judge must make findings on                  1001A.’’
                                                counsel shall notify the military judge,                 the record establishing the reason for                   (o) The Discussion section following
                                                counsel for the accused, and the                         the exclusion, the basis for the military             R.C.M. 906(b)(9) is amended to read as
                                                victim(s) of any offense(s) properly                     judge’s belief that exclusion is                      follows:


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                                                                              Federal Register / Vol. 80, No. 130 / Wednesday, July 8, 2015 / Notices                                            39085

                                                   (9) Severance of multiple accused, if                 Rule 1001A. Crime victims and                         may not be cross-examined by the trial
                                                it appears that an accused or the                        Presentencing                                         counsel or defense counsel upon it or
                                                Government is prejudiced by a joint or                      (a) In general. A crime victim of an               examined upon it by the court-martial.
                                                common trial. In a common trial, a                       offense of which the accused has been                 The prosecution or defense may,
                                                severance shall be granted whenever                      found guilty has the right to be                      however, rebut any statements of facts
                                                any accused, other than the moving                       reasonably heard at a sentencing hearing              therein. The unsworn statement may be
                                                accused, faces charges unrelated to                      relating to that offense. A victim under              oral, written, or both. When a victim is
                                                those charged against the moving                         this rule is not considered a witness for             under 18 years of age, incompetent,
                                                accused.                                                 purposes of Article 42(b). Trial counsel              incapacitated, or deceased, the unsworn
                                                                                                         shall ensure the victim is aware of the               statement may be made by the victim’s
                                                Discussion
                                                                                                         opportunity to exercise that right. If the            designee appointed under R.C.M.
                                                   ‘‘A motion for severance is a request                 victim exercises the right to be                      801(a)(6). Additionally, a victim under
                                                that one or more accused against whom                    reasonably heard, the victim shall be                 18 years of age may elect to make an
                                                charges have been referred to a joint or                 called by the court-martial. This right is            unsworn statement.
                                                common trial be tried separately. Such                                                                            (1) Procedure for presenting unsworn
                                                                                                         independent of whether the victim
                                                a request should be granted if good                                                                            statement. After the announcement of
                                                                                                         testified during findings or is called to
                                                cause is shown. For example, a                                                                                 findings, a victim who would like to
                                                                                                         testify under R.C.M. 1001.
                                                severance may be appropriate when: the                      (b) Definitions.                                   present an unsworn statement shall
                                                moving party wishes to use the                              (1) Crime victim. For purposes of this             provide a copy to the trial counsel,
                                                testimony of one or more of the                          rule, a ‘‘crime victim’’ is an individual             defense counsel, and military judge. The
                                                coaccused or the spouse of a coaccused;                  who has suffered direct physical,                     military judge may waive this
                                                a defense of a coaccused is antagonistic                 emotional, or pecuniary harm as a result              requirement for good cause shown.
                                                to the moving party; or evidence as to                   of the commission of an offense of                    Discussion
                                                any other accused will improperly                        which the accused was found guilty.
                                                prejudice the moving accused.                                                                                    ‘‘When the military judge waives the
                                                                                                            (2) Victim Impact. For the purposes of             notice requirement under this rule, the
                                                   If a severance is granted by the                      this rule, ‘‘victim impact’’ includes any
                                                military judge, the military judge will                                                                        military judge may conduct a session
                                                                                                         financial, social, psychological, or                  under Article 39(a) to ascertain the
                                                decide which accused will be tried first.                medical impact on the victim directly
                                                See R.C.M. 801(a)(1). In the case of joint                                                                     content of the victim’s anticipated
                                                                                                         relating to or arising from the offense of            unsworn statement.’’
                                                charges, the military judge will direct an               which the accused has been found
                                                appropriate amendment of the charges                                                                             (2) Upon good cause shown, the
                                                                                                         guilty.                                               military judge may permit the victim’s
                                                and specifications.                                         (3) Mitigation. For the purposes of this
                                                   See also R.C.M. 307(c)(5); 601(e)(3);                                                                       counsel to deliver all or part of the
                                                                                                         rule, ‘‘mitigation’’ includes a matter to             victim’s unsworn statement.
                                                604; 812.’’                                              lessen the punishment to be adjudged
                                                   (p) A new Discussion section is added                 by the court-martial or to furnish                    Discussion
                                                immediately after R.C.M. 1001(g):                        grounds for a recommendation of                          ‘‘If there are numerous victims, the
                                                   (g) Argument. After introduction of                   clemency.                                             military judge may reasonably limit the
                                                matters relating to sentence under this                     (4) Right to be reasonably heard.                  form of the statements provided.
                                                rule, counsel for the prosecution and                       (A) Capital cases. In capital cases, for              A victim’s unsworn statement should
                                                defense may argue for an appropriate                     purposes of this rule, the ‘‘right to be              not exceed what is permitted under
                                                sentence. Trial counsel may not in                       reasonably heard’’ means the right to                 R.C.M. 1001A(c) and may not include a
                                                argument purport to speak for the                        make a sworn statement.                               recommendation of a specific sentence.
                                                convening authority or any higher                           (B) Non-capital cases. In non-capital              Upon objection by either party or sua
                                                authority, or refer to the views of such                 cases, for purposes of this rule, the                 sponte, a military judge may stop or
                                                authorities or any policy directive                      ‘‘right to be reasonably heard’’ means                interrupt a victim’s unsworn statement
                                                relative to punishment or to any                         the right to make a sworn or unsworn                  that includes matters outside the scope
                                                punishment or quantum of punishment                      statement.                                            of R.C.M. 1001A(c). A victim, victim’s
                                                greater than that court-martial may                         (c) Content of statement. The content              counsel, or designee has no separate
                                                adjudge. Trial counsel may, however,                     of statements made under subsections                  right to present argument under R.C.M.
                                                recommend a specific lawful sentence                     (d) and (e) of this rule may include                  1001(g).’’
                                                and may also refer to generally accepted                 victim impact or matters in mitigation.                  (r) A new Discussion section is added
                                                sentencing philosophies, including                          (d) Sworn statement. The victim may                immediately after R.C.M. 1103A(b)(3):
                                                rehabilitation of the accused, general                   give a sworn statement under this rule                   (3) Authentication through action.
                                                deterrence, specific deterrence of                       and shall be subject to cross-                        After authentication and prior to
                                                misconduct by the accused, and social                    examination concerning the statement                  disposition of the record of trial
                                                retribution. Failure to object to improper               by the trial counsel or defense counsel               pursuant to Rule for Courts-Martial
                                                argument before the military judge                       or examination on the statement by the                1111, sealed materials may not be
                                                begins to instruct the members on                        court-martial, or all or any of the three.            examined in the absence of an order
                                                sentencing shall constitute waiver of the                When a victim is under 18 years of age,               from the military judge upon a showing
                                                objection.                                               incompetent, incapacitated, or                        of good cause at a post-trial Article 39a
                                                                                                         deceased, the sworn statement may be
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                                                Discussion                                                                                                     session directed by the Convening
                                                                                                         made by the victim’s designee                         Authority.
                                                  ‘‘A victim, victims’ counsel, or                       appointed under R.C.M. 801(a)(6).
                                                designee has no right to present                         Additionally, a victim under 18 years of              Discussion
                                                argument under this rule.’’                              age may elect to make a sworn                           ‘‘A convening authority who has
                                                  (q) Discussions are inserted                           statement.                                            granted clemency based upon review of
                                                throughout R.C.M. 1001A(e)(1) as                            (e) Unsworn statement. The victim                  sealed materials in the record of trial is
                                                follows:                                                 may make an unsworn statement and                     not permitted to disclose the contents of


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                                                39086                         Federal Register / Vol. 80, No. 130 / Wednesday, July 8, 2015 / Notices

                                                the sealed materials when providing a                      (E) Exceptions.                                     of a sentence. For example, if an
                                                written explanation of the reason for                      (i) Trial counsel recommendation.                   accused is found guilty of assault
                                                such action, as directed under R.C.M.                    Upon the recommendation of the trial                  consummated by a battery and
                                                1107.’’                                                  counsel, in recognition of the                        sentenced to a bad-conduct discharge,
                                                  (s) The Discussion section following                   substantial assistance by the accused in              three months of confinement, and
                                                R.C.M. 1106(d)(3) is amended to read as                  the investigation or prosecution of                   reduction to E–1, without a pre-trial
                                                follows:                                                 another person who has committed an                   agreement and without being able to
                                                  (3) Required contents. Except as                       offense, the convening authority or                   apply the substantial assistance
                                                provided in subsection (e), the staff                    another person authorized to act under                exception, the convening authority may
                                                judge advocate or legal advisor shall                    this section shall have the authority to              disapprove or reduce any part of the
                                                provide the convening authority with a                   disapprove, commute, or suspend the                   sentence except the bad-conduct
                                                copy of the report of results of the trial,              adjudged sentence, in whole or in part,               discharge.’’
                                                setting forth the findings, sentence, and                even with respect to an offense for                     (w) The Discussion section following
                                                confinement credit to be applied; a copy                 which a mandatory minimum sentence                    R.C.M. 1107(d)(2) is amended to read as
                                                or summary of the pretrial agreement, if                 exists.                                               follows:
                                                any; a copy of any statement submitted                                                                           (2) Determining what sentence should
                                                                                                         Discussion
                                                by a crime victim pursuant to R.C.M.                                                                           be approved. The convening authority
                                                1l05A; any recommendation for                              ‘‘The phrase ‘‘investigation or                     shall, subject to the limitations in
                                                clemency by the sentencing authority                     prosecution of another person who has                 subsection (d)(1) above, approve that
                                                made in conjunction with the                             committed an offense’’ includes offenses              sentence that is warranted by the
                                                announced sentence; and the staff judge                  under the UCMJ or other Federal, State,               circumstances of the offense and
                                                advocate’s concise recommendation.                       local, or foreign criminal statutes.’’                appropriate for the accused.’’
                                                                                                           (ii) Pretrial agreement. If a pretrial
                                                Discussion                                               agreement has been entered into by the                Discussion
                                                   ‘‘The recommendation required by                      convening authority and the accused as                  ‘‘In determining what sentence should
                                                this rule need not include information                   authorized by R.C.M. 705, the                         be approved, the convening authority
                                                regarding other recommendations for                      convening authority shall have the                    should consider all relevant and
                                                clemency. It may include a summary of                    authority to approve, disapprove,                     permissible factors including the
                                                clemency actions authorized under                        commute, or suspend a sentence, in                    possibility of rehabilitation, the
                                                R.C.M. 1107. See R.C.M. 1105(b)(2)(D)                    whole or in part, pursuant to the terms               deterrent effect of the sentence, and all
                                                (pertaining to clemency                                  of the pretrial agreement. The convening              matters relating to clemency, such as
                                                recommendations that may be                              authority may commute a mandatory                     pretrial confinement. See also R.C.M.
                                                submitted by the accused to the                          sentence of a dishonorable discharge to               1001–1004.
                                                convening authority).’’                                  a bad-conduct discharge pursuant to the                 When an accused is not serving
                                                   (t) The Discussion section                            terms of the pretrial agreement.                      confinement, the accused should not be
                                                immediately following R.C.M. 1107(c) is                    (F) If the convening authority acts to              deprived of more than two-thirds pay
                                                deleted.                                                 disapprove, commute, or suspend, in                   for any month as a result of one or more
                                                   (u) The Discussion section                            whole or in part, the sentence of the                 sentences by court-martial and other
                                                immediately following R.C.M.                             court-martial for an offense, the                     stoppages or involuntary deductions,
                                                1107(d)(1) is deleted.                                   convening authority shall provide, at                 unless requested by the accused. Since
                                                   (v) Discussions are inserted                          the same time, a written explanation of               court-martial forfeitures constitute a loss
                                                throughout R.C.M. 1107(d)(1) as follows:                 the reasons for such action. The written              of entitlement of the pay concerned,
                                                   (1) In general.                                       explanation shall be made a part of the               they take precedence over all debts.’’
                                                   (A) The convening authority may not                   record of trial and action thereon.’’                   (x) The Discussion section
                                                disapprove, commute, or suspend, in                                                                            immediately following R.C.M.
                                                whole or in part, any portion of an                      Discussion
                                                                                                                                                               1107(e)(1)(C) is deleted.
                                                adjudged sentence of confinement for                       ‘‘A sentence adjudged by a court-                     (y) A new Discussion section is added
                                                more than six months.                                    martial may be approved if it was                     immediately after R.C.M. 1301(c)(2):
                                                   (B) The convening authority may not                   within the jurisdiction of the court-                   (2) Notwithstanding subsection (c)(1)
                                                disapprove, commute, or suspend that                     martial to adjudge (see R.C.M. 201(f))                of this rule, summary courts-martial do
                                                portion of an adjudged sentence that                     and did not exceed the maximum limits                 not have jurisdiction over offenses
                                                includes a dismissal, dishonorable                       prescribed in Part IV and Chapter X of                under Articles 120(a), 120(b), 120b(a),
                                                discharge, or bad-conduct discharge.                     this Part for the offense(s) of which the             120b(b), forcible sodomy under Article
                                                   (C) The convening authority may                       accused legally has been found guilty.                125, and attempts thereof under Article
                                                disapprove, commute, or suspend, in                        When mitigating forfeitures, the                    80. Such offenses shall not be referred
                                                whole or in part, any portion of an                      duration and amounts of forfeiture may                to a summary court-martial.
                                                adjudged sentence when doing so is not                   be changed as long as the total amount
                                                explicitly prohibited by this Rule.                      forfeited is not increased and neither the            Discussion
                                                Actions affecting reduction in pay                       amount nor duration of the forfeitures                  ‘‘Pursuant to the National Defense
                                                grade, forfeitures of pay and allowances,                exceeds the jurisdiction of the court-                Authorization Act for Fiscal Year 2014,
                                                fines, reprimands, restrictions, and hard                martial. When mitigating confinement                  only a general court-martial has
                                                labor without confinement are not                        or hard labor without confinement, the                jurisdiction to try penetrative sex
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                                                explicitly prohibited by this Rule.                      convening authority should use the                    offenses under subsections (a) and (b) of
                                                   (D) The convening authority shall not                 equivalencies at R.C.M. 1003(b)(5)–(6),               Article 120, subsections (a) and (b) of
                                                disapprove, commute, or suspend any                      as appropriate.                                       Article 120b, Article 125, and attempts
                                                mandatory minimum sentence of                              Unless prohibited by this rule, the                 to commit such penetrative sex offenses
                                                dismissal or dishonorable discharge                      convening authority may disapprove,                   under Article 80.’’
                                                except in accordance with subsection                     mitigate, or change to a less severe                    (z) The Discussion sections to R.C.M.
                                                (E) of this rule.                                        punishment any individual component                   406(b)(4), R.C.M. 503(a)(1), and


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                                                                              Federal Register / Vol. 80, No. 130 / Wednesday, July 8, 2015 / Notices                                           39087

                                                707(c)(1) are amended by changing                        Articles 6b(a)(2)(E) and 6b(a)(4)(A),                 as amended by Section 532 of the Carl
                                                ‘‘investigating officer’’ to ‘‘preliminary               UCMJ, as created by Section 1701 of the               Levin and Howard P. ‘‘Buck’’ McKeon
                                                hearing officer’’ for preliminary hearings               National Defense Authorization Act for                National Defense Authorization Act for
                                                occurring on or after 26 December 2014.                  Fiscal Year 2014, P.L. 113–66, 26                     Fiscal Year 2015, P.L. 113–291, 19
                                                   (aa) The Discussion section to R.C.M.                 December 2013.’’                                      December 2014.’’
                                                701(a)(6)(c) is amended by changing                         (d) The Analysis for Rule 305 is                      (j) The Analysis to Rule 801(a) is
                                                ‘‘report of Article 32 investigation’’ to                amended by inserting the following at                 amended by inserting the following at
                                                ‘‘report of Article 32 preliminary                       the end:                                              the end:
                                                hearing’’ for preliminary hearings                          ‘‘(n) 2015 Amendment: R.C.M. 305(n)                   ‘‘2015 Amendment: R.C.M. 801(a)(6)
                                                occurring on or after 26 December 2014.                  was created to implement Article                      was created to implement Section 1701
                                                   (bb) The Discussion sections to R.C.M.                6b(a)(2)(E), UCMJ, as created by Section              of the National Defense Authorization
                                                705(d)(2) and R.C.M. 919(b) are                          1701 of the National Defense                          Act for Fiscal Year 2014, P.L. 113–66, 26
                                                amended by changing ‘‘Article 32                         Authorization Act for Fiscal Year 2014,               December 2013.’’
                                                investigation’’ to ‘‘Article 32                          P.L. 113–66, 26 December 2013.’’                         (k) The Analysis to Rule 806(b) is
                                                preliminary hearing’’ for preliminary                       (e) A new Analysis section is inserted             amended by inserting the following at
                                                hearings occurring on or after 26                        for Rule 404A and reads as follows:                   the end:
                                                December 2014.                                              ‘‘2015 Amendment: This is a new rule                  ‘‘2015 Amendment: R.C.M. 806(b)(2)
                                                   Section 2. Part IV, Punitive Articles,                created to implement Section 1702(a) of               was revised to implement Article
                                                is Amended as Follows:                                   the National Defense Authorization Act                6b(a)(2), Article 6b(a)(3), and Article
                                                   A new Discussion section is added                     for Fiscal Year 2014, P.L. 113–66, 26                 6b(a)(5), UCMJ, as created by Section
                                                immediately after Paragraph 16, Article                  December 2013, and applies to                         1701 of the National Defense
                                                92—Failure to obey order or regulation,                  preliminary hearings occurring on or                  Authorization Act for Fiscal Year 2014,
                                                subsection subparagraph e(3)(d):                         after 26 December 2014.                               P.L. 113–66, 26 December 2013.’’
                                                   [Note: In cases where the dereliction                    (f) The Analysis to Rule 405 is                       (l) The Analysis to Rule 906(b) is
                                                of duty resulted in death or grievous                    amended to read as follows:                           amended by inserting the following at
                                                bodily harm, add the following as                           ‘‘2015 Amendment: This rule was                    the end:
                                                applicable]                                              created to implement Section 1702(a) of                  ‘‘2015 Amendment: R.C.M. 906(b)(8)
                                                   (d) That such dereliction of duty                     the National Defense Authorization Act                was revised to implement Articles
                                                resulted in death or grievous bodily                     for Fiscal Year 2014, P.L. 113–66, 26                 6b(a)(2)(E) and 6b(a)(4)(A), UCMJ, as
                                                harm to a person other than the accused.                 December 2013. This new rule took                     created by Section 1701 of the National
                                                                                                         effect on 26 December 2014 pursuant to                Defense Authorization Act for Fiscal
                                                Discussion                                               Section 531(g)(1) of the National                     Year 2014, P.L. 113–66, 26 December
                                                  ‘‘If the dereliction of duty resulted in               Defense Authorization Act for Fiscal                  2013.’’
                                                death, the accused may also be charged                   Year 2015, P.L. 113–291, 19 December                     (m) The Analysis to Rule 1001(a) is
                                                under Article 119 or Article 134                         2014, and applies to preliminary                      amended by inserting the following at
                                                (negligent homicide), as applicable.’’                   hearings occurring on or after 26                     the end:
                                                  Section 3. Appendix 21, Analysis of                    December 2014.’’                                         ‘‘2015 Amendment: R.C.M. 1001(a)(1)
                                                the Rules for Courts-Martial, is                            (g) The Analysis to Rule 601 is                    was revised to implement Article
                                                Amended as Follows:                                      amended in paragraph (f) by removing                  6b(a)(4)(B), UCMJ, as created by Section
                                                  (a) The Analysis for Rule 201 is                       the word ‘‘new’’ before ‘‘provision.’’                1701 of the National Defense
                                                amended by inserting the following at                       (h) The Analysis to Rule 601 is                    Authorization Act for Fiscal Year 2014,
                                                the end:                                                 amended by inserting the following at                 P.L. 113–66, 26 December 2013.’’
                                                  ‘‘2015 Amendment: The discussion                       the end:                                                 (n) A new Analysis section is inserted
                                                was amended in light of Solorio v.                          ‘‘2015 Amendment: (g) Parallel                     for Rule 1001A and reads as follows:
                                                United States, 483 U.S. 435 (1987).                      convening authorities. The intent of this                ‘‘2015 Amendment: R.C.M. 1001A
                                                Solorio overruled O’Callahan v. Parker,                  new provision is to allow a successor                 was added to implement Article
                                                395 U.S. 258 (1969), which had held                      convening authority to exercise full                  6b(a)(4)(B), UCMJ, as created by Section
                                                that an offense under the Code could                     authority over charges, without having                1701 of the National Defense
                                                not be tried by court-martial unless the                 to effectuate re-referral or potentially a            Authorization Act for Fiscal Year 2014,
                                                offense was ‘‘service connected.’’                       new trial. The subsection incorporates a              P.L. 113–66, 26 December 2013,
                                                Solorio overruled O’Callahan. The                        recommendation of the May 2013 report                 concerning the right of a victim to be
                                                amendment strikes language that was                      of the Defense Legal Policy Board                     reasonably heard at a sentencing hearing
                                                inadvertently left in prior revisions of                 (DLPB), Report of the Subcommittee on                 relating to the offense. It is consistent
                                                the Manual.’’                                            Military Justice in Combat Zones. The                 with the principles of law and federal
                                                  (b) The Analysis for Rule 201(f) is                    DLPB is a Federal Advisory Committee                  practice prescribed in 18 U.S.C.
                                                amended by inserting the following at                    established to provide independent                    3771(a)(4) and Federal Rule of Criminal
                                                the end:                                                 advice to the Secretary of Defense. The               Procedure 32(i)(4)(B), which requires
                                                  ‘‘(f) 2015 Amendment: R.C.M.                           DLPB found that an inhibition to                      the court to ‘‘address any victim of the
                                                201(f)(2)(D) was created to implement                    retaining cases in an area of operations              crime who is present at sentencing’’ and
                                                Section 1705(c) of the National Defense                  is the inability of a convening authority             ‘‘permit the victim to be reasonably
                                                Authorization Act for Fiscal Year 2014,                  to transmit a case to another convening               heard.’’ See 10 U.S.C. 836(a).
                                                                                                                                                               Additionally, the June 2014 report of the
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                                                P.L. 113–66, 26 December 2013, and                       authority after referral of charges
                                                applies to offenses occurring on or after                without having to withdraw the                        Response Systems to Adult Sexual
                                                24 June 2014.’’                                          charges.’’                                            Assault Crimes Panel (RSP)
                                                  (c) The Analysis for Rule 305 is                          (i) The Analysis to Rule 702 is                    recommended that the President
                                                amended by inserting the following at                    amended by inserting the following at                 prescribe appropriate regulations to
                                                the end:                                                 the end:                                              provide victims the right to make an
                                                  ‘‘(i) 2015 Amendment: R.C.M.                              ‘‘2015 Amendment: This rule was                    unsworn victim impact statement, not
                                                305(i)(2) was revised to implement                       revised to implement Article 49, UCMJ,                subject to cross examination, during the


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                                                39088                         Federal Register / Vol. 80, No. 130 / Wednesday, July 8, 2015 / Notices

                                                presentencing proceeding. The RSP was                      ‘‘2015 Amendment: This subsection                      ‘‘2015 Amendment: Rule 514(e)(2)
                                                a congressionally mandated panel                         was revised to implement Article 60(c),               was revised in accordance with LRM v.
                                                tasked to conduct an independent                         UCMJ, as amended by Section 1702 of                   Kastenberg, 72 M.J. 364 (C.A.A.F. 2013),
                                                review and assessment of the systems                     the National Defense Authorization Act                and Section 534(c) of the Carl Levin and
                                                used to investigate, prosecute, and                      for Fiscal Year 2014, P.L. 113–66, 26                 Howard P. ‘‘Buck’’ McKeon National
                                                adjudicate crimes involving adult sexual                 December 2013, and applies to offenses                Defense Authorization Act for Fiscal
                                                assault and related offenses.’’                          occurring on or after 24 June 2014. For               Year 2015, P.L. 113–291, 19 December
                                                  (o) The Analysis to Rule 1103A is                      offenses occurring prior to 24 June 2014,             2014. Rule 514 was also revised to
                                                amended by inserting the following at                    refer to prior versions of R.C.M.                     protect communications made to the
                                                the end:                                                 1107(f).’’                                            Department of Defense Safe Helpline,
                                                  ‘‘2015 Amendment: This rule shall be                     (u) The Analysis to Rule 1108(b) is                 which is a crisis support service for
                                                implemented in a manner consistent                       amended by inserting the following at                 victims of sexual assault in the
                                                with Executive Order 13526, as                           the end:                                              Department of Defense. The Department
                                                amended, concerning classified national                    ‘‘2015 Amendment: This subsection                   of Defense Safe Helpline was
                                                security information.’’                                  was revised to implement Article 60(c),               established in 2011 under a contract
                                                  (p) The Analysis to Rule 1105(b) is                    UCMJ, as amended by Section 1702 of                   with the Rape, Abuse & Incest National
                                                amended by inserting the following at                    the National Defense Authorization Act                Network. Rule 514(e) was amended to
                                                the end:                                                 for Fiscal Year 2014, P.L. 113–66, 26                 adopt a legal threshold that must be
                                                  ‘‘2015 Amendment: R.C.M. 1105(b)                       December 2013, and applies to offenses                satisfied before a military judge may
                                                was revised to implement Section 1706                    occurring on or after 24 June 2014. For               order an in camera review of records or
                                                of the National Defense Authorization                    offenses occurring prior to 24 June 2014,             communications falling within the
                                                Act for Fiscal Year 2014, P.L. 113–66, 26                refer to prior versions of R.C.M.                     privilege. While not required by Section
                                                December 2013, and applies to offenses                   1108(b).’’                                            537 of the Carl Levin and Howard P.
                                                occurring on or after 24 June 2014.’’                      (v) The Analysis to Rule 1301(c) is                 ‘‘Buck’’ McKeon National Defense
                                                  (q) The Analysis to Rule 1107(b) is                    amended by inserting the following at                 Authorization Act for Fiscal Year 2015,
                                                amended by inserting the following at                    the end:                                              the Rule 514 threshold was modeled
                                                the end:                                                   ‘‘2015 Amendment: This subsection                   after the Rule 513 threshold required by
                                                  ‘‘2015 Amendment: This subsection                      was revised to implement Section 1705                 that Section.’’
                                                                                                         of the National Defense Authorization                    (e) The Analysis to Rule 615 is
                                                was revised to implement Article 60(c),
                                                                                                         Act for Fiscal Year 2014, P.L. 113–66, 26             amended by inserting the following at
                                                UCMJ, as amended by Section 1702 of
                                                                                                         December 2013, and applies to offenses                the end:
                                                the National Defense Authorization Act                                                                            ‘‘2015 Amendment: Rule 615(e) was
                                                for Fiscal Year 2014, P.L. 113–66, 26                    occurring on or after 24 June 2014.’’
                                                                                                           Section 4. Appendix 22, Analysis of                 revised to implement Section 1701 of
                                                December 2013, as well as Section 1706                                                                         the National Defense Authorization Act
                                                                                                         the Military Rules of Evidence, is
                                                of the National Defense Authorization                                                                          for Fiscal Year 2014, P.L. 113–66, 26
                                                                                                         Amended as Follows:
                                                Act for Fiscal Year 2014, P.L. 113–66, 26                                                                      December 2013.’’
                                                                                                           (a) The Analysis to Rule 404 is
                                                December 2013, and applies to offenses                                                                            Section 5. Appendix 23, Analysis of
                                                                                                         amended by inserting the following at
                                                occurring on or after 24 June 2014. For                                                                        Punitive Articles, is Amended as
                                                                                                         the end:
                                                offenses occurring prior to 24 June 2014,                  ‘‘2015 Amendment: This rule was                     Follows:
                                                refer to prior versions of R.C.M.                        revised to implement Section 536 of the                  Paragraph 16, Article 92—Failure to
                                                1107(b).’’                                               Carl Levin and Howard P. ‘‘Buck’’                     obey order or regulation, is amended by
                                                  (r) The Analysis to Rule 1107(c) is                    McKeon National Defense Authorization                 inserting the following at the end:
                                                amended to read as follows:                              Act for Fiscal Year 2015, P.L. 113–291,                  ‘‘2015 Amendment: Subparagraph
                                                  ‘‘2015 Amendment: This subsection                      19 December 2014.’’                                   b(3) was amended to increase the
                                                was substantially revised to implement                     (b) The Analysis to Rule 412 is                     punishment for dereliction of duty
                                                Article 60(c), UCMJ, as amended by                       amended by inserting the following at                 when such dereliction results in
                                                Section 1702 of the National Defense                     the end:                                              grievous bodily harm or death.
                                                Authorization Act for Fiscal Year 2014,                    ‘‘2015 Amendment: Rule 412(c)(2)                    Subsection b(3)(d) incorporates a
                                                P.L. 113–66, 26 December 2013, and                       was revised in accordance with LRM v.                 recommendation of the May 2013 report
                                                applies to offenses occurring on or after                Kastenberg, 72 M.J. 364 (C.A.A.F. 2013),              of the Defense Legal Policy Board
                                                24 June 2014. For offenses occurring                     and Section 534(c) of the Carl Levin and              (DLPB), Report of the Subcommittee on
                                                prior to 24 June 2014, refer to prior                    Howard P. ‘‘Buck’’ McKeon National                    Military Justice in Combat Zones. The
                                                versions of R.C.M. 1107(c).’’                            Defense Authorization Act for Fiscal                  DLPB is a Federal Advisory Committee
                                                  (s) The Analysis to Rule 1107(d) is                    Year 2015, P.L. 113–291, 19 December                  established to provide independent
                                                removed and new analysis is amended                      2014.’’                                               advice to the Secretary of Defense. The
                                                to read as follows:                                        (c) The Analysis to Rule 513 is                     DLPB subcommittee primarily focused
                                                  ‘‘2015 Amendment: This subsection                      amended by inserting the following at                 on civilian casualties in a deployed
                                                was substantially revised to implement                   the end:                                              environment, and the DLPB found that
                                                Article 60(c), UCMJ, as amended by                         ‘‘2015 Amendment: Rule 513(e)(2)                    the maximum punishment for
                                                Section 1702 of the National Defense                     was revised in accordance with LRM v.                 dereliction of duty was not
                                                Authorization Act for Fiscal Year 2014,                  Kastenberg, 72 M.J. 364 (C.A.A.F. 2013),              commensurate with the potential
                                                P.L. 113–66, 26 December 2013, and                       and Sections 534(c) and 537 of the Carl               consequences of dereliction resulting in
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                                                applies to offenses occurring on or after                Levin and Howard P. ‘‘Buck’’ McKeon                   civilian casualties. The DLPB also found
                                                24 June 2014. For offenses occurring                     National Defense Authorization Act for                that the available punishment did not
                                                prior to 24 June 2014, refer to prior                    Fiscal Year 2015, P.L. 113–291, 19                    make alternative dispositions to court-
                                                versions of R.C.M. 1107(d).’’                            December 2014.’’                                      martial a practical option because there
                                                  (t) The Analysis to Rule 1107(f) is                      (d) The Analysis to Rule 514 is                     was little incentive for an accused to
                                                amended by inserting the following at                    amended by inserting the following at                 accept these alternatives. This rule
                                                the end:                                                 the end:                                              expands on the recommendation of the


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                                                                              Federal Register / Vol. 80, No. 130 / Wednesday, July 8, 2015 / Notices                                                  39089

                                                DLPB and includes elevated maximum                       Property Management.’’ The Board will                 Federal Advisory Committee Act of
                                                punishment for dereliction of duty that                  also deliberate the findings and                      1972, the public or interested
                                                results in death or grievous bodily harm                 recommendations from the Task Group                   organizations may submit written
                                                suffered by any person.’’                                on ‘‘Fostering an Innovative Culture                  comments to the Board about its
                                                  Dated: July 2, 2015.                                   through Corporate Engagement and                      mission and topics pertaining to this
                                                Aaron Siegel,
                                                                                                         Partnership.’’                                        public meeting.
                                                                                                            The mission of the Board is to                       Written comments should be received
                                                Alternate OSD Federal Register Liaison                                                                         by the DFO at least five (5) business
                                                Officer, Department of Defense.
                                                                                                         examine and advise the Secretary of
                                                                                                         Defense on overall DoD management                     days prior to the meeting date so that
                                                [FR Doc. 2015–16696 Filed 7–7–15; 8:45 am]
                                                                                                         and governance. The Board provides                    the comments may be made available to
                                                BILLING CODE 5001–06–P                                                                                         the Board for their consideration prior
                                                                                                         independent advice which reflects an
                                                                                                         outside private sector perspective on                 to the meeting. Written comments
                                                                                                         proven and effective best business                    should be submitted via email to the
                                                DEPARTMENT OF DEFENSE                                                                                          email address for public comments
                                                                                                         practices that can be applied to DoD.
                                                Office of the Secretary                                     Availability of Materials for the                  given in the FOR FURTHER INFORMATION
                                                                                                         Meeting: A copy of the agenda and the                 CONTACT section in either Adobe
                                                Defense Business Board; Notice of                        terms of reference for each Task Group                Acrobat or Microsoft Word format.
                                                Federal Advisory Committee Meeting                       study may be obtained from the Board’s                Please note that since the Board
                                                                                                         Web site at http://dbb.defense.gov/                   operates under the provisions of the
                                                AGENCY:   DoD.                                           meetings. Copies will also be available               Federal Advisory Committee Act, as
                                                ACTION:   Meeting notice.                                at the meeting.                                       amended, all submitted comments and
                                                                                                            Meeting Agenda:                                    public presentations will be treated as
                                                SUMMARY:   The Department of Defense is                                                                        public documents and will be made
                                                                                                         1:30 p.m.–1:40 p.m.—Opening remarks
                                                publishing this notice to announce the                   1:40 p.m.–2:00 p.m.—Task Group                        available for public inspection,
                                                following Federal advisory committee                        Update on ‘‘Best Practices for Real                including, but not limited to, being
                                                meeting of the Defense Business Board.                      Property Management.’’                             posted on the Board’s Web site.
                                                This meeting is open to the public.                      2:00 p.m.–3:15 p.m.—Task Group Out-                     Dated: July 1, 2015.
                                                DATES: The public meeting of the                            brief and Board Deliberations on                   Aaron Siegel,
                                                Defense Business Board (‘‘the Board’’)                      ‘‘Fostering an Innovative Culture
                                                will be held on Thursday, July 23, 2015.                                                                       Alternate OSD Federal Register Liaison
                                                                                                            through Corporate Engagement and                   Officer, Department of Defense.
                                                The meeting will begin at 1:30 p.m. and                     Partnership.’’                                     [FR Doc. 2015–16630 Filed 7–7–15; 8:45 am]
                                                end at 3:15 p.m. (Escort required; see
                                                guidance in the SUPPLEMENTARY                               If time permits, the Board will hear               BILLING CODE 5001–06–P

                                                INFORMATION section, ‘‘Public’s                          oral comments. Written public
                                                Accessibility to the Meeting.’’)                         comments are strongly encouraged.
                                                                                                            Public’s Accessibility to the Meeting:             DEPARTMENT OF DEFENSE
                                                ADDRESSES: Room 3E863 in the
                                                                                                         Pursuant to 5 U.S.C. 552b and 41 CFR
                                                Pentagon, Washington, DC (Escort                                                                               Office of the Secretary
                                                                                                         102–3.140 through 102–3.165, and the
                                                required; See guidance in the
                                                                                                         availability of space, this meeting is
                                                SUPPLEMENTARY INFORMATION section,                                                                             Independent Review Panel on Military
                                                                                                         open to the public. Seating is limited
                                                ‘‘Public’s Accessibility to the Meeting.’’)                                                                    Medical Construction Standards;
                                                                                                         and is on a first-come basis. All
                                                FOR FURTHER INFORMATION CONTACT: The                                                                           Notice of Federal Advisory Committee
                                                                                                         members of the public who wish to
                                                Board’s Designated Federal Officer is                                                                          Meeting; Cancellation
                                                                                                         attend the public meeting must contact
                                                Marcia Moore, Defense Business Board,                    Mr. Steven Cruddas at the number listed               AGENCY:   Department of Defense (DoD).
                                                1155 Defense Pentagon, Room 5B1088A,                     in the FOR FURTHER INFORMATION                        ACTION:   Notice of meeting; cancellation.
                                                Washington, DC 20301–1155,                               CONTACT section no later than 12:00 p.m.
                                                marcia.L.moore12.civ@mail.mil, 703–                      on Thursday, July 16, 2015 to register                SUMMARY:   On Tuesday, June 23, 2015
                                                695–7563. For meeting information                        and make arrangements for a Pentagon                  (80 FR 35943–35944), the Department of
                                                please contact Mr. Steven Cruddas,                       escort, if necessary. Public attendees                Defense published a notice announcing
                                                Defense Business Board, 1155 Defense                     requiring escort should arrive at the                 a meeting of the Independent Review
                                                Pentagon, Room 5B1088A, Washington,                      Pentagon Metro Entrance with sufficient               Panel on Military Medical Construction
                                                DC 20301–1155, steven.m.cruddas.ctr@                     time to complete security screening no                Standards (‘‘the Panel’’), which was
                                                mail.mil, (703) 697–2168. For                            later than 1:00 p.m. on July 23. To                   scheduled for Tuesday, July 14, 2015.
                                                submitting written comments or                           complete security screening, please                   This notice announces the cancellation
                                                questions to the Board, send via email                   come prepared to present two forms of                 of the July 14, 2015 meeting. Due to the
                                                to mailbox address:                                      identification and one must be a                      Panel’s desire to present a more
                                                osd.pentagon.odam.mbx.defense-                           pictured identification card.                         inclusive report for public deliberation
                                                business-board@mail.mil.                                    Special Accommodations: Individuals                that further addresses the requirement,
                                                SUPPLEMENTARY INFORMATION: This                          requiring special accommodations to                   the scheduled Panel meeting on July 14,
                                                meeting is being held under the                          access the public meeting should                      2015 is cancelled.
                                                provisions of the Federal Advisory                       contact Mr. Cruddas at least five (5)                 FOR FURTHER INFORMATION CONTACT: Ms.
                                                Committee Act of 1972 (5 U.S.C.,                                                                               Christine Bader, christine.e.bader.civ@
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                                                                                                         business days prior to the meeting so
                                                Appendix, as amended), the                               that appropriate arrangements can be                  mail.mil, (703) 681–6653 or Ms. Kendal
                                                Government in the Sunshine Act of                        made.                                                 Brown, kendal.l.brown2.ctr@mail.mil,
                                                1976 (5 U.S.C. 552b, as amended), and                                                                          (703) 681–6670.
                                                41 CFR 102–3.150.                                        Procedures for Providing Public
                                                                                                                                                               SUPPLEMENTARY INFORMATION:
                                                   Purpose of the Meeting: The Board                     Comments                                                Meeting Announcement: Due to the
                                                will hear an update from the Task                          Pursuant to 41 CFR 102–3.105(j) and                 Panel’s desire to present a more
                                                Group on ‘‘Best Practices for Real                       102–3.140, and section 10(a)(3) of the                inclusive report for public deliberation


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Document Created: 2018-02-23 09:12:35
Document Modified: 2018-02-23 09:12:35
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionNotices
ActionPublication of Discussion and Analysis (Supplementary Materials) accompanying the Manual for Courts-Martial, United States (2012 ed.) (MCM).
DatesThe Analysis is effective as of July 8, 2015.
ContactCapt. Harlye S. Carlton, USMC, (703) 963-9299 or [email protected] The JSC Web site is located at: http://jsc.defense.gov.
FR Citation80 FR 39077 

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