Defense Support of Civil Authorities (DSCA), 2246-2253 [2011-620]
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Federal Register / Vol. 76, No. 9 / Thursday, January 13, 2011 / Rules and Regulations
Regulatory Flexibility Certification
Under the Regulatory Flexibility Act
of 1980 (5 U.S.C. 605(b)), the NRC
certifies that this rule will not, if issued,
have a significant economic impact on
a substantial number of small entities.
This direct final rule affects only
nuclear power plant licensees and TN.
These entities do not fall within the
scope of the definition of ‘‘small
entities’’ set forth in the Regulatory
Flexibility Act or the size standards
established by the NRC (10 CFR 2.810).
Backfit Analysis
The NRC has determined that the
backfit rule (10 CFR 72.62) does not
apply to this direct final rule because
this amendment does not involve any
provisions that would impose backfits
as defined in 10 CFR Chapter 1.
Therefore, a backfit analysis is not
required.
Congressional Review Act
Under the Congressional Review Act
of 1996, the NRC has determined that
this action is not a major rule and has
verified this determination with the
Office of Information and Regulatory
Affairs, OMB.
Administrative practice and
procedure, Hazardous waste, Nuclear
materials, Occupational safety and
health, Radiation protection, Reporting
and recordkeeping requirements,
Security measures, Spent fuel,
Whistleblowing.
For the reasons set out in the
preamble and under the authority of the
Atomic Energy Act of 1954, as amended;
the Energy Reorganization Act of 1974,
as amended; the Nuclear Waste Policy
Act of 1982, as amended; and 5 U.S.C.
552 and 553; the NRC is adopting the
following amendments to 10 CFR Part
72.
PART 72—LICENSING
REQUIREMENTS FOR THE
INDEPENDENT STORAGE OF SPENT
NUCLEAR FUEL, HIGH-LEVEL
RADIOACTIVE WASTE, AND
REACTOR-RELATED GREATER THAN
CLASS C WASTE
1. The authority citation for Part 72
continues to read as follows:
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§ 72.214 List of approved spent fuel
storage casks.
*
*
*
*
Certificate Number: 1030.
Initial Certificate Effective Date:
January 10, 2007.
Amendment Number 1 Effective Date:
March 29, 2011.
SAR Submitted by: Transnuclear, Inc.
SAR Title: Final Safety Analysis
Report for the NUHOMS ® HD
Horizontal Modular Storage System for
Irradiated Nuclear Fuel.
Docket Number: 72–1030.
Certificate Expiration Date: January
10, 2027.
Model Number: NUHOMS ® HD–
32PTH.
*
*
*
*
*
Dated at Rockville, Maryland, this 13th day
of December 2010.
For the Nuclear Regulatory Commission.
R.W. Borchardt,
Executive Director for Operations.
[FR Doc. 2011–642 Filed 1–12–11; 8:45 am]
BILLING CODE 7590–01–P
DEPARTMENT OF DEFENSE
Authority: Secs. 51, 53, 57, 62, 63, 65, 69,
81, 161, 182, 183, 184, 186, 187, 189, 68 Stat.
929, 930, 932, 933, 934, 935, 948, 953, 954,
955, as amended, sec. 234, 83 Stat. 444, as
amended (42 U.S.C. 2071, 2073, 2077, 2092,
2093, 2095, 2099, 2111, 2201, 2232, 2233,
2234, 2236, 2237, 2238, 2282); sec. 274, Pub.
L. 86–373, 73 Stat. 688, as amended (42
U.S.C. 2021); sec. 201, as amended, 202, 206,
16:12 Jan 12, 2011
2. In § 72.214, Certificate of
Compliance 1030 is revised to read as
follows:
■
*
List of Subjects in 10 CFR Part 72
VerDate Mar<15>2010
88 Stat. 1242, as amended, 1244, 1246 (42
U.S.C. 5841, 5842, 5846); Pub. L. 95–601, sec.
10, 92 Stat. 2951 as amended by Pub. L. 102–
486, sec. 7902, 106 Stat. 3123 (42 U.S.C.
5851); sec. 102, Pub. L. 91–190, 83 Stat. 853
(42 U.S.C. 4332); secs. 131, 132, 133, 135,
137, 141, Pub. L. 97–425, 96 Stat. 2229, 2230,
2232, 2241, sec. 148, Pub. L. 100–203, 101
Stat. 1330–235 (42 U.S.C. 10151, 10152,
10153, 10155, 10157, 10161, 10168); sec.
1704, 112 Stat. 2750 (44 U.S.C. 3504 note);
sec. 651(e), Pub. L. 109–58, 119 Stat. 806–10
(42 U.S.C. 2014, 2021, 2021b, 2111).
Section 72.44(g) also issued under secs.
142(b) and 148(c), (d), Pub. L. 100–203, 101
Stat. 1330–232, 1330–236 (42 U.S.C.
10162(b), 10168(c), (d)). Section 72.46 also
issued under sec. 189, 68 Stat. 955 (42 U.S.C.
2239); sec. 134, Pub. L. 97–425, 96 Stat. 2230
(42 U.S.C. 10154). Section 72.96(d) also
issued under sec. 145(g), Pub. L. 100–203,
101 Stat. 1330–235 (42 U.S.C. 10165(g)).
Subpart J also issued under secs. 2(2), 2(15),
2(19), 117(a), 141(h), Pub. L. 97–425, 96 Stat.
2202, 2203, 2204, 2222, 2244 (42 U.S.C.
10101, 10137(a), 10161(h)). Subparts K and L
are also issued under sec. 133, 98 Stat. 2230
(42 U.S.C. 10153) and sec. 218(a), 96 Stat.
2252 (42 U.S.C. 10198).
Office of the Secretary
32 CFR Part 185
[DoD–2008–OS–0085; RIN 0790–AI34]
Defense Support of Civil Authorities
(DSCA)
AGENCY:
PO 00000
Department of Defense.
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ACTION:
Final rule.
This final rule establishes
policy and assigns responsibilities for
DSCA, supplements regulations
regarding military support for civilian
law enforcement, and sets forth policy
guidance for the execution and
oversight of DSCA when requested by
civil authorities and approved by the
appropriate Department of Defense
(DoD) authority, or as directed by the
President, within the United States,
including the District of Columbia, the
Commonwealth of Puerto Rico, the U.S.
Virgin Islands, Guam, American Samoa,
the Commonwealth of the Northern
Mariana Islands, and any territory or
possession of the United States or any
political subdivision thereof. Legislative
changes over the years have made the
existing guidance outdated and
inconsistent with current law and the
current organizational structure of the
Department of Defense. This final rule
will facilitate civil authorities’ access to
the support they are seeking from the
Department by establishing updated
policy guidance and assigning the
correct responsibilities within the
Department for Defense Support of Civil
Authorities in response to requests for
assistance for domestic emergencies,
designated law enforcement support,
special events, and other domestic
activities.
DATES: Effective Date: This rule is
effective February 14, 2011.
FOR FURTHER INFORMATION CONTACT:
Colonel Brent Feick, 703–697–5415.
SUPPLEMENTARY INFORMATION: The
Department of Defense published a
proposed rule on December 4, 2008 (73
FR 73896–73900). Eighty-four
comments were received and are
addressed below:
Comment: Thirty-nine of the 84
public comments question the
Constitutionality of the Department of
Defense supporting civil authorities
domestically. Example: DOD–2008–
0085–006 ‘‘The U.S. Constitution
outlines the use of military force within
our borders. We don’t need this. We
need leaders who have respect for our
Constitution and our Liberty.’’
Response: The rule has been
thoroughly reviewed by attorneys at
several levels of the Departments of
Defense, Justice, and Homeland Security
and found not to violate any provisions
of the Constitution. The Department of
Defense (DoD) has historically been
requested by civil authorities to provide
support or assistance during various
types of man-made or natural disasters,
support for special events such as the
National Political Conventions, the
SUMMARY:
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Group of Eight Summit, the
Inauguration, the Olympics, the Special
Olympics, the United Nations General
Assembly, and even support to law
enforcement to help quell civil
disobedience and restore public order,
such as the Los Angeles Riots in 1992.
Each of these support missions is
conducted consistent with the
Constitution, applicable law, and
National policy. This rule sets forth DoD
policy guidance for the execution and
oversight of Defense Support of Civil
Authorities when support or assistance
is requested by civil authorities. The
rule, by itself, provides no new,
separate, or independent authority to
the President, the Secretary of Defense,
or anyone else in the Department of
Defense.
Comment: Sixteen of the 84 public
comments asserted that the rule was in
violation of the Posse Comitatus Act
(Title 18, United States Code, Section
1385). Example: DOD–2008–0085–010
‘‘The Defense Support of Civil
Authorities Plan is a violation of Posse
Comitatus and will sink this once great
country to the level of a third world
dictatorship. The DOD should be
fighting for individual freedom in the
US, not helping to extinguish it.’’
Response: The rule has been
thoroughly reviewed by attorneys at
several levels of the Departments of
Defense, Justice, and Homeland Security
and found not to violate any current
law, including the Posse Comitatus Act.
Comment: Eight of the 84 public
comments asserted that the rule was
inconsistent with the Second
Amendment to the Constitution.
Example: DOD–2008–0085–054 ‘‘This
proposed regulation is an
unconstitutional infringement on
Second Amendment rights. It also gives
excessive power to the U.S. Military to
serve as an internal police force.’’
Response: The rule has been
thoroughly reviewed by attorneys at
several levels of the Departments of
Defense, Justice, and Homeland Security
and found not to violate any provisions
of the Constitution, including the
Second Amendment. There is no
attempt to usurp civilian authority or
use the military as an internal police
force. The rule sets forth policy
guidance for the execution and
oversight of defense support of civilian
authorities when requested by civil
authorities.
Comment: Seven of the 84 public
comments asserted that National Guard
forces were sufficient to fill this support
or assistance role under the direction of
respective Governors. Example: DOD–
2008–0085–002 ‘‘There is no reason to
involve the forces of the United States
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military when each state already has
National Guard units which can fill this
role and are under the direction of the
Governor. I’m a big supporter of a strong
US military for the protection of our
country from outside threats. This
redundancy is not only unwarranted, it
runs against the principles of our
founding fathers.’’
Response: The National Guard, when
in Federal service or funded by the
Department of Defense and in
coordination with the Governors, is a
vital component of Defense Support of
Civil Authorities. In the Department of
Defense’s Strategy for Homeland
Defense and Civil Support, there is a
focused reliance on the Reserve
Components to support and assist civil
authorities. Individual state National
Guard units are more capable and better
equipped and resourced than during
any time in their history. But each state
National Guard cannot be manned,
equipped, trained, and resourced to
meet the needs of every conceivable
contingency operation. Most states are
part of Regional or National Emergency
Management Assistance Compacts,
which permit the Governor of one state
to commit that state’s resources to
support another state. This process
works very well during localized
emergencies or disasters, but mutual aid
support between states is not as efficient
during special events or incidents other
than localized major disasters and
emergencies. In the event of multiple,
near simultaneous, geographically
dispersed terrorist attacks in the United
States, or the rapid spread of a
pandemic, it is unknown if Governors
would release their National Guard
capabilities to support another state or
a Federal Agency if there is a chance
that resources would be needed in their
home states. Many emergencies,
disasters, or events affect more than one
state. It is not realistic to expect Federal
Departments or Agencies to coordinate
requests for assistance or support with
multiple States, Commonwealths, and
Territories. Finally, there are some
capabilities that are available only in the
Active Duty military force or in DoD.
Comment: Five of the 84 public
comments asserted that it was the
military’s role to protect against foreign
threats only. Example: DOD–2008–
0085–020 ‘‘This proposal is ridiculous
and in violation of the Constitution. If
this is a need that must be met, use the
funding it would require and invest it in
civil law enforcement and emergency
services. The military is for defending
us from foreign aggressors.’’
Response: The rule has been
thoroughly reviewed by attorneys at
several levels of the Departments of
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Defense, Justice, and Homeland Security
and found not to violate any provisions
of the Constitution. Additionally, a
number of statutes provide specific
authority for DSCA. This rule sets forth
DoD policy guidance for the execution
and oversight of defense support of civil
authorities. There are no provisions for
the DoD components to take over what
is inherently a civilian responsibility,
but rather provisions for providing
support or assistance when requested.
Comment: Five of the 84 public
comments asserted that the proposed
rule was too broad and gave the military
or the President too much power.
Example: DOD–2008–OS–0085–0036 ‘‘I
am opposed to this government
regulation ‘Defense Support of Civil
Authorities’. It gives power to the
military to assume civilian law
enforcement at the behest of the
president with no restriction on this
power. This is unconstitutional! This
document is too broad and clearly states
that the military can intervene at the
request of civil authorities OR by
presidential executive order. This is a
very dangerous rule to individual
freedom!’’
Response: This rule sets forth DoD
policy guidance for the execution and
oversight of Defense Support of Civil
Authorities when support or assistance
is requested by civil authorities. The
rule, by itself, provides no new,
separate, or independent authority to
the President, the Secretary of Defense,
or anyone else in the Department of
Defense.
Comment: Four of the 84 public
comments asserted that the rule violated
or erodes the 10th Amendment to the
Constitution. Example: DOD–2008–OS–
0085–17 ‘‘There is no Constitutional
basis for any portion of this proposed
regulation. Leaving the deployment of
our military within our own borders to
assist with undefined domestic issues to
the whims of the President is dangerous,
adds undue stress on the office, and
severely erodes the rights afforded to the
states under the 10th Amendment.’’
Response: This rule sets forth DoD
policy guidance for the execution and
oversight of Defense Support of Civil
Authorities when support or assistance
is requested by civil authorities. The
rule, by itself, provides no new,
separate, or independent authority, nor
does it violate, restrict, or erode the
rights afforded to the states under the
10th Amendment. This rule enables
civil authorities (See Joint Publication
1–02) 1 to request and receive support or
1 Available by downloading at https://
www.dtic.mil/doctrine/new_pubs/jp1_02.pdf.
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assistance from the Department of
Defense.
Comment: Three of the 84 public
comments expressed concern over the
inclusion of ‘‘special events’’ in the rule.
Example: DOD–2008–OS–0085–0019
‘‘The role of the US military is to protect
us from foreign threats. This regulation
is overbroad in that it would allow the
use of the US military to suppress any
kind of gathering. As an example,
consider the Rainbow gatherings, 50–
60,000 people exercising their right to
gather on public lands. Under this
regulation, the military could be called
in to quash this. This regulation
essentially guts the constitution.
Because of clauses like ‘special events’
and ‘other domestic activities’ are broad,
they could be interpreted to allow
military intervention in any special
event, such as concerts, parades,
demonstrations, religious conventions,
gun shows, political events, etc. This
regulation establishes de facto marshal
(military) law. Narrowing this regulation
to state ‘in response to insurrections
only’ would be constitutional. I am
adamantly opposed to this rule.’’
Response: The rule sets forth policy
guidance for the execution and
oversight of defense support of civilian
authorities when requested by civil
authorities. In addition to providing
capabilities to assist and support
civilian authorities during emergencies
or in response to major disasters, DoD
is often asked by civilian authorities to
provide support and assistance for
planned special events. As noted in the
Glossary, a special event is an
international or domestic event, contest,
activity, or meeting, which by its very
nature, or by specific statutory or
regulatory authority, may require
security, safety, and/or other logistical
support or assistance from the
Department of Defense. Congress has
granted to the Secretary of Defense the
authority to approve DoD support and
assistance for certain specific events
such as the Presidential inaugural, the
Boy Scout Jamboree, and certain
sporting competitions. Each specific
authorization establishes necessary
oversight and controls. DoD support
during other special events, such as the
Presidential nominating conventions,
such as the United Nations General
Assembly, Super Bowls, and the Group
of Eight Economic Summit, are in
reality, DoD supporting other civil
authorities like the United States Secret
Service, which is authorized under 18
U.S.C. 3056, when directed by the
President, to plan, coordinate, and
implement security operations at special
events. DoD support at such events is
generally in support of other federal
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agencies, such as the Federal Bureau of
Investigation, as well as state and local
entities such as the Colorado Office of
Homeland Security, or the San Diego
Police Department. DoD has very
limited authority to deploy DoD
resources in support of event organizers.
In addition to the comments received
above, the following has been included
in the final rule based on internal
comments received on the
corresponding DoD instruction:
Provisions regarding the ‘‘emergency
authority’’ of responsible DoD officials
and commanders to use military forces
if necessary to prevent loss of life or
wanton destruction of property or to
restore governmental functions and
public order under specified conditions.
These provisions were included to bring
this rule into consistency with the
authorities in DoD Directives 3025.12
and 5525.5, as well as 32 CFR part
215.4.
Regulatory Procedures
Executive Order 12866, ‘‘Regulatory
Planning and Review’’
It has been certified that 32 CFR part
185 does not:
(1) Have an annual effect on the
economy of $100 million or more or
adversely affect in a material way the
economy; a section of the economy;
productivity; competition; jobs; the
environment; public health or safety; or
State, local, or tribunal governments or
communities;
(2) Create a serious inconsistency or
otherwise interfere with an action taken
or planned by another Agency;
(3) Materially alter the budgetary
impact of entitlements, grants, user fees,
or loan programs, or the rights and
obligations of recipients thereof; or
(4) Raise novel legal or policy issues
arising out of legal mandates, the
President’s priorities, or the principles
set forth in this Executive Order.
Sec. 202, Public Law 104–4, ‘‘Unfunded
Mandates Reform Act’’
It has been certified that 32 CFR part
185 does not contain a Federal mandate
that may result in the expenditure by
State, local, and tribunal governments,
in aggregate, or by the private sector, of
$100 million or more in any one year.
Public Law 96–354, ‘‘Regulatory
Flexibility Act’’ (5 U.S.C. 601)
It has been certified that 32 CFR part
185 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.
This rule establishes policy and assigns
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responsibilities within DoD for DSCA,
supplements regulations regarding
military support for civilian law
enforcement, and sets forth policy
guidance for the execution and
oversight of DSCA when requested by
civil authorities and approved by the
appropriate DoD authority, or as
directed by the President. Therefore, it
is not expected that small entities will
be affected because there will be no
economically significant regulatory
requirements placed upon them.
Public Law 96–511, ‘‘Paperwork
Reduction Act’’ (44 U.S.C. Chapter 35)
It has been certified that 32 CFR part
185 does not impose reporting or
recordkeeping requirements under the
Paperwork Reduction Act of 1995.
Executive Order 13132, ‘‘Federalism’’
It has been certified that 32 CFR part
185 does not have federalism
implications, as set forth in Executive
Order 13132. This rule does not have
substantial direct effects on:
(1) The States;
(2) The relationship between the
National Government and the States; or
(3) The distribution of power and
responsibilities among the various
levels of Government.
List of Subjects in 32 CFR Part 185
Armed forces, Civil defense.
Accordingly, the Department of
Defense revises 32 CFR part 185 to read
as follows:
PART 185—DEFENSE SUPPORT OF
CIVIL AUTHORITIES (DSCA)
Sec.
185.1
185.2
185.3
185.4
185.5
Purpose.
Applicability and scope.
Definitions.
Policy.
Responsibilities.
Authority: Legal authority includes, 10
U.S.C. sections 113, 331–335, 371–382, 2553,
2554, 2555, and 2564; 31 U.S.C. 1535–1536
(Economy Act); 42 U.S.C. section 5121 et seq.
(Robert T. Stafford Disaster Relief and
Emergency Assistance Act, as amended
(Stafford Act)); and Public Law 94–524, as
amended (Presidential Protection Assistance
Act of 1976).
§ 185.1.
Purpose.
This part:
(a) Establishes policy and assigns
responsibilities for DSCA, also referred
to as civil support.
(b) Supplements the regulations (in
DoD Directive 5525.5) 1 required by
section 375 of title 10, United States
1 Available for downloading at https://
www.dtic.mil/whs/directives/corres/pdf/
552505p.pdf
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Code (U.S.C.), regarding military
support for civilian law enforcement.
(c) Sets forth policy guidance for the
execution and oversight of DSCA when
requested by civil authorities or by
qualifying entities and approved by the
appropriate DoD official, or as directed
by the President, within the United
States, including the District of
Columbia, the Commonwealth of Puerto
Rico, the U.S. Virgin Islands, Guam,
American Samoa, the Commonwealth of
the Northern Mariana Islands, and any
territory or possession of the United
States or any political subdivision
thereof.
(d) Authorizes immediate response
authority for providing DSCA, when
requested.
(e) Authorizes emergency authority
for the use of military force, under dire
situations, as described in § 185.4(i) of
this part.
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§ 185.2.
Applicability and scope.
This part:
(a) Applies to the Office of the
Secretary of Defense, the Military
Departments, 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 Department of Defense (hereafter
referred to collectively as the ‘‘DoD
Components’’).
(b) Applies to the Army National
Guard and the Air National Guard
(hereafter referred to collectively as the
‘‘National Guard’’) personnel when
under Federal command and control.
Also applies to National Guard
personnel when the Secretary of
Defense determines that it is appropriate
to employ National Guard personnel in
title 32, U.S.C., status to fulfill a request
for DSCA, the Secretary of Defense
requests the concurrence of the
Governors of the affected States, and
those Governors concur in the
employment of National Guard
personnel in such a status.
(c) Applies to all DSCA (except the
specific forms of DSCA listed in
paragraph (d) of this section), including
but not limited to:
(1) Mutual or automatic aid, also
known as reciprocal fire protection
agreements (see chapter 15A of title 42
U.S.C.).
(2) DoD fire and emergency services
programs (see DoD Instruction
6055.06) 2.
2 Available by downloading at https://
www.dtic.mil/whs/directives/corres/pdf/
605506p.pdf.
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(3) Support of special events in
accordance with applicable laws and
DoD policy (see DoD Directive
2000.15) 3.
(4) United States Army Corps of
Engineers (USACE) activities as the DoD
Coordinating and Primary Agency for
Emergency Support Function #3, Public
Works and Engineering, of the National
Response Framework.
(5) Defense support to civilian law
enforcement agencies (see DoDD
3025.12 4 and DoD Directive 5525.5).
(d) Does not apply to the following:
(1) Support in response to foreign
disasters provided in accordance with
DoD Directive 5100.46 5.
(2) Joint investigations conducted by
the Inspector General of the Department
of Defense, the Defense Criminal
Investigative Service, and the military
criminal investigative organizations
with civil law enforcement agencies on
matters within their respective
jurisdictions using their own forces and
equipment.
(3) Detail of DoD personnel to duty
outside the Department of Defense in
accordance with DoD Instruction
1000.17 6.
(4) Counternarcotics operations
conducted under the authority of
section 1004 of Public Law 101–510
(1991).
(5) Support provided by the USACE
when accomplishing missions and
responsibilities under the authority of
section 701n of title 33, U.S.C. and
Executive Order 12656.
(6) Assistance provided by DoD
intelligence and counterintelligence
components in accordance with DoD
Directive 5240.01 7, Executive Orders
12333 and 13388, DoD 5240.1–R 8, and
other applicable laws and regulations.
(7) Military community relations
programs and activities administered by
the Assistant Secretary of Defense for
Public Affairs (see DoD Directive
3 Available by downloading at https://
www.dtic.mil/whs/directives/corres/pdf/
200015p.pdf.
4 Available by downloading at https://
www.dtic.mil/whs/directives/corres/pdf/
302512p.pdf.
5 Available by downloading at https://
www.dtic.mil/whs/directives/corres/pdf/
510046p.pdf.
6 Available by downloading at https://
www.dtic.mil/whs/directives/corres/pdf/
100017p.pdf.
7 Available by downloading at https://
www.dtic.mil/whs/directives/corres/pdf/
524001p.pdf.
8 Available by downloading at https://
www.dtic.mil/whs/directives/corres/pdf/
524001r.pdf.
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2249
5410.18 9 and DoD Instruction
5410.19 10).
(8) Sensitive support in accordance
with DoD Directive S–5210.36 11.
(9) Activities performed by the Civil
Air Patrol in support of civil authorities
or qualifying entities when approved by
the Air Force as auxiliary missions in
accordance with section 9442 of title 10,
U.S.C. and DoD 3025.1–M 12 except as
restricted by § 185.4(j) of this part.
(10) Innovative readiness training
(formerly called ‘‘civil-military
cooperative action programs’’) (see DoD
Directive 1100.20) 13.
§ 185.3.
Definitions.
Civil Authorities. See Joint
Publication 1–02 14.
Civil Disturbances. See Joint
Publication 1–02.
Defense Domestic Crisis Manager. The
lead DoD official responsible for DoD’s
domestic crisis management response,
ensuring the information needs and
other requirements of the Secretary of
Defense are met, and developing,
coordinating, and overseeing the
implementation of DoD policy for crisis
management to ensure DoD capability to
develop and execute options to prevent,
mitigate, or respond to a potential or
actual domestic crisis. The Assistant
Secretary of Defense for Homeland
Defense and Americas’ Security Affairs
(ASD(HD&ASA)) serves as the Defense
Domestic Crisis Manager.
Defense Support of Civil Authorities
(DSCA). Support provided by U.S.
Federal military forces, DoD civilians,
DoD contract personnel, DoD
Component assets, and National Guard
forces (when the Secretary of Defense,
in coordination with the Governors of
the affected States, elects and requests
to use those forces in title 32, U.S.C.,
status) in response to requests for
assistance from civil authorities for
domestic emergencies, law enforcement
support, and other domestic activities,
or from qualifying entities for special
events. Also known as civil support.
Direct Liaison. An authority for
Federal military forces to consult with,
9 Available by downloading at https://
www.dtic.mil/whs/directives/corres/pdf/
541018p.pdf.
10 Available by downloading at https://
www.dtic.mil/whs/directives/corres/pdf/
541019p.pdf.
11 Document is classified and copies maybe
requested by contacting USD(I), USDI.pubs@osd.mil
12 Available by downloading at https://
www.dtic.mil/whs/directives/corres/pdf/
302501m.pdf.
13 Available by downloading at https://
www.dtic.mil/whs/directives/corres/pdf/
110020p.pdf.
14 Available by downloading at https://
www.dtic.mil/doctrine/new_pubs/jp1_02.pdf.
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coordinate with, and respond to State
authorities (including National Guard
units and personnel operating in Title
32 status or in State Active Duty status)
or Federal civilian authorities in the
tactical-level execution of assigned
tasks, pursuant to an order by the
Secretary of Defense or the President to
provide support to those authorities.
Emergency Authority. A Federal
military commander’s authority, in
extraordinary emergency circumstances
where prior authorization by the
President is impossible and duly
constituted local authorities are unable
to control the situation, to engage
temporarily in activities that are
necessary to quell large-scale,
unexpected civil disturbances because
(1) such activities are necessary to
prevent significant loss of life or wanton
destruction of property and are
necessary to restore governmental
function and public order or (2) duly
constituted Federal, State, or local
authorities are unable or decline to
provide adequate protection for Federal
property or Federal governmental
functions.
Federal Military Forces. Army, Navy,
Marine Corps and Air Force personnel
(including Reserve Component
personnel) on Federal active duty and
National Guard personnel when under
Federal command and control.
Immediate Response Authority. A
Federal military commander’s, DoD
Component Head’s, and/or responsible
DoD civilian official’s authority
temporarily to employ resources under
their control, subject to any
supplemental direction provided by
higher headquarters, and provide those
resources to save lives, prevent human
suffering, or mitigate great property
damage in response to a request for
assistance from a civil authority, under
imminently serious conditions when
time does not permit approval from a
higher authority within the United
States. Immediate response authority
does not permit actions that would
subject civilians to the use of military
power that is regulatory, prescriptive,
proscriptive, or compulsory. State
immediate response is addressed in
§ 185.4(h) of this part.
Qualifying Entity. A nonGovernmental organization to which the
Department of Defense may provide
assistance for special events by virtue of
statute, regulation, policy, or other
approval by the Secretary of Defense or
his or her authorized designee.
Responsible DoD Civilian. For
purposes of DSCA, the Head of a DoD
Component or other DoD civilian
official who has authority over DoD
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assets that may be used for a DSCA
response.
Special Event. An international or
domestic event, contest, activity, or
meeting, which by its very nature, or by
specific statutory or regulatory
authority, may warrant security, safety,
and/or other logistical support or
assistance from the Department of
Defense.
Total Force. See DoD Directive
1200.17 15.
§ 185.4.
Policy.
It is DoD policy that:
(a) This part shall be implemented
consistent with national security
objectives and military readiness.
(b) Unless expressly stated otherwise,
the provisions of this part should not be
construed to rescind any existing
authorities of the Heads of DoD
Components, commanders, and/or
responsible DoD civilians to provide
DSCA in accordance with existing laws,
DoD issuances, and Secretary of
Defense-approved orders.
(c) DSCA is initiated by a request for
DoD assistance from civil authorities or
qualifying entities or is authorized by
the President or Secretary of Defense.
(d) All requests for DSCA shall be
written, and shall include a
commitment to reimburse the
Department of Defense in accordance
with the Stafford Act, Economy Act, or
other authorities except requests for
support for immediate response, and
mutual or automatic aid, in accordance
with § 185.4(g) and (m) of this part.
Unless approval authority is otherwise
delegated by the Secretary of Defense,
all DSCA requests shall be submitted to
the office of the Executive Secretary of
the Department of Defense. For
assistance provided according to
§ 185.4(g) of this part, civil authorities
shall be informed that oral requests for
assistance in an emergency must be
followed by a written request that
includes an offer to reimburse the
Department of Defense at the earliest
available opportunity. States also must
reimburse the United States Treasury in
accordance with section 9701 of title 31,
U.S.C. Support may be provided on a
non-reimbursable basis only if required
by law or if both authorized by law and
approved by the appropriate DoD
official.
(e) All requests from civil authorities
and qualifying entities for assistance
shall be evaluated for:
(1) Legality (compliance with laws).
(2) Lethality (potential use of lethal
force by or against DoD Forces).
15 Available by downloading at https://
www.dtic.mil/whs/directives/corres/pdf/
120017p.pdf.
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(3) Risk (safety of DoD Forces).
(4) Cost (including the source of
funding and the effect on the DoD
budget).
(5) Appropriateness (whether
providing the requested support is in
the interest of the Department).
(6) Readiness (impact on the
Department of Defense’s ability to
perform its primary mission).
(f) DSCA plans shall be compatible
with the National Response Framework;
the National Incident Management
System; all contingency plans for
operations in the locations listed in
§ 185.1(c) of this part; and any other
national plans (approved by the
President or Secretary of Defense) or
DoD issuances governing DSCA
operations. DSCA planning will
consider command and control options
that will emphasize unity of effort, and
authorize direct liaison if authorized by
the Secretary of Defense.
(g) Federal military commanders,
Heads of DoD Components, and/or
responsible DoD civilian officials
(hereafter referred to collectively as
‘‘DoD officials’’) have immediate
response authority as described in this
part. In response to a request for
assistance from a civil authority, under
imminently serious conditions and if
time does not permit approval from
higher authority, DoD officials may
provide an immediate response by
temporarily employing the resources
under their control, subject to any
supplemental direction provided by
higher headquarters, to save lives,
prevent human suffering, or mitigate
great property damage within the
United States. Immediate response
authority does not permit actions that
would subject civilians to the use of
military power that is regulatory,
prescriptive, proscriptive, or
compulsory.
(1) The DoD official directing a
response under immediate response
authority shall immediately notify the
National Joint Operations and
Intelligence Center (NJOIC), through the
chain of command, of the details of the
response. The NJOIC will inform
appropriate DoD Components to
including the geographic Combatant
Command.
(2) An immediate response shall end
when the necessity giving rise to the
response is no longer present (e.g., when
there are sufficient resources available
from State, local, and other Federal
agencies to respond adequately and that
agency or department has initiated
response activities) or when the
initiating DoD official or a higher
authority directs an end to the response.
The DoD official directing a response
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under immediate response authority
shall reassess whether there remains a
necessity for the Department of Defense
to respond under this authority as soon
as practicable but, if immediate
response activities have not yet ended,
not later than 72 hours after the request
of assistance was received.
(3) Support provided under
immediate response authority should be
provided on a cost-reimbursable basis,
where appropriate or legally required,
but will not be delayed or denied based
on the inability or unwillingness of the
requester to make a commitment to
reimburse the Department of Defense.
(h) The authority of State officials is
recognized to direct a State immediate
response using National Guard
personnel under State command and
control (including personnel in a title
32, U.S.C. (hereafter referred to as ‘‘Title
32’’) status) in accordance with State
law, but National Guard personnel will
not be placed in or extended in Title 32
status to conduct State immediate
response activities.
(i) Federal military commanders are
provided emergency authority under
this part. Federal military forces shall
not be used to quell civil disturbances
unless specifically authorized by the
President in accordance with applicable
law (e.g., chapter 15 of title 10, U.S.C.)
or permitted under emergency
authority, as described below (See DoD
Directive 3025.12 16 and DoD Directive
5525.5 17.) In these circumstances, those
Federal military commanders have the
authority, in extraordinary emergency
circumstances where prior authorization
by the President is impossible and duly
constituted local authorities are unable
to control the situation, to engage
temporarily in activities that are
necessary to quell large-scale,
unexpected civil disturbances because:
(1) Such activities are necessary to
prevent significant loss of life or wanton
destruction of property and are
necessary to restore governmental
function and public order, or,
(2) When duly constituted Federal,
State, or local authorities are unable or
decline to provide adequate protection
for Federal property or Federal
governmental functions. Federal action,
including the use of Federal military
forces, is authorized when necessary to
protect the Federal property or
functions.
(j) Except for immediate response and
emergency authority as described in
16 Available by downloading at https://
www.dtic.mil/whs/directives/corres/pdf/
302512p.pdf.
17 Available by downloading at https://
www.dtic.mil/whs/directives/corres/pdf/
552505p.pdf.
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§ 185.4(g) and § 185.4(i) of this part,
only the Secretary of Defense may
approve requests from civil authorities
or qualifying entities for Federal
military support for:
(1) Defense assistance in responding
to civil disturbances (requires
Presidential authorization) in
accordance with DoD Directive 3025.12.
(2) Defense response to CBRNE events
(see DoD Instruction 2000.18) 18.
(3) Defense assistance to civilian law
enforcement organizations, except as
authorized in DoD Directive 5525.5.
(4) Assistance in responding with
assets with potential for lethality. This
support includes loans of arms; vessels
or aircraft; or ammunition. It also
includes assistance under section 382 of
title 10, U.S.C., and section 831 of title
18, U.S.C.; all support to
counterterrorism operations; and all
support to civilian law enforcement
authorities in situations where a
confrontation between civilian law
enforcement and civilian individuals or
groups is reasonably anticipated.
(k) Federal military forces employed
for DSCA activities shall remain under
Federal military command and control
at all times.
(l) Special event support to a
qualifying entity shall be treated as
DSCA.
(m) All requests for DSCA mutual and
automatic aid via the DoD Fire &
Emergency Services programs shall be
in accordance with DoD Instruction
6055.06.
(n) DSCA is a total force mission (see
DoD Directive 1200.17).
(o) No DoD unmanned aircraft
systems (UAS) will be used for DSCA
operations, including support to
Federal, State, local, and tribal
government organizations, unless
expressly approved by the Secretary of
Defense. Use of armed UAS for DSCA
operations is not authorized. (See DoD
Directive 5240.01, Executive Orders
12333 and 13388, and DoD 5240.1–R.)
(p) Direct liaison between DoD
Components and the States should
occur only when time does not permit
compliance with § 185.5(m)(1) of this
part. In each such instance, the Chief,
National Guard Bureau, will be
informed of the direct liaison.
§ 185.5
Responsibilities.
(a) The Under Secretary of Defense for
Policy (USD(P)) shall:
(1) Coordinate DSCA policy with
other Federal departments and agencies,
State agencies, and the DoD
Components, as appropriate.
18 Available by downloading at https://
www.dtic.mil/whs/directives/corres/pdf/
200018p.pdf.
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(2) Establish DoD policy governing
DSCA.
(b) The Assistant Secretary of Defense
for Homeland Defense and Americas’
Security Affairs (ASD(HD&ASA)), under
the authority, direction, and control of
the USD(P) shall:
(1) Serve as the principal civilian
advisor to the Secretary of Defense and
the USD(P) for DSCA.
(2) Serve as the Defense Domestic
Crisis Manager.
(3) As delegated by the Secretary of
Defense in accordance with DoD
Directive 5111.13 19, serve as approval
authority for requests for assistance
from civil authorities or qualifying
entities sent to the Secretary of Defense,
except for those items retained in
§ 185.4(j) and (o) of this part, or
delegated to other officials. This
authority may not be delegated further
than the Principal Deputy Assistant
Secretary of Defense for Homeland
Defense and Americas’ Security Affairs.
When carrying out this authority, the
ASD(HD&ASA) shall:
(i) Coordinate requests with the
Chairman of the Joint Chiefs of Staff, the
Commanders of the Combatant
Commands with DSCA responsibilities
in the matter, and Military Department
Secretaries and other DoD officials as
appropriate.
(ii) Immediately notify the Secretary
of Defense of the use of this authority.
(4) Develop, coordinate, and oversee
the implementation of DoD policy for
DSCA plans and activities, including:
(i) Requests for assistance during
domestic crises, emergencies, or civil
disturbances.
(ii) Domestic consequence
management.
(iii) Coordination or consultation, as
appropriate, with the Department of
Homeland Security and other Federal
agencies on the development and
validation of DSCA requirements.
(iv) DoD support for national special
security events.
(v) DoD support for national and
international sporting events, in
accordance with section 2564 of title 10,
U.S.C.
(vi) Direct the fullest appropriate
dissemination of information relating to
all aspects of DSCA, using all approved
media and in accordance with DoD
Directive 8320.02 20.
(5) Exercise staff cognizance over DoD
Directive 5525.5.
(c) The Assistant Secretary of Defense
for Special Operations and Low
19 Available by downloading at https://
www.dtic.mil/whs/directives/corres/pdf/
511113p.pdf.
20 Available by downloading at https://
www.dtic.mil/whs/directives/corres/pdf/
832002p.pdf.
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Intensity Conflict and Interdependent
Capabilities, under the authority,
direction, and control of the USD(P),
shall support planning by the Defense
Domestic Crisis Manager during DSCA
operations, as required.
(d) The Under Secretary of Defense
(Comptroller)/Chief Financial Officer
shall:
(1) Establish policies and procedures
to ensure timely reimbursement to the
Department of Defense for reimbursable
DSCA activities.
(2) Assist in management of statutory
resources for DSCA in support of
appropriate international and domestic
sporting events.
(e) The Under Secretary of Defense for
Personnel and Readiness (USD(P&R))
shall identify, monitor, and oversee the
development of integrated DSCA
training capabilities and the integration
of these training capabilities into
exercises and training to build, sustain,
and assess DSCA readiness in
accordance with DoD Directive
1322.18 21.
(f) The Assistant Secretary of Defense
for Health Affairs (ASD(HA)), under the
authority, direction, and control of the
USD(P&R), as the principal advisor to
the Secretary of Defense for all DoD
health policy shall:
(1) Provide guidance and support for
all domestic crisis situations or
emergencies that require health or
medical-related DSCA to
ASD(HD&ASA).
(2) Exercise authority in accordance
with section 300hh–11 of title 42,
U.S.C., and according to DoD Directive
6010.22 22, for participation in the
National Disaster Medical System.
(g) The Assistant Secretary of Defense
for Reserve Affairs, under the authority,
direction, and control of USD(P&R),
shall provide recommendations,
guidance, and support on the use of the
Reserve Components to perform DSCA
missions to ASD(HD&ASA).
(h) The Under Secretary of Defense for
Acquisition, Technology, and Logistics
(USD(AT&L)) shall establish policies
and procedures, in coordination with
ASD(HD&ASA), to implement DSCA
requirements for DoD Fire and
Emergency Services programs and
mutual or automatic aid that may be
part of that program.
(i) The Heads of the DoD Components
shall:
(1) Direct that any DSCA-related DoD
issuances, concept plans, interagency
21 Available by downloading at https://
www.dtic.mil/whs/directives/corres/pdf/
132218p.pdf.
22 Available by downloading at https://
www.dtic.mil/whs/directives/corres/pdf/
601022p.pdf.
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agreements, and memorandums of
understanding or agreement with
external agencies are in full compliance
with this part.
(2) Direct Component compliance
with financial management guidance
related to support provided for DSCA
operations, including guidance related
to tracking costs and seeking
reimbursement.
(3) When approved by the Secretary of
Defense, plan, program, and budget for
DSCA capabilities in accordance with
law, policy, and assigned missions.
(j) The Secretaries of the Military
Departments in addition to the
responsibilities in § 185.5(i) of this part,
shall:
(1) Establish the necessary policies
and procedures to ensure the
appropriate personnel are trained to
execute DSCA plans as directed by the
Secretary of Defense.
(2) Direct that requests for
reimbursement of actual DSCA
expenditures (performance of work or
services, payments to contractors, or
delivery from inventory) begin within
30 calendar days after the month in
which performance occurred. Final
billing invoices shall be submitted to
supported departments and agencies
within 90 calendar days of the
termination of the supported event.
(k) The Chairman of the Joint Chiefs
of Staff in addition to the
responsibilities in § 185.5(i) of this part,
shall:
(1) Advise the Secretary of Defense on
the effects of requests for DSCA on
national security and military readiness.
(2) Identify available resources for
support in response to DSCA requests
and release related orders when
approved by the Secretary of Defense.
(3) Incorporate DSCA into joint
training and exercise programs in
consultation with the USD(P&R), the
Chief, National Guard Bureau (NGB),
and appropriate officials from the
Department of Homeland Security and
other appropriate Federal departments
and agencies.
(4) Advocate for needed DSCA
capabilities.
(l) The Commanders of Combatant
Commands with DSCA responsibilities,
in addition to the responsibilities in
§ 185.5(i) of this part and in accordance
with the Unified Command Plan shall:
(1) In coordination with the Chairman
of the Joint Chiefs of Staff, plan and
execute DSCA operations in their areas
of responsibility in accordance with this
part, the Unified Command Plan and the
Global Force Management
Implementation Guidance.
(2) In coordination with the Chairman
of the Joint Chiefs of Staff, incorporate
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DSCA into joint training and exercise
programs in consultation with the
Department of Homeland Security, other
appropriate Federal departments and
agencies, and the NGB.
(3) Advocate for needed DSCA
capabilities and requirements through
the Joint Requirements Oversight
Council, subject to § 185.5(i) of this part,
and the planning, programming,
budgeting, and execution process.
(4) Work closely with subordinate
commands to ensure that they are
appropriately reimbursed for DSCA in
accordance with § 185.5(j) of this part.
(5) Exercise Training Readiness
Oversight (TRO) over assigned Reserve
Component forces when not on active
duty or when on active duty for training
in accordance with DoD Instruction
1215.06 23.
(m) The Chief, NGB, under the
authority, direction, and control of the
Secretary of Defense, normally through
the Secretary of the Army and the
Secretary of the Air Force, shall:
(1) Serve as the channel of
communications for all matters
pertaining to the National Guard
between DoD Components and the
States in accordance with DoD Directive
5105.77 24.
(2) Annually assess the readiness of
the National Guard of the States to
conduct DSCA activities and report on
this assessment to the Secretaries of the
Army and the Air Force; the USD(P&R),
ASD(HD&ASA), and ASD(RA); and,
through the Chairman of the Joint Chiefs
of Staff, to the Secretary of Defense and
appropriate Combatant Commanders.
(3) Report National Guard support of
civil authorities or qualifying entities
when using Federal resources,
equipment, and/or funding to the
NJOIC.
(4) Serve as an advisor to the
Combatant Commanders on National
Guard matters pertaining to the
combatant command missions, and
support planning and coordination for
DSCA activities as requested by the
Chairman of the Joint Chiefs of Staff or
the Combatant Commanders.
(5) Ensure that National Guard
appropriations are appropriately
reimbursed for DSCA activities.
(6) Advocate for needed DSCA
capabilities.
(7) Develop and promulgate, in
accordance with DoD Directive 5105.77
and in coordination with the Secretaries
of the Army and Air Force and the
23 Available by downloading at https://
www.dtic.mil/whs/directives/corres/pdf/
121506p.pdf.
24 Available by downloading at https://
www.dtic.mil/whs/directives/corres/pdf/
510577p.pdf.
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ASD(HD&ASA), guidance regarding this
part as it relates to National Guard
matters.
Dated: December 22, 2010.
Patricia L. Toppings,
OSD Federal Register Liaison Officer,
Department of Defense.
[FR Doc. 2011–620 Filed 1–12–11; 8:45 am]
BILLING CODE 5001–06–P
DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 199
[DoD–2009–HA–0051]
RIN 0720–AB31
TRICARE; Coverage of National
Cancer Institute (NCI) Sponsored
Phase I Studies
Office of the Secretary, DoD.
Final rule.
AGENCY:
ACTION:
This final rule adds coverage
of National Cancer Institute (NCI)
sponsored Phase I studies for certain
beneficiaries. The NCI sponsored
clinical treatment trials are conducted
in a series of steps called phases. Phase
I trials are the first studies conducted in
people. They evaluate how a new drug
should be given (by mouth, injected into
the blood, or injected into the muscle),
how often, and what dose is safe.
DATES: Effective Date: This rule is
effective February 14, 2011.
FOR FURTHER INFORMATION CONTACT:
Commander James Ellzy, TRICARE
Management Activity, Office of the
Chief Medical Officer, telephone (703)
681–0064.
SUPPLEMENTARY INFORMATION:
SUMMARY:
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A. Background
This final rule adds the coverage of a
subset of National Cancer Institute (NCI)
sponsored Phase I trials for certain
TRICARE patients. The NCI sponsored
clinical treatment trials are conducted
in a series of steps called phases. Phase
I trials are the first studies conducted in
people. They evaluate how a new drug
should be given (by mouth, injected into
the blood, or injected into the muscle),
how often, and what dose is safe. A
Phase I trial usually enrolls only a small
number of patients, sometimes as few as
a dozen. A Phase II trial continues to
test the safety of the drug, and begins to
evaluate how well the new drug works.
Phase II studies usually focus on a
particular type of cancer. A Phase III
trial tests a new drug, a new
combination of drugs, or a new surgical
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procedure in comparison to the current
standard. A participant will usually be
assigned to the standard group or the
new group at random. Phase III trials
often enroll large numbers of people and
may be conducted at many doctors’
offices, clinics, and cancer centers
nationwide.
This final rule adds coverage only of
NCI sponsored Phase I trials with
clinical or pre-clinical data providing a
reasonable expectation that the
treatment will be at least as effective as
the non-investigational alternative.
Additionally, only those TRICARE
patients for whom standard treatment
has been or would be ineffective, does
not exist, or there is no superior noninvestigational treatment alternative,
would be eligible for these additional
trials. TRICARE has covered NCI
sponsored Phase II and III trials since
1996. The NCI estimates that Phase I
trial participants represent about 3.4
percent of overall Phase II and III
participants combined. Based on the
history of Department of Defense
participation in these studies, it is
estimated that there would be a
maximum of 1,000 new patients
annually enrolling in Phase I trials. It is
estimated that the net cost to TRICARE
of adding Phase I treatment trials will
increase costs by 12.8 percent of the
total gross costs (approximately
$150,000 in FY09). Currently, ten States
mandate coverage of at least some Phase
I trials.
B. Public Comments
The DoD published a proposed rule
on June 22, 2009 (74 FR 29435–29436).
One set of comments was received on
the proposed rule. The sole commenter
strongly supported the proposed rule
and urged the DoD to make it final. We
agree with this recommendation and
have not made any modifications to the
proposed rule.
C. Regulatory Procedures
Executive Order 12866, ‘‘Regulatory
Planning and Review’’
Section 801 of Title 5, United States
Code (U.S.C.), and Executive Order
(E.O.) 12866 requires certain regulatory
assessments and procedures for any
major rule or significant regulatory
action, defined as one that would result
in an annual effect of $100 million or
more on the national economy, or which
would have other substantial impacts. It
has been certified that this rule is not an
economically significant rule; however,
it is a regulatory action which has been
reviewed by the Office of Management
and Budget as required under the
provisions of E.O. 12866.
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2253
Sec. 202, Public Law 104–4, ‘‘Unfunded
Mandates Reform Act’’
It has been certified that this rule does
not contain a Federal mandate that may
result in the expenditure by State, local
and Tribal governments, in aggregate, or
by the private sector, of $100 million or
more in any one year.
Public Law 96–354, ‘‘Regulatory
Flexibility Act’’ (5 U.S.C. 601)
The Regulatory Flexibility Act (RFA)
requires each Federal agency prepare,
and make available for public comment,
a regulatory flexibility analysis when
the agency issues a regulation which
would have a significant impact on a
substantial number of small entities.
This final rule will not significantly
affect a substantial number of small
entities for purposes of the RFA.
Public Law 96–511, ‘‘Paperwork
Reduction Act’’ (44 U.S.C. Chapter 35)
This rule will not impose additional
information collection requirements on
the public under the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501–
3511).
Executive Order 13132, ‘‘Federalism’’
This final rule has been examined for
its impact under E.O. 13132 and it does
not contain policies that have
federalism implications that would have
substantial direct effects on the States,
on the relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government; therefore,
consultation with State and local
officials is not required.
List of Subjects in 32 CFR Part 199
Claims, Dental Health, Health Care,
Health Insurance, Individuals with
Disabilities, Military Personnel.
■ Accordingly, 32 CFR, Part 199 is
amended as follows:
PART 199—[AMENDED]
1. The authority citation for Part 199
continues to read as follows:
■
Authority: 5 U.S.C. 301; 10 U.S.C. Chapter
55.
2. Section 199.4 is amended by:
A. Redesignating paragraphs
(e)(26)(ii)(B)(2), (3) and (4) as paragraphs
(e)(26)(ii)(B)(3), (4) and (5);
■ B. Adding a sentence to the
introductory text in paragraph
(e)(26)(ii)(B);
■ C. Revising paragraph
(e)(26)(ii)(B)(1)(ii);
■ D. Revising paragraph
(e)(26)(ii)(B)(1)(iv);
■
■
E:\FR\FM\13JAR1.SGM
13JAR1
]]>Agencies
[Federal Register Volume 76, Number 9 (Thursday, January 13, 2011)]
[Rules and Regulations]
[Pages 2246-2253]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-620]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 185
[DoD-2008-OS-0085; RIN 0790-AI34]
Defense Support of Civil Authorities (DSCA)
AGENCY: Department of Defense.
ACTION: Final rule.
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SUMMARY: This final rule establishes policy and assigns
responsibilities for DSCA, supplements regulations regarding military
support for civilian law enforcement, and sets forth policy guidance
for the execution and oversight of DSCA when requested by civil
authorities and approved by the appropriate Department of Defense (DoD)
authority, or as directed by the President, within the United States,
including the District of Columbia, the Commonwealth of Puerto Rico,
the U.S. Virgin Islands, Guam, American Samoa, the Commonwealth of the
Northern Mariana Islands, and any territory or possession of the United
States or any political subdivision thereof. Legislative changes over
the years have made the existing guidance outdated and inconsistent
with current law and the current organizational structure of the
Department of Defense. This final rule will facilitate civil
authorities' access to the support they are seeking from the Department
by establishing updated policy guidance and assigning the correct
responsibilities within the Department for Defense Support of Civil
Authorities in response to requests for assistance for domestic
emergencies, designated law enforcement support, special events, and
other domestic activities.
DATES: Effective Date: This rule is effective February 14, 2011.
FOR FURTHER INFORMATION CONTACT: Colonel Brent Feick, 703-697-5415.
SUPPLEMENTARY INFORMATION: The Department of Defense published a
proposed rule on December 4, 2008 (73 FR 73896-73900). Eighty-four
comments were received and are addressed below:
Comment: Thirty-nine of the 84 public comments question the
Constitutionality of the Department of Defense supporting civil
authorities domestically. Example: DOD-2008-0085-006 ``The U.S.
Constitution outlines the use of military force within our borders. We
don't need this. We need leaders who have respect for our Constitution
and our Liberty.''
Response: The rule has been thoroughly reviewed by attorneys at
several levels of the Departments of Defense, Justice, and Homeland
Security and found not to violate any provisions of the Constitution.
The Department of Defense (DoD) has historically been requested by
civil authorities to provide support or assistance during various types
of man-made or natural disasters, support for special events such as
the National Political Conventions, the
[[Page 2247]]
Group of Eight Summit, the Inauguration, the Olympics, the Special
Olympics, the United Nations General Assembly, and even support to law
enforcement to help quell civil disobedience and restore public order,
such as the Los Angeles Riots in 1992. Each of these support missions
is conducted consistent with the Constitution, applicable law, and
National policy. This rule sets forth DoD policy guidance for the
execution and oversight of Defense Support of Civil Authorities when
support or assistance is requested by civil authorities. The rule, by
itself, provides no new, separate, or independent authority to the
President, the Secretary of Defense, or anyone else in the Department
of Defense.
Comment: Sixteen of the 84 public comments asserted that the rule
was in violation of the Posse Comitatus Act (Title 18, United States
Code, Section 1385). Example: DOD-2008-0085-010 ``The Defense Support
of Civil Authorities Plan is a violation of Posse Comitatus and will
sink this once great country to the level of a third world
dictatorship. The DOD should be fighting for individual freedom in the
US, not helping to extinguish it.''
Response: The rule has been thoroughly reviewed by attorneys at
several levels of the Departments of Defense, Justice, and Homeland
Security and found not to violate any current law, including the Posse
Comitatus Act.
Comment: Eight of the 84 public comments asserted that the rule was
inconsistent with the Second Amendment to the Constitution. Example:
DOD-2008-0085-054 ``This proposed regulation is an unconstitutional
infringement on Second Amendment rights. It also gives excessive power
to the U.S. Military to serve as an internal police force.''
Response: The rule has been thoroughly reviewed by attorneys at
several levels of the Departments of Defense, Justice, and Homeland
Security and found not to violate any provisions of the Constitution,
including the Second Amendment. There is no attempt to usurp civilian
authority or use the military as an internal police force. The rule
sets forth policy guidance for the execution and oversight of defense
support of civilian authorities when requested by civil authorities.
Comment: Seven of the 84 public comments asserted that National
Guard forces were sufficient to fill this support or assistance role
under the direction of respective Governors. Example: DOD-2008-0085-002
``There is no reason to involve the forces of the United States
military when each state already has National Guard units which can
fill this role and are under the direction of the Governor. I'm a big
supporter of a strong US military for the protection of our country
from outside threats. This redundancy is not only unwarranted, it runs
against the principles of our founding fathers.''
Response: The National Guard, when in Federal service or funded by
the Department of Defense and in coordination with the Governors, is a
vital component of Defense Support of Civil Authorities. In the
Department of Defense's Strategy for Homeland Defense and Civil
Support, there is a focused reliance on the Reserve Components to
support and assist civil authorities. Individual state National Guard
units are more capable and better equipped and resourced than during
any time in their history. But each state National Guard cannot be
manned, equipped, trained, and resourced to meet the needs of every
conceivable contingency operation. Most states are part of Regional or
National Emergency Management Assistance Compacts, which permit the
Governor of one state to commit that state's resources to support
another state. This process works very well during localized
emergencies or disasters, but mutual aid support between states is not
as efficient during special events or incidents other than localized
major disasters and emergencies. In the event of multiple, near
simultaneous, geographically dispersed terrorist attacks in the United
States, or the rapid spread of a pandemic, it is unknown if Governors
would release their National Guard capabilities to support another
state or a Federal Agency if there is a chance that resources would be
needed in their home states. Many emergencies, disasters, or events
affect more than one state. It is not realistic to expect Federal
Departments or Agencies to coordinate requests for assistance or
support with multiple States, Commonwealths, and Territories. Finally,
there are some capabilities that are available only in the Active Duty
military force or in DoD.
Comment: Five of the 84 public comments asserted that it was the
military's role to protect against foreign threats only. Example: DOD-
2008-0085-020 ``This proposal is ridiculous and in violation of the
Constitution. If this is a need that must be met, use the funding it
would require and invest it in civil law enforcement and emergency
services. The military is for defending us from foreign aggressors.''
Response: The rule has been thoroughly reviewed by attorneys at
several levels of the Departments of Defense, Justice, and Homeland
Security and found not to violate any provisions of the Constitution.
Additionally, a number of statutes provide specific authority for DSCA.
This rule sets forth DoD policy guidance for the execution and
oversight of defense support of civil authorities. There are no
provisions for the DoD components to take over what is inherently a
civilian responsibility, but rather provisions for providing support or
assistance when requested.
Comment: Five of the 84 public comments asserted that the proposed
rule was too broad and gave the military or the President too much
power. Example: DOD-2008-OS-0085-0036 ``I am opposed to this government
regulation `Defense Support of Civil Authorities'. It gives power to
the military to assume civilian law enforcement at the behest of the
president with no restriction on this power. This is unconstitutional!
This document is too broad and clearly states that the military can
intervene at the request of civil authorities OR by presidential
executive order. This is a very dangerous rule to individual freedom!''
Response: This rule sets forth DoD policy guidance for the
execution and oversight of Defense Support of Civil Authorities when
support or assistance is requested by civil authorities. The rule, by
itself, provides no new, separate, or independent authority to the
President, the Secretary of Defense, or anyone else in the Department
of Defense.
Comment: Four of the 84 public comments asserted that the rule
violated or erodes the 10th Amendment to the Constitution. Example:
DOD-2008-OS-0085-17 ``There is no Constitutional basis for any portion
of this proposed regulation. Leaving the deployment of our military
within our own borders to assist with undefined domestic issues to the
whims of the President is dangerous, adds undue stress on the office,
and severely erodes the rights afforded to the states under the 10th
Amendment.''
Response: This rule sets forth DoD policy guidance for the
execution and oversight of Defense Support of Civil Authorities when
support or assistance is requested by civil authorities. The rule, by
itself, provides no new, separate, or independent authority, nor does
it violate, restrict, or erode the rights afforded to the states under
the 10th Amendment. This rule enables civil authorities (See Joint
Publication 1-02) \1\ to request and receive support or
[[Page 2248]]
assistance from the Department of Defense.
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\1\ Available by downloading at https://www.dtic.mil/doctrine/new_pubs/jp1_02.pdf.
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Comment: Three of the 84 public comments expressed concern over the
inclusion of ``special events'' in the rule. Example: DOD-2008-OS-0085-
0019 ``The role of the US military is to protect us from foreign
threats. This regulation is overbroad in that it would allow the use of
the US military to suppress any kind of gathering. As an example,
consider the Rainbow gatherings, 50-60,000 people exercising their
right to gather on public lands. Under this regulation, the military
could be called in to quash this. This regulation essentially guts the
constitution. Because of clauses like `special events' and `other
domestic activities' are broad, they could be interpreted to allow
military intervention in any special event, such as concerts, parades,
demonstrations, religious conventions, gun shows, political events,
etc. This regulation establishes de facto marshal (military) law.
Narrowing this regulation to state `in response to insurrections only'
would be constitutional. I am adamantly opposed to this rule.''
Response: The rule sets forth policy guidance for the execution and
oversight of defense support of civilian authorities when requested by
civil authorities. In addition to providing capabilities to assist and
support civilian authorities during emergencies or in response to major
disasters, DoD is often asked by civilian authorities to provide
support and assistance for planned special events. As noted in the
Glossary, a special event is an international or domestic event,
contest, activity, or meeting, which by its very nature, or by specific
statutory or regulatory authority, may require security, safety, and/or
other logistical support or assistance from the Department of Defense.
Congress has granted to the Secretary of Defense the authority to
approve DoD support and assistance for certain specific events such as
the Presidential inaugural, the Boy Scout Jamboree, and certain
sporting competitions. Each specific authorization establishes
necessary oversight and controls. DoD support during other special
events, such as the Presidential nominating conventions, such as the
United Nations General Assembly, Super Bowls, and the Group of Eight
Economic Summit, are in reality, DoD supporting other civil authorities
like the United States Secret Service, which is authorized under 18
U.S.C. 3056, when directed by the President, to plan, coordinate, and
implement security operations at special events. DoD support at such
events is generally in support of other federal agencies, such as the
Federal Bureau of Investigation, as well as state and local entities
such as the Colorado Office of Homeland Security, or the San Diego
Police Department. DoD has very limited authority to deploy DoD
resources in support of event organizers.
In addition to the comments received above, the following has been
included in the final rule based on internal comments received on the
corresponding DoD instruction: Provisions regarding the ``emergency
authority'' of responsible DoD officials and commanders to use military
forces if necessary to prevent loss of life or wanton destruction of
property or to restore governmental functions and public order under
specified conditions. These provisions were included to bring this rule
into consistency with the authorities in DoD Directives 3025.12 and
5525.5, as well as 32 CFR part 215.4.
Regulatory Procedures
Executive Order 12866, ``Regulatory Planning and Review''
It has been certified that 32 CFR part 185 does not:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy; a section of the
economy; productivity; competition; jobs; the environment; public
health or safety; or State, local, or tribunal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another Agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs, or the rights and obligations of
recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
this Executive Order.
Sec. 202, Public Law 104-4, ``Unfunded Mandates Reform Act''
It has been certified that 32 CFR part 185 does not contain a
Federal mandate that may result in the expenditure by State, local, and
tribunal governments, in aggregate, or by the private sector, of $100
million or more in any one year.
Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)
It has been certified that 32 CFR part 185 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. This rule establishes policy and assigns
responsibilities within DoD for DSCA, supplements regulations regarding
military support for civilian law enforcement, and sets forth policy
guidance for the execution and oversight of DSCA when requested by
civil authorities and approved by the appropriate DoD authority, or as
directed by the President. Therefore, it is not expected that small
entities will be affected because there will be no economically
significant regulatory requirements placed upon them.
Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)
It has been certified that 32 CFR part 185 does not impose
reporting or recordkeeping requirements under the Paperwork Reduction
Act of 1995.
Executive Order 13132, ``Federalism''
It has been certified that 32 CFR part 185 does not have federalism
implications, as set forth in Executive Order 13132. This rule does not
have substantial direct effects on:
(1) The States;
(2) The relationship between the National Government and the
States; or
(3) The distribution of power and responsibilities among the
various levels of Government.
List of Subjects in 32 CFR Part 185
Armed forces, Civil defense.
Accordingly, the Department of Defense revises 32 CFR part 185 to
read as follows:
PART 185--DEFENSE SUPPORT OF CIVIL AUTHORITIES (DSCA)
Sec.
185.1 Purpose.
185.2 Applicability and scope.
185.3 Definitions.
185.4 Policy.
185.5 Responsibilities.
Authority: Legal authority includes, 10 U.S.C. sections 113,
331-335, 371-382, 2553, 2554, 2555, and 2564; 31 U.S.C. 1535-1536
(Economy Act); 42 U.S.C. section 5121 et seq. (Robert T. Stafford
Disaster Relief and Emergency Assistance Act, as amended (Stafford
Act)); and Public Law 94-524, as amended (Presidential Protection
Assistance Act of 1976).
Sec. 185.1. Purpose.
This part:
(a) Establishes policy and assigns responsibilities for DSCA, also
referred to as civil support.
(b) Supplements the regulations (in DoD Directive 5525.5) \1\
required by section 375 of title 10, United States
[[Page 2249]]
Code (U.S.C.), regarding military support for civilian law enforcement.
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\1\ Available for downloading at https://www.dtic.mil/whs/directives/corres/pdf/552505p.pdf
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(c) Sets forth policy guidance for the execution and oversight of
DSCA when requested by civil authorities or by qualifying entities and
approved by the appropriate DoD official, or as directed by the
President, within the United States, including the District of
Columbia, the Commonwealth of Puerto Rico, the U.S. Virgin Islands,
Guam, American Samoa, the Commonwealth of the Northern Mariana Islands,
and any territory or possession of the United States or any political
subdivision thereof.
(d) Authorizes immediate response authority for providing DSCA,
when requested.
(e) Authorizes emergency authority for the use of military force,
under dire situations, as described in Sec. 185.4(i) of this part.
Sec. 185.2. Applicability and scope.
This part:
(a) Applies to the Office of the Secretary of Defense, the Military
Departments, 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 Department of Defense (hereafter referred to collectively as the
``DoD Components'').
(b) Applies to the Army National Guard and the Air National Guard
(hereafter referred to collectively as the ``National Guard'')
personnel when under Federal command and control. Also applies to
National Guard personnel when the Secretary of Defense determines that
it is appropriate to employ National Guard personnel in title 32,
U.S.C., status to fulfill a request for DSCA, the Secretary of Defense
requests the concurrence of the Governors of the affected States, and
those Governors concur in the employment of National Guard personnel in
such a status.
(c) Applies to all DSCA (except the specific forms of DSCA listed
in paragraph (d) of this section), including but not limited to:
(1) Mutual or automatic aid, also known as reciprocal fire
protection agreements (see chapter 15A of title 42 U.S.C.).
(2) DoD fire and emergency services programs (see DoD Instruction
6055.06) \2\.
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\2\ Available by downloading at https://www.dtic.mil/whs/directives/corres/pdf/605506p.pdf.
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(3) Support of special events in accordance with applicable laws
and DoD policy (see DoD Directive 2000.15) \3\.
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\3\ Available by downloading at https://www.dtic.mil/whs/directives/corres/pdf/200015p.pdf.
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(4) United States Army Corps of Engineers (USACE) activities as the
DoD Coordinating and Primary Agency for Emergency Support Function
3, Public Works and Engineering, of the National Response
Framework.
(5) Defense support to civilian law enforcement agencies (see DoDD
3025.12 \4\ and DoD Directive 5525.5).
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\4\ Available by downloading at https://www.dtic.mil/whs/directives/corres/pdf/302512p.pdf.
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(d) Does not apply to the following:
(1) Support in response to foreign disasters provided in accordance
with DoD Directive 5100.46 \5\.
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\5\ Available by downloading at https://www.dtic.mil/whs/directives/corres/pdf/510046p.pdf.
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(2) Joint investigations conducted by the Inspector General of the
Department of Defense, the Defense Criminal Investigative Service, and
the military criminal investigative organizations with civil law
enforcement agencies on matters within their respective jurisdictions
using their own forces and equipment.
(3) Detail of DoD personnel to duty outside the Department of
Defense in accordance with DoD Instruction 1000.17 \6\.
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\6\ Available by downloading at https://www.dtic.mil/whs/directives/corres/pdf/100017p.pdf.
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(4) Counternarcotics operations conducted under the authority of
section 1004 of Public Law 101-510 (1991).
(5) Support provided by the USACE when accomplishing missions and
responsibilities under the authority of section 701n of title 33,
U.S.C. and Executive Order 12656.
(6) Assistance provided by DoD intelligence and counterintelligence
components in accordance with DoD Directive 5240.01 \7\, Executive
Orders 12333 and 13388, DoD 5240.1-R \8\, and other applicable laws and
regulations.
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\7\ Available by downloading at https://www.dtic.mil/whs/directives/corres/pdf/524001p.pdf.
\8\ Available by downloading at https://www.dtic.mil/whs/directives/corres/pdf/524001r.pdf.
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(7) Military community relations programs and activities
administered by the Assistant Secretary of Defense for Public Affairs
(see DoD Directive 5410.18 \9\ and DoD Instruction 5410.19 \10\).
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\9\ Available by downloading at https://www.dtic.mil/whs/directives/corres/pdf/541018p.pdf.
\10\ Available by downloading at https://www.dtic.mil/whs/directives/corres/pdf/541019p.pdf.
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(8) Sensitive support in accordance with DoD Directive S-5210.36
\11\.
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\11\ Document is classified and copies maybe requested by
contacting USD(I), USDI.pubs@osd.mil
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(9) Activities performed by the Civil Air Patrol in support of
civil authorities or qualifying entities when approved by the Air Force
as auxiliary missions in accordance with section 9442 of title 10,
U.S.C. and DoD 3025.1-M \12\ except as restricted by Sec. 185.4(j) of
this part.
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\12\ Available by downloading at https://www.dtic.mil/whs/directives/corres/pdf/302501m.pdf.
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(10) Innovative readiness training (formerly called ``civil-
military cooperative action programs'') (see DoD Directive 1100.20)
\13\.
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\13\ Available by downloading at https://www.dtic.mil/whs/directives/corres/pdf/110020p.pdf.
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Sec. 185.3. Definitions.
Civil Authorities. See Joint Publication 1-02 \14\.
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\14\ Available by downloading at https://www.dtic.mil/doctrine/new_pubs/jp1_02.pdf.
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Civil Disturbances. See Joint Publication 1-02.
Defense Domestic Crisis Manager. The lead DoD official responsible
for DoD's domestic crisis management response, ensuring the information
needs and other requirements of the Secretary of Defense are met, and
developing, coordinating, and overseeing the implementation of DoD
policy for crisis management to ensure DoD capability to develop and
execute options to prevent, mitigate, or respond to a potential or
actual domestic crisis. The Assistant Secretary of Defense for Homeland
Defense and Americas' Security Affairs (ASD(HD&ASA)) serves as the
Defense Domestic Crisis Manager.
Defense Support of Civil Authorities (DSCA). Support provided by
U.S. Federal military forces, DoD civilians, DoD contract personnel,
DoD Component assets, and National Guard forces (when the Secretary of
Defense, in coordination with the Governors of the affected States,
elects and requests to use those forces in title 32, U.S.C., status) in
response to requests for assistance from civil authorities for domestic
emergencies, law enforcement support, and other domestic activities, or
from qualifying entities for special events. Also known as civil
support.
Direct Liaison. An authority for Federal military forces to consult
with,
[[Page 2250]]
coordinate with, and respond to State authorities (including National
Guard units and personnel operating in Title 32 status or in State
Active Duty status) or Federal civilian authorities in the tactical-
level execution of assigned tasks, pursuant to an order by the
Secretary of Defense or the President to provide support to those
authorities.
Emergency Authority. A Federal military commander's authority, in
extraordinary emergency circumstances where prior authorization by the
President is impossible and duly constituted local authorities are
unable to control the situation, to engage temporarily in activities
that are necessary to quell large-scale, unexpected civil disturbances
because (1) such activities are necessary to prevent significant loss
of life or wanton destruction of property and are necessary to restore
governmental function and public order or (2) duly constituted Federal,
State, or local authorities are unable or decline to provide adequate
protection for Federal property or Federal governmental functions.
Federal Military Forces. Army, Navy, Marine Corps and Air Force
personnel (including Reserve Component personnel) on Federal active
duty and National Guard personnel when under Federal command and
control.
Immediate Response Authority. A Federal military commander's, DoD
Component Head's, and/or responsible DoD civilian official's authority
temporarily to employ resources under their control, subject to any
supplemental direction provided by higher headquarters, and provide
those resources to save lives, prevent human suffering, or mitigate
great property damage in response to a request for assistance from a
civil authority, under imminently serious conditions when time does not
permit approval from a higher authority within the United States.
Immediate response authority does not permit actions that would subject
civilians to the use of military power that is regulatory,
prescriptive, proscriptive, or compulsory. State immediate response is
addressed in Sec. 185.4(h) of this part.
Qualifying Entity. A non-Governmental organization to which the
Department of Defense may provide assistance for special events by
virtue of statute, regulation, policy, or other approval by the
Secretary of Defense or his or her authorized designee.
Responsible DoD Civilian. For purposes of DSCA, the Head of a DoD
Component or other DoD civilian official who has authority over DoD
assets that may be used for a DSCA response.
Special Event. An international or domestic event, contest,
activity, or meeting, which by its very nature, or by specific
statutory or regulatory authority, may warrant security, safety, and/or
other logistical support or assistance from the Department of Defense.
Total Force. See DoD Directive 1200.17 \15\.
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\15\ Available by downloading at https://www.dtic.mil/whs/directives/corres/pdf/120017p.pdf.
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Sec. 185.4. Policy.
It is DoD policy that:
(a) This part shall be implemented consistent with national
security objectives and military readiness.
(b) Unless expressly stated otherwise, the provisions of this part
should not be construed to rescind any existing authorities of the
Heads of DoD Components, commanders, and/or responsible DoD civilians
to provide DSCA in accordance with existing laws, DoD issuances, and
Secretary of Defense-approved orders.
(c) DSCA is initiated by a request for DoD assistance from civil
authorities or qualifying entities or is authorized by the President or
Secretary of Defense.
(d) All requests for DSCA shall be written, and shall include a
commitment to reimburse the Department of Defense in accordance with
the Stafford Act, Economy Act, or other authorities except requests for
support for immediate response, and mutual or automatic aid, in
accordance with Sec. 185.4(g) and (m) of this part. Unless approval
authority is otherwise delegated by the Secretary of Defense, all DSCA
requests shall be submitted to the office of the Executive Secretary of
the Department of Defense. For assistance provided according to Sec.
185.4(g) of this part, civil authorities shall be informed that oral
requests for assistance in an emergency must be followed by a written
request that includes an offer to reimburse the Department of Defense
at the earliest available opportunity. States also must reimburse the
United States Treasury in accordance with section 9701 of title 31,
U.S.C. Support may be provided on a non-reimbursable basis only if
required by law or if both authorized by law and approved by the
appropriate DoD official.
(e) All requests from civil authorities and qualifying entities for
assistance shall be evaluated for:
(1) Legality (compliance with laws).
(2) Lethality (potential use of lethal force by or against DoD
Forces).
(3) Risk (safety of DoD Forces).
(4) Cost (including the source of funding and the effect on the DoD
budget).
(5) Appropriateness (whether providing the requested support is in
the interest of the Department).
(6) Readiness (impact on the Department of Defense's ability to
perform its primary mission).
(f) DSCA plans shall be compatible with the National Response
Framework; the National Incident Management System; all contingency
plans for operations in the locations listed in Sec. 185.1(c) of this
part; and any other national plans (approved by the President or
Secretary of Defense) or DoD issuances governing DSCA operations. DSCA
planning will consider command and control options that will emphasize
unity of effort, and authorize direct liaison if authorized by the
Secretary of Defense.
(g) Federal military commanders, Heads of DoD Components, and/or
responsible DoD civilian officials (hereafter referred to collectively
as ``DoD officials'') have immediate response authority as described in
this part. In response to a request for assistance from a civil
authority, under imminently serious conditions and if time does not
permit approval from higher authority, DoD officials may provide an
immediate response by temporarily employing the resources under their
control, subject to any supplemental direction provided by higher
headquarters, to save lives, prevent human suffering, or mitigate great
property damage within the United States. Immediate response authority
does not permit actions that would subject civilians to the use of
military power that is regulatory, prescriptive, proscriptive, or
compulsory.
(1) The DoD official directing a response under immediate response
authority shall immediately notify the National Joint Operations and
Intelligence Center (NJOIC), through the chain of command, of the
details of the response. The NJOIC will inform appropriate DoD
Components to including the geographic Combatant Command.
(2) An immediate response shall end when the necessity giving rise
to the response is no longer present (e.g., when there are sufficient
resources available from State, local, and other Federal agencies to
respond adequately and that agency or department has initiated response
activities) or when the initiating DoD official or a higher authority
directs an end to the response. The DoD official directing a response
[[Page 2251]]
under immediate response authority shall reassess whether there remains
a necessity for the Department of Defense to respond under this
authority as soon as practicable but, if immediate response activities
have not yet ended, not later than 72 hours after the request of
assistance was received.
(3) Support provided under immediate response authority should be
provided on a cost-reimbursable basis, where appropriate or legally
required, but will not be delayed or denied based on the inability or
unwillingness of the requester to make a commitment to reimburse the
Department of Defense.
(h) The authority of State officials is recognized to direct a
State immediate response using National Guard personnel under State
command and control (including personnel in a title 32, U.S.C.
(hereafter referred to as ``Title 32'') status) in accordance with
State law, but National Guard personnel will not be placed in or
extended in Title 32 status to conduct State immediate response
activities.
(i) Federal military commanders are provided emergency authority
under this part. Federal military forces shall not be used to quell
civil disturbances unless specifically authorized by the President in
accordance with applicable law (e.g., chapter 15 of title 10, U.S.C.)
or permitted under emergency authority, as described below (See DoD
Directive 3025.12 \16\ and DoD Directive 5525.5 \17\.) In these
circumstances, those Federal military commanders have the authority, in
extraordinary emergency circumstances where prior authorization by the
President is impossible and duly constituted local authorities are
unable to control the situation, to engage temporarily in activities
that are necessary to quell large-scale, unexpected civil disturbances
because:
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\16\ Available by downloading at https://www.dtic.mil/whs/directives/corres/pdf/302512p.pdf.
\17\ Available by downloading at https://www.dtic.mil/whs/directives/corres/pdf/552505p.pdf.
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(1) Such activities are necessary to prevent significant loss of
life or wanton destruction of property and are necessary to restore
governmental function and public order, or,
(2) When duly constituted Federal, State, or local authorities are
unable or decline to provide adequate protection for Federal property
or Federal governmental functions. Federal action, including the use of
Federal military forces, is authorized when necessary to protect the
Federal property or functions.
(j) Except for immediate response and emergency authority as
described in Sec. 185.4(g) and Sec. 185.4(i) of this part, only the
Secretary of Defense may approve requests from civil authorities or
qualifying entities for Federal military support for:
(1) Defense assistance in responding to civil disturbances
(requires Presidential authorization) in accordance with DoD Directive
3025.12.
(2) Defense response to CBRNE events (see DoD Instruction 2000.18)
\18\.
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\18\ Available by downloading at https://www.dtic.mil/whs/directives/corres/pdf/200018p.pdf.
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(3) Defense assistance to civilian law enforcement organizations,
except as authorized in DoD Directive 5525.5.
(4) Assistance in responding with assets with potential for
lethality. This support includes loans of arms; vessels or aircraft; or
ammunition. It also includes assistance under section 382 of title 10,
U.S.C., and section 831 of title 18, U.S.C.; all support to
counterterrorism operations; and all support to civilian law
enforcement authorities in situations where a confrontation between
civilian law enforcement and civilian individuals or groups is
reasonably anticipated.
(k) Federal military forces employed for DSCA activities shall
remain under Federal military command and control at all times.
(l) Special event support to a qualifying entity shall be treated
as DSCA.
(m) All requests for DSCA mutual and automatic aid via the DoD Fire
& Emergency Services programs shall be in accordance with DoD
Instruction 6055.06.
(n) DSCA is a total force mission (see DoD Directive 1200.17).
(o) No DoD unmanned aircraft systems (UAS) will be used for DSCA
operations, including support to Federal, State, local, and tribal
government organizations, unless expressly approved by the Secretary of
Defense. Use of armed UAS for DSCA operations is not authorized. (See
DoD Directive 5240.01, Executive Orders 12333 and 13388, and DoD
5240.1-R.)
(p) Direct liaison between DoD Components and the States should
occur only when time does not permit compliance with Sec. 185.5(m)(1)
of this part. In each such instance, the Chief, National Guard Bureau,
will be informed of the direct liaison.
Sec. 185.5 Responsibilities.
(a) The Under Secretary of Defense for Policy (USD(P)) shall:
(1) Coordinate DSCA policy with other Federal departments and
agencies, State agencies, and the DoD Components, as appropriate.
(2) Establish DoD policy governing DSCA.
(b) The Assistant Secretary of Defense for Homeland Defense and
Americas' Security Affairs (ASD(HD&ASA)), under the authority,
direction, and control of the USD(P) shall:
(1) Serve as the principal civilian advisor to the Secretary of
Defense and the USD(P) for DSCA.
(2) Serve as the Defense Domestic Crisis Manager.
(3) As delegated by the Secretary of Defense in accordance with DoD
Directive 5111.13 \19\, serve as approval authority for requests for
assistance from civil authorities or qualifying entities sent to the
Secretary of Defense, except for those items retained in Sec. 185.4(j)
and (o) of this part, or delegated to other officials. This authority
may not be delegated further than the Principal Deputy Assistant
Secretary of Defense for Homeland Defense and Americas' Security
Affairs. When carrying out this authority, the ASD(HD&ASA) shall:
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\19\ Available by downloading at https://www.dtic.mil/whs/directives/corres/pdf/511113p.pdf.
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(i) Coordinate requests with the Chairman of the Joint Chiefs of
Staff, the Commanders of the Combatant Commands with DSCA
responsibilities in the matter, and Military Department Secretaries and
other DoD officials as appropriate.
(ii) Immediately notify the Secretary of Defense of the use of this
authority.
(4) Develop, coordinate, and oversee the implementation of DoD
policy for DSCA plans and activities, including:
(i) Requests for assistance during domestic crises, emergencies, or
civil disturbances.
(ii) Domestic consequence management.
(iii) Coordination or consultation, as appropriate, with the
Department of Homeland Security and other Federal agencies on the
development and validation of DSCA requirements.
(iv) DoD support for national special security events.
(v) DoD support for national and international sporting events, in
accordance with section 2564 of title 10, U.S.C.
(vi) Direct the fullest appropriate dissemination of information
relating to all aspects of DSCA, using all approved media and in
accordance with DoD Directive 8320.02 \20\.
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\20\ Available by downloading at https://www.dtic.mil/whs/directives/corres/pdf/832002p.pdf.
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(5) Exercise staff cognizance over DoD Directive 5525.5.
(c) The Assistant Secretary of Defense for Special Operations and
Low
[[Page 2252]]
Intensity Conflict and Interdependent Capabilities, under the
authority, direction, and control of the USD(P), shall support planning
by the Defense Domestic Crisis Manager during DSCA operations, as
required.
(d) The Under Secretary of Defense (Comptroller)/Chief Financial
Officer shall:
(1) Establish policies and procedures to ensure timely
reimbursement to the Department of Defense for reimbursable DSCA
activities.
(2) Assist in management of statutory resources for DSCA in support
of appropriate international and domestic sporting events.
(e) The Under Secretary of Defense for Personnel and Readiness
(USD(P&R)) shall identify, monitor, and oversee the development of
integrated DSCA training capabilities and the integration of these
training capabilities into exercises and training to build, sustain,
and assess DSCA readiness in accordance with DoD Directive 1322.18
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\21\ Available by downloading at https://www.dtic.mil/whs/directives/corres/pdf/132218p.pdf.
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(f) The Assistant Secretary of Defense for Health Affairs
(ASD(HA)), under the authority, direction, and control of the USD(P&R),
as the principal advisor to the Secretary of Defense for all DoD health
policy shall:
(1) Provide guidance and support for all domestic crisis situations
or emergencies that require health or medical-related DSCA to
ASD(HD&ASA).
(2) Exercise authority in accordance with section 300hh-11 of title
42, U.S.C., and according to DoD Directive 6010.22 \22\, for
participation in the National Disaster Medical System.
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\22\ Available by downloading at https://www.dtic.mil/whs/directives/corres/pdf/601022p.pdf.
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(g) The Assistant Secretary of Defense for Reserve Affairs, under
the authority, direction, and control of USD(P&R), shall provide
recommendations, guidance, and support on the use of the Reserve
Components to perform DSCA missions to ASD(HD&ASA).
(h) The Under Secretary of Defense for Acquisition, Technology, and
Logistics (USD(AT&L)) shall establish policies and procedures, in
coordination with ASD(HD&ASA), to implement DSCA requirements for DoD
Fire and Emergency Services programs and mutual or automatic aid that
may be part of that program.
(i) The Heads of the DoD Components shall:
(1) Direct that any DSCA-related DoD issuances, concept plans,
interagency agreements, and memorandums of understanding or agreement
with external agencies are in full compliance with this part.
(2) Direct Component compliance with financial management guidance
related to support provided for DSCA operations, including guidance
related to tracking costs and seeking reimbursement.
(3) When approved by the Secretary of Defense, plan, program, and
budget for DSCA capabilities in accordance with law, policy, and
assigned missions.
(j) The Secretaries of the Military Departments in addition to the
responsibilities in Sec. 185.5(i) of this part, shall:
(1) Establish the necessary policies and procedures to ensure the
appropriate personnel are trained to execute DSCA plans as directed by
the Secretary of Defense.
(2) Direct that requests for reimbursement of actual DSCA
expenditures (performance of work or services, payments to contractors,
or delivery from inventory) begin within 30 calendar days after the
month in which performance occurred. Final billing invoices shall be
submitted to supported departments and agencies within 90 calendar days
of the termination of the supported event.
(k) The Chairman of the Joint Chiefs of Staff in addition to the
responsibilities in Sec. 185.5(i) of this part, shall:
(1) Advise the Secretary of Defense on the effects of requests for
DSCA on national security and military readiness.
(2) Identify available resources for support in response to DSCA
requests and release related orders when approved by the Secretary of
Defense.
(3) Incorporate DSCA into joint training and exercise programs in
consultation with the USD(P&R), the Chief, National Guard Bureau (NGB),
and appropriate officials from the Department of Homeland Security and
other appropriate Federal departments and agencies.
(4) Advocate for needed DSCA capabilities.
(l) The Commanders of Combatant Commands with DSCA
responsibilities, in addition to the responsibilities in Sec. 185.5(i)
of this part and in accordance with the Unified Command Plan shall:
(1) In coordination with the Chairman of the Joint Chiefs of Staff,
plan and execute DSCA operations in their areas of responsibility in
accordance with this part, the Unified Command Plan and the Global
Force Management Implementation Guidance.
(2) In coordination with the Chairman of the Joint Chiefs of Staff,
incorporate DSCA into joint training and exercise programs in
consultation with the Department of Homeland Security, other
appropriate Federal departments and agencies, and the NGB.
(3) Advocate for needed DSCA capabilities and requirements through
the Joint Requirements Oversight Council, subject to Sec. 185.5(i) of
this part, and the planning, programming, budgeting, and execution
process.
(4) Work closely with subordinate commands to ensure that they are
appropriately reimbursed for DSCA in accordance with Sec. 185.5(j) of
this part.
(5) Exercise Training Readiness Oversight (TRO) over assigned
Reserve Component forces when not on active duty or when on active duty
for training in accordance with DoD Instruction 1215.06 \23\.
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\23\ Available by downloading at https://www.dtic.mil/whs/directives/corres/pdf/121506p.pdf.
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(m) The Chief, NGB, under the authority, direction, and control of
the Secretary of Defense, normally through the Secretary of the Army
and the Secretary of the Air Force, shall:
(1) Serve as the channel of communications for all matters
pertaining to the National Guard between DoD Components and the States
in accordance with DoD Directive 5105.77 \24\.
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\24\ Available by downloading at https://www.dtic.mil/whs/directives/corres/pdf/510577p.pdf.
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(2) Annually assess the readiness of the National Guard of the
States to conduct DSCA activities and report on this assessment to the
Secretaries of the Army and the Air Force; the USD(P&R), ASD(HD&ASA),
and ASD(RA); and, through the Chairman of the Joint Chiefs of Staff, to
the Secretary of Defense and appropriate Combatant Commanders.
(3) Report National Guard support of civil authorities or
qualifying entities when using Federal resources, equipment, and/or
funding to the NJOIC.
(4) Serve as an advisor to the Combatant Commanders on National
Guard matters pertaining to the combatant command missions, and support
planning and coordination for DSCA activities as requested by the
Chairman of the Joint Chiefs of Staff or the Combatant Commanders.
(5) Ensure that National Guard appropriations are appropriately
reimbursed for DSCA activities.
(6) Advocate for needed DSCA capabilities.
(7) Develop and promulgate, in accordance with DoD Directive
5105.77 and in coordination with the Secretaries of the Army and Air
Force and the
[[Page 2253]]
ASD(HD&ASA), guidance regarding this part as it relates to National
Guard matters.
Dated: December 22, 2010.
Patricia L. Toppings,
OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2011-620 Filed 1-12-11; 8:45 am]
BILLING CODE 5001-06-P
