83 FR 53020 - Foreign Criminal and Civil Jurisdiction
DEPARTMENT OF DEFENSE
Office of the Secretary Federal Register Volume 83, Issue 203 (October 19, 2018)
Office of the Secretary
Federal Register Volume 83, Issue 203 (October 19, 2018)
| Page Range | 53020-53023 | |
| FR Document | 2018-22752 |
[Federal Register Volume 83, Number 203 (Friday, October 19, 2018)] [Proposed Rules] [Pages 53020-53023] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-22752] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF DEFENSE Office of the Secretary 32 CFR Part 151 [Docket ID: DOD-2012-OS-0069] RIN 0790-AI89 Foreign Criminal and Civil Jurisdiction AGENCY: Department of Defense (DoD). ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: This rule describes procedures concerning trial by foreign criminal courts of, treatment in foreign prisons of, and the payment of counsel fees in certain civil cases for individuals referred to collectively in this rule as ``dependents of DoD personnel.'' DATES: Comments must be received by December 18, 2018. ADDRESSES: You may submit comments, identified by docket number and or RIN number and title, by any of the following methods:Federal Rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. Mail: Department of Defense, Office of the Chief Management Officer, Directorate for Oversight and Compliance, 4800 Mark Center Drive, Mailbox #24, Suite 08D09, Alexandria, VA 22350-1700. Instructions: All submissions received must include the agency name and docket number or Regulatory Information Number (RIN). The general policy for comments and other submissions from members of the public is to make these submissions available at http://www.regulations.gov as they are received without change, including any personal identifiers or contact information. FOR FURTHER INFORMATION CONTACT: Bart Wager, 703-571-9355. SUPPLEMENTARY INFORMATION: Authorities Taken together, two statutes authorize the Secretary of Defense to issue legally binding guidelines on the Department of Defense. Under 10 U.S.C. 113, the Secretary has ``authority, direction, and control'' over the Department of Defense. The Department of Defense is an ``executive department,'' and the Secretary, as the head of an ``executive department,'' is empowered under 5 U.S.C. 301 to issue departmental regulations. The General Counsel of the Department of Defense has been delegated authority under Department of Defense Directive 5145.01, ``General Counsel of the Department of Defense'' (available at http://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/514501p.pdf), to issue this policy. Title 10 U.S.C. 1037 authorizes the payment of counsel and other fees in certain cases in foreign judicial tribunals and administrative agencies. Revisions Proposed by This Rule This rule will update 32 CFR part 151, ``Status of Forces Policies and Information'' which was last updated on March 28, 1980. In 1985, Section 681 of Public Law 99-145 amended 10 U.S.C. 1037 to authorize the payment of counsel fees for those ``not subject to the Uniform Code of Military Justice.'' So this rule proposes to update and describe procedures concerning trial by foreign criminal courts of, treatment in foreign prisons of, and the payment of counsel fees in certain civil cases for command-sponsored and non-command sponsored dependents of Armed Forces members, and dependents of nationals and non-nationals of the United States who are serving with or accompanying the Military Services. Summary of the Major Provisions For dependents of DoD personnel, when those dependents are in a foreign country as a result of accompanying DoD personnel who are assigned duty in that country--it is Department of Defense policy to (a) maximize the exercise of U.S. jurisdiction to the extent permissible under applicable status of forces agreements or other forms of jurisdiction arrangements; (b) protect, to the maximum extent possible, the rights of dependents of DoD personnel who may be subject to criminal trial by foreign courts and imprisonment in foreign prisons; and (c) secure, where possible, the release of an accused to the custody of U.S. authorities pending completion of all foreign judicial proceedings. A ``designated commanding officer'' (DCO) in each geographical area assigned to a Combatant Command is to (1) cooperate with the appropriate U.S. Chief of Mission and to the maximum extent possible, ensure that dependents of DoD personnel receive the same treatment, rights, and support as would be extended to U.S. Armed Forces members in comparable situations; (2) report informally and immediately to the General Counsel of the Department of Defense, the applicable geographic Combatant Commander, and the General Counsel and the Judge Advocate General of the respective Military Department, or, in the case of the Marine Corps, to the General Counsel of the Navy and the Staff Judge Advocate to the Commandant of the Marine [[Page 53021]] Corps, or, in the case of the Coast Guard, the Judge Advocate General of the Coast Guard, about important new cases or important developments in pending cases related to such dependents; and (3) take additional steps that may be authorized under relevant international agreement(s) with the receiving State to implement the policy of this part. Expected Impact of the Proposed Rule The proposed revisions are expected to cause no change to the burden or cost to dependents of DoD personnel. DoD is not changing the process for dependents to access these services and therefore does not anticipate a change in the population of eligible DoD dependents for these services. The Department will continue to provide relevant free legal services to the dependents of DoD personnel and acceptance of these legal services is entirely voluntary. Regulatory Procedures Executive Order 12866, ``Regulatory Planning and Review'' and Executive Order 13563, ``Improving Regulation and Regulatory Review'' Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distribute impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been designated a ``significant regulatory action,'' although not economically significant, under section 3(f) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget (OMB) under the requirements of these Executive Orders. Executive Order 13771, ``Reducing Regulation and Controlling Regulatory Costs'' This proposed rule is not expected to be subject to the requirements of E.O. 13771 (82 FR 9339, February 3, 2017) because this proposed rule is expected to be related to agency organization, management, or personnel. Section 202, Public Law 104-4, ``Unfunded Mandates Reform Act'' (2 U.S.C. Chapter 25) Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1532) requires agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. This proposed rule will not mandate any requirements for State, local, or tribal governments, nor will it affect private sector costs. Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601) The Department of Defense certifies that this proposed rule is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities. Therefore, the Regulatory Flexibility Act, as amended, does not require us to prepare a regulatory flexibility analysis. Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35) It has been determined that 32 CFR part 151 does not impose reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995. Executive Order 13132, ``Federalism'' Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. This proposed rule will not have a substantial effect on State and local governments. List of Subjects in 32 CFR Part 151 Courts, Foreign relations, Military personnel, Prisons. Accordingly, 32 CFR part 151 is proposed to be revised to read as follows: PART 151--FOREIGN CRIMINAL AND CIVIL JURISDICTION Sec. 151.1 Purpose. 151.2 Applicability. 151.3 Definitions. 151.4 Policy. 151.5 Responsibilities. 151.6 Procedures. Authority: 10 U.S.C. chapter 47, 10 U.S.C. 1037. Sec. 151.1 Purpose. This rule establishes policy, assigns responsibilities, and prescribes procedures, supplemental to those provided in DoD Instruction 5525.01 ``Foreign Criminal and Civil Jurisdiction,'' which will be made available at http://www.esd.whs.mil/Directives/issuances/dodi/, concerning trial by foreign criminal courts of, treatment in foreign prisons of, and the payment of counsel fees in certain civil cases for the following individuals, referred to collectively in this rule as ``dependents of DoD personnel,'' when those individuals are in a foreign country as a result of accompanying DoD personnel who are assigned duty in that country: (a) Command-sponsored and non-command sponsored dependents of Armed Forces members; (b) Dependents of nationals and non-nationals of the United States who are serving with or accompanying the Military Services (referred to in this rule as ``non-military DoD personnel'') in an area outside the United States and its territories and possessions, the Commonwealth of the Northern Mariana Islands, and the Commonwealth of Puerto Rico (referred to collectively in this rule as ``outside the United States''); (c) Dependents of DoD personnel serving under a U.S. Chief of Mission are not considered to be ``dependents of DoD personnel'' for the purposes of this rule. Sec. 151.2 Applicability. This part applies to the Office of the Secretary of Defense, the Military Departments (including the Coast Guard at all times, including when it is a Service in the Department of Homeland Security by agreement with that Department), the Office of the Chairman of the Joint Chiefs of Staff and the Joint Staff, the Combatant Commands, the Office of the Inspector General of the Department of Defense, the Defense Agencies, the DoD Field Activities, and all other organizational entities within the DoD. Sec. 151.3 Definitions. These terms and their definitions are for the purposes of this part. Armed Forces. As set forth in 10 U.S.C. 101(a)(4), the Army, Navy, Air Force, Marine Corps, and Coast Guard. Designated commanding officer (DCO). The military officer who is designated by the appropriate geographic Combatant Commander to fulfill the duties outlined in this part. Non-military DoD personnel. Nationals and non-nationals of the United States who are serving with or accompanying the Armed Forces in an area outside the United States and its territories and possessions, the northern Mariana Islands, and the Commonwealth of Puerto Rico. DoD personnel. Armed Forces members and non-military DoD personnel. Armed Forces members and non-military DoD personnel serving [[Page 53022]] under a U.S. Chief of Mission are not considered to be ``DoD personnel'' as defined in this part. Sec. 151.4 Policy. (a) The Department of Defense will, for dependents of DoD personnel when those dependents are in a foreign country accompanying DoD personnel who are assigned duty to that foreign country: (1) Maximize the exercise of U.S. jurisdiction to the extent permissible under applicable status of forces agreements or other forms of jurisdiction arrangements. (2) Protect, to the maximum extent possible, the rights of dependents of DoD personnel who may be subject to criminal trial by foreign courts and imprisonment in foreign prisons. (3) Secure, where possible, the release of an accused to the custody of U.S. authorities pending completion of all foreign judicial proceedings. (b) [Reserved] Sec. 151.5 Responsibilities. (a) The Secretaries of the Military Departments ensure the adequacy of regulations in establishing an information and education policy on the laws and customs of the host country for dependents of DoD personnel assigned to foreign areas. (b) For each country in their respective assigned area of responsibility (AOR), the geographic Combatant Commanders: (1) Oversee Command implementation of the procedures in this part. (2) Oversee DCO responsibilities, as described in paragraphs (c)(1) through (c)(4) of this section. (c) DCO responsibilities. The DCOs: (1) Are responsible for formal invocation, where applicable, of the Senate resolution procedure in each foreign country where dependents of DoD personnel are present, consistent with the U.S. Senate Resolution of Ratification, with reservations, to the North Atlantic Treaty Organization Status of Forces Agreement, as agreed to by the Senate on July 15, 1953. (2) In cooperation with the appropriate U.S. Chief of Mission and to the maximum extent possible, ensure dependents of DoD personnel receive the same treatment, rights, and support as Armed Forces members when in the custody of foreign authorities, or when confined (pre-trial and post-trial) in foreign penal institutions. DCOs will work with the appropriate U.S. Chief of Mission to make appropriate diplomatic contacts for dependents of DoD personnel who are not U.S. nationals. (3) Report informally and immediately to the General Counsel of the Department of Defense, the applicable geographic Combatant Commander, and the General Counsel and the Judge Advocate General of the respective Military Department or, in the case of the U.S. Marine Corps (USMC), to the General Counsel of the Navy and the Staff Judge Advocate to the Commandant of the Marine Corps, or, in the case of the Coast Guard, the Judge Advocate General of the Coast Guard, about important new cases or important developments in pending cases. Important cases include, but are not limited to, instances of denial of the procedural safeguards under any applicable agreement; deficiency in the treatment or conditions of confinement in foreign penal institutions; or arbitrary denial of permission to visit dependents of DoD personnel. (4) Take additional steps that may be authorized under relevant international agreements with the receiving State to implement the policy of this part. Sec. 151.6 Procedures. (a) Request to foreign authorities not to exercise their criminal and civil jurisdiction over dependents. The procedures in this section will be followed when it appears that foreign authorities may exercise criminal jurisdiction over dependents of DoD personnel: (1) When the DCO determines, after a careful consideration of all the circumstances, including consultation with the Department of Justice where the matter involves possible prosecution in U.S civilian courts, that suitable action can be taken under existing U.S. laws or administrative regulations, the DCO may request the local foreign authorities to waive the exercise of criminal jurisdiction. (2) When it appears possible that the accused may not obtain a fair trial, the commander exercising general court-martial jurisdiction over the command to which such persons are attached or with which they are associated will communicate directly with the DCO, reporting the full facts of the case. The DCO will then determine, in the light of legal procedures in effect in that country, if there is a risk that the accused will not receive a fair trial. If the DCO determines that there is a risk that the accused will not receive a fair trial, the DCO will decide, after consultation with the U.S. Chief of Mission, whether a request should be submitted through diplomatic channels to foreign authorities seeking their assurances of a fair trial for the accused or, in appropriate circumstances, that they waive the exercise of jurisdiction over the accused. If the DCO so decides, a recommendation will be submitted through the geographic Combatant Commander and the Chairman of the Joint Chiefs of Staff to the Secretary of Defense. Copies must be provided to the Secretary concerned and the GC DoD. (b) Trial observers and trial observers' reports. (1) U.S. observers at trials before courts of the receiving country (referred to in this rule as ``trial observers'') must attend and prepare formal reports in all cases of trials by foreign courts or tribunals of dependents of DoD personnel, except for minor offenses. In cases of minor offenses, the observer will attend the trial at the discretion of the DCO, but will not be required to make a formal report. (i) Unless directed by the DCO, trial observers are not required to attend all preliminary proceedings, such as scheduling hearings, but will attend the trial on the merits and other pre- and post-trial proceedings where significant procedural or substantive matters are decided. (ii) Trial observer reports regarding dependents of DoD personnel will be handled and processed pursuant to DoD Instruction 5525.01(4)(b- c). (2) The DCO, upon receipt of a trial observer report, will be responsible for determining whether: (i) There was any failure to comply with the procedural safeguards secured by the pertinent status of forces agreement. (ii) The accused received a fair trial under all the circumstances. Due regard should be given to those fair trial rights listed in DoD Instruction 5525.01 ``Foreign Criminal and Civil Jurisdiction,'' Enclosure 5, ``Fair Trial Guarantees'' that are relevant to the particular facts and circumstances of the trial. A trial will not be determined to be unfair merely because it is not conducted in a manner identical to trials held in the United States. (A) If the DCO believes that the procedural safeguards specified in pertinent agreements were denied or that the trial was otherwise unjust, the DCO will submit a recommendation as to appropriate action to rectify the trial deficiencies and otherwise to protect the rights or interests of the accused. This recommendation must include a statement of efforts taken or to be taken at the local level to protect the rights of the accused. (B) The DCO will submit the recommendation to the Secretary of Defense, through the Under Secretary of Defense for Policy (with an advance copy to the General Counsel of the Department of Defense); copies must be [[Page 53023]] provided to the geographic Combatant Commander concerned, the General Counsel and the Judge Advocate General of the Military Department concerned or, in the case of the USMC, to the General Counsel of the Navy and the Staff Judge Advocate to the Commandant of the Marine Corps, or, in the case of the Coast Guard, the Judge Advocate General of the Coast Guard, and the Chairman of the Joint Chiefs of Staff. (c) Counsel fees and related assistance for U.S. personnel not subject to the UCMJ. In cases of exceptional interest to the Military Department concerned or the Department of Homeland Security involving non-military DoD personnel, the Secretary of that Military Department or the Secretary of Homeland Security may approve, pursuant to 10 U.S.C. 1037, under the following circumstances: (1) Criminal cases. Requests for the provision of counsel fees and payment of expenses in criminal cases may be approved in pre-trial, trial, appellate, and post-trial proceedings in any criminal case where: (i) The sentence that is normally imposed includes confinement, whether or not such sentence is suspended; (ii) Capital punishment might be imposed; (iii) An appeal is made from any proceeding in which there appears to have been a denial of the substantial rights of the accused; (iv) The case, although not within the criteria established in paragraphs (c)(1)(i) through (c)(1)(iii) of this section, is considered to have significant impact on U.S. interests, including upon the relations of the Armed Forces with the host country. (2) Civil cases. Requests for provision of counsel fees and payment of expenses in civil cases may be granted in trial and appellate proceedings in civil cases where the case is considered to have a significant impact on the relations of the Armed Forces with the host country; or in cases brought against eligible non-military DoD personnel (and in exceptional cases, by such personnel) if the case is considered to involve any other U.S. interest. (3) Funding restrictions. (i) No funds will be provided under this part in cases where the U.S. Government is--in actuality or in legal effect--the plaintiff or the defendant; all such cases shall be referred to the Department of Justice, Office of Foreign Litigation. No funds will be provided under this part in cases where the non-military DoD personnel member is a plaintiff without prior authorization of the Secretary of the Military Department concerned or the Secretary of Homeland Security. The provisions of this paragraph also are applicable to proceedings with civil aspects that are brought by eligible personnel as criminal cases in accordance with local law. Funds for the posting of bail or bond to secure the release of non-military DoD personnel from confinement will be used as provided by applicable Armed Force regulations. (ii) No funds will be provided under paragraph (c)(2) of this section to a plaintiff who, if successful, will receive an award, in whole or in part, from the United States. (iii) As provided for in 10 U.S.C. 1037, a person on whose behalf a payment is made under this provision is not liable to reimburse the United States for that payment, unless he or she is responsible for the forfeiture of bail provided for him or her under this provision. (d) Treatment of dependents confined in foreign penal institutions. In cooperation with the appropriate U.S. Chief of Mission and to the maximum extent possible, military commanders will ensure that dependents of DoD personnel receive the same treatment, rights, and support as would be extended to Armed Forces members when in the custody of foreign authorities, or when confined (pretrial and post- trial) in foreign penal institutions. Commanders will work with the appropriate U.S. Chief of Mission to make appropriate diplomatic contacts for the categories of dependents described in this section who are not U.S. nationals. (e) Information policy. The general public and the Congress must be provided promptly with the maximum information concerning status of forces matters that are consistent with the national interest. Information will be coordinated and provided to the public and the Congress in accordance with established procedures, including those in DoD Directive 5122.05, ``Assistant Secretary of Defense for Public Affairs (ASD(PA))'' (available at http://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/512205_dodd_2017.pdf?ver=2017-08-07-125832-023), 32 CFR part 286, 32 CFR part 310, and DoD Instruction 5400.04, ``Provision of Information to Congress'' (available at http://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/540004p.pdf). Dated: October 15, 2018. Aaron T. Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense. [FR Doc. 2018-22752 Filed 10-18-18; 8:45 am] BILLING CODE 5001-06-P
![53020 Federal Register / Vol. 83, No. 203 / Friday, October 19, 2018 / Proposed Rules
they quote to their clients in non- DEPARTMENT OF DEFENSE (available at http://www.esd.whs.mil/
cleared swaps over this period. One- Portals/54/Documents/DD/issuances/
fifth of the survey respondents also Office of the Secretary dodd/514501p.pdf), to issue this policy.
reported that they would be less likely Title 10 U.S.C. 1037 authorizes the
to exchange daily variation margin with 32 CFR Part 151 payment of counsel and other fees in
mutual funds, exchange-traded funds, certain cases in foreign judicial
[Docket ID: DOD–2012–OS–0069]
pension plans, endowments, and tribunals and administrative agencies.
separately managed accounts RIN 0790–AI89
Revisions Proposed by This Rule
established with investment advisers
due primarily to lack of operational Foreign Criminal and Civil Jurisdiction This rule will update 32 CFR part 151,
readiness (e.g., the need to establish or ‘‘Status of Forces Policies and
AGENCY: Department of Defense (DoD). Information’’ which was last updated on
update the necessary credit support
ACTION: Proposed rule. March 28, 1980. In 1985, Section 681 of
annexes to cover daily exchange of
variation margin) over this period. Two- Public Law 99–145 amended 10 U.S.C.
SUMMARY: This rule describes 1037 to authorize the payment of
fifths of the survey respondents also procedures concerning trial by foreign counsel fees for those ‘‘not subject to the
reported that the volume of mark and criminal courts of, treatment in foreign Uniform Code of Military Justice.’’ So
collateral disputes on variation margin prisons of, and the payment of counsel this rule proposes to update and
has increased somewhat over this fees in certain civil cases for individuals describe procedures concerning trial by
period. Furthermore, the survey noted referred to collectively in this rule as foreign criminal courts of, treatment in
that there is variation among ‘‘dependents of DoD personnel.’’ foreign prisons of, and the payment of
respondents with respect to the number DATES: Comments must be received by counsel fees in certain civil cases for
of days it takes to resolve a mark and December 18, 2018. command-sponsored and non-command
collateral dispute on variation margin, sponsored dependents of Armed Forces
ADDRESSES: You may submit comments,
with one-third reporting less than two members, and dependents of nationals
identified by docket number and or RIN
days, while three-fifths reporting more and non-nationals of the United States
number and title, by any of the
than two days but less than a week, on who are serving with or accompanying
following methods:
average. This type of data could provide • Federal Rulemaking Portal: http:// the Military Services.
insight regarding how entities that may www.regulations.gov. Follow the
register as nonbank SBSDs may respond Summary of the Major Provisions
instructions for submitting comments.
to the Commission’s final margin • Mail: Department of Defense, Office For dependents of DoD personnel,
requirements. of the Chief Management Officer, when those dependents are in a foreign
Commenters are asked to describe Directorate for Oversight and country as a result of accompanying
changes, if applicable, in: (1) The Compliance, 4800 Mark Center Drive, DoD personnel who are assigned duty in
trading volumes in the relevant security- Mailbox #24, Suite 08D09, Alexandria, that country—it is Department of
based swap and swap markets; (2) the VA 22350–1700. Defense policy to (a) maximize the
regulatory structure of these markets; Instructions: All submissions received exercise of U.S. jurisdiction to the
and (3) the number and types of entities must include the agency name and extent permissible under applicable
that participate in these markets. docket number or Regulatory status of forces agreements or other
Commenters also are asked to describe Information Number (RIN). The general forms of jurisdiction arrangements; (b)
how those changes in the baseline policy for comments and other protect, to the maximum extent
would impact the potential benefits and submissions from members of the public possible, the rights of dependents of
costs—including the effects on is to make these submissions available DoD personnel who may be subject to
efficiency, competition and capital at http://www.regulations.gov as they criminal trial by foreign courts and
formation—of the Proposals as well as are received without change, including imprisonment in foreign prisons; and (c)
the potential benefits and costs— any personal identifiers or contact secure, where possible, the release of an
including the effects on efficiency, information. accused to the custody of U.S.
competition and capital formation—that authorities pending completion of all
FOR FURTHER INFORMATION CONTACT: Bart foreign judicial proceedings.
would result from the potential Wager, 703–571–9355. A ‘‘designated commanding officer’’
alternatives described in the questions
SUPPLEMENTARY INFORMATION: (DCO) in each geographical area
above taking the changes in the baseline
assigned to a Combatant Command is to
into account (if applicable). Authorities (1) cooperate with the appropriate U.S.
Finally, the Commission requests Taken together, two statutes authorize Chief of Mission and to the maximum
comment on whether there are the Secretary of Defense to issue legally extent possible, ensure that dependents
economic considerations apart from binding guidelines on the Department of of DoD personnel receive the same
those discussed in the Proposals that Defense. Under 10 U.S.C. 113, the treatment, rights, and support as would
should be considered in the economic Secretary has ‘‘authority, direction, and be extended to U.S. Armed Forces
analysis of the capital, margin, and control’’ over the Department of members in comparable situations; (2)
segregation requirements as well as the Defense. The Department of Defense is report informally and immediately to
alternatives described in the questions an ‘‘executive department,’’ and the the General Counsel of the Department
amozie on DSK3GDR082PROD with PROPOSALS1
above. Secretary, as the head of an ‘‘executive of Defense, the applicable geographic
By the Commission. department,’’ is empowered under 5 Combatant Commander, and the General
Dated: October 11, 2018. U.S.C. 301 to issue departmental Counsel and the Judge Advocate
regulations. The General Counsel of the General of the respective Military
Eduardo A. Aleman,
Department of Defense has been Department, or, in the case of the
Assistant Secretary. delegated authority under Department Marine Corps, to the General Counsel of
[FR Doc. 2018–22531 Filed 10–18–18; 8:45 am] of Defense Directive 5145.01, ‘‘General the Navy and the Staff Judge Advocate
BILLING CODE 8011–01–P Counsel of the Department of Defense’’ to the Commandant of the Marine
VerDate Sep<11>2014 16:34 Oct 18, 2018 Jkt 247001 PO 00000 Frm 00018 Fmt 4702 Sfmt 4702 E:\FR\FM\19OCP1.SGM 19OCP1](https://thefederalregister.org/doc/83_FR_53223/page/1.svg)
![53022 Federal Register / Vol. 83, No. 203 / Friday, October 19, 2018 / Proposed Rules
under a U.S. Chief of Mission are not (3) Report informally and they waive the exercise of jurisdiction
considered to be ‘‘DoD personnel’’ as immediately to the General Counsel of over the accused. If the DCO so decides,
defined in this part. the Department of Defense, the a recommendation will be submitted
applicable geographic Combatant through the geographic Combatant
§ 151.4 Policy. Commander, and the General Counsel Commander and the Chairman of the
(a) The Department of Defense will, and the Judge Advocate General of the Joint Chiefs of Staff to the Secretary of
for dependents of DoD personnel when respective Military Department or, in Defense. Copies must be provided to the
those dependents are in a foreign the case of the U.S. Marine Corps Secretary concerned and the GC DoD.
country accompanying DoD personnel (USMC), to the General Counsel of the (b) Trial observers and trial observers’
who are assigned duty to that foreign Navy and the Staff Judge Advocate to reports. (1) U.S. observers at trials before
country: the Commandant of the Marine Corps, courts of the receiving country (referred
(1) Maximize the exercise of U.S. or, in the case of the Coast Guard, the to in this rule as ‘‘trial observers’’) must
jurisdiction to the extent permissible Judge Advocate General of the Coast attend and prepare formal reports in all
under applicable status of forces Guard, about important new cases or cases of trials by foreign courts or
agreements or other forms of important developments in pending tribunals of dependents of DoD
jurisdiction arrangements. cases. Important cases include, but are personnel, except for minor offenses. In
(2) Protect, to the maximum extent not limited to, instances of denial of the cases of minor offenses, the observer
possible, the rights of dependents of procedural safeguards under any will attend the trial at the discretion of
DoD personnel who may be subject to applicable agreement; deficiency in the the DCO, but will not be required to
criminal trial by foreign courts and treatment or conditions of confinement make a formal report.
imprisonment in foreign prisons. in foreign penal institutions; or arbitrary (i) Unless directed by the DCO, trial
(3) Secure, where possible, the release denial of permission to visit dependents observers are not required to attend all
of an accused to the custody of U.S. of DoD personnel. preliminary proceedings, such as
authorities pending completion of all (4) Take additional steps that may be scheduling hearings, but will attend the
foreign judicial proceedings. authorized under relevant international trial on the merits and other pre- and
(b) [Reserved] agreements with the receiving State to post-trial proceedings where significant
implement the policy of this part. procedural or substantive matters are
§ 151.5 Responsibilities.
decided.
(a) The Secretaries of the Military § 151.6 Procedures. (ii) Trial observer reports regarding
Departments ensure the adequacy of (a) Request to foreign authorities not dependents of DoD personnel will be
regulations in establishing an to exercise their criminal and civil handled and processed pursuant to DoD
information and education policy on the jurisdiction over dependents. The Instruction 5525.01(4)(b–c).
laws and customs of the host country for procedures in this section will be (2) The DCO, upon receipt of a trial
dependents of DoD personnel assigned followed when it appears that foreign observer report, will be responsible for
to foreign areas. authorities may exercise criminal determining whether:
(b) For each country in their jurisdiction over dependents of DoD (i) There was any failure to comply
respective assigned area of personnel: with the procedural safeguards secured
responsibility (AOR), the geographic (1) When the DCO determines, after a by the pertinent status of forces
Combatant Commanders: careful consideration of all the agreement.
(1) Oversee Command circumstances, including consultation (ii) The accused received a fair trial
implementation of the procedures in with the Department of Justice where under all the circumstances. Due regard
this part. the matter involves possible prosecution should be given to those fair trial rights
(2) Oversee DCO responsibilities, as in U.S civilian courts, that suitable listed in DoD Instruction 5525.01
described in paragraphs (c)(1) through action can be taken under existing U.S. ‘‘Foreign Criminal and Civil
(c)(4) of this section. laws or administrative regulations, the Jurisdiction,’’ Enclosure 5, ‘‘Fair Trial
(c) DCO responsibilities. The DCOs: DCO may request the local foreign Guarantees’’ that are relevant to the
(1) Are responsible for formal authorities to waive the exercise of particular facts and circumstances of the
invocation, where applicable, of the criminal jurisdiction. trial. A trial will not be determined to
Senate resolution procedure in each (2) When it appears possible that the be unfair merely because it is not
foreign country where dependents of accused may not obtain a fair trial, the conducted in a manner identical to
DoD personnel are present, consistent commander exercising general court- trials held in the United States.
with the U.S. Senate Resolution of martial jurisdiction over the command (A) If the DCO believes that the
Ratification, with reservations, to the to which such persons are attached or procedural safeguards specified in
North Atlantic Treaty Organization with which they are associated will pertinent agreements were denied or
Status of Forces Agreement, as agreed to communicate directly with the DCO, that the trial was otherwise unjust, the
by the Senate on July 15, 1953. reporting the full facts of the case. The DCO will submit a recommendation as
(2) In cooperation with the DCO will then determine, in the light of to appropriate action to rectify the trial
appropriate U.S. Chief of Mission and to legal procedures in effect in that deficiencies and otherwise to protect the
the maximum extent possible, ensure country, if there is a risk that the rights or interests of the accused. This
dependents of DoD personnel receive accused will not receive a fair trial. If recommendation must include a
the same treatment, rights, and support the DCO determines that there is a risk statement of efforts taken or to be taken
amozie on DSK3GDR082PROD with PROPOSALS1
as Armed Forces members when in the that the accused will not receive a fair at the local level to protect the rights of
custody of foreign authorities, or when trial, the DCO will decide, after the accused.
confined (pre-trial and post-trial) in consultation with the U.S. Chief of (B) The DCO will submit the
foreign penal institutions. DCOs will Mission, whether a request should be recommendation to the Secretary of
work with the appropriate U.S. Chief of submitted through diplomatic channels Defense, through the Under Secretary of
Mission to make appropriate diplomatic to foreign authorities seeking their Defense for Policy (with an advance
contacts for dependents of DoD assurances of a fair trial for the accused copy to the General Counsel of the
personnel who are not U.S. nationals. or, in appropriate circumstances, that Department of Defense); copies must be
VerDate Sep<11>2014 16:34 Oct 18, 2018 Jkt 247001 PO 00000 Frm 00020 Fmt 4702 Sfmt 4702 E:\FR\FM\19OCP1.SGM 19OCP1](https://thefederalregister.org/doc/83_FR_53223/page/3.svg)
![Federal Register / Vol. 83, No. 203 / Friday, October 19, 2018 / Proposed Rules 53023
provided to the geographic Combatant Secretary of Homeland Security. The Dated: October 15, 2018.
Commander concerned, the General provisions of this paragraph also are Aaron T. Siegel,
Counsel and the Judge Advocate applicable to proceedings with civil Alternate OSD Federal Register Liaison
General of the Military Department aspects that are brought by eligible Officer, Department of Defense.
concerned or, in the case of the USMC, personnel as criminal cases in [FR Doc. 2018–22752 Filed 10–18–18; 8:45 am]
to the General Counsel of the Navy and accordance with local law. Funds for BILLING CODE 5001–06–P
the Staff Judge Advocate to the the posting of bail or bond to secure the
Commandant of the Marine Corps, or, in release of non-military DoD personnel
the case of the Coast Guard, the Judge from confinement will be used as DEPARTMENT OF HOMELAND
Advocate General of the Coast Guard, provided by applicable Armed Force SECURITY
and the Chairman of the Joint Chiefs of
regulations.
Staff. Coast Guard
(c) Counsel fees and related (ii) No funds will be provided under
assistance for U.S. personnel not subject paragraph (c)(2) of this section to a 33 CFR Part 165
to the UCMJ. In cases of exceptional plaintiff who, if successful, will receive
interest to the Military Department an award, in whole or in part, from the [Docket Number USCG–2018–0962]
concerned or the Department of United States. RIN 1625–AA00
Homeland Security involving non- (iii) As provided for in 10 U.S.C.
military DoD personnel, the Secretary of Safety Zone; NASA Activities, Gulf of
1037, a person on whose behalf a
that Military Department or the Mexico, Galveston, TX
payment is made under this provision is
Secretary of Homeland Security may
not liable to reimburse the United States AGENCY: Coast Guard, DHS.
approve, pursuant to 10 U.S.C. 1037,
under the following circumstances: for that payment, unless he or she is ACTION: Notice of proposed rulemaking.
(1) Criminal cases. Requests for the responsible for the forfeiture of bail
provided for him or her under this SUMMARY: The Coast Guard is proposing
provision of counsel fees and payment to establish a temporary, moving safety
of expenses in criminal cases may be provision.
zone for all navigable waters within a
approved in pre-trial, trial, appellate, (d) Treatment of dependents confined 1000-yard radius of the National
and post-trial proceedings in any in foreign penal institutions. In Aeronautics and Space Administration’s
criminal case where: cooperation with the appropriate U.S. (NASA’s) crew module uprighting
(i) The sentence that is normally Chief of Mission and to the maximum system test article while it is being
imposed includes confinement, whether extent possible, military commanders tested in the territorial waters of the
or not such sentence is suspended; will ensure that dependents of DoD
(ii) Capital punishment might be Gulf of Mexico off the coast of
personnel receive the same treatment, Galveston, TX. The safety zone is
imposed;
(iii) An appeal is made from any rights, and support as would be necessary to protect persons, vessels,
proceeding in which there appears to extended to Armed Forces members and the marine environment from
have been a denial of the substantial when in the custody of foreign potential hazards created by vessels and
rights of the accused; authorities, or when confined (pretrial equipment engaged in the crew
(iv) The case, although not within the and post-trial) in foreign penal capsule’s at-sea testing. This proposed
criteria established in paragraphs institutions. Commanders will work rulemaking would prohibit persons and
(c)(1)(i) through (c)(1)(iii) of this section, with the appropriate U.S. Chief of vessels from being in the safety zone
is considered to have significant impact Mission to make appropriate diplomatic unless authorized by the Captain of the
on U.S. interests, including upon the contacts for the categories of dependents Port Sector Houston-Galveston or a
relations of the Armed Forces with the described in this section who are not designated representative. We invite
host country. U.S. nationals. your comments on this proposed
(2) Civil cases. Requests for provision rulemaking.
(e) Information policy. The general
of counsel fees and payment of expenses DATES: Comments and related material
in civil cases may be granted in trial and public and the Congress must be
must be received by the Coast Guard on
appellate proceedings in civil cases provided promptly with the maximum
or before November 5, 2018.
where the case is considered to have a information concerning status of forces
ADDRESSES: You may submit comments
significant impact on the relations of the matters that are consistent with the
identified by docket number USCG–
Armed Forces with the host country; or national interest. Information will be
2018–0962 using the Federal
in cases brought against eligible non- coordinated and provided to the public
eRulemaking Portal at https://
military DoD personnel (and in and the Congress in accordance with
www.regulations.gov. See the ‘‘Public
exceptional cases, by such personnel) if established procedures, including those Participation and Request for
the case is considered to involve any in DoD Directive 5122.05, ‘‘Assistant Comments’’ portion of the
other U.S. interest. Secretary of Defense for Public Affairs SUPPLEMENTARY INFORMATION section for
(3) Funding restrictions. (i) No funds (ASD(PA))’’ (available at http:// further instructions on submitting
will be provided under this part in cases www.esd.whs.mil/Portals/54/ comments.
where the U.S. Government is—in Documents/DD/issuances/dodd/
actuality or in legal effect—the plaintiff FOR FURTHER INFORMATION CONTACT: If
512205_dodd_2017.pdf?ver=2017-08-
amozie on DSK3GDR082PROD with PROPOSALS1
or the defendant; all such cases shall be you have questions about this proposed
07-125832-023), 32 CFR part 286, 32
referred to the Department of Justice, rulemaking, call or email Lieutenant
CFR part 310, and DoD Instruction Collin Sykes, Eighth Coast Guard
Office of Foreign Litigation. No funds 5400.04, ‘‘Provision of Information to
will be provided under this part in cases District, Waterways Management
Congress’’ (available at http:// Division, U.S. Coast Guard; telephone
where the non-military DoD personnel www.esd.whs.mil/Portals/54/
member is a plaintiff without prior 504–671–2119, email Collin.T.Sykes@
Documents/DD/issuances/dodi/ uscg.mil.
authorization of the Secretary of the
540004p.pdf).
Military Department concerned or the SUPPLEMENTARY INFORMATION:
VerDate Sep<11>2014 16:34 Oct 18, 2018 Jkt 247001 PO 00000 Frm 00021 Fmt 4702 Sfmt 4702 E:\FR\FM\19OCP1.SGM 19OCP1](https://thefederalregister.org/doc/83_FR_53223/page/4.svg)
Document Created: 2018-10-19 01:25:16
Document Modified: 2018-10-19 01:25:16
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Proposed rule. | |
| Dates | Comments must be received by December 18, 2018. | |
| Contact | Bart Wager, 703-571-9355. | |
| FR Citation | 83 FR 53020 | |
| RIN Number | 0790-AI89 | |
| CFR Associated | Courts; Foreign Relations; Military Personnel and Prisons |
2025 Federal Register | Disclaimer | Privacy Policy
USC | CFR | eCFR