[Federal Register: June 20, 2003 (Volume 68, Number 119)]
[Rules and Regulations]
[Page 36915-36917]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20jn03-21]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 152
RIN 0790-AG99
Review of the Manual for Courts-Martial
AGENCY: Department of Defense.
ACTION: Interim rule with request for comments.
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SUMMARY: The Department of Defense promulgates procedures implementing
Executive Order 12473, dated July 13, 1984, calling upon the Secretary
of Defense to cause an annual review of the Manual for Courts-Martial
(MCM) and to recommend to the President any appropriate amendments.
Through the annual review process, the Secretary of Defense assists the
president in fulfilling his rule-making responsibilities under Article
36 of the Uniform Code of Military Justice (UCMJ; Chapter 47 of title
10, United States Code). Under the direction of the General Counsel of
the Department of Defense, a Joint-Service Committee on Military
Justice (JSC) is established with responsibility to conduct the annual
review and propose MCM amendments. The JSC also proposes amendments to
the UCMJ, as necessary.
This rule updates part 152 to title 32, Code of Federal
Regulations, ``Review of the Manual for Courts-Martial,'' to reflect
practice and procedures for conducting annual reviews, and to change
the annual review cycle from concluding with an annual report due to
the General Counsel by December 31, instead on May 1. The change in the
annual review cycle is due to legislative requirements on affecting JSC
responsibilities. This Interim rule is provided to afford a 60-day
opportunity for public comment prior to issuing a final rule. This rule
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.
DATES: Effective May 3, 2003. Comments on this rule must be postmarked
no later than August 19, 2003.
ADDRESSES: Comments on this rule should be sent to Mr. Robert E. Reed,
Associate Deputy General Counsel (Military Justice and Personnel
Policy), ODGC(P&HP), 1600 Defense Pentagon, Room 3E999, Washington, DC
20302-1600.
FOR FURTHER INFORMATION CONTACT: Robert E. Reed, (703) 695-1055.
SUPPLEMENTARY INFORMATION: On November 18, 2002, the Department of
Defense published a Notice of Availability (67 FR 69512) inviting
public comments on DoD Directive 5500.17, ``Role and Responsibilities
of the Joint Service Committee (JSC) on Military Justice.''
Executive Order 12866, ``Regulatory Planning and Review''
It has been determined that 32 CFR part 152 is not a significant
regulatory action. This rule does not: (1) Have an annual effect to the
economy of $100 million or more or adversely affect in a material way
the economy; a section of the economy; productivity; competition; jobs,
the environment; public health or safety; or State, local, or tribal
governments or communities; (2) Create serious inconsistency or
otherwise interfere with an action taken or planned by another Agency;
(3) Materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs, or the rights and obligation or recipients
thereof; or (4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
Executive Order 12866.
Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601 et
seq.)
It has been determined that this part is not subject to the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.) because it would not,
if promulgated, have a significant economic impact on a substantial
number of small entities. This part presents no economic impact and
solely involves the rules and procedures governing the internal
Department of Defense annual review of the Manual for Courts-Martial
and the procedures affecting military justice actions.
Public Law 96-511, ``Paperwork Reduction Act of 1995'' (44 U.S.C. 3501
et seq.)
It has been determined that this part does not impose any reporting
or recordkeeping requirements under the Paperwork Reduction act of
1995.
[[Page 36916]]
Section 202, Public Law 104-4, ``Unfunded Mandates Reform Act''
It has been determined that this part does not involve a Federal
Mandate that may result in the expenditure by State, local and tribal
governments, in the aggregate, or by the private sector, of $100
million or more and that such rulemaking will not significantly or
uniquely affect small governments.
Executive Order 13132, ``Federalism''
It has been determined that this part does not have federalism
implications. This part does not have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on the distribution of power and responsibilities among the
various levels of government.
List of Subjects in 32 CFR Part 152
Military law.
0
Accordingly, 32 CFR part 152 is revised to read as follows:
PART 152--REVIEW OF THE MANUAL FOR COURTS-MARTIAL
Sec.
152.1 Purpose.
152.2 Applicability.
152.3 Policy.
152.4 Responsibilities.
152.5 Implementation.
Appendix A to Part 152--Guidance to the Joint Service Committee
(JSC)
Authority: E.O. 12473; 10 U.S.C. 47.
Sec. 152.1 Purpose.
This part:
(a) Implements the requirement established by the President in
Executive Order 12473 that the Manual for Courts-Martial (MCM), United
States, 1984, and subsequent editions, be reviewed annually.
(b) Formalizes the Joint Service Committee (JSC) and defines the
roles, responsibilities, and procedures of the JSC in reviewing and
proposing changes to the MCM and proposing legislation to amend the
Uniform Code of Military Justice (UCMJ) (10 U.S.C., Chapter 47).
(c) Provides for the designation of a Secretary of a Military
Department to serve as the Executive Agent for the JSC.
Sec. 152.2 Applicability.
This part applies to the Office of the Secretary of Defense, the
Military Departments (including the Coast Guard by agreement with the
Department of Homeland Security when it is not operating as a Service
of the Department of the Navy), the Chairman of the Joint Chiefs of
Staff, the Combatant Commands, the Inspector General of the Department
of Defense, the Defense Agencies, the DoD Field Activities, and all
other organizational entities in the Department of Defense (hereafter
collectively referred to as ``the DoD Components'').
Sec. 152.3. Policy.
To assist the President in fulfilling his responsibilities under
the UCMJ, and to satisfy the requirements of Executive Order 12473, the
Department of Defense shall review the Manual for Courts-Martial
annually, and, as appropriate, propose legislation amending the UCMJ to
ensure that the MCM and the UCMJ fulfill their fundamental purpose as a
comprehensive body of military criminal law and procedure. The role of
the JSC furthers these responsibilities. Under the direction of the
General Counsel of the Department of Defense, the JSC is responsible
for reviewing the MCM and proposing amendments to it and, as necessary,
to the UCMJ.
Sec. 152.4. Responsibilities.
(a) The General Counsel to the Department of Defense shall:
(1) Administer this part, to include coordination on and approval
of legislative proposals to amend the UCMJ, approval of the annual
review of the MEM, and coordination of any proposed changes to the MCM
under OMB Circular A-19.\1\
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\1\ Available at http://www.whitehouse.gov/omb/circulars/index.html
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(2) Designate the Secretary of a Military Department to serve as
the joint Service provider for the JSC. The joint Service provider
shall act on behalf of the JSC for maintaining the JSC's files and
historical records, and for publication of the updated editions of the
MCM to be distributed throughout the Department of Defense, as
appropriate.
(3) Invite the Secretary of Homeland Security to appoint
representatives to the JSC.
(4) Invite the Chief Judge of the United States Court of Appeals
for the Armed Forces to provide a staff member to serve as an advisor
to the JSC.
(5) Invite the Chairman of the Joint Chiefs of Staff to provide a
staff member from the Chairman's Office of Legal Counsel to serve as an
advisor to the JSC.
(6) Ensure that the Associate Deputy General Counsel (Military
Justice and Personnel Policy), Office of the General Counsel,
Department of Defense, shall serve as the General Counsel's
representative to the JSC in a non-voting capacity. In addition, the
United States Court of Appeals for the Armed Forces (USCAAF) and the
Legal Counsel to the Chairman of the Joint Chiefs of Staff shall be
invited to provide a staff member to serve as an advisor to the JSC in
a non-voting capacity.
(b) The Secretaries of the Military Departments shall ensure that
the Judge Advocates General of the Military Departments and the Staff
Judge Advocate to the Commandant of the Marine Corps appoint
representatives to the JSC.
(c) The JSC shall further the DoD policy established in section 3
of this part and perform additional studies or other duties related to
the administration of military justice, as the General Counsel of the
Department of Defense may direct. (See DoD Directive 5105.18, ``DoD
Committee Management Program''.\2\) The membership of the JSC shall
consist of one representative of each of the following, who shall
comprise the JSC Voting Group:
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\2\ Available at http://www.dtic.mil/whs/directives.
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(1) The Judge Advocate General of the Army.
(2) The Judge Advocate General of the Navy.
(3) The Judge Advocate General of the Air Force.
(4) The Staff Judge Advocate to the Commandant of the Marine Corps;
and
(5) By agreement with the Department of Homeland Security, the
Chief Counsel, United States Coast Guard.
(d) The JSC Working Group (WG) shall assist the JSC Voting Group in
fulfilling its responsibilities under this part. The WG consists of
non-voting representatives from each of the Services and may include
the representatives from the USCAAF, and the Office of the Legal
Counsel to the Chairman of the Joint Chiefs of Staff.
(e) The JSC chairmanship rotates biennially among the Services in
the following order: The Army, the Air Force, the Marine Corps, the
Navy, and the Coast Guard. Due to its size and manning constraints, a
Coast Guard's request not to be considered for JSC chairmanship shall
be honored. The Military Service of the JSC Chairman shall provide an
Executive Secretary for the JSC.
Sec. 152.5. Implementation.
The foregoing policies and procedures providing guidelines for
implementation of this part, as well as those contained in the
appendix, are intended exclusively for the guidance of military
personnel and civilian employees of the Department of Defense, and the
United States Coast Guard by agreement of the Department of Homeland
Security. These guidelines are intended to improve the internal
[[Page 36917]]
management of the Federal Government and are not intended to create any
right, privilege, or benefit, substantive of procedural, to any person
or enforceable at law by any party against the United States, its
agencies, its officers, or any person.
Appendix A to Part 152--Guidance to the Joint Service Committee (JSCA)
(a) Review the Manual for Courts-Martial. (1) The Joint Service
Committee (JSC) shall conduct an annual review of the Manual for
Courts-Martial (MCM), in light of judicial and legislative
developments in military and civilian practice, to ensure:
(i) The MCM implements the Uniform Code of Military Justice
(UCMJ) and reflects current military practice and judicial
precedent.
(ii) The rules and procedures of the MCM are uniform insofar as
practicable.
(iii) The MCM applies, to the extent practicable, the principles
of law and the rules of evidence generally recognized in the trial
of criminal cases in United States district courts, but which are
not contrary to or inconsistent with the UCMJ.
(iv) The MCM is workable throughout the worldwide jurisdiction
of the UCMJ; and,
(v) The MCM is workable across the spectrum of circumstances in
which courts-martial are conducted, including combat conditions.
(2) During this review, any JSC voting member may propose for
the Voting Group's consideration an amendment to the MCM. Proposed
amendments to the MCM shall ordinarily be referred to the JSC
Working Group (WG) for study. The WG assists the JSC in staffing
various proposals, conducting studies of proposals and other
military justice related topics at the JSC's direction, and making
reports to the JSC. Any proposed amendment to the MCM, if approved
by a majority of the JSC voting members, becomes a part of the
annual review.
(3) The JSC shall prepare a draft of the annual review of the
MCM and forward it to the General Counsel of the Department of
Defense, on or about December 31st. The General Counsel of the
Department of Defense may submit the draft of the annual review to
the Code Committee established by Article 146 of the UCMJ, with an
invitation to submit comments.
(4) The draft of the annual review shall set forth any specific
recommendations for changes to the MCM, including, if not adequately
addressed in the accompanying discussion or analysis, a concise
statement of the basis and purpose of any proposed change. If no
changes are recommended, the draft review shall so state. If the JSC
recommends changes to the MCM, the draft review shall so state. If
the JSC recommends changes to the MCM, the public notice procedures
of paragraph (d)(3) of this appendix are applicable.
(b) Changes to the Manual for Courts-Martial. (1) By January 1st
of each year, the JSC voting members shall ensure that a
solicitation for proposed changes to the MCM is sent to appropriate
agencies within their respective Services that includes, but is not
limited to, the judiciary, the trial counsel and defense counsel
organizations, and the judge advocate general schools.
(2) The Federal Register announcement of each year's annual
review of proposed changes to the MCM shall also invite members of
the public to submit any new proposals for JSC consideration during
subsequent JSC annual reviews.
(3) When the JSC receives proposed changes to the MCM either by
solicitation or Federal Register notice, the JSC shall determine
whether the proposal should be considered under paragraph (a)(2) of
this appendix by determining if one or more of the JSC voting
member(s) intends to sponsor the proposed change. The JSC shall
determine when such sponsored proposals should be considered under
the annual review process, taking into account any other proposals
under consideration and any other reviews or studies directed by the
General Counsel of the Department of Defense.
(4) Changes to the MCM shall be proposed as part of the annual
review conducted under paragraph (a) of this appendix. When earlier
implementation is required, the JSC may send proposed changes to the
General Counsel of the Department of Defense, for coordination under
DoD Directive 5500.1.\3\
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(c) Proposals to Amend the Uniform Code of Military Justice. The
JSC may determine that the efficient administration of military
justice within the Armed Services requires amendments to the UCMJ,
or that a desired amendment to the MCM makes necessary an amendment
to the UCMJ. In such cases, the JSC shall forward to the General
Counsel of the Department of Defense, a legislative proposal to
change the UCMJ. The General Counsel of the Department of Defense
may direct that the JSC forward any such legislative proposal to the
Code Committee for its consideration under Article 146, UCMJ.
(d) Public Notice and Meeting. (1) Proposals to amend the UCMJ
are not governed by the procedures set out in this paragraph. (See
DoD Directive 5105. 18. This paragraph applies only to the JSC
recommendations to amend the MCM.)
(2) It is DoD policy to encourage public participation in the
JSC's review of the MCM. Notice that the Department of Defense,
through the JSC, intends to propose changes to the MCM normally
shall be published in the Federal Register before submission of such
changes to the President. This notice is not required when the
Secretary of Defense in his sole and unreviewable discretion
proposes that the President issue the change without such notice on
the basis that public notice procedures, as set forth in this part,
are unnecessary or contrary to the sound administration of military
justice, or a MCM change corresponding to legislation is
expeditiously required to keep the MCM current and consistent with
changes in applicable law.
(3) The Office of General Counsel of the Department of Defense
shall facilitate publishing the Federal Register notice required
under this paragraph.
(4) The notice under this paragraph shall consist of the
publication of the full text of the proposed changes, including
discussion and analysis, unless the General Counsel of the
Department of Defense determines that such publication in full would
unduly burden the Federal Register, the time and place where a copy
of the proposed change may be examined, and the procedure for
obtaining access to or a copy of the proposed change.
(5) A period of not fewer than 60 days after publication of
notice normally shall be allowed for public comment, but a shorter
period may be authorized when the General Counsel of the Department
of Defense determines that a 60-day period is unnecessary or is
contrary to the sound administration of military justice. The
Federal Register notice shall normally indicate that public comments
shall be submitted to the Executive Secretary of the JSC.
(6) The JSC shall provide notice in the Federal Register and
hold a public meeting during the public comments period, where
interested persons shall be given a reasonable opportunity to submit
views on any of the proposed changes contained in the annual review.
Public proposals and comments to the JSC should include a reference
to the specific provision to be changed, a rational for the proposed
change, and specific and detailed proposed language to replace the
current language. Incomplete submissions might be insufficient to
receive the consideration desired. The JSC shall seek to consider
all views presented at the public meeting as well as any written
comments submitted during the 60-day period when determining the
final form of any proposed amendments to the MCM.
(E) Internal Rules and Record-Keeping. (1) In furthering DoD
policy, studying issues, or performing other duties relating to the
administration of military justice, the JSC may establish internal
rules governing its operation.
(2) The JSC shall create a file system and maintain appropriate
JSC records.
Dated: June 6, 2003.
Patricia L. Toppings,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 03-15574 Filed 6-19-03; 8:45 am]
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