I. Background

The USDA eAuthentication Service provides USDA Agency customers and employees single sign-on capability and electronic authentication and authorization for USDA Web applications and services. Through an online self-registration process, USDA Agency customers and employees can obtain accounts as authorized users that will provide access to USDA resources without needing to re-authenticate within the context of a single Internet session. Once an account is activated, users may use the associated user ID and password that they created to access USDA resources that are protected by eAuthentication. Information stored in the eAuthentication Service may be shared with other USDA components, as well as appropriate Federal, State, local, tribal, foreign, or international government agencies as outlined in the routine uses or authorized by statute. This sharing will take place only after USDA determines that the receiving component or agency has a need to know the information to carry out national security, law enforcement, immigration, intelligence, or other functions consistent with the routine uses set forth in this system of records notice. The revisions to this system of records include renaming the system to be consistent with the Department's naming system; updating the system location, storage policies, storage safeguards, and retention and disposal policies; and the system manager's location; and the notification, record access, and contesting procedures in order to be consistent with the Department's best practices. In addition, the routine uses were amended as follows:

• Former Routine Use 1 was deleted.

• Former Routine Use 2 was renumbered Routine Use 1 and revised.

• Former Routine Use 3 was renumbered Routine Use 2 and revised.

• Former Routine Use 4 was renumbered Routine Use 3 and revised.

• Former Routine Use 5 was renumbered Routine Use 4 and revised.

• Former Routine Use 6 was renumbered Routine Use 5 and revised.

• Routine Use 6 is added to permit disclosure to the Department of Justice in order to represent the government's interest in litigation.

• Routine Use 7 is added to permit disclosure to appropriate agencies, entities, and persons to prevent or address a security breach or suspected security breach.

• Former Routine Use 8 was deleted.

The U.S. Department of Agriculture (USDA) eAuthentication Service provides USDA Agency customers and employees single sign-on capability and electronic authentication and authorization for USDA Web applications and services. Through an online self-registration process, USDA Agency customers and employees can obtain accounts as authorized users that will provide access to USDA resources without needing to re-authenticate within the context of a single Internet session. Once an account is activated, users may use the associated user ID and password that they created to access USDA resources that are protected by eAuthentication. Information stored in the eAuthentication Service may be shared with other USDA components, as well as appropriate Federal, State, local, tribal, foreign, or international government agencies as outlined in the routine uses or authorized by statute. This sharing will take place only after USDA determines that the receiving component or agency has a need to know the information to carry out national security, law enforcement, immigration, intelligence, or other functions consistent with the routine uses set forth in this system of records notice. USDA is publishing the routine uses pursuant to which it may disclose information about individuals to the extent the disclosure is consistent with the purpose for which the information was collected. Routine uses include disclosure to external Web applications upon user request, to other government agencies for law enforcement purposes if the record on its face or in conjunction with other records indicates a violation of law, to a court or adjudicative body if relevant and necessary to appropriate litigation, to a congressional office upon written request of the individual, to other government entities of USDA partners upon user request, to USDA contractors or industry to identify fraud, waste, or abuse to the Department of Justice if relevant and necessary for appropriate litigation, or to agencies, entities, or persons to prevent or remedy security breach. The authority for maintaining this system is derived from: Government Paperwork Elimination Act (GPEA, Pub. L. 105-277) of 1998; Freedom to E-File Act (Pub. L. 106-222) of 2000; Electronic Signatures in Global and National Commerce Act (E-SIGN, Pub. L. 106-229) of 2000; eGovernment Act of 2002 (H.R. 2458).

Probable or potential effects on the privacy of individuals:

Although there is some risk to the privacy of individuals, that risk is outweighed by the benefits to those individuals who will be able to access multiple programs and applications with a single login. In addition, the safeguards in place will protect against unauthorized disclosure. Records are accessible only to individuals who are authorized, and physical and electronic safeguards are employed to ensure security. eAuthentication has a current Authority to Operate obtained via the completion of a Cyber Security Certification and Accreditation (C&A). A satisfactory risk assessment has been performed.

OMB information collection requirements:

OMB information collection approval: OMB No. 0503-0014

FSA maintains the Farm Records File (Automated) USDA/FSA-2 Privacy Act (5 U.S.C. 552a) system of records to collect and manage information about the majority of agricultural producers in the United States. The mission of FSA is to deliver Federal farm program benefits and loans to farm and ranch owners and operators to support farms and ranches, protect the environment, and enhance the marketing of agricultural products. The system of records covers information regarding farm and ranch owners, operators, tenants, borrowers, and other agricultural producers.

FSA proposes to revise the current designations in USDA/FSA-2 from a numbered routine use designation to a lettered designation and to reorder the current routine uses. In addition, FSA proposes to revise 14 existing routine uses, delete 2 unnecessary routine uses, establish 6 new routine uses, and make miscellaneous corrections throughout the system of records notice to update and better reflect the information in the system of records and to update the system of records notice to comply with the Agricultural Risk Protection Act of 2000 (7 U.S.C. 1515(j)), the Federal Funding Accountability and Transparency Act (31 U.S.C. 6101-6104), similar laws, and to comply with new requirements of the confidentiality provisions in section 1619 (7 U.S.C. 8791(b)) of the Food, Conservation, and Energy Act of 2008 (Pub. L. 110-246; referred to as the 2008 Farm Bill). Section 1619(b) of the 2008 Farm Bill prohibits disclosure of information concerning an agricultural operation, farming or conservation practice, or the land itself that agricultural producers or owners of agricultural land provide in order to participate in USDA programs; there are certain limited exceptions.

FSA proposes to (1) revise currently designated routine uses to lettered designations and reorder the routine uses; (2) revise currently designated routine uses 1 through 8, 10 through 23, and 25; (3) delete currently designated routine uses 9 and 24; and (4) add six new routine uses to be designated as routine uses A, C, D, F, Z, and BB. The revised designations and order are shown in the following table, listed in the new order:

FSA is adding new routine use A to establish that FSA will disclose the records to the Department of Justice (including United States Attorney Offices) or other Federal agency when certain conditions are met.

FSA is adding a new routine use C to establish that FSA will disclose the records to the National Archives and Records Administration or to the General Services Administration for records management program purposes pursuant to 44 U.S.C. 2906(a)(1).

FSA is adding a new routine use D to establish that FSA will disclose the records to an agency, organization, or individual that is required for performing audit or oversight operations as authorized by law.

FSA is adding a new routine use F to establish that FSA will disclose the records to contractors and their agents, grantees, experts, consultants, and others performing or working on a contract, grant, cooperative agreement, or other assignment for USDA when certain conditions are met.

FSA is revising the routine use to clarify that disclosure of records to members of Congress can include the names and specifically the correspondence addresses of all producers in the system of records rather than just the name and correspondence address of producers that are recipients of a USDA program payment.

FSA is revising the routine use to clarify that FSA will disclose the names and correspondence addresses of producers who have FSA or Commodity Credit Corporation (CCC) commodity loans to the public when they need to prevent one of those producers from purchasing a commodity that has been placed under a CCC loan. This change specifies that the addresses that we will disclose will be the producer's correspondence address.

FSA is revising the routine use to limit the disclosure of records to only those State-certified or State-licensed appraisers and employees of Federal agencies other than USDA who are actually performing real estate appraisals for USDA. This revision ensures the routine use is consistent with 7 U.S.C. 8791(b) and as such disclosure of information will be limited to the information needed when State-certified or State-licensed appraisers are providing technical or financial assistance with respect to the agricultural operation, agricultural land, or farming or conservation practice (7 U.S.C. 8791(b)(3)(A)). In addition, FSA is removing the specific list of information that was able to be disclosed through the routine use.

FSA is revising the routine use to limit disclosure of records to only Federal, State, local, Tribal agencies, and State universities, or those persons working in cooperation with the USDA Secretary in any Department program. In addition, FSA is removing the specific list of information that was able to be disclosed through the routine use.

FSA is revising the routine use to clarify the disclosure of certain electronic records in this system of records through incorporation of the records into the Comprehensive Information Management System (CIMS). Previously, routine use number 22 referred to RMA and the CIMS contractors as well as Approved Insurance Providers (AIPs), however they did not have the same access to the information in CIMS. The routine use now clearly provides full disclosure to RMA and CIMS contractors; this disclosure is in accordance with 7 U.S.C. 8002(b)(5). The routine use also limits disclosure to AIPs to only the producer reported information that is associated with the AIP's insured producers and that insured producer's farming operations and limits disclosure of Common Land Unit (CLU) information to a defined data set that will be provided only for those States in the AIP plan of operation.

RMA and FSA have executed a memorandum of understanding for sharing program specific data included in USDA/FSA-2, Farm Records File (Automated). As sister Federal agencies, RMA and FSA comply with the Privacy Act and ensure their contractors do the same. Specifically, as agreed to in the Memorandum of Understanding between FSA and RMA for sharing this data for the Data Mining Project, all program data collected and handled by either RMA or FSA will be treated with the full security requirements of current Federal legislation, Office of Management and Budget (OMB) memoranda, USDA departmental regulations, and USDA cyber security policies. Only those employees and contractors (or persons otherwise acting as agents) with a need to know will be provided access to such data. RMA has a current Privacy Impact Assessment for the system of records.

In addition, FSA is removing the specific list of information that was able to be disclosed through the routine use.

FSA is adding a new routine use Z to specify that FSA will disclose the records to RMA contractors for use in the USDA data warehouse and data mining operation. RMA will use the information to search or “mine” existing data records to compare insurance policies and detect individual producers whose policies demonstrate atypical patterns, which sometimes indicate fraudulent activity or possible breach of policy terms. Data mining may also be used to analyze and uncover larger national patterns that may indicate patterns of fraud, waste, and abuse. The data mining operation is authorized by the Agricultural Risk Protection Act of 2000 (7 U.S.C. 1515(j)). This limited disclosure is within FSA's mandate to promote viable agriculture economy, and is necessary and appropriate for effective implementation of USDA programs.

Under this new routine use, RMA may provide data to AIPs, agents, or loss adjusters for the AIP's specific policyholders if analyses produced from the data mining operation reveal:

(1) Material contradictions in data reported to FSA and RMA; or

(2) A possible breach of policy terms.

FSA and RMA have entered into a memorandum of understanding in which RMA accepts responsibility for the security of privacy protected data, including information going to RMA's contractors, partners, and AIPs. RMA has certified that it will adhere to Federal Government data security statutes and regulations and that the data mining operation has a currently operative and approved security Certification and Accreditation in place. RMA has a current Privacy Impact Assessment for the system of records.

All information collected from customers by the AIPs for the Federal crop insurance program, as well as information received by AIPs from RMA, is covered by the provisions of the Privacy Act as the AIPs are contractually obligated to adhere to the Privacy Act. AIPs are accustomed to working with, and protecting, such information.

FSA is revising the routine use to clarify that records will only be disclosed to AIPs (excluding the AIP's insurance agents) and loss adjusters that request the information as required. The requester needs to specify the producer, the producer's identification number, and the type of information being requested. FSA will disclose records as requested that may include: the producer's names, crop name, County FSA Office address, program years, and the last 4 digits of tax ID number. In addition, upon request, FSA may disclose a copy of both current and prior Producer Print and Map Photocopies; Farm Operating Plan for Payment Eligibility Review for an Individual; and Highly Erodible Land Conservation (HELC) and Wetland Conservation (WC) Certification. In addition, as discussed above, FSA is removing the specific categories of information that FSA routinely shares with AIPs, their insurance agents, and loss adjusters.

FSA is adding a new routine use BB to permit FSA to disclose names, locations, and award information identified by the Federal Funding Accountability and Transparency Act of 2006 (31 U.S.C. 6101-6104); section 204 of the E-Government Act of 2002 (44 U.S.C. 3501 note), and the Office of Federal Procurement Policy Act (41 U.S.C. 403-440), or similar laws requiring agencies to make information publicly available concerning Federal financial assistance, including grants, sub-grants, loan awards, cooperative agreements and other financial assistance; and contracts, subcontracts, purchase orders, task orders, and delivery orders. This routine use will explicitly allow FSA to disclose records to the public as specified by those laws.

FSA is revising the routine use to clarify when the records will be disclosed. FSA will disclose the records to a court or adjudicative body in a proceeding not just when any record within the system of records constitutes evidence in a proceeding, or is sought in the course of discovery for records relevant to the subject of the proceeding. For FSA to disclose the information USDA must have reviewed the information and determined that it is both relevant and necessary to the litigation and USDA determined the use is for a purpose that is compatible with the purpose for which FSA collected the records. Further, FSA will only disclose the information when one of the following is a party to the litigation: FSA or any part of FSA, any FSA employee in an official capacity, or any FSA employee in an individual capacity if USDA has agreed to represent the employee, or the U.S. Government.

FSA is deleting routine use number 9. The deleted routine use addressed disclosure of information to the USDA Food Safety and Inspection Service. Because any such disclosure is intra-agency, it is already permitted as specified in the Privacy Act (see 5 U.S.C. 552a(b)(1)) and therefore the disclosure does not require a routine use.

FSA is deleting routine use number 24. The deleted routine use addressed disclosure of information to cooperating Federal, State, and local agencies, including State universities who are qualified to implement hurricane disaster programs or analyze the sugar industry. FSA is deleting routine use 24 because the releases permitted in routine use 24 are now included in the proposed revision to routine use X (which had been routine use 21).

As required by the Privacy Act (specifically 5 U.S.C. 552a(r)) and implemented by the Office of Management and Budget (OMB) Circular A-130, USDA has provided a report of this system of records to the Office of Information and Regulatory Affairs, Office of Management and Budget; the Chairman, Committee on Government Reform and Oversight, House of Representatives; and the Chairman, Committee on Governmental Affairs, United States Senate on ________.

The Farm Service Agency (FSA) maintains the Farm Records File (Automated) USDA FSA-2 Privacy Act (5 U.S.C. 552a) system of records to collect and manage information about the majority of agricultural producers in the United States. The purpose of this system is to deliver Federal farm program benefits and loans to farm and ranch owners and operators to support farms and ranches, protect the environment, and enhance the marketing of agricultural products. This system of records covers information regarding farm and ranch owners, operators, tenants, borrowers, and other agricultural producers.

The purposes of revising the USDA/FSA-2 Farm Records File (Automated) system of records are to: (a) establish new routine uses, (b) make minor corrections to other routine uses, (c) update to meet current Privacy Act requirements, and (d) revise the designations of routine uses from a numbered list to a lettered list and reorder the routine uses. One substantive change is to establish a new routine use to allow us to share data with the Risk Management Agency for the Data Mining Project. Also, section 1619 of the 2008 Farm Bill limits disclosure by the Department of information provided by an agricultural producer or owner of agricultural land concerning the agricultural operation, farming or conservation practices, or the land itself, in order to participate in programs of the Department that is contained in the system.

Specifically, FSA is revising 23 existing routine uses (6 with substantive changes and 17 are only being revised or redesignated), removing 2 unnecessary routine uses, and establishing 6 new routine uses. A “routine use” identifies individuals, groups, and entities to whom USDA may disclose the information in the attached system of records and under what circumstances such disclosures may be made.

The system discloses routinely to various agencies (Federal, State, local), associations, organizations, entities information on USDA programs, operations and services information, to Congress information related to Congressional written requests to USDA, to the Department of Justice information on USDA records for litigations, to the Internal Revenue Service information on USDA employee's tax information, to the Department of Interior information on USDA land data and funding to Native American Indians, to the USDA Risk Management Agency information on USDA data warehouse, data mining operation, and Comprehensive Information Management System, to the National Archives and Records Administration information on USDA records, to FSA employees personnel information, and to contractors information on working performance in certain USDA functions. New routine uses for disclosure of records to share FSA data as described in the system of records are compatible with the purpose of both FSA and RMA activities in using the information.

All information contained in this system is collected and maintained in accordance with the Privacy Act, Title 5, United States Code, Section 552a. The authorities for maintenance of the system are 7 U.S.C. 450j, 450k, 450l, 1281-1393, 1421-1449, 1471-1472; 15 U.S.C. 714-714p; 16 U.S.C. 590a-590q, 1301-1311, 1606, 2101-2111, 2201-2206, 3501, 3801-3845, 4601, 26 U.S.C. 6109; 40 U.S.C. 14101, 14505, and 43 U.S.C. 1592.

The Privacy Act system of records affects the privacy interests of individual producers whose information is contained in them. The privacy interests of the affected individual producers are more than “de minimis,” because the Privacy Act system of records contains detailed information about their farming operations and assets. However, USDA has determined that the routine uses and maintenance of this information are warranted. The privacy interests of these producers are balanced with: (1) The benefits that the producers receive as program recipients and (2) the need of the Government to detect fraud and abuse as it administers USDA programs.

Records in this system of records are safeguarded in accordance with applicable rules and policies, including all applicable USDA automated systems security and access policies. Strict controls have been imposed to minimize the risk of compromising the information that is being stored. Access to the computer systems containing the records in this system of records is limited to those individuals who have a need to know the information for the performance of their official duties and who have appropriate clearances or permissions.

Additionally, records in this system of records are stored electronically on security measure protected (for example, e-authentication, password, restricted access protocol, etc.) databases, electronically on e-media devices (computer hard drive, magnetic disc, tape, digital media, CD, DVD, etc.), and on paper copy. Record storage is located within secured or locked facilities.

A new routine use for disclosure of record to share FSA data with RMA as described in the system of records is compatible with the purpose of both FSA and RMA activities in using the information.

The information collection requests associated with this system were submitted to the Office of Management and Budget (OMB) for Paperwork Reduction Act in the following table, which contained each OMB control number with the expiration date.

The Privacy Act of 1974, as amended (5 U.S.C. 552a), requires agencies to publish in the Federal Register a notice of new or revised systems of records maintained by the agency. A system of records is a group of any records under the control of any agency, from which information is retrieved by the name of an individual or by some identifying number, symbol, or other identifying particular assigned to an individual.

The Animal and Plant Health Inspection Service (APHIS) of the Department of Agriculture (USDA) is proposing to add a new system of records, entitled APHIS Veterinary Services User Fee System (UFS), USDA-APHIS-18. It will be used to maintain a record of activities conducted by the agency pursuant to its responsibilities under the Debt Collection Act of 1982 (31 U.S.C. 3701 et seq. ), the Debt Collection Improvement Act of 1996 (31 U.S.C. 3711 et seq. ), the Food, Agriculture, Conservation and Trade Act of 1990 (Pub. L. 101-624), and the Animal Health Protection Act (7 U.S.C. 8301 et seq. ).

In order to ensure that animals and animal products do not introduce pests or diseases when imported into the United States, the Veterinary Services (VS) program of APHIS performs services related to the importation and exportation of animals, animal products, birds, germ plasm, organisms, and vectors. VS incurs costs associated with inspections and other services, such as the costs of maintaining import centers and quarantine facilities, diagnostic testing, inspectors' salaries, supplies, and other miscellaneous expenses. Any person for whom a service is provided related to the importation, entry, or exportation of an animal is required to pay for the expenses of such services.

The UFS automates the tracking, collection, and processing of fees due to VS for its services provided at remote offices, import centers, port offices, or the National Veterinary Services Laboratories in Ames, Iowa.

Payment of fees due to VS for its services must take place at the location of service at the time the service is provided. The UFS generates an invoice for the fees and provides a receipt for the user. Users may also request approval for an APHIS credit account. The UFS tracks the accuracy of expenditures and collections transactions of credit accounts. Information obtained in the credit account application is entered into the Foundation Financial Information System (FFIS), the official APHIS financial system.

The UFS database contains personally identifiable information about VS customers. It contains the name; the social security number of an individual or taxpayer identification number of a business; the address, including city, county, State, and postal code; the name of the business or organization and its telephone and fax numbers; and an email address. The UFS also contains information about the user's credit account, including charges and payments made, date(s) and type of service, and APHIS credit account information. Routine uses of records maintained in the system include categories of users and the purposes of such uses.

APHIS may routinely share data in the UFS with certain Federal agencies, including the Department of the Treasury, to obtain assistance in identifying and locating individuals who are delinquent in their payments of debt owed to the Federal Government while receiving Federal salary or benefit payments, for the purpose of collecting debts. Data may also be shared with a debt collection agency or a consumer reporting agency when APHIS determines that such referral is appropriate for collecting the debtor's account.

Other routine uses of this information include releases related to investigations pertaining to violations of law or related to litigation. A complete listing of the routine uses for this system is included in the accompanying document that is published along with this notice.

The proposed information collection requests associated with the UFS system have been approved by the Office of Management and Budget under the Paperwork Reduction Act.

A report on the new system of records, required by 5 U.S.C. 552a(r), as implemented by Office of Management and Budget Circular A-130, was sent to the Chairman, Committee on Homeland Security and Governmental Affairs, United States Senate; the Ranking Member, Committee on Homeland Security and Governmental Affairs, United States Senate; the Chairman, Committee on Oversight and Government Reform, House of Representatives; the Ranking Member, Committee on Oversight and Government Reform, House of Representatives; and the Administrator, Office of Information and Regulatory Affairs, Office of Management and Budget.

System name: Veterinary Services User Fee System

The purpose of this new system of records, entitled Veterinary Services User Fee System (UFS), is to support activities and maintain records conducted by the agency pursuant to its mission and responsibilities under the Debt Collection Act of 1982 (31 U.S.C. 3701 et seq.), the Debt Collection Improvement Act of 1996 (31 U.S.C. 3711 et seq.), the Food, Agriculture, Conservation and Trade Act of 1990 (Public Law 101-624), and the Animal Health Protection Act (7 U.S.C. 8301 et seq.).

Within this area of responsibility, the Animal and Plant Health Inspection Service's (APHIS) Veterinary Services (VS) program uses the Veterinary Services User Fee System to automate the tracking, collection, and processing of fees due to VS for its services provided at remote offices, import centers, port offices, or the National Veterinary Services Laboratories in Ames, IA.

In order to ensure that animals and animal products do not introduce pests or diseases when imported into the United States, the VS program of APHIS performs services related to the importation and exportation of animals, animal products, birds, germ plasm, organisms, and vectors. VS incurs costs associated with inspections and other services, such as the costs of maintaining import centers and quarantine facilities, diagnostic testing, inspectors' salaries, supplies, and other miscellaneous expenses. Any person for whom a service is provided related to the importation, entry, or exportation of an animal is required to pay for the expenses of such services.

The UFS generates an invoice for the fees, provides a receipt for the user, and tracks the accuracy of expenditures and collections transactions.

The UFS database contains personally identifiable information about VS customers. It contains name; social security number of an individual or taxpayer identification number of a business; address, including city, county, State, postal code; name of business or organization, telephone and fax numbers; and email address. The UFS also contains information about the user's credit account, including charges and payments made, date(s) and type of service, and APHIS credit account information.

The UFS is physically located in a secured room in APHIS-VS offices in Fort Collins, Colorado, and a backup of the system is maintained in APHIS offices in Riverdale, MD.

In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, records maintained in the system may be disclosed outside the Department of Agriculture (USDA) for 9 routine uses. These routine uses may be described as functional and housekeeping uses.

The housekeeping routine uses include release of information to the appropriate agency charged with investigating a violation or potential violation of law; to the Department of Justice for the purpose of defending the United States in litigation, for use in a judicial or administrative proceeding; to appropriate entities or parties where there is a suspected or confirmed breach of security and the release is reasonably necessary to protect program interests or the interests of members of the public to prevent identity theft and fraud; to contractors or partner agencies for the purpose of seeking out fraud, waste, or abuse; and to the National Archives and Records Administration or to the General Services Administration.

The functional routine uses of the information being collected include release of information to contractors and other parties engaged to assist in administering the program; to certain Federal agencies, including the Department of the Treasury, to obtain assistance in identifying and locating individuals who are delinquent in their payments of debt owed to the Federal Government while receiving Federal salary, tax refunds, or benefit payments, for the purpose of collecting debts; and to a debt collection agency when the Department of Agriculture (USDA) determines that such referral is appropriate for collecting the debtor's account as provided for in 31 U.S.C. 3718.

While these routine uses allow disclosures outside USDA, and so have some impact on privacy of individuals, they are either necessary for carrying the agency mission and minimizing waste, fraud and abuse, are required by law, or benefit the subjects of the records. On balance, the needs of the agency and the benefits to the individuals of these disclosures justify the minimal impact on privacy.

Use of this system, as established, should not result in undue infringement on any individual's right to privacy. VS personnel will use the information in this system to automate the tracking, collection, and processing of fees due to VS for its services. All individuals about whom information in this system is maintained will voluntarily submit the information for the express purpose of utilizing VS services associated with the importation, entry, or exportation of an animal or animal product. These individuals or the industry in which they participate will receive benefits equal to or greater than any potential impact on their privacy.

To address privacy issues and ensure protection of information provided by employees and customers, VS has completed and received USDA approval of a privacy impact assessment (PIA), which has been posted on the USDA Privacy Policy Web site. The PIA provides detailed information about steps taken by the agency to minimize the risk of unauthorized access to the system. These steps include the use of required login and authentication for network access, data encryption in transmission, physical and environmental protections, configuration management, and role-based security and access rights.

The following information collection devices associated with this system have been approved by the Office of Management and Budget under the Paperwork Reduction Act. They have been assigned control numbers, which are listed here with their expiration dates: 0579-0094 (exp. March 2012) and 0579-0055 (exp. March 2014).

Title: Special Nutrition Program Operations Study (SNPOS).

OMB Number: 0584-0562.

Expiration Date of Approval: 09/30/2014.

Type of Information Collection Request: Revision of a currently approved collection.

Abstract: The objective of the Special Nutrition Program Operations Study is to collect timely data on policies, administrative, and operational issues on the Child Nutrition Programs. The ultimate goal is to analyze these data and provide input for new legislation on Child Nutrition Programs as well as to provide pertinent technical assistance and training to program implementation staff.

The Special Nutrition Program Operation Study (SNPOS) will help the Food and Nutrition Service (FNS) better understand and address current policy issues related to Special Nutrition Programs (SNP) operations. The policy and operational issues include, but are not limited to, the preparation of the program budget, development and implementation of program policy and regulations, and identification of areas for technical assistance and training. Specifically, this study will help FNS obtain:

General descriptive data on the Child Nutrition (CN) program characteristics to help FNS respond to questions about the nutrition programs in schools;

Data related to program administration for designing and revising program regulations, managing resources, and reporting requirements; and

Data related to program operations to help FNS develop and provide training and technical assistance for School Food Authorities (SFAs) and State Agencies responsible for administering the CN programs.

The activities to be undertaken subject to this notice include:

Conducting a multi-modal (e.g. paper, Web, and telephone) survey of approximately 1,500 School Food Authority (SFA) Directors.

Conducting a paper survey of all 56 State Agency Child Nutrition Directors.

On-site data collection at 125 School Food Authorities from the School Foodservice Managers.

Affected Public: State, Local and Tribal Governments.

Type of Respondents: 1,500 School Food Authority (SFA) Directors, 125 School Foodservice Managers, and 56 State Child Nutrition Program Directors.

Estimated Total Number of Respondents: 1,681.

Frequency of Response: Once annually.

Estimated Annual Responses: 1,681.

Estimate of Time per Respondent and Annual Burden: Public reporting burden for this collection of information is estimated to average sixty (60) minutes per Self Administered Survey for the SFA Directors and the State Agency Child Nutrition Directors (this includes 30 minutes for data gathering and 30 minutes to respond to the questionnaire). Respondents in the SNOPS include 1,500 School Food Service Directors, 125 School Foodservice Managers involved in the onsite data collection, and 56 State Child Nutrition Program Directors. The annual reporting burden is estimated at 1,681 hours (see table below).

On January 19, 2012, the DOC published and requested comments on proposed amendments to the Privacy Act System of Records titled, at that time, “Investigative and Inspection Records—COMMERCE/DEPT-12.” Upon amendment, the system will be titled “COMMERCE/DEPT-12, OIG Investigative Records.” The amendment serves to generally update the system of records notice by, among other things, updating OIG's practices for electronically storing, retrieving, and safeguarding records in the system and updating OIG routine uses. No comments were received in response to the request for comments. By this notice, the DOC is adopting the proposed amendment to the system as final without changes effective March 14, 2012.

On September 13, 2011, the Department published its affirmative final results in this proceeding. 2 On September 19, 2011, Fushun Jinly and Beijing Fangda, Chengdu Rongguang Carbon Co., Ltd. (“Rongguang”), Fangda Carbon, Fushun Carbon, and Hefei (collectively “the Fangda Group”), mandatory respondents, submitted ministerial error allegations and requested, pursuant to 19 CFR 351.224(c), that the Department correct the alleged ministerial errors in the calculation of Fushun Jinly and the Fangda Group's dumping margins. Muzi, a separate rate company, also submitted ministerial error allegations on September 19, 2011. SGL Carbon LLC and Superior Graphite Co. (“Petitioners”) submitted rebuttal comments on September 23, 2011. Before the Department could take action on the alleged ministerial errors, Petitioners filed a summons and complaint with the U.S. Court of International Trade (“CIT”) challenging the Final Results, which vested the CIT with jurisdiction over the administrative proceeding. On February 22, 2012, the CIT granted the Department leave to publish these amended final results to correct certain ministerial errors. 3

A ministerial error as defined in section 751(h) of the Act includes “errors in addition, subtraction, or other arithmetic function, clerical error resulting from inaccurate copying, duplication, or the like, and any other type of unintentional error which the administering authority considers ministerial.”  4

After analyzing all interested party comments and rebuttals, we have determined, in accordance with section 751(h) of the Act and 19 CFR 351.224(e), that we made certain ministerial errors in our calculations for the Final Results. For a detailed discussion of these ministerial errors, as well as the Department's analysis of the errors and allegations, see the Memorandum to the File, “First Administrative Review of the Antidumping Duty Order on Small Diameter Graphite Electrodes from the People's Republic of China: Analysis of Ministerial Error Allegations,” dated concurrently with this notice (“Ministerial Error Memo”).

Additionally, in the Final Results, we determined that Muzi qualified for a separate rate. 5 Because the cash deposit rate for Muzi was based on the calculated rate of the mandatory respondents, Fushun Jinly and the Fangda Group, and the margins for both companies have changed since the Final Results, the separate rate has changed as well. 6 Finally, we have corrected a misspelling of Muzi's full name. The amended weighted-average dumping margins are as follows:

This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of the antidumping duties occurred and the subsequent assessment of double antidumping duties.

This notice also serves as a reminder to parties subject to administrative protective orders (“APOs”) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation that is subject to sanction.

We will disclose the calculations performed for these amended final results within five days of the date of publication of this notice to interested parties in accordance with 19 CFR 351.224(b).

Pursuant to section 751(a)(2)(A) of the Act, and 19 CFR 351.212(b), the Department will determine, and U.S. Customs and Border Protection (“CBP”) shall assess, antidumping duties on all appropriate entries of subject merchandise in accordance with the amended final results of this review. For assessment purposes, we calculated importer (or customer)-specific assessment rates for merchandise subject to this review. Where appropriate, we calculated an ad valorem rate for each importer (or customer) by dividing the total dumping margins for reviewed sales to that party by the total entered values associated with those transactions. For duty-assessment rates calculated on this basis, we will direct CBP to assess the resulting ad valorem rate against the entered customs values for the subject merchandise. Where appropriate, we calculated a per-unit rate for each importer (or customer) by dividing the total dumping margins for reviewed sales to that party by the total sales quantity associated with those transactions. For duty-assessment rates calculated on this basis, we will direct CBP to assess the resulting per-unit rate against the entered quantity of the subject merchandise. Where an importer (or customer)-specific assessment rate is de minimis ( i.e., less than 0.50 percent), the Department will instruct CBP to assess that importer (or customer's) entries of subject merchandise without regard to antidumping duties, in accordance with 19 CFR 351.106(c)(2). On September 28, 2011, the U.S. Court of International Trade issued a preliminary injunction enjoining liquidation of certain entries which are subject to the antidumping duty order on SDGEs from the PRC, for the POR. 7 Accordingly, the Department will not issue assessment instructions for any entries subject to the above-mentioned injunction to CBP after publication of this notice.

The following cash deposit requirements will be effective retroactively on any entries made on or after September 13, 2011, the date of publication of the Final Results, for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided for by section 751(a)(2)(C) of the Act: (1) For Fushun Jinly, the Fangda Group, and Muzi, the cash deposit rate will be the amended final margin rate shown above in the “Ministerial Errors” section of this notice; (2) for previously investigated or reviewed PRC and non-PRC exporters not listed above that have separate rates, the cash deposit rate will continue to be the exporter-specific rate published for the most recent period; (3) for all PRC exporters of subject merchandise which have not been found to be entitled to a separate rate, the cash deposit rate will be the PRC-wide rate of 159.64 percent; and (4) for all non-PRC exporters of subject merchandise which have not received their own rate, the cash deposit rate will be the rate applicable to the PRC exporters that supplied that non-PRC exporter. These deposit requirements shall remain in effect until further notice.

These amended final results are published in accordance with sections 751(a)(1), 751(h) and 777(i)(1) of the Act.

Pursuant to Executive Order 11625, MBDA was created specifically to foster the establishment and growth of MBEs. MBDA promotes the strategic growth and expansion of MBEs by offering management and technical assistance through a nationwide network of 40 business centers. Among the 40 business centers, there are six NABECs and one satellite office specifically designed to serve the Native American and Alaska Native population providing overall business development assistance services and promoting the growth and competitiveness of eligible Native American and minority-owned businesses. The NABECs are located in the following cities: Mesa, Arizona; El Monte, California; Albuquerque, New Mexico; Tulsa, Oklahoma; Seattle, Washington; Bismarck, North Dakota; and Anchorage, Alaska (satellite office). Each NABEC has a designated geographic area surrounding the state in which it is located, with the following exceptions: the NABEC in Seattle, Washington covers the states of Washington, Oregon, and Idaho; and the NABEC in Bismarck, North Dakota covers the states of North Dakota and South Dakota. The Anchorage, Alaska satellite office is operated from the NABEC located in Mesa, Arizona.

The NABEC services include, but are not limited to, initial consultations and assessments, business technical assistance, education, and access to federal and non-federal procurement and financing opportunities. Specific performance requirements and metrics are used by MBDA to evaluate each project and become a key component of the NABEC program. More information on the NABEC programs can be found on MBDA's Web site at http://www.mbda.gov/main/grantcompetitions.

Under the current program, federal funding for centers ranges from $200,000 to $297,500 and each center has a required cost share of 10 percent of total project cost. All six centers are under three-year cooperative agreements which expire in August 2012. MBDA expects to redesign the current NABEC program with an anticipated start date of September 1, 2012.

The Department's Tribal Consultation Official and Senior Advisor on Native American Affairs, Dee Alexander, will coordinate and schedule tribal consultations in conjunction with the MBDA Office of Business Development (OBD) regarding the business development services available to Native American organizations through MBDA. MBDA has designed the webinars, as part of the tribal consultation schedule, to allow tribal governments and organizations an opportunity to provide information into the planned redesign of the current NABEC program. MBDA intends that the new program will be more cohesive and compatible for collaboration among the funded Centers so the Centers can achieve their program goals, expand operations, and participate in export initiatives and international deals aligned with President Obama's National Export Initiative (NEI).

Participants may register for the webinars online using the links provided below. The registration links may also be found on MBDA's Web site at www.mbda.gov.

• March 13, 2012, 3 p.m.-4 p.m. EDT. Webinar registration site: https://www.mymeetings.com/nc/join.php?i=PW6862819&p=7403577&t=c.

• March 15, 2012, 3 p.m.-4 p.m. EDT. Webinar registration site: https://www.mymeetings.com/nc/join.php?i=PW6862819&p=7403577&t=c.

If there are specific questions you would like MBDA to address during the webinars, please send your question(s) to MBDA no later than March 12, 2012. There will be time for questions from the participants at the end of each Webinar.

The following items are on the Pacific Council agenda, but not necessarily in this order:

Although non-emergency issues not contained in this agenda may come before this Council for discussion, those issues may not be the subject of formal Council action during these meetings. Council action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under Section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take final action to address the emergency.

These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Carolyn Porter at (503) 820-2280 at least 5 days prior to the meeting date.

Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq. ) direct the Secretary of Commerce to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specific geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review.

Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as “ * * * an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”

Section 101(a)(5)(D) of the MMPA established an expedited process by which U.S. citizens can apply for an authorization to incidentally take small numbers of marine mammals by harassment. Section 101(a)(5)(D) further established a 45-day time limit for NMFS' review of an application, followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of marine mammals. Within 45 days of the close of the comment period, NMFS must either issue or deny the authorization.

Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].

On November 2, 2011, NMFS received an application from ORPC requesting an IHA for the take, by Level B harassment, of small numbers of harbor seal ( Phoca vitulina ), gray seal ( Halichoerus grypus ), harbor porpoise ( Phocoena phocoena ), and Atlantic white-sided dolphin ( Lagenorhynchus acutus ) incidental to pile driving activities in Cobscook Bay, Maine. In accordance with the MMPA and implementing regulations, NMFS issued a notice in the Federal Register on January 19, 2012 (77 FR 2701), requesting comments from the public on the proposed IHA.

A complete description of the specified activity may be found in NMFS' proposed IHA notice (77 FR 2701, January 19, 2012) and a summary is provided here. ORPC plans to install foundational piles to support an underwater tidal turbine unit as part of the first phase of a long-term project. The turbine unit is approximately 30 meters (m) (98 feet (ft)) long, 5 m (17 ft) high, and 5 m (17 ft) wide and is attached to a bottom support frame, which holds the unit in place about 4.5 m (15 ft) above the sea floor. The turbine unit weighs about 69,000 pounds (lbs) and is coupled with the bottom support frame to comprise what is called a single-device TidGen TM Power System. At the interface with the seabed, the bottom support frame requires a site-specific design based on the environmental conditions at the deployment area. The foundation design for the single-device TidGen TM Power System is a pile bent arrangement consisting of 10 steel pipe piles. Each foundation pile will have a 76-centimeter (cm) (30 inch (in)) diameter and a 1-cm (half-inch) wall thickness and will rest on bedrock. Piles will vary in length from 15-18 m (50-60 ft) due to bottom sediment depth, but each pile will be driven to the top of bedrock and will protrude 3-5 m (10-15 ft) above the seafloor.

A total of 11 piles (10 for the foundation and one for mounting environmental monitoring equipment) will be driven from a moored barge for the first phase. Piles will be placed about six m (20 ft) apart in two rows of five and the rows will be separated by about 15 m (50 ft). Geotechnical data shows that the TidGen TM device will be located in an area with up to 12 m (40 ft) of marine clay and some thin layers of glacial till overlaying bedrock. Based on this data and extensive soil studies in the area, piles are expected to sink fairly deep into the mud line under their own weight. Piles will be driven the remaining depth using vibratory and impact pile driving procedures from barge-based pile driving equipment. A pile for mounting environmental monitoring equipment will also be installed with the same pile driving equipment. The monitoring pile will be two m (six ft) in diameter, or consist of an array of three piles not greater than 76 cm (30 in) in diameter. The monitoring pile will protrude about six m (20 ft) above the seafloor.

ORPC plans to use an H&M model H-1700 vibratory hammer to drive piles to the extent possible. If additional energy is required to reach bedrock, a Berminghammer model B-3505 diesel impact hammer may be used, with maximum rated impact energy of 21,533 ft-lb. ORPC expects that the need for an impact hammer will be minimal and for very short durations. To lessen the amount and intensity of sound propagation, ORPC is evaluating the use of wooden sound absorption cushions and/or bubble curtains.

ORPC plans to begin pile driving in mid-March, 2012. Pile driving with a vibratory hammer may take up to three minutes per pile and pile driving with an impact hammer may take up to five minutes per pile. Due to strong currents during ebb and flood tides, pile driving will only occur during slack tides. ORPC expects that only one pile will be driven per tide cycle for a total of 7-12 days of pile driving during daylight hours only. NMFS Northeast Region recommends that in-water construction involving pile driving be conducted between November 8 and April 9 to avoid impacts to fisheries resources. However, ORPC may be able to conduct pile driving activities after April 9 if they can demonstrate that noise levels caused by the impact hammer are below NMFS guidelines. Although pile driving is only expected to last 7-12 days, NMFS issued the IHA for a 1-year period to allow for permitting and weather delays. Pile driving will only occur in weather that provides adequate visibility for marine mammal monitoring activities.

The activity will occur in Cobscook Bay, in between Lubec and Eastport, Maine. Piles and other deployment materials will be transported by barge from a staging area at the Eastport Boat School or other local access point. Cobscook Bay has extremely strong tidal currents and notably high tides, creating an extensive intertidal habitat for marine and coastal species. Water depth at the proposed project location is 26 m (85 ft) at mean lower low water. The Bay is considered a relatively intact marine system, as the area has not experienced much industrialization.

For background, sound is a mechanical disturbance consisting of minute vibrations that travel through a medium, such as air or water, and is generally characterized by several variables. Frequency describes the sound's pitch and is measured in hertz (Hz) or kilohertz (kHz), while sound level describes the sound's loudness and is measured in decibels (dB). Sound level increases or decreases exponentially with each dB of change. For example, 10 dB yields a sound level 10 times more intense than 1 dB, while a 20 dB level equates to 100 times more intense, and a 30 dB level is 1,000 times more intense. Sound levels are compared to a reference sound pressure (micro-Pascal) to identify the medium. For air and water, these reference pressures are “re: 20 μPa” and “re: 1 μPa,” respectively. Root mean square (RMS) is the quadratic mean sound pressure over the duration of an impulse. RMS is calculated by squaring all of the sound amplitudes, averaging the squares, and then taking the square root of the average (Urick, 1975). RMS accounts for both positive and negative values; squaring the pressures makes all values positive so that they may be accounted for in the summation of pressure levels (Hastings and Popper, 2005). This measurement is often used in the context of discussing behavioral effects, in part because behavioral effects, which often result from auditory cues, may be better expressed through averaged units rather than by peak pressures.

Source levels for the vibratory and impact hammer are expected to be 175 dB and 190 dB, respectively. Assuming a practical spreading loss of 15 log R, OPRC estimates that the 180-dB (Level A harassment) isopleth for the impact hammer could be as far as 100 m (328 ft). The 120-dB (Level B harassment for continuous sound sources) isopleth for the vibratory hammer could be as far as 4,600 m (2.5 mi).

A notice of receipt and request for public comment on the application and proposed authorization was published on January 19, 2012 (77 FR 2701). During the 30-day public comment period, NMFS only received comments from the Marine Mammal Commission (Commission).

Comment 1: The Commission recommends that NMFS defer issuance of the IHA until NMFS evaluates the potential effects of construction, installation, and subsequent operation of the tidal turbine. Furthermore, the Commission recommends that NMFS then use that information as a basis for (1) determining the potential for marine mammal injury or mortality, (2) designing mitigation and monitoring measures to minimize injury and mortality caused by direct interactions, and (3) determining whether the anticipated takes are expected to have negligible impacts on marine mammal species and stocks.

Response: NMFS disagrees that issuance of the IHA should be deferred. ORPC requested authorization for incidental takings subject to a specified activity (i.e., pile driving). NMFS has not received an IHA request for incidental takings subject to further construction, installation, or subsequent operation of the tidal turbine. However, NMFS did analyze the cumulative effects of ongoing and future Cobscook Bay activities in an Environmental Assessment (EA), which included the eventual operation of ORPC's tidal turbine. The environmental effects of ORPC's long-term project were also analyzed in an EA prepared by the Federal Energy Regulatory Commission and the Department of Energy (FERC and DOE, 2012). In summary, an assortment of mitigation and monitoring measures are expected to minimize impacts to marine species and the surrounding environment. To date, information on currently operating tidal turbines does not suggest the need for an incidental take authorization. However, if ORPC determines that there is a potential for further marine mammal harassment, they may choose to apply for another authorization.

Comment 2: If an IHA is issued, the Commission recommends that NMFS authorize the taking of harbor seals and gray seals by both in-water and in-air harassment. If authorization does not include both in-water and in-air harassment, the Commission recommends that NMFS require ORPC to shutdown pile driving activities whenever a seal is observed within the in-air Level B harassment zone.

Response: As explained in the notice of proposed IHA (77 FR 2701, January 19, 2012), elevated in-air sound levels are not a concern because the nearest significant haul-out is more than six nautical miles (nmi) away. ORPC has not observed any pinnipeds hauled out within the proposed project area during their 3 years of conducting visual observations in Cobscook Bay. Any pinniped observed swimming or diving within 152 m (500 ft) of the pile driving location would be considered to be taken by elevated underwater sounds from pile driving; therefore, there is no additional need to shutdown any time a pinniped is within the in-air Level B harassment zone.

Comment 3: The Commission recommends that NMFS require ORPC to monitor the presence and behavior of marine mammals for 30 minutes before, during, and 30 minutes after all impact and vibratory pile driving activities.

Response: As detailed in the notice of proposed IHA (77 FR 2701, January 19, 2012) and the mitigation and monitoring sections of this notice, ORPC is required to monitor the exclusion zone for 30 minutes before, during, and 30 minutes after all impact pile driving. ORPC is also required to monitor the larger Level B harassment zone on at least three days of vibratory pile driving. NMFS believes that this amount of monitoring is sufficient to prevent the injury or mortality of marine mammals and to document behavioral responses of marine mammals to pile driving.

Comment 4: The Commission recommends that NMFS require ORPC to record distances to observed marine mammals and document their behavior within the entirety of the Level B harassment zone for vibratory pile driving.

Response: As detailed in the notice of proposed IHA (77 FR 2701, January 19, 2012) and the mitigation and monitoring sections of this notice, ORPC is required to monitor the Level B harassment zone on at least three days of vibratory pile driving to validate take estimates and evaluate the behavioral impacts pile driving has on marine mammals out to the Level B harassment isopleth. Protected species observers will record species, behaviors, and responses to pile driving within this area.

Comment 5: The Commission recommends that NMFS require ORPC to monitor before, during, and after all soft-starts of vibratory and impact pile driving activities to gather the data needed to determine the effectiveness of this technique as a mitigation measure.

Response: NMFS disagrees that ORPC needs to monitor for marine mammals before, during, and after all soft-starts. Protected species observers will be on-site and monitoring for marine mammals at least 30 minutes before, during, and 30 minutes after all impact driving (including during soft-starts) and on at least three days of vibratory pile driving. NMFS believes that monitoring for all impact driving and on at least three days of vibratory pile driving will allow for adequate interpretation of how marine mammals are behaving in response to pile driving, including during soft-starts.

Marine mammals with known presence in this region of Cobscook Bay are the harbor seal, grey seal, harbor porpoise, and Atlantic white-sided dolphin. ORPC has been conducting incidental visual observations of marine mammals in Cobscook Bay since 2007, for a total effort of 252 4-hr observational periods over 222 days. During this time, marine mammal observers have recorded 57 seals, 47 harbor porpoises, and two Atlantic white-sided dolphins (Table 1). No observations of any whale species have been made in Cobscook Bay by ORPC since monitoring began in 2007. In addition, a review of available databases does not indicate any recorded whale sightings in Cobscook Bay. Other species that may possibly occur in the vicinity of the proposed activity include North Atlantic right whale ( Eubalaena glacialis ), humpback whale ( Megaptera novaengliae ), fin whale ( Balaenoptera borealis ), minke whale ( Balaenoptera acutorostrata ), and sei whale ( Balaenoptera borealis ). However, these five species are generally associated with open ocean habitats and occur in more offshore locations. NMFS has concluded that the specified activity will not impact these five species and they are not discussed further. Information on the harbor seal, grey seal, harbor porpoise, and Atlantic white-sided dolphin was provided in the January 19, 2012 Federal Register notice (77 FR 2701).

Elevated in-water sound levels from pile driving in the project area may temporarily impact marine mammal behavior. A detailed description of potential impacts to marine mammals can be found in NMFS' January 19, 2012 Federal Register notice (77 FR 2701) and is summarized here.

Marine mammals are continually exposed to many sources of sound. For example, lightning, rain, sub-sea earthquakes, and animals are natural sound sources throughout the marine environment. Marine mammals produce sounds in various contexts and use sound for various biological functions including, but not limited to, (1) social interactions; (2) foraging; (3) orientation; and (4) predator detection. Interference with producing or receiving these sounds may result in adverse impacts. Audible distance or received levels will depend on the sound source, ambient noise, and the sensitivity of the receptor (Richardson et al., 1995). Marine mammal reactions to sound may depend on sound frequency, ambient sound, what the animal is doing, and the animal's distance from the sound source (Southall et al., 2007).

Marine mammals may experience temporary or permanent hearing impairment when exposed to loud sounds. Hearing impairment is classified by temporary threshold shift (TTS) and permanent threshold shift (PTS). There are no empirical data for when PTS first occurs in marine mammals; therefore, it must be estimated from when TTS first occurs and from the rate of TTS growth with increasing exposure levels. PTS is likely if the animal's hearing threshold is reduced by ≥ 40 dB of TTS. PTS is considered auditory injury (Southall et al., 2007) and occurs in a specific frequency range and amount. Irreparable damage to the inner or outer cochlear hair cells may cause PTS; however, other mechanisms are also involved, such as exceeding the elastic limits of certain tissues and membranes in the middle and inner ears and resultant changes in the chemical composition of the inner ear fluids (Southall et al., 2007). Due to proposed mitigation measures and source levels in the proposed project area, NMFS does not expect marine mammals to be exposed to PTS levels.

TTS is the mildest form of hearing impairment that can occur during exposure to a loud sound (Kryter, 1985). While experiencing TTS, the hearing threshold rises and a sound must be louder in order to be heard. TTS can last from minutes or hours to days, but is recoverable. TTS also occurs in specific frequency ranges; therefore, an animal might experience a temporary loss of hearing sensitivity only between the frequencies of 1 and 10 kHz, for example. The amount of change in hearing sensitivity is also variable and could be reduced by 6 dB or 30 dB, for example. Recent literature highlights the inherent complexity of predicting TTS onset in marine mammals, as well as the importance of considering exposure duration when assessing potential impacts (Mooney et al., 2009a, 2009b; Kastak et al., 2007). Generally, with sound exposures of equal energy, quieter sounds (lower SPL) of longer duration were found to induce TTS onset more than louder sounds (higher SPL) of shorter duration (more similar to subbotom profilers). For sound exposures at or somewhat above the TTS-onset threshold, hearing sensitivity recovers rapidly after exposure to the sound ends. Southall et al. (2007) considers a 6 dB TTS (i.e., baseline thresholds are elevated by 6 dB) to be a sufficient definition of TTS-onset. NMFS considers TTS as Level B harassment that is mediated by physiological effects on the auditory system; however, NMFS does not consider onset TTS to be the lowest level at which Level B harassment may occur.

Behavioral responses to sound are highly variable and context-specific. An animal's perception of and response to (in both nature and magnitude) an acoustic event can be influenced by prior experience, perceived proximity, bearing of the sound, familiarity of the sound, etc. (Southall et al., 2007). If a marine mammal does react briefly to an underwater sound by changing its behavior or moving a small distance, the impacts of the change are unlikely to be significant to the individual, let alone the stock or populations. However, if a sound source displaces marine mammals from an important feeding or breeding area for a prolonged period, impacts on individuals and populations could be significant (e.g., Lusseau and Bejder, 2007; Weilgart, 2007). Based on the limited amount of pile driving and use of vibratory pile driving, any impacts to marine mammal behavior from ORPC's pile driving operations are expected to be temporary. Any disturbance to marine mammals is likely to be in the form of temporary avoidance or alteration of opportunistic foraging behavior near the pile driving location.

The studies that address responses of mid-frequency cetaceans (such as Atlantic white-sided dolphins) to non-pulse sounds (like vibratory pile driving) include data gathered both in the field and the laboratory and related to several different sound sources (of varying similarity to chirps) including: pingers, drilling playbacks, ship and ice-breaking noise, vessel noise, acoustic harassment devices (AHDs), acoustic deterrent devices (ADDs), mid-frequency active sonar, and non-pulse bands and tones. While none of these studies are specific to Atlantic white-sided dolphins, they include species with similar auditory bandwidths. Southall et al. (2007) were unable to come to a clear conclusion regarding the results of these studies. In some cases animals in the field showed significant responses to received levels between 90 and 120 dB, while in other cases these responses were not seen in the 120 to 150 dB range. This disparity is likely due to contextual variables beyond received level and species differences.

The studies that address responses of high-frequency cetaceans (such as the harbor porpoise) to non-pulse sounds include data gathered both in the field and the laboratory and related to several different sound sources (of varying similarity to chirps), including: pingers, AHDs, and various laboratory non-pulse sounds. All of these data were collected from harbor porpoises. Southall et al. (2007) concluded that the existing data indicate that harbor porpoises are likely sensitive to a wide range of anthropogenic sounds at low received levels (around 90 to 120 dB), at least for initial exposures. All recorded exposures above 140 dB induced profound and sustained avoidance behavior in wild harbor porpoises (Southall et al., 2007). Rapid habituation was noted in some but not all studies.

There are limited data available on the behavioral effects of non-pulse noise on pinnipeds while underwater; however, field and captive studies to date collectively suggest that pinnipeds do not react strongly to exposures between 90 and 140 dB re: 1 μPa; no data exist from exposures at higher levels.

Southall et al. (2007) also addressed behavioral responses of marine mammals to impulse sounds (like impact pile driving). The studies that address the responses of mid-frequency cetaceans to impulse sounds include data gathered both in the field and the laboratory and related to several different sound sources (of varying similarity to boomers), including: small explosives, airgun arrays, pulse sequences, and natural and artificial pulses. The data show no clear indication of increasing probability and severity of response with increasing received level. Behavioral responses seem to vary depending on species and stimuli. Data on behavioral responses of high-frequency cetaceans to multiple pulses is not available. Although individual elements of some non-pulse sources (such as pingers) could be considered pulses, it is believed that some mammalian auditory systems perceive them as non-pulse sounds (Southall et al., 2007).

The studies that address the responses of pinnipeds in water to impulse sounds include data gathered in the field and related to several different sources, including: small explosives, impact pile driving, and airgun arrays. Quantitative data on reactions of pinnipeds to impulse sounds is limited, but a general finding is that exposures in the 150 to 180 dB range generally have limited potential to induce avoidance behavior (Southall et al., 2007).

As discussed below, impacts to marine mammal reproduction are not anticipated because there are no known pinniped rookeries within the proposed project area and Cobscook Bay is not a known breeding ground for cetaceans. Marine mammals may avoid the area around the hammer, thereby reducing their exposure to elevated sound levels. NMFS expects any impacts to marine mammal behavior to be temporary, Level B harassment (for example, avoidance or alteration of behavior). ORPC conservatively assumes 12 pile driving days may occur over the validity of the IHA. Marine mammal injury or mortality is not likely, as the 180 dB isopleth (NMFS' Level A harassment threshold for cetaceans) for the impact hammer is expected to be no more than a 100-m (328 ft) radius. ORPC proposes to continuously monitor a 152-m (500-ft) area around the sound source and cease all pile driving if a marine mammal is observed nearing or within this 152-m (500-ft) isopleth.

No permanent detrimental impacts to marine mammal habitat are expected to result from pile driving. Pile driving (resulting in temporary ensonification) may impact prey species and marine mammals by causing avoidance or abandonment of the area; however these impacts are expected to be local and temporary. The benthic impact of the foundation for this phase of the proposed project will be about 10 m 2 (113 ft 2 ) during pile placement. While the foundation frame will take up a limited amount of space on the seafloor, there are no expected adverse impacts to marine mammal habitat.

In order to issue an IHA under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses. There are no subsistence hunting grounds within the action area and since the activity will not result in marine mammal mortality, the availability of marine mammals for subsistence uses will not be impacted. ORPC will implement the following mitigation measures to minimize adverse impacts to marine mammals:

When using a diesel impact hammer to “proof” piles, ORPC will use wooden sound absorption cushions and/or a bubble curtain to reduce hydroacoustic sound levels and avoid the potential for marine mammal injury. Based on previous studies, sound attenuation devices are expected to reduce sound levels by at least 5 dB.

The purpose of the proposed exclusion zone is to prevent Level A harassment (injury) of any marine mammal species. Current NMFS practice regarding exposure of marine mammals to anthropogenic sound is that in order to avoid the potential for injury (PTS), cetaceans and pinnipeds should not be exposed to impulsive sounds of 180 and 190 dB or above, respectively. These levels are considered precautionary as it is likely that more intense sounds would be required before injury would actually occur (Southall et al., 2007). During all in-water impact pile driving, ORPC will establish a preliminary marine mammal exclusion zone around each pile to avoid exposure to sounds at or above 180 dB. The preliminary exclusion zone will have a radius of 152 m (500 ft). This encompasses the initial estimate of the 180 dB isopleth, where injury could occur, plus a 52-m (171-ft) buffer zone. Once hydroacoustic monitoring is conducted, the exclusion and buffer zone may be adjusted accordingly so that marine mammals are not exposed to Level A harassment sound pressure levels. The exclusion zone will be monitored continuously during impact pile driving to ensure that no marine mammals enter the area. Protected species observers (PSOs) will be stationed on two observer boats, one 152 m (500 ft) upstream and one 152 m (500 ft) downstream of the installation site. One observer on each vessel will survey the exclusion zone, while the second observer will conduct behavioral monitoring outwards to a distance of 1 nmi. Several floats anchored at 152 m (500 ft) and 305 m (1,000 ft) will be located around the installation site to help identify when marine mammals are entering or within the exclusion zone. An exclusion zone for vibratory pile driving or installation of concrete piles is unnecessary as source levels will not exceed the Level A harassment threshold.

If a PSO sees a marine mammal within or approaching the exclusion zone prior to start of impact pile driving, the observer will notify the on-site project lead (or other authorized individual) who will then be required to delay pile driving until the marine mammal has moved 305 m (1,000 ft) from the sound source or if the animal has not been resighted within 30 minutes. If a marine mammal is sighted within or on a path toward the 152-m (500-ft) exclusion zone during pile driving, pile driving will cease until that animal has moved 305 m (1,000 ft) and is on a path away from the exclusion zone or 30 minutes has lapsed since the last sighting.

A “soft-start” technique will be used at the beginning of each pile installation to allow any marine mammal that may be in the immediate area to leave before the pile hammer reaches full energy. For vibratory pile driving, the soft-start procedure requires contractors to initiate noise from the vibratory hammer for 15 seconds at 40-60 percent reduced energy followed by a 1-minute waiting period. The procedure will be repeated two additional times before full energy may be achieved. For impact hammering, contractors will be required to provide an initial set of three strikes from the impact hammer at 40 percent energy, followed by a 1-minute waiting period, then two subsequent three-strike sets. Soft-start procedures will be conducted any time hammering ceases for more than 30 minutes.

In order to issue an IHA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth “requirements pertaining to the monitoring and reporting of such taking”. The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate that requests for IHAs must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present.

Hydroacoustic monitoring will be performed at the initial installation of each pile driving method to ensure that the harassment isopleths are not extending past the calculated distances described in this notice and the proposed IHA (77 FR 2701, January 19, 2012) and to assess the efficiency of the sound attenuation devices. ORPC will designate two biologically-trained, on-site PSOs, approved in advance by NMFS, to monitor the exclusion zone (preliminarily set at 152 m [500 ft]) for marine mammals 30 minutes before, during, and 30 minutes after all impact pile driving activities and call for shut down if any marine mammal is observed within or approaching the exclusion zone. These PSOs will be positioned on two vessels, one anchored upstream and one anchored downstream at 152 m (500 ft) on the edge of the exclusion zone. One observer on each vessel will survey inwards toward the pile driving site and the second observer will conduct behavioral monitoring outwards to a distance of 1 nmi during all impact pile driving. Additional PSOs will be stationed at the Level B harassment isopleth (preliminarily set at 4,600 m [2.5 mi]) on at least three days of vibratory pile driving to validate take estimates and evaluate the behavioral impacts pile driving has on marine mammals out to the Level B harassment isopleth.

PSOs will be provided with the equipment necessary to effectively monitor for marine mammals (for example, high-quality binoculars, compass, and range-finder as well as a digital SLR camera with telephoto lens and video capability) in order to determine if animals have entered into the exclusion zone or Level B harassment isopleth and to record species, behaviors, and responses to pile driving. If hydroacoustic monitoring indicates that threshold isopleths are greater than originally calculated, ORPC will contact NMFS within 48 hours and make the necessary adjustments. Likewise, if threshold isopleths are actually less than originally calculated, downward adjustments may be made to the exclusion and buffer zone. PSOs will submit a report to NMFS within 90 days of completion of pile driving. The report will include data from marine mammal sightings (such as date, time, location, species, group size, and behavior), any observed reactions to construction, distance to operating pile hammer, and construction activities occurring at time of sighting and environmental data for the period (wind speed and direction, Beaufort sea state, cloud cover, and visibility).

In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by the IHA, such as an injury (Level A harassment), serious injury, or mortality, ORPC will immediately cease the specified activities and immediately report the incident to the Acting Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, at 301-427-8401 and/or by email to Tammy.Adams@noaa.gov and Michelle.Magliocca@noaa.gov and the Northeast Regional Stranding Coordinator ( Mendy.Garron@noaa.gov ). The report must include the following information:

• Time, date, and location (latitude/longitude) of the incident;

• Name and type of vessel involved;

• Vessel's speed during and leading up to the incident;

• Description of the incident;

• Status of all sound source use in the 24 hrs preceding the incident;

• Water depth;

• Environmental conditions ( e.g., wind speed and direction, Beaufort sea state, cloud cover, and visibility);

• Description of all marine mammal observations in the 24 hrs preceding the incident;

• Species identification or description of the animal(s) involved;

• Fate of the animal(s); and

• Photographs or video footage of the animal(s) (if equipment is available).

Activities will not resume until NMFS is able to review the circumstances of the prohibited take. NMFS will work with ORPC to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. ORPC may not resume their activities until notified by NMFS via letter, email, or telephone.

In the event that ORPC discovers an injured or dead marine mammal, and the lead PSO determines that the cause of the injury or death is unknown and the death is relatively recent (i.e., in less than a moderate state of decomposition as described in the next paragraph), ORPC will immediately report the incident to the Acting Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, at 301-427-8401, and/or by email to Tammy.Adams@noaa.gov and Michelle.Magliocca@noaa.gov and the Northeast Regional Stranding Coordinator at 978-281-9300 ( Mendy.Garron@noaa.gov ). The report must include the same information identified in the paragraph above. Activities may continue while NMFS reviews the circumstances of the incident. NMFS will work with ORPC to determine whether modifications in the activities are appropriate.

In the event that ORPC discovers an injured or dead marine mammal, and the lead PSO determines that the injury or death is not associated with or related to the activities authorized in the IHA ( e.g., previously wounded animal, carcass with moderate to advanced decomposition, or scavenger damage), ORPC will report the incident to the Acting Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, at 301-427-8401, and/or by email to Tammy.Adams@noaa.gov and Michelle.Magliocca@noaa.gov and the NMFS Northeast Stranding Hotline (866-755-6622) and/or by email to the Northeast Regional Stranding Coordinator ( Mendy.Garron@noaa.gov ), within 24 hrs of the discovery. ORPC will provide photographs or video footage (if available) or other documentation of the stranded animal sighting to NMFS and the Marine Mammal Stranding Network. Activities may continue while NMFS reviews the circumstances of the incident.

Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as:

Based on the application and subsequent analysis, the impact of the described pile driving activities, in conjunction with the required mitigation and monitoring measures, may result in, at most, short-term modification of behavior by small numbers of marine mammals within the action area. Marine mammals may avoid the area or temporarily alter their behavior at time of exposure. Current NMFS practice regarding exposure of marine mammals to anthropogenic noise is that in order to avoid the potential for injury (PTS), cetaceans and pinnipeds should not be exposed to impulsive sounds of 180 and 190 dB or above, respectively. This level is considered precautionary as it is likely that more intense sounds would be required before injury would actually occur (Southall et al., 2007). Potential for behavioral Level B harassment is considered to have occurred when marine mammals are exposed to sounds at or above 160 dB for impulse sounds (such as impact pile driving) and 120 dB for non-pulse noise (such as vibratory pile driving). These levels are also considered precautionary.

Distances to NMFS' harassment thresholds were calculated based on the expected sound levels at each source and the expected attenuation rate of sound (see 77 FR 2701, January 19, 2012). The 100-m (328-ft) distance to the Level A harassment threshold provides protected species observers plenty of time and adequate visibility to prevent marine mammals from entering the area during impact pile driving. This will prevent marine mammals from being exposed to sound levels that reach the Level A harassment threshold.

Based on ORPC's marine mammal monitoring records and the maximum number of pile driving days, NMFS authorized the take by Level B harassment of 72 total seals (because they cannot always be identified to the species-level), 72 harbor porpoises, and two Atlantic white-sided dolphins. These numbers are extremely conservative and indicate the maximum number of animals expected to occur within the largest Level B harassment isopleth 4,600 m (2.5 mi). For more detailed information on how these numbers were calculated, see the notice of proposed IHA (77 FR 2701, January 19, 2012).

NMFS has defined “negligible impact” as “* * * an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.” In making a negligible impact determination, NMFS considers a number of factors which include, but are not limited to, the number of anticipated injuries or mortalities (none of which would be authorized here), number, nature, intensity, and duration of Level B harassment, and the context in which takes occur.

As described above, marine mammals will not be exposed to activities or sound levels which could result in injury (PTS), serious injury, or mortality. Pile driving will occur in relatively shallow coastal waters of Cobscook Bay. The project area is not considered significant habitat for marine mammals. The closest significant pinniped haul out is more than six nmi away, which is well outside the project area's largest harassment zone. Marine mammals approaching the action area will likely be traveling or opportunistically foraging. The amount of take NMFS authorized, is considered small (less than one percent) relative to the estimated populations of 91,000 harbor seals, 250,000 gray seals, 89,054 harbor porpoises, and 63,000 Atlantic white-sided dolphins. Marine mammals may be temporarily impacted by pile driving noise. However, marine mammals are expected to avoid the area, thereby reducing exposure and impacts, and mitigation will prevent injury. Pile driving activities are expected to occur for about 7-12 days total. There is no anticipated effect on annual rates of recruitment or survival of affected marine mammals. Based on the application and subsequent analysis, the impact of the described pile driving operations may result in, at most, short-term modification of behavior by small numbers of marine mammals within the action area. Marine mammals may avoid the area or temporarily alter their behavior at time of exposure.

Based on the analysis contained in this notice, the proposed IHA notice (77 FR 2701, January 19, 2012), and the IHA application, and taking into consideration the implementation of the mitigation and monitoring measures, NMFS has determined that ORPC's pile driving activities will result in the incidental take of small numbers of marine mammals, by Level B harassment only, and that the total taking will have a negligible impact on the affected species or stocks.

There are no relevant subsistence uses of marine mammals implicated by this action.

No marine mammal species listed under the ESA are anticipated to occur within the action area. Therefore, section 7 consultation under the ESA is not required.

In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ), as implemented by the regulations published by the Council on Environmental Quality (40 CFR parts 1500-1508), and NOAA Administrative Order 216-6, NMFS prepared an Environmental Assessment (EA) to consider the environmental impacts of issuance of a 1-year IHA and made a finding of no significant impact FONSI. The EA and FONSI are available on the NMFS Web site listed in the beginning of this document (see ADDRESSES ).

Background

On October 19, 2011 (76 FR 65062-65093), the JSC published a Notice of Proposed Amendments to the Military Rules of Evidence contained within the Manual for Courts-Martial and a Notice of Public Meeting to receive comments on these proposals. The public meeting was held on November 17, 2011. No member of the public appeared. Several comments were received via electronic mail and were considered by the JSC.

The JSC considered each public comment, and after making minor modifications, the JSC is satisfied that the proposed amendments are appropriate to implement. The JSC will forward the public comments and proposed amendments to the Department of Defense.

The public comments regarding the proposed changes follow:

a. Commenter recommended that the JSC prepare and include comments for each M.R.E. similar to Committee Notes accompanying F.R.E. The notes contained in the Appendix 22, Analysis of the Military Rules of Evidence, are intended to serve the same purpose as the Committee Notes. In addition to the analysis in the MCM, the JSC prepared an Executive Summary of the amendments to the M.R.E. and a Word document using color-coded text and comments to explain amendments. Updated analysis is being prepared by the JSC and will be included in the next Executive Order; however, the analysis currently in the MCM will suffice until the MCM is updated to include both the amended M.R.E. and its amended analysis (projected in 2013).

b. Commenter recommended that the revised M.R.E. 412 not limit its purpose to the privacy interests of a single affected victim. JSC removed reference to victim “privacy” and instead refers to M.R.E. 403 (military judge determines what evidence is relevant and material and whether its probative value outweighs the danger of unfair prejudice). A new discussion lists “ordinary countervailing interests” for the military judge to consider, including, but not limited to, harassment of a victim.

c. Commenter recommended renaming the title of M.R.E. 412(c)(3) from “Privacy” to “Order” because privacy is no longer part of the M.R.E. 412(c)(3) balancing test. The JSC renamed the subsection from “Privacy” to “Scope” because it addresses the scope of admissible evidence as determined by the military judge's order.

d. Commenter recommended adding a more specific definition of “sexual behavior” in M.R.E. 412 to give practitioners specific guidance on what behavior is intended by the rule. The JSC rejected this proposal in recognition that the term “sexual behavior” should be left intentionally broad as it is designed to protect acts beyond those which can reasonably be described in a narrow definition.

e. Commenter recommended revising the discussion under M.R.E. 412(c)(3) to eliminate reference to a victim's privacy rights in conformity with United States v. Gaddis, which held that the accused's constitutional right to present certain evidence cannot be limited by a victim's privacy interests. The JSC addressed this concern by amending subsection (c)(3) similar to a its 2005 version and by revising the discussion in conformity with recent jurisprudence to properly reflect the balance between an accused's constitutional rights and the countervailing interests that must be weighed before admitting evidence.

f. Commenter recommended using the words “pursuant to statutory authority” in M.R.E. 807. JSC disagreed and defined the applicable provisions when hearsay would not apply to “a federal statue applicable in trial by courts-martial.”

g. Commenter recommended that M.R.E. 804(b)(3)(B) be amended to include circumstances in which evidence is presented to inculpate the accused, rather than limiting it to evidence presented to exculpate the accused. JSC disagreed, and retained the provision in the rule, intended to differentiate from the Federal Rule.

h. Commenter recommended removing the phrase “on the merits” from proposed M.R.E. 301(c) to ensure limited waiver of accused's right against self-incrimination when testifying applies during sentencing. The JSC removed “on the merits,” making the rule consistent with the prior 301(e) which did not have such language, and preventing unintentional limitation of the rule to findings.

i. Commenter recommended removing the word “allegedly” from proposed M.R.E. 304(b)(2) because its usage in this section is unnecessarily confusing when “allegedly” is not used elsewhere. The JSC removed “allegedly” from 304(b)(2) and added it to 304(b), capturing the intent of the rule to preclude use of challenged evidence unless it met one of three criteria. The JSC also removed the word “derivative” from 304(b)(2) to eliminate internal contradiction within the exception, and make the rule consistent with its prior iteration.

j. Commenter recommended removal of proposed M.R.E. 704(b) which precludes a psychiatrist from offering an opinion about the defendant's responsibility. JSC agreed and removed the proposed subdivision which is consistent with the drafting of current M.R.E. 704.

k. Commenter recommended replacing the word “belief” with the word “suspicion” in M.R.E. 314(f)(2). JSC agreed; amended accordingly; and added discussion to address stop and frisk.

l. Commenter recommended that the word “waiver” be replaced with the word “forfeiture” in M.R.E. 304(f)(1), 311(d)(2)(A), and 317(d)(2). JSC agreed and amended accordingly.

c. Commenter recommended amending R.C.M. 704(b) to clarify what is meant by “future crimes.” JSC will consider this recommendation as a new proposal as it outside the scope of the F.R.E. conforming stylistic revisions and would require more detailed research.

m. Commenter noted that amended language in M.R.E 402(a)(2) and M.R.E. 802 was potentially confusing. In conformity with F.R.E. amendment, the JSC had changed “acts of Congress” to “federal statute.” As a result of the comment, the text “members of the armed forces” and “trial by court-martial” was included in the M.R.E. to clearly delineate the scope of the Rules.

n. Commenter recommended that M.R.E. 611(d)(3) be amended to satisfy the constitutional standard for confrontation in Maryland v. Craig, 497 U.S. 836 (1990). JSC added the three-part-test of U.S. v. Pack, 65 M.J. 381 (C.A.A.F. 2007), referring to Maryland v. Craig, to M.R.E. 611(d)(3).

o. Commenter noted the shift in verb tense in M.R.E. 313(a). JSC corrected the discrepancy.

p. Commenter noted that the first and last sentence of M.R.E. 312(d) appear redundant and inconsistent. JSC replaced the word “involuntary” to consistently and uniformly refer to “nonconsensual” extraction of body fluids and will address the change when revising Appendix 22, Analysis of the Military Rules of Evidence.

q. Commenter recommended that the drafter's analysis of M.R.E. 313 be amended to better define “appropriate supervisory position.” JSC will address this issue when revising Appendix 22, Analysis of the Military Rules of Evidence.

r. Commenter recommended changing the definition of probable cause to “a search where there is a reasonable belief that the person, property, or evidence sought might be located” from current language of “is located” in M.R.E. 315(f)(2). JSC did not adopt the recommended change because case law indicates that both definitions are acceptable and therefore no change was needed. The JSC will address when revising Appendix 22, Analysis of the Military Rules of Evidence.

s. Commenter recommended in M.R.E. 315(g) clarifying circumstances when exigency would allow officers to enter a residence without a warrant. JSC agreed with recommendation and will address it when revising Appendix 22, Analysis of the Military Rules of Evidence.

t. Commenter noted in M.R.E. 316(c)(4) subdivision (e) was mislabeled (d). JSC amended accordingly.

u. Commenter recommended clarification in M.R.E. 316(b)(5)(C) regarding what it means to “observe something in a reasonable fashion,” and clarification of when an officer can seize an item in plain view. JSC agreed with recommendation that clarification is needed and will provide discussion, case citations, and examples when revising Appendix 22, Analysis of the Military Rules of Evidence.

v. Commenter recommended clarification in M.R.E. 317(b) and (c) to specifically address one-party, consent phone calls. JSC did not take action because this rule addresses wire intercepts, not pretext phone calls.

w. Commenter recommended changing M.R.E. 314(c) to allow inspections conducted on military installations, rather than just at entry and exit. JSC did not make the recommended change because there is no specific case law permitting such an unrestricted practice, other than entry and exit points, and it too drastically narrows an individual's privacy interest while on a military installation.

x. Commenter recommended clarification in M.R.E. 314(e)(2) regarding dual consent when a physically present resident has told the officers that they may not search the property. JSC agreed with recommendation that clarification is needed and will address this issue when revising Appendix 22, Analysis of the Military Rules of Evidence.

y. Commenter recommended amending the phrase “criminal activity is afoot” in M.R.E. 314(f)(1) because it is antiquated. JSC did not adopt recommended change because it believed that “afoot” accurately describes the standard and is consistent with relevant jurisprudence.

z. Commenter recommended changing the language in M.R.E. 314(f)(2) from “reasonably believed to be armed” to “reasonably suspected of being armed” with regard to a lawful investigatory stop. JSC adopted the recommended change, and added a Discussion under the rule to further address the standard.

aa. Commenter recommended clarifying in M.R.E. 314(f)(3) the automobile “pat-down” rule because it was oversimplified as written. JSC agreed, made changes to the rule and added a discussion to further address the standard.

bb. Commenter recommended amending MRE 314(g)(2) to more accurately capture the holding in Arizona v. Gant, 129 S.Ct. 1710 (2009). JSC agreed with the recommendation and added discussion under the rule to clarify the standard.

cc. Commenter recommended clarification in M.R.E. 314(g)(3)(B) regarding the application of the wider protective sweep rule. JSC agreed with recommendation and will address it in when revising Appendix 22, Analysis of the Military Rules of Evidence.

dd. Commenter recommended a discussion be added to M.R.E. 314 to address when exigent circumstances permit officers to search without a warrant. JSC did not add a discussion because the topic is covered in MRE 315(g).

ee. Commenter recommended M.R.E. 305(a)(2) differentiate between pre-invocation statements, and post-invocation statements. JSC added the words “after such request” following “interrogation” to establish a temporal boundary for admissibility which was required after rewording the rule in terms of admissibility and changing passive to active voice.

ff. Commenter recommended a clear statement in M.R.E. 305(a)(3) relating to whether the intention was to make the rule more restrictive than required under the Sixth Amendment. JSC will address when revising Appendix 22, Analysis of the Military Rules of Evidence.

gg. Commenter recommended a clear statement in M.R.E. 305(e)(1) relating to whether the intention was to make the rule more restrictive than required under Berghuis v. Thompkins, 130 S. Ct. 2250 (2010). JSC acknowledged the higher standard, but left the language unchanged. JSC will address when revising Appendix 22, Analysis of the Military Rules of Evidence.

hh. Commenter recommended that the order of provisions and numbering of rules remain the same for ease of research and consistency. Although JSC agreed, certain rules and provisions were moved to better reflect the natural flow of evidence and to simplify the rules.

ii. Commenter recommended that Section 3 not be amended to alleviate conduct-based guidance, arguing that many rules are specifically intended to proscribe or prescribe specific conduct. Although JSC agreed on principle, some conduct-based provisions were moved to discussion paragraphs and some Section 3 rules were amended to address admissibility rather than conduct.

jj. Commenter recommended that discussion not be used in the M.R.E. because it would be a new practice and could confuse practitioners when discerning what authority should be given to discussion content. JSC disagreed, but added an introductory discussion to address the purpose of the newly added M.R.E. discussion paragraphs. See discussion following M.R.E. 101(c). Discussion is commonly used in the MCM and its treatise-like purpose is well understood. See Appendix 21, Analysis of the Rules for Courts-Martial.

kk. Commenter recommended moving the definitions contained within a specific rule to the beginning of the rule. JSC agreed and amended accordingly.

ll. Commenter recommended retaining the elements of Article 31 within M.R.E. 305(c)(1) and using the word “Warnings” in the title. JSC agreed and amended accordingly.

mm. Commenter recommended that Miranda warnings be specifically included within the text of the rule. JSC agreed, but will instead address the Miranda warnings fully in Appendix 22, Analysis of the Military Rules of Evidence.

nn. Commenter recommended that M.R.E. 305 should address the procedure to be used when the right to counsel or the right to remain silent is invoked. JSC determined that the rule adequately provided guidance to practitioners, but will address the issue when revising Appendix 22, Analysis of the Military Rules of Evidence.

oo. Commenter recommended that M.R.E. 305(d) should be titled “Presence of Counsel” instead of “Provision for Counsel”. JSC agreed and amended accordingly.

pp. Commenter recommended that the word “answer” in M.R.E. 301(d) be changed to “response” to more accurately focus on the fact the answer must be made in response to the question. JSC disagreed, but will address the issue when revising Appendix 22, Analysis of the Military Rules of Evidence.

qq. Commenter recommended leaving the term “rules prescribed by the Supreme Court pursuant to statutory authority” in M.R.E. 402(a)(5). JSC disagreed and modified the definition to better conform with UCMJ jurisdiction.

rr. Commenter recommended adding the words “in the armed forces” to the definition of “community” in M.R.E. 405(d) and to keep its current phrasing. JSC agreed and amended accordingly.

The proposed revision to the M.R.E. to be forwarded through the DoD for action by Executive Order of the President of the United States are as follows:

(a) Scope. These rules apply to court-martial proceedings to the extent and with the exceptions stated in Mil. R. Evid. 1101.

(b) Sources of Law. In the absence of guidance in this Manual or these rules, courts-martial will apply:

(1) first, the Federal Rules of Evidence and the case law interpreting them; and

(2) second, when not inconsistent with subdivision (b)(1), the rules of evidence at common law.

(c) Rule of construction. Except as otherwise provided in these rules, the term “military judge” includes the president of a special court-martial without a military judge and a summary court-martial officer.

These rules should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination.

(a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only if the error materially prejudices a substantial right of the party and:

(1) If the ruling admits evidence, a party, on the record:

(A) Timely objects or moves to strike; and

(B) States the specific ground, unless it was apparent from the context; or

(2) if the ruling excludes evidence, a party informs the military judge of its substance by an offer of proof, unless the substance was apparent from the context.

(b) Not Needing to Renew an Objection or Offer of Proof. Once the military judge rules definitively on the record admitting or excluding evidence, either before or at trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.

(c) Review of Constitutional Error. The standard provided in this subdivision does not apply to errors implicating the United States Constitution as it applies to members of the armed forces, unless the error arises under these rules and this subdivision provides a standard that is more advantageous to the accused than the constitutional standard.

(d) Military Judge's Statement about the Ruling; Directing an Offer of Proof. The military judge may make any statement about the character or form of the evidence, the objection made, and the ruling. The military judge may direct that an offer of proof be made in question-and-answer form.

(e) Preventing the Members from Hearing Inadmissible Evidence. In a court-martial composed of a military judge and members, to the extent practicable, the military judge must conduct a trial so that inadmissible evidence is not suggested to the members by any means.

(f) Taking Notice of Plain Error. A military judge may take notice of a plain error that materially prejudices a substantial right, even if the claim of error was not properly preserved.

(a) In General. The military judge must decide any preliminary question about whether a witness is available or qualified, a privilege exists, a continuance should be granted, or evidence is admissible. In so deciding, the military judge is not bound by evidence rules, except those on privilege.

(b) Relevance that Depends on a Fact. When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The military judge may admit the proposed evidence on the condition that the proof be introduced later. A ruling on the sufficiency of evidence to support a finding of fulfillment of a condition of fact is the sole responsibility of the military judge, except where these rules or this Manual provide expressly to the contrary.

(c) Conducting a Hearing so that the Members Cannot Hear It. Except in cases tried before a special court-martial without a military judge, the military judge must conduct any hearing on a preliminary question so that the members cannot hear it if:

(1) The hearing involves the admissibility of a statement of the accused under Mil. R. Evid. 301-306;

(2) The accused is a witness and so requests; or

(3) Justice so requires.

(d) Cross-Examining the Accused. By testifying on a preliminary question, the accused does not become subject to cross-examination on other issues in the case.

(e) Evidence Relevant to Weight and Credibility. This rule does not limit a party's right to introduce before the members evidence that is relevant to the weight or credibility of other evidence.

If the military judge admits evidence that is admissible against a party or for a purpose—but not against another party or for another purpose—the military judge, on timely request, must restrict the evidence to its proper scope and instruct the members accordingly.

If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part—or any other writing or recorded statement—that in fairness ought to be considered at the same time.

(a) Scope. This rule governs judicial notice of an adjudicative fact only, not a legislative fact.

(b) Kinds of Facts that May Be Judicially Noticed. The military judge may judicially notice a fact that is not subject to reasonable dispute because it:

(1) Is generally known universally, locally, or in the area pertinent to the event; or

(2) Can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

(c) Taking Notice. The military judge:

(1) May take judicial notice whether requested or not; or

(2) Must take judicial notice if a party requests it and the military judge is supplied with the necessary information. The military judge must inform the parties in open court when, without being requested, he or she takes judicial notice of an adjudicative fact essential to establishing an element of the case.

(d) Timing. The military judge may take judicial notice at any stage of the proceeding.

(e) Opportunity to Be Heard. On timely request, a party is entitled to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. If the military judge takes judicial notice before notifying a party, the party, on request, is still entitled to be heard.

(f) Instructing the Members. The military judge must instruct the members that they may or may not accept the noticed fact as conclusive.

(a) Domestic Law. The military judge may take judicial notice of domestic law. If a domestic law is a fact that is of consequence to the determination of the action, the procedural requirements of Mil. R. Evid. 201—except Rule 201(f)—apply.

(b) Foreign Law. A party who intends to raise an issue concerning the law of a foreign country must give reasonable written notice. The military judge, in determining foreign law, may consider any relevant material or source, in accordance with Mil. R. Evid. 104. Such a determination is a ruling on a question of law.

(a) General Rule. An individual may claim the most favorable privilege provided by the Fifth Amendment to the United States Constitution, Article 31, or these rules. The privileges against self-incrimination are applicable only to evidence of a testimonial or communicative nature.

(b) Standing. The privilege of a witness to refuse to respond to a question that may tend to incriminate the witness is a personal one that the witness may exercise or waive at the discretion of the witness.

(c) Limited Waiver. An accused who chooses to testify as a witness waives the privilege against self-incrimination only with respect to the matters about which he or she testifies. If the accused is on trial for two or more offenses and on direct examination testifies about only one or some of the offenses, the accused may not be cross-examined as to guilt or innocence with respect to the other offenses unless the cross-examination is relevant to an offense concerning which the accused has testified. This waiver is subject to Mil. R. Evid. 608(b).

(d) Exercise of the Privilege. If a witness states that the answer to a question may tend to incriminate him or her, the witness cannot be required to answer unless the military judge finds that the facts and circumstances are such that no answer the witness might make to the question would tend to incriminate the witness or that the witness has, with respect to the question, waived the privilege against self-incrimination. A witness may not assert the privilege if he or she is not subject to criminal penalty as a result of an answer by reason of immunity, running of the statute of limitations, or similar reason.

(1) Immunity Requirements. The minimum grant of immunity adequate to overcome the privilege is that which under either R.C.M. 704 or other proper authority provides that neither the testimony of the witness nor any evidence obtained from that testimony may be used against the witness at any subsequent trial other than in a prosecution for perjury, false swearing, the making of a false official statement, or failure to comply with an order to testify after the military judge has ruled that the privilege may not be asserted by reason of immunity.

(2) Notification of Immunity or Leniency. When a prosecution witness before a court-martial has been granted immunity or leniency in exchange for testimony, the grant must be reduced to writing and must be served on the accused prior to arraignment or within a reasonable time before the witness testifies. If notification is not made as required by this rule, the military judge may grant a continuance until notification is made, prohibit or strike the testimony of the witness, or enter such other order as may be required.

(e) Waiver of the Privilege. A witness who answers a self-incriminating question without having asserted the privilege against self-incrimination may be required to answer questions relevant to the disclosure, unless the questions are likely to elicit additional self-incriminating information.

(1) If a witness asserts the privilege against self-incrimination on cross-examination, the military judge, upon motion, may strike the direct testimony of the witness in whole or in part, unless the matters to which the witness refuses to testify are purely collateral.

(2) Any limited waiver of the privilege under this subdivision (e) applies only at the trial in which the answer is given, does not extend to a rehearing or new or other trial, and is subject to Mil. R. Evid. 608(b).

(f) Effect of Claiming the Privilege.

(1) No Inference to Be Drawn. The fact that a witness has asserted the privilege against self-incrimination cannot be considered as raising any inference unfavorable to either the accused or the government.

(2) Pretrial Invocation Not Admissible. The fact that the accused during official questioning and in exercise of rights under the Fifth Amendment to the United States Constitution or Article 31 remained silent, refused to answer a certain question, requested counsel, or requested that the questioning be terminated, is not admissible against the accused.

(3) Instructions Regarding the Privilege. When the accused does not testify at trial, defense counsel may request that the members of the court be instructed to disregard that fact and not to draw any adverse inference from it. Defense counsel may request that the members not be so instructed. Defense counsel's election will be binding upon the military judge except that the military judge may give the instruction when the instruction is necessary in the interests of justice.

(a) General Rule. The accused has a privilege to prevent any statement made by the accused at a mental examination ordered under R.C.M. 706 and any derivative evidence obtained through use of such a statement from being received into evidence against the accused on the issue of guilt or innocence or during sentencing proceedings. This privilege may be claimed by the accused notwithstanding the fact that the accused may have been warned of the rights provided by Mil. R. Evid. 305 at the examination.

(b) Exceptions.

(1) There is no privilege under this rule when the accused first introduces into evidence such statements or derivative evidence.

(2) If the court-martial has allowed the defense to present expert testimony as to the mental condition of the accused, an expert witness for the prosecution may testify as to the reasons for his or her conclusions, but such testimony may not extend to statements of the accused except as provided in (1).

(c) Release of Evidence from an R.C.M. 706 Examination. If the defense offers expert testimony concerning the mental condition of the accused, the military judge, upon motion, must order the release to the prosecution of the full contents, other than any statements made by the accused, of any report prepared pursuant to R.C.M. 706. If the defense offers statements made by the accused at such examination, the military judge, upon motion, may order the disclosure of such statements made by the accused and contained in the report as may be necessary in the interests of justice.

(d) Noncompliance by the Accused. The military judge may prohibit an accused who refuses to cooperate in a mental examination authorized under R.C.M. 706 from presenting any expert medical testimony as to any issue that would have been the subject of the mental examination.

(e) Procedure. The privilege in this rule may be claimed by the accused only under the procedure set forth in Mil. R. Evid. 304 for an objection or a motion to suppress.

Statements and evidence are inadmissible if they are not material to the issue and may tend to degrade the person testifying.

(a) General Rule. If the accused makes a timely motion or objection under this rule, an involuntary statement from the accused, or any evidence derived therefrom, is inadmissible at trial except as provided in subdivision (e).

(1) Definitions. As used in this rule:

(A) “Involuntary statement” means a statement obtained in violation of the self-incrimination privilege or due process clause of the Fifth Amendment to the United States Constitution, Article 31, or through the use of coercion, unlawful influence, or unlawful inducement.

(B) “Confession” means an acknowledgment of guilt.

(C) “Admission” means a self-incriminating statement falling short of an acknowledgment of guilt, even if it was intended by its maker to be exculpatory.

(2) Failure to deny an accusation of wrongdoing is not an admission of the truth of the accusation if at the time of the alleged failure the person was under investigation or was in confinement, arrest, or custody for the alleged wrongdoing.

(b) Evidence Derived from a Statement of the Accused. When the defense has made an appropriate and timely motion or objection under this rule, evidence allegedly derived from a statement of the accused may not be admitted unless the military judge finds by a preponderance of the evidence that:

(1) The statement was made voluntarily,

(2) The evidence was not obtained by use of the accused's statement, or

(3) The evidence would have been obtained even if the statement had not been made.

(c) Corroboration of a Confession or Admission.

(1) An admission or a confession of the accused may be considered as evidence against the accused on the question of guilt or innocence only if independent evidence, either direct or circumstantial, has been admitted into evidence that corroborates the essential facts admitted to justify sufficiently an inference of their truth.

(2) Other uncorroborated confessions or admissions of the accused that would themselves require corroboration may not be used to supply this independent evidence. If the independent evidence raises an inference of the truth of some but not all of the essential facts admitted, then the confession or admission may be considered as evidence against the accused only with respect to those essential facts stated in the confession or admission that are corroborated by the independent evidence.

(3) Corroboration is not required for a statement made by the accused before the court by which the accused is being tried, for statements made prior to or contemporaneously with the act, or for statements offered under a rule of evidence other than that pertaining to the admissibility of admissions or confessions.

(4) Quantum of Evidence Needed. The independent evidence necessary to establish corroboration need not be sufficient of itself to establish beyond a reasonable doubt the truth of facts stated in the admission or confession. The independent evidence need raise only an inference of the truth of the essential facts admitted. The amount and type of evidence introduced as corroboration is a factor to be considered by the trier of fact in determining the weight, if any, to be given to the admission or confession.

(5) Procedure. The military judge alone will determine when adequate evidence of corroboration has been received. Corroborating evidence must be introduced before the admission or confession is introduced unless the military judge allows submission of such evidence subject to later corroboration.

(d) Disclosure of Statements by the Accused and Derivative Evidence. Before arraignment, the prosecution must disclose to the defense the contents of all statements, oral or written, made by the accused that are relevant to the case, known to the trial counsel, and within the control of the armed forces, and all evidence derived from such statements, that the prosecution intends to offer against the accused.

(e) Limited Use of an Involuntary Statement. A statement obtained in violation of Article 31 or Mil. R. Evid. 305(a)-(c) may be used only:

(1) To impeach by contradiction the in-court testimony of the accused; or

(2) In a later prosecution against the accused for perjury, false swearing, or the making of a false official statement.

(f) Motions and Objections.

(1) Motions to suppress or objections under this rule, or Mil. R. Evid. 302 or 305, to any statement or derivative evidence that has been disclosed must be made by the defense prior to submission of a plea. In the absence of such motion or objection, the defense may not raise the issue at a later time except as permitted by the military judge for good cause shown. Failure to so move or object constitutes a forfeiture of the objection.

(2) If the prosecution seeks to offer a statement made by the accused or derivative evidence that was not disclosed before arraignment, the prosecution must provide timely notice to the military judge and defense counsel. The defense may object at that time and the military judge may make such orders as are required in the interests of justice.

(3) The defense may present evidence relevant to the admissibility of evidence as to which there has been an objection or motion to suppress under this rule. An accused may testify for the limited purpose of denying that the accused made the statement or that the statement was made voluntarily.

(A) Prior to the introduction of such testimony by the accused, the defense must inform the military judge that the testimony is offered under this subdivision.

(B) When the accused testifies under this subdivision, the accused may be cross-examined only as to the matter on which he or she testifies. Nothing said by the accused on either direct or cross-examination may be used against the accused for any purpose other than in a prosecution for perjury, false swearing, or the making of a false official statement.

(4) Specificity. The military judge may require the defense to specify the grounds upon which the defense moves to suppress or object to evidence. If defense counsel, despite the exercise of due diligence, has been unable to interview adequately those persons involved in the taking of a statement, the military judge may make any order required in the interests of justice, including authorization for the defense to make a general motion to suppress or general objection.

(5) Rulings. The military judge must rule, prior to plea, upon any motion to suppress or objection to evidence made prior to plea unless, for good cause, the military judge orders that the ruling be deferred for determination at trial or after findings. The military judge may not defer ruling if doing so adversely affects a party's right to appeal the ruling. The military judge must state essential findings of fact on the record when the ruling involves factual issues.

(6) Burden of Proof. When the defense has made an appropriate motion or objection under this rule, the prosecution has the burden of establishing the admissibility of the evidence. When the military judge has required a specific motion or objection under subdivision (f)(4), the burden on the prosecution extends only to the grounds upon which the defense moved to suppress or object to the evidence.

(7) Standard of Proof. The military judge must find by a preponderance of the evidence that a statement by the accused was made voluntarily before it may be received into evidence. When trial is by a special court-martial without a military judge, a determination by the president of the court that a statement was made voluntarily is subject to objection by any member of the court. When such objection is made, it will be resolved pursuant to R.C.M. 801(e)(3)(C).

(8) Effect of Guilty Plea. Except as otherwise expressly provided in R.C.M. 910(a)(2), a plea of guilty to an offense that results in a finding of guilty waives all privileges against self-incrimination and all motions and objections under this rule with respect to that offense regardless of whether raised prior to plea.

(g) Weight of the Evidence. If a statement is admitted into evidence, the military judge must permit the defense to present relevant evidence with respect to the voluntariness of the statement and must instruct the members to give such weight to the statement as it deserves under all the circumstances.

(h) Completeness. If only part of an alleged admission or confession is introduced against the accused, the defense, by cross-examination or otherwise, may introduce the remaining portions of the statement.

(i) Evidence of an Oral Statement. A voluntary oral confession or admission of the accused may be proved by the testimony of anyone who heard the accused make it, even if it was reduced to writing and the writing is not accounted for.

(j) Refusal to Obey an Order to Submit a Body Substance. If an accused refuses a lawful order to submit for chemical analysis a sample of his or her blood, breath, urine or other body substance, evidence of such refusal may be admitted into evidence on:

(1) a charge of violating an order to submit such a sample; or

(2) any other charge on which the results of the chemical analysis would have been admissible.

(a) General Rule. A statement obtained in violation of this rule is involuntary and will be treated under Mil. R. Evid. 304.

(b) Definitions. As used in this rule:

(1) “Person subject to the code” means a person subject to the Uniform Code of Military Justice as contained in Chapter 47 of Title 10, United States Code. This term includes, for purposes of subdivision (c) of this rule, a knowing agent of any such person or of a military unit.

(2) “Interrogation” means any formal or informal questioning in which an incriminating response either is sought or is a reasonable consequence of such questioning.

(3) “Custodial interrogation” means questioning that takes place while the accused or suspect is in custody, could reasonably believe himself or herself to be in custody, or is otherwise deprived of his or her freedom of action in any significant way.

(c) Warnings Concerning the Accusation, Right to Remain Silent, and Use of Statements.

(1) Article 31 Rights Warnings. A statement obtained from the accused in violation of the accused's rights under Article 31 is involuntary and therefore inadmissible against the accused except as provided in subdivision (d). Pursuant to Article 31, a person subject to the code may not interrogate or request any statement from an accused or a person suspected of an offense without first:

(A) Informing the accused or suspect of the nature of the accusation;

(B) Advising the accused or suspect that the accused or suspect has the right to remain silent; and

(C) Advising the accused or suspect that any statement made may be used as evidence against the accused or suspect in a trial by court-martial.

(2) Fifth Amendment Right to Counsel. If a person suspected of an offense and subjected to custodial interrogation requests counsel, any statement made in the interrogation after such request, or evidence derived from the interrogation after such request, is inadmissible against the accused unless counsel was present for the interrogation.

(3) Sixth Amendment Right to Counsel. If an accused against whom charges have been preferred is interrogated on matters concerning the preferred charges by anyone acting in a law enforcement capacity, or the agent of such a person, and the accused requests counsel, or if the accused has appointed or retained counsel, any statement made in the interrogation, or evidence derived from the interrogation, is inadmissible unless counsel was present for the interrogation.

(4) Exercise of Rights. If a person chooses to exercise the privilege against self-incrimination, questioning must cease immediately. If a person who is subjected to interrogation under the circumstances described in subdivisions (c)(2) or (c)(3) of this rule chooses to exercise the right to counsel, questioning must cease until counsel is present.

(d) Presence of Counsel. When a person entitled to counsel under this rule requests counsel, a judge advocate or an individual certified in accordance with Article 27(b) will be provided by the United States at no expense to the person and without regard to the person's indigency and must be present before the interrogation may proceed. In addition to counsel supplied by the United States, the person may retain civilian counsel at no expense to the United States. Unless otherwise provided by regulations of the Secretary concerned, an accused or suspect does not have a right under this rule to have military counsel of his or her own selection.

(e) Waiver.

(1) Waiver of the Privilege Against Self-Incrimination. After receiving applicable warnings under this rule, a person may waive the rights described therein and in Mil. R. Evid. 301 and make a statement. The waiver must be made freely, knowingly, and intelligently. A written waiver is not required. The accused or suspect must affirmatively acknowledge that he or she understands the rights involved, affirmatively decline the right to counsel, and affirmatively consent to making a statement.

(2) Waiver of the Right to Counsel. If the right to counsel is applicable under this rule and the accused or suspect does not affirmatively decline the right to counsel, the prosecution must demonstrate by a preponderance of the evidence that the individual waived the right to counsel.

(3) Waiver After Initially Invoking the Right to Counsel.

(A) Fifth Amendment Right to Counsel. If an accused or suspect subjected to custodial interrogation requests counsel, any subsequent waiver of the right to counsel obtained during a custodial interrogation concerning the same or different offenses is invalid unless the prosecution can demonstrate by a preponderance of the evidence that:

(i) The accused or suspect initiated the communication leading to the waiver; or

(ii) The accused or suspect has not continuously had his or her freedom restricted by confinement, or other means, during the period between the request for counsel and the subsequent waiver.

(B) Sixth Amendment Right to Counsel. If an accused or suspect interrogated after preferral of charges as described in subdivision (c)(1) requests counsel, any subsequent waiver of the right to counsel obtained during an interrogation concerning the same offenses is invalid unless the prosecution can demonstrate by a preponderance of the evidence that the accused or suspect initiated the communication leading to the waiver.

(f) Standards for Nonmilitary Interrogations.

(1) United States Civilian Interrogations. When a person subject to the code is interrogated by an official or agent of the United States, of the District of Columbia, or of a State, Commonwealth, or possession of the United States, or any political subdivision of such a State, Commonwealth, or possession, the person's entitlement to rights warnings and the validity of any waiver of applicable rights will be determined by the principles of law generally recognized in the trial of criminal cases in the United States district courts involving similar interrogations.

(2) Foreign Interrogations. Warnings under Article 31 and the Fifth and Sixth Amendments to the United States Constitution are not required during an interrogation conducted outside of a state, district, commonwealth, territory, or possession of the United States by officials of a foreign government or their agents unless such interrogation is conducted, instigated, or participated in by military personnel or their agents or by those officials or agents listed in subdivision (d)(1). A statement obtained from a foreign interrogation is admissible unless the statement is obtained through the use of coercion, unlawful influence, or unlawful inducement. An interrogation is not “participated in” by military personnel or their agents or by the officials or agents listed in subdivision (d)(1) merely because such a person was present at an interrogation conducted in a foreign nation by officials of a foreign government or their agents, or because such a person acted as an interpreter or took steps to mitigate damage to property or physical harm during the foreign interrogation.

When two or more accused are tried at the same trial, evidence of a statement made by one of them which is admissible only against him or her or only against some but not all of the accused may not be received in evidence unless all references inculpating an accused against whom the statement is inadmissible are deleted effectively or the maker of the statement is subject to cross-examination.

(a) General Rule. Evidence obtained as a result of an unlawful search or seizure made by a person acting in a governmental capacity is inadmissible against the accused if:

(1) The accused makes a timely motion to suppress or an objection to the evidence under this rule; and

(2) The accused had a reasonable expectation of privacy in the person, place or property searched; the accused had a legitimate interest in the property or evidence seized when challenging a seizure; or the accused would otherwise have grounds to object to the search or seizure under the Constitution of the United States as applied to members of the armed forces.

(b) Definition. As used in this rule, a search or seizure is “unlawful” if it was conducted, instigated, or participated in by:

(1) Military personnel or their agents and was in violation of the Constitution of the United States as applied to members of the armed forces, a federal statute applicable to trials by court-martial that requires exclusion of evidence obtained in violation thereof, or Mil. R. Evid. 312-317;

(2) Other officials or agents of the United States, of the District of Columbia, or of a State, Commonwealth, or possession of the United States or any political subdivision of such a State, Commonwealth, or possession, and was in violation of the Constitution of the United States, or is unlawful under the principles of law generally applied in the trial of criminal cases in the United States district courts involving a similar search or seizure; or

(3) Officials of a foreign government or their agents, and the accused was subjected to gross and brutal maltreatment. A search or seizure is not “participated in” by a United States military or civilian official merely because that person is present at a search or seizure conducted in a foreign nation by officials of a foreign government or their agents, or because that person acted as an interpreter or took steps to mitigate damage to property or physical harm during the foreign search or seizure.

(c) Exceptions.

(1) Impeachment. Evidence that was obtained as a result of an unlawful search or seizure may be used to impeach by contradiction the in-court testimony of the accused.

(2) Inevitable Discovery. Evidence that was obtained as a result of an unlawful search or seizure may be used when the evidence would have been obtained even if such unlawful search or seizure had not been made.

(3) Good Faith Execution of a Warrant or Search Authorization. Evidence that was obtained as a result of an unlawful search or seizure may be used if:

(A) The search or seizure resulted from an authorization to search, seize or apprehend issued by an individual competent to issue the authorization under Mil. R. Evid. 315(d) or from a search warrant or arrest warrant issued by competent civilian authority;

(B) The individual issuing the authorization or warrant had a substantial basis for determining the existence of probable cause; and

(C) The officials seeking and executing the authorization or warrant reasonably and with good faith relied on the issuance of the authorization or warrant. Good faith is to be determined using an objective standard.

(d) Motions to Suppress and Objections.

(1) Disclosure. Prior to arraignment, the prosecution must disclose to the defense all evidence seized from the person or property of the accused, or believed to be owned by the accused, or evidence derived therefrom, that it intends to offer into evidence against the accused at trial.

(2) Time Requirements.

(A) When evidence has been disclosed prior to arraignment under subdivision (d)(1), the defense must make any motion to suppress or objection under this rule prior to submission of a plea. In the absence of such motion or objection, the defense may not raise the issue at a later time except as permitted by the military judge for good cause shown. Failure to so move or object constitutes a forfeiture of the motion or objection.

(B) If the prosecution intends to offer evidence described in subdivision (d)(1) that was not disclosed prior to arraignment, the prosecution must provide timely notice to the military judge and to counsel for the accused. The defense may enter an objection at that time and the military judge may make such orders as are required in the interest of justice.

(3) Specificity. The military judge may require the defense to specify the grounds upon which the defense moves to suppress or object to evidence described in subdivision (d)(1). If defense counsel, despite the exercise of due diligence, has been unable to interview adequately those persons involved in the search or seizure, the military judge may enter any order required by the interests of justice, including authorization for the defense to make a general motion to suppress or a general objection.

(4) Challenging Probable Cause.

(A) Relevant Evidence. If the defense challenges evidence seized pursuant to a search warrant or search authorization on the grounds that the warrant or authorization was not based upon probable cause, the evidence relevant to the motion is limited to evidence concerning the information actually presented to or otherwise known by the authorizing officer, except as provided in subdivision (d)(4)(B).

(B) False Statements. If the defense makes a substantial preliminary showing that a government agent included a false statement knowingly and intentionally or with reckless disregard for the truth in the information presented to the authorizing officer, and if the allegedly false statement is necessary to the finding of probable cause, the defense, upon request, is entitled to a hearing. At the hearing, the defense has the burden of establishing by a preponderance of the evidence the allegation of knowing and intentional falsity or reckless disregard for the truth. If the defense meets its burden, the prosecution has the burden of proving by a preponderance of the evidence, with the false information set aside, that the remaining information presented to the authorizing officer is sufficient to establish probable cause. If the prosecution does not meet its burden, the objection or motion must be granted unless the search is otherwise lawful under these rules.

(5) Burden and Standard of Proof.

(A) In general. When the defense makes an appropriate motion or objection under this 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, or 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.

(B) Statement Following Apprehension. In addition to subdivision (d)(5)(A), a statement obtained from a person apprehended in a dwelling in violation R.C.M. 302(d)(2) and (e), is admissible if the prosecution shows by a preponderance of the evidence that the apprehension was based on probable cause, the statement was made at a location outside the dwelling subsequent to the apprehension, and the statement was otherwise in compliance with these rules.

(C) Specific Grounds of Motion or Objection. When the military judge has required the defense to make a specific motion or objection under subdivision (d)(3), the burden on the prosecution extends only to the grounds upon which the defense moved to suppress or objected to the evidence.

(6) Defense Evidence. The defense may present evidence relevant to the admissibility of evidence as to which there has been an appropriate motion or objection under this rule. An accused may testify for the limited purpose of contesting the legality of the search or seizure giving rise to the challenged evidence. Prior to the introduction of such testimony by the accused, the defense must inform the military judge that the testimony is offered under this subdivision. When the accused testifies under this subdivision, the accused may be cross-examined only as to the matter on which he or she testifies. Nothing said by the accused on either direct or cross-examination may be used against the accused for any purpose other than in a prosecution for perjury, false swearing, or the making of a false official statement.

(7) Rulings. The military judge must rule, prior to plea, upon any motion to suppress or objection to evidence made prior to plea unless, for good cause, the military judge orders that the ruling be deferred for determination at trial or after findings. The military judge may not defer ruling if doing so adversely affects a party's right to appeal the ruling. The military judge must state essential findings of fact on the record when the ruling involves factual issues.

(8) Informing the Members. If a defense motion or objection under this rule is sustained in whole or in part, the court-martial members may not be informed of that fact except when the military judge must instruct the members to disregard evidence.

(e) Effect of Guilty Plea. Except as otherwise expressly provided in R.C.M. 910(a)(2), a plea of guilty to an offense that results in a finding of guilty waives all issues under the Fourth Amendment to the Constitution of the United States and Mil. R. Evid. 311-317 with respect to the offense whether or not raised prior to plea.

(a) General Rule. Evidence obtained from body views and intrusions conducted in accordance with this rule is admissible at trial when relevant and not otherwise inadmissible under these rules.

(b) Visual Examination of the Body.

(1) Consensual Examination. Evidence obtained from a visual examination of the unclothed body is admissible if the person consented to the inspection in accordance with Mil. R. Evid. 314(e).

(2) Involuntary Examination. Evidence obtained from an involuntary display of the unclothed body, including a visual examination of body cavities, is admissible only if the inspection was conducted in a reasonable fashion and authorized under the following provisions of the Military Rules of Evidence:

(A) Inspections and inventories under Mil. R. Evid. 313;

(B) Searches under Mil. R. Evid. 314(b) and 314(c) if there is a reasonable suspicion that weapons, contraband, or evidence of crime is concealed on the body of the person to be searched;

(C) Searches incident to lawful apprehension under Mil. R. Evid. 314(g);

(D) Searches within jails and similar facilities under Mil. R. Evid. 314(h) if reasonably necessary to maintain the security of the institution or its personnel;

(E) Emergency searches under Mil. R. Evid. 314(i); and

(F) Probable cause searches under Mil. R. Evid. 315.

(c) Intrusion into Body Cavities.

(1) Mouth, Nose, and Ears. Evidence obtained from a reasonable nonconsensual physical intrusion into the mouth, nose, and ears is admissible under the same standards that apply to a visual examination of the body under subdivision (b).

(2) Other Body Cavities. Evidence obtained from nonconsensual intrusions into other body cavities is admissible only if made in a reasonable fashion by a person with appropriate medical qualifications and if:

(A) At the time of the intrusion there was probable cause to believe that a weapon, contraband, or other evidence of crime was present;

(B) Conducted to remove weapons, contraband, or evidence of crime discovered under subdivisions (b) or (c)(2)(A) of this rule;

(C) Conducted pursuant to Mil. R. Evid. 316(c)(5)(C);

(D) Conducted pursuant to a search warrant or search authorization under Mil. R. Evid. 315; or

(E) Conducted pursuant to Mil. R. Evid. 314(h) based on a reasonable suspicion that the individual is concealing a weapon, contraband, or evidence of crime.

(d) Extraction of Body Fluids. Evidence obtained from nonconsensual extraction of body fluids is admissible if seized pursuant to a search warrant or a search authorization under Mil. R. Evid. 315. Evidence obtained from nonconsensual extraction of body fluids made without such a warrant or authorization is admissible, not withstanding Mil. R. Evid. 315(g), only when probable cause existed at the time of extraction to believe that evidence of crime would be found and that the delay necessary to obtain a search warrant or search authorization could have resulted in the destruction of the evidence. Evidence obtained from nonconsensual extraction of body fluids is admissible only when executed in a reasonable fashion by a person with appropriate medical qualifications.

(e) Other Intrusive Searches. Evidence obtained from a nonconsensual intrusive search of the body, other than searches described in subdivisions (c) or (d), conducted to locate or obtain weapons, contraband, or evidence of crime is admissible only if obtained pursuant to a search warrant or search authorization under Mil. R. Evid. 315 and conducted in a reasonable fashion by a person with appropriate medical qualifications in such a manner so as not to endanger the health of the person to be searched.

(f) Intrusions for Valid Medical Purposes. Evidence or contraband obtained in the course of a medical examination or an intrusion conducted for a valid medical purpose is admissible. Such an examination or intrusion may not, for the purpose of obtaining evidence or contraband, exceed what is necessary for the medical purpose.

(g) Medical Qualifications. The Secretary concerned may prescribe appropriate medical qualifications for persons who conduct searches and seizures under this rule.

(a) General Rule. Evidence obtained from lawful inspections and inventories in the armed forces is admissible at trial when relevant and not otherwise inadmissible under these rules. An unlawful weapon, contraband, or other evidence of a crime discovered during a lawful inspection or inventory may be seized and is admissible in accordance with this rule.

(b) Lawful Inspections. An “inspection” is an examination of the whole or part of a unit, organization, installation, vessel, aircraft, or vehicle, including an examination conducted at entrance and exit points, conducted as an incident of command the primary purpose of which is to determine and to ensure the security, military fitness, or good order and discipline of the unit, organization, installation, vessel, aircraft, or vehicle. Inspections must be conducted in a reasonable fashion and, if applicable, must comply with Mil. R. Evid. 312. Inspections may utilize any reasonable natural or technological aid and may be conducted with or without notice to those inspected.

(1) Purpose of Inspections. An inspection may include, but is not limited to, an examination to determine and to ensure that any or all of the following requirements are met: that the command is properly equipped, functioning properly, maintaining proper standards of readiness, sea or airworthiness, sanitation and cleanliness; and that personnel are present, fit, and ready for duty. An order to produce body fluids, such as urine, is permissible in accordance with this rule.

(2) Searches for Evidence. An examination made for the primary purpose of obtaining evidence for use in a trial by court-martial or in other disciplinary proceedings is not an inspection within the meaning of this rule.

(3) Examinations to Locate and Confiscate Weapons or Contraband.

(A) An inspection may include an examination to locate and confiscate unlawful weapons and other contraband provided that the criteria set forth in this subdivision (b)(3)(B) are not implicated.

(B) The prosecution must prove by clear and convincing evidence that the examination was an inspection within the meaning of this rule if a purpose of an examination is to locate weapons or contraband, and if:

(i) The examination was directed immediately following a report of a specific offense in the unit, organization, installation, vessel, aircraft, or vehicle and was not previously scheduled;

(ii) specific individuals are selected for examination; or

(iii) persons examined are subjected to substantially different intrusions during the same examination.

(c) Lawful Inventories. An “inventory” is a reasonable examination, accounting, or other control measure used to account for or control property, assets, or other resources. It is administrative and not prosecutorial in nature, and if applicable, the inventory must comply with Mil. R. Evid. 312. An examination made for the primary purpose of obtaining evidence for use in a trial by court-martial or in other disciplinary proceedings is not an inventory within the meaning of this rule.

(a) General Rule. Evidence obtained from reasonable searches not requiring probable cause is admissible at trial when relevant and not otherwise inadmissible under these rules or the Constitution of the United States as applied to members of the armed forces.

(b) Border Searches. Evidence from a border search for customs or immigration purposes authorized by a federal statute is admissible.

(c) Searches Upon Entry to or Exit from United States Installations, Aircraft, and Vessels Abroad. In addition to inspections under Mil. R. Evid. 313(b), evidence is admissible when a commander of a United States military installation, enclave, or aircraft on foreign soil, or in foreign or international airspace, or a United States vessel in foreign or international waters, has authorized appropriate personnel to search persons or the property of such persons upon entry to or exit from the installation, enclave, aircraft, or vessel to ensure the security, military fitness, or good order and discipline of the command. A search made for the primary purpose of obtaining evidence for use in a trial by court-martial or other disciplinary proceeding is not authorized by this subdivision (c).

(d) Searches of Government Property. Evidence resulting from a search of government property without probable cause is admissible under this rule unless the person to whom the property is issued or assigned has a reasonable expectation of privacy therein at the time of the search. Normally a person does not have a reasonable expectation of privacy in government property that is not issued for personal use. Wall or floor lockers in living quarters issued for the purpose of storing personal possessions normally are issued for personal use, but the determination as to whether a person has a reasonable expectation of privacy in government property issued for personal use depends on the facts and circumstances at the time of the search.

(e) Consent Searches.

(1) General Rule. Evidence of a search conducted without probable cause is admissible if conducted with lawful consent.

(2) Who May Consent. A person may consent to a search of his or her person or property, or both, unless control over such property has been given to another. A person may grant consent to search property when the person exercises control over that property.

(3) Scope of Consent. Consent may be limited in any way by the person granting consent, including limitations in terms of time, place, or property and may be withdrawn at any time.

(4) Voluntariness. To be valid, consent must be given voluntarily. Voluntariness is a question to be determined from all the circumstances. Although a person's knowledge of the right to refuse to give consent is a factor to be considered in determining voluntariness, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent. Mere submission to the color of authority of personnel performing law enforcement duties or acquiescence in an announced or indicated purpose to search is not a voluntary consent.

(5) Burden and Standard of Proof. The prosecution must prove consent by clear and convincing evidence. The fact that a person was in custody while granting consent is a factor to be considered in determining the voluntariness of consent, but it does not affect the standard of proof.

(f) Searches Incident to a Lawful Stop.

(1) Lawfulness. A stop is lawful when conducted by a person authorized to apprehend under R.C.M. 302(b) or others performing law enforcement duties and when the person making the stop has information or observes unusual conduct that leads him or her reasonably to conclude in light of his or her experience that criminal activity may be afoot. The stop must be temporary and investigatory in nature.

(2) Stop and Frisk. Evidence is admissible if seized from a person who was lawfully stopped and who was frisked for weapons because he or she was reasonably suspected to be armed and dangerous. Contraband or evidence that is located in the process of a lawful frisk may be seized.

(3) Vehicles. Evidence is admissible if seized in the course of a search for weapons from the passenger compartment of a vehicle in which a person lawfully stopped is the driver or a passenger and if the official who made the stop has a reasonable suspicion that the person stopped is dangerous and may gain immediate control of a weapon.

(g) Searches Incident to Apprehension.

(1) General Rule. Evidence is admissible if seized in a search of a person who has been lawfully apprehended or if seized as a result of a reasonable protective sweep.

(2) Search for Weapons and Destructible Evidence. A lawful search incident to apprehension may include a search for weapons or destructible evidence in the area within the immediate control of a person who has been apprehended. “Immediate control” means that area in which the individual searching could reasonably believe that the person apprehended could reach with a sudden movement to obtain such property.

(3) Protective Sweep for Other Persons.

(A) Area of Potential Immediate Attack. Apprehending officials may, incident to apprehension, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of apprehension from which an attack could be immediately launched.

(B) Wider Protective Sweep. When an apprehension takes place at a location in which another person might be present who might endanger the apprehending officials or others in the area of the apprehension, a search incident to arrest may lawfully include a reasonable examination of those spaces where a person might be found. Such a reasonable examination is lawful under this subdivision if the apprehending official has a reasonable suspicion based on specific and articulable facts that the area to be examined harbors an individual posing a danger to those in the area of the apprehension.

(h) Searches within Jails, Confinement Facilities, or Similar Facilities. Evidence obtained from a search within a jail, confinement facility, or similar facility is admissible even if conducted without probable cause provided that it was authorized by persons with authority over the institution.

(i) Emergency Searches to Save Life or for Related Purposes. Evidence obtained from emergency searches of persons or property conducted to save life, or for a related purpose, is admissible provided that the search was conducted in a good faith effort to render immediate medical aid, to obtain information that will assist in the rendering of such aid, or to prevent immediate or ongoing personal injury.

(j) Searches of Open Fields or Woodlands. Evidence obtained from a search of an open field or woodland is admissible provided that the search was not unlawful within the meaning of Mil. R. Evid. 311.

(a) General Rule. Evidence obtained from reasonable searches conducted pursuant to a search warrant or search authorization, or under the exigent circumstances described in this rule, is admissible at trial when relevant and not otherwise inadmissible under these rules or the Constitution of the United States as applied to members of the armed forces.

(b) Definitions. As used in these rules:

(1) “Search authorization” means express permission, written or oral, issued by competent military authority to search a person or an area for specified property or evidence or for a specific person and to seize such property, evidence, or person. It may contain an order directing subordinate personnel to conduct a search in a specified manner.

(2) “Search warrant” means express permission to search and seize issued by competent civilian authority.

(c) Scope of Search Authorization. A search authorization may be valid under this rule for a search of:

(1) the physical person of anyone subject to military law or the law of war wherever found;

(2) military property of the United States or of nonappropriated fund activities of an armed force of the United States wherever located;

(3) persons or property situated on or in a military installation, encampment, vessel, aircraft, vehicle, or any other location under military control, wherever located; or

(4) nonmilitary property within a foreign country.

(d) Who May Authorize. A search authorization under this rule is valid only if issued by an impartial individual in this subdivision (d)(1) and (d)(2). An otherwise impartial authorizing official does not lose the character merely because he or she is present at the scene of a search or is otherwise readily available to persons who may seek the issuance of a search authorization; nor does such an official lose impartial character merely because the official previously and impartially authorized investigative activities when such previous authorization is similar in intent or function to a pretrial authorization made by the United States district courts.

(1) Commander. A commander or other person serving in a position designated by the Secretary concerned as either a position analogous to an officer in charge or a position of command, who has control over the place where the property or person to be searched is situated or found, or, if that place is not under military control, having control over persons subject to military law or the law of war; or

(2) Military Judge or Magistrate. A military judge or magistrate if authorized under regulations prescribed by the Secretary of Defense or the Secretary concerned.

(e) Who May Search.

(1) Search Authorization. Any commissioned officer, warrant officer, petty officer, noncommissioned officer, and, when in the execution of guard or police duties, any criminal investigator, member of the Air Force security forces, military police, or shore patrol, or person designated by proper authority to perform guard or police duties, or any agent of any such person, may conduct or authorize a search when a search authorization has been granted under this rule or a search would otherwise be proper under subdivision (g).

(2) Search Warrants. Any civilian or military criminal investigator authorized to request search warrants pursuant to applicable law or regulation is authorized to serve and execute search warrants. The execution of a search warrant affects admissibility only insofar as exclusion of evidence is required by the Constitution of the United States or an applicable federal statute.

(f) Basis for Search Authorizations.

(1) Probable Cause Requirement. A search authorization issued under this rule must be based upon probable cause.

(2) Probable Cause Determination. Probable cause to search exists when there is a reasonable belief that the person, property, or evidence sought is located in the place or on the person to be searched. A search authorization may be based upon hearsay evidence in whole or in part. A determination of probable cause under this rule will be based upon any or all of the following:

(A) Written statements communicated to the authorizing officer;

(B) oral statements communicated to the authorizing official in person, via telephone, or by other appropriate means of communication; or

(C) such information as may be known by the authorizing official that would not preclude the officer from acting in an impartial fashion. The Secretary of Defense or the Secretary concerned may prescribe additional requirements.

(g) Exigencies. Evidence obtained from a probable cause search is admissible without a search warrant or search authorization when there is a reasonable belief that the delay necessary to obtain a search warrant or search authorization would result in the removal, destruction, or concealment of the property or evidence sought. Military operational necessity may create an exigency by prohibiting or preventing communication with a person empowered to grant a search authorization.

(a) General Rule. Evidence obtained from reasonable seizures is admissible at trial when relevant and not otherwise inadmissible under these rules or the Constitution of the United States as applied to members of the armed forces.

(b) Apprehension. Apprehension is governed by R.C.M. 302.

(c) Seizure of Property or Evidence.

(1) Based on Probable Cause. Evidence is admissible when seized based on a reasonable belief that the property or evidence is an unlawful weapon, contraband, evidence of crime, or might be used to resist apprehension or to escape.

(2) Abandoned Property. Abandoned property may be seized without probable cause and without a search warrant or search authorization. Such seizure may be made by any person.

(3) Consent. Property or evidence may be seized with consent consistent with the requirements applicable to consensual searches under Mil. R. Evid. 314.

(4) Government Property. Government property may be seized without probable cause and without a search warrant or search authorization by any person listed in subdivision (d), unless the person to whom the property is issued or assigned has a reasonable expectation of privacy therein, as provided in Mil. R. Evid. 314(d), at the time of the seizure.

(5) Other Property. Property or evidence not included in paragraph (1)-(4) may be seized for use in evidence by any person listed in subdivision (d) if:

(A) Authorization. The person is authorized to seize the property or evidence by a search warrant or a search authorization under Mil. R. Evid. 315;

(B) Exigent Circumstances. The person has probable cause to seize the property or evidence and under Mil. R. Evid. 315(g) a search warrant or search authorization is not required; or

(C) Plain View. The person while in the course of otherwise lawful activity observes in a reasonable fashion property or evidence that the person has probable cause to seize.

(6) Temporary Detention. Nothing in this rule prohibits temporary detention of property on less than probable cause when authorized under the Constitution of the United States.

(d) Who May Seize. Any commissioned officer, warrant officer, petty officer, noncommissioned officer, and, when in the execution of guard or police duties, any criminal investigator, member of the Air Force security forces, military police, or shore patrol, or individual designated by proper authority to perform guard or police duties, or any agent of any such person, may seize property pursuant to this rule.

(e) Other Seizures. Evidence obtained from a seizure not addressed in this rule is admissible provided that its seizure was permissible under the Constitution of the United States as applied to members of the armed forces.

(a) General Rule. Wire or oral communications constitute evidence obtained as a result of an unlawful search or seizure within the meaning of Mil. R. Evid. 311 when such evidence must be excluded under the Fourth Amendment to the Constitution of the United States as applied to members of the armed forces or if such evidence must be excluded under a federal statute applicable to members of the armed forces.

(b) When Authorized by Court Order. Evidence from the interception of wire or oral communications is admissible when authorized pursuant to an application to a federal judge of competent jurisdiction under the provisions of a federal statute.

(c) Regulations. Notwithstanding any other provision of these rules, evidence obtained by members of the armed forces or their agents through interception of wire or oral communications for law enforcement purposes is not admissible unless such interception:

(1) Takes place in the United States and is authorized under subdivision (b);

(2) Takes place outside the United States and is authorized under regulations issued by the Secretary of Defense or the Secretary concerned; or

(3) Is authorized under regulations issued by the Secretary of Defense or the Secretary concerned and is not unlawful under applicable federal statutes.

(a) General Rule. Testimony concerning a relevant out of court identification by any person is admissible, subject to an appropriate objection under this rule, if such testimony is otherwise admissible under these rules. The witness making the identification and any person who has observed the previous identification may testify concerning it. When in testimony a witness identifies the accused as being, or not being, a participant in an offense or makes any other relevant identification concerning a person in the courtroom, evidence that on a previous occasion the witness made a similar identification is admissible to corroborate the witness's testimony as to identity even if the credibility of the witness has not been attacked directly, subject to appropriate objection under this rule.

(b) When Inadmissible. An identification of the accused as being a participant in an offense, whether such identification is made at the trial or otherwise, is inadmissible against the accused if:

(1) The identification is the result of an unlawful lineup or other unlawful identification process, as defined in subdivision (c), conducted by the United States or other domestic authorities and the accused makes a timely motion to suppress or an objection to the evidence under this rule; or

(2) Exclusion of the evidence is required by the due process clause of the Fifth Amendment to the Constitution of the United States as applied to members of the armed forces. Evidence other than an identification of the accused that is obtained as a result of the unlawful lineup or unlawful identification process is inadmissible against the accused if the accused makes a timely motion to suppress or an objection to the evidence under this rule and if exclusion of the evidence is required under the Constitution of the United States as applied to members of the armed forces.

(c) Unlawful Lineup or Identification Process.

(1) Unreliable. A lineup or other identification process is unreliable, and therefore unlawful, if the lineup or other identification process is so suggestive as to create a substantial likelihood of misidentification.

(2) In Violation of Right to Counsel. A lineup is unlawful if it is conducted in violation of the accused's rights to counsel.

(A) Military Lineups. An accused or suspect is entitled to counsel if, after preferral of charges or imposition of pretrial restraint under R.C.M. 304 for the offense under investigation, the accused is required by persons subject to the code or their agents to participate in a lineup for the purpose of identification. When a person entitled to counsel under this rule requests counsel, a judge advocate or a person certified in accordance with Article 27(b) will be provided by the United States at no expense to the accused or suspect and without regard to indigency or lack thereof before the lineup may proceed. The accused or suspect may waive the rights provided in this rule if the waiver is freely, knowingly, and intelligently made.

(B) Nonmilitary Lineups. When a person subject to the code is required to participate in a lineup for purposes of identification by an official or agent of the United States, of the District of Columbia, or of a State, Commonwealth, or possession of the United States, or any political subdivision of such a State, Commonwealth, or possession, and the provisions of subdivision (2)(A) do not apply, the person's entitlement to counsel and the validity of any waiver of applicable rights will be determined by the principles of law generally recognized in the trial of criminal cases in the United States district courts involving similar lineups.

(d) Motions to Suppress and Objections.

(1) Disclosure. Prior to arraignment, the prosecution must disclose to the defense all evidence of, or derived from, a prior identification of the accused as a lineup or other identification process that it intends to offer into evidence against the accused at trial.

(2) Time Requirement. When such evidence has been disclosed, any motion to suppress or objection under this rule must be made by the defense prior to submission of a plea. In the absence of such motion or objection, the defense may not raise the issue at a later time except as permitted by the military judge for good cause shown. Failure to so move constitutes a forfeiture of the motion or objection.

(3) Continuing Duty. If the prosecution intends to offer such evidence and the evidence was not disclosed prior to arraignment, the prosecution must provide timely notice to the military judge and counsel for the accused. The defense may enter an objection at that time and the military judge may make such orders as are required in the interests of justice.

(4) Specificity. The military judge may require the defense to specify the grounds upon which the defense moves to suppress or object to evidence. If defense counsel, despite the exercise of due diligence, has been unable to interview adequately those persons involved in the lineup or other identification process, the military judge may enter any order required by the interests of justice, including authorization for the defense to make a general motion to suppress or a general objection.

(5) Defense Evidence. The defense may present evidence relevant to the issue of the admissibility of evidence as to which there has been an appropriate motion or objection under this rule. An accused may testify for the limited purpose of contesting the legality of the lineup or identification process giving rise to the challenged evidence. Prior to the introduction of such testimony by the accused, the defense must inform the military judge that the testimony is offered under this subdivision. When the accused testifies under this subdivision, the accused may be cross-examined only as to the matter on which he or she testifies. Nothing said by the accused on either direct or cross-examination may be used against the accused for any purpose other than in a prosecution for perjury, false swearing, or the making of a false official statement.

(6) Burden and Standard of Proof. When the defense has raised a specific motion or objection under subdivision (d)(3), the burden on the prosecution extends only to the grounds upon which the defense moved to suppress or object to the evidence.

(A) Right to Counsel.

(i) Initial Violation of Right to Counsel at a Lineup. When the accused raises the right to presence of counsel under this rule, the prosecution must prove by a preponderance of the evidence that counsel was present at the lineup or that the accused, having been advised of the right to the presence of counsel, voluntarily and intelligently waived that right prior to the lineup.

(ii) Identification Subsequent to a Lineup Conducted in Violation of the Right to Counsel. When the military judge determines that an identification is the result of a lineup conducted without the presence of counsel or an appropriate waiver, any later identification by one present at such unlawful lineup is also a result thereof unless the military judge determines that the contrary has been shown by clear and convincing evidence.

(B) Unreliable Identification.

(i) Initial Unreliable Identification. When an objection raises the issue of an unreliable identification, the prosecution must prove by a preponderance of the evidence that the identification was reliable under the circumstances.

(ii) Identification Subsequent to an Unreliable Identification. When the military judge determines that an identification is the result of an unreliable identification, a later identification may be admitted if the prosecution proves by clear and convincing evidence that the later identification is not the result of the inadmissible identification.

(7) Rulings. A motion to suppress or an objection to evidence made prior to plea under this rule will be ruled upon prior to plea unless the military judge, for good cause, orders that it be deferred for determination at the trial of the general issue or until after findings, but no such determination will be deferred if a party's right to appeal the ruling is affected adversely. Where factual issues are involved in ruling upon such motion or objection, the military judge will state his or her essential findings of fact on the record.

(e) Effect of Guilty Pleas. Except as otherwise expressly provided in R.C.M. 910(a)(2), a plea of guilty to an offense that results in a finding of guilty waives all issues under this rule with respect to that offense whether or not raised prior to the plea.

Evidence is relevant if:

(a) It has any tendency to make a fact more or less probable than it would be without the evidence; and

(b) The fact is of consequence in determining the action.

(a) Relevant evidence is admissible unless any of the following provides otherwise:

(1) The United States Constitution as it applies to members of the armed forces;

(2) A federal statute applicable to trial by courts-martial;

(3) These rules; or

(4) This Manual.

(b) Irrelevant evidence is not admissible.

The military judge may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: Unfair prejudice, confusing the issues, misleading the members, undue delay, wasting time, or needlessly presenting cumulative evidence.

(a) Character Evidence.

(1) Prohibited Uses. Evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.

(2) Exceptions for an Accused or Victim.

(A) The accused may offer evidence of the accused's pertinent trait, and if the evidence is admitted, the prosecution may offer evidence to rebut it.

(B) Subject to the limitations in Mil. R. Evid. 412, the accused may offer evidence of an alleged victim's pertinent trait, and if the evidence is admitted, the prosecution may:

(i) Offer evidence to rebut it; and

(ii) Offer evidence of the accused's same trait; and

(C) In a homicide or assault case, the prosecution may offer evidence of the alleged victim's trait of peacefulness to rebut evidence that the victim was the first aggressor.

(3) Exceptions for a Witness. Evidence of a witness's character may be admitted under Mil R. Evid. 607, 608, and 609.

(b) Crimes, Wrongs, or Other Acts.

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.

(2) Permitted Uses; Notice. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by the accused, the prosecution must:

(A) Provide reasonable notice of the general nature of any such evidence that the prosecution intends to offer at trial; and

(B) Do so before trial—or during trial if the military judge, for good cause, excuses lack of pretrial notice.

(a) By Reputation or Opinion. When evidence of a person's character or character trait is admissible, it may be proved by testimony about the person's reputation or by testimony in the form of an opinion. On cross-examination of the character witness, the military judge may allow an inquiry into relevant specific instances of the person's conduct.

(b) By Specific Instances of Conduct. When a person's character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person's conduct.

(c) By Affidavit. The defense may introduce affidavits or other written statements of persons other than the accused concerning the character of the accused. If the defense introduces affidavits or other written statements under this subdivision, the prosecution may, in rebuttal, also introduce affidavits or other written statements regarding the character of the accused. Evidence of this type may be introduced by the defense or prosecution only if, aside from being contained in an affidavit or other written statement, it would otherwise be admissible under these rules.

(d) Definitions. “Reputation” means the estimation in which a person generally is held in the community in which the person lives or pursues a business or profession. “Community” in the armed forces includes a post, camp, ship, station, or other military organization regardless of size.

Evidence of a person's habit or an organization's routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The military judge may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.

(a) When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:

(1) Negligence;

(2) Culpable conduct;

(3) A defect in a product or its design; or

(4) A need for a warning or instruction.

(b) The military judge may admit this evidence for another purpose, such as impeachment or—if disputed—proving ownership, control, or the feasibility of precautionary measures.

(a) Prohibited Uses. Evidence of the following is not admissible—on behalf of any party—either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:

(1) Furnishing, promising, or offering—or accepting, promising to accept, or offering to accept—a valuable consideration in order to compromise the claim; and

(2) Conduct or a statement made during compromise negotiations about the claim—except when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.

(b) Exceptions. The military judge may admit this evidence for another purpose, such as proving witness bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury.

(a) Prohibited Uses. Evidence of the following is not admissible against the accused who made the plea or participated in the plea discussions:

(1) A guilty plea that was later withdrawn;

(2) A nolo contendere plea;

(3) Any statement made in the course of any judicial inquiry regarding either of the foregoing pleas; or

(4) Any statement made during plea discussions with the convening authority, staff judge advocate, trial counsel or other counsel for the Government if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.

(b) Exceptions. The military judge may admit a statement described in subdivision (a)(3) or (a)(4):

(1) When another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together; or

(2) In a proceeding for perjury or false statement, if the accused made the statement under oath, on the record, and with counsel present.

(c) Request for Administrative Disposition. A “statement made during plea discussions” includes a statement made by the accused solely for the purpose of requesting disposition under an authorized procedure for administrative action in lieu of trial by court-martial; “on the record” includes the written statement submitted by the accused in furtherance of such request.

Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. The military judge may admit this evidence for another purpose, such as proving witness bias or prejudice or proving agency, ownership, or control.

(a) Prohibited Uses. The following evidence is not admissible in any proceeding involving an alleged sexual offense:

(1) Evidence offered to prove that a victim engaged in other sexual behavior; or

(2) Evidence offered to prove a victim's sexual predisposition.

(b) Exceptions. The military judge may admit the following evidence:

(1) Evidence of specific instances of a victim's sexual behavior, if offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence;

(2) Evidence of specific instances of a victim's sexual behavior with respect to the accused, if offered by the accused to prove consent or if offered by the prosecution; and

(3) Evidence the exclusion of which would violate the accused's constitutional rights.

(c) Procedure to Determine Admissibility.

(1) Motion. If a party intends to offer evidence under Rule 412(b), the party must:

(A) File a motion that specifically describes the evidence and states the purpose for which it is to be offered;

(B) Do so at least 5 days prior to entry of pleas unless the military judge, for good cause, sets a different time;

(C) Serve the motion on all parties; and

(D) Notify the victim or, when appropriate, the victim's guardian or representative.

(2) Hearing. Before admitting evidence under this rule, the military judge must conduct a hearing pursuant to Article 39(a) which must be closed to the public and outside the presence of the members. At this hearing, the parties may call witnesses, including the victim, and offer relevant evidence. The victim must be afforded a reasonable opportunity to attend and be heard. Unless the military judge orders otherwise, the motion, related materials, and the record of the hearing must be and remain sealed in accordance with R.C.M. 1103A.

(3) Scope. If the military judge determines on the basis of the hearing described in paragraph (2) of this subdivision that the evidence that the accused seeks to offer is relevant and that the probative value of such evidence outweighs the danger of unfair prejudice, such evidence shall be admissible in the trial to the extent an order made by the military judge specifies evidence that may be offered and areas with respect to which the victim or witness may be questioned.

(d) Definitions. As used in this rule:

(1) “Sexual behavior” means any sexual behavior not encompassed by the alleged offense.

(2) “Sexual offense” means any sexual misconduct punishable under the Uniform Code of Military Justice, federal law or state law.

(3) “Sexual predisposition” means a victim's mode of dress, speech, or lifestyle, that may have a sexual connotation for the factfinder, but that does not directly relate to sexual activities or thoughts.

(4) “Victim” includes an alleged victim.

(a) Permitted Uses. In a court-martial proceeding for a sexual offense, the military judge may admit evidence that the accused committed any other sexual offense. The evidence may be considered on any matter to which it is relevant.

(b) Disclosure to the Accused. If the prosecution intends to offer this evidence, the prosecution must disclose it to the accused, including any witnesses' statements or a summary of the expected testimony. The prosecution must do so at least 5 days prior to entry of pleas or at a later time that the military judge allows for good cause.

(c) Effect on Other Rules. This rule does not limit the admission or consideration of evidence under any other rule.

(d) Definition. As used in this rule, “sexual offense” means an offense punishable under the Uniform Code of Military Justice, or a crime under federal or state law (as “state” is defined in 18 U.S.C. § 513), involving:

(1) Any conduct prohibited by Article 120;

(2) Any conduct prohibited by 18 U.S.C. chapter 109A;

(3) Contact, without consent, between any part of the accused's body—or an object—and another person's genitals or anus;

(4) Contact, without consent, between the accused's genitals or anus and any part of another person's body;

(5) Deriving sexual pleasure or gratification from inflicting death, bodily injury, or physical pain on another person; or

(6) An attempt or conspiracy to engage in conduct described in subdivisions (1)-(5).

(a) Permitted Uses. In a court-martial proceeding in which an accused is charged with an act of child molestation, the military judge may admit evidence that the accused committed any other offense of child molestation. The evidence may be considered on any matter to which it is relevant.

(b) Disclosure to the Accused. If the prosecution intends to offer this evidence, the prosecution must disclose it to the accused, including witnesses' statements or a summary of the expected testimony. The prosecution must do so at least 5 days prior to entry of pleas or at a later time that the military judge allows for good cause.

(c) Effect on Other Rules. This rule does not limit the admission or consideration of evidence under any other rule.

(d) Definitions. As used in this rule:

(1) “Child” means a person below the age of 16; and

(2) “Child molestation” means an offense punishable under the Uniform Code of Military Justice, or a crime under federal law or under state law (as “state” is defined in 18 U.S.C. 513), that involves:

(A) Any conduct prohibited by Article 120 and committed with a child;

(B) Any conduct prohibited by 18 U.S.C. chapter 109A and committed with a child;

(C) Any conduct prohibited by 18 U.S.C. chapter 110;

(D) Contact between any part of the accused's body—or an object—and a child's genitals or anus;

(E) Contact between the accused's genitals or anus and any part of a child's body;

(F) Deriving sexual pleasure or gratification from inflicting death, bodily injury, or physical pain on a child; or

(G) An attempt or conspiracy to engage in conduct described in subdivisions (A)-(F).

(a) A person may not claim a privilege with respect to any matter except as required by or provided for in:

(1) The United States Constitution as applied to members of the armed forces;

(2) A federal statute applicable to trials by courts-martial;

(3) These rules;

(4) This Manual; or

(4) The principles of common law generally recognized in the trial of criminal cases in the United States district courts under rule 501 of the Federal Rules of Evidence, insofar as the application of such principles in trials by courts-martial is practicable and not contrary to or inconsistent with the Uniform Code of Military Justice, these rules, or this Manual.

(b) A claim of privilege includes, but is not limited to, the assertion by any person of a privilege to:

(1) Refuse to be a witness;

(2) Refuse to disclose any matter;

(3) Refuse to produce any object or writing; or

(4) Prevent another from being a witness or disclosing any matter or producing any object or writing.

(c) The term “person” includes an appropriate representative of the Federal Government, a State, or political subdivision thereof, or any other entity claiming to be the holder of a privilege.

(d) Notwithstanding any other provision of these rules, information not otherwise privileged does not become privileged on the basis that it was acquired by a medical officer or civilian physician in a professional capacity.

(a) General Rule. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client:

(1) Between the client or the client's representative and the lawyer or the lawyer's representative;

(2) Between the lawyer and the lawyer's representative;

(3) By the client or the client's lawyer to a lawyer representing another in a matter of common interest;

(4) Between representatives of the client or between the client and a representative of the client; or

(5) Between lawyers representing the client.

(b) Definitions. As used in this rule:

(1) “Client” means a person, public officer, corporation, association, organization, or other entity, either public or private, who receives professional legal services from a lawyer, or who consults a lawyer with a view to obtaining professional legal services from the lawyer.

(2) “Lawyer” means a person authorized, or reasonably believed by the client to be authorized, to practice law; or a member of the armed forces detailed, assigned, or otherwise provided to represent a person in a court-martial case or in any military investigation or proceeding. The term “lawyer” does not include a member of the armed forces serving in a capacity other than as a judge advocate, legal officer, or law specialist as defined in Article 1, unless the member:

(A) Is detailed, assigned, or otherwise provided to represent a person in a court-martial case or in any military investigation or proceeding;

(B) Is authorized by the armed forces, or reasonably believed by the client to be authorized, to render professional legal services to members of the armed forces; or

(C) Is authorized to practice law and renders professional legal services during off-duty employment.

(3) “Lawyer's representative” means a person employed by or assigned to assist a lawyer in providing professional legal services.

(4) A communication is “confidential” if not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.

(c) Who May Claim the Privilege. The privilege may be claimed by the client, the guardian or conservator of the client, the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation, association, or other organization, whether or not in existence. The lawyer or the lawyer's representative who received the communication may claim the privilege on behalf of the client. The authority of the lawyer to do so is presumed in the absence of evidence to the contrary.

(d) Exceptions. There is no privilege under this rule under any of the following circumstances:

(1) Crime or Fraud. If the communication clearly contemplated the future commission of a fraud or crime or if services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud.

(2) Claimants through Same Deceased Client. As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction.

(3) Breach of Duty by Lawyer or Client. As to a communication relevant to an issue of breach of duty by the lawyer to the client or by the client to the lawyer;

(4) Document Attested by the Lawyer. As to a communication relevant to an issue concerning an attested document to which the lawyer is an attesting witness; or

(5) Joint Clients. As to a communication relevant to a matter of common interest between two or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between any of the clients.

(a) General Rule. A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a clergyman or to a clergyman's assistant, if such communication is made either as a formal act of religion or as a matter of conscience.

(b) Definitions. As used in this rule:

(1) “Clergyman” means a minister, priest, rabbi, chaplain, or other similar functionary of a religious organization, or an individual reasonably believed to be so by the person consulting the clergyman.

(2) “Clergyman's assistant” means a person employed by or assigned to assist a clergyman in his capacity as a spiritual advisor.

(3) A communication is “confidential” if made to a clergyman in the clergyman's capacity as a spiritual adviser or to a clergyman's assistant in the assistant's official capacity and is not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the purpose of the communication or to those reasonably necessary for the transmission of the communication.

(c) Who May Claim the Privilege. The privilege may be claimed by the person, by the guardian, or conservator, or by a personal representative if the person is deceased. The clergyman or clergyman's assistant who received the communication may claim the privilege on behalf of the person. The authority of the clergyman or clergyman's assistant to do so is presumed in the absence of evidence to the contrary.

(a) Spousal Incapacity. A person has a privilege to refuse to testify against his or her spouse.

(b) Confidential Communication Made During the Marriage.

(1) General Rule. A person has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, any confidential communication made to the spouse of the person while they were husband and wife and not separated as provided by law.

(2) Definition. As used in this rule, a communication is “confidential” if made privately by any person to the spouse of the person and is not intended to be disclosed to third persons other than those reasonably necessary for transmission of the communication.

(3) Who May Claim the Privilege. The privilege may be claimed by the spouse who made the communication or by the other spouse on his or her behalf. The authority of the latter spouse to do so is presumed in the absence of evidence of a waiver. The privilege will not prevent disclosure of the communication at the request of the spouse to whom the communication was made if that spouse is an accused regardless of whether the spouse who made the communication objects to its disclosure.

(c) Exceptions.

(1) To Spousal Incapacity Only. There is no privilege under subdivision (a) when, at the time the testimony of one of the parties to the marriage is to be introduced in evidence against the other party, the parties are divorced or the marriage has been annulled.

(2) To Spousal Incapacity and Confidential Communications. There is no privilege under subdivisions (a) or (b):

(A) In proceedings in which one spouse is charged with a crime against the person or property of the other spouse or a child of either, or with a crime against the person or property of a third person committed in the course of committing a crime against the other spouse;

(B) When the marital relationship was entered into with no intention of the parties to live together as spouses, but only for the purpose of using the purported marital relationship as a sham, and with respect to the privilege in subdivision (a), the relationship remains a sham at the time the testimony or statement of one of the parties is to be introduced against the other; or with respect to the privilege in subdivision (b), the relationship was a sham at the time of the communication; or

(C) In proceedings in which a spouse is charged, in accordance with Article 133 or 134, with importing the other spouse as an alien for prostitution or other immoral purpose in violation of 18 U.S.C. 1328; with transporting the other spouse in interstate commerce for immoral purposes or other offense in violation of 18 U.S.C. 2421-2424; or with violation of such other similar statutes under which such privilege may not be claimed in the trial of criminal cases in the United States district courts.

(D) Where both parties have been substantial participants in illegal activity, those communications between the spouses during the marriage regarding the illegal activity in which they have jointly participated are not marital communications for purposes of the privilege in subdivision (b), and are not entitled to protection under the privilege in subdivision (b).

(d) Definitions. As used in this rule:

(1) “A child of either” means a biological child, adopted child, or ward of one of the spouses and includes a child who is under the permanent or temporary physical custody of one of the spouses, regardless of the existence of a legal parent-child relationship. For purposes of this rule only, a child is:

(A) An individual under the age of 18; or

(B) An individual with a mental handicap who functions under the age of 18.

(2) “Temporary physical custody” means a parent has entrusted his or her child with another. There is no minimum amount of time necessary to establish temporary physical custody, nor is a written agreement required. Rather, the focus is on the parent's agreement with another for assuming parental responsibility for the child. For example, temporary physical custody may include instances where a parent entrusts another with the care of their child for recurring care or during absences due to temporary duty or deployments.

(a) General Rule. Classified information must be protected and is privileged from disclosure if disclosure would be detrimental to the national security. Under no circumstances may a military judge order the release of classified information to any person not authorized to receive such information. The Secretary of Defense may prescribe security procedures for protection against the compromise of classified information submitted to courts-martial and appellate authorities.

(b) Definitions. As used in this rule:

(1) “Classified information” means any information or material that has been determined by the United States Government pursuant to an executive order, statute, or regulations, to require protection against unauthorized disclosure for reasons of national security, and any restricted data, as defined in 42 U.S.C. 2014(y).

(2) “National security” means the national defense and foreign relations of the United States.

(3) “In camera hearing” means a session under Article 39(a) from which the public is excluded.

(4) “In camera review” means an inspection of documents or other evidence conducted by the military judge alone in chambers and not on the record.

(5) “Ex parte” means a discussion between the military judge and either the defense counsel or prosecution, without the other party or the public present. This discussion can be on or off the record, depending on the circumstances. The military judge will grant a request for an ex parte discussion or hearing only after finding that such discussion or hearing is necessary to protect classified information or other good cause. Prior to granting a request from one party for an ex parte discussion or hearing, the military judge must provide notice to the opposing party on the record. If the ex parte discussion is conducted off the record, the military judge should later state on the record that such ex parte discussion took place and generally summarize the subject matter of the discussion, as appropriate.

(c) Access to Evidence. Any information admitted into evidence pursuant to any rule, procedure, or order by the military judge must be provided to the accused.

(d) Declassification. Trial counsel should, when practicable, seek declassification of evidence that may be used at trial, consistent with the requirements of national security. A decision not to declassify evidence under this section is not subject to review by a military judge or upon appeal.

(e) Action Prior to Referral of Charges.

(1) Prior to referral of charges, upon a showing by the accused that the classified information sought is relevant and necessary to an element of the offense or a legally cognizable defense, the convening authority must respond in writing to a request by the accused for classified information if the privilege in this rule is claimed for such information. In response to such a request, the convening authority may:

(A) Delete specified items of classified information from documents made available to the accused;

(B) Substitute a portion or summary of the information for such classified documents;

(C) Substitute a statement admitting relevant facts that the classified information would tend to prove;

(D) Provide the document subject to conditions that will guard against the compromise of the information disclosed to the accused; or

(E) Withhold disclosure if actions under (A) through (D) cannot be taken without causing identifiable damage to the national security.

(2) An Article 32 investigating officer may not rule on any objection by the accused to the release of documents or information protected by this rule.

(3) Any objection by the accused to withholding of information or to the conditions of disclosure must be raised through a motion for appropriate relief at a pretrial conference.

(f) Actions after Referral of Charges.

(1) Pretrial Conference. At any time after referral of charges, any party may move for a pretrial conference under Article 39(a) to consider matters relating to classified information that may arise in connection with the trial. Following such a motion, or when the military judge recognizes the need for such conference, the military judge must promptly hold a pretrial conference under Article 39(a).

(2) Ex Parte Permissible. Upon request by either party and with a showing of good cause, the military judge must hold such conference ex parte to the extent necessary to protect classified information from disclosure.

(3) Matters To Be Established at Pretrial Conference.

(A) Timing of Subsequent Actions. At the pretrial conference, the military judge must establish the timing of:

(i) Requests for discovery;

(ii) The provision of notice required by subdivision (i) of this rule; and

(iii) The initiation of the procedure established by subdivision (j) of this rule.

(B) Other Matters. At the pretrial conference, the military judge may also consider any matter which relates to classified information or which may promote a fair and expeditious trial.

(4) Convening Authority Notice and Action. If a claim of privilege has been made under this rule with respect to classified information that apparently contains evidence that is relevant and necessary to an element of the offense or a legally cognizable defense and is otherwise admissible in evidence in the court-martial proceeding, the matter will be reported to the convening authority. The convening authority may:

(A) Institute action to obtain the classified information for the use by the military judge in making a determination under subdivision (j);

(B) Dismiss the charges;

(C) Dismiss the charges or specifications or both to which the information relates; or

(D) Take such other action as may be required in the interests of justice.

(5) Remedies. If, after a reasonable period of time, the information is not provided to the military judge in circumstances where proceeding with the case without such information would materially prejudice a substantial right of the accused, the military judge must dismiss the charges or specifications or both to which the classified information relates.

(g) Protective Orders. Upon motion of the trial counsel, the military judge must issue an order to protect against the disclosure of any classified information that has been disclosed by the United States to any accused in any court-martial proceeding or that has otherwise been provided to, or obtained by, any such accused in any such court-martial proceeding. The terms of any such protective order may include, but are not limited to, provisions:

(1) Prohibiting the disclosure of the information except as authorized by the military judge;

(2) Requiring storage of material in a manner appropriate for the level of classification assigned to the documents to be disclosed;

(3) Requiring controlled access to the material during normal business hours and at other times upon reasonable notice;

(4) Mandating that all persons requiring security clearances will cooperate with investigatory personnel in any investigations which are necessary to obtain a security clearance;

(5) Requiring the maintenance of logs regarding access by all persons authorized by the military judge to have access to the classified information in connection with the preparation of the defense;

(6) Regulating the making and handling of notes taken from material containing classified information; or

(7) Requesting the convening authority to authorize the assignment of government security personnel and the provision of government storage facilities.

(h) Discovery and Access by the Accused.

(1) Limitations.

(A) Government Claim of Privilege. In court-martial proceeding in which the government seeks to delete, withhold, or otherwise obtain other relief with respect to the discovery of or access to any classified information, the trial counsel must submit a declaration invoking the United States' classified information privilege and setting forth the damage to the national security that the discovery of or access to such information reasonably could be expected to cause. The declaration must be signed by the head, or designee, of the executive or military department or government agency concerned.

(B) Standard for Discovery or Access by the Accused. Upon the submission of a declaration under subdivision (h)(1)(A), the military judge may not authorize the discovery of or access to such classified information unless the military judge determines that such classified information would be noncumulative and relevant to a legally cognizable defense, rebuttal of the prosecution's case, or to sentencing. If the discovery of or access to such classified information is authorized, it must be addressed in accordance with the requirements of subdivision (h)(2).

(2) Alternatives to Full Discovery.

(A) Substitutions and Other Alternatives. The military judge, in assessing the accused's right to discover or access classified information under this subdivision, may authorize the Government:

(i) To delete or withhold specified items of classified information;

(ii) To substitute a summary for classified information; or

(iii) To substitute a statement admitting relevant facts that the classified information or material would tend to prove, unless the military judge determines that disclosure of the classified information itself is necessary to enable the accused to prepare for trial.

(B) In Camera Review. The military judge must, upon the request of the prosecution, conduct an in camera review of the prosecution's motion and any materials submitted in support thereof and must not disclose such information to the accused.

(C) Action by Military Judge. The military judge must grant the request of the trial counsel to substitute a summary or to substitute a statement admitting relevant facts, or to provide other relief in accordance with subdivision (h)(2)(A), if the military judge finds that the summary, statement, or other relief would provide the accused with substantially the same ability to make a defense as would discovery of or access to the specific classified information.

(3) Reconsideration. An order of a military judge authorizing a request of the trial counsel to substitute, summarize, withhold, or prevent access to classified information under this subdivision (h) is not subject to a motion for reconsideration by the accused, if such order was entered pursuant to an ex parte showing under this subdivision.

(i) Disclosure by the Accused.

(1) Notification to Trial Counsel and Military Judge. If an accused reasonably expects to disclose, or to cause the disclosure of, classified information in any manner in connection with any trial or pretrial proceeding involving the prosecution of such accused, the accused must, within the time specified by the military judge or, where no time is specified, prior to arraignment of the accused, notify the trial counsel and the military judge in writing.

(2) Content of Notice. Such notice must include a brief description of the classified information.

(3) Ex Parte Proffer. At the request of the defense counsel, the military judge may allow defense counsel to make an ex parte proffer of the classified information to the military judge so that the military judge can determine the relevance of the information for use by the accused.

(4) Continuing Duty To Notify. Whenever the accused learns of additional classified information the accused reasonably expects to disclose, or to cause the disclosure of, at any such proceeding, the accused must notify trial counsel and the military judge in writing as soon as possible thereafter and must include a brief description of the classified information.

(5) Limitation on Disclosure by Accused. The accused may not disclose, or cause the disclosure of, any information known or believed to be classified in connection with a trial or pretrial proceeding until:

(A) Notice has been given under this subdivision (i); and

(B) The Government has been afforded a reasonable opportunity to seek a determination pursuant to the procedure set forth in subdivision (j).

(6) Failure to comply. If the accused fails to comply with the requirements of this subdivision, the military judge:

(A) May preclude disclosure of any classified information not made the subject of notification; and

(B) May prohibit the examination by the accused of any witness with respect to any such information.

(j) Procedure for Use of Classified Information in Trials and Pretrial Proceedings.

(1) Hearing on Use of Classified Information.

(A) Motion for Hearing. Within the time specified by the military judge for the filing of a motion under this rule, either party may move for a hearing concerning the use at any proceeding of any classified information. Upon a request by either party, the military judge must conduct such a hearing and must rule prior to conducting any further proceedings.

(B) Request for In Camera Hearing. Any hearing held pursuant to this subdivision (or any portion of such hearing specified in the request of a knowledgeable United States official) must be held in camera if a knowledgeable United States official possessing authority to classify information submits to the military judge a declaration that a public proceeding may result in the disclosure of classified information.

(C) Notice to Accused. Before the hearing, trial counsel must provide the accused with notice of the classified information that is at issue. Such notice must identify the specific classified information at issue whenever that information previously has been made available to the accused by the United States. When the United States has not previously made the information available to the accused in connection with the case the information may be described by generic category, in such forms as the military judge may approve, rather than by identification of the specific information of concern to the United States.

(D) Standard for Disclosure. Classified information is not subject to disclosure under this subdivision unless the information is relevant and necessary to an element of the offense or a legally cognizable defense and is otherwise admissible in evidence. In presentencing proceedings, relevant and material classified information pertaining to the appropriateness of, or the appropriate degree of, punishment must be admitted only if no unclassified version of such information is available.

(E) Written Findings. As to each item of classified information, the military judge must set forth in writing the basis for the determination.

(2) Alternatives to Full Disclosure.

(A) Motion by the Prosecution. Upon any determination by the military judge authorizing the disclosure of specific classified information under the procedures established by this subdivision (j), the trial counsel may move that, in lieu of the disclosure of such specific classified information, the military judge order:

(i) The substitution for such classified information of a statement admitting relevant facts that the specific classified information would tend to prove;

(ii) The substitution for such classified information of a summary of the specific classified information; or

(iii) Any other procedure or redaction limiting the disclosure of specific classified information.

(B) Declaration of Damage to National Security. The trial counsel may, in connection with a motion under this subdivision (j), submit to the military judge a declaration signed by the head, or designee, of the executive or military department or government agency concerned certifying that disclosure of classified information would cause identifiable damage to the national security of the United States and explaining the basis for the classification of such information. If so requested by the trial counsel, the military judge must examine such declaration during an in camera review.

(C) Hearing. The military judge must hold a hearing on any motion under this subdivision. Any such hearing must be held in camera at the request of a knowledgeable United States official possessing authority to classify information.

(D) Standard for Use of Alternatives. The military judge must grant such a motion of the trial counsel if the military judge finds that the statement, summary, or other procedure or redaction will provide the accused with substantially the same ability to make his or her defense as would disclosure of the specific classified information.

(3) Sealing of Records of In Camera Hearings. If at the close of an in camera hearing under this subdivision (or any portion of a hearing under this subdivision that is held in camera), the military judge determines that the classified information at issue may not be disclosed or elicited at the trial or pretrial proceeding, the record of such in camera hearing must be sealed in accordance with R.C.M. 1103A and preserved for use in the event of an appeal. The accused may seek reconsideration of the military judge's determination prior to or during trial.

(4) Remedies. If the military judge determines that alternatives to full disclosure may not be used and the prosecution continues to object to disclosure of the information, the military judge must issue any order that the interests of justice require, including but not limited to, an order:

(A) Striking or precluding all or part of the testimony of a witness;

(B) Declaring a mistrial;

(C) Finding against the Government on any issue as to which the evidence is relevant and material to the defense;

(D) Dismissing the charges, with or without prejudice; or

(E) Dismissing the charges or specifications or both to which the information relates.

The Government may avoid the sanction for nondisclosure by permitting the accused to disclose the information at the pertinent court-martial proceeding.

(5) Disclosure of Rebuttal Information. Whenever the military judge determines that classified information may be disclosed in connection with a trial or pretrial proceeding, the military judge must, unless the interests of fairness do not so require, order the prosecution to provide the accused with the information it expects to use to rebut the classified information.

(A) Continuing Duty. The military judge may place the prosecution under a continuing duty to disclose such rebuttal information.

(B) Sanction for Failure To Comply. If the prosecution fails to comply with its obligation under this subdivision, the military judge:

(i) May exclude any evidence not made the subject of a required disclosure; and

(ii) May prohibit the examination by the prosecution of any witness with respect to such information.

(6) Disclosure at Trial of Previous Statements by a Witness.

(A) Motion for Production of Statements in Possession of the Prosecution. After a witness called by the trial counsel has testified on direct examination, the military judge, on motion of the accused, may order production of statements of the witness in the possession of the Prosecution which relate to the subject matter as to which the witness has testified. This paragraph does not preclude discovery or assertion of a privilege otherwise authorized.

(B) Invocation of Privilege by the Government. If the Government invokes a privilege, the trial counsel may provide the prior statements of the witness to the military judge for in camera review to the extent necessary to protect classified information from disclosure.

(C) Action by Military Judge. If the military judge finds that disclosure of any portion of the statement identified by the Government as classified would be detrimental to the national security in the degree required to warrant classification under the applicable Executive Order, statute, or regulation, that such portion of the statement is consistent with the testimony of the witness, and that the disclosure of such portion is not necessary to afford the accused a fair trial, the military judge must excise that portion from the statement. If the military judge finds that such portion of the statement is inconsistent with the testimony of the witness or that its disclosure is necessary to afford the accused a fair trial, the military judge must, upon the request of the trial counsel, consider alternatives to disclosure in accordance with this subdivision (j)(2).

(k) Introduction into Evidence of Classified Information.

(1) Preservation of Classification Status. Writings, recordings, and photographs containing classified information may be admitted into evidence in court-martial proceedings under this rule without change in their classification status.

(A) Precautions. The military judge in a trial by court-martial, in order to prevent unnecessary disclosure of classified information, may order admission into evidence of only part of a writing, recording, or photograph, or may order admission into evidence of the whole writing, recording, or photograph with excision of some or all of the classified information contained therein, unless the whole ought in fairness be considered.

(B) Classified Information Kept Under Seal. The military judge must allow classified information offered or accepted into evidence to remain under seal during the trial, even if such evidence is disclosed in the court-martial proceeding, and may, upon motion by the Government, seal exhibits containing classified information in accordance with R.C.M. 1103A for any period after trial as necessary to prevent a disclosure of classified information when a knowledgeable United States official possessing authority to classify information submits to the military judge a declaration setting forth the damage to the national security that the disclosure of such information reasonably could be expected to cause.

(2) Testimony.

(A) Objection by Trial Counsel. During the examination of a witness, trial counsel may object to any question or line of inquiry that may require the witness to disclose classified information not previously found to be admissible.

(B) Action by Military Judge. Following an objection under this subdivision (k), the military judge must take such suitable action to determine whether the response is admissible as will safeguard against the compromise of any classified information. Such action may include requiring trial counsel to provide the military judge with a proffer of the witness's response to the question or line of inquiry and requiring the accused to provide the military judge with a proffer of the nature of the information sought to be elicited by the accused. Upon request, the military judge may accept an ex parte proffer by trial counsel to the extent necessary to protect classified information from disclosure.

(3) Closed session. The military judge may, subject to the requirements of the United States Constitution, exclude the public during that portion of the presentation of evidence that discloses classified information.

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

(a) Protection of Government Information. Except where disclosure is required by a federal statute, government information is privileged from disclosure if disclosure would be detrimental to the public interest.

(b) Scope. “Government information” includes official communication and documents and other information within the custody or control of the Federal Government. This rule does not apply to classified information (Mil. R. Evid. 505) or to the identity of an informant (Mil. R. Evid. 507).

(c) Definitions. As used in this rule:

(1) “In camera hearing” means a session under Article 39(a) from which the public is excluded.

(2) “In camera review” means an inspection of documents or other evidence conducted by the military judge alone in chambers and not on the record.

(3) “Ex parte” means a discussion between the military judge and either the defense counsel or prosecution, without the other party or the public present. This discussion can be on or off the record, depending on the circumstances. The military judge will grant a request for an ex parte discussion or hearing only after finding that such discussion or hearing is necessary to protect government information or other good cause. Prior to granting a request from one party for an ex parte discussion or hearing, the military judge must provide notice to the opposing party on the record. If the ex parte discussion is conducted off the record, the military judge should later state on the record that such ex parte discussion took place and generally summarize the subject matter of the discussion, as appropriate.

(d) Who May Claim the Privilege. The privilege may be claimed by the head, or designee, of the executive or military department or government agency concerned. The privilege for records and information of the Inspector General may be claimed by the immediate superior of the inspector general officer responsible for creation of the records or information, the Inspector General, or any other superior authority. A person who may claim the privilege may authorize a witness or the trial counsel to claim the privilege on his or her behalf. The authority of a witness or the trial counsel to do so is presumed in the absence of evidence to the contrary.

(e) Action Prior to Referral of Charges.

(1) Prior to referral of charges, upon a showing by the accused that the government information sought is relevant and necessary to an element of the offense or a legally cognizable defense, the convening authority must respond in writing to a request by the accused for government information if the privilege in this rule is claimed for such information. In response to such a request, the convening authority may:

(A) Delete specified items of government information claimed to be privileged from documents made available to the accused;

(B) Substitute a portion or summary of the information for such documents;

(C) Substitute a statement admitting relevant facts that the government information would tend to prove;

(D) Provide the document subject to conditions similar to those set forth in subdivision (g) of this rule; or

(E) Withhold disclosure if actions under (1) through (4) cannot be taken without causing identifiable damage to the public interest.

(2) Any objection by the accused to withholding of information or to the conditions of disclosure must be raised through a motion for appropriate relief at a pretrial conference.

(f) Action After Referral of Charges.

(1) Pretrial Conference. At any time after referral of charges, any party may move for a pretrial conference under Article 39(a) to consider matters relating to government information that may arise in connection with the trial. Following such a motion, or when the military judge recognizes the need for such conference, the military judge must promptly hold a pretrial conference under Article 39(a).

(2) Ex Parte Permissible. Upon request by either party and with a showing of good cause, the military judge must hold such conference ex parte to the extent necessary to protect government information from disclosure.

(3) Matters to be Established at Pretrial Conference.

(A) Timing of Subsequent Actions. At the pretrial conference, the military judge must establish the timing of:

(i) Requests for discovery;

(ii) The provision of notice required by subdivision (i) of this rule; and

(iii) The initiation of the procedure established by subdivision (j) of this rule.

(B) Other Matters. At the pretrial conference, the military judge may also consider any matter which relates to government information or which may promote a fair and expeditious trial.

(4) Convening Authority Notice and Action. If a claim of privilege has been made under this rule with respect to government information that apparently contains evidence that is relevant and necessary to an element of the offense or a legally cognizable defense and is otherwise admissible in evidence in the court-martial proceeding, the matter must be reported to the convening authority. The convening authority may:

(A) Institute action to obtain the information for use by the military judge in making a determination under subdivision (j);

(B) Dismiss the charges;

(C) Dismiss the charges or specifications or both to which the information relates; or

(D) Take such other action as may be required in the interests of justice.

(5) Remedies. If after a reasonable period of time the information is not provided to the military judge in circumstances where proceeding with the case without such information would materially prejudice a substantial right of the accused, the military judge must dismiss the charges or specifications or both to which the information relates.

(g) Protective Orders. Upon motion of the trial counsel, the military judge must issue an order to protect against the disclosure of any government information that has been disclosed by the United States to any accused in any court-martial proceeding or that has otherwise been provided to, or obtained by, any such accused in any such court-martial proceeding. The terms of any such protective order may include, but are not limited to, provisions:

(1) Prohibiting the disclosure of the information except as authorized by the military judge;

(2) Requiring storage of the material in a manner appropriate for the nature of the material to be disclosed;

(3) Requiring controlled access to the material during normal business hours and at other times upon reasonable notice;

(4) Requiring the maintenance of logs recording access by persons authorized by the military judge to have access to the government information in connection with the preparation of the defense;

(5) Regulating the making and handling of notes taken from material containing government information; or

(6) Requesting the convening authority to authorize the assignment of government security personnel and the provision of government storage facilities.

(h) Discovery and Access by the Accused.

(1) Limitations.

(A) Government Claim of Privilege. In court-martial proceeding in which the government seeks to delete, withhold, or otherwise obtain other relief with respect to the discovery of or access to any government information subject to a claim of privilege, the trial counsel must submit a declaration invoking the United States' government information privilege and setting forth the detriment to the public interest that the discovery of or access to such information reasonably could be expected to cause. The declaration must be signed by a knowledgeable United States official as described in subdivision (d) of this rule.

(B) Standard for Discovery or Access by the Accused. Upon the submission of a declaration under subdivision (h)(1)(A), the military judge may not authorize the discovery of or access to such government information unless the military judge determines that such government information would be noncumulative, relevant, and helpful to a legally cognizable defense, rebuttal of the prosecution's case, or to sentencing. If the discovery of or access to such government information is authorized, it must be addressed in accordance with the requirements of subdivision (h)(2).

(2) Alternatives to Full Disclosure.

(A) Substitutions and Other Alternatives. The military judge, in assessing the accused's right to discover or access government information under this subdivision, may authorize the Government:

(i) To delete or withhold specified items of government information;

(ii) To substitute a summary for government information; or

(iii) To substitute a statement admitting relevant facts that the government information or material would tend to prove, unless the military judge determines that disclosure of the government information itself is necessary to enable the accused to prepare for trial.

(B) In Camera Review. The military judge must, upon the request of the prosecution, conduct an in camera review of the prosecution's motion and any materials submitted in support thereof and must not disclose such information to the accused.

(C) Action by Military Judge. The military judge must grant the request of the trial counsel to substitute a summary or to substitute a statement admitting relevant facts, or to provide other relief in accordance with subdivision (h)(2)(A), if the military judge finds that the summary, statement, or other relief would provide the accused with substantially the same ability to make a defense as would discovery of or access to the specific government information.

(i) Disclosure by the Accused.

(1) Notification to Trial Counsel and Military Judge. If an accused reasonably expects to disclose, or to cause the disclosure of, government information subject to a claim of privilege in any manner in connection with any trial or pretrial proceeding involving the prosecution of such accused, the accused must, within the time specified by the military judge or, where no time is specified, prior to arraignment of the accused, notify the trial counsel and the military judge in writing.

(2) Content of Notice. Such notice must include a brief description of the government information.

(3) Ex Parte Review. At the request of the defense counsel, the military judge may allow defense counsel to make an ex parte proffer of the government information to the military judge so that the military judge can determine the relevance of the information for use by the accused.

(4) Continuing Duty to Notify. Whenever the accused learns of additional government information the accused reasonably expects to disclose, or to cause the disclosure of, at any such proceeding, the accused must notify trial counsel and the military judge in writing as soon as possible thereafter and must include a brief description of the government information.

(5) Limitation on Disclosure by Accused. The accused may not disclose, or cause the disclosure of, any information known or believed to be subject to a claim of privilege in connection with a trial or pretrial proceeding until:

(A) Notice has been given under this subdivision (i); and

(B) The Government has been afforded a reasonable opportunity to seek a determination pursuant to the procedure set forth in subdivision (j).

(6) Failure to Comply. If the accused fails to comply with the requirements of this subdivision, the military judge:

(A) May preclude disclosure of any government information not made the subject of notification; and

(B) May prohibit the examination by the accused of any witness with respect to any such information.

(j) Procedure for Use of Government Information Subject to a Claim of Privilege in Trials and Pretrial Proceedings.

(1) Hearing on Use of Government Information.

(A) Motion for Hearing. Within the time specified by the military judge for the filing of a motion under this rule, either party may move for an in camera hearing concerning the use at any proceeding of any government information that may be subject to a claim of privilege. Upon a request by either party, the military judge must conduct such a hearing and must rule prior to conducting any further proceedings.

(B) Request for In Camera Hearing. Any hearing held pursuant to this subdivision must be held in camera if a knowledgeable United States official described in subdivision (d) of this rule submits to the military judge a declaration that disclosure of the information reasonably could be expected to cause identifiable damage to the public interest.

(C) Notice to Accused. Subject to subdivision (j)(2) below, the prosecution must disclose government information claimed to be privileged under this rule for the limited purpose of litigating, in camera, the admissibility of the information at trial. The military judge must enter an appropriate protective order to the accused and all other appropriate trial participants concerning the disclosure of the information according to subdivision (g), above. The accused may not disclose any information provided under this subdivision unless, and until, such information has been admitted into evidence by the military judge. In the in camera hearing, both parties may have the opportunity to brief and argue the admissibility of the government information at trial.

(D) Standard for Disclosure. Government information is subject to disclosure at the court-martial proceeding under this subdivision if the party making the request demonstrates a specific need for information containing evidence that is relevant to the guilt or innocence or to punishment of the accused, and is otherwise admissible in the court-martial proceeding.

(E) Written Findings. As to each item of government information, the military judge must set forth in writing the basis for the determination.

(2) Alternatives to Full Disclosure.

(A) Motion by the Prosecution. Upon any determination by the military judge authorizing disclosure of specific government information under the procedures established by this subdivision (j), the prosecution may move that, in lieu of the disclosure of such information, the military judge order:

(i) The substitution for such government information of a statement admitting relevant facts that the specific government information would tend to prove;

(ii) The substitution for such government information of a summary of the specific government information; or

(iii) Any other procedure or redaction limiting the disclosure of specific government information.

(B) Hearing. The military judge must hold a hearing on any motion under this subdivision. At the request of the trial counsel, the military judge will conduct an in camera hearing.

(C) Standard for Use of Alternatives. The military judge must grant such a motion of the trial counsel if the military judge finds that the statement, summary, or other procedure or redaction will provide the accused with substantially the same ability to make his or her defense as would disclosure of the specific government information.

(3) Sealing of Records of In Camera Hearings. If at the close of an in camera hearing under this subdivision (or any portion of a hearing under this subdivision that is held in camera), the military judge determines that the government information at issue may not be disclosed or elicited at the trial or pretrial proceeding, the record of such in camera hearing must be sealed in accordance with R.C.M. 1103A and preserved for use in the event of an appeal. The accused may seek reconsideration of the military judge's determination prior to or during trial.

(4) Remedies. If the military judge determines that alternatives to full disclosure may not be used and the prosecution continues to object to disclosure of the information, the military judge must issue any order that the interests of justice require, including but not limited to, an order:

(A) Striking or precluding all or part of the testimony of a witness;

(B) Declaring a mistrial;

(C) Finding against the Government on any issue as to which the evidence is relevant and necessary to the defense;

(D) Dismissing the charges, with or without prejudice; or

(E) Dismissing the charges or specifications or both to which the information relates.

The Government may avoid the sanction for nondisclosure by permitting the accused to disclose the information at the pertinent court-martial proceeding.

(5) Disclosure of Rebuttal Information. Whenever the military judge determines that government information may be disclosed in connection with a trial or pretrial proceeding, the military judge must, unless the interests of fairness do not so require, order the prosecution to provide the accused with the information it expects to use to rebut the government information.

(A) Continuing Duty. The military judge may place the prosecution under a continuing duty to disclose such rebuttal information.

(B) Sanction for Failure to Comply. If the prosecution fails to comply with its obligation under this subdivision, the military judge may make such ruling as the interests of justice require, to include:

(i) Excluding any evidence not made the subject of a required disclosure; and

(ii) Prohibiting the examination by the prosecution of any witness with respect to such information.

(k) Appeals of Orders and Rulings. In a court-martial in which a punitive discharge may be adjudged, the Government may appeal an order or ruling of the military judge that terminates the proceedings with respect to a charge or specification, directs the disclosure of government information, or imposes sanctions for nondisclosure of government information. The Government may also appeal an order or ruling in which the military judge refuses to issue a protective order sought by the United States to prevent the disclosure of government information, or to enforce such an order previously issued by appropriate authority. The Government may not appeal an order or ruling that is, or amounts to, a finding of not guilty with respect to the charge or specification.

(l) Introduction into Evidence of Government Information Subject to a Claim of Privilege.

(1) Precautions. The military judge in a trial by court-martial, in order to prevent unnecessary disclosure of government information after there has been a claim of privilege under this rule, may order admission into evidence of only part of a writing, recording, or photograph or admit into evidence the whole writing, recording, or photograph with excision of some or all of the government information contained therein, unless the whole ought in fairness be considered.

(2) Government Information Kept Under Seal. The military judge must allow government information offered or accepted into evidence to remain under seal during the trial, even if such evidence is disclosed in the court-martial proceeding, and may, upon motion by the prosecution, seal exhibits containing government information in accordance with R.C.M. 1103A for any period after trial as necessary to prevent a disclosure of government information when a knowledgeable United States official described in subdivision (d) submits to the military judge a declaration setting forth the detriment to the public interest that the disclosure of such information reasonably could be expected to cause.

(3) Testimony.

(A) Objection by Trial Counsel. During examination of a witness, trial counsel may object to any question or line of inquiry that may require the witness to disclose government information not previously found admissible if such information has been or is reasonably likely to be the subject of a claim of privilege under this rule.

(B) Action by Military Judge. Following such an objection, the military judge must take such suitable action to determine whether the response is admissible as will safeguard against the compromise of any government information. Such action may include requiring trial counsel to provide the military judge with a proffer of the witness's response to the question or line of inquiry and requiring the accused to provide the military judge with a proffer of the nature of the information sought to be elicited by the accused. Upon request, the military judge may accept an ex parte proffer by trial counsel to the extent necessary to protect government information from disclosure.

(m) Record of Trial. If under this rule any information is withheld from the accused, the accused objects to such withholding, and the trial is continued to an adjudication of guilt of the accused, the entire unaltered text of the relevant documents as well as the prosecution's motion and any materials submitted in support thereof must be sealed in accordance with R.C.M. 1103A and attached to the record of trial as an appellate exhibit. Such material must be made available to reviewing authorities in closed proceedings for the purpose of reviewing the determination of the military judge.

(a) General Rule. The United States or a State or subdivision thereof has a privilege to refuse to disclose the identity of an informant. Unless otherwise privileged under these rules, the communications of an informant are not privileged except to the extent necessary to prevent the disclosure of the informant's identity.

(b) Definitions. As used in this rule:

(1) “Informant” means a person who has furnished information relating to or assisting in an investigation of a possible violation of law to a person whose official duties include the discovery, investigation, or prosecution of crime.

(2) “In camera review” means an inspection of documents or other evidence conducted by the military judge alone in chambers and not on the record.

(c) Who May Claim the Privilege. The privilege may be claimed by an appropriate representative of the United States, regardless of whether information was furnished to an officer of the United States or a State or subdivision thereof. The privilege may be claimed by an appropriate representative of a State or subdivision if the information was furnished to an officer thereof, except the privilege will not be allowed if the prosecution objects.

(d) Exceptions.

(1) Voluntary Disclosures; Informant as a Prosecution Witness. No privilege exists under this rule:

(A) If the identity of the informant has been disclosed to those who would have cause to resent the communication by a holder of the privilege or by the informant's own action; or

(B) If the informant appears as a witness for the prosecution.

(2) Informant as a Defense Witness. If a claim of privilege has been made under this rule, the military judge must, upon motion by the accused, determine whether disclosure of the identity of the informant is necessary to the accused's defense on the issue of guilt or innocence. Whether such a necessity exists will depend on the particular circumstances of each case, taking into consideration the offense charged, the possible defense, the possible significance of the informant's testimony, and other relevant factors. If it appears from the evidence in the case or from other showing by a party that an informant may be able to give testimony necessary to the accused's defense on the issue of guilt or innocence, the military judge may make any order required by the interests of justice.

(3) Informant as a Witness regarding a Motion to Suppress Evidence. If a claim of privilege has been made under this rule with respect to a motion under Mil. R. Evid. 311, the military judge must, upon motion of the accused, determine whether disclosure of the identity of the informant is required by the United States Constitution as applied to members of the armed forces. In making this determination, the military judge may make any order required by the interests of justice.

(e) Procedures.

(1) In Camera Review. If the accused has articulated a basis for disclosure under the standards set forth in this rule, the prosecution may ask the military judge to conduct an in camera review of affidavits or other evidence relevant to disclosure.

(2) Order by the Military Judge. If a claim of privilege has been made under this rule, the military judge may make any order required by the interests of justice.

(3) Action by the Convening Authority. If the military judge determines that disclosure of the identity of the informant is required under the standards set forth in this rule, and the prosecution elects not to disclose the identity of the informant, the matter must be reported to the convening authority. The convening authority may institute action to secure disclosure of the identity of the informant, terminate the proceedings, or take such other action as may be appropriate under the circumstances.

(4) Remedies. If, after a reasonable period of time disclosure is not made, the military judge, sua sponte or upon motion of either counsel and after a hearing if requested by either party, may dismiss the charge or specifications or both to which the information regarding the informant would relate if the military judge determines that further proceedings would materially prejudice a substantial right of the accused.

A person has a privilege to refuse to disclose the tenor of the person's vote at a political election conducted by secret ballot unless the vote was cast illegally.

Except as provided in Mil. R. Evid. 606, the deliberations of courts, courts-martial, military judges, and grand and petit juries are privileged to the extent that such matters are privileged in trial of criminal cases in the United States district courts, but the results of the deliberations are not privileged.

(a) A person upon whom these rules confer a privilege against disclosure of a confidential matter or communication waives the privilege if the person or the person's predecessor while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the matter or communication under such circumstances that it would be inappropriate to allow the claim of privilege. This rule does not apply if the disclosure is itself a privileged communication.

(b) Unless testifying voluntarily concerning a privileged matter or communication, an accused who testifies in his or her own behalf or a person who testifies under a grant or promise of immunity does not, merely by reason of testifying, waive a privilege to which he or she may be entitled pertaining to the confidential matter or communication.

(a) General Rule. Evidence of a statement or other disclosure of privileged matter is not admissible against the holder of the privilege if disclosure was compelled erroneously or was made without an opportunity for the holder of the privilege to claim the privilege.

(b) Use of Communications Media. The telephonic transmission of information otherwise privileged under these rules does not affect its privileged character. Use of electronic means of communication other than the telephone for transmission of information otherwise privileged under these rules does not affect the privileged character of such information if use of such means of communication is necessary and in furtherance of the communication.

(a) Comment or Inference Not Permitted.

(1) The claim of a privilege by the accused whether in the present proceeding or upon a prior occasion is not a proper subject of comment by the military judge or counsel for any party. No inference may be drawn therefrom.

(2) The claim of a privilege by a person other than the accused whether in the present proceeding or upon a prior occasion normally is not a proper subject of comment by the military judge or counsel for any party. An adverse inference may not be drawn therefrom except when determined by the military judge to be required by the interests of justice.

(b) Claiming a Privilege Without the Knowledge of the Members. In a trial before a court-martial with members, proceedings must be conducted, to the extent practicable, so as to facilitate the making of claims of privilege without the knowledge of the members. This subdivision (b) does not apply to a special court-martial without a military judge.

(c) Instruction. Upon request, any party against whom the members might draw an adverse inference from a claim of privilege is entitled to an instruction that no inference may be drawn therefrom except as provided in subdivision (a)(2).

(a) General Rule. A patient has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made between the patient and a psychotherapist or an assistant to the psychotherapist, in a case arising under the Uniform Code of Military Justice, if such communication was made for the purpose of facilitating diagnosis or treatment of the patient's mental or emotional condition.

(b) Definitions. As used in this rule:

(1) “Patient” means a person who consults with or is examined or interviewed by a psychotherapist for purposes of advice, diagnosis, or treatment of a mental or emotional condition.

(2) “Psychotherapist” means a psychiatrist, clinical psychologist, or clinical social worker who is licensed in any state, territory, possession, the District of Columbia or Puerto Rico to perform professional services as such, or who holds credentials to provide such services from any military health care facility, or is a person reasonably believed by the patient to have such license or credentials.

(3) “Assistant to a psychotherapist” means a person directed by or assigned to assist a psychotherapist in providing professional services, or is reasonably believed by the patient to be such.

(4) A communication is “confidential” if not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional services to the patient or those reasonably necessary for such transmission of the communication.

(5) “Evidence of a patient's records or communications” means testimony of a psychotherapist, or assistant to the same, or patient records that pertain to communications by a patient to a psychotherapist, or assistant to the same for the purposes of diagnosis or treatment of the patient's mental or emotional condition.

(c) Who May Claim the Privilege. The privilege may be claimed by the patient or the guardian or conservator of the patient. A person who may claim the privilege may authorize trial counsel or defense counsel to claim the privilege on his or her behalf. The psychotherapist or assistant to the psychotherapist who received the communication may claim the privilege on behalf of the patient. The authority of such a psychotherapist, assistant, guardian, or conservator to so assert the privilege is presumed in the absence of evidence to the contrary.

(d) Exceptions. There is no privilege under this rule:

(1) When the patient is dead;

(2) When the communication is evidence of child abuse or of neglect, or in a proceeding in which one spouse is charged with a crime against a child of either spouse;

(3) When federal law, state law, or service regulation imposes a duty to report information contained in a communication;

(4) When a psychotherapist or assistant to a psychotherapist believes that a patient's mental or emotional condition makes the patient a danger to any person, including the patient;

(5) If the communication clearly contemplated the future commission of a fraud or crime or if the services of the psychotherapist are sought or obtained to enable or aid anyone to commit or plan to commit what the patient knew or reasonably should have known to be a crime or fraud;

(6) When necessary to ensure the safety and security of military personnel, military dependents, military property, classified information, or the accomplishment of a military mission;

(7) When an accused offers statements or other evidence concerning his mental condition in defense, extenuation, or mitigation, under circumstances not covered by R.C.M. 706 or Mil. R. Evid. 302. In such situations, the military judge may, upon motion, order disclosure of any statement made by the accused to a psychotherapist as may be necessary in the interests of justice; or

(8) When admission or disclosure of a communication is constitutionally required.

(e) Procedure to Determine Admissibility of Patient Records or Communications.

(1) In any case in which the production or admission of records or communications of a patient other than the accused is a matter in dispute, a party may seek an interlocutory ruling by the military judge. In order to obtain such a ruling, the party must:

(A) File a written motion at least 5 days prior to entry of pleas specifically describing the evidence and stating the purpose for which it is sought or offered, or objected to, unless the military judge, for good cause shown, requires a different time for filing or permits filing during trial; and

(B) Serve the motion on the opposing party, the military judge and, if practical, notify the patient or the patient's guardian, conservator, or representative that the motion has been filed and that the patient has an opportunity to be heard as set forth in subdivision (e)(2).

(2) Before ordering the production or admission of evidence of a patient's records or communication, the military judge must conduct a hearing. Upon the motion of counsel for either party and upon good cause shown, the military judge may order the hearing closed. At the hearing, the parties may call witnesses, including the patient, and offer other relevant evidence. The patient must be afforded a reasonable opportunity to attend the hearing and be heard at the patient's own expense unless the patient has been otherwise subpoenaed or ordered to appear at the hearing. However, the proceedings may not be unduly delayed for this purpose. In a case before a court-martial composed of a military judge and members, the military judge must conduct the hearing outside the presence of the members.

(3) The military judge may examine the evidence or a proffer thereof in camera, if such examination is necessary to rule on the motion.

(4) To prevent unnecessary disclosure of evidence of a patient's records or communications, the military judge may issue protective orders or may admit only portions of the evidence.

(5) The motion, related papers, and the record of the hearing must be sealed in accordance with R.C.M. 1103A and must remain under seal unless the military judge or an appellate court orders otherwise.

(a) General Rule. A victim has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made between the alleged victim and a victim advocate, in a case arising under the Uniform Code of Military Justice, if such communication was made for the purpose of facilitating advice or supportive assistance to the alleged victim.

(b) Definitions. As used in this rule:

(1) “Victim” means any person who is alleged to have suffered direct physical or emotional harm as the result of a sexual or violent offense.

(2) “Victim advocate” means a person who:

(A) Is designated in writing as a victim advocate in accordance with service regulation;

(B) Is authorized to perform victim advocate duties in accordance with service regulation and is acting in the performance of those duties; or

(C) Is certified as a victim advocate pursuant to federal or state requirements.

(3) A communication is “confidential” if made in the course of the victim advocate—victim relationship and not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of advice or assistance to the alleged victim or those reasonably necessary for such transmission of the communication.

(4) “Evidence of a victim's records or communications” means testimony of a victim advocate, or records that pertain to communications by a victim to a victim advocate, for the purposes of advising or providing supportive assistance to the victim.

(c) Who May Claim the Privilege. The privilege may be claimed by the victim or the guardian or conservator of the victim. A person who may claim the privilege may authorize trial counsel or a defense counsel representing the victim to claim the privilege on his or her behalf. The victim advocate who received the communication may claim the privilege on behalf of the victim. The authority of such a victim advocate, guardian, conservator, or a defense counsel representing the victim to so assert the privilege is presumed in the absence of evidence to the contrary.

(d) Exceptions. There is no privilege under this rule:

(1) When the victim is dead;

(2) When federal law, state law, or service regulation imposes a duty to report information contained in a communication;

(3) When a victim advocate believes that a victim's mental or emotional condition makes the victim a danger to any person, including the victim;

(4) If the communication clearly contemplated the future commission of a fraud or crime, or if the services of the victim advocate are sought or obtained to enable or aid anyone to commit or plan to commit what the victim knew or reasonably should have known to be a crime or fraud;

(5) When necessary to ensure the safety and security of military personnel, military dependents, military property, classified information, or the accomplishment of a military mission; or

(6) When admission or disclosure of a communication is constitutionally required.

(e) Procedure to Determine Admissibility of Victim Records or Communications.

(1) In any case in which the production or admission of records or communications of a victim is a matter in dispute, a party may seek an interlocutory ruling by the military judge. In order to obtain such a ruling, the party must:

(A) File a written motion at least 5 days prior to entry of pleas specifically describing the evidence and stating the purpose for which it is sought or offered, or objected to, unless the military judge, for good cause shown, requires a different time for filing or permits filing during trial; and

(B) Serve the motion on the opposing party, the military judge and, if practicable, notify the victim or the victim's guardian, conservator, or representative that the motion has been filed and that the victim has an opportunity to be heard as set forth in subdivision (e)(2).

(2) Before ordering the production or admission of evidence of a victim's records or communication, the military judge must conduct a hearing. Upon the motion of counsel for either party and upon good cause shown, the military judge may order the hearing closed. At the hearing, the parties may call witnesses, including the victim, and offer other relevant evidence. The victim must be afforded a reasonable opportunity to attend the hearing and be heard at the victim's own expense unless the victim has been otherwise subpoenaed or ordered to appear at the hearing. However, the proceedings may not be unduly delayed for this purpose. In a case before a court-martial composed of a military judge and members, the military judge must conduct the hearing outside the presence of the members.

(3) The military judge may examine the evidence or a proffer thereof in camera, if such examination is necessary to rule on the motion.

(4) To prevent unnecessary disclosure of evidence of a victim's records or communications, the military judge may issue protective orders or may admit only portions of the evidence.

(5) The motion, related papers, and the record of the hearing must be sealed in accordance with R.C.M. 1103A and must remain under seal unless the military judge or an appellate court orders otherwise.

Every person is competent to be a witness unless these rules provide otherwise.

A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness's own testimony. This rule does not apply to a witness's expert testimony under Mil. R. Evid. 703.

Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness's conscience.

An interpreter must be qualified and must give an oath or affirmation to make a true translation.

(a) The presiding military judge may not testify as a witness at any proceeding of that court-martial. A party need not object to preserve the issue.

(b) This rule does not preclude the military judge from placing on the record matters concerning docketing of the case.

(a) At the Trial by Court-Martial. A member of a court-martial may not testify as a witness before the other members at any proceeding of that court-martial. If a member is called to testify, the military judge must—except in a special court-martial without a military judge—give the opposing party an opportunity to object outside the presence of the members.

(b) During an Inquiry into the Validity of a Finding or Sentence.

(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a finding or sentence, a member of a court-martial may not testify about any statement made or incident that occurred during the deliberations of that court-martial; the effect of anything on that member's or another member's vote; or any member's mental processes concerning the finding or sentence. The military judge may not receive a member's affidavit or evidence of a member's statement on these matters.

(2) Exceptions. A member may testify about whether:

(A) Extraneous prejudicial information was improperly brought to the members' attention;

(B) Unlawful command influence or any other outside influence was improperly brought to bear on any member; or

(C) A mistake was made in entering the finding or sentence on the finding or sentence forms.

Any party, including the party that called the witness, may attack the witness's credibility.

(a) Reputation or Opinion Evidence. A witness's credibility may be attacked or supported by testimony about the witness's reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. Evidence of truthful character is admissible only after the witness's character for truthfulness has been attacked.

(b) Specific Instances of Conduct. Except for a criminal conviction under Mil. R. Evid. 609, extrinsic evidence is not admissible to prove specific instances of a witness's conduct in order to attack or support the witness's character for truthfulness. The military judge may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:

(1) The witness; or

(2) Another witness whose character the witness being cross-examined has testified about.

By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness's character for truthfulness.

(c) Evidence of Bias. Bias, prejudice, or any motive to misrepresent may be shown to impeach the witness either by examination of the witness or by evidence otherwise adduced.

(a) In General. The following rules apply to attacking a witness's character for truthfulness by evidence of a criminal conviction:

(1) For a crime that, in the convicting jurisdiction, was punishable by death, dishonorable discharge, or by imprisonment for more than one year, the evidence:

(A) Must be admitted, subject to Mil. R. Evid. 403, in a court-martial in which the witness is not the accused; and

(B) Must be admitted in a court-martial in which the witness is the accused, if the probative value of the evidence outweighs its prejudicial effect to that accused; and

(2) For any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving—or the witness's admitting—a dishonest act or false statement.

(3) In determining whether a crime tried by court-martial was punishable by death, dishonorable discharge, or imprisonment in excess of one year, the maximum punishment prescribed by the President under Article 56 at the time of the conviction applies without regard to whether the case was tried by general, special, or summary court-martial.

(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years have passed since the witness's conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:

(1) Its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and

(2) The proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.

(c) Effect of a Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible if:

(1) The conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death, dishonorable discharge, or imprisonment for more than one year; or

(2) The conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

(d) Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under this rule only if:

(1) The adjudication was of a witness other than the accused;

(2) An adult's conviction for that offense would be admissible to attack the adult's credibility; and

(3) Admitting the evidence is necessary to fairly determine guilt or innocence.

(e) Pendency of an Appeal. A conviction that satisfies this rule is admissible even if an appeal is pending, except that a conviction by summary court-martial or special court-martial without a military judge may not be used for purposes of impeachment until review has been completed under Article 64 or Article 66, if applicable. Evidence of the pendency is also admissible.

(f) Definition. For purposes of this rule, there is a “conviction” in a court-martial case when a sentence has been adjudged.

Evidence of a witness's religious beliefs or opinions is not admissible to attack or support the witness's credibility.

(a) Control by the Military Judge; Purposes. The military judge should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:

(1) Make those procedures effective for determining the truth;

(2) Avoid wasting time; and

(3) Protect witnesses from harassment or undue embarrassment.

(b) Scope of Cross-Examination. Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness's credibility. The military judge may allow inquiry into additional matters as if on direct examination.

(c) Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness's testimony. Ordinarily, the military judge should allow leading questions:

(1) On cross-examination; and

(2) When a party calls a hostile witness or a witness identified with an adverse party.

(d) Remote live testimony of a child.

(1) In a case involving domestic violence or the abuse of a child, the military judge must, subject to the requirements of subdivision (3) of this rule, allow a child victim or witness to testify from an area outside the courtroom as prescribed in R.C.M. 914A.

(2) Definitions. As used in this rule:

(A) “Child” means a person who is under the age of 16 at the time of his or her testimony.

(B) “Abuse of a child” means the physical or mental injury, sexual abuse or exploitation, or negligent treatment of a child.

(C) “Exploitation” means child pornography or child prostitution.

(D) “Negligent treatment” means the failure to provide, for reasons other than poverty, adequate food, clothing, shelter, or medical care so as to endanger seriously the physical health of the child.

(E) “Domestic violence” means an offense that has as an element the use, or attempted or threatened use of physical force against a person by a current or former spouse, parent, or guardian of the victim; by a person with whom the victim shares a child in common; by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian; or by a person similarly situated to a spouse, parent, or guardian of the victim.

(3) Remote live testimony will be used only where the military judge makes the following three findings on the record:

(A) That it is necessary to protect the welfare of the particular child witness;

(B) That the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant; and

(C) That the emotional distress suffered by the child witness in the presence of the defendant is more than de minimis.

(4) Remote live testimony of a child will not be used when the accused elects to absent himself from the courtroom in accordance with R.C.M. 804(d).

(5) In making a determination under subdivision (d)(3), the military judge may question the child in chambers, or at some comfortable place other than the courtroom, on the record for a reasonable period of time, in the presence of the child, a representative of the prosecution, a representative of the defense, and the child's attorney or guardian ad litem.

(a) Scope. This rule gives an adverse party certain options when a witness uses a writing to refresh memory:

(1) While testifying; or

(2) Before testifying, if the military judge decides that justice requires the party to have those options.

(b) Adverse Party's Options; Deleting Unrelated Matter. An adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness's testimony. If the producing party claims that the writing includes unrelated or privileged matter, the military judge must examine the writing in camera, delete any unrelated or privileged portion, and order that the rest be delivered to the adverse party. Any portion deleted over objection must be preserved for the record.

(c) Failure to Produce or Deliver the Writing. If a writing is not produced or is not delivered as ordered, the military judge may issue any appropriate order. If the prosecution does not comply, the military judge must strike the witness's testimony or—if justice so requires—declare a mistrial.

(d) No Effect on Other Disclosure Requirements. This rule does not preclude disclosure of information required to be disclosed under other provisions of these rules or this Manual.

(a) Showing or Disclosing the Statement During Examination. When examining a witness about the witness's prior statement, a party need not show it or disclose its contents to the witness. The party must, on request, show it or disclose its contents to an adverse party's attorney.

(b) Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a witness's prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires. This subdivision (b) does not apply to an opposing party's statement under Mil. R. Evid. 801(d)(2).

(a) Calling. The military judge may—sua sponte or at the request of the members or the suggestion of a party—call a witness. Each party is entitled to cross-examine the witness. When the members wish to call or recall a witness, the military judge must determine whether the testimony would be relevant and not barred by any rule or provision of this Manual.

(b) Examining. The military judge or members may examine a witness regardless of who calls the witness. Members must submit their questions to the military judge in writing. Following the opportunity for review by both parties, the military judge must rule on the propriety of the questions, and ask the questions in an acceptable form on behalf of the members. When the military judge or the members call a witness who has not previously testified, the military judge may conduct the direct examination or may assign the responsibility to counsel for any party.

(c) Objections. A party may object to the court-martial's calling or examining a witness either at that time or at the next opportunity when the members are not present.

At a party's request, the military judge must order witnesses excluded so that they cannot hear other witnesses' testimony, or the military judge may do so sua sponte. This rule does not authorize excluding:

(a) The accused;

(b) A member of an armed service or an employee of the United States after being designated as a representative of the United States by the trial counsel;

(c) A person whose presence a party shows to be essential to presenting the party's case;

(d) A person authorized by statute to be present; or

(e) A victim of an offense from the trial of an accused for that offense, when the sole basis for exclusion would be that the victim may testify or present information during the presentencing phase of the trial.

If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:

(a) Rationally based on the witness's perception;

(b) Helpful to clearly understanding the witness's testimony or to determining a fact in issue; and

(c) Not based on scientific, technical, or other specialized knowledge within the scope of Mil. R. Evid. 702.

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) The expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) The testimony is based on sufficient facts or data;

(c) The testimony is the product of reliable principles and methods; and

(d) The expert has reliably applied the principles and methods to the facts of the case.

An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. If the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the members of a court-martial only if the military judge finds that their probative value in helping the members evaluate the opinion substantially outweighs their prejudicial effect.

An opinion is not objectionable just because it embraces an ultimate issue.

Unless the military judge orders otherwise, an expert may state an opinion—and give the reasons for it—without first testifying to the underlying facts or data. The expert may be required to disclose those facts or data on cross-examination.

(a) Appointment Process. The trial counsel, the defense counsel, and the court-martial have equal opportunity to obtain expert witnesses under Article 46 and R.C.M. 703.

(b) Compensation. The compensation of expert witnesses is governed by R.C.M. 703.

(c) Accused's Choice of Experts. This rule does not limit an accused in calling any expert at the accused's own expense.

(a) Prohibitions. Notwithstanding any other provision of law, the result of a polygraph examination, the polygraph examiner's opinion, or any reference to an offer to take, failure to take, or taking of a polygraph examination is not admissible.

(b) Statements Made During a Polygraph Examination. This rule does not prohibit admission of an otherwise admissible statement made during a polygraph examination.

(a) Statement. “Statement” means a person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.

(b) Declarant. “Declarant” means the person who made the statement.

(c) Hearsay. “Hearsay” means a statement that:

(1) The declarant does not make while testifying at the current trial or hearing; and

(2) A party offers in evidence to prove the truth of the matter asserted in the statement.

(d) Statements that Are Not Hearsay. A statement that meets the following conditions is not hearsay:

(1) A Declarant-Witness's Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:

(A) Is inconsistent with the declarant's testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition;

(B) Is consistent with the declarant's testimony and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or

(C) Identifies a person as someone the declarant perceived earlier.

(2) An Opposing Party's Statement. The statement is offered against an opposing party and:

(A) Was made by the party in an individual or representative capacity;

(B) Is one the party manifested that it adopted or believed to be true;

(C) Was made by a person whom the party authorized to make a statement on the subject;

(D) Was made by the party's agent or employee on a matter within the scope of that relationship and while it existed; or

(E) Was made by the party's co-conspirator during and in furtherance of the conspiracy.

The statement must be considered but does not by itself establish the declarant's authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E).

Hearsay is not admissible unless any of the following provides otherwise:

(a) A federal statute applicable in trial by courts-martial; or

(b) These rules.

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

(1) Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

(2) Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.

(3) Then-Existing Mental, Emotional, or Physical Condition. A statement of the declarant's then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant's will.

(4) Statement Made for Medical Diagnosis or Treatment. A statement that—

(A) Is made for—and is reasonably pertinent to—medical diagnosis or treatment; and

(B) Describes medical history; past or present symptoms or sensations; their inception; or their general cause.

(5) Recorded Recollection. A record that:

(A) Is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;

(B) Was made or adopted by the witness when the matter was fresh in the witness's memory; and

(C) Accurately reflects the witness's knowledge.

If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.

(6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if:

(A) The record was made at or near the time by—or from information transmitted by—someone with knowledge;

(B) the record was kept in the course of a regularly conducted activity of a uniformed service, business, institution, association, profession, organization, occupation, or calling of any kind, whether or not conducted for profit;

(C) Making the record was a regular practice of that activity;

(D) All these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Mil. R. Evid. 902(11) or with a statute permitting certification in a criminal proceeding in a court of the United States; and

(E) Neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.

Records of regularly conducted activities include, but are not limited to, enlistment papers, physical examination papers, fingerprint cards, forensic laboratory reports, chain of custody documents, morning reports and other personnel accountability documents, service records, officer and enlisted qualification records, logs, unit personnel diaries, individual equipment records, daily strength records of prisoners, and rosters of prisoners.

(7) Absence of a Record of a Regularly Conducted Activity. Evidence that a matter is not included in a record described in paragraph (6) if:

(A) The evidence is admitted to prove that the matter did not occur or exist;

(B) A record was regularly kept for a matter of that kind; and

(C) Neither the possible source of the information nor other circumstances indicate a lack of trustworthiness.

(8) Public Records. A record or statement of a public office if:

(A) It sets out:

(i) The office's activities;

(ii) A matter observed while under a legal duty to report, but not including a matter observed by law-enforcement personnel and other personnel acting in a law enforcement capacity; or

(iii) Against the government, factual findings from a legally authorized investigation; and

(B) Neither the source of information nor other circumstances indicate a lack of trustworthiness.

Notwithstanding (A)(ii), the following are admissible under this paragraph as a record of a fact or event if made by a person within the scope of the person's official duties and those duties included a duty to know or to ascertain through appropriate and trustworthy channels of information the truth of the fact or event and to record such fact or event: enlistment papers, physical examination papers, fingerprint cards, forensic laboratory reports, chain of custody documents, morning reports and other personnel accountability documents, service records, officer and enlisted qualification records, court-martial conviction records, logs, unit personnel diaries, individual equipment records, daily strength records of prisoners, and rosters of prisoners.

(9) Public Records of Vital Statistics. A record of a birth, death, or marriage, if reported to a public office in accordance with a legal duty.

(10) Absence of a Public Record. Testimony—or a certification under Mil. R. Evid. 902—that a diligent search failed to disclose a public record or statement if the testimony or certification is admitted to prove that:

(A) The record or statement does not exist; or

(B) A matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind.

(11) Records of Religious Organizations Concerning Personal or Family History. A statement of birth, legitimacy, ancestry, marriage, divorce, death, relationship by blood or marriage, or similar facts of personal or family history, contained in a regularly kept record of a religious organization.

(12) Certificates of Marriage, Baptism, and Similar Ceremonies. A statement of fact contained in a certificate:

(A) Made by a person who is authorized by a religious organization or by law to perform the act certified;

(B) Attesting that the person performed a marriage or similar ceremony or administered a sacrament; and

(C) Purporting to have been issued at the time of the act or within a reasonable time after it.

(13) Family Records. A statement of fact about personal or family history contained in a family record, such as a Bible, genealogy, chart, engraving on a ring, inscription on a portrait, or engraving on an urn or burial marker.

(14) Records of Documents that Affect an Interest in Property. The record of a document that purports to establish or affect an interest in property if:

(A) The record is admitted to prove the content of the original recorded document, along with its signing and its delivery by each person who purports to have signed it;

(B) The record is kept in a public office; and

(C) A statute authorizes recording documents of that kind in that office.

(15) Statements in Documents that Affect an Interest in Property. A statement contained in a document that purports to establish or affect an interest in property if the matter stated was relevant to the document's purpose unless later dealings with the property are inconsistent with the truth of the statement or the purport of the document.

(16) Statements in Ancient Documents. A statement in a document that is at least 20 years old and whose authenticity is established.

(17) Market Reports and Similar Commercial Publications. Market quotations, lists (including government price lists), directories, or other compilations that are generally relied on by the public or by persons in particular occupations.

(18) Statements in Learned Treatises, Periodicals, or Pamphlets. A statement contained in a treatise, periodical, or pamphlet if:

(A) The statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and

(B) The publication is established as a reliable authority by the expert's admission or testimony, by another expert's testimony, or by judicial notice. If admitted, the statement may be read into evidence but not received as an exhibit.

(19) Reputation Concerning Personal or Family History. A reputation among a person's family by blood, adoption, or marriage—or among a person's associates or in the community—concerning the person's birth, adoption, legitimacy, ancestry, marriage, divorce, death, relationship by blood, adoption, or marriage, or similar facts of personal or family history.

(20) Reputation Concerning Boundaries or General History. A reputation in a community—arising before the controversy—concerning boundaries of land in the community or customs that affect the land, or concerning general historical events important to that community, state, or nation.

(21) Reputation Concerning Character. A reputation among a person's associates or in the community concerning the person's character.

(22) Judgment of a Previous Conviction. Evidence of a final judgment of conviction if:

(A) The judgment was entered after a trial or guilty plea, but not a nolo contendere plea;

(B) The conviction was for a crime punishable by death, dishonorable discharge, or by imprisonment for more than a year;

(C) The evidence is admitted to prove any fact essential to the judgment; and

(D) When offered by the prosecutor for a purpose other than impeachment, the judgment was against the accused.

The pendency of an appeal may be shown but does not affect admissibility. In determining whether a crime tried by court-martial was punishable by death, dishonorable discharge, or imprisonment for more than one year, the maximum punishment prescribed by the President under Article 56 of the Uniform Code of Military Justice at the time of the conviction applies without regard to whether the case was tried by general, special, or summary court-martial.

(23) Judgments Involving Personal, Family, or General History, or a Boundary. A judgment that is admitted to prove a matter of personal, family, or general history, or boundaries, if the matter:

(A) Was essential to the judgment; and

(B) Could be proved by evidence of reputation.

(a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant:

(1) Is exempted from testifying about the subject matter of the declarant's statement because the military judge rules that a privilege applies;

(2) Refuses to testify about the subject matter despite the military judge's order to do so;

(3) Testifies to not remembering the subject matter;

(4) Cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; or

(5) Is absent from the trial or hearing and the statement's proponent has not been able, by process or other reasonable means, to procure:

(A) The declarant's attendance, in the case of a hearsay exception under subdivision (b)(1) or (b)(5);

(B) The declarant's attendance or testimony, in the case of a hearsay exception under subdivision (b)(2), (b)(3), or (b)(4); or

(6) Is unavailable within the meaning of Article 49(d)(2).

This subdivision (a) does not apply if the statement's proponent procured or wrongfully caused the declarant's unavailability as a witness in order to prevent the declarant from attending or testifying.

(b) The Exceptions. The following are exceptions to the rule against hearsay, and are not excluded by that rule if the declarant is unavailable as a witness:

(1) Former Testimony. Testimony that:

(A) Was given by a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and

(B) Is now offered against a party who had an opportunity and similar motive to develop it by direct, cross-, or redirect examination.

Subject to the limitations in Articles 49 and 50, a record of testimony given before a court-martial, court of inquiry, military commission, other military tribunal, or pretrial investigation under Article 32 is admissible under this subdivision (b)(1) if the record of the testimony is a verbatim record.

(2) Statement under the Belief of Imminent Death. In a prosecution for any offense resulting in the death of the alleged victim, a statement that the declarant, while believing the declarant's death to be imminent, made about its cause or circumstances.

(3) Statement against Interest. A statement that:

(A) A reasonable person in the declarant's position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant's proprietary or pecuniary interest or had so great a tendency to invalidate the declarant's claim against someone else or to expose the declarant to civil or criminal liability; and

(B) Is supported by corroborating circumstances that clearly indicate its trustworthiness, if it tends to expose the declarant to criminal liability and is offered to exculpate the accused.

(4) Statement of Personal or Family History. A statement about:

(A) The declarant's own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by blood or marriage, or similar facts of personal or family history, even though the declarant had no way of acquiring personal knowledge about that fact; or

(B) Another person concerning any of these facts, as well as death, if the declarant was related to the person by blood, adoption, or marriage or was so intimately associated with the person's family that the declarant's information is likely to be accurate.

(5) Other Exceptions. [Transferred to M.R.E. 807]

(6) Statement Offered against a Party that Wrongfully Caused the Declarant's Unavailability. A statement offered against a party that wrongfully caused or acquiesced in wrongfully causing the declarant's unavailability as a witness, and did so intending that result.

Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception or exclusion to the rule.

When a hearsay statement—or a statement described in Mil. R. Evid. 801(d)(2)(C), (D), or (E)—has been admitted in evidence, the declarant's credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness. The military judge may admit evidence of the declarant's inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it. If the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross-examination.

(a) In General. Under the following circumstances, a hearsay statement is not excluded by the rule against hearsay even if the statement is not specifically covered by a hearsay exception in Mil. R. Evid. 803 or 804:

(1) The statement has equivalent circumstantial guarantees of trustworthiness;

(2) It is offered as evidence of a material fact;

(3) It is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and

(4) Admitting it will best serve the purposes of these rules and the interests of justice.

(b) Notice. The statement is admissible only if, before the trial or hearing, the proponent gives an adverse party reasonable notice of the intent to offer the statement and its particulars, including the declarant's name and address, so that the party has a fair opportunity to meet it.

(a) In General. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.

(b) Examples. The following are examples only—not a complete list—of evidence that satisfies the requirement:

(1) Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed to be.

(2) Nonexpert Opinion about Handwriting. A nonexpert's opinion that handwriting is genuine, based on a familiarity with it that was not acquired for the current litigation.

(3) Comparison by an Expert Witness or the Trier of Fact. A comparison with an authenticated specimen by an expert witness or the trier of fact.

(4) Distinctive Characteristics and the Like. The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.

(5) Opinion about a Voice. An opinion identifying a person's voice—whether heard firsthand or through mechanical or electronic transmission or recording—based on hearing the voice at any time under circumstances that connect it with the alleged speaker.

(6) Evidence about a Telephone Conversation. For a telephone conversation, evidence that a call was made to the number assigned at the time to:

(A) A particular person, if circumstances, including self-identification, show that the person answering was the one called; or

(B) A particular business, if the call was made to a business and the call related to business reasonably transacted over the telephone.

(7) Evidence about Public Records. Evidence that:

(A) A document was recorded or filed in a public office as authorized by law; or

(B) A purported public record or statement is from the office where items of this kind are kept.

(8) Evidence about Ancient Documents or Data Compilations. For a document or data compilation, evidence that it:

(A) Is in a condition that creates no suspicion about its authenticity;

(B) Was in a place where, if authentic, it would likely be; and

(C) Is at least 20 years old when offered.

(9) Evidence about a Process or System. Evidence describing a process or system and showing that it produces an accurate result.

(10) Methods Provided by a Statute or Rule. Any method of authentication or identification allowed by a federal statute, a rule prescribed by the Supreme Court, or an applicable regulation prescribed pursuant to statutory authority.

The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted:

(1) Domestic Public Documents that are Sealed and Signed. A document that bears:

(A) A seal purporting to be that of the United States; any state, district, commonwealth, territory, or insular possession of the United States; the former Panama Canal Zone; the Trust Territory of the Pacific Islands; a political subdivision of any of these entities; or a department, agency, or officer of any entity named above; and

(B) A signature purporting to be an execution or attestation.

(2) Domestic Public Documents that are Not Sealed but are Signed and Certified. A document that bears no seal if:

(A) It bears the signature of an officer or employee of an entity named in subdivision (1)(A) above; and

(B) Another public officer who has a seal and official duties within that same entity certifies under seal—or its equivalent—that the signer has the official capacity and that the signature is genuine.

(3) Foreign Public Documents. A document that purports to be signed or attested by a person who is authorized by a foreign country's law to do so. The document must be accompanied by a final certification that certifies the genuineness of the signature and official position of the signer or attester—or of any foreign official whose certificate of genuineness relates to the signature or attestation or is in a chain of certificates of genuineness relating to the signature or attestation. The certification may be made by a secretary of a United States embassy or legation; by a consul general, vice consul, or consular agent of the United States; or by a diplomatic or consular official of the foreign country assigned or accredited to the United States. If all parties have been given a reasonable opportunity to investigate the document's authenticity and accuracy, the military judge may, for good cause, either:

(A) Order that it be treated as presumptively authentic without final certification; or

(B) Allow it to be evidenced by an attested summary with or without final certification.

(4) Certified Copies of Public Records. A copy of an official record—or a copy of a document that was recorded or filed in a public office as authorized by law—if the copy is certified as correct by:

(A) The custodian or another person authorized to make the certification; or

(B) A certificate that complies with subdivision (1), (2), or (3) above, a federal statute, a rule prescribed by the Supreme Court, or an applicable regulation prescribed pursuant to statutory authority.

(4a) Documents or Records of the United States Accompanied by Attesting Certificates. Documents or records kept under the authority of the United States by any department, bureau, agency, office, or court thereof when attached to or accompanied by an attesting certificate of the custodian of the document or record without further authentication.

(5) Official Publications. A book, pamphlet, or other publication purporting to be issued by a public authority.

(6) Newspapers and Periodicals. Printed material purporting to be a newspaper or periodical.

(7) Trade Inscriptions and the Like. An inscription, sign, tag, or label purporting to have been affixed in the course of business and indicating origin, ownership, or control.

(8) Acknowledged Documents. A document accompanied by a certificate of acknowledgment that is lawfully executed by a notary public or another officer who is authorized to take acknowledgments.

(9) Commercial Paper and Related Documents. Commercial paper, a signature on it, and related documents, to the extent allowed by general commercial law.

(10) Presumptions under a Federal Statute or Regulation. A signature, document, or anything else that a federal statute, or an applicable regulation prescribed pursuant to statutory authority, declares to be presumptively or prima facie genuine or authentic.

(11) Certified Domestic Records of a Regularly Conducted Activity. The original or a copy of a domestic record that meets the requirements of Mil. R. Evid. 803(6)(A)-(C), as shown by a certification of the custodian or another qualified person that complies with a federal statute or a rule prescribed by the Supreme Court. Before the trial or hearing, or at a later time that the military judge allows for good cause, the proponent must give an adverse party reasonable written notice of the intent to offer the record and must make the record and certification available for inspection so that the party has a fair opportunity to challenge them.

A subscribing witness's testimony is necessary to authenticate a writing only if required by the law of the jurisdiction that governs its validity.

In this section:

(a) A “writing” consists of letters, words, numbers, or their equivalent set down in any form.

(b) A “recording” consists of letters, words, numbers, or their equivalent recorded in any manner.

(c) A “photograph” means a photographic image or its equivalent stored in any form.

(d) An “original” of a writing or recording means the writing or recording itself or any counterpart intended to have the same effect by the person who executed or issued it. For electronically stored information, “original” means any printout or other output readable by sight if it accurately reflects the information. An “original” of a photograph includes the negative or a print from it.

(e) A “duplicate” means a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original.

An original writing, recording, or photograph is required in order to prove its content unless these rules, this Manual, or a federal statute provides otherwise.

A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original's authenticity or the circumstances make it unfair to admit the duplicate.

An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if:

(a) All the originals are lost or destroyed, and not by the proponent acting in bad faith;

(b) An original cannot be obtained by any available judicial process;

(c) The party against whom the original would be offered had control of the original; was at that time put on notice, by pleadings or otherwise, that the original would be a subject of proof at the trial or hearing; and fails to produce it at the trial or hearing; or

(d) The writing, recording, or photograph is not closely related to a controlling issue.

The proponent may use a copy to prove the content of an official record—or of a document that was recorded or filed in a public office as authorized by law—if these conditions are met: The record or document is otherwise admissible; and the copy is certified as correct in accordance with Mil. R. Evid. 902(4) or is testified to be correct by a witness who has compared it with the original. If no such copy can be obtained by reasonable diligence, then the proponent may use other evidence to prove the content.

The proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time or place. The military judge may order the proponent to produce them in court.

The proponent may prove the content of a writing, recording, or photograph by the testimony, deposition, or written statement of the party against whom the evidence is offered. The proponent need not account for the original.

Ordinarily, the military judge determines whether the proponent has fulfilled the factual conditions for admitting other evidence of the content of a writing, recording, or photograph under Mil. R. Evid. 1004 or 1005. When a court-martial is composed of a military judge and members, the members determine—in accordance with Mil. R. Evid. 104(b)—any issue about whether:

(a) An asserted writing, recording, or photograph ever existed;

(b) Another one produced at the trial or hearing is the original; or

(c) Other evidence of content accurately reflects the content.

(a) In General. Except as otherwise provided in this Manual, these rules apply generally to all courts-martial, including summary courts-martial, Article 39(a) sessions, limited factfinding proceedings ordered on review, proceedings in revision, and contempt proceedings other than contempt proceedings in which the judge may act summarily.

(b) Rules Relaxed. The application of these rules may be relaxed in presentencing proceedings as provided under R.C.M. 1001 and otherwise as provided in this Manual.

(c) Rules on Privilege. The rules on privilege apply at all stages of a case or proceeding.

(d) Exceptions. These rules—except for Mil. R. Evid. 412 and those on privilege—do not apply to the following:

(1) The military judge's determination, under Rule 104(a), on a preliminary question of fact governing admissibility;

(2) Pretrial investigations under Article 32;

(3) Proceedings for vacation of suspension of sentence under Article 72; and

(4) Miscellaneous actions and proceedings related to search authorizations, pretrial restraint, pretrial confinement, or other proceedings authorized under the Uniform Code of Military Justice or this Manual that are not listed in subdivision (a).

(a) General Rule. Amendments to the Federal Rules of Evidence—other than Articles III and V—will amend parallel provisions of the Military Rules of Evidence by operation of law 18 months after the effective date of such amendments, unless action to the contrary is taken by the President.

(b) Rules Determined Not to Apply. The President has determined that the following Federal Rules of Evidence do not apply to the Military Rules of Evidence: Rules 301, 302, 415, and 902(12).

These rules may be cited as the Military Rules of Evidence.

(a) A new Discussion is added following Mil. R. Evid. 101(c):

Discussion was added to these Rules in 2012 and is intended to serve as a treatise. The Discussion itself, however, does not have the force of law, even though it may describe legal requirements derived from other sources. It is in the nature of treatise, and may be used as secondary authority. If a matter is included in a rule, it is intended that the matter be binding, unless it is clearly expressed as precatory. The Discussion will be revised from time to time as warranted by changes in applicable law. See Composition of the Manual for Courts-Martial in Appendix 21.

Practitioners should also refer to the Analysis of the Military Rules of Evidence contained in Appendix 22 of this Manual. The Analysis is similar to Committee Notes accompanying the Federal Rules of Evidence and is intended to address the basis of the rule, deviation from the Federal Rules of Evidence, relevant precedent, and drafter's intent.”

(b) A new Discussion is added following Mil. R. Evid. 301(c):

A military judge is not required to provide Article 31 warnings. If a witness who seems uninformed of the privileges under this rule appears likely to incriminate himself or herself, the military judge may advise the witness of the right to decline to make any answer that might tend to incriminate the witness and that any self-incriminating answer the witness might make can later be used as evidence against the witness. Counsel for any party or for the witness may ask the military judge to so advise a witness if such a request is made out of the hearing of the witness and the members, if present. Failure to so advise a witness does not make the testimony of the witness inadmissible.”

(c) A new Discussion is added following Mil. R. Evid. 312(b)(2)(F):

An examination of the unclothed body under this rule should be conducted whenever practicable by a person of the same sex as that of the person being examined; however, failure to comply with this requirement does not make an examination an unlawful search within the meaning of Mil. R. Evid. 311.”

(d) A new Discussion is added following Mil. R. Evid. 312(e):

Compelling a person to ingest substances for the purposes of locating the property described above or to compel the bodily elimination of such property is a search within the meaning of this section.”

(e) A new Discussion is added following Mil. R. Evid. 312(f):

Nothing in this rule will be deemed to interfere with the lawful authority of the armed forces to take whatever action may be necessary to preserve the health of a servicemember.”

(f) A new Discussion is added following Mil. R. Evid. 314(c):

Searches under subdivision (c) may not be conducted at a time or in a manner contrary to an express provision of a treaty or agreement to which the United States is a party; however, failure to comply with a treaty or agreement does not render a search unlawful within the meaning of Mil. R. Evid. 311.”

(g) A new Discussion is added following Mil. R. Evid. 314(f)(2):

Subdivision (f)(2) requires that the official making the stop have a reasonable suspicion based on specific and articulable facts that the person being frisked is armed and dangerous. Officer safety is a factor, and the officer need not be absolutely certain that the individual detained is armed for the purposes of frisking or patting down that person's outer clothing for weapons. The test is whether a reasonably prudent person in similar circumstances would be warranted in a belief that his or her safety was in danger. The purpose of a frisk is to search for weapons or other dangerous items, including but not limited to: Firearms, knives, needles, or razor blades. A limited search of outer clothing for weapons serves to protect both the officer and the public; therefore, a frisk is reasonable under the Fourth Amendment.”

(h) A new Discussion is added following Mil. R. Evid. 314(f)(3):

The official must limit the search to those areas within the passenger compartment in which a weapon may be placed or hidden. The scope of the search is similar to the “stop and frisk” defined in subdivision (f)(2) of this rule. During the search for weapons, the official may seize any item that is immediately apparent as contraband or as evidence related to the offense serving as the basis for the stop. As a matter of safety, the official may, after conducting a lawful stop of a vehicle, order the driver and any passengers out of the car without any additional suspicion or justification.”

(i) A new Discussion is added following Mil. R. Evid. 314(g)(2):

The scope of the search for weapons is limited to that which is necessary to protect the arresting official. The official may not search a vehicle for weapons if there is no possibility that the arrestee could reach into the searched area, for example, after the arrestee is handcuffed and removed from the vehicle. The scope of the search is broader for destructible evidence related to the offense for which the individual is being arrested. Unlike a search for weapons, the search for destructible offense-related evidence may take place after the arrestee is handcuffed and removed from a vehicle. If, however, the official cannot expect to find destructible offense-related evidence, this exception does not apply.”

(j) A new Discussion is added following Mil. R. Evid. 315(a):

Although military personnel should adhere to procedural guidance regarding the conduct of searches, violation of such procedural guidance does not render evidence inadmissible unless the search is unlawful under these rules or the Constitution of the United States as applied to members of the armed forces. For example, if the person whose property is to be searched is present during a search conducted pursuant to a search authorization granted under this rule, the person conducting the search should notify him or her of the fact of authorization and the general substance of the authorization. Such notice may be made prior to or contemporaneously with the search. Property seized should be inventoried at the time of a seizure or as soon thereafter as practicable. A copy of the inventory should be given to a person from whose possession or premises the property was taken. Failure to provide notice, make an inventory, furnish a copy thereof, or otherwise comply with this guidance does not render a search or seizure unlawful within the meaning of Mil. R. Evid. 311.”

(k) A new Discussion is added following Mil. R. Evid. 315(c)(4):

If nonmilitary property within a foreign country is owned, used, occupied by, or in the possession of an agency of the United States other than the Department of Defense, a search should be conducted in coordination with an appropriate representative of the agency concerned, although failure to obtain such coordination would not render a search unlawful within the meaning of Mil. R. Evid. 311. If other nonmilitary property within a foreign country is to be searched, the search should be conducted in accordance with any relevant treaty or agreement or in coordination with an appropriate representative of the foreign country, although failure to obtain such coordination or noncompliance with a treaty or agreement would not render a search unlawful within the meaning of Mil. R. Evid. 311.”

(l) A new Discussion is added following Mil. R. Evid. 317(b):

Pursuant to 18 U.S.C. 2516(1), the Attorney General, or any Assistant Attorney General specially designated by the Attorney General may authorize an application to a federal judge of competent jurisdiction for, and such judge may grant in conformity with 18 U.S.C. 2518, an order authorizing or approving the interception of wire or oral communications by the Department of Defense, the Department of Homeland Security, or any Military Department for purposes of obtaining evidence concerning the offenses enumerated in 18 U.S.C. 2516(1), to the extent such offenses are punishable under the Uniform Code of Military Justice.”

(m) A new Discussion is added following Mil. R. Evid. 412(c)(3):

After hearing all evidence on the motion under subdivision (c) and before making a determination that the evidence is constitutionally required, the military judge should determine precisely what evidence is relevant and material and whether its probative value outweighs the danger of unfair prejudice. See United States v. Ellerbrock, 70 M.J. 314, 318 (C.A.A.F. 2011). The probative value of the evidence must be balanced against and outweigh the ordinary countervailing interests reviewed in making a determination as to whether evidence is constitutionally required. United States v. Gaddis, 70 M.J. 248, 255 (C.A.A.F. 2011). Such interests include, but are not limited to, harassment of a victim, prejudice to the integrity of the trial process, confusion of the issues, the victim's safety, or interrogation of a victim that is only marginally relevant. The military judge retains wide latitude to impose reasonable limits on cross-examination regarding the bias of a victim or witness or motive to fabricate based on concerns about, among other things, harassment, prejudice, confusion of the issues, the safety of a victim or witness, or interrogation that is repetitive or only marginally relevant. See Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). The Constitution guarantees an opportunity for effective cross-examination, but not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish. Delaware v. Fensterer, 474 U.S. 15, 20 (1985). The military judge should carefully tailor an order that protects the right of the accused to present admissible evidence under this rule but does not allow presentation of evidence that is not admissible under subdivision (b).”

(n) A new Discussion is added following Mil. R. Evid. 505(k)(3):

In addition to the sixth amendment right of an accused to a public trial, the Supreme Court has held that the press and general public have a constitutional right under the first amendment to access to criminal trials. United States v. Hershey, 20 M.J. 433 (C.M.A. 1985) citing Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980). The test that must be met before closure of a criminal trial to the public is set out in Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984), to wit: The party seeking closure must advance an overriding interest that is likely to be prejudiced; the closure must be narrowly tailored to protect that interest; the trial court must consider reasonable alternatives to closure; and it must make adequate findings supporting the closure to aid in review.”

The Defense Intelligence Agency systems of records notices subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the Federal Register and are available from the individual listed in FOR FURTHER INFORMATION CONTACT . The proposed deletion is not within the purview of subsection (r) of the Privacy Act of 1974 (5 U.S.C. 552a), as amended, which requires the submission of a new or altered system report.

The west end of South Beach has experienced both chronic mid-term (decadal) and accelerated short-term erosion losses (with direct impacts to beaches and dunes of this segment of shoreline). A nourishment project has been employed by the VBHI to mitigate the effects of these losses. In addition, several million cubic yards of sand from a Federal navigation project has been disposed on the beach since 1991. Despite this sand placement on the beach, a portion of South Beach continues to experience substantial erosion, potentially impacting public infrastructure and homes. It is the VBHI's desire to implement a long-term beach and dune stabilization strategy. The applicant contends that a necessary component to the success of this strategy is the installation of a terminal groin that would (1) reduce inlet-directed sand losses from beach fill construction projects; and (2) stabilize shoreline alignment along the westernmost segment of South Beach in such a manner that alongshore transport rates are reduced. The VBHI proposal calls for the construction of a single terminal groin designed to compliment future placement of beach fill at South Beach. The structure will serve as a “template” for fill material placed eastward of the proposed terminal groin. In that regard, the groin will be designed as a “leaky” structure (i.e. semi-permeable) so as to provide for some level of sand transport to West Beach (located northward of the proposed groin).

There are several potential environmental and public interest issues that will be addressed in the DEIS. Additional issues may be identified during the scoping process. Issues initially identified as potentially significant include:

a. Potential impacts to marine biological resources (benthic organisms, passageway for fish and other marine life) and Essential Fish Habitat.

b. Potential impacts to threatened and endangered marine mammals, birds, fish, and plants.

c. Potential impacts to adjacent shoreline changes on West Beach of Bald Head Island and adjacent shorelines.

d. Potential impacts to Navigation, commercial and recreational.

e. Potential impacts to the long-term management of the oceanfront shorelines.

f. Potential effects on regional sand sources and how it relates to sand management practices and North Carolina's Beach Inlet Management Practices.

g. Potential effects of shoreline protection.

h. Potential impacts on public health and safety.

i. Potential impacts to recreational and commercial fishing.

j. Potential impacts to cultural resources.

k. Cumulative impacts of past, present, and foreseeable future dredging and nourishment activities.

Several alternatives are being considered for the development of the protection plan. These alternatives will be further formulated and developed during the scoping process and an appropriate range of alternatives, including the no federal action alternative, will be considered in the DEIS.

A public scoping meeting (see DATES ) will be held to receive public comment and assess public concerns regarding the appropriate scope and preparation of the DEIS. Participation in the public meeting by federal, state, and local agencies and other interested organizations and persons is encouraged.

The USACE will consult with the U.S. Fish and Wildlife Service under the Endangered Species Act and the Fish and Wildlife Coordination Act; with the National Marine Fisheries Service under the Magnuson-Stevens Fishery Conservation and Management Act and the Endangered Species Act; and with the North Carolina State Historic Preservation Office under the National Historic Preservation Act. Additionally, the USACE will coordinate the DEIS with the North Carolina Division of Water Quality (NCDWQ) to assess the potential water quality impacts pursuant to Section 401 of the Clean Water Act, and with the North Carolina Division of Coastal Management (NCDCM) to determine the projects consistency with the Coastal Zone Management Act. The USACE will closely work with NCDCM and NCDWQ in the development of the DEIS to ensure the process complies with current State Environmental Policy Act (SEPA) requirements. It is the intention of both the USACE and the State of North Carolina to consolidate the NEPA and SEPA processes thereby eliminating duplication.

The DEIS is expected to be published and circulated by the end of 2012. A public hearing will be held after the publication of the DEIS.

The Galveston District intends to prepare an EIS on the proposed Baryonyx offshore wind farm which would include the proposed construction of approximately 300 offshore turbines in the Gulf of Mexico offshore Willacy and Cameron Counties, TX. Baryonyx Corporation, Inc. proposed this project and is the applicant for the DA permit SWG-2011-00511.

1. Project Background: The applicant proposes to construct an approximately 300-turbine wind farm in two areas referred to as the North Rio Grande Lease and Rio Grande Lease. The project is located in Gulf of Mexico state waters, offshore Willacy and Cameron Counties in state tracts: 1068, 1069, 1085, 1086, 1087, 1088, 1089, 1090, 1126, 1127, 1129, 1130 and 1131. The proposed project consists of the following:

a. Wind Turbines and Foundations: Each lease site will be comprised of 100-200 wind turbine generators in a grid pattern (turbine array). The final locations will be determined by consultation with appropriate state and federal agencies and consideration of constraints including: wind resource characteristics; safety and navigation; technical characteristics of the wind turbine generators; electrical collection system characteristics; geophysical site constraints; and environmental and ecological considerations. The specific turbine has not been selected so that Baryonyx may take advantage of the latest technologies in wind generation which may become commercially available at the time of procurement. Turbines will be installed onto individual platform foundations attached to the seabed. Foundation type and design will be determined based on the technical requirements of the selected turbines, soils profile, depth, and site conditions. Typical foundations may include monopole, gravity based, suction caisson, or jacket structures. Scour protection in the form of prefabricated materials or clean stone may be placed at the base of the foundations.

b. Transmission Lines: Installation of up to 4 substations will be required in each lease to reduce the number of transmission lines to shore and reduce electricity loss. Offshore substations gather electricity from the rows of turbines through an inter-array of subsea cables and convert it into a higher voltage. Transforming power into a higher voltage allows for the installation of fewer export cables, more efficient transmission of power and minimizes power loss. The inter-array cables will be buried to a target depth of 3 feet and 18 inches wide, but will be dependent on the nature of the seabed. Connection between turbines and the substation platform is pre-installed j-tubes which protect the cable from the seabed to topside. To transfer the electricity to shore, up to 2 transmission lines per substation will be installed which connect the offshore substation to onshore electrical facilities. The dimension of the cables is in the range of 10 inches. However, for redundancy and safety issues, the transmission lines will be kept separate. Routing will be designed to minimize impacts to natural and cultural resources by following previously disturbed areas and areas devoid of vegetation, reefs, seagrasses, dunes and other valuable habitats. Scheduling of the work will also take into consideration minimization of impacts to marine mammals, sea turtles, birds, fisheries and other natural resources.

c. Planning and Construction: Prior to Construction, Baryonyx Corporation will conduct the necessary surveys and studies to describe and quantify natural resources. These studies will include geophysical geotechnical survey, delineation of aquatic habitats, and cultural resource surveys. Onshore construction and assembly will utilize existing port facilities. No new onshore or port facilities are anticipated to be constructed.

d. Mitigation: The Applicant proposes to avoid impacts to special aquatic sites and sensitive sea areas where practicable. No surface areas or wetlands are proposed to be filled at this time other than temporary side-cast material from trench construction. Horizontal drilling for burial of cables will be considered under unavoidable wetlands, seagrass beds, reefs and dunes where practicable.

2. Scoping and Public Involvement Process: A Public Notice was published on June 15, 2011 to initiate the public scoping process for the proposed project. At that time, based on information provided by the Applicant, a preliminary review indicated that an Environmental Impact Statement (EIS) was not required. However, based on continuing permit assessment and information brought forth during the initial coordination process, areas of potential significant impact on the human environment have been identified. Therefore, the EIS process is being implemented so that the permit application can be fully evaluated and a permit decision can be made. All comments received to date, including those provided for review during the Public Notice comment period, will be considered by the Galveston District during EIS preparation. The purpose of the EIS scoping meeting is to gather information on the subjects to be studied in detail by the EIS. In addition to the EIS, the Applicant has avoided and minimized impacts identified during the public notice comment period by removing the Mustang site, and its alternate, from consideration during this permit application. While the Applicant's minimization effort is designed to avoid potential impacts to the Padre Island National Seashore and Naval Air Station Corpus Christi, it is without prejudice to apply for these sites at another date.

3. Purpose and Need. The basic purpose of the proposed action is to construct a power generation facility. The overall purpose is to provide electrical generation capacity for current markets in Texas and potential sale in the wholesale market utilizing wind resources offshore. The Corps recognizes that there is a public and private need for additional power generation.

4. Alternatives. An evaluation of alternatives to the Applicant's preferred alternative initially being considered includes a No Action alternative, alternatives that would avoid, minimize and compensate for impacts to the aquatic environment within the project footprint, alternatives that would avoid, minimize and compensate for impacts to the aquatic environment outside of the footprint, alternatives utilizing alternative practices, and other reasonable alternatives that will be developed through the project scoping process which may also meet the identified purpose and need.

5. Public Involvement. The purpose of the public scoping process is to determine relevant issues that will influence the scope of the environmental analysis and EIS alternatives. General concerns in the following categories have been identified to date: potential direct effects to waters of the United States including wetlands; water quality; aquatic species; air quality; environmental justice; socioeconomic environment; archaeological and cultural resources; recreation and recreational resources; energy supply and natural resources; hazardous waste and materials; aesthetics; public health and safety; navigation; erosion and accretion; invasive species; cumulative impacts; public benefit and needs of the people along with potential effects on the human environment. All parties who express interest will be given an opportunity to participate in the process.

6. Coordination. The proposed action is being coordinated with a number of Federal, State, regional and local agencies including but not limited to the Environmental Protection Agency, the United States (U.S.) Fish and Wildlife Service, U.S. National Marine Fisheries Service, the Texas Commission on Environmental Quality, the Texas General Land Office, and the Texas Parks and Wildlife Department.

7. Availability of the Draft EIS. The Corps currently expects the Draft EIS to be made available to the public by December 2014. A State and Federal agency scoping meeting will be held at Holiday Inn Brownsville at 2 p.m. on March 28, 2012. A public scoping meeting will be held at the Holiday Inn Brownsville on March 28, 2012 at 6 p.m. The Holiday Inn Brownsville is located at 3777 North Expressway, Brownsville, TX 78520. The Corps will announce the public scoping meeting through local news media and the Corps' Web page at http://www.swg.usace.army.mil/reg at least 15 days prior to the first meeting.

On March 29, 2012 from 9 a.m. to 4:30 p.m. Eastern Daylight Time, the Equity and Excellence Commission will hold an open meeting in Washington, DC at the United States Department of Education at 400 Maryland Avenue SW., Washington, DC 20202, in Room 1W105/108.

The purpose of the Commission is to collect information, analyze issues, and obtain broad public input regarding how the Federal government can increase educational opportunity by improving school funding equity. The Commission will also make recommendations for restructuring school finance systems to achieve equity in the distribution of educational resources and further student performance, especially for the students at the lower end of the achievement gap. The Commission will examine the disparities in meaningful educational opportunities that give rise to the achievement gap, with a focus on systems of finance, and recommend appropriate ways in which Federal policies could address such disparities.

The agenda for the Commission's March 29, 2012 meeting will include reviewing and editing the Commission's final report. The Commission is also expected to discuss what materials will accompany the final report and the timing of the release of the final report. Due to time constraints, there will not be a public comment period, however, individuals wishing to provide comments related to the Commission may contact the Equity Commission via email at equitycommission@ed.gov. For comments related to the upcoming meeting, please submit comments no later than March 22, 2012.

Individuals interested in attending the meeting must register in advance, as meeting room seating may be limited. Please contact Jim Eichner at (202) 453-5945 or by email at equitycommission@ed.gov. Individuals who will need accommodations for a disability in order to attend the meeting (e.g., interpreting services, assistive listening devices, or materials in alternative format) should notify Jim Eichner at (202) 245-5945 no later than March 22, 2012. We will attempt to meet requests for accommodations after this date but cannot guarantee availability. The meeting site is accessible to individuals with disabilities.

Records are kept of all Commission proceedings and are available for public inspection at the Department of Education, 400 Maryland Avenue SW., Washington, DC 20202 from the hours of 9 a.m. to 5 p.m. Eastern Daylight Time.