Manual for Courts-Martial; Proposed Amendments, 85939-85943 [2016-28630]

Download as PDF Federal Register / Vol. 81, No. 229 / Tuesday, November 29, 2016 / Notices Office of the Secretary [Docket ID: DOD–2013–OS–0179] Proposed Collection; Comment Request Office of the Under Secretary of Defense (Personnel and Readiness), DoD. ACTION: Notice. AGENCY: In compliance with the Paperwork Reduction Act of 1995, the Office of the Under Secretary of Defense (Personnel and Readiness) announces a proposed public information collection and seeks public comment on the provisions thereof. Comments are invited on: Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the agency’s estimate of the burden of the proposed information collection; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology. DATES: Consideration will be given to all comments received by January 30, 2017. ADDRESSES: You may submit comments, identified by docket number and title, by any of the following methods: • Federal eRulemaking Portal: http:// www.regulations.gov. Follow the instructions for submitting comments. • Mail: Department of Defense, Office of the Deputy Chief Management Officer, Directorate for Oversight and Compliance, 4800 Mark Center Drive, Mailbox #24, Alexandria, VA 22350– 1700. Instructions: All submissions received must include the agency name, docket number and title for this Federal Register document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the Internet at http:// www.regulations.gov as they are received without change, including any personal identifiers or contact information. Any associated form(s) for this collection may be located within this same electronic docket and downloaded for review/testing. Follow the instructions at http:// www.regulations.gov for submitting comments. Please submit comments on any given form identified by docket number, form number, and title. asabaliauskas on DSK3SPTVN1PROD with NOTICES SUMMARY: VerDate Sep<11>2014 17:48 Nov 28, 2016 Jkt 241001 To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Office of the Under Secretary of Defense (Personnel and Readiness) (Defense Human Resource Activity), ATTN: Robert Eves, 4800 Mark Center Drive, Alexandria, VA 22350–4000, or submit an email to dhracacpolicy@mail.mil. SUPPLEMENTARY INFORMATION: Title; Associated Form; and OMB Number: Application for Identification Card/DEERS Enrollment; DD Form 1172–2; OMB Control Number 0704– 0415. Needs and Uses: This information collected is used to determine an individual’s eligibility for benefits and privileges, to provide a proper identification card reflecting those benefits and privileges, and to maintain a centralized database of the eligible population. Affected Public: Individuals or Households. Annual Burden Hours: 135,000. Number of Respondents: 2,700,000. Responses per Respondent: 1. Annual Responses: 2,700,000. Average Burden per Response: 3 minutes. Frequency: On Occasion. FOR FURTHER INFORMATION CONTACT: DEPARTMENT OF DEFENSE Dated: November 23, 2016. Aaron Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense. [FR Doc. 2016–28688 Filed 11–28–16; 8:45 am] BILLING CODE 5001–06–P DEPARTMENT OF DEFENSE Office of the Secretary [Docket ID DOD–2016–OS–0113] Manual for Courts-Martial; Proposed Amendments Joint Service Committee on Military Justice (JSC), Department of Defense. ACTION: Notice of proposed amendments to the Manual for Courts-Martial, United States (2012 ed.) and notice of public meeting. AGENCY: The Department of Defense requests comments on proposed changes to the Manual for CourtsMartial, United States (2012 ed.) (MCM). The proposed changes concern the rules of procedure and evidence applicable in trials by courts-martial. The approval authority for these changes is the President. These proposed changes have SUMMARY: PO 00000 Frm 00020 Fmt 4703 Sfmt 4703 85939 not been coordinated within the Department of Defense under DoD Directive 5500.01, ‘‘Preparing, Processing and Coordinating Legislation, Executive Orders, Proclamations, Views Letters, and Testimony,’’ June 15, 2007, and do not constitute the official position of the Department of Defense, the Military Departments, or any other Government agency. The proposed changes also concern supplementary materials that accompany the rules of procedure and evidence and punitive articles. The Department of Defense, in conjunction with the Department of Homeland Security, publishes these supplementary materials to accompany the Manual for Courts-Martial. Supplementary materials consist of Discussions (accompanying the Preamble, the Rules for Courts-Martial, the Military Rules of Evidence, and the Punitive Articles), Analyses, and various appendices. The approval authority for changes to the supplementary materials is the General Counsel, Department of Defense; changes to these items do not require Presidential approval. DATES: Comments on the proposed changes must be received no later than January 30, 2017. A public meeting for comments will be held on December 15, 2016, at 10 a.m. in the United States Court of Appeals for the Armed Forces building, 450 E Street NW., Washington, DC 20442–0001. ADDRESSES: You may submit comments, identified by docket number and title, by any of the following methods: • Federal eRulemaking Portal: http:// www.regulations.gov. Follow the instructions for submitting comments. • Mail: Department of Defense, Office of the Deputy Chief Management Officer, Directorate for Oversight and Compliance, 4800 Mark Center Drive, Mailbox #24, Alexandria, VA 22350– 1700. Instructions: All submissions received must include the agency name and docket number for this Federal Register document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the Internet at http:// www.regulations.gov as they are received without change, including any personal identifiers or contact information. FOR FURTHER INFORMATION CONTACT: Major Harlye S.M. Carlton, USMC, Executive Secretary, JSC, (703) 693– 9299, harlye.carlton@usmc.mil. The JSC website is located at http:// jsc.defense.gov. E:\FR\FM\29NON1.SGM 29NON1 85940 Federal Register / Vol. 81, No. 229 / Tuesday, November 29, 2016 / Notices This notice is provided in accordance with DoD Directive 5500.17, ‘‘Role and Responsibilities of the Joint Service Committee (JSC) on Military Justice,’’ May 3, 2003. The JSC invites members of the public to comment on the proposed changes; such comments should address specific recommended changes and provide supporting rationale. This notice also sets forth the date, time, and location for a public meeting of the JSC to discuss the proposed changes. This notice is intended only to improve the internal management of the Federal Government. It is not intended to create any right or benefit, substantive or procedural, enforceable at law by any party against the United States, its agencies, its officers, or any person. The proposed amendments to the MCM are as follows: appellate authorities in accordance with R.C.M. 1103A.’’ shall be separate, complete, and independent of any other document.’’ (d) R.C.M. 704(c) is amended to read as follows: ‘‘(c) Authority to grant immunity. A general court-martial convening authority, or designee, may grant immunity, and may do so only in accordance with this rule.’’ (k) R.C.M. 1103(b)(3)(G) is amended to read as follows: ‘‘(G) Any post-trial recommendation of the staff judge advocate or legal officer and proof of service on defense counsel in accordance with R.C.M. 1106(f)(1);’’ (e) R.C.M. 704(c)(1) is amended to read as follows: ‘‘(1) Persons subject to the code. A general court-martial convening authority, or designee, may grant immunity to a person subject to the code. However, a general court-martial convening authority, or designee, may grant immunity to a person subject to the code extending to a prosecution in a United States District Court only when specifically authorized to do so by the Attorney General of the United States or other authority designated under chapter 601 of title 18 of the U.S. Code.’’ (l) R.C.M. 1103(b)(3)(H) is amended to read as follows: ‘‘(H) Any response by defense counsel to any post-trial review;’’ Section 1. Part II of the Manual for Courts-Martial, United States, is amended as follows: (f) R.C.M. 704(c)(2) is amended to read as follows: ‘‘(2) Persons not subject to the code. A general court-martial convening authority, or designee, may grant immunity to persons not subject to the code only when specifically authorized to do so by the Attorney General of the United States or other authority designated under chapter 601 of title 18 of the U.S. Code.’’ SUPPLEMENTARY INFORMATION: (a) R.C.M. 104(b)(1)(B) is amended to read as follows: ‘‘(B) Give a less favorable rating or evaluation of any defense counsel or special victims’ counsel because of the zeal with which such counsel represented any client. As used in this rule, ‘‘special victims’ counsel’’ are judge advocates, and civilian counsel, who, in accordance with 10 U.S.C. 1044e, are designated as Special Victims’ Counsel.’’ (b) R.C.M. 601(d)(2)(B) is amended to read as follows: ‘‘The convening authority has received the advice of the staff judge advocate required under Article 34.’’ asabaliauskas on DSK3SPTVN1PROD with NOTICES (c) R.C.M. 701(g)(2) is amended to read as follows: ‘‘(2) Protective and modifying orders. Upon a sufficient showing the military judge may at any time order that the discovery or inspection be denied, restricted, or deferred, or make such other order as is appropriate. If any rule requires, or upon motion by a party, the military judge may review any materials in camera, and permit the party to make such showing, in whole or in part, in writing to be inspected only by the military judge in camera. If the military judge reviews any materials in camera, the entirety of any materials not ordered disclosed by the military judge shall be sealed and attached to the record of trial as an appellate exhibit. Such material may only be examined by reviewing or VerDate Sep<11>2014 17:48 Nov 28, 2016 Jkt 241001 (g) R.C.M. 704(c)(3) is amended to read as follows: ‘‘(3) Other limitations. Subject to Service regulations, the authority to grant immunity under this rule may be delegated in writing at the discretion of the general court-martial convening authority to a subordinate special courtmartial convening authority. Further delegation is not permitted. The authority to grant or delegate immunity may be limited by superior authority.’’ (h) The first sentence of R.C.M. 704(e) is amended to read as follows: ‘‘(e) Decision to grant immunity. Unless limited by superior competent authority, the decision to grant immunity is a matter within the sole discretion of the general court-martial convening authority, or designee.’’ (i) The header for R.C.M. 1103(b) is amended to read as follows: ‘‘(b) General and special courtsmartial.’’ (j) R.C.M. 1103(b)(2)(A) is amended to read as follows: ‘‘(A) In general. The record of trial in each general and special court-martial PO 00000 Frm 00021 Fmt 4703 Sfmt 4703 (m) R.C.M. 1103(b)(3)(J) is amended to read as follows: ‘‘(J) Any statement as to why it is impracticable for the convening authority to act;’’ (n) R.C.M. 1103(c) is amended to read as follows: ‘‘(c) [DELETED]’’ (o) R.C.M. 1103A is amended to read as follows: ‘‘(a) In general. If the report of preliminary hearing or record of trial contains exhibits, proceedings, or other materials ordered sealed by the preliminary hearing officer or military judge, counsel for the government or trial counsel shall cause such materials to be sealed so as to prevent unauthorized examination or disclosure. Counsel for the government or trial counsel shall ensure that such materials are properly marked, including an annotation that the material was sealed by order of the preliminary hearing officer or military judge, and inserted at the appropriate place in the original record of trial. Copies of the report of preliminary hearing or record of trial shall contain appropriate annotations that materials were sealed by order of the preliminary hearing officer or military judge and have been inserted in the report of preliminary hearing or original record of trial. This Rule shall be implemented in a manner consistent with Executive Order 13526, concerning classified national security information. (b) Examination and disclosure of sealed materials. Except as provided in the following subsections to this rule, sealed materials may not be examined or disclosed. (1) Prior to referral. Prior to referral of charges, the following individuals may examine and disclose sealed materials only if necessary for proper fulfillment of their responsibilities under the Code, this Manual, governing directives, instructions, regulations, applicable rules for practice and procedure, or rules of professional responsibility: The E:\FR\FM\29NON1.SGM 29NON1 asabaliauskas on DSK3SPTVN1PROD with NOTICES Federal Register / Vol. 81, No. 229 / Tuesday, November 29, 2016 / Notices judge advocate advising the convening authority who directed the Article 32 preliminary hearing; the convening authority who directed the Article 32 preliminary hearing; the staff judge advocate to the general court-martial convening authority; and the general court-martial convening authority. (2) Referral through authentication. Prior to authentication of the record by the military judge, sealed materials may not be examined or disclosed in the absence of an order from the military judge based upon good cause. (3) Authentication through action. After authentication and prior to disposition of the record of trial pursuant to R.C.M. 1111, sealed materials may not be examined or disclosed in the absence of an order from the military judge upon a showing of good cause at a post-trial Article 39(a) session directed by the convening authority. (4) After action. (A) Examination by reviewing and appellate authorities. Reviewing and appellate authorities may examine sealed materials when those authorities determine that examination is reasonably necessary to a proper fulfillment of their responsibilities under the Code, this Manual, governing directives, instructions, regulations, applicable rules for practice and procedure, or rules of professional responsibility. (B) Examination by appellate counsel. Appellate counsel may examine sealed materials subject to the following procedures: (i) Sealed materials released to trial government or defense counsel. Materials presented or reviewed at trial and subsequently sealed, as well as materials reviewed in camera, released to trial government or defense counsel, and subsequently sealed, may be examined by appellate counsel upon a colorable showing to the reviewing or appellate authority that examination is reasonably necessary to a proper fulfillment of their responsibilities under the Code, this Manual, governing directives, instructions, regulations, applicable rules for practice and procedure, or rules of professional responsibility. (ii) Sealed materials reviewed in camera but not released to trial government or defense counsel. Materials reviewed in camera by a military judge, not released to trial government or defense counsel, and subsequently sealed may be examined by reviewing or appellate authorities. After examination of said materials, the reviewing or appellate authority may VerDate Sep<11>2014 17:48 Nov 28, 2016 Jkt 241001 permit examination by appellate counsel for good cause. (C) Disclosure. Appellate counsel shall not disclose sealed material in the absence of: (i) Prior authorization of the Judge Advocate General in the case of review under R.C.M. 1201(b) or 1112; or (ii) Prior authorization of the appellate court before which a case is pending review under R.C.M. 1203 and 1204. (D) For purposes of this rule, reviewing and appellate authorities are limited to: (i) Judge advocates reviewing records pursuant to R.C.M. 1112; (ii) Officers and attorneys in the office of the Judge Advocate General reviewing records pursuant to R.C.M. 1201(b); (iii) Appellate judges of the Courts of Criminal Appeals and their professional staffs; (iv) The judges of the United States Court of Appeals for the Armed Forces and their professional staffs; (v) The Justices of the United States Supreme Court and their professional staffs; and (vi) Any other court of competent jurisdiction. (5) Examination of sealed materials. For purposes of this rule, ‘‘examination’’ includes reading, inspecting, and viewing. (6) Disclosure of sealed materials. For purposes of this rule, ‘‘disclosure’’ includes photocopying, photographing, disseminating, releasing, manipulating, or communicating the contents of sealed materials in any way.’’ Section 2. Part III of the Manual for Courts-Martial, United States, is amended as follows: (a) Mil. R. Evid. 311(c)(4) is amended to read as follows: ‘‘(4) Reliance on Statute or Binding Precedent. Evidence that was obtained as a result of an unlawful search or seizure may be used when the official seeking the evidence acted in objectively reasonable reliance on a statute or on binding precedent later held violative of the Fourth Amendment.’’ (b) Mil. R. Evid. 311(d)(5)(A) is amended to read as follows: ‘‘(A) In general. When the defense makes an appropriate motion or objection under subdivision (d), the prosecution has the burden of proving by a preponderance of the evidence that the evidence was not obtained as a result of an unlawful search or seizure, that the evidence would have been PO 00000 Frm 00022 Fmt 4703 Sfmt 4703 85941 obtained even if the unlawful search or seizure had not been made, that the evidence was obtained by officials who reasonably and with good faith relied on the issuance of an authorization to search, seize, or apprehend or a search warrant or an arrest warrant; that the evidence was obtained by officials in objectively reasonable reliance on a statute or on binding precedent later held violative of the Fourth Amendment; or that the deterrence of future unlawful searches or seizures is not appreciable or such deterrence does not outweigh the costs to the justice system of excluding the evidence.’’ (c) Mil. R. Evid. 505(l) is amended to read as follows: ‘‘(l) Record of Trial. If under this rule any information is reviewed in camera by the military judge and withheld from the accused, the accused objects to such withholding, and the trial continues to an adjudication of guilt of the accused, the entire unaltered text of the relevant documents as well as any motions and any materials submitted in support thereof must be sealed in accordance with R.C.M. 701(g)(2) and 1103A and attached to the record of trial as an appellate exhibit. Such material will be made available to reviewing and appellate authorities in accordance with R.C.M. 1103A. The record of trial with respect to any classified matter will be prepared under R.C.M. 1103(h) and 1104(b)(1)(D).’’ (d) Mil. R. Evid. 506(m) is amended to read as follows: ‘‘(m) Record of Trial. If under this rule any information is reviewed in camera by the military judge and withheld from the accused, the accused objects to such withholding, and the trial continues to an adjudication of guilt of the accused, the entire unaltered text of the relevant documents as well as any motions and any materials submitted in support thereof must be sealed in accordance with R.C.M. 701(g)(2) and 1103A and attached to the record of trial as an appellate exhibit. Such material will be made available to reviewing and appellate authorities in accordance with R.C.M. 1103A.’’ (e) Mil. R. Evid. 513(e)(6) is amended to read as follows: ‘‘(6) The motion, related papers, and the record of the hearing must be sealed in accordance with R.C.M. 701(g)(2) or 1103A.’’ (f) Mil. R. Evid. 514(e)(6) is amended to read as follows: ‘‘(6) The motion, related papers, and the record of the hearing must be sealed E:\FR\FM\29NON1.SGM 29NON1 85942 Federal Register / Vol. 81, No. 229 / Tuesday, November 29, 2016 / Notices in accordance with R.C.M. 701(g)(2) or 1103A.’’ Section 3. Appendix 21, Analysis of Rules for Courts-Martial is amended as follows: (a) R.C.M. 704(c) is amended by inserting the following at the end: ‘‘2017 Amendment: A new second paragraph was added to the Discussion after R.C.M. 704(c). The Response Systems to Adult Sexual Assault Crimes Panel’s (RSP) June 2014 report recommended a study into grants of immunity for victim collateral misconduct in sexual assault cases. This new paragraph encourages convening authorities to respond to requests for immunity as soon as practicable if an expedited response is requested by the victim of an alleged offense. The RSP was a congressionally mandated panel tasked to conduct an independent review and assessment of the systems used to investigate, prosecute, and adjudicate crimes involving adult sexual assault and related offenses.’’ asabaliauskas on DSK3SPTVN1PROD with NOTICES (b) R.C.M. 704 is amended by inserting the following at the end: ‘‘2017 Amendment: Modifications were made throughout R.C.M. 704. The Response Systems to Adult Sexual Assault Crimes Panel’s (RSP) June 2014 report recommended a study into grants of immunity for victim collateral misconduct in sexual assault cases. Subject to Service regulations, these modifications permit general courtmartial convening authorities to delegate the authority to grant immunity to subordinate special court-martial convening authorities and no further. The RSP was a congressionally mandated panel tasked to conduct an independent review and assessment of the systems used to investigate, prosecute, and adjudicate crimes involving adult sexual assault and related offenses.’’ (c) R.C.M. 1103A is amended by inserting the following at the end: ‘‘2017 Amendment: The Rule was reorganized and revised. It better addresses the two types of sealed materials commonly found in records of trial: Those materials that had been disclosed to trial government and defense counsel prior to sealing and those materials that were not disclosed to trial government or defense counsel prior to sealing. The changes also maintain consistency with R.C.M. 701(g)(2), United States v. Romano, 46 M.J. 269 (C.A.A.F. 1997), and United States v. Rivers, 49 M.J. 434 (C.A.A.F. 1998), by requiring the appellate court or reviewing authority to conduct a VerDate Sep<11>2014 17:48 Nov 28, 2016 Jkt 241001 review of sealed materials on appeal which had been reviewed in camera, not disclosed to trial government or defense counsel, and subsequently sealed prior to permitting appellate counsel the opportunity to examine such sealed matters. Finally, the rule better defines the difference between ‘‘examination’’ and ‘‘disclosure’’ of sealed materials and the additional authorization needed prior to disclosure by appellate counsel.’’ Section 4. Appendix 22, Analysis of the Military Rules of Evidence is amended as follows: (a) Mil. R. Evid. 311 is amended by inserting the following at the end: ‘‘2017 Amendment: The change to (c)(4) and(d)(5)(A) incorporates the Supreme Court’s holding in Davis v. United States, 564 U.S. 229 (2011). In Davis, the Supreme Court found that the exclusionary rule did not apply because the police officer acted in objectively reasonable reliance on precedent that was binding on the officer at the time of the search. Id.’’ Section 5. The Discussion to Part II of the Manual for Courts-Martial, United States, is amended as follows: (a) A new Discussion is inserted immediately after R.C.M. 104(b)(1)(B) and before R.C.M. 104(b)(2) and reads as follows: ‘‘This rule applies when the counsel in question has been detailed, assigned, or authorized to represent the client as a defense or special victims’ counsel. Nothing in this rule prohibits supervisors from taking appropriate action for violations of ethical, procedural, or other rules, or for conduct outside the scope of representation. ‘‘Special Victims’ Counsel,’’ as used in this rule, includes Victims’ Legal Counsel within the Navy and Marine Corps.’’ (b) The Discussion immediately following R.C.M. 308(a) and before R.C.M. 308(b) is amended to read as follows: ‘‘When notice is given, a certificate to that effect on the Charge Sheet should be completed. See Appendix 4. However, in cases where charges are immediately referred after preferral, service of referred charges under R.C.M. 602 fulfills the notice requirement of this rule. In those cases, the notice certificate on the Charge Sheet need not be completed and should be lined out.’’ PO 00000 Frm 00023 Fmt 4703 Sfmt 4703 (c) A new paragraph is added at the end of the Discussion immediately following R.C.M. 601(d)(2)(B) and before R.C.M. 601(e) and reads as follows: ‘‘A specification under a charge may not be referred to a general court-martial unless the advice of the staff judge advocate concludes the specification alleges an offense under the Code, is warranted by the evidence, and a courtmartial would have jurisdiction over the accused and the offense. See Article 34 and R.C.M. 406.’’ (d) The first sentence of the Discussion immediately following R.C.M. 704(c) is amended to read as follows: ‘‘Only general court-martial convening authorities or their designees are authorized to grant immunity.’’ (e) The Discussion immediately following R.C.M. 704(c) is amended by inserting a new paragraph in between the first and second paragraphs, which reads as follows: ‘‘When the victim of an alleged offense requests an expedited response to a request for immunity for misconduct that is collateral to the underlying offense, the convening authority should respond to the request as soon as practicable.’’ (f) A new Discussion paragraph is inserted immediately prior to the existing paragraph following R.C.M. 704(c)(3) and reads as follows: ‘‘A general court-martial convening authority has wide latitude under this section to exercise his or her discretion in delegating immunity authority. For example, a general court-martial convening authority may decide to delegate only the authority for a designee to grant immunity for certain offenses, such as a list of specific offenses or any offense not warranting a punitive discharge, while withholding authority to grant immunity for all others. A general court-martial convening authority may also delegate only authority for certain categories of grantees, such as victims of alleged sexrelated offenses.’’ (g) A new Discussion is inserted immediately following R.C.M. 1103A(a) and prior to R.C.M. 1103A(b) and reads as follows: ‘‘Upon request or otherwise for good cause, a military judge may seal matters at his or her discretion. The terms ‘‘examination’’ and ‘‘disclosure’’ are defined in (b)(5) and (6) of this rule.’’ E:\FR\FM\29NON1.SGM 29NON1 Federal Register / Vol. 81, No. 229 / Tuesday, November 29, 2016 / Notices Health Board (DHB) Health Care Delivery Subcommittee will take place. DATES: (h) A Discussion is re-inserted immediately following R.C.M. 1103A(b)(3) and prior to R.C.M. 1103A(b)(4) and reads as follows: ‘‘A convening authority who has granted clemency based upon review of sealed materials in the record of trial is not permitted to disclose the contents of the sealed materials when providing a written explanation of the reason for such action, as directed under R.C.M. 1107.’’ (i) A new Discussion is inserted immediately following R.C.M. 1103A(b)(4)(B)(ii) and prior to R.C.M. 1103A(b)(4)(C) and reads as follows: ‘‘For disclosure procedures, see (b)(4)(C) of this rule.’’ (j) A new Discussion is inserted immediately following R.C.M. 1103A(b)(4)(C)(ii) and prior to R.C.M. 1103A(b)(4)(D) and reads as follows: ‘‘In general, the Judge Advocate General or an appellate court should authorize disclosure of sealed material when such disclosure is necessary for review. Authorizations may place conditions on disclosure.’’ Section 6. The Discussion to Part III of the Manual for Courts-Martial, United States, is amended as follows: (a) A new Discussion is inserted immediately after Mil. R. Evid. 506(b) and before Mil. R. Evid. 506(c) and reads as follows: ‘‘For additional procedures concerning information contained in safety investigations, consult Service regulations and DoD Instruction 6055.07, ‘‘Mishap Notification, Investigation, Reporting, and Record Keeping.’’ ’’ Dated: November 22, 2016. Aaron Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense. [FR Doc. 2016–28630 Filed 11–28–16; 8:45 am] BILLING CODE 5001–06–P DEPARTMENT OF DEFENSE asabaliauskas on DSK3SPTVN1PROD with NOTICES Office of the Secretary Defense Health Board; Notice of Federal Advisory Committee Meeting Department of Defense (DoD). Notice of Federal Advisory Committee meeting. AGENCY: ACTION: The Department of Defense is publishing this notice to announce that the following Federal Advisory Committee meeting of the Defense SUMMARY: VerDate Sep<11>2014 17:48 Nov 28, 2016 Jkt 241001 Wednesday, December 14, 2016 8:00 a.m.–12:00 p.m. (Preparatory Session) 12:00 p.m.–2:00 p.m. (Open Session) 2:00 p.m.–3:00 p.m. (Preparatory Session) ADDRESSES: Defense Health Headquarters (DHHQ), Pavilion Salon A, 7700 Arlington Blvd., Falls Church, Virginia 22042 (escort required; see guidance in SUPPLEMENTARY INFORMATION, ‘‘Public’s Accessibility to the Meeting’’). FOR FURTHER INFORMATION CONTACT: The Executive Director (Acting) of the Defense Health Board is CAPT Juliann Althoff, 7700 Arlington Boulevard, Suite 5101, Falls Church, Virginia 22042, (703) 681–6653, Fax: (703) 681– 9539, juliann.m.althoff.mil@mail.mil. For meeting information, please contact Ms. Kendal Brown, 7700 Arlington Boulevard, Suite 5101, Falls Church, Virginia 22042, kendal.l.brown2.ctr@ mail.mil, (703) 681–6670, Fax: (703) 681–9539. SUPPLEMENTARY INFORMATION: This meeting is being held under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102–3.150. Electronic registration is available at the following link: http:// www.surveygizmo.com/s3/3191755/ December-14-Meeting-Registration. Purpose of the Meeting The purpose of the meeting is for the Health Care Delivery Subcommittee members to receive public comments concerning pediatric health care services during an open forum. The Subcommittee is examining opportunities to improve the overall provision of health care and related services for children of members of the Armed Forces to better promote the health of this beneficiary population and potentially realize cost savings for the Military Health System. The focus of this meeting will be on the primary and specialty care aspects of the tasking (excluding behavioral/mental health care) to the Subcommittee as outlined below: • Identify the extent to which children receive developmentally appropriate and age appropriate health care services, including clinical preventive services, in both the direct care and purchased care components. PO 00000 Frm 00024 Fmt 4703 Sfmt 4703 85943 • Evaluate whether children have ready access to primary and specialty pediatric care. • Address any issues associated with the TRICARE definition of ‘‘medical necessity’’ as it might specifically pertain to children and determine if the requirement for TRICARE to comply with Medicare standards disadvantages children from receiving needed health care. Comments from the public can range from insight on pediatric-related health issues to personal accounts and objective input. Agenda Pursuant to 5 U.S.C. 552b and 41 CFR 102–3.140 through 102–3.165 and subject to availability of space, the DHB Health Care Delivery Subcommittee meeting is open to the public from 12:00 p.m. to 2:00 p.m. on December 14, 2016. The DHB Health Care Delivery Subcommittee anticipates receiving public comments on pediatric-related health services issues. The DFO, in conjunction with the Subcommittee Chair, may restrict speaking time per person to an estimated 3–5 minutes. Additional comments, however, may be submitted in writing (see guidance in this SUPPLEMENTARY INFORMATION, ‘‘Written Statements’’ section). Any changes to the agenda can be found at the link provided in this SUPPLEMENTARY INFORMATION section. Availability of Materials for the Meeting A copy of the agenda or any updates to the agenda for the December 14, 2016 meeting, as well as any other materials presented in the meeting, may be obtained at the meeting. Public’s Accessibility to the Meeting Pursuant to 5 U.S.C. 552b, and 41 CFR 102–3.140 through 102–3.165 and subject to availability of space, this meeting is open to the public. Seating is limited and is on a first-come basis. All members of the public who wish to attend the public meeting must contact Ms. Kendal Brown at the number listed in the section FOR FURTHER INFORMATION CONTACT no later than 12:00 p.m. on Thursday, December 8, 2016 to register and make arrangements for a DHHQ escort, if necessary. Public attendees requiring escort should arrive at the DHHQ Visitor’s Entrance with sufficient time to complete security screening no later than 11:30 a.m. on December 14. To complete security screening, please come prepared to present two forms of identification, one of which must be a picture identification card. E:\FR\FM\29NON1.SGM 29NON1

Agencies

[Federal Register Volume 81, Number 229 (Tuesday, November 29, 2016)]
[Notices]
[Pages 85939-85943]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-28630]


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DEPARTMENT OF DEFENSE

Office of the Secretary

[Docket ID DOD-2016-OS-0113]


Manual for Courts-Martial; Proposed Amendments

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

ACTION: Notice of proposed amendments to the Manual for Courts-Martial, 
United States (2012 ed.) and notice of public meeting.

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SUMMARY: The Department of Defense requests comments on proposed 
changes to the Manual for Courts-Martial, United States (2012 ed.) 
(MCM). The proposed changes concern the rules of procedure and evidence 
applicable in trials by courts-martial. The approval authority for 
these changes is the President. These proposed changes have not been 
coordinated within the Department of Defense under DoD Directive 
5500.01, ``Preparing, Processing and Coordinating Legislation, 
Executive Orders, Proclamations, Views Letters, and Testimony,'' June 
15, 2007, and do not constitute the official position of the Department 
of Defense, the Military Departments, or any other Government agency.
    The proposed changes also concern supplementary materials that 
accompany the rules of procedure and evidence and punitive articles. 
The Department of Defense, in conjunction with the Department of 
Homeland Security, publishes these supplementary materials to accompany 
the Manual for Courts-Martial. Supplementary materials consist of 
Discussions (accompanying the Preamble, the Rules for Courts-Martial, 
the Military Rules of Evidence, and the Punitive Articles), Analyses, 
and various appendices. The approval authority for changes to the 
supplementary materials is the General Counsel, Department of Defense; 
changes to these items do not require Presidential approval.

DATES: Comments on the proposed changes must be received no later than 
January 30, 2017. A public meeting for comments will be held on 
December 15, 2016, at 10 a.m. in the United States Court of Appeals for 
the Armed Forces building, 450 E Street NW., Washington, DC 20442-0001.

ADDRESSES: You may submit comments, identified by docket number and 
title, by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Department of Defense, Office of the Deputy Chief 
Management Officer, Directorate for Oversight and Compliance, 4800 Mark 
Center Drive, Mailbox #24, Alexandria, VA 22350-1700.
    Instructions: All submissions received must include the agency name 
and docket number for this Federal Register document. The general 
policy for comments and other submissions from members of the public is 
to make these submissions available for public viewing on the Internet 
at http://www.regulations.gov as they are received without change, 
including any personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT: Major Harlye S.M. Carlton, USMC, 
Executive Secretary, JSC, (703) 693-9299, harlye.carlton@usmc.mil. The 
JSC website is located at http://jsc.defense.gov.

[[Page 85940]]


SUPPLEMENTARY INFORMATION: This notice is provided in accordance with 
DoD Directive 5500.17, ``Role and Responsibilities of the Joint Service 
Committee (JSC) on Military Justice,'' May 3, 2003.
    The JSC invites members of the public to comment on the proposed 
changes; such comments should address specific recommended changes and 
provide supporting rationale.
    This notice also sets forth the date, time, and location for a 
public meeting of the JSC to discuss the proposed changes.
    This notice is intended only to improve the internal management of 
the Federal Government. It is not intended to create any right or 
benefit, substantive or procedural, enforceable at law by any party 
against the United States, its agencies, its officers, or any person.
    The proposed amendments to the MCM are as follows:

Section 1. Part II of the Manual for Courts-Martial, United States, is 
amended as follows:

(a) R.C.M. 104(b)(1)(B) is amended to read as follows:

    ``(B) Give a less favorable rating or evaluation of any defense 
counsel or special victims' counsel because of the zeal with which such 
counsel represented any client. As used in this rule, ``special 
victims' counsel'' are judge advocates, and civilian counsel, who, in 
accordance with 10 U.S.C. 1044e, are designated as Special Victims' 
Counsel.''

(b) R.C.M. 601(d)(2)(B) is amended to read as follows:

    ``The convening authority has received the advice of the staff 
judge advocate required under Article 34.''

(c) R.C.M. 701(g)(2) is amended to read as follows:

    ``(2) Protective and modifying orders. Upon a sufficient showing 
the military judge may at any time order that the discovery or 
inspection be denied, restricted, or deferred, or make such other order 
as is appropriate. If any rule requires, or upon motion by a party, the 
military judge may review any materials in camera, and permit the party 
to make such showing, in whole or in part, in writing to be inspected 
only by the military judge in camera. If the military judge reviews any 
materials in camera, the entirety of any materials not ordered 
disclosed by the military judge shall be sealed and attached to the 
record of trial as an appellate exhibit. Such material may only be 
examined by reviewing or appellate authorities in accordance with 
R.C.M. 1103A.''

(d) R.C.M. 704(c) is amended to read as follows:

    ``(c) Authority to grant immunity. A general court-martial 
convening authority, or designee, may grant immunity, and may do so 
only in accordance with this rule.''

(e) R.C.M. 704(c)(1) is amended to read as follows:

    ``(1) Persons subject to the code. A general court-martial 
convening authority, or designee, may grant immunity to a person 
subject to the code. However, a general court-martial convening 
authority, or designee, may grant immunity to a person subject to the 
code extending to a prosecution in a United States District Court only 
when specifically authorized to do so by the Attorney General of the 
United States or other authority designated under chapter 601 of title 
18 of the U.S. Code.''

(f) R.C.M. 704(c)(2) is amended to read as follows:

    ``(2) Persons not subject to the code. A general court-martial 
convening authority, or designee, may grant immunity to persons not 
subject to the code only when specifically authorized to do so by the 
Attorney General of the United States or other authority designated 
under chapter 601 of title 18 of the U.S. Code.''

(g) R.C.M. 704(c)(3) is amended to read as follows:

    ``(3) Other limitations. Subject to Service regulations, the 
authority to grant immunity under this rule may be delegated in writing 
at the discretion of the general court-martial convening authority to a 
subordinate special court-martial convening authority. Further 
delegation is not permitted. The authority to grant or delegate 
immunity may be limited by superior authority.''

(h) The first sentence of R.C.M. 704(e) is amended to read as follows:

    ``(e) Decision to grant immunity. Unless limited by superior 
competent authority, the decision to grant immunity is a matter within 
the sole discretion of the general court-martial convening authority, 
or designee.''

(i) The header for R.C.M. 1103(b) is amended to read as follows:

    ``(b) General and special courts-martial.''

(j) R.C.M. 1103(b)(2)(A) is amended to read as follows:

    ``(A) In general. The record of trial in each general and special 
court-martial shall be separate, complete, and independent of any other 
document.''

(k) R.C.M. 1103(b)(3)(G) is amended to read as follows:

    ``(G) Any post-trial recommendation of the staff judge advocate or 
legal officer and proof of service on defense counsel in accordance 
with R.C.M. 1106(f)(1);''

(l) R.C.M. 1103(b)(3)(H) is amended to read as follows:

    ``(H) Any response by defense counsel to any post-trial review;''

(m) R.C.M. 1103(b)(3)(J) is amended to read as follows:

    ``(J) Any statement as to why it is impracticable for the convening 
authority to act;''

(n) R.C.M. 1103(c) is amended to read as follows:

    ``(c) [DELETED]''

(o) R.C.M. 1103A is amended to read as follows:

    ``(a) In general. If the report of preliminary hearing or record of 
trial contains exhibits, proceedings, or other materials ordered sealed 
by the preliminary hearing officer or military judge, counsel for the 
government or trial counsel shall cause such materials to be sealed so 
as to prevent unauthorized examination or disclosure. Counsel for the 
government or trial counsel shall ensure that such materials are 
properly marked, including an annotation that the material was sealed 
by order of the preliminary hearing officer or military judge, and 
inserted at the appropriate place in the original record of trial. 
Copies of the report of preliminary hearing or record of trial shall 
contain appropriate annotations that materials were sealed by order of 
the preliminary hearing officer or military judge and have been 
inserted in the report of preliminary hearing or original record of 
trial. This Rule shall be implemented in a manner consistent with 
Executive Order 13526, concerning classified national security 
information.
    (b) Examination and disclosure of sealed materials. Except as 
provided in the following subsections to this rule, sealed materials 
may not be examined or disclosed.
    (1) Prior to referral. Prior to referral of charges, the following 
individuals may examine and disclose sealed materials only if necessary 
for proper fulfillment of their responsibilities under the Code, this 
Manual, governing directives, instructions, regulations, applicable 
rules for practice and procedure, or rules of professional 
responsibility: The

[[Page 85941]]

judge advocate advising the convening authority who directed the 
Article 32 preliminary hearing; the convening authority who directed 
the Article 32 preliminary hearing; the staff judge advocate to the 
general court-martial convening authority; and the general court-
martial convening authority.
    (2) Referral through authentication. Prior to authentication of the 
record by the military judge, sealed materials may not be examined or 
disclosed in the absence of an order from the military judge based upon 
good cause.
    (3) Authentication through action. After authentication and prior 
to disposition of the record of trial pursuant to R.C.M. 1111, sealed 
materials may not be examined or disclosed in the absence of an order 
from the military judge upon a showing of good cause at a post-trial 
Article 39(a) session directed by the convening authority.
    (4) After action.
    (A) Examination by reviewing and appellate authorities. Reviewing 
and appellate authorities may examine sealed materials when those 
authorities determine that examination is reasonably necessary to a 
proper fulfillment of their responsibilities under the Code, this 
Manual, governing directives, instructions, regulations, applicable 
rules for practice and procedure, or rules of professional 
responsibility.
    (B) Examination by appellate counsel. Appellate counsel may examine 
sealed materials subject to the following procedures:
    (i) Sealed materials released to trial government or defense 
counsel. Materials presented or reviewed at trial and subsequently 
sealed, as well as materials reviewed in camera, released to trial 
government or defense counsel, and subsequently sealed, may be examined 
by appellate counsel upon a colorable showing to the reviewing or 
appellate authority that examination is reasonably necessary to a 
proper fulfillment of their responsibilities under the Code, this 
Manual, governing directives, instructions, regulations, applicable 
rules for practice and procedure, or rules of professional 
responsibility.
    (ii) Sealed materials reviewed in camera but not released to trial 
government or defense counsel. Materials reviewed in camera by a 
military judge, not released to trial government or defense counsel, 
and subsequently sealed may be examined by reviewing or appellate 
authorities. After examination of said materials, the reviewing or 
appellate authority may permit examination by appellate counsel for 
good cause.
    (C) Disclosure. Appellate counsel shall not disclose sealed 
material in the absence of:
    (i) Prior authorization of the Judge Advocate General in the case 
of review under R.C.M. 1201(b) or 1112; or
    (ii) Prior authorization of the appellate court before which a case 
is pending review under R.C.M. 1203 and 1204.
    (D) For purposes of this rule, reviewing and appellate authorities 
are limited to:
    (i) Judge advocates reviewing records pursuant to R.C.M. 1112;
    (ii) Officers and attorneys in the office of the Judge Advocate 
General reviewing records pursuant to R.C.M. 1201(b);
    (iii) Appellate judges of the Courts of Criminal Appeals and their 
professional staffs;
    (iv) The judges of the United States Court of Appeals for the Armed 
Forces and their professional staffs;
    (v) The Justices of the United States Supreme Court and their 
professional staffs; and
    (vi) Any other court of competent jurisdiction.
    (5) Examination of sealed materials. For purposes of this rule, 
``examination'' includes reading, inspecting, and viewing.
    (6) Disclosure of sealed materials. For purposes of this rule, 
``disclosure'' includes photocopying, photographing, disseminating, 
releasing, manipulating, or communicating the contents of sealed 
materials in any way.''

Section 2. Part III of the Manual for Courts-Martial, United States, is 
amended as follows:

(a) Mil. R. Evid. 311(c)(4) is amended to read as follows:

    ``(4) Reliance on Statute or Binding Precedent. Evidence that was 
obtained as a result of an unlawful search or seizure may be used when 
the official seeking the evidence acted in objectively reasonable 
reliance on a statute or on binding precedent later held violative of 
the Fourth Amendment.''

(b) Mil. R. Evid. 311(d)(5)(A) is amended to read as follows:

    ``(A) In general. When the defense makes an appropriate motion or 
objection under subdivision (d), the prosecution has the burden of 
proving by a preponderance of the evidence that the evidence was not 
obtained as a result of an unlawful search or seizure, that the 
evidence would have been obtained even if the unlawful search or 
seizure had not been made, that the evidence was obtained by officials 
who reasonably and with good faith relied on the issuance of an 
authorization to search, seize, or apprehend or a search warrant or an 
arrest warrant; that the evidence was obtained by officials in 
objectively reasonable reliance on a statute or on binding precedent 
later held violative of the Fourth Amendment; or that the deterrence of 
future unlawful searches or seizures is not appreciable or such 
deterrence does not outweigh the costs to the justice system of 
excluding the evidence.''

(c) Mil. R. Evid. 505(l) is amended to read as follows:

    ``(l) Record of Trial. If under this rule any information is 
reviewed in camera by the military judge and withheld from the accused, 
the accused objects to such withholding, and the trial continues to an 
adjudication of guilt of the accused, the entire unaltered text of the 
relevant documents as well as any motions and any materials submitted 
in support thereof must be sealed in accordance with R.C.M. 701(g)(2) 
and 1103A and attached to the record of trial as an appellate exhibit. 
Such material will be made available to reviewing and appellate 
authorities in accordance with R.C.M. 1103A. The record of trial with 
respect to any classified matter will be prepared under R.C.M. 1103(h) 
and 1104(b)(1)(D).''

(d) Mil. R. Evid. 506(m) is amended to read as follows:

    ``(m) Record of Trial. If under this rule any information is 
reviewed in camera by the military judge and withheld from the accused, 
the accused objects to such withholding, and the trial continues to an 
adjudication of guilt of the accused, the entire unaltered text of the 
relevant documents as well as any motions and any materials submitted 
in support thereof must be sealed in accordance with R.C.M. 701(g)(2) 
and 1103A and attached to the record of trial as an appellate exhibit. 
Such material will be made available to reviewing and appellate 
authorities in accordance with R.C.M. 1103A.''

(e) Mil. R. Evid. 513(e)(6) is amended to read as follows:

    ``(6) The motion, related papers, and the record of the hearing 
must be sealed in accordance with R.C.M. 701(g)(2) or 1103A.''

(f) Mil. R. Evid. 514(e)(6) is amended to read as follows:

    ``(6) The motion, related papers, and the record of the hearing 
must be sealed

[[Page 85942]]

in accordance with R.C.M. 701(g)(2) or 1103A.''

Section 3. Appendix 21, Analysis of Rules for Courts-Martial is amended 
as follows:

(a) R.C.M. 704(c) is amended by inserting the following at the end:

    ``2017 Amendment: A new second paragraph was added to the 
Discussion after R.C.M. 704(c). The Response Systems to Adult Sexual 
Assault Crimes Panel's (RSP) June 2014 report recommended a study into 
grants of immunity for victim collateral misconduct in sexual assault 
cases. This new paragraph encourages convening authorities to respond 
to requests for immunity as soon as practicable if an expedited 
response is requested by the victim of an alleged offense. The RSP was 
a congressionally mandated panel tasked to conduct an independent 
review and assessment of the systems used to investigate, prosecute, 
and adjudicate crimes involving adult sexual assault and related 
offenses.''

(b) R.C.M. 704 is amended by inserting the following at the end:

    ``2017 Amendment: Modifications were made throughout R.C.M. 704. 
The Response Systems to Adult Sexual Assault Crimes Panel's (RSP) June 
2014 report recommended a study into grants of immunity for victim 
collateral misconduct in sexual assault cases. Subject to Service 
regulations, these modifications permit general court-martial convening 
authorities to delegate the authority to grant immunity to subordinate 
special court-martial convening authorities and no further. The RSP was 
a congressionally mandated panel tasked to conduct an independent 
review and assessment of the systems used to investigate, prosecute, 
and adjudicate crimes involving adult sexual assault and related 
offenses.''

(c) R.C.M. 1103A is amended by inserting the following at the end:

    ``2017 Amendment: The Rule was reorganized and revised. It better 
addresses the two types of sealed materials commonly found in records 
of trial: Those materials that had been disclosed to trial government 
and defense counsel prior to sealing and those materials that were not 
disclosed to trial government or defense counsel prior to sealing. The 
changes also maintain consistency with R.C.M. 701(g)(2), United States 
v. Romano, 46 M.J. 269 (C.A.A.F. 1997), and United States v. Rivers, 49 
M.J. 434 (C.A.A.F. 1998), by requiring the appellate court or reviewing 
authority to conduct a review of sealed materials on appeal which had 
been reviewed in camera, not disclosed to trial government or defense 
counsel, and subsequently sealed prior to permitting appellate counsel 
the opportunity to examine such sealed matters. Finally, the rule 
better defines the difference between ``examination'' and 
``disclosure'' of sealed materials and the additional authorization 
needed prior to disclosure by appellate counsel.''

Section 4. Appendix 22, Analysis of the Military Rules of Evidence is 
amended as follows:

(a) Mil. R. Evid. 311 is amended by inserting the following at the end:

    ``2017 Amendment: The change to (c)(4) and(d)(5)(A) incorporates 
the Supreme Court's holding in Davis v. United States, 564 U.S. 229 
(2011). In Davis, the Supreme Court found that the exclusionary rule 
did not apply because the police officer acted in objectively 
reasonable reliance on precedent that was binding on the officer at the 
time of the search. Id.''

Section 5. The Discussion to Part II of the Manual for Courts-Martial, 
United States, is amended as follows:

(a) A new Discussion is inserted immediately after R.C.M. 104(b)(1)(B) 
and before R.C.M. 104(b)(2) and reads as follows:

    ``This rule applies when the counsel in question has been detailed, 
assigned, or authorized to represent the client as a defense or special 
victims' counsel. Nothing in this rule prohibits supervisors from 
taking appropriate action for violations of ethical, procedural, or 
other rules, or for conduct outside the scope of representation.
    ``Special Victims' Counsel,'' as used in this rule, includes 
Victims' Legal Counsel within the Navy and Marine Corps.''

(b) The Discussion immediately following R.C.M. 308(a) and before 
R.C.M. 308(b) is amended to read as follows:

    ``When notice is given, a certificate to that effect on the Charge 
Sheet should be completed. See Appendix 4. However, in cases where 
charges are immediately referred after preferral, service of referred 
charges under R.C.M. 602 fulfills the notice requirement of this rule. 
In those cases, the notice certificate on the Charge Sheet need not be 
completed and should be lined out.''

(c) A new paragraph is added at the end of the Discussion immediately 
following R.C.M. 601(d)(2)(B) and before R.C.M. 601(e) and reads as 
follows:

    ``A specification under a charge may not be referred to a general 
court-martial unless the advice of the staff judge advocate concludes 
the specification alleges an offense under the Code, is warranted by 
the evidence, and a court-martial would have jurisdiction over the 
accused and the offense. See Article 34 and R.C.M. 406.''

(d) The first sentence of the Discussion immediately following R.C.M. 
704(c) is amended to read as follows:

    ``Only general court-martial convening authorities or their 
designees are authorized to grant immunity.''

(e) The Discussion immediately following R.C.M. 704(c) is amended by 
inserting a new paragraph in between the first and second paragraphs, 
which reads as follows:

    ``When the victim of an alleged offense requests an expedited 
response to a request for immunity for misconduct that is collateral to 
the underlying offense, the convening authority should respond to the 
request as soon as practicable.''

(f) A new Discussion paragraph is inserted immediately prior to the 
existing paragraph following R.C.M. 704(c)(3) and reads as follows:

    ``A general court-martial convening authority has wide latitude 
under this section to exercise his or her discretion in delegating 
immunity authority. For example, a general court-martial convening 
authority may decide to delegate only the authority for a designee to 
grant immunity for certain offenses, such as a list of specific 
offenses or any offense not warranting a punitive discharge, while 
withholding authority to grant immunity for all others. A general 
court-martial convening authority may also delegate only authority for 
certain categories of grantees, such as victims of alleged sex-related 
offenses.''

(g) A new Discussion is inserted immediately following R.C.M. 1103A(a) 
and prior to R.C.M. 1103A(b) and reads as follows:

    ``Upon request or otherwise for good cause, a military judge may 
seal matters at his or her discretion.
    The terms ``examination'' and ``disclosure'' are defined in (b)(5) 
and (6) of this rule.''

[[Page 85943]]

(h) A Discussion is re-inserted immediately following R.C.M. 
1103A(b)(3) and prior to R.C.M. 1103A(b)(4) and reads as follows:

    ``A convening authority who has granted clemency based upon review 
of sealed materials in the record of trial is not permitted to disclose 
the contents of the sealed materials when providing a written 
explanation of the reason for such action, as directed under R.C.M. 
1107.''

(i) A new Discussion is inserted immediately following R.C.M. 
1103A(b)(4)(B)(ii) and prior to R.C.M. 1103A(b)(4)(C) and reads as 
follows:

    ``For disclosure procedures, see (b)(4)(C) of this rule.''

(j) A new Discussion is inserted immediately following R.C.M. 
1103A(b)(4)(C)(ii) and prior to R.C.M. 1103A(b)(4)(D) and reads as 
follows:

    ``In general, the Judge Advocate General or an appellate court 
should authorize disclosure of sealed material when such disclosure is 
necessary for review. Authorizations may place conditions on 
disclosure.''

Section 6. The Discussion to Part III of the Manual for Courts-Martial, 
United States, is amended as follows:

(a) A new Discussion is inserted immediately after Mil. R. Evid. 506(b) 
and before Mil. R. Evid. 506(c) and reads as follows:

    ``For additional procedures concerning information contained in 
safety investigations, consult Service regulations and DoD Instruction 
6055.07, ``Mishap Notification, Investigation, Reporting, and Record 
Keeping.'' ''

    Dated: November 22, 2016.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2016-28630 Filed 11-28-16; 8:45 am]
 BILLING CODE 5001-06-P