Foreign Criminal and Civil Jurisdiction, 53020-53023 [2018-22752]
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they quote to their clients in noncleared swaps over this period. Onefifth of the survey respondents also
reported that they would be less likely
to exchange daily variation margin with
mutual funds, exchange-traded funds,
pension plans, endowments, and
separately managed accounts
established with investment advisers
due primarily to lack of operational
readiness (e.g., the need to establish or
update the necessary credit support
annexes to cover daily exchange of
variation margin) over this period. Twofifths of the survey respondents also
reported that the volume of mark and
collateral disputes on variation margin
has increased somewhat over this
period. Furthermore, the survey noted
that there is variation among
respondents with respect to the number
of days it takes to resolve a mark and
collateral dispute on variation margin,
with one-third reporting less than two
days, while three-fifths reporting more
than two days but less than a week, on
average. This type of data could provide
insight regarding how entities that may
register as nonbank SBSDs may respond
to the Commission’s final margin
requirements.
Commenters are asked to describe
changes, if applicable, in: (1) The
trading volumes in the relevant securitybased swap and swap markets; (2) the
regulatory structure of these markets;
and (3) the number and types of entities
that participate in these markets.
Commenters also are asked to describe
how those changes in the baseline
would impact the potential benefits and
costs—including the effects on
efficiency, competition and capital
formation—of the Proposals as well as
the potential benefits and costs—
including the effects on efficiency,
competition and capital formation—that
would result from the potential
alternatives described in the questions
above taking the changes in the baseline
into account (if applicable).
Finally, the Commission requests
comment on whether there are
economic considerations apart from
those discussed in the Proposals that
should be considered in the economic
analysis of the capital, margin, and
segregation requirements as well as the
alternatives described in the questions
above.
By the Commission.
Dated: October 11, 2018.
Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2018–22531 Filed 10–18–18; 8:45 am]
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(available at https://www.esd.whs.mil/
Portals/54/Documents/DD/issuances/
dodd/514501p.pdf), to issue this policy.
Title 10 U.S.C. 1037 authorizes the
payment of counsel and other fees in
certain cases in foreign judicial
tribunals and administrative agencies.
DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 151
[Docket ID: DOD–2012–OS–0069]
RIN 0790–AI89
Foreign Criminal and Civil Jurisdiction
Department of Defense (DoD).
Proposed rule.
AGENCY:
ACTION:
This rule describes
procedures concerning trial by foreign
criminal courts of, treatment in foreign
prisons of, and the payment of counsel
fees in certain civil cases for individuals
referred to collectively in this rule as
‘‘dependents of DoD personnel.’’
DATES: Comments must be received by
December 18, 2018.
ADDRESSES: You may submit comments,
identified by docket number and or RIN
number and title, by any of the
following methods:
• Federal Rulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• Mail: Department of Defense, Office
of the Chief Management Officer,
Directorate for Oversight and
Compliance, 4800 Mark Center Drive,
Mailbox #24, Suite 08D09, Alexandria,
VA 22350–1700.
Instructions: All submissions received
must include the agency name and
docket number or Regulatory
Information Number (RIN). The general
policy for comments and other
submissions from members of the public
is to make these submissions available
at https://www.regulations.gov as they
are received without change, including
any personal identifiers or contact
information.
SUMMARY:
FOR FURTHER INFORMATION CONTACT:
Bart
Wager, 703–571–9355.
SUPPLEMENTARY INFORMATION:
Authorities
Taken together, two statutes authorize
the Secretary of Defense to issue legally
binding guidelines on the Department of
Defense. Under 10 U.S.C. 113, the
Secretary has ‘‘authority, direction, and
control’’ over the Department of
Defense. The Department of Defense is
an ‘‘executive department,’’ and the
Secretary, as the head of an ‘‘executive
department,’’ is empowered under 5
U.S.C. 301 to issue departmental
regulations. The General Counsel of the
Department of Defense has been
delegated authority under Department
of Defense Directive 5145.01, ‘‘General
Counsel of the Department of Defense’’
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Revisions Proposed by This Rule
This rule will update 32 CFR part 151,
‘‘Status of Forces Policies and
Information’’ which was last updated on
March 28, 1980. In 1985, Section 681 of
Public Law 99–145 amended 10 U.S.C.
1037 to authorize the payment of
counsel fees for those ‘‘not subject to the
Uniform Code of Military Justice.’’ So
this rule proposes to update and
describe procedures concerning trial by
foreign criminal courts of, treatment in
foreign prisons of, and the payment of
counsel fees in certain civil cases for
command-sponsored and non-command
sponsored dependents of Armed Forces
members, and dependents of nationals
and non-nationals of the United States
who are serving with or accompanying
the Military Services.
Summary of the Major Provisions
For dependents of DoD personnel,
when those dependents are in a foreign
country as a result of accompanying
DoD personnel who are assigned duty in
that country—it is Department of
Defense policy to (a) maximize the
exercise of U.S. jurisdiction to the
extent permissible under applicable
status of forces agreements or other
forms of jurisdiction arrangements; (b)
protect, to the maximum extent
possible, the rights of dependents of
DoD personnel who may be subject to
criminal trial by foreign courts and
imprisonment in foreign prisons; and (c)
secure, where possible, the release of an
accused to the custody of U.S.
authorities pending completion of all
foreign judicial proceedings.
A ‘‘designated commanding officer’’
(DCO) in each geographical area
assigned to a Combatant Command is to
(1) cooperate with the appropriate U.S.
Chief of Mission and to the maximum
extent possible, ensure that dependents
of DoD personnel receive the same
treatment, rights, and support as would
be extended to U.S. Armed Forces
members in comparable situations; (2)
report informally and immediately to
the General Counsel of the Department
of Defense, the applicable geographic
Combatant Commander, and the General
Counsel and the Judge Advocate
General of the respective Military
Department, or, in the case of the
Marine Corps, to the General Counsel of
the Navy and the Staff Judge Advocate
to the Commandant of the Marine
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Corps, or, in the case of the Coast Guard,
the Judge Advocate General of the Coast
Guard, about important new cases or
important developments in pending
cases related to such dependents; and
(3) take additional steps that may be
authorized under relevant international
agreement(s) with the receiving State to
implement the policy of this part.
Expected Impact of the Proposed Rule
The proposed revisions are expected
to cause no change to the burden or cost
to dependents of DoD personnel. DoD is
not changing the process for dependents
to access these services and therefore
does not anticipate a change in the
population of eligible DoD dependents
for these services. The Department will
continue to provide relevant free legal
services to the dependents of DoD
personnel and acceptance of these legal
services is entirely voluntary.
Regulatory Procedures
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Executive Order 12866, ‘‘Regulatory
Planning and Review’’ and Executive
Order 13563, ‘‘Improving Regulation
and Regulatory Review’’
Executive Orders 13563 and 12866
direct agencies to assess all costs and
benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distribute impacts, and equity).
Executive Order 13563 emphasizes the
importance of quantifying both costs
and benefits, of reducing costs, of
harmonizing rules, and of promoting
flexibility. This rule has been
designated a ‘‘significant regulatory
action,’’ although not economically
significant, under section 3(f) of
Executive Order 12866. Accordingly,
the rule has been reviewed by the Office
of Management and Budget (OMB)
under the requirements of these
Executive Orders.
Executive Order 13771, ‘‘Reducing
Regulation and Controlling Regulatory
Costs’’
This proposed rule is not expected to
be subject to the requirements of E.O.
13771 (82 FR 9339, February 3, 2017)
because this proposed rule is expected
to be related to agency organization,
management, or personnel.
Section 202, Public Law 104–4,
‘‘Unfunded Mandates Reform Act’’ (2
U.S.C. Chapter 25)
Section 202 of the Unfunded
Mandates Reform Act of 1995 (UMRA)
(2 U.S.C. 1532) requires agencies assess
anticipated costs and benefits before
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issuing any rule whose mandates
require spending in any 1 year of $100
million in 1995 dollars, updated
annually for inflation. This proposed
rule will not mandate any requirements
for State, local, or tribal governments,
nor will it affect private sector costs.
Public Law 96–354, ‘‘Regulatory
Flexibility Act’’ (5 U.S.C. 601)
The Department of Defense certifies
that this proposed rule is not subject to
the Regulatory Flexibility Act (5 U.S.C.
601) because it would not, if
promulgated, have a significant
economic impact on a substantial
number of small entities. Therefore, the
Regulatory Flexibility Act, as amended,
does not require us to prepare a
regulatory flexibility analysis.
Public Law 96–511, ‘‘Paperwork
Reduction Act’’ (44 U.S.C. Chapter 35)
It has been determined that 32 CFR
part 151 does not impose reporting or
recordkeeping requirements under the
Paperwork Reduction Act of 1995.
Executive Order 13132, ‘‘Federalism’’
Executive Order 13132 establishes
certain requirements that an agency
must meet when it promulgates a
proposed rule (and subsequent final
rule) that imposes substantial direct
requirement costs on State and local
governments, preempts State law, or
otherwise has Federalism implications.
This proposed rule will not have a
substantial effect on State and local
governments.
List of Subjects in 32 CFR Part 151
Courts, Foreign relations, Military
personnel, Prisons.
Accordingly, 32 CFR part 151 is
proposed to be revised to read as
follows:
PART 151—FOREIGN CRIMINAL AND
CIVIL JURISDICTION
Sec.
151.1
151.2
151.3
151.4
151.5
151.6
Purpose.
Applicability.
Definitions.
Policy.
Responsibilities.
Procedures.
Authority: 10 U.S.C. chapter 47, 10 U.S.C.
1037.
§ 151.1
Purpose.
This rule establishes policy, assigns
responsibilities, and prescribes
procedures, supplemental to those
provided in DoD Instruction 5525.01
‘‘Foreign Criminal and Civil
Jurisdiction,’’ which will be made
available at https://www.esd.whs.mil/
Directives/issuances/dodi/, concerning
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trial by foreign criminal courts of,
treatment in foreign prisons of, and the
payment of counsel fees in certain civil
cases for the following individuals,
referred to collectively in this rule as
‘‘dependents of DoD personnel,’’ when
those individuals are in a foreign
country as a result of accompanying
DoD personnel who are assigned duty in
that country:
(a) Command-sponsored and noncommand sponsored dependents of
Armed Forces members;
(b) Dependents of nationals and nonnationals of the United States who are
serving with or accompanying the
Military Services (referred to in this rule
as ‘‘non-military DoD personnel’’) in an
area outside the United States and its
territories and possessions, the
Commonwealth of the Northern Mariana
Islands, and the Commonwealth of
Puerto Rico (referred to collectively in
this rule as ‘‘outside the United States’’);
(c) Dependents of DoD personnel
serving under a U.S. Chief of Mission
are not considered to be ‘‘dependents of
DoD personnel’’ for the purposes of this
rule.
§ 151.2
Applicability.
This part applies to the Office of the
Secretary of Defense, the Military
Departments (including the Coast Guard
at all times, including when it is a
Service in the Department of Homeland
Security by agreement with that
Department), the Office of the Chairman
of the Joint Chiefs of Staff and the Joint
Staff, the Combatant Commands, the
Office of the Inspector General of the
Department of Defense, the Defense
Agencies, the DoD Field Activities, and
all other organizational entities within
the DoD.
§ 151.3
Definitions.
These terms and their definitions are
for the purposes of this part.
Armed Forces. As set forth in 10
U.S.C. 101(a)(4), the Army, Navy, Air
Force, Marine Corps, and Coast Guard.
Designated commanding officer
(DCO). The military officer who is
designated by the appropriate
geographic Combatant Commander to
fulfill the duties outlined in this part.
Non-military DoD personnel.
Nationals and non-nationals of the
United States who are serving with or
accompanying the Armed Forces in an
area outside the United States and its
territories and possessions, the northern
Mariana Islands, and the
Commonwealth of Puerto Rico.
DoD personnel. Armed Forces
members and non-military DoD
personnel. Armed Forces members and
non-military DoD personnel serving
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under a U.S. Chief of Mission are not
considered to be ‘‘DoD personnel’’ as
defined in this part.
§ 151.4
Policy.
(a) The Department of Defense will,
for dependents of DoD personnel when
those dependents are in a foreign
country accompanying DoD personnel
who are assigned duty to that foreign
country:
(1) Maximize the exercise of U.S.
jurisdiction to the extent permissible
under applicable status of forces
agreements or other forms of
jurisdiction arrangements.
(2) Protect, to the maximum extent
possible, the rights of dependents of
DoD personnel who may be subject to
criminal trial by foreign courts and
imprisonment in foreign prisons.
(3) Secure, where possible, the release
of an accused to the custody of U.S.
authorities pending completion of all
foreign judicial proceedings.
(b) [Reserved]
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§ 151.5
Responsibilities.
(a) The Secretaries of the Military
Departments ensure the adequacy of
regulations in establishing an
information and education policy on the
laws and customs of the host country for
dependents of DoD personnel assigned
to foreign areas.
(b) For each country in their
respective assigned area of
responsibility (AOR), the geographic
Combatant Commanders:
(1) Oversee Command
implementation of the procedures in
this part.
(2) Oversee DCO responsibilities, as
described in paragraphs (c)(1) through
(c)(4) of this section.
(c) DCO responsibilities. The DCOs:
(1) Are responsible for formal
invocation, where applicable, of the
Senate resolution procedure in each
foreign country where dependents of
DoD personnel are present, consistent
with the U.S. Senate Resolution of
Ratification, with reservations, to the
North Atlantic Treaty Organization
Status of Forces Agreement, as agreed to
by the Senate on July 15, 1953.
(2) In cooperation with the
appropriate U.S. Chief of Mission and to
the maximum extent possible, ensure
dependents of DoD personnel receive
the same treatment, rights, and support
as Armed Forces members when in the
custody of foreign authorities, or when
confined (pre-trial and post-trial) in
foreign penal institutions. DCOs will
work with the appropriate U.S. Chief of
Mission to make appropriate diplomatic
contacts for dependents of DoD
personnel who are not U.S. nationals.
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(3) Report informally and
immediately to the General Counsel of
the Department of Defense, the
applicable geographic Combatant
Commander, and the General Counsel
and the Judge Advocate General of the
respective Military Department or, in
the case of the U.S. Marine Corps
(USMC), to the General Counsel of the
Navy and the Staff Judge Advocate to
the Commandant of the Marine Corps,
or, in the case of the Coast Guard, the
Judge Advocate General of the Coast
Guard, about important new cases or
important developments in pending
cases. Important cases include, but are
not limited to, instances of denial of the
procedural safeguards under any
applicable agreement; deficiency in the
treatment or conditions of confinement
in foreign penal institutions; or arbitrary
denial of permission to visit dependents
of DoD personnel.
(4) Take additional steps that may be
authorized under relevant international
agreements with the receiving State to
implement the policy of this part.
§ 151.6
Procedures.
(a) Request to foreign authorities not
to exercise their criminal and civil
jurisdiction over dependents. The
procedures in this section will be
followed when it appears that foreign
authorities may exercise criminal
jurisdiction over dependents of DoD
personnel:
(1) When the DCO determines, after a
careful consideration of all the
circumstances, including consultation
with the Department of Justice where
the matter involves possible prosecution
in U.S civilian courts, that suitable
action can be taken under existing U.S.
laws or administrative regulations, the
DCO may request the local foreign
authorities to waive the exercise of
criminal jurisdiction.
(2) When it appears possible that the
accused may not obtain a fair trial, the
commander exercising general courtmartial jurisdiction over the command
to which such persons are attached or
with which they are associated will
communicate directly with the DCO,
reporting the full facts of the case. The
DCO will then determine, in the light of
legal procedures in effect in that
country, if there is a risk that the
accused will not receive a fair trial. If
the DCO determines that there is a risk
that the accused will not receive a fair
trial, the DCO will decide, after
consultation with the U.S. Chief of
Mission, whether a request should be
submitted through diplomatic channels
to foreign authorities seeking their
assurances of a fair trial for the accused
or, in appropriate circumstances, that
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they waive the exercise of jurisdiction
over the accused. If the DCO so decides,
a recommendation will be submitted
through the geographic Combatant
Commander and the Chairman of the
Joint Chiefs of Staff to the Secretary of
Defense. Copies must be provided to the
Secretary concerned and the GC DoD.
(b) Trial observers and trial observers’
reports. (1) U.S. observers at trials before
courts of the receiving country (referred
to in this rule as ‘‘trial observers’’) must
attend and prepare formal reports in all
cases of trials by foreign courts or
tribunals of dependents of DoD
personnel, except for minor offenses. In
cases of minor offenses, the observer
will attend the trial at the discretion of
the DCO, but will not be required to
make a formal report.
(i) Unless directed by the DCO, trial
observers are not required to attend all
preliminary proceedings, such as
scheduling hearings, but will attend the
trial on the merits and other pre- and
post-trial proceedings where significant
procedural or substantive matters are
decided.
(ii) Trial observer reports regarding
dependents of DoD personnel will be
handled and processed pursuant to DoD
Instruction 5525.01(4)(b–c).
(2) The DCO, upon receipt of a trial
observer report, will be responsible for
determining whether:
(i) There was any failure to comply
with the procedural safeguards secured
by the pertinent status of forces
agreement.
(ii) The accused received a fair trial
under all the circumstances. Due regard
should be given to those fair trial rights
listed in DoD Instruction 5525.01
‘‘Foreign Criminal and Civil
Jurisdiction,’’ Enclosure 5, ‘‘Fair Trial
Guarantees’’ that are relevant to the
particular facts and circumstances of the
trial. A trial will not be determined to
be unfair merely because it is not
conducted in a manner identical to
trials held in the United States.
(A) If the DCO believes that the
procedural safeguards specified in
pertinent agreements were denied or
that the trial was otherwise unjust, the
DCO will submit a recommendation as
to appropriate action to rectify the trial
deficiencies and otherwise to protect the
rights or interests of the accused. This
recommendation must include a
statement of efforts taken or to be taken
at the local level to protect the rights of
the accused.
(B) The DCO will submit the
recommendation to the Secretary of
Defense, through the Under Secretary of
Defense for Policy (with an advance
copy to the General Counsel of the
Department of Defense); copies must be
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provided to the geographic Combatant
Commander concerned, the General
Counsel and the Judge Advocate
General of the Military Department
concerned or, in the case of the USMC,
to the General Counsel of the Navy and
the Staff Judge Advocate to the
Commandant of the Marine Corps, or, in
the case of the Coast Guard, the Judge
Advocate General of the Coast Guard,
and the Chairman of the Joint Chiefs of
Staff.
(c) Counsel fees and related
assistance for U.S. personnel not subject
to the UCMJ. In cases of exceptional
interest to the Military Department
concerned or the Department of
Homeland Security involving nonmilitary DoD personnel, the Secretary of
that Military Department or the
Secretary of Homeland Security may
approve, pursuant to 10 U.S.C. 1037,
under the following circumstances:
(1) Criminal cases. Requests for the
provision of counsel fees and payment
of expenses in criminal cases may be
approved in pre-trial, trial, appellate,
and post-trial proceedings in any
criminal case where:
(i) The sentence that is normally
imposed includes confinement, whether
or not such sentence is suspended;
(ii) Capital punishment might be
imposed;
(iii) An appeal is made from any
proceeding in which there appears to
have been a denial of the substantial
rights of the accused;
(iv) The case, although not within the
criteria established in paragraphs
(c)(1)(i) through (c)(1)(iii) of this section,
is considered to have significant impact
on U.S. interests, including upon the
relations of the Armed Forces with the
host country.
(2) Civil cases. Requests for provision
of counsel fees and payment of expenses
in civil cases may be granted in trial and
appellate proceedings in civil cases
where the case is considered to have a
significant impact on the relations of the
Armed Forces with the host country; or
in cases brought against eligible nonmilitary DoD personnel (and in
exceptional cases, by such personnel) if
the case is considered to involve any
other U.S. interest.
(3) Funding restrictions. (i) No funds
will be provided under this part in cases
where the U.S. Government is—in
actuality or in legal effect—the plaintiff
or the defendant; all such cases shall be
referred to the Department of Justice,
Office of Foreign Litigation. No funds
will be provided under this part in cases
where the non-military DoD personnel
member is a plaintiff without prior
authorization of the Secretary of the
Military Department concerned or the
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Secretary of Homeland Security. The
provisions of this paragraph also are
applicable to proceedings with civil
aspects that are brought by eligible
personnel as criminal cases in
accordance with local law. Funds for
the posting of bail or bond to secure the
release of non-military DoD personnel
from confinement will be used as
provided by applicable Armed Force
regulations.
(ii) No funds will be provided under
paragraph (c)(2) of this section to a
plaintiff who, if successful, will receive
an award, in whole or in part, from the
United States.
(iii) As provided for in 10 U.S.C.
1037, a person on whose behalf a
payment is made under this provision is
not liable to reimburse the United States
for that payment, unless he or she is
responsible for the forfeiture of bail
provided for him or her under this
provision.
(d) Treatment of dependents confined
in foreign penal institutions. In
cooperation with the appropriate U.S.
Chief of Mission and to the maximum
extent possible, military commanders
will ensure that dependents of DoD
personnel receive the same treatment,
rights, and support as would be
extended to Armed Forces members
when in the custody of foreign
authorities, or when confined (pretrial
and post-trial) in foreign penal
institutions. Commanders will work
with the appropriate U.S. Chief of
Mission to make appropriate diplomatic
contacts for the categories of dependents
described in this section who are not
U.S. nationals.
(e) Information policy. The general
public and the Congress must be
provided promptly with the maximum
information concerning status of forces
matters that are consistent with the
national interest. Information will be
coordinated and provided to the public
and the Congress in accordance with
established procedures, including those
in DoD Directive 5122.05, ‘‘Assistant
Secretary of Defense for Public Affairs
(ASD(PA))’’ (available at https://
www.esd.whs.mil/Portals/54/
Documents/DD/issuances/dodd/
512205_dodd_2017.pdf?ver=2017-0807-125832-023), 32 CFR part 286, 32
CFR part 310, and DoD Instruction
5400.04, ‘‘Provision of Information to
Congress’’ (available at https://
www.esd.whs.mil/Portals/54/
Documents/DD/issuances/dodi/
540004p.pdf).
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53023
Dated: October 15, 2018.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison
Officer, Department of Defense.
[FR Doc. 2018–22752 Filed 10–18–18; 8:45 am]
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DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 165
[Docket Number USCG–2018–0962]
RIN 1625–AA00
Safety Zone; NASA Activities, Gulf of
Mexico, Galveston, TX
Coast Guard, DHS.
Notice of proposed rulemaking.
AGENCY:
ACTION:
The Coast Guard is proposing
to establish a temporary, moving safety
zone for all navigable waters within a
1000-yard radius of the National
Aeronautics and Space Administration’s
(NASA’s) crew module uprighting
system test article while it is being
tested in the territorial waters of the
Gulf of Mexico off the coast of
Galveston, TX. The safety zone is
necessary to protect persons, vessels,
and the marine environment from
potential hazards created by vessels and
equipment engaged in the crew
capsule’s at-sea testing. This proposed
rulemaking would prohibit persons and
vessels from being in the safety zone
unless authorized by the Captain of the
Port Sector Houston-Galveston or a
designated representative. We invite
your comments on this proposed
rulemaking.
DATES: Comments and related material
must be received by the Coast Guard on
or before November 5, 2018.
ADDRESSES: You may submit comments
identified by docket number USCG–
2018–0962 using the Federal
eRulemaking Portal at https://
www.regulations.gov. See the ‘‘Public
Participation and Request for
Comments’’ portion of the
SUPPLEMENTARY INFORMATION section for
further instructions on submitting
comments.
FOR FURTHER INFORMATION CONTACT: If
you have questions about this proposed
rulemaking, call or email Lieutenant
Collin Sykes, Eighth Coast Guard
District, Waterways Management
Division, U.S. Coast Guard; telephone
504–671–2119, email Collin.T.Sykes@
uscg.mil.
SUPPLEMENTARY INFORMATION:
SUMMARY:
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]]>Agencies
[Federal Register Volume 83, Number 203 (Friday, October 19, 2018)]
[Proposed Rules]
[Pages 53020-53023]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-22752]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 151
[Docket ID: DOD-2012-OS-0069]
RIN 0790-AI89
Foreign Criminal and Civil Jurisdiction
AGENCY: Department of Defense (DoD).
ACTION: Proposed rule.
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SUMMARY: This rule describes procedures concerning trial by foreign
criminal courts of, treatment in foreign prisons of, and the payment of
counsel fees in certain civil cases for individuals referred to
collectively in this rule as ``dependents of DoD personnel.''
DATES: Comments must be received by December 18, 2018.
ADDRESSES: You may submit comments, identified by docket number and or
RIN number and title, by any of the following methods:
Federal Rulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Department of Defense, Office of the Chief
Management Officer, Directorate for Oversight and Compliance, 4800 Mark
Center Drive, Mailbox #24, Suite 08D09, Alexandria, VA 22350-1700.
Instructions: All submissions received must include the agency name
and docket number or Regulatory Information Number (RIN). The general
policy for comments and other submissions from members of the public is
to make these submissions available at https://www.regulations.gov as
they are received without change, including any personal identifiers or
contact information.
FOR FURTHER INFORMATION CONTACT: Bart Wager, 703-571-9355.
SUPPLEMENTARY INFORMATION:
Authorities
Taken together, two statutes authorize the Secretary of Defense to
issue legally binding guidelines on the Department of Defense. Under 10
U.S.C. 113, the Secretary has ``authority, direction, and control''
over the Department of Defense. The Department of Defense is an
``executive department,'' and the Secretary, as the head of an
``executive department,'' is empowered under 5 U.S.C. 301 to issue
departmental regulations. The General Counsel of the Department of
Defense has been delegated authority under Department of Defense
Directive 5145.01, ``General Counsel of the Department of Defense''
(available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/514501p.pdf), to issue this policy. Title 10 U.S.C. 1037
authorizes the payment of counsel and other fees in certain cases in
foreign judicial tribunals and administrative agencies.
Revisions Proposed by This Rule
This rule will update 32 CFR part 151, ``Status of Forces Policies
and Information'' which was last updated on March 28, 1980. In 1985,
Section 681 of Public Law 99-145 amended 10 U.S.C. 1037 to authorize
the payment of counsel fees for those ``not subject to the Uniform Code
of Military Justice.'' So this rule proposes to update and describe
procedures concerning trial by foreign criminal courts of, treatment in
foreign prisons of, and the payment of counsel fees in certain civil
cases for command-sponsored and non-command sponsored dependents of
Armed Forces members, and dependents of nationals and non-nationals of
the United States who are serving with or accompanying the Military
Services.
Summary of the Major Provisions
For dependents of DoD personnel, when those dependents are in a
foreign country as a result of accompanying DoD personnel who are
assigned duty in that country--it is Department of Defense policy to
(a) maximize the exercise of U.S. jurisdiction to the extent
permissible under applicable status of forces agreements or other forms
of jurisdiction arrangements; (b) protect, to the maximum extent
possible, the rights of dependents of DoD personnel who may be subject
to criminal trial by foreign courts and imprisonment in foreign
prisons; and (c) secure, where possible, the release of an accused to
the custody of U.S. authorities pending completion of all foreign
judicial proceedings.
A ``designated commanding officer'' (DCO) in each geographical area
assigned to a Combatant Command is to (1) cooperate with the
appropriate U.S. Chief of Mission and to the maximum extent possible,
ensure that dependents of DoD personnel receive the same treatment,
rights, and support as would be extended to U.S. Armed Forces members
in comparable situations; (2) report informally and immediately to the
General Counsel of the Department of Defense, the applicable geographic
Combatant Commander, and the General Counsel and the Judge Advocate
General of the respective Military Department, or, in the case of the
Marine Corps, to the General Counsel of the Navy and the Staff Judge
Advocate to the Commandant of the Marine
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Corps, or, in the case of the Coast Guard, the Judge Advocate General
of the Coast Guard, about important new cases or important developments
in pending cases related to such dependents; and (3) take additional
steps that may be authorized under relevant international agreement(s)
with the receiving State to implement the policy of this part.
Expected Impact of the Proposed Rule
The proposed revisions are expected to cause no change to the
burden or cost to dependents of DoD personnel. DoD is not changing the
process for dependents to access these services and therefore does not
anticipate a change in the population of eligible DoD dependents for
these services. The Department will continue to provide relevant free
legal services to the dependents of DoD personnel and acceptance of
these legal services is entirely voluntary.
Regulatory Procedures
Executive Order 12866, ``Regulatory Planning and Review'' and Executive
Order 13563, ``Improving Regulation and Regulatory Review''
Executive Orders 13563 and 12866 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distribute impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This rule has been designated a ``significant regulatory
action,'' although not economically significant, under section 3(f) of
Executive Order 12866. Accordingly, the rule has been reviewed by the
Office of Management and Budget (OMB) under the requirements of these
Executive Orders.
Executive Order 13771, ``Reducing Regulation and Controlling Regulatory
Costs''
This proposed rule is not expected to be subject to the
requirements of E.O. 13771 (82 FR 9339, February 3, 2017) because this
proposed rule is expected to be related to agency organization,
management, or personnel.
Section 202, Public Law 104-4, ``Unfunded Mandates Reform Act'' (2
U.S.C. Chapter 25)
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) (2
U.S.C. 1532) requires agencies assess anticipated costs and benefits
before issuing any rule whose mandates require spending in any 1 year
of $100 million in 1995 dollars, updated annually for inflation. This
proposed rule will not mandate any requirements for State, local, or
tribal governments, nor will it affect private sector costs.
Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)
The Department of Defense certifies that this proposed rule is not
subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it
would not, if promulgated, have a significant economic impact on a
substantial number of small entities. Therefore, the Regulatory
Flexibility Act, as amended, does not require us to prepare a
regulatory flexibility analysis.
Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)
It has been determined that 32 CFR part 151 does not impose
reporting or recordkeeping requirements under the Paperwork Reduction
Act of 1995.
Executive Order 13132, ``Federalism''
Executive Order 13132 establishes certain requirements that an
agency must meet when it promulgates a proposed rule (and subsequent
final rule) that imposes substantial direct requirement costs on State
and local governments, preempts State law, or otherwise has Federalism
implications. This proposed rule will not have a substantial effect on
State and local governments.
List of Subjects in 32 CFR Part 151
Courts, Foreign relations, Military personnel, Prisons.
Accordingly, 32 CFR part 151 is proposed to be revised to read as
follows:
PART 151--FOREIGN CRIMINAL AND CIVIL JURISDICTION
Sec.
151.1 Purpose.
151.2 Applicability.
151.3 Definitions.
151.4 Policy.
151.5 Responsibilities.
151.6 Procedures.
Authority: 10 U.S.C. chapter 47, 10 U.S.C. 1037.
Sec. 151.1 Purpose.
This rule establishes policy, assigns responsibilities, and
prescribes procedures, supplemental to those provided in DoD
Instruction 5525.01 ``Foreign Criminal and Civil Jurisdiction,'' which
will be made available at https://www.esd.whs.mil/Directives/issuances/dodi/, concerning trial by foreign criminal courts of, treatment in
foreign prisons of, and the payment of counsel fees in certain civil
cases for the following individuals, referred to collectively in this
rule as ``dependents of DoD personnel,'' when those individuals are in
a foreign country as a result of accompanying DoD personnel who are
assigned duty in that country:
(a) Command-sponsored and non-command sponsored dependents of Armed
Forces members;
(b) Dependents of nationals and non-nationals of the United States
who are serving with or accompanying the Military Services (referred to
in this rule as ``non-military DoD personnel'') in an area outside the
United States and its territories and possessions, the Commonwealth of
the Northern Mariana Islands, and the Commonwealth of Puerto Rico
(referred to collectively in this rule as ``outside the United
States'');
(c) Dependents of DoD personnel serving under a U.S. Chief of
Mission are not considered to be ``dependents of DoD personnel'' for
the purposes of this rule.
Sec. 151.2 Applicability.
This part applies to the Office of the Secretary of Defense, the
Military Departments (including the Coast Guard at all times, including
when it is a Service in the Department of Homeland Security by
agreement with that Department), the Office of the Chairman of the
Joint Chiefs of Staff and the Joint Staff, the Combatant Commands, the
Office of the Inspector General of the Department of Defense, the
Defense Agencies, the DoD Field Activities, and all other
organizational entities within the DoD.
Sec. 151.3 Definitions.
These terms and their definitions are for the purposes of this
part.
Armed Forces. As set forth in 10 U.S.C. 101(a)(4), the Army, Navy,
Air Force, Marine Corps, and Coast Guard.
Designated commanding officer (DCO). The military officer who is
designated by the appropriate geographic Combatant Commander to fulfill
the duties outlined in this part.
Non-military DoD personnel. Nationals and non-nationals of the
United States who are serving with or accompanying the Armed Forces in
an area outside the United States and its territories and possessions,
the northern Mariana Islands, and the Commonwealth of Puerto Rico.
DoD personnel. Armed Forces members and non-military DoD personnel.
Armed Forces members and non-military DoD personnel serving
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under a U.S. Chief of Mission are not considered to be ``DoD
personnel'' as defined in this part.
Sec. 151.4 Policy.
(a) The Department of Defense will, for dependents of DoD personnel
when those dependents are in a foreign country accompanying DoD
personnel who are assigned duty to that foreign country:
(1) Maximize the exercise of U.S. jurisdiction to the extent
permissible under applicable status of forces agreements or other forms
of jurisdiction arrangements.
(2) Protect, to the maximum extent possible, the rights of
dependents of DoD personnel who may be subject to criminal trial by
foreign courts and imprisonment in foreign prisons.
(3) Secure, where possible, the release of an accused to the
custody of U.S. authorities pending completion of all foreign judicial
proceedings.
(b) [Reserved]
Sec. 151.5 Responsibilities.
(a) The Secretaries of the Military Departments ensure the adequacy
of regulations in establishing an information and education policy on
the laws and customs of the host country for dependents of DoD
personnel assigned to foreign areas.
(b) For each country in their respective assigned area of
responsibility (AOR), the geographic Combatant Commanders:
(1) Oversee Command implementation of the procedures in this part.
(2) Oversee DCO responsibilities, as described in paragraphs (c)(1)
through (c)(4) of this section.
(c) DCO responsibilities. The DCOs:
(1) Are responsible for formal invocation, where applicable, of the
Senate resolution procedure in each foreign country where dependents of
DoD personnel are present, consistent with the U.S. Senate Resolution
of Ratification, with reservations, to the North Atlantic Treaty
Organization Status of Forces Agreement, as agreed to by the Senate on
July 15, 1953.
(2) In cooperation with the appropriate U.S. Chief of Mission and
to the maximum extent possible, ensure dependents of DoD personnel
receive the same treatment, rights, and support as Armed Forces members
when in the custody of foreign authorities, or when confined (pre-trial
and post-trial) in foreign penal institutions. DCOs will work with the
appropriate U.S. Chief of Mission to make appropriate diplomatic
contacts for dependents of DoD personnel who are not U.S. nationals.
(3) Report informally and immediately to the General Counsel of the
Department of Defense, the applicable geographic Combatant Commander,
and the General Counsel and the Judge Advocate General of the
respective Military Department or, in the case of the U.S. Marine Corps
(USMC), to the General Counsel of the Navy and the Staff Judge Advocate
to the Commandant of the Marine Corps, or, in the case of the Coast
Guard, the Judge Advocate General of the Coast Guard, about important
new cases or important developments in pending cases. Important cases
include, but are not limited to, instances of denial of the procedural
safeguards under any applicable agreement; deficiency in the treatment
or conditions of confinement in foreign penal institutions; or
arbitrary denial of permission to visit dependents of DoD personnel.
(4) Take additional steps that may be authorized under relevant
international agreements with the receiving State to implement the
policy of this part.
Sec. 151.6 Procedures.
(a) Request to foreign authorities not to exercise their criminal
and civil jurisdiction over dependents. The procedures in this section
will be followed when it appears that foreign authorities may exercise
criminal jurisdiction over dependents of DoD personnel:
(1) When the DCO determines, after a careful consideration of all
the circumstances, including consultation with the Department of
Justice where the matter involves possible prosecution in U.S civilian
courts, that suitable action can be taken under existing U.S. laws or
administrative regulations, the DCO may request the local foreign
authorities to waive the exercise of criminal jurisdiction.
(2) When it appears possible that the accused may not obtain a fair
trial, the commander exercising general court-martial jurisdiction over
the command to which such persons are attached or with which they are
associated will communicate directly with the DCO, reporting the full
facts of the case. The DCO will then determine, in the light of legal
procedures in effect in that country, if there is a risk that the
accused will not receive a fair trial. If the DCO determines that there
is a risk that the accused will not receive a fair trial, the DCO will
decide, after consultation with the U.S. Chief of Mission, whether a
request should be submitted through diplomatic channels to foreign
authorities seeking their assurances of a fair trial for the accused
or, in appropriate circumstances, that they waive the exercise of
jurisdiction over the accused. If the DCO so decides, a recommendation
will be submitted through the geographic Combatant Commander and the
Chairman of the Joint Chiefs of Staff to the Secretary of Defense.
Copies must be provided to the Secretary concerned and the GC DoD.
(b) Trial observers and trial observers' reports. (1) U.S.
observers at trials before courts of the receiving country (referred to
in this rule as ``trial observers'') must attend and prepare formal
reports in all cases of trials by foreign courts or tribunals of
dependents of DoD personnel, except for minor offenses. In cases of
minor offenses, the observer will attend the trial at the discretion of
the DCO, but will not be required to make a formal report.
(i) Unless directed by the DCO, trial observers are not required to
attend all preliminary proceedings, such as scheduling hearings, but
will attend the trial on the merits and other pre- and post-trial
proceedings where significant procedural or substantive matters are
decided.
(ii) Trial observer reports regarding dependents of DoD personnel
will be handled and processed pursuant to DoD Instruction 5525.01(4)(b-
c).
(2) The DCO, upon receipt of a trial observer report, will be
responsible for determining whether:
(i) There was any failure to comply with the procedural safeguards
secured by the pertinent status of forces agreement.
(ii) The accused received a fair trial under all the circumstances.
Due regard should be given to those fair trial rights listed in DoD
Instruction 5525.01 ``Foreign Criminal and Civil Jurisdiction,''
Enclosure 5, ``Fair Trial Guarantees'' that are relevant to the
particular facts and circumstances of the trial. A trial will not be
determined to be unfair merely because it is not conducted in a manner
identical to trials held in the United States.
(A) If the DCO believes that the procedural safeguards specified in
pertinent agreements were denied or that the trial was otherwise
unjust, the DCO will submit a recommendation as to appropriate action
to rectify the trial deficiencies and otherwise to protect the rights
or interests of the accused. This recommendation must include a
statement of efforts taken or to be taken at the local level to protect
the rights of the accused.
(B) The DCO will submit the recommendation to the Secretary of
Defense, through the Under Secretary of Defense for Policy (with an
advance copy to the General Counsel of the Department of Defense);
copies must be
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provided to the geographic Combatant Commander concerned, the General
Counsel and the Judge Advocate General of the Military Department
concerned or, in the case of the USMC, to the General Counsel of the
Navy and the Staff Judge Advocate to the Commandant of the Marine
Corps, or, in the case of the Coast Guard, the Judge Advocate General
of the Coast Guard, and the Chairman of the Joint Chiefs of Staff.
(c) Counsel fees and related assistance for U.S. personnel not
subject to the UCMJ. In cases of exceptional interest to the Military
Department concerned or the Department of Homeland Security involving
non-military DoD personnel, the Secretary of that Military Department
or the Secretary of Homeland Security may approve, pursuant to 10
U.S.C. 1037, under the following circumstances:
(1) Criminal cases. Requests for the provision of counsel fees and
payment of expenses in criminal cases may be approved in pre-trial,
trial, appellate, and post-trial proceedings in any criminal case
where:
(i) The sentence that is normally imposed includes confinement,
whether or not such sentence is suspended;
(ii) Capital punishment might be imposed;
(iii) An appeal is made from any proceeding in which there appears
to have been a denial of the substantial rights of the accused;
(iv) The case, although not within the criteria established in
paragraphs (c)(1)(i) through (c)(1)(iii) of this section, is considered
to have significant impact on U.S. interests, including upon the
relations of the Armed Forces with the host country.
(2) Civil cases. Requests for provision of counsel fees and payment
of expenses in civil cases may be granted in trial and appellate
proceedings in civil cases where the case is considered to have a
significant impact on the relations of the Armed Forces with the host
country; or in cases brought against eligible non-military DoD
personnel (and in exceptional cases, by such personnel) if the case is
considered to involve any other U.S. interest.
(3) Funding restrictions. (i) No funds will be provided under this
part in cases where the U.S. Government is--in actuality or in legal
effect--the plaintiff or the defendant; all such cases shall be
referred to the Department of Justice, Office of Foreign Litigation. No
funds will be provided under this part in cases where the non-military
DoD personnel member is a plaintiff without prior authorization of the
Secretary of the Military Department concerned or the Secretary of
Homeland Security. The provisions of this paragraph also are applicable
to proceedings with civil aspects that are brought by eligible
personnel as criminal cases in accordance with local law. Funds for the
posting of bail or bond to secure the release of non-military DoD
personnel from confinement will be used as provided by applicable Armed
Force regulations.
(ii) No funds will be provided under paragraph (c)(2) of this
section to a plaintiff who, if successful, will receive an award, in
whole or in part, from the United States.
(iii) As provided for in 10 U.S.C. 1037, a person on whose behalf a
payment is made under this provision is not liable to reimburse the
United States for that payment, unless he or she is responsible for the
forfeiture of bail provided for him or her under this provision.
(d) Treatment of dependents confined in foreign penal institutions.
In cooperation with the appropriate U.S. Chief of Mission and to the
maximum extent possible, military commanders will ensure that
dependents of DoD personnel receive the same treatment, rights, and
support as would be extended to Armed Forces members when in the
custody of foreign authorities, or when confined (pretrial and post-
trial) in foreign penal institutions. Commanders will work with the
appropriate U.S. Chief of Mission to make appropriate diplomatic
contacts for the categories of dependents described in this section who
are not U.S. nationals.
(e) Information policy. The general public and the Congress must be
provided promptly with the maximum information concerning status of
forces matters that are consistent with the national interest.
Information will be coordinated and provided to the public and the
Congress in accordance with established procedures, including those in
DoD Directive 5122.05, ``Assistant Secretary of Defense for Public
Affairs (ASD(PA))'' (available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/512205_dodd_2017.pdf?ver=2017-08-07-125832-023), 32 CFR part 286, 32 CFR part 310, and DoD Instruction 5400.04,
``Provision of Information to Congress'' (available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/540004p.pdf).
Dated: October 15, 2018.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2018-22752 Filed 10-18-18; 8:45 am]
BILLING CODE 5001-06-P
