[Title 32 CFR G]
[Code of Federal Regulations (annual edition) - July 1, 2002 Edition]
[Title 32 - NATIONAL DEFENSE]
[Subtitle A - Department of Defense (Continued)]
[Chapter Vi - DEPARTMENT OF THE NAVY]
[Subchapter G - MISCELLANEOUS RULES]
[From the U.S. Government Printing Office]
32NATIONAL DEFENSE52002-07-012002-07-01falseMISCELLANEOUS RULESGSUBCHAPTER GNATIONAL DEFENSEDepartment of Defense (Continued)DEPARTMENT OF THE NAVY
SUBCHAPTER G--MISCELLANEOUS RULES
PART 765--RULES APPLICABLE TO THE PUBLIC--Table of Contents
Sec.
765.1-765.5 [Reserved]
765.6 Regulations for Pearl Harbor, Hawaii.
765.9-765.11 [Reserved]
765.12 Navy and Marine Corps absentees; rewards.
765.13 Insignia to be worn on uniform by persons not in the service.
765.14 Unofficial use of the seal, emblem, names, or initials of the
Marine Corps.
Authority: Secs. 5031, 6011, 70A Stat. 278, 375, as amended; sec.
133, 76 Stat. 517; sec. 301, 80 Stat. 379; 5 U.S.C. 301, 10 U.S.C. 133,
956, 5031, 6011, 7881; DOD 7000.14-R, Financial Management Regulation,
Vol. 10.
Secs. 765.1-765.5 [Reserved]
Sec. 765.6 Regulations for Pearl Harbor, Hawaii.
The Commander, U.S. Naval Base, Pearl Harbor, Hawaii, is responsible
for prescribing and enforcing such rules and regulations as may be
necessary for insuring security and for governing the navigation,
movements, and anchorage of vessels in the waters of Pearl Harbor and in
the entrance channel thereto.
(Sec. 1, 37 Stat. 341, 62 Stat. 799; 18 U.S.C. 2152, 33 U.S.C. 475; E.O.
8143, 4 FR 2179, 3 CFR 1943 Cum. Supp. 504)
[31 FR 16620, Dec. 29, 1966]
Secs. 765.9-765.11 [Reserved]
Sec. 765.12 Navy and Marine Corps absentees; rewards.
The following is set forth as it applies to Navy and Marine Corps
absentees. The term ``absentee,'' as used in this section, refers to a
service member who commits the offense of absence without leave. Cf.
article 86 of the Uniform Code of Military Justice (10 U.S.C. 886).
(a) Payment of rewards--(1) Authority. When authorized by military
officials of the Armed Forces, any civil officer having authority to
arrest offenders may apprehend an individual absent without leave from
the military service of the United States and deliver him into custody
of the military authorities. The receipt of Absentee Wanted by the Armed
Forces (DD Form 553) or oral or written notification from military
officials or Federal law enforcement officials that the person is absent
and that his return to military control is desired is authority for
apprehension and will be considered as an offer of a reward. When such a
reward has been offered, persons or agency representatives (except
salaried officers or employees of the Federal Government, or service
members) apprehending or delivering absentees or deserters to military
control will be entitled to a payment of
(i) $50 for the apprehension and detention until military
authorities assume control, or
(ii) $75 for the apprehension and delivery to military control.
Payment of reward will be made to the person or agency representative
actually making the arrest and the turnover or delivery to military
control. If two or more persons or agencies join in performing these
services, payment may be made jointly or severally but the total payment
or payments will not exceed $50 or $75 as applicable. Payment of a
reward is authorized whether the absentee or deserter voluntarily
surrenders to civil authorities or is apprehended. Payment is not
authorized for information merely leading to the apprehension of an
absentee or deserter.
(2) Payment procedure. The disbursing officer, special disbursing
agent or agent officer of the military activity to which an absentee or
deserter is first delivered will be responsible for payment of the
reward. Payment of rewards will be made on SF 1034 or NAVCOMPT Form 2277
supported by a copy of DD Form 553 or other form or notification that an
individual is absent and that his return to military control is desired,
and a statement signed by the claimant specifying that he apprehended
(or accepted voluntary surrender) and detained the absentee or deserter
until military authorities assumed control, or that he apprehended (or
accepted voluntary surrender) and delivered the absentee or deserter to
[[Page 468]]
military control. If oral notification was made in lieu of written
notification, the claimant will so certify and provide the date of
notification and the name, rank or rate, title, and organization of the
person who made the authorized notice of reward for apprehension of the
absentee or deserter.
(b) Reimbursement for actual expenses--(1) Authority. When a reward
has not been offered or when conditions for payment of a reward
otherwise cannot be met, reimbursement, not to exceed $75, may be made
to any person or agency for actual expenses incurred in the apprehension
and detention or delivery to military control of an absentee or
deserter. If two or more persons or agencies join in performing these
services, payment may be made jointly or severally, but the total
payment or payments may not exceed $25. Reimbursement may not be made
for the same apprehension and detention or delivery for which a reward
has been paid. Actual expenses for which reimbursement may be made
include:
(i) Transportation costs, including mileage at the rate established
by the Joint Travel Regulation for travel by privately owned vehicle,
for a round trip from either the place of apprehension or civil police
headquarters to place of return to military control;
(ii) Meals furnished the service member for which the cost was
assumed by the apprehending person or agency representative;
(iii) Telephone or telegraph communication costs;
(iv) Damages to property of the apprehending person or agency if
caused directly by the service member during the apprehension,
detention, or delivery;
(v) Such other reasonable and necessary expenses incurred in the
actual apprehension, detention, or delivery as may be considered
justifiable and reimbursable by the commanding officer. Reimbursement
will not be made for:
(a) Lodging at nonmilitary confinement facilities;
(b) Transportation performed by the use of official Federal, State,
county, or municipal vehicles;
(c) Personal services of the apprehending, detaining, or delivering
person or agency.
(2) Payment procedure. The disbursing officer or special disbursing
agent of the military activity to which an absentee or deserter is first
delivered will be responsible for making reimbursement for actual
expenses. Reimbursement will be effected on SF 1034 or NAVCOMPT Form
2277 supported by an itemized statement in triplicate signed by the
claimant and approved by the commanding officer.
(c) Reimbursement for subsistence furnished--(1) Authority. Civil
authorities may be reimbursed for the cost of subsistence furnished
absentees or deserters placed in their custody for safekeeping at the
request of military authorities. Such reimbursement will be in addition
to rewards and reimbursement for actual expenses authorized in
paragraphs (a) and (b) of this section.
(2) Payment procedure. The disbursing officer or special disbursing
agent of the military activity requesting the safekeeping confinement
will be responsible for making reimbursement for subsistence furnished
by civil authorities. Reimbursement will be effected on SF 1034 or
NAVCOMPT Form 2277 supported by an itemized statement signed by the
claimant and approved by the officer who requested the confinement.
(d) Nothing said in this section shall be construed to restrict or
exclude authority to apprehend an offender in accordance with law.
(Sec. 807, 70A Stat. 39; 10 U.S.C. 807. Interpret or apply secs. 808,
7214, 70A Stat. 40, 445; 10 U.S.C. 808, 7214)
[25 FR 1075, Feb. 6, 1960, as amended at 51 FR 22283, June 19, 1986; 65
FR 53172, Sept. 1, 2000]
Sec. 765.13 Insignia to be worn on uniform by persons not in the service.
(a) Under title 10 U.S.C., section 773, members of military
societies composed of persons discharged honorably or under honorable
conditions from the United States Army, Navy, Air Force or Marine Corps,
regular or reserve, may, when authorized by regulations prescribed by
the President, wear the uniform duly prescribed by such societies to be
worn by the members thereof.
[[Page 469]]
(b) The law cited in paragraph (a) of this section further provides
that instructors and members of duly organized cadet corps at certain
institutions of learning may wear the uniform duly prescribed by the
authorities of such institutions.
(c) The law cited in paragraph (a) of this section further provides
that the uniform worn by members of the military societies or by members
and instructors of the cadet corps referred to in paragraph (a) of this
section shall include some distinctive mark or insignia prescribed by
the Secretary of the military department concerned to distinguish such
uniforms from the uniforms of the Army, Navy, Air Force, or Marine
Corps.
(d) Accordingly, except as otherwise provided in this paragraph, the
following mark is hereby designated to be worn by all persons wearing
the Navy or Marine Corps uniform as provided in paragraphs (a), (b), and
(c) of this section: A diamond, 3\1/2\ inches long in the vertical axis,
and 2 inches wide in the horizontal axis, of any cloth material, white
on blue clothing, forestry green on khaki clothing, and blue on white
clothing. The figure shall be worn on all outer clothing on the right
sleeve, at the point of the shoulder, the upper tip of the diamond to be
one-fourth inch below the shoulder seam. For persons who are
participating in United States Marine Corps Junior ROTC programs, the
following mark is designated to be worn: A round patch, three inches in
diameter, which contains a gold Marine Corps emblem centered on a
scarlet field. The scarlet field is surrounded with a blue border
containing the words ``United States Marine Corps Junior ROTC'' in white
lettering. Surrounding the blue field will be a gold border. Unless
otherwise directed, the patch will be worn in the manner described above
in connection with the ``diamond'' insignia.
(e) Within the meaning of paragraph (a) of this section, the
occasions when members of the military societies may wear the uniform of
their respective society are official functions which such a member
attends in his capacity as a war veteran or as a member of such military
society.
(f) Marine Corps Uniform Regulations may be examined and individual
copies of pertinent provisions thereof may be purchased in accordance
with Sec. 701.1 of this chapter.
(Sec. 773, 70A Stat. 35; 10 U.S.C. 773)
[13 FR 8971, Dec. 28, 1948, as amended at 26 FR 11794, Dec. 12, 1961; 37
FR 6472, Mar. 30, 1972; 44 FR 37610, June 28, 1979]
Sec. 765.14 Unofficial use of the seal, emblem, names, or initials of the Marine Corps.
(a) Purpose. To establish procedures to determine whether to grant
permission to use or imitate the seal, emblem, names, or initials of the
Marine Corps in connection with commercial and certain noncommercial
activities pursuant to 10 U.S.C. 7881. The Secretary of the Navy, in
Secretary of the Navy Instruction 5030.7, has provided the policy and
delegated to the Commandant of the Marine Corps (CMC), power to
subdelegate to certain subordinate officers in writing, the authority to
grant permission required by section 7881(b) of 10 U.S.C. for such use
or imitation.
(b) Scope. The provisions of this Order requiring prior approval of
the Secretary of the Navy, CMC, or the designee apply only to the use or
imitation of the seal, emblem, names, or initials of the Marine Corps
that suggest official approval, endorsement, or authorization is in
connection with a promotion, goods, services, or commercial activity.
(c) Standards--(1) No unofficial use or imitation of the Marine
Corps seal. Reproduction and use of the Marine Corps seal, as designated
in Executive Order No. 10538 of June 22, 1954, is restricted to
materials emanating from Headquarters Marine Corps. Except for
manufacture of official letterhead stationery and related items of
official Marine Corps use, reproduction and use of the Marine Corps seal
is prohibited.
(2) Unofficial use or imitation of the Marine Corps emblem, names,
or initials. Requests from civilian enterprises to use or imitate the
Marine Corps emblem, names, or initials will ordinarily be approved
where use or imitation merely provides a Marine Corps accent or flavor
to otherwise fungible goods. Disapproval, however, usually may be
[[Page 470]]
expected where such use or imitation reasonably would:
(i) Imply any official or unofficial connection between the Marine
Corps and the user;
(ii) Tend to create the impression that the Marine Corps or the
United States is in any way responsible for any financial or legal
obligation of the user;
(iii) Give the impression that the Marine Corps selectively benefits
the particular manufacturer, commercial entity, or other user, as in
displaying the Marine Corps emblem, names, or initials on musical
instruments, weapons, or the like, and in using the emblem, names, or
initials in connection with advertising, naming, or describing products
and services such as insurance, real estate, or financial services; or
(iv) Tend to subject the Marine Corps to discredit or would be
inimical to the health, safety, welfare, or morale of the members of the
Marine Corps.
(3) Acceptable use of imitation of the Marine Corps insignia. No
request for permission is required when a use or imitation of the Marine
Corps emblem, names, or initials includes prominent display of the
disclaimer, ``Neither the United States Marine Corps nor any other
component of the Department of Defense has approved, endorsed, or
authorized this product (or promotion, or service, or activity)'' as an
integral part of the use of imitation. A ``prominent display'' is one
located on the same page as the first use of the insignia, prominent in
that use, and printed in letters at least one half the size and density
of the insignia.
(d) Action--(1) When permission required. Commercial or
noncommercial use or imitation of the Marine Corps emblem, names, or
initials is prohibited unless permission is first obtained in writing
from the CMC, except when such use does not suggest that the use or
imitation is approved, endorsed, or authorized by the Marine Corps or
any other component of the Department of Defense.
(2) Redelegation of authority. The CMC hereby redelegates, pursuant
to the authorization in paragraph 4 of the Secretary of the Navy 5030.7,
authority to grant written permission to use the Marine Corps emblem,
names, or initials to the Director, Administration Resource Management
(ARDE). Prior to granting approval for commercial usage of the Marine
Corps insignia, the CMC (ARDE) shall forward such requests to the Head,
Marine Corps Exchange Service Branch, Facilities and Services Division,
Installations and Logistics Department (CMC) (LFE)) and to the Counsel
for the Commandant (CMC (CL)) for comment and concurrence. All other
requests shall be routed to the Director, Judge Advocate Division (CMC
(JAR)) for comment and concurrence.
(3) Procedures for obtaining written permission. Requests for
written permission to use or imitate the Marine Corps emblem, names, or
initials shall be in writing and shall be directed to the CMC (ARDE).
The request should, at a minimum, contain the following information:
(i) Name and address of the requester.
(ii) A description of the type of activity in which the requester is
engaged or proposes to engage.
(iii) A statement of whether the requester considers the proposed
use or imitation to be commercial or noncommercial, and why.
(iv) A brief description and illustration or sample of the proposed
use or imitation, as well as a description of the product or service in
connection with which it will be used. This description will provide
sufficient detail to enable the Marine Corps to determine whether there
is a reasonable tendency to suggest such use or imitation is approved,
endorsed, or authorized by the Marine Corps or any other component of
the Department of Defense.
(v) In the case of a noncommercial use of imitation, a copy of the
charter, constitution, bylaws, and similar organizational documents of
the requester, together with a detailed description of its function or
purpose. Insufficiently specific requests will be returned for
additional information.
(e) Reserve applicability. This Order is applicable to the Marine
Corps Reserve.
[51 FR 45467, Dec. 19, 1986, as amended at 65 FR 62619, Oct. 19, 2000]
[[Page 471]]
PART 766--USE OF DEPARTMENT OF THE NAVY AVIATION FACILITIES BY CIVIL AIRCRAFT--Table of Contents
Sec.
766.1 Purpose.
766.2 Definition of terms.
766.3 Authority.
766.4 Policy.
766.5 Conditions governing use of aviation facilities by civil aircraft.
766.6 Approving authority for landings at Navy/Marine Corps aviation
facilities.
766.7 How to request use of naval aviation facilities.
766.8 Procedure for review, approval, execution and distribution of
aviation facility licenses.
766.9 Insurance requirements.
766.10 Cancellation or suspension of the aviation facility license
(OPNAV Form 3770/1).
766.11 Fees for landing, parking and storage.
766.12 Unauthorized landings.
766.13 Sale of aviation fuel, oil, services and supplies.
Authority: 49 U.S.C. 1507.
Source: 35 FR 14451, Sept. 15, 1970, unless otherwise noted.
Note: The provisions of this part 766 are SECNAV Instruction 3770.1B
of 30 June 1970.
Sec. 766.1 Purpose.
This part establishes the policy and procedures for the use of Navy
and Marine Corps aviation facilities by aircraft other than U.S.
Department of Defense aircraft.
Sec. 766.2 Definition of terms.
For the purpose of this part certain terms are defined as follows:
(a) Alternate use. Use of the aviation facility, specified in the
flight plan, to which an aircraft may divert when a landing at the point
of first intended landing becomes impractical because of weather.
(Aircraft may not be dispatched, prior to takeoff from the airport of
origin, to a facility licensed for alternate use.)
(b) Civil aircraft. Domestic or foreign aircraft operated by private
individuals or corporations, or foreign government-owned aircraft
operated for commercial purposes. This includes:
(1) Contract aircraft. Civil aircraft operated under charter or
other contract to any U.S. Government department or agency.
(2) Leased aircraft. U.S. Government-owned aircraft delivered by the
Government to a lessee subject to terms prescribed in an agreement which
does not limit the lessee's use of the aircraft to Government business.
(c) Civil aviation. All flying activity by civil aircraft including:
(1) Commercial aviation. Transportation by aircraft of passengers or
cargo for hire and the ferrying of aircraft as a commercial venture.
(2) General aviation. All types of civil aviation other than
commercial aviation as defined above.
(d) Facility. A separately located and officially defined area of
real property in which the Navy exercises a real property interest and
which has been designated as a Navy or Marine Corps aviation facility by
cognizant authority; or where the Department of the Navy has
jurisdiction over real property agreements, expressed or implied, with
foreign governments, or by rights of occupation. (This definition does
not include aircraft carriers nor any other type of naval vessel with a
landing area for aircraft.)
(e) Government aircraft. Aircraft owned or operated by any
department or agency of either the United States or a foreign government
(except a foreign government-owned aircraft operated for commercial
purposes). Also aircraft owned by any department, agency, or political
subdivision of a State, territory, or possession of the United States
when such local government has sole responsibility for operating the
aircraft. Government aircraft includes:
(1) Military aircraft. Aircraft used in the military services of any
government.
(2) Bailed aircraft. U.S. Government-owned aircraft delivered by the
Government to a Government contractor for a specific purpose directly
related to a Government contract.
(3) Loaned aircraft. U.S. Government-owned aircraft delivered
gratuitously by any Department of Defense agency to another Government
agency, to a U.S. Navy or Marine Corps Flying Club, or to a U.S. Army or
Air Force Aero Club.
[[Page 472]]
(f) Joint-use facility. A Navy or Marine Corps facility where a
specific agreement between the Department of the Navy and a civilian
community, or between the U.S. Government and a foreign government,
provides for civil aircraft use of the runways and taxiways. Civil
aircraft terminal, parking, and servicing facilities are established and
controlled by civil authorities in an area separate from those of the
Navy or Marine Corps.
(g) Official business. Business, in the interest of the U.S.
Government, which personnel aboard an aircraft must transact with U.S.
Government organizations or personnel at or near the naval aviation
facility concerned. Use of a facility to solicit U.S. Government
business is not ``official business.''
(h) Provisional use. Use of a naval aviation facility for the
purpose of providing adequate service to a community where, because of
repair, construction or the performance of other work, the regular civil
airport servicing the community is not available for an extended period.
(An aircraft may be dispatched prior to takeoff from the airport of
origin to a naval aviation facility authorized for provisional use.)
(i) Scheduled use. Use of a facility on a scheduled or regularly
recurring basis by an air carrier certified by the Civil Aeronautics
Board to provide passenger and cargo service to a community or area.
(j) Services in connection with Government contracts. This type of
operation, cited on the Aviation Facility License, indicates the use of
a facility for transporting the contractor's supplies and personnel for
the performance of work at the facility under the terms of a specific
U.S. Government contract.
(k) Technical stop. An en route landing for the purpose of obtaining
fuel, oil, minor repairs, or crew rest. This does not include passenger
accommodations nor passenger/cargo enplaning or deplaning privileges
unless specifically authorized by the Chief of Naval Operations.
(l) User. An individual, corporation, or company named in the
Aviation Facility License and the Certificate of Insurance.
Sec. 766.3 Authority.
Section 1107(a) of the Federal Aviation Act of 1958 (49 U.S.C. 1507,
1508) states that ``Air navigation facilities owned or operated by the
United States may be made available for public use under such conditions
and to such extent as the head of the department or other agency having
jurisdiction thereof deems advisable and may by regulation prescribe.''
(See Sec. 766.13 for restrictions imposed by the Federal Aviation Act of
1958.)
Sec. 766.4 Policy.
Navy and Marine Corps aviation facilities are established to support
the operation of Navy and Marine Corps aircraft. Equipment, personnel
and material are maintained only at a level necessitated by these
requirements and shall not be used to support the operation or
maintenance of civil aircraft or non U.S. Government aircraft, except as
noted below. (Nothing in this part, however, should be interpreted to
prohibit any aircraft from landing at any suitable Navy or Marine Corps
aviation facility in case of a bona fide emergency.) (See
Sec. 766.5(i).)
(a) General. Subject to the procedures established elsewhere in this
part, civil aircraft and government aircraft, other than those belonging
to the U.S. Government may use Navy or Marine Corps facilities, if
necessary, Provided, That:
(1) They do not interfere with military requirements, and the
security of military operations, facilities, or equipment is not
compromised.
(2) No adequate civil airport is available. (Exception to this
provision may be made when the aircraft is operated in connection with
official business as defined in this part.)
(3) Pilots comply with regulations promulgated by the cognizant
military agency and the commanding officer of the facility.
(4) Civil aircraft users assume the risk in accordance with the
provisions of the Aviation Facility License.
(5) Each aircraft is equipped with two-way radio which provides a
capability for voice communications with the control tower on standard
Navy/Marine Corps frequencies.
[[Page 473]]
(6) The user, or requesting government, has obtained permission
through diplomatic channels from the host country wherein the facility
of intended landing is located, if applicable.
(b) Civil Aircraft owned and operated by--(1) Military personnel.
Private aircraft owned and operated by active duty U.S. military
personnel or by Navy/Marine Corps Reservists on inactive duty may be
authorized to land at a facility, provided such aircraft is not engaging
in air commerce, and such landing is for official business required by
written orders. Under no conditions shall such aircraft be allowed to
base or operate from a facility for personal convenience nor base at a
facility under the guise of official business.
(2) Civil employees of the U.S. Government. Private aircraft owned
and operated by civil employees of the U.S. Government may be authorized
to land at a facility, provided such aircraft is not engaging in air
commerce, and such landing is for official business required by written
orders. Such aircraft shall not be allowed to base or operate from a
facility for personal convenience. (Employees of U.S. Government
contractors are not considered civil employees of the U.S. Government.)
(3) Non-U.S. Government personnel. An individual or corporation
owned and/or operated aircraft may be authorized to land at a facility
for:
(i) Sales or service representation to authorized military agents
(e.g. the exchange, commissary, or contracting officer).
(ii) Services in connection with U.S. Government contracts.
Contracting agency and contract number(s) must be cited in the
application for an Aviation Facility License.
(c) Department of defense charter or contract. Aircraft operating
under a Military Traffic Management and Terminal Service (MTMTS),
Military Airlift Command (MAC), or Navy charter or contract for the
movement of DOD passengers or cargo may be authorized to use Navy or
Marine Corps aviation facilities when required for loading, en route or
terminal stops.
(d) Test and experimental use. Aircraft being produced for a
military agency under contract may use Navy/Marine Corps facilities for
testing and experimental purposes, if the contract so provides, or if it
is determined to be in the best interests of the U.S. Government to do
so. Unless otherwise provided in the contract, an Aviation Facility
License is required, and the user shall furnish a Certificate of
Insurance as provided in this part.
(e) Aircraft demonstrations. Manufacturers of aircraft or installed
equipment may be authorized to use Navy/Marine Corps facilities in
demonstrating and/or showing aircraft or installed equipment to
officials of the U.S. Government when:
(1) It is determined to be in the best interest of the U.S.
Government.
(2) The aircraft was produced in accordance with U.S. Government
specifications either with or without the aid of Federal funds.
(3) There is an expressed interest on the part of the U.S.
Government officials responsible for procurement, approval, or
certification of the aircraft.
(f) Joint use. When a specific agreement is entered into by the
Department of the Navy pertaining to joint civil/military use of a Navy
or Marine Corps facility, the terms of that agreement shall take
precedence over the provisions of this part.
(g) Diplomatic agreements. For diplomatic agreements and clearances
to use U.S. Navy and Marine Corps aviation facilities in foreign
countries, the provisions of this part are subject to the provisions of
status of forces agreements, treaties of mutual cooperation or other
international agreements. This part shall be used as a guide in
negotiating agreements at the local level with representatives of a
foreign military service, the U.S. Embassy, and the host government
concerning the use of naval facilities by other than U.S. military
aircraft. Approval shall be obtained from the Chief of Naval Operations
for proposed terms which are in conflict with this part.
Sec. 766.5 Conditions governing use of aviation facilities by civil aircraft.
(a) Risk. The use of Navy or Marine Corps aviation facilities by
civil aircraft shall be at the risk of the operator. Except as
hereinafter provided for U.S. Government contractors, the Department of
the Navy shall assume no
[[Page 474]]
liability or responsibility by reason of the condition of the landing
area, taxiways, radio and navigational aids, or other equipment or for
notification of such condition; or by the acts of its agents in
connection with the granting of the right to use such naval facility. No
responsibility is assumed for the security of or damage to aircraft
while on property owned or controlled by the U.S. Government.
(b) Military rules. Operators of civil aircraft utilizing a Navy or
Marine Corps aviation facility shall be required to comply with the air
and ground rules promulgated by the Department of the Navy and the
commanding officer of the aviation facility. Such compliance shall
pertain specifically to clearance authorization for the entry,
departure, or movement of aircraft within the confines of the terminal
area normally controlled by the commanding officer of the aviation
facility.
(c) Federal aviation regulations. Operators of civil aircraft shall
be required to comply with all Federal Aviation Administration (FAA)
rules and regulations including filing of flight plans. When such flight
plans are required, they shall be filed with the commanding officer or
his authorized representative prior to the departure of the aircraft.
When such a flight plan is not required, a list of passengers and crew
members, the airport of first intended landing, the alternate airport,
and fuel supply in hours shall be placed on file prior to takeoff, with
the commanding officer or with the local company representative as
appropriate.
(d) Hours of operation. The use of a Navy/Marine Corps aviation
facility by civil aircraft shall be limited to the hours when the
facility is normally in operation.
(e) Weather minimums. Civil aircraft shall comply with weather
minimums as follows:
(1) Visual Flight Operations shall be conducted in accordance with
Federal Aviation Regulations (FAR), Sec. 91.105 of this title. If more
stringent visual flight rules minimums have been established for the
point of departure or destination, as noted in the aerodrome remarks
section of the Department of Defense Flight Information Publication (en
Route) Instrument Flight Rules--Supplement, then the ceiling and
visibility must be at or above these minimums in the applicable control
zone.
(2) Instrument flight operations shall be conducted in accordance
with FAR, Sec. 91.116 of this title.
(f) Inspection. The commanding officer may conduct such inspection
of a transiting civil aircraft and its crew, passengers and cargo as he
may consider appropriate or necessary to the carrying out of his duties
and responsibilities.
(g) Customs, immigration, agriculture, and public health inspection.
(1) The civil aircraft commander shall be responsible for compliance
with all applicable customs, immigration, agriculture, and public health
laws and regulations. He shall also be responsible for paying fees,
charges for overtime services, and for all other costs connected with
the administration of such laws and regulations.
(2) The commanding officer of the Navy/Marine Corps aviation
facility will inform the appropriate public officials of the arrival of
civil aircraft subject to such laws and regulations. He will not issue
clearances for a civil aircraft to takeoff until such laws and
regulations have been complied with. Procedures for insuring compliance
with such laws and regulations shall be as mutually agreed to by the
commanding officer of the aviation facility and the local public
officials.
(h) Weather alternate. If a Navy/Marine Corps aviation facility has
been approved for use as an alternate airport, radio clearance must be
obtained from such facility as soon as the decision is made en route for
such use.
(i) Emergency landings. Any aircraft may land at a Navy/Marine Corps
aviation facility when necessary as a result of a bona fide emergency.
However, whenever the nature of the emergency permits the pilot to
select the time and place of landing, it is preferred that the pilot
land his aircraft at a civil field.
(1) The commanding officer of the aviation facility will require
that the pilot of the aircraft pay all fees and charges and execute the
Aviation Facility License. A statement explaining the circumstances of
the emergency
[[Page 475]]
landing must be noted in Sec. 766.5 of the license application. If a
narrative report from the pilot is available, it may be attached to the
application.
(2) Clearance of runway. The Department of the Navy reserves the
right to use any method to clear a runway of aircraft or wreckage
consistent with operational requirements. Care will be exercised to
preclude unnecessary damage in removing wrecked aircraft; however, the
Navy assumes no liability as a result of such removal.
(3) Repairs. (i) Aircraft requiring major repairs may be stored
temporarily in damaged condition. If repairs cannot be completed within
a reasonable time, the aircraft must be removed from the facility by the
owner or operator of the aircraft without delay.
(ii) No aircraft will be given a major or minor overhaul.
(iii) Engine or air frame minor components may be furnished, when
not available through commercial sources, provided such supplies can be
spared and are not known to be in short supply. The issuance of such
supplies must be approved by the commanding officer.
(iv) Minor components in short supply or major components for which
there is a repeated demand can be furnished only on message authority
obtained from the Aviation Supply Office, Philadelphia, PA (for
continental facilities) or local fleet air command or major aviation
supply depot (for extracontinental facilities). Complete engines,
airplane wings, or other major items of equipment shall not be furnished
under this authority.
(v) If the commanding officer believes it is desirable to furnish
requested material or services in excess of the restrictions stated
herein, he shall request instructions from the Chief of Naval
Operations, giving a brief description of the material or services
requested together with his recommendations.
(4) Reimbursement for costs. (i) The civil user making an emergency
landing will be billed in accordance with paragraphs 032500-032503 of
the NAVCOMPT Manual and paragraphs 25345-25363 of the NAVSUP Manual for
payment of all costs incurred by the Government as a direct result of
the emergency landing. Such costs will include those associated with
labor, material, rental of equipment, vehicles or tools, etc., for:
(a) Spreading foam on runway before the aircraft attempts emergency
landing.
(b) Fire and crash control and rescue.
(c) Movement and storage of aircraft or wreckage.
(d) Damage to runway, lights, navigation aids, etc.
(ii) There will be no charge for naval meteorological services and
naval communications facilities for the handling of arrival and
departure reports, air traffic control messages, position reports and
safety messages.
(iii) The determination as to whether landing fees shall be charged
pursuant to an emergency landing for maintenance or repair shall be the
prerogative of the commanding officer of the facility.
[35 FR 14451, Sept. 15, 1970, as amended at 51 FR 22804, June 23, 1986]
Sec. 766.6 Approving authority for landings at Navy/Marine Corps aviation facilities.
(a) Except as indicated in paragraphs (b) and (c) of this section,
the commanding officer of an active Navy/Marine Corps aviation facility
may approve or disapprove landings of civil aircraft at his facility
when such landing is:
(1) Directly connected with or in support of U.S. Government
business (except those listed in paragraph (c) of this section).
(2) In connection with U.S. Government or community interests on an
infrequent basis when no adequate civil airport is reasonably available.
(3) By aircraft owned and operated by Navy/Marine Corps Flying Clubs
or U.S. Army or Air Force Aero Clubs which are operated as
instrumentalities of the U.S. Government.
(4) By aircraft owned and operated by U.S. Government personnel when
such use is in accordance with Sec. 766.4(b) (1) and (2).
(5) By civil aircraft either owned or personally chartered by:
[[Page 476]]
(i) The President or Vice President of the United States or a past
President of the United States.
(ii) The head of any Federal department or agency.
(iii) A Member of Congress.
(6) By a bailed, leased, or loaned aircraft (as defined in
Sec. 766.2) when operated in connection with official business only.
(7) By aircraft owned and operated by States, counties, or
municipalities of the United States when used for official business of
the owner.
(b) Except as limited by paragraph (c) of this section, the
Commander in Chief, U.S. Naval Forces, Europe; Chief of Naval Material;
Commander in Chief, U.S. Atlantic Fleet; Commander in Chief, U.S.
Pacific Fleet; Chief of Naval Air Training; Commander, Pacific Missile
Range; Commander, Marine Corps Air Bases, Eastern Area; Commander,
Marine Corps Air Bases, Western Area; and Commanding General, Fleet
Marine Force, Pacific may approve civil aircraft use of any active
aviation facility under their control. (At overseas locations, aircraft
landing authorizations must be in consonance with the provisions of
applicable international agreements.)
(c) The Chief of Naval Operations may approve any of the above
requests, and is the only agency empowered to approve all other requests
for use of naval facilities by civil and government aircraft, for
example:
(1) Applications for use of more than one facility when the
facilities are not under the control of one major command.
(2) Application for use of naval aviation facilities when
participating in U.S. Government or Department of Defense single-manager
contract and charter airlift operations; i.e., Military Airlift Command
(MAC) or Military Traffic Management and Terminal Service (MTMTS).
(3) Application for a facility to be used as a regular civil
airfield for a community, by either commercial or general aviation.
(4) Requests for use of a facility by foreign civil or government
aircraft when:
(i) Such use is not covered by an agreement between the U.S.
Government and the government of the aircraft's registry, or
(ii) The facility is located in a country other than that in which
the foreign aircraft is registered.
Sec. 766.7 How to request use of naval aviation facilities.
(a) Forms required. Each applicant desiring use of a Navy/Marine
Corps aviation facility will be required to:
(1) Execute an application for an Aviation Facility License (OPNAV
Form 3770/1 (Rev. 7-70)).
(2) Submit a Certificate of Insurance (NAVFAC 7-11011/36) showing
coverage as provided by Sec. 766.9 of this part.
(b) Exceptions. Exceptions to the foregoing requirements are:
(1) Aircraft owned and operated by departments or agencies of the
U.S. Government for official business.
(2) Aircraft owned and operated or noncommercial purposes by
agencies of a foreign government, except in cases where the foreign
government charges fees for U.S. Government aircraft.
(3) Aircraft owned and operated by States, possessions, and
territories of the United States and political subdivisions, thereof,
when used for official business of the owner.
(4) Aircraft owned and operated by either Navy/Marine Corps Flying
Clubs or Aero Clubs of other military services which are operated as
instrumentalities of the U.S. Government.
(5) Bailed aircraft, provided the bailment contract specifies that
the U.S. Government is the insurer for liability.
(c) Obtaining forms. The applicant may obtain the required forms
listed in paragraph (a) of this section, from the commanding officer of
any Navy or Marine Corps aviation facility or from the Chief of Naval
Operations (OP-53C). Navy units may obtain the forms through regular
supply channels as a Cog ``I'' item.
(d) Preparation of forms. (1) The license application will be
completed in quadruplicate by the applicant in accordance with detailed
instructions set forth in Aviation Facility License (OPNAV Form 3770/1
(REV. 7-70)).
(2) The Certificate of Insurance will be completed by the insurer.
Only the signed original certificate and one copy are required to be
submitted.
[[Page 477]]
(e) Submission of forms. (1) The forms executed by the applicant
shall be submitted to the commanding officer of the aviation facility
concerned, except that applications requiring approval by higher
authority shall be submitted to the appropriate approving authority, as
indicated in paragraph (b) or (c) of this section at least 30 days prior
to the first intended landing.
(2) Once the NAVFAC 7-11011/36, Certificate of Insurance, is on file
with an executing authority, it is valid until insurance expiration date
and may be used by that executing authority as a basis for his action on
any subsequent OPNAV Forms 3770/1 submitted for approval.
(f) Security deposit. All applications, other than those listed in
Sec. 766.11(a) contemplating more than one landing per month, will be
accompanied by a security deposit in the form of a certified check
payable to the ``Treasurer of the United States'' in payment of the
estimated costs of landing, hangar and outside parking fees, for 3
months in advance, calculated as provided in Sec. 766.11 (c) and (d).
Security deposits will be handled as set forth in paragraph 032102 of
the NAVCOMPT Manual.
(g) Nonexclusive use airports. When either the Chief of Naval
Operations or Commandant of the U.S. Marine Corps does not have
exclusive operational control over a landing area, the aircraft operator
will obtain permission to land from the appropriate civil or military
authority.
Sec. 766.8 Procedure for review, approval, execution and distribution of aviation facility licenses.
(a) Review of application by the commanding officer. The commanding
officer will review each application for Aviation Facility License and
Certificate of Insurance received and determine whether such forms have
been completed by the applicant in accordance with the instructions for
their preparation as indicated in the Aviation Facility License (OPNAV
Form 3770/1 (REV. 7-70)) and the Certificate of Insurance (NAVFAC 7-
11011/36(7-70)). As appropriate, the commanding officer will require
each applicant to furnish a security deposit as stipulated in
Sec. 766.7(f).
(b) Processing application. The commanding officer will approve/
disapprove the application or forward it to higher authority for
approval as required by Sec. 766.6(b) or (c). If the application is
approved, the approving authority will then forward all copies of the
license and Certificate of Insurance to the Commander, Naval Facilities
Engineering Command or his designated representative for review and
execution of the license.
(c) Action by the Commander, Naval Facilities Engineering Command or
his designated representative. (1) Upon receipt, the Commander, Naval
Facilities Engineering Command, or his designated representative, will
review the license and Certificate of Insurance. He shall determine
whether the insurance coverage conforms to the requirements prescribed
by Sec. 766.9 of this part or to such requirements as may be promulgated
from time to time by the Chief of Naval Material.
(2) Upon approval, he will then execute the license in triplicate,
conform all additional copies, and make distribution as provided in
paragraph (d) of this section. Applications which are not approved will
be returned to the applicant with an explanation of deficiencies which
must be corrected prior to execution.
(d) Distribution. (1) After execution of a license, distribution
will be made as follows:
Original--To the licensee.
Executed copy--To the commanding officer.
Executed copy--To the Commander, Naval Facilities Engineering Command or
his designated representative.
Conformed copy--To the Chief of Naval Operations (OP-53).
Conformed copy--To the cognizant commander under Sec. 766.6(b).
Conformed copy--To the disbursing officer serving the performing
activity in the case of local deposits, and to the Office of the Navy
Comptroller (NAFC3) in the case of central deposits held at the
Washington, DC level.
Conformed copy--To the Military Airlift Command (MAC) for DOD contract
or charter airlift operations.
Conformed copy--To the Military Traffic Management and Terminal Service
(MTMTS) for DOD contract or charter airlift operations.
[[Page 478]]
(2) Licenses issued under this authority are to be disposed of under
provisions of paragraph 4280 of SECNAVINST 5212.5B, Disposal of Navy and
Marine Corps Records. In accordance therewith, official executed copies
of licenses are to be retained for a period of 6 years after completion
or termination of the agreement. They may be transferred to the nearest
Federal records center when superseded, revoked, canceled, or expired
for retention by the center until expiration of the 6-year retention
period.
Sec. 766.9 Insurance requirements.
(a) Control of insurance. The Commander, Naval Facilities
Engineering Command, or his designee, shall be responsible for requiring
aircraft owners or operators to procure and maintain liability insurance
conforming to the standards prescribed by the Chief of Naval Material.
The insurance policy must be obtained at the expense of the civil
aircraft owner or operator and with a company acceptable to the U.S.
Navy.
(b) Insurance coverage. Except for those aircraft exempted by
paragraph (c) below, each civil aircraft is required to be covered by
insurance of the types and minimum limits established by the Chief of
Naval Material. The Certificate of Insurance, must state all coverages
in U.S. dollars. Current minimums are:
(1) Privately owned commercially-operated aircraft used for cargo
carrying only and aircraft being flight-tested or ferried without
passengers will be insured for:
(i) Bodily injury liability. At least $100,000 for each person in
any one accident with at least $1 million for each accident.
(ii) Property damage liability. At least $1 million for each
accident.
(2) Privately owned commercially-operated aircraft used for
passenger carrying and privately owned noncommercially-operated aircraft
of 12,500 pounds or more certified maximum gross takeoff weight will be
insured for:
(i) Bodily injury liability (excluding passengers). At least
$100,000 for each person in any one accident with at least $1 million
for each accident.
(ii) Property damage liability. At least $1 million for each
accident.
(iii) Passenger liability. At least $100,000 for each passenger,
with a minimum for each accident determined as follows: multiply the
minimum for each passenger, $100,000 by the next highest whole number
resulting from taking 75 percent of the total number of passenger seats
(exclusive of crew seats). For example: The minimum passenger coverage
for each accident for an aircraft with 94 passenger seats is computed:
94x0.75=70.5--next highest whole number resulting in 71. Therefore,
71x$100,000=$7,100,000.
(3) Privately owned noncommercially-operated aircraft of less than
12,500 pounds will be insured for:
(i) Bodily injury liability (excluding passengers). At least
$100,000 for each person in any one accident with at least $500,000 for
each accident.
(ii) Property damage liability. At least $500,000 for each accident.
(iii) Passenger liability. At least $100,000 for each passenger,
with a minimum for each accident determined by multiplying the minimum
for each passenger, $100,000 by the total number of passenger seats
(exclusive of crew seats).
(4) Aircraft insured for a single limit of liability must have
coverage equal to or greater than the combined required minimums for
bodily injury, property damage, and passenger liability for the type of
use requested and for the passenger capacity and gross takeoff weight of
the aircraft being operated. For example: the minimum single limit of
liability acceptable for an aircraft operating as described in paragraph
(b)(2) of this section is $1,000,000 + $1,000,000 + $7,100,000 =
$9,100,000.
(5) Aircraft insured by a combination of primary and excess policies
must have combined coverage equal to or greater than the required
minimums for bodily injury, property damage, and passenger liability,
for the type of use, and for the passenger capacity and gross takeoff
weight of the aircraft.
(6) Each policy must specifically provide that:
(i) The insurer waives any right to subrogation the insurer may have
against the United States by reason of
[[Page 479]]
any payment under the policy for damage or injury which might arise out
of or in connection with the insured's use of any Navy installation or
facility.
(ii) The insurance afforded by the policy applies to the liability
assumed by the insured under OPNAV Form 3770/1, Aviation Facility
License.
(iii) If the insurer cancels or reduces the amount of insurance
afforded under the listed policy, the insurer shall send written notice
of the cancellation or reduction to Commander, Naval Facilities
Engineering Command, Department of the Navy, Washington, DC 20390 by
registered mail at least 30 days in advance of the effective date of the
cancellation; the policy must state that any cancellation or reduction
will not be effective until at least 30 days after such notice is sent,
regardless of the effective date specified therein.
(iv) If the insured requests cancellation or reduction, the insurer
shall notify the Commander, Naval Facilities Engineering Command,
Department of the Navy, Washington, DC 20390 immediately upon receipt of
such request.
(c) Exemption. Government aircraft, as defined in Sec. 766.2(e) are
exempt from the insurance requirements specified above. However, this
exemption applies to bailed aircraft only if the contract under which
the aircraft is bailed specifies that insurance is not required.
Sec. 766.10 Cancellation or suspension of the aviation facility license (OPNAV Form 3770/1).
(a) Cancellation. (1) If the user fails to comply with the terms of
the Aviation Facility License (OPNAV Form 3770/1) or of any applicable
regulations, all current Aviation Facility Licenses for that user will
be canceled. A canceled Aviation Facility License cannot be reinstated;
a new application must be submitted for approval as explained in
Sec. 766.7.
(2) If the commanding officer of a naval aviation facility has
reason to believe that the use of an Aviation Facility License is not in
accordance with the terms of the license he should immediately notify
the Chief of Naval Operations, giving the name of the user, the Aviation
Facility License number, and citing the circumstances of the misuse.
(b) Suspension. The approving authority, or the commanding officer
of the facility, may suspend an approved Aviation Facility License when
such licensed use would be inconsistent with Navy/Marine Corps or
national defense interests. Whenever possible, the Department of the
Navy will avoid suspension of licenses which have been issued for
official business or scheduled air carrier use. In all cases,
suspensions will be lifted as quickly as possible. A suspension will not
have the effect of extending the expiration date of an approved Aviation
Facility License.
Sec. 766.11 Fees for landing, parking and storage.
(a) The commanding officer of a facility will collect landing,
parking, and storage fees, as applicable, from all users required to
have an Aviation Facility License by Sec. 766.7 except for the
following:
(1) Government aircraft (see definition Sec. 766.2(g)) except that
foreign government aircraft will be charged fees if their government
charges similar fees for U.S. Government aircraft.
(2) Aircraft being produced under a contract of the U.S. Government.
(3) Any contract aircraft (see definition Sec. 766.2(b)(1)) or other
civil aircraft which is authorized to use the facility on official
business.
(4) Aircraft employed to train operators in the use of precision
approach systems (GCA, ILS, et al.) provided full-stop or touch-and-go
landings are not performed.
(5) Aircraft owned and operated by either Navy/Marine Corps Flying
Clubs or Aero Clubs or other military services which are operated as
instrumentalities of the U.S. Government.
(6) Aircraft owned and operated by military personnel on active duty
(Regular and Reserve) or retired, provided the aircraft is not used for
commercial purposes.
(7) Landing fees incident to emergency landings for which the
landing fee has been waived by the commanding officer in accordance with
Sec. 766.5(i)(5)(i).
(b) Fee for unauthorized landing. If an aircraft lands at a Navy/
Marine Corps aviation facility without obtaining prior permission
(except for a bona fide
[[Page 480]]
emergency landing), a landing fee in excess of the normal landing fee
will be charged to cover the additional expenses incurred due to special
handling and processing. The fee for an unauthorized landing will be as
follows:
(1) For aircraft weighing less than 12,500 pounds: $100.
(2) For aircraft weighing 12,500 pounds but less than 40,000 pounds:
$250.
(3) For aircraft weighing 40,000 pounds but less than 100,000
pounds: $500.
(4) For aircraft weighing above 100,000 pounds: $600.
(c) Normal landing fee. The normal landing fee is based on the
aircraft maximum authorized gross takeoff weight, to the nearest 1,000
pounds. The maximum gross takeoff weight may be determined either from
item 7F of OPNAV Form 3770/1 or from the ``Airplane Flight Manual''
carried aboard each aircraft. If the weight cannot be determined, it
should be estimated.
Charge Per Landing
Inside CONUS--0.20/1,000 pounds or any portion thereof with a minimum of
$5.
Outside CONUS--0.30/1,000 pounds or any portion thereof with a minimum
of $7.50.
(d) Parking and storage fees. Fixed and rotary wing aircraft parking
and storage fees are based upon the gross takeoff weight of the aircraft
as follows:
(1) Outside a hangar. Charges begin 6 hours after the aircraft
lands. The rate is 10 cents per thousand pounds for each 24-hour period
or fraction thereof, with a minimum charge of $1.50 per aircraft.
(2) Inside a hangar. Charges begin as soon as the aircraft is placed
inside the hangar. The rate is 20 cents per 1,000 pounds for each 24-
hour period or fraction thereof, with a minimum charge of $5 per
aircraft.
(e) Reimbursement. Collections incident to direct (out of pocket)
costs will be credited to local operating and maintenance funds. All
other collections, such as for landing, parking, and storage fees will
be credited to Navy General Fund Receipt Account 172426. Accumulation of
costs and preparation of billing documents are prescribed in paragraphs
032500-032503 of the NAVCOMPT Manual.
Sec. 766.12 Unauthorized landings.
An aircraft that lands at a Navy/Marine Corps aviation facility
without obtaining prior permission from an approving authority, except
in a bona fide emergency, is in violation of this part. Civil aircraft
landing in violation of this regulation will have to pay the fee
prescribed in Sec. 766.11(b). In those cases where an unauthorized
landing is made at a facility within a Naval Defense Area, proclaimed as
such by Executive order of the President, civil aircraft may be
impounded and the operator prosecuted as indicated in OPNAVINST 5500.11C
of November 12, 1963. In any event, before the aircraft is authorized to
depart, the commanding officer of the facility will:
(a) Inform the aircraft operator of the provisions of this part and
the OP NAVINST 5500.11C of November 12, 1963, if applicable.
(b) Require the aircraft operator (or owner), before takeoff, to pay
all fees and charges and to comply with the following procedure:
(1) Execute OPNAV Form 3770/1, explaining in item 6 of that form the
reason for the landing.
(2) In lieu of submitting a Certificate of Insurance (NAVFAC 7-
11011/36), the insurer must furnish evidence of sufficient insurance to
include waiver of any right of subrogation against the United States,
and that such insurance applies to the liability assumed by the insured
under OPNAV Form 3770/1.
(3) When it appears that the violation may have been deliberate, or
is a repeated violation, departure authorization must be obtained from
the Chief of Naval Operations.
(4) Waiver of the requirements in paragraphs (b)(1) and (2) of this
section may be obtained from the Chief of Naval Operations to expedite
removal of these aircraft when such waiver is considered appropriate.
[35 FR 14451, Sept. 15, 1970, as amended at 51 FR 22804, June 23, 1986]
Sec. 766.13 Sale of aviation fuel, oil, services and supplies.
(a) General policy. In accordance with sections 1107 and 1108 of the
Federal Aviation Act of 1958 (72 Stat. 798 as amended, 49 U.S.C. 1507,
1508), Navy/
[[Page 481]]
Marine Corps Aviation fuel, oil, services, and supplies are not sold to
civil aircraft in competition with private enterprise. Sections 1107 and
1108 of Federal Aviation Act of 1958 (72 Stat. 798 as amended, 49 U.S.C.
1507, 1508), however, does authorize the sales of fuel, oil, equipment,
supplies, mechanical service, and other assistance by reason of an
emergency. Such sales will be made only where there is no commercial
source and only in the amount necessary for the aircraft to continue on
its course to the nearest airport operated by private enterprise.
(b) Contract aircraft. The sale of aviation fuel, oil, supplies,
etc. to aircraft under U.S. Government contract or charter is permitted
at, and limited to, points where passengers or cargo are loaded into or
discharged from the aircraft under terms of the contract or charter.
Sales are not authorized at naval aviation facilities where commercial
supplies and service are available.
PART 767--APPLICATION GUIDELINES FOR ARCHEOLOGICAL RESEARCH PERMITS ON SHIP AND AIRCRAFT WRECKS UNDER THE JURISDICATION OF THE DEPARTMENT OF THE NAVY--Table of Contents
Subpart A--Regulations and Obligations
Sec.
767.1 Purpose.
767.2 Definitions.
767.3 Policy.
Subpart B--Permit Guidelines
767.4 Application for permit.
767.5 Evaluation of permit application.
767.6 Credentials of principal investigator.
767.7 Conditions of permits.
767.8 Requests for amendments or extensions of active permits.
767.9 Content of permit holder's final report.
767.10 Monitoring of performance.
767.11 Violations of permit conditions.
767.12 References for submission of permit application to conduct
archeological research.
Authority: 5 U.S.C. 301; 16 U.S.C. 470.
Source: 65 FR 31080, May 16, 2000, unless otherwise noted.
Subpart A--Regulations and Obligations
Sec. 767.1 Purpose.
(a) The purpose of this part is to establish the requirement and
procedural guidelines for permits to conduct research on and/or recover
Department of the Navy (DON) ship and aircraft wrecks.
(b) The U.S. Naval Historical Center's (NHC) Office of Underwater
Archeology is the DON command responsible for managing DON ship and
aircraft wrecks under the guidelines of the Federal Archeological
Program. In order for the NHC's management policy to be consistent with
the Federal Archeology Program, and the goals of the NHPA, DON has
implemented a permitting process applicable to DON property consistent
with and applying the Archeological Resources Protection Act of 1979 as
amended (ARPA), 16 U.S.C. 470aa-mm, permitting criteria. Department of
the Navy policies regarding its ship and aircraft wrecks are consistent
with ARPA permitting requirements. Department of the Navy application of
ARPA permitting criteria promotes consistency among federal agencies and
meets DON's responsibilities under the NHPA while allowing qualified
non-federal and private individuals and entities access to DON historic
ship and aircraft wrecks.
(c) To assist NHC in managing, protecting, and preserving DON ship
and aircraft wrecks.
Sec. 767.2 Definitions.
Aircraft wreck means the physical remains of an aircraft, intact or
otherwise, its cargo, and other contents. Aircraft wrecks are classified
as either historic structures or archeological sites.
Archeological site means the location of an event, a prehistoric or
historic occupation or activity, or a building or structure, whether
standing, ruined, or vanished, where the location itself maintains
historical or archeological value regardless of the value of any
existing structure. A ship or aircraft wreck, along with its debris
field, is an archaeological site when it lacks the
[[Page 482]]
structural integrity of an intact aircraft or vessel and when it and its
location retain archeological or historical value regardless of the
value of any existing remains.
Artifact means any object or assemblage of objects, regardless of
age, whether in situ or not, that may carry archeological or historical
information that yields or is likely to yield information to the
scientific study of culture or human history.
Cultural resource means any prehistoric or historic district, site,
building, structure, or object, including artifacts, records, and
material remains related to such a property or resource. Historic
aircraft wrecks or shipwrecks are classified as either archeological
sites or historic structures.
Gravesite means any natural or prepared physical location, whether
originally below, on, or above the surface of the earth, where
individual human remains are deposited.
Historic structure means a structure made up of interdependent and
interrelated parts in a definite pattern or organization. Constructed by
humans, it is often an engineering project large in scale. An aircraft
wreck or shipwreck is a historic structure when it is relatively intact
and when it and its location retain historical, architectural, or
associative value.
Permit holder means any person authorized and given the exclusive
right by the NHC to conduct any activity under these regulations.
Permitted activity means any activity that is authorized by the NHC
under the regulations in this part.
Research vessel means any vessel employed for scientific purposes
under the regulations in this part.
Ship wreck means the physical remains of a vessel, intact or
otherwise, its cargo, and other contents. Shipwrecks are classified as
either historic structures or archeological sites.
Wrecksite means the location of a ship or aircraft that has been
sunk, crashed, ditched, damaged, or stranded. The wreck may be intact or
scattered, may be on land or in water, and may be a structure or a site.
The site includes the physical remains of the wreck and all other
associated artifacts.
Sec. 767.3 Policy.
(a) The Naval Historical Center's policy has been to evaluate each
DON ship and aircraft wreck on an individual basis. In some cases, the
removal of DON ship and aircraft wrecks may be necessary or appropriate
to protect the cultural resource and/or to fulfill other NHC goals, such
as those encompassing research, education, public access, and
appreciation. Recovery of DON ship and aircraft wrecks may be justified
in specific cases where the existence of a cultural resource may be
threatened. Therefore, recovery of some or all of a cultural resource
may be permitted for identification and/or investigation to answer
specific questions; or the recovery presents an opportunity for public
research or education.
(b) Generally, DON ship and aircraft wrecks will be left in place
unless artifact removal or site disturbance is justified and necessary
to protect DON ship and aircraft wrecks, to conduct research, or provide
public education and information that is otherwise inaccessible. While
NHC prefers non-destructive, in situ research on DON ship and aircraft
wrecks, it recognizes that site disturbance and/or artifact recovery is
sometimes necessary. At such times, site disturbance and/or
archeological recovery may be permitted, subject to conditions specified
by NHC.
Subpart B--Permit Guidelines
Sec. 767.4 Application for permit.
(a) To request a permit application form, please write to:
Department of the Navy, U.S. Naval Historical Center, Office of the
Underwater Archeologist, 805 Kidder Breese St. SE, Washington Navy Yard,
DC 20374-5060. Telefax number: 202-433-2729.
(b) Applicants must submit three copies of their completed
application at least 120 days in advance of the requested effective date
to allow sufficient time for evaluation and processing. Requests should
be sent to the Department of the Navy, U.S. Naval Historical Center,
Office of the Underwater Archeologist, 805 Kidder Breese St. SE,
Washington Navy Yard, DC 20374-5060.
[[Page 483]]
(c) If the applicant believes that compliance with one or more of
the factors, criteria, or procedures in the guidelines contained in this
part is not practicable, the applicant should set forth why and explain
how the purposes of NHC are better served without compliance with the
specified requirements. Permits are valid for one year from the issue
date.
Sec. 767.5 Evaluation of permit application.
(a) Permit applications for archeological research are reviewed for
completeness, compliance with program policies, and adherence to the
guidelines of this subpart. Incomplete applications will be returned to
the applicant for clarification. Complete applications are reviewed by
NHC personnel and, when necessary, outside experts. In addition to the
criteria set forth in Sec. 767.6, applications are also judged on the
basis of: relevance or importance; archeological merits; appropriateness
and environmental consequences of technical approach; and qualifications
of the applicants.
(b) Under certain circumstances, it may be necessary to consult with
the State Historic Preservation Officer (SHPO) and the Advisory Council
on Historic Preservation (ACHP) about the need to comply with section
106 of the NHPA. A section 106 review may require the NHC to consult
with the appropriate SHPO and the ACHP. The ACHP review can take up to
60 days beyond the NHC's required 120-day review. Therefore, the entire
review process may take up to 180 days.
(c) The NHC shall send applications for research at sites located in
units of the national park system, national wildlife refuge system, and
national marine sanctuary system to the appropriate Federal land manager
for review. The Federal land manager is responsible for ensuring that
the proposed work is consistent with any management plan or established
policy, objectives or requirements applicable to the management of the
public lands concerned. NHC shall send applications for research at
sites located on state bottomlands to the appropriate state agency for
review. The burden of obtaining any and all additional permits or
authorizations, such as from a state or foreign government or agency,
private individual or organization, or from another federal agency, is
on the applicant.
(d) Based on the findings of the NHC evaluation, the NHC Underwater
Archeologist will recommend an appropriate action to the NHC Director.
If approved, NHC will issue the permit; if denied, applicants are
notified of the reason for denial and may appeal within 30 days of
receipt of the denial. Appeals must be submitted in writing to: Director
of Naval History, Naval Historical Center, 805 Kidder Breese St. SE,
Washington Navy Yard, DC 20374-5060.
Sec. 767.6 Credentials of principal investigator.
A resume or curriculum vitae detailing the professional
qualifications and professional publications and papers of the principal
investigator (PI) must be submitted with the permit application. The PI
must have: a graduate degree in archeology, anthropology, maritime
history, or a closely related field; at least one year of professional
experience or equivalent specialized training in archeological research,
administration or management; at least four months of supervised field
and analytic experience in general North American historic archaeology
and maritime history; the demonstrated ability to carry research to
completion; and at least one year of full-time professional experience
at a supervisory level in the study of historic marine archeological
resources. This person shall be able to demonstrate ability in
comprehensive analysis and interpretation through authorship of reports
and monographs.
Sec. 767.7 Conditions of permits.
(a) Upon receipt of a permit, permit holders must counter-sign the
permit and return copies to the NHC and the applicable SHPO, Federal or
State land manager, or foreign government official prior to conducting
permitted activities on the site. Copies of countersigned permits should
also be provided to the applicable federal land
[[Page 484]]
manager when the sunken vessel or aircraft is located within a unit of
the national park system, the national wildlife refuge system, or the
national marine sanctuary system.
(b) Permits must be carried aboard research vessels and made
available upon request for inspection to regional preservation personnel
or law enforcement officials. Permits are non-transferable. Permit
holders must abide by all provisions set forth in the permit as well as
applicable state or Federal regulations. Permit holders should abide by
applicable regulations of a foreign government when the sunken vessel or
aircraft is located in foreign waters. To the extent reasonably
possible, the environment must be returned to the condition that existed
before the activity occurred.
(c) Upon completion of permitted activities, the permit holder is
required to submit to NHC a working and diving log listing days spent in
field research, activities pursued, and working area positions.
(d) The permit holder must prepare and submit a final report as
detailed in Sec. 767.9, summarizing the results of the permitted
activity.
(e) The permit holder must agree to protect all sensitive
information regarding the location and character of the wreck site that
could potentially expose it to non-professional recovery techniques,
looters, or treasure hunters. Sensitive information includes specific
location data such as latitude and longitude, and information about a
wreck's cargo, the existence of armaments, or the knowledge of
gravesites.
(f) All recovered DON cultural resources remain the property of the
United States. These resources and copies of associated archaeological
records and data will be preserved by a suitable university, museum, or
other scientific or educational institution and must meet the standards
set forth in 36 CFR part 79, Curation of Federally Owned and
Administered Archeological Collections, at the expense of the applicant.
The repository shall be specified in the permit application.
Sec. 767.8 Requests for amendments or extensions of active permits.
(a) Requests for amendments to active permits (e.g., a change in
study design or other form of amendment) must conform to the regulations
in this part. All necessary information to make an objective evaluation
of the amendment should be included as well as reference to the original
application.
(b) Permit holders desiring to continue research activities must
reapply for an extension of their current permit before it expires. A
pending extension or amendment request does not guarantee extension or
amendment of the original permit. Therefore, you must submit an
extension request to NHC at least 30 days prior to the original permit's
expiration date. Reference to the original application may be given in
lieu of a new application, provided the scope of work does not change
significantly. Applicants may apply for one-year extensions subject to
annual review.
(c) Permit holders may appeal denied requests for amendments or
extensions to the appeal authority listed in Sec. 767.5.
Sec. 767.9 Content of permit holder's final report.
The permit holder's final report shall include the following:
(a) A site history and a contextual history relating the site to the
general history of the region;
(b) A master site map;
(c) Feature map(s) of the location of any recovered artifacts in
relation to their position within the wrecksite;
(d) Photographs of significant site features and significant
artifacts both in situ and after removal;
(e) If applicable, a description of the conserved artifacts,
laboratory conservation records, and before and after photographs of the
artifacts at the conservation laboratory;
(f) A written report describing the site's historical background,
environment, archeological field work, results, and analysis;
(g) A summary of the survey and/or excavation process; and
[[Page 485]]
(h) An evaluation of the completed permitted activity that includes
an assessment of the permit holder's success of his/her specified goals.
Sec. 767.10 Monitoring of performance.
Permitted activities will be monitored to ensure compliance with the
conditions of the permit. NHC on-site personnel, or other designated
authorities, may periodically assess work in progress by visiting the
study location and observing any activity allowed by the permit or by
reviewing any required reports. The discovery of any potential
irregularities in performance under the permit will be promptly reported
and appropriate action will be taken. Permitted activities will be
evaluated and the findings will be used to evaluate future applications.
Sec. 767.11 Violations of permit conditions.
The Director of Naval History, the Underwater Archeologist for DON,
or his/her designee may, amend, suspend, or revoke a permit in whole or
in part, temporarily or indefinitely, if in his/her view the permit
holder has acted in violation of the terms of the permit or of other
applicable regulations, or for other good cause shown. Any such action
will be communicated in writing to the permit holder and will set forth
the reason for the action taken. The permit holder may appeal the action
to the appeal authority listed in Sec. 767.5.
Sec. 767.12 References for submission of permit application to conduct archeological research.
(a) National Historic Preservation Act of 1966, as amended (NHPA),
16 U.S.C. 470 et seq. (1999), and Protection of Historic Properties, 36
CFR part 800. These regulations govern the Section 106 Review Process
established by the NHPA.
(b) Secretary of the Interior's Standards and Guidelines for
Archeology and Historic Preservation published on September 29, 1983 (48
FR 44716). These guidelines establish standards for the preservation
planning process with guidelines on implementation.
(c) Archeological Resources Protection Act of 1979, as amended
(ARPA), 16 U.S.C. 470aa-mm, and the Uniform Regulations, 43 CFR part 7,
subpart A. These regulations establish basic government-wide standards
for the issuance of permits for archeological research, including the
authorized excavation and/or removal of archeological resources on
public lands or Indian lands.
(d) Secretary of the Interior's regulations, Curation of Federally-
Owned and Administered Archeological Collections, 36 CFR part 79. These
regulations establish standards for the curation and display of
federally-owned artifact collections.
(e) Antiquities Act of 1906, Public Law 59-209, 34 Stat. 225
(codified at 16 U.S.C. 431 et seq. (1999)).
(f) Executive Order 11593, 36 FR 8291, 3 CFR, 1971-1975 Comp., p.
559 (Protection and Enhancement of the Cultural Environment).
(g) Department of Defense Instruction 4140.21M (DoDI 4120.21M,
August 1998). Subject: Defense Disposal Manual.
(h) Secretary of the Navy Instruction 4000.35 (SECNAVINST 4000.35,
17 August 1992). Subject: Department of the Navy Cultural Resources
Program.
(i) Naval Historical Center Instruction 5510.4. (NAVHISTCENINST
5510.4, 14 December 1995). Subject: Disclosure of Information from the
Naval Shipwreck Database.
PARTS 768-769 [RESERVED]
PART 770--RULES LIMITING PUBLIC ACCESS TO PARTICULAR INSTALLATIONS--Table of Contents
Subpart A--Hunting and Fishing at Marine Corps Base, Quantico, Virginia
Sec.
770.1 Purpose.
770.2 Licenses.
770.3 Fishing regulations.
770.4 Hunting regulations.
770.5 Safety regulations.
770.6 Restrictions.
770.7 Violations and environmental regulations.
770.8 Reports.
770.9 Miscellaneous.
[[Page 486]]
Subpart B--Base Entry Regulations for Naval Submarine Base, Bangor,
Silverdale, Washington
770.15 Purpose.
770.16 Definition.
770.17 Background.
770.18 Entry restrictions.
770.19 Entry procedures.
770.20 Violations.
Subpart C--Base Entry Regulations for Naval Installations in the State
of Hawaii
770.25 Purpose.
770.26 Definitions.
770.27 Background.
770.28 Entry restrictions.
770.29 Entry procedures.
770.30 Violations.
770.31 List of major naval installations in the State of Hawaii and
cognizant commanders authorized to grant access under these
regulations.
Subpart D--Entry Regulations for Naval Installations and Property in
Puerto Rico
770.35 Purpose.
770.36 Definitions.
770.37 Background.
770.38 Entry restrictions.
770.39 Entry procedures.
770.40 Violations.
Subpart E--Base Entry Regulations for Naval Submarine Base New London,
Groton, Connecticut
770.41 Purpose.
770.42 Background.
770.43 Responsibility.
770.44 Entry restrictions.
770.45 Entry procedures.
770.46 Violations.
Subpart F--Base Entry Regulations for Puget Sound Naval Shipyard,
Bremerton, Washington
770.47 Purpose.
770.48 Definition.
770.49 Background.
770.50 Entry restrictions.
770.51 Entry procedures.
770.52 Violations.
Subpart G--Entry Regulations for Portsmouth Naval Shipyard, Portsmouth,
New Hampshire
770.53 Purpose.
770.54 Background.
770.55 Responsibility.
770.56 Entry restrictions.
770.57 Entry procedures.
770.58 Violations.
Authority: 5 U.S.C. 301; 10 U.S.C. 6011; 32 CFR 700.702; 32 CFR
700.714, unless otherwise noted.
Subpart A--Hunting and Fishing at Marine Corps Base, Quantico, Virginia
Source: 41 FR 22345, June 3, 1976, unless otherwise noted.
Sec. 770.1 Purpose.
This subpart provides regulations and related information governing
hunting and fishing on the Marine Corps Base Reservation, Quantico, VA.
Sec. 770.2 Licenses.
(a) Every person who hunts or fishes on Marine Corps Base, Quantico,
VA, must possess appropriate valid licenses in compliance with the Laws
of the United States and the State of Virginia.
(b) In addition, hunting and fishing privilege cards, issued by the
authorities at Marine Corps Base, Quantico, VA, are required for all
persons between the ages sixteen and sixty-four, inclusive.
(1) The privilege card may be purchased from the Natural Resources
and Environmental Affairs Branch, Building 5-9, Marine Corps Base,
Quantico, VA.
(2) The privilege cards are effective for the same period as the
Virginia hunting and fishing licenses.
(c) All hunters must obtain a Base hunting permit, and a parking
permit, if applicable, from the Game Check Station, Building 5-9 Station
(located at the intersection of Russell Road and MCB-1) for each day of
hunting. The hunting permit must be carried by the hunter and the
parking permit must be displayed on the left dashboard of parked
vehicles. The hunting and parking permits must be returned within one
hour after either sunset or the hour hunting is secured on holidays or
during special season.
(d) Eligibility for a Base hunting permit is predicated on:
(1) Possession of required Federal and State licenses for the game
to be hunted including Marine Corps Base hunting privilege card;
[[Page 487]]
(2) Attendance at a safety lecture given daily except Sunday during
the hunting season given at the Game Check Station. The lectures
commence at the times posted in the Annual Hunting Bulletin and are
posted on all base bulletin boards;
(3) Understanding of Federal, State and Base hunting regulations;
(4) And, if civilian, an executed release of U.S. Government
responsibility in case of accident or injury.
[41 FR 22345, June 3, 1976, as amended at 48 FR 23205, May 24, 1983; 65
FR 53591, Sept. 5, 2000]
Sec. 770.3 Fishing regulations.
(a) All persons possessing the proper state license and Base permit
are permitted to fish in the areas designated by the Annual Fishing
Regulations on Marine Corps Base, Quantico, VA, on any authorized
fishing day. A Base Fishing Privilege Card is required for all persons
aged 16 to 65.
(b) Fishing is permitted on all waters within the boundaries of
Marine Corps Base, Quantico, VA, unless otherwise posted, under the
conditions and restrictions and during the periods provided by Marine
Corps Base, Quantico, VA. Information regarding specific regulations for
each fishing area must be obtained from the Natural Resources and
Environmental Affairs Branch, Building 5-9 prior to use of Base fishing
facilities.
(c) In addition to the requirements of the Laws of Virginia, the
following additional prohibitions and requirements are in effect at
Marine Corps Base, Quantico, VA.
(1) No trout lines are permitted in Marine Corps Base waters;
(2) No Large Mouth Bass will be taken, creeled or possessed in a
slot limit of 12-15 inches in length. All Large Mouth Bass within this
slot will be immediately returned to the water;
(3) No Striped Bass will be taken, creeled or possessed under the
size of twenty (20) inches in length. All Striped Bass under this size
will be immediately returned to the water.
[41 FR 22345, June 3, 1976, as amended at 48 FR 23205, May 24, 1983; 65
FR 53591, Sept. 5, 2000]
Sec. 770.4 Hunting regulations.
All persons possessing the proper State, Federal and Base licenses
and permits are permitted to hunt in the areas designated daily by the
Annual Hunting Bulletin on Marine Corps Base, Quantico, VA, on any
authorized hunting day. In addition, a minimum of fifteen percent of the
daily hunting spaces will be reserved to civilians on a first come,
first served basis until 0600 on each hunting day, at which time, the
Game Check Station may fill vacancies from any authorized persons
waiting to hunt.
[65 FR 53591, Sept. 5, 2000]
Sec. 770.5 Safety regulations.
(a) Hunting is not permitted within 200 yards of the following:
Ammunition dumps, built-up areas, rifle or pistol ranges, dwelling or
other occupied structures, and areas designated by the Annual Hunting
Bulletin as recreation areas.
(b) From the end of the special archery season until the end of the
regular firearms winter hunting season, except for duck hunters in
approved blinds, hunters will wear an outer garment with at least two
square foot of blaze orange visible both front and back above the waist
and a blaze orange cap while hunting, or while in the woods for any
reason, during the hours that hunting is authorized. Any person
traveling on foot in or adjacent to an area open for hunting will comply
with this requirement.
(c) Weapons will be unloaded while being transported in vehicles,
and will be left in vehicles by personnel checking in or out at the Game
Check Station. Weapons will not be discharged from vehicles, or within
200 yards of hard surfaced roads.
(d) Certain hunting areas contain numerous unexploded munitions
(duds) which are dangerous and must not be removed or disturbed. Hunters
should mark such duds with stakes or other means and report their
location to the Game Warden.
(e) Hunters must stay in their assigned areas when hunting.
[41 FR 22345, June 3, 1976, as amended at 65 FR 53592, Sept. 5, 2000]
[[Page 488]]
Sec. 770.6 Restrictions.
(a) There will be no hunting on Christmas Eve, Christmas Day, New
Years Day, or after 1200 on Thanksgiving Day.
(b) Hunters under 18 years of age must be accompanied by an adult
(21 years of age or older) while hunting or in a hunting area. The adult
is limited to a maximum of two underage hunters, and must stay within
sight and voice contact and no more than 100 yards away from the
underage hunters.
(c) The following practices or actions are expressly forbidden: Use
of rifles, except muzzleloaders of .40 caliber or larger as specified
below, revolvers or pistols; use of shotguns larger than 10 gauge or
crossbows (this prohibition extends to carrying such weapons on the
person or in a vehicle while hunting), use of buckshot to hunt any game;
use of a light, attached to a vehicle or otherwise, for the purpose of
spotting game; use of dogs for hunting or tracking deer; training deer
dogs on the Reservation; training or running dogs in hunting areas
between 1 March and 1 September; driving deer; baiting or salting traps
or blinds; hunting on Sunday; molesting wildlife. Those personnel who
are authorized to hunt on Base, desiring to train or exercise dogs other
than deer dogs between 2 September and 28 February, may do so by
obtaining Walking Pass to enter training areas at the Range Control
Office. This Walking Pass is not permission to hunt, and carrying
weapons under these conditions is prohibited.
(d) Hunting will not commence before one half hour before sunrise,
and will end not later than sunset. The hours of sunrise and sunset are
posted daily at the Game Checking Station.
(e) Weapons will not be loaded outside of hunting hours.
(f) There will be no use of a muzzleloader or slug shotgun after
obtaining the daily or yearly game bag limits.
(g) There will be no possession or use of drugs or alcohol while
checked out to hunt.
[41 FR 22345, June 3, 1976, as amended at 48 FR 23205, May 24, 1983; 65
FR 53592, Sept. 5, 2000]
Sec. 770.7 Violations and environmental regulations.
Violations of hunting regulations, fishing regulations, safety
regulations, or principles of good sportsmanship are subject to
administrative restriction of hunting or fishing privileges and possible
judicial proceedings in State or Federal courts.
(a) The Marine Corps Base Game Wardens are Federal Game Wardens.
They have authority to issue summons to appear in Federal court for game
violations.
(b) Offenders in violation of a Federal or State hunting or fishing
laws will be referred to a Federal court.
(c) Offenders in violation of a Federal, State or Base hunting or
fishing law or regulation will receive the following administrative
actions.
(1) The Base Game Warden shall have the authority to temporarily
suspend hunting and fishing privileges.
(2) Suspensions of hunting and fishing privileges will be outlined
in the Annual Fish and Wildlife Procedures Manual.
(d) Civilians found in violation of a hunting or fishing regulation
or law may be permanently restricted from entering the base.
(e) Serious hunting and fishing offenses include, but are not
limited to: spotlighting, false statement on a license, hunting under
the influence, employment of a light in an area that deer frequent, and
taking game or fish during closed seasons.
[41 FR 22345, June 3, 1976, as amended at 65 FR 53592, Sept. 5, 2000]
Sec. 770.8 Reports.
Upon killing a deer or turkey, a hunter must attach the appropriate
tab from his big game license to the carcass before moving the game from
the place of kill. The game will then be taken to the Game Checking
Station where the tab will be exchanged for an official game tag. All
other game, not requiring a tag, killed on the Reservation will be
immediately reported to the Game Warden when checking out at the end of
a hunt.
[41 FR 22345, June 3, 1976, as amended at 48 FR 23206, May 24, 1983; 65
FR 53592, Sept. 5, 2000]
[[Page 489]]
Sec. 770.9 Miscellaneous.
Refer to the Annual Fishing and Hunting Bulletins that will cover
any annual miscellaneous changes.
[65 FR 53592, Sept. 5, 2000]
Subpart B--Base Entry Regulations for Naval Submarine Base, Bangor,
Silverdale, Washington
Authority: 50 U.S.C. 797; DoDDir. 5200.8 of April 25, 1991; 5 U.S.C.
301; 10 U.S.C. 6011; 32 CFR 700.702; 32 CFR 700.714.
Source: 44 FR 32368, June 6, 1979, unless otherwise noted.
Sec. 770.15 Purpose.
The purpose of this subpart is to promulgate regulations governing
entry upon Naval Submarine Base (SUBASE), Bangor.
Sec. 770.16 Definition.
For the purpose of this subpart, SUBASE Bangor shall include that
area of land in Kitsap and Jefferson Counties, State of Washington which
has been set aside for use of the Federal Government by an Act of the
legislature of the State of Washington, approved March 15, 1939 (Session
laws of 1939, chapter 126).
Sec. 770.17 Background.
(a) SUBASE Bangor has been designated as the West Coast home port of
the Trident Submarine. Facilities for the repair or overhaul of naval
vessels are located at SUBASE Bangor. It is vital to national defense
that the operation and use of SUBASE Bangor be continued without undue
and unnecessary interruption. Many areas of SUBASE Bangor are of an
industrial nature, including construction sites, where inherently
dangerous conditions exist.
(b) For prevention of the interruption of the stated use of the base
by the presence of any unauthorized person within the boundaries of
SUBASE Bangor, and prevention of injury to any such person as a
consequence of the dangerous conditions which exist, as well as for
other reasons, it is essential to restrict entry upon SUBASE Bangor to
authorized persons only.
Sec. 770.18 Entry restrictions.
Except for military personnel and civilian employees of the United
States in the performance of their official duties, entry upon Naval
Submarine Base, Bangor, or remaining thereon by any person whatsoever
for any purpose without the advance consent of the Commanding Officer,
SUBASE Bangor or his authorized representative is prohibited. See, 18
U.S.C. 1382; the Internal Security Act of 1950, Section 21 (50 U.S.C.
797); Department of Defense Directive 5200.8 of 25 April 1991; Secretary
of the Navy Instruction 5511.36A of 21 July 1992.
[44 FR 32368, June 6, 1979, as amended at 65 FR 53592, Sept. 5, 2000]
Sec. 770.19 Entry procedures.
(a) Any person or group of persons desiring the advance consent of
the Commanding Officer, SUBASE Bangor or his authorized representative
shall, in writing, submit a request to the Commanding Officer, Naval
Submarine Base, Bangor, 1100 Hunley Road, Silverdale, WA 98315.
(b) Each request for entry will be considered on an individual basis
weighing the operational, security, and safety requirements of SUBASE
Bangor with the purpose, size of party, duration of visit, destination,
and military resources which would be required by the granting of the
request.
[44 FR 32368, June 6, 1979, as amended at 65 FR 53592, Sept. 5, 2000]
Sec. 770.20 Violations.
(a) Any person entering or remaining on SUBASE Bangor, without the
consent of the Commanding Officer, SUBASE Bangor or his authorized
representative, shall be subject to the penalties prescribed by 18
U.S.C. 1382, which provides in pertinent part:
Whoever, within the jurisdiction of the United States, goes upon any
military, naval * * * reservation, post, fort, arsenal, yard, station,
or installation, for any purpose prohibited by law or lawful regulation
* * * shall be fined not more than $5,000 or imprisoned not more than
six months or both.
[[Page 490]]
(b) Moreover, any person who willfully violates this subpart is
subject to a fine not to exceed $5,000 or imprisonment for not more than
one (1) year or both as provided in 50 U.S.C. 797.
[44 FR 32368, June 6, 1979, as amended at 65 FR 53592, Sept. 5, 2000]
Subpart C--Base Entry Regulations for Naval Installations in the State
of Hawaii
Authority: 50 U.S.C. 797; DoD Dir. 5200.8 of Aug. 20, 1954; 5 U.S.C
301; 10 U.S.C. 6011; 32 CFR 700.702, 770.714.
Source: 44 FR 76279, Dec. 26, 1979, unless otherwise noted.
Sec. 770.25 Purpose.
The purpose of this subpart is to promulgate regulations governing
entry to naval installations in the State of Hawaii.
Sec. 770.26 Definitions.
For the purpose of this subpart the following definitions apply:
(a) Naval installations. A naval installation is a shore activity
and is any area of land, whether or not fenced or covered by water, that
is administered by the Department of the Navy or by any subordinate
naval command. The term ``naval installation'' applies to all such areas
regardless of whether the areas are being used for purely military
purposes, for housing, for support purposes, or for any other purpose by
a naval command. Section 770.31 contains a list of the major naval
installations in Hawaii. This list is not considered to be all inclusive
and is included only as a representative guide. For the purposes of this
subpart the area of water within Pearl Harbor is considered to be within
a naval installation.
(b) Outleased areas. Certain portions of naval installations in
Hawaii which are not for the time needed for public use or for which a
dual use is feasible have been outleased to private interests. Examples
of such outleased areas are the Moanalua Shopping Center and lands such
as Waipio Peninsula, which has been outleased for agricultural purposes.
For the purpose of this Subpart, outleased areas which are not within
fenced portions of naval installations are not considered to be a part
of naval installations. Rules for entry onto the outleased areas are
made by the lessees, except in the case of Waipio Peninsula where the
lessee (Oahu Sugar Company) is not authorized to allow anyone to enter
Waipio Peninsula for any purpose not connected with sugar cane
production.
Sec. 770.27 Background.
(a) Naval installations in Hawaii constitute a significant element
of the national defense establishment. It is vital to the national
defense that the use of such areas be at all times under the positive
control of the Department of the Navy. Strict control must be exercised
over access to naval installations in order to preclude damage
accidental and intentional to Government property, injury to military
personnel, and interference in the orderly accomplishment of the mission
of command.
(b) There are several industrial areas within naval installations in
Hawaii wherein construction activities and the use of heavy machinery
pose grave risk of danger to visitors.
(c) Various types of flammable or incendiary materials and ordnance
are stored at a number of locations within naval installations in
Hawaii.
(d) Classified documents and equipment requiring protection from
unauthorized disclosure by Executive order 12065 for reasons of national
security are located at various locations within naval installations in
Hawaii.
(e) In order to effect the positive control of the Navy over its
installations in Hawaii, it is essential that entry onto those
installations be restricted to authorized persons only.
(f) These entry regulations are being promulgated under the
authority of Commander, Naval Base, Pearl Harbor, who has been assigned
as immediate area coordinator for all naval installations in the State
of Hawaii by Commander-in-Chief, U.S. Pacific Fleet.
Sec. 770.28 Entry restrictions.
Each commander is responsible for the security of his/her command.
Therefore, entry onto a command or into part of a command may be
controlled by the commander through the imposition of such restrictions
as may
[[Page 491]]
be required by attendant circumstances. Within the State of Hawaii,
entry into a naval installation is not permitted without the permission
of the responsible commander.
Sec. 770.29 Entry procedures.
(a) Operational, security, and safety considerations take priority
over requests by individuals to visit a naval installation. Consistent
with such considerations, visits by members of the general public may be
authorized at the discretion of the commander. The commitment of
resources which would be required to safeguard the persons and property
of visitors as well as military property and personnel must of necessity
preclude or severely restrict such visiting. The purpose and duration of
the visit and the size of the party and areas to be visited are other
considerations which may affect the commander's decision whether to
permit visiting by members of the public.
(b) Any person or group desiring to enter a particular naval
installation or portion thereof, shall submit a written request to the
commander of the installation well enough in advance to allow a
reasonable time for reply by mail. Mailing addresses for commanders of
major installations covered by this subpart are listed in Sec. 770.31.
Full compliance with a naval installation's local visitor registration
and entry control procedures shall be deemed the equivalent of obtaining
the advance consent of the commander for entrance upon the installation
for the purpose of this subpart. Authorization to enter one naval
installation or a portion of one installation does not necessarily
include the authorization to enter any other naval installation or all
portions of an installation.
Sec. 770.30 Violations.
(a) Any person entering or remaining on a naval installation in the
State of Hawaii, without consent of the commander or his authorized
representative, shall be subject to the penalties of a fine of not more
than $500 or imprisonment for not more than six months, or both. See 18
U.S.C. 1382.
(b) Moreover, any person who willfully violates this regulation is
subject to a fine not to exceed $5,000 or imprisonment for one year, or
both. See 50 U.S.C. 797.
Sec. 770.31 List of major naval installations in the State of Hawaii and cognizant commanders authorized to grant access under these regulations.
(a) On Oahu. (1) Naval Base, Pearl Harbor (including the Naval
Station, Naval Submarine Base, Naval Shipyard, Naval Supply Center,
Naval Public Works Center, Marine Barracks, Ford Island, Bishop Point
Dock Area, Commander-in-Chief Pacific Fleet and Commander Naval
Logistics Command Headquarters Areas, Johnson Circle Navy Exchange/
Commissary Store Area, Navy-Marine Golf Course, miscellaneous other
commands, and areas within the Naval Base, Pearl Harbor complex, and the
waters of Pearl Harbor). Contact:
Commander, Naval Base, Pearl Harbor, HI 96860.
(2) Naval Western Oceanography Center, Pearl Harbor. Contact:
Commanding Officer, Naval Western Oceanography Center, Box 113, Pearl
Harbor, HI 96860.
(3) Naval Air Station, Barbers Point. Contact:
Commanding Officer, Naval Air Station, Barbers Point, HI 96862.
(4) Naval Communication Area Master Station, Eastern Pacific,
Wahiawa. Contact:
Commanding Officer, Naval Communication Area Master Station, Eastern
Pacific, Wahiawa, HI 96786.
(5) Naval Magazine (Lualualei, Waikele, and West Loch). Contact:
Commanding Officer, Naval Magazine, Lualualei, HI 96792.
(6) Naval Radio Transmitting Facility, Lualualei. Contact:
Commanding Officer, Naval Base, Pearl Harbor, HI 96860.
(7) Naval and Marine Corps Reserve Training Center, Honolulu.
Contact:
Commanding Officer, Naval and Marine Corps Reserve Training Center,
Honolulu, 530 Peltier Avenue, Honolulu, HI 96818.
[[Page 492]]
(8) Military Sealift Command Office. Contact:
Commander, Naval Base, Pearl Harbor, HI 96860.
(9) Mauna Kapu (Pacific Missile Range Facility). Contact:
Commanding Officer, Pacific Missile Range Facility, Hawaiian Area,
Barking Sands, Kekaha, Kauai, HI 96752.
(10) Kunia Facility; FORACS III Sites; Degaussing Station, Waipio
Peninsula; Damon Tract (Remanant) Opana Communciations Site. Contact:
Commander, Naval Base, Pearl Harbor, HI 96860.
(11) Outlying areas of the Naval Supply Center, Pearl Harbor
(including the Ewa Junction Storage Area, Ewa Drum Storage Area, Manana
Supply Area, Pearl City Supply Area, and the Red Hill Fuel Storage
Area). Contact:
Commander, Naval Base, Pearl Harbor, HI 96860.
(12) Pump Stations (Halawa, Waiawa, Red Hill, and Barbers Point).
Contact:
Commander, Naval Base, Pearl Harbor, HI 96860.
(13) Halawa Water Storage Area; Barbers Point, Independent Water
Supply Reservoir Site; Sewage Treatment Plant; Fort Kam (tri-service);
Utility Corridors, Lynch Park (Ohana Nui). Contact:
Commander, Naval Base, Pearl Harbor, HI 96860.
(14) Navy housing areas (including Moanalua Terrace, Radford
Terrace, Makalapa, Maloelap, Halsey Terrace, Catlin Park, Hale Moku,
Pearl Harbor, Naval Shipyard, McGrew Point, Halawa, Hokulani, Manana,
Pearl City Peninsula, Red Hill, Iroquois Point, Puuloa, and Camp
Stover). Contact:
Commander, Naval Base, Pearl Harbor, HI 96860.
(b) On Kauai.
(1) Pacific Missile Range Facility, Barking Sands, Kekaha.
Contact: Commanding Officer, Pacific Missile Range Facility, Hawaiian
Area, Barking Sands, Kekaha, HI 96752.
(c) Other areas.
(1) Kaho'olawe Island. Contact:
Commander Naval Base, Pearl Harbor, HI 96860. Also see 32 CFR Part 763.
(2) Kaula. Contact:
Commander Naval Base, Pearl Harbor, HI 96860.
[44 FR 76279, Dec. 26, 1979, as amended at 52 FR 20074, May 29, 1987]
Subpart D--Entry Regulations for Naval Installations and Property in
Puerto Rico
Source: 46 FR 22756, Apr. 21, 1981, unless otherwise noted.
Sec. 770.35 Purpose.
The purpose of this subpart is to promulgate standard regulations
and procedures governing entry upon U.S. Naval installations and
properties in Puerto Rico.
Sec. 770.36 Definitions.
For purposes of these regulations, U.S. Naval installations and
properties in Puerto Rico include, but are not limited to, the U.S.
Naval Station, Roosevelt Roads (including the Vieques Island Eastern
Annexes, consisting of Camp Garcia, the Eastern Maneuver Area, and the
Inner Range); the Naval Ammunition Facility, Vieques Island; and the
Naval Security Group Activity, Sabana Seca.
Sec. 770.37 Background.
In accordance with 32 CFR 765.4, Naval installations and properties
in Puerto Rico are not open to the general public, i.e., they are
``closed'' military bases. Therefore admission to the general public is
only by the permission of the respective Commanding Officers in
accordance with their respective installation instructions.
Sec. 770.38 Entry restrictions.
Except for duly authorized military personnel and civilian
employees, including contract employees, of the United States in the
performance of their official duties, entry upon any U.S. Navy
installation or property in Puerto Rico at anytime, by any person for
any purpose whatsoever without the advance consent of the Commanding
Officer of the installation or
[[Page 493]]
property concerned, or an authorized representative of that Commanding
Officer, is prohibited.
Sec. 770.39 Entry procedures.
(a) Any person or group of persons desiring to obtain advance
consent for entry upon any U.S. Naval installation or property in Puerto
Rico from the Commanding Officer of the Naval installation or property,
or an authorized representative of that Commanding Officer, shall
present themselves at an authorized entry gate at the installation or
property concerned or, in the alternative, submit a request in writing
to the following respective addresses:
(1) Commanding Officer, U.S. Naval Station, Roosevelt Roads, Box
3001, Ceiba, PR 00635.
(2) Officer in Charge, Naval Ammunition Facility, Box 3027, Ceiba,
PR 00635.
(3) Commanding Officer, U.S. Naval Security Group Activity, Sabana
Seca, PR 00749.
(b) The above Commanding Officers are authorized to provide advance
consent only for installations and properties under their command.
Requests for entry authorization to any other facility or property shall
be addressed to the following:
Commander, U.S. Naval Forces, Caribbean, Box 3037, Ceiba, PR 00635.
(c) Each request for entry will be considered on an individual basis
and consent will be determined by applicable installation entry
instructions. Factors that will be considered include the purpose of
visit, the size of party, duration of visit, destination, security
safeguards, safety aspects, and the military resources necessary if the
request is granted.
Sec. 770.40 Violations.
Any person entering or remaining on U.S. Naval installations and
properties in Puerto Rico, without the advance consent of those
officials hereinabove enumerated, or their authorized representatives,
shall be considered to be in violation of these regulations and
therefore subject to the penalties prescribed by 18 U.S.C. 1382, which
provides in pertinent part: ``Whoever, within the jurisdiction of the
United States, goes upon any military, naval * * * reservation, post,
fort, arsenal, yard, station, or installation, for any purpose
prohibited by law or lawful regulation * * * shall be fined not more
than $500.00 or imprisoned not more than six months, or both,'' or any
other applicable laws or regulations.
Subpart E--Base Entry Regulations for Naval Submarine Base New London,
Groton, Connecticut
Authority: 50 U.S.C. 797; DoD Directive 5200.8 of July 29, 1980;
SECNAVINST 5511.36 of December 20, 1980; OPNAVINST 5510.45 of April 19,
1971; 5 U.S.C. 301; 10 U.S.C. 6011; 32 CFR 700.702; 32 CFR 700.714.
Source: 48 FR 5555, Feb. 7, 1983, unless otherwise noted.
Sec. 770.41 Purpose.
The purpose of this subpart is to promulgate regulations and
procedures governing entry upon Naval Submarine Base New London, and to
prevent the interruption of the stated functions and operations of Naval
Submarine Base New London, by the presence of any unauthorized person
within the boundaries of Naval Submarine Base New London.
Sec. 770.42 Background.
Naval Submarine Base New London maintains and operates facilities to
support training and experimental operations of the submarine force
including providing support to submarines, submarine rescue vessels, and
assigned service and small craft; within capabilities, to provide
support to other activities of the Navy and other governmental
activities in the area; and to perform such other functions as may be
directed by competent authority.
Sec. 770.43 Responsibility.
The responsibility for proper identification and control of
personnel and vehicle movement on the Naval Submarine Base New London is
vested with the Security Officer.
Sec. 770.44 Entry restrictions.
Except for military personnel, their authorized dependents, or
guests, and employees of the United States in the
[[Page 494]]
performance of their official duties, entry upon Naval Submarine Base
New London, or remaining thereon by any person for any purpose without
the advance consent of the Commanding Officer, Naval Submarine Base New
London, or his authorized representative is prohibited. See 18 U.S.C.
1382j, the Internal Security Act of 1950 (50 U.S.C. 797); Chief of Naval
Operations Instruction 5510.45B of April 19, 1971; and Secretary of the
Navy Instruction 5511.36 of December 20, 1980.
Sec. 770.45 Entry procedures.
(a) Any individual person or group of persons desiring the advance
consent of the Commanding Officer, Naval Submarine Base New London, or
his authorized representative shall, in writing, submit a request to the
Commanding Officer, Naval Submarine Base New London, at the following
address: Commanding Officer (Attn: Security Officer), Box 38, Naval
Submarine Base New London, Groton, CT 06349.
(b) Each request for entry will be considered on an individual basis
weighing the operational, security, and safety requirements of Naval
Submarine Base New London with the purpose, size of party, duration of
visit, destination, and military resources which would be required by
the granting of the request.
Sec. 770.46 Violations.
(a) Any person entering or remaining on Naval Submarine Base New
London, without the consent of the Commanding Officer, Naval Submarine
Base New London or his authorized representative, shall be subject to
the penalties prescribed in 18 U.S.C. 1382, which provides in pertinent
part:
Whoever, within the jurisdiction of the United States, goes upon any
military, naval . . . reservation, post, fort, arsenal, yard, station,
or installation, for any purpose prohibited by law or lawful regulation
. . . shall be fined not more than $500 or imprisoned not more than six
months or both.
(b) Moreover, any person who willfully violates this subpart is
subject to a fine not to exceed $5000 or imprisonment for not more than
one (1) year or both as provided in 50 U.S.C. 797.
Subpart F--Base Entry Regulations for Puget Sound Naval Shipyard,
Bremerton, Washington
Authority: 5 U.S.C. 301; 10 U.S.C. 6011; 50 U.S.C. 797; DoD
Directive 5200.8 of April 25, 1991; SECNAVINST 5511.36A of July 21,
1992; OPNAVINST 5530.14C of December 10, 1998; 32 CFR 700.702; 32 CFR
700.714.
Source: 65 FR 53592, Sept. 5, 2000, unless otherwise noted.
Sec. 770.47 Purpose.
To promulgate regulations and procedures governing entry upon Puget
Sound Naval Shipyard, and to prevent the interruption of the functions
and operations of Puget Sound Naval Shipyard by the presence of any
unauthorized person within the boundaries of the Puget Sound Naval
Shipyard.
Sec. 770.48 Definition.
For the purpose of this subpart, Puget Sound Shipyard shall include
that area of land, whether or not fenced or covered by water, in Kitsap
County in the State of Washington under the operational control of the
Commander, Puget Sound Naval Shipyard or any tenant command. This
includes all such areas regardless of whether the areas are being used
for purely military purposes, for housing, for support purposes, or for
any other purpose by a naval command or other Federal agency.
Sec. 770.49 Background.
(a) Puget Sound Naval Shipyard is a major naval ship repair
facility, with operational requirements to complete repairs and overhaul
of conventionally powered and nuclear powered naval vessels. It is vital
to national defense that the operation and use of the shipyard be
continued without interruption. Additionally, most of Puget Sound Naval
Shipyard is dedicated to heavy industrial activity where potentially
hazardous conditions exist.
(b) For prevention of the interruption of the stated use of Puget
Sound Naval Shipyard and prevention of injury to any unsupervised or
unauthorized person as a consequence of the hazardous conditions that
exist, as well as for other reasons, it is essential to restrict
[[Page 495]]
entry upon Puget Sound Naval Shipyard to authorized persons only.
Sec. 770.50 Entry restrictions.
Except for military personnel and civilian employees of the United
States in the performance of their official duties, entry upon Puget
Sound Naval Shipyard, or remaining thereon by any person for any purpose
without advance consent of the Commander, Puget Sound Naval Shipyard or
his/her authorized representative, is prohibited.
Sec. 770.51 Entry procedures.
(a) Any person or group of persons desiring the advance consent of
the Commander, Puget Sound Naval Shipyard, or his authorized
representative, shall, in writing, submit a request to the Commander,
Puget Sound Naval Shipyard, at the following address: Commander, Puget
Sound Naval Shipyard, 1400 Farragut Avenue, Bremerton, WA 98314-5001.
Sec. 770.52 Violations.
(a) Any person entering or remaining on Puget Sound Naval Shipyard,
without the consent of the Commander, Puget Sound Naval Shipyard, or an
authorized representative, shall be subject to the penalties prescribed
by 18 U.S.C. 1382, which provides in pertinent part:
Whoever, within the jurisdiction of the United States, goes upon any
military, naval * * * reservation, post, fort, arsenal, yard, station or
installation, for any purpose prohibited by law or lawful regulation * *
* shall be fined not more than $500.00 or imprisoned not more than six
months or both.
(b) Moreover, any person who willfully violates this subpart is
subject to a fine not to exceed $5000.00 or imprisonment for not more
than one year or both as provided in 50 U.S.C. 797.
Subpart G--Entry Regulations for Portsmouth Naval Shipyard, Portsmouth,
New Hampshire
Authority: 5 U.S.C. 301; 10 U.S.C. 6011; 50 U.S.C. 797; DoD
Directive 5200.8 of April 25, 1991; SECNAVINST 5511.36A of July 21,
1992; NAVCOMSYSCOMINST 5510.2B of April 18, 1990; 32 CFR 700.702; 32 CFR
700.714.
Source: 49 FR 34003, Aug. 28, 1984, unless otherwise noted.
Sec. 770.53 Purpose.
To promulgate regulations and procedures governing entry upon
Portsmouth Naval Shipyard, and to prevent the interruption of the
functions and operations of Portsmouth Naval Shipyard by the presence of
any unauthorized person within the boundaries of Portsmouth Naval
Shipyard.
Sec. 770.54 Background.
(a) Portsmouth Naval Shipyard maintains and operates facilities ``to
provide logistic support for assigned ships and service craft; to
perform authorized work in connection with construction, conversion,
overhaul, repair, alteration, drydocking, and outfitting of ships and
craft, as assigned; to perform manufacturing, research, development, and
test work, as assigned; and to provide services and material to other
activities and units, as directed by competent authority.''
(b) Portsmouth Naval Shipyard is a major naval ship repair facility,
with operational requirements to complete repairs and overhaul of
conventionally powered and nuclear-powered naval vessels. It is vital to
national defense that the operation and use of the shipyard be continued
without undue or unnecessary interruptions. Additionally, most of
Portsmouth Naval Shipyard is dedicated to heavy industrial activity
where potentially hazardous conditions exist.
(c) For prevention of interruption of the stated use of the base by
the presence of any unauthorized person within the boundaries of
Portsmouth Naval Shipyard, and prevention of injury to any such
unsupervised person as a consequence of the dangerous conditions which
exist, as well as for other reasons, it is essential to restrict entry
upon Portsmouth Naval Shipyard to authorized persons only.
Sec. 770.55 Responsibility.
The responsibility for proper identification and control of
personnel and vehicle movement on the Portsmouth
[[Page 496]]
Naval Shipyard is vested with the Shipyard Security Manager (Code 1700).
[49 FR 34003, Aug. 28, 1984, as amended at 65 FR 53593, Sept. 5, 2000]
Sec. 770.56 Entry restrictions.
Except for military personnel, their authorized dependents, or
guests, and civilian employees of the United States in the performance
of their official duties, entry upon Portsmouth Naval Shipyard, or
remaining thereon by any person for any purpose without the advance
consent of the Commander, Portsmouth Naval Shipyard, or his authorized
representative, is prohibited. In many instances, Commander, Naval Sea
Systems Command, approval is required.
Sec. 770.57 Entry procedures.
(a) Any person or group desiring the advance consent of the
Commander, Portsmouth Naval Shipyard, or his authorized representative,
shall, in writing, submit a request to the Commander, Portsmouth Naval
Shipyard, at the following address: Commander, Portsmouth Naval
Shipyard, Portsmouth, NH 03801, Attention: Security Manager (Code 1700).
For groups, foreign citizens, and news media, the request must be
forwarded to the Commander, Naval Sea Systems Command, for approval.
(b) Each request for entry will be considered on an individual
basis, weighing the operational, security, and safety requirements of
Portsmouth Naval Shipyard, with the purpose, size of party, duration of
visit, destination, and military resources which would be required by
the granting of the request.
[49 FR 34003, Aug. 28, 1984, as amended at 65 FR 53593, Sept. 5, 2000]
Sec. 770.58 Violations.
(a) Any person entering or remaining on Portsmouth Naval Shipyard
without the consent of the Commander, Portsmouth Naval Shipyard, or his
authorized representative, shall be subject to the penalties prescribed
in 18 U.S.C. 1382, which provides in pertinent part:
Whoever, within the jurisdiction of the United States, goes upon any
military, naval . . . reservation, post, fort, arsenal, yard, station,
or installation, for any purpose prohibited by law or lawful regulation
. . . Shall be fined not more than $500 or imprisoned not more than six
months, or both.
(b) Moreover, any person who willfully violates this instruction is
subject to a fine not to exceed $5000 or imprisonment for not more than
one (1) year, or both, as provided by 50 U.S.C. 797.
PARTS 771-774 [RESERVED]
PART 775--PROCEDURES FOR IMPLEMENTING THE NATIONAL ENVIRONMENTAL POLICY ACT--Table of Contents
Sec.
775.1 Purpose.
775.2 Scope.
775.3 Policy.
775.4 Responsibilities.
775.5 Classified actions.
775.6 Planning considerations.
775.7 Time limits for environmental documents.
775.8 Scoping.
775.9 Documentation and analysis.
775.10 Relations with state, local and regional agencies.
775.11 Public participation.
775.12 Action.
Authority: 5 U.S.C. 301; 42 U.S.C. 4321-4361; 40 CFR parts 1500-
1508.
Source: 55 FR 33899, Aug. 20, 1990, unless otherwise noted.
Sec. 775.1 Purpose.
To supplement Department of Defense (DOD) regulations (32 CFR part
214) by providing policy and assigning responsibilities to the Navy and
Marine Corps for implementing the Council on Environmental Quality (CEQ)
regulations (40 CFR parts 1500-1508) implementing procedural provisions
of the National Environmental Policy Act (NEPA).
Sec. 775.2 Scope.
The policies and responsibility assignments of this part apply to
the Office of the Secretary of the Navy, the Department of the Navy
(DON), and the Navy and Marine Corps operating forces and shore
establishments. This part is limited to the actions of these elements
with environmental effects in the United States, its territories, and
possessions.
[[Page 497]]
Sec. 775.3 Policy.
(a) The Department of the Navy will act with care to ensure that, in
conducting its mission of providing for the national defense, it does so
in a manner consistent with national environmental policies. In so
doing, the Navy recognizes that the NEPA process includes the systematic
examination of the likely environmental consequences of implementing a
proposed action. To be an effective decisionmaking tool this process
will be integrated with other Navy-Marine Corps project planning at the
earliest possible time. This ensures that planning and decisionmaking
reflect environmental values, avoid delays, and avoid potential
conflicts. Care will be taken to ensure that, consistent with other
national policies and national security requirements, practical means
and measures are used to protect, restore, and enhance the quality of
the environment, to avoid or minimize adverse environmental
consequences, and to attain the objectives of:
(1) Achieving the widest range of beneficial uses of the environment
without degradation, risk to health and safety, or other consequences
that are undesirable and unintended;
(2) Preserving important historic, cultural, and natural aspects of
our national heritage, and maintaining, where possible, an environment
that supports diversity and variety of individual choice;
(3) Achieving a balance between resource use and development within
the sustained carrying capacity of the ecosystem involved; and
(4) Enhancing the quality of renewable resources and working toward
the maximum attainable recycling of depletable resources.
(b) The DON shall:
(1) Assess environmental consequences of proposed actions that could
affect the quality of the human environment in the United States, its
territories, and possessions in accordance with DOD and CEQ regulations;
(2) Use a systematic, interdisciplinary approach that will ensure
the integrated use of the natural and social sciences and environmental
considerations in planning and decisionmaking where there may be an
impact on man's environment;
(3) Ensure that presently unmeasured environmental amenities are
considered in the decisionmaking process;
(4) Consider the reasonable alternatives to recommended actions in
any proposal that would involve unresolved conflicts concerning
alternative uses of available resources;
(5) Make available to states, counties, municipalities,
institutions, and individuals advice and information useful in
restoring, maintaining, and enhancing the quality of the environment;
and
(6) Use ecological information in planning and developing resource-
oriented projects.
Sec. 775.4 Responsibilities.
(a) The Assistant Secretary of the Navy for Installations and
Environment (ASN(I&E)) shall:
(1) Advise the Secretary of the Navy on DON policy regarding NEPA
compliance.
(2) Be the principal point-of-contact with the CEQ, Environmental
Protection Agency (EPA), the Deputy Assistant Secretary of Defense for
Environment (DASD(E)), other DOD components and federal agencies
concerned with NEPA matters, and with private environmental groups as
applicable.
(3) Direct and/or, upon recommendation, approve the preparation of
Environmental Impact Statements (EIS); and, after preparation, approve
and forward said statements to the EPA and DASD(E) for review and
comment.
(4) Approve and forward to the Navy Judge Advocate General (JAG)
Findings of No Significant Impact (FONSI) for publication in the Federal
Register for those actions of national concern that the Navy/Marine
Corps has determined will not have a significant effect on the quality
of the human environment and for which an EIS will not be prepared.
(5) Approve and forward to the Navy JAG, for publishing in the
Federal Register, a Record of Decision (ROD) which will summarize for
the public record the decision made by the Navy/Marine Corps among the
alternatives presented in a Final EIS.
[[Page 498]]
(6) Maintain liaison with the Chief of Information who will
coordinate with the Assistant Secretary of Defense (Public Affairs)
those environmental matters which have significant public affairs
implications.
(7) Maintain liaison with the Office of Legislative Affairs who will
coordinate with the Assistant Secretary of Defense (Legislative Affairs)
and the Congress those environmental matters which have significant
legislative implications.
(b) The Chief of Naval Operations, or his designee(s), and the
Commandant of the Marine Corps, or his designee(s), are responsible,
within their respective services, for NEPA compliance, which includes:
(1) Implementing DON policy regarding protection of the environment
to include NEPA compliance.
(2) Advising commands of the requirement for submitting
environmental assessments or impact statements and identifying major
decision points in the chain of command where environmental effects
shall be considered.
(3) Making decisions on environmental assessments as to whether a
Finding of No Significant Impact is appropriate or preparation of an
environmental impact statement is required.
(4) Coordinating, as appropriate, with CEQ, EPA, DASD(E), ASN(I&E),
other DOD components and federal agencies concerned with environmental
matters.
(5) Serving as the point of contact for DON environmental matters.
(6) Coordinating, as appropriate, with the Chief of Information for
the release to the public of environmental assessments, impact
statements, Findings of No Significant Impact, and other environmental
documents, according to the Freedom of Information Act and other
applicable federal laws.
(7) Providing assistance for actions initiated by private persons,
state or local agencies and other non-DON/DOD entities for which DON
involvement may be reasonably foreseen.
(8) Ensuring that relevant environmental documentation accompanies
all proposals for action through the appropriate review process so that
such information is available to the decision maker.
(c) The Chief of Naval Operations and the Commandant of the Marine
Corps are to comply with these procedures by subsequently directing
subordinates to:
(1) Ensure all appropriate instructions, directives, and orders
include the requirement for funding and planning for environmental
documentation, as required.
(2) Conduct analyses of the environmental effects of current and
proposed actions in accordance with DOD regulations, CEQ regulations (40
CFR parts 1500-1508), and other applicable regulations.
(3) Encourage, to the extent practicable, citizen participation in
environmental evaluations of projects or programs.
(4) Evaluate environmental impacts at initial planning stages and at
each following significant step or decision milestone in the development
of a project or program, as warranted.
Sec. 775.5 Classified actions.
(a) The fact that a proposed action is of a classified nature does
not relieve the proponent of the action from complying with NEPA and the
CEQ regulations. Therefore, environmental documents shall be prepared,
safeguarded and disseminated in accordance with the requirements
applicable to classified information. When feasible, these documents
shall be organized in such a manner that classified portions are
included as appendices so that unclassified portions can be made
available to the public. Review of classified NEPA documentation will be
coordinated with the Environmental Protection Agency (EPA) to fulfill
requirements of section 309 of the Clean Air Act (42 U.S.C. 7609 et
seq.).
(b) It should be noted that a classified EA/EIS serves the same
``informed decisionmaking'' purpose as does a published unclassified EA/
EIS. Even though the classified EA/EIS does not undergo general public
review and comment, it must still be part of the information package to
be considered by the decisionmaker for the proposed action. The content
of a classified EA/EIS (or the classified portion of a public EA/EIS)
will therefore meet the same content requirements applicable to a
published unclassified EA/EIS.
[[Page 499]]
Sec. 775.6 Planning considerations.
(a) When integrating the NEPA process into early stages of proposed
actions, action proponents will determine as early as possible the
appropriate level of documentation required under NEPA, i.e., is the
action a major federal action significantly affecting the human
environment requiring an environmental impact statement (EIS), is the
action one for which the impacts are not known or which may not be
significant and, therefore, an environmental assessment (EA), is
appropriate, or is the action one that has no potential for significant
impacts and can be categorically excluded from further NEPA
documentation. In addition, CEQ regulations (40 CFR 1501.5 and 1501.6)
require early identification of lead and cooperative agencies for
preparation of an EIS for which more than one agency is involved or has
special expertise in environmental issues to be addressed in the EIS.
(b) The command responsible for preparation of the appropriate
documentation may prepare an EA on any action at any time in order to
assist in planning and decisionmaking, including the decision whether or
not to prepare an EIS. If a determination is made based on information
presented in an environmental assessment that an EIS is not required, a
Finding of No Significant Impact (FONSI) will be prepared and made
available to the public in accordance with CEQ regulations (40 CFR
1506.6).
(c) CEQ regulations (40 CFR 1508.18(a)) define major federal actions
subject to evaluation under NEPA to include, among other things, ``new
and continuing activities''. The term new activities is intended to
encompass future actions, i.e., those which are not ongoing at the time
of the proposal. The term continuing activities which may necessitate
the preparation of a NEPA document will be applied by the Department of
Navy to include activities which are presently being carried out in
fulfillment of the Navy mission and function, including existing
training functions, where:
(1) The currently occurring environmental effects of which have not
been previously evaluated in a NEPA document, and there is a discovery
that substantial environmental degradation is occurring, or is likely to
occur, as a result of ongoing operations (e.g., a discovery that
significant beach erosion is occurring as a result of continuing
amphibious exercises, new designation of wetland habitat, or discovery
of an endangered species residing in the area of the activity), or
(2) There is a discovery that the environmental effects of an
ongoing activity are significantly and qualitatively different or more
severe than predicted in a NEPA document prepared in connection with the
commencement of the activity.
A substantial change in a continuing activity (such as a substantial
change in operational tempo, area of use, or in methodology/equipment)
which has the potential for significant environmental impacts should be
considered a proposal for a new action and be documented accordingly.
Preparation of a NEPA document is not a necessary prerequisite, nor a
substitute, for compliance with other environmental laws.
(d) Where emergency circumstances require immediate action, for the
protection of lives and for public health and safety, which could result
in significant harm to the environment, the activity Commanding Officer
or his designee shall report the emergency action to CNO (OP-44E)/CMC
(LFL) who will facilitate the appropriate consultation with CEQ as soon
as practicable.
(e) CEQ regulations provide for the establishment of categorical
exclusions (40 CFR 1508.4) for those actions which, after consideration
by the Department of the Navy, have been found not to have a significant
effect on the human environment, individually or cumulatively, under
normal circumstances, and for which, therefore, neither an EA nor an EIS
is required. Categorical exclusions are applicable to those kinds of
Navy actions which do not significantly affect the quality of the human
environment, which do not result in any significant change from existing
conditions at the site of the proposed action, and whose effect is
primarily economic or social. ``Normal circumstances'' means that the
proposal, when analyzed with respect to context
[[Page 500]]
and intensity, can reasonably be expected to not cause significant
impacts. Even though a proposal generally fits the description set out
below for categorical exclusions, the categorical exclusion should not
be used if the proposed action:
(1) Would affect public health or safety;
(2) Involves a site that includes wetlands, endangered or threatened
species, historical or archaeological resources, or hazardous wastes;
(3) Involves effects on the human environment that are highly
uncertain, involve unique or unknown risks, or which are scientifically
controversial;
(4) Establishes precedents or makes decisions in principle for
future actions with significant effects, or;
(5) Threatens a violation of federal, state or local law or
requirements imposed for protection of the environment.
(f) A decision to forego preparation of an EA or EIS on the basis of
one or more categorical exclusions shall be documented, including the
exclusions found applicable, the facts supporting their use and specific
consideration of whether the exceptions to the use of categorical
exclusions, set out above, were applicable. The following are actions
which, under normal conditions, are categorically excluded from further
documentation requirements under NEPA:
(1) Routine personnel, fiscal, and administrative activities
involving military and civilian personnel, e.g., recruiting, processing,
paying, and records keeping.
(2) Reductions in force wherein impacts are limited to socioeconomic
factors.
(3) Routine movement of mobile assets, such as ships and aircraft,
in home port reassignments (when no new support facilities are required)
to perform as operational groups, and/or repair and overhaul.
(4) Relocation of personnel into existing federally-owned or
commercially-leased space which does not involve a substantial change in
the supporting infrastructure (e.g., an increase in vehicular traffic
beyond the capacity of the supporting road network to accommodate such
an increase).
(5) Studies, data and information-gathering that involve no physical
change to the environment, e.g., topographic surveys, bird counts,
wetland mapping, forest inventories, and timber cruising.
(6) Routine repair and maintenance of facilities and equipment in
order to maintain existing operations and activities, including
maintenance of improved and semi-improved grounds such as landscaping,
lawn care, and minor erosion control measures.
(7) Alteration of and additions to existing structures to conform or
provide conforming use specifically required by new or existing
applicable legislation or regulations, e.g., hush houses for aircraft
engines and scrubbers for air emissions.
(8) Routine actions normally conducted to operate, protect, and
maintain Navy-owned and/or controlled properties, e.g., maintaining law
and order, physical plant protection by military police and security
personnel, and localized pest management activities on improved and
semi-improved lands conducted in accordance with applicable federal and
state directives.
(9) New construction that is consistent with existing land use and,
when completed, the use or operation of which complies with existing
regulatory requirements and constraints, e.g., a building on a parking
lot with associated discharges/runoff within existing handling
capacities, a bus stop along a roadway, and a foundation pad for
portable buildings within a building complex.
(10) Procurement activities that provide goods and support for
routine operations.
(11) Day-to-day manpower resource management and research activities
that are in accordance with approved plans and inter-agency agreements
and which are designed to improve and/or upgrade Navy ability to manage
those resources.
(12) Decisions to close facilities, decommission equipment, and/or
temporarily discontinue use of facilities or equipment (where such
equipment is not used to prevent/control environmental impacts). This
paragraph (f)(12) does not apply to permanent closure of public roads.
[[Page 501]]
(13) Contracts for activities conducted at established laboratories
and plants, to include contractor-operated laboratories and plants,
within facilities where all airborne emissions, waterborne effluents,
external radiation levels, outdoor noise, and solid and bulk waste
disposal practices are in compliance with existing applicable federal,
state, and local laws and regulations.
(14) Routine movement, handling and distribution of materials,
including hazardous materials/wastes that when moved, handled, or
distributed are in accordance with applicable regulations.
(15) Demolition, disposal, or improvements involving buildings or
structures not on or eligible for listing on the National Register of
Historic Places and when in accordance with applicable regulations,
including those regulations applying to removal of asbestos, PCBs, and
other hazardous materials.
(16) Acquisition, installation, and operation of utility and
communication systems, data processing cable, and similar electronic
equipment which use existing rights of way, easements, distribution
systems, and/or facilities.
(17) Renewals and/or initial real estate ingrants and outgrants
involving existing facilities and land wherein use does not change
significantly. This includes, but is not limited to, existing federally-
owned or privately-owned housing, office, storage, warehouse,
laboratory, and other special purpose space.
(18) Grants of license, easement, or similar arrangements for the
use of existing rights-of-way or incidental easements complementing the
use of existing rights-of-way for use by vehicles (not to include
significant increases in vehicle loading); electrical, telephone, and
other transmission and communication lines; water, wastewater,
stormwater, and irrigation pipelines, pumping stations, and facilities;
and for similar utility and transportation uses.
(19) Transfer of real property from the Navy to another military
department or to another federal agency, and the granting of leases
(including leases granted pursuant to the agricultural outleasing
program where soil conservation plans are incorporated), permits and
easements where there is no substantial change in land use or where
subsequent land use would otherwise be categorically excluded.
(20) Disposal of excess easement interests to the underlying fee
owner.
(21) Renewals and minor amendments of existing real estate grants
for use of government-owned real property where no significant change in
land use is anticipated.
(22) Pre-lease exploration activities for oil, gas or geothermal
reserves, e.g., geophysical surveys.
(23) Return of public domain lands to the Department of the
Interior.
(24) Land withdrawal continuances or extensions which merely
establish time periods and where there is no significant change in land
use.
(25) Temporary closure of public access to Navy property in order to
protect human or animal life.
(26) Engineering effort undertaken to define the elements of a
proposal or alternatives sufficiently so that the environmental effects
may be assessed.
(27) Actions which require the concurrence or approval of another
federal agency where the action is a categorical exclusion of the other
federal agency.
(28) Maintenance dredging and debris disposal where no new depths
are required, applicable permits are secured, and disposal will be at an
approved disposal site.
(29) Installation of devices to protect human or animal life, e.g.,
raptor electrocution prevention devices, fencing to restrict wildlife
movement onto airfields, and fencing and grating to prevent accidental
entry to hazardous areas.
(30) Natural resources management actions undertaken or permitted
pursuant to agreement with or subject to regulation by federal, state,
or local organizations having management responsibility and authority
over the natural resources in question, including hunting or fishing
during hunting or fishing seasons established by state authorities
pursuant to their state fish and game management laws. With regard to
natural resources regulated by another federal agency, the responsible
[[Page 502]]
command may cooperate in any environmental analysis that may be required
by the other agency's regulations.
(31) Approval of recreational activities which do not involve
significant physical alteration of the environment or increase human
disturbance in sensitive natural habitats and which do not occur in or
adjacent to areas inhabited by endangered or threatened species.
(32) Routine maintenance of timber stands, including issuance of
down-wood firewood permits, hazardous tree removal, and sanitation
salvage.
(33) Reintroduction of endemic or native species (other than
endangered or threatened species) into their historic habitat when no
substantial site preparation is involved.
[55 FR 33899, Aug. 20, 1990, as amended at 55 FR 39960, Oct. 1, 1990]
Sec. 775.7 Time limits for environmental documents.
(a) The timing of the preparation, circulation, submission and
public availability of environmental documents is important in achieving
the purposes of NEPA. Therefore, the NEPA process shall begin as early
as possible in the decisionmaking process.
(b) The EPA publishes a weekly notice in the Federal Register of
environmental impact statements filed during the preceding week. The
minimum time periods set forth below shall be calculated from the date
of publication of notices in the Federal Register. No decision on the
proposed action may take place until the later of the following dates:
(1) Ninety days after publication of the notice of availability for
a draft environmental impact statement (DEIS). Draft statements shall be
available to the public for 15 days prior to any public hearing on the
DEIS (40 CFR 1506.6(c)(2)).
(2) Thirty days after publication of the notice of availability for
a final environmental impact statement (FEIS). If the FEIS is available
to the public within ninety days from the availability of the DEIS, the
minimum thirty day period and the minimum nintey day period may run
concurrently. However, not less than 45 days from publication of notice
of filing shall be allowed for public comment on draft statements prior
to filing of the FEIS (40 CFR 1506.10(c)).
Sec. 775.8 Scoping.
As soon as practicable after the decision to prepare an EIS is made,
an early and open process called ``scoping'' shall be used to determine
the scope of issues to be addressed and to identify the significant
issues to be analyzed in depth related to the proposed action (40 CFR
1501.7). This process also serves to deemphasize insignificant issues,
narrowing the scope of the EIS process accordingly (40 CFR 1500.4(g)).
Scoping results in the identification by the proponent of the range of
actions, alternatives, and impacts to be considered in the EIS (40 CFR
1508.25). For any action, this scope may depend on the relationship of
the proposed action to other existing environmental documentation.
Sec. 775.9 Documentation and analysis.
(a) Environmental documentation and analyses required by this rule
should be integrated as much as practicable with any environmental
studies, surveys and impact analyses required by other environmental
review laws and executive orders (40 CFR 1502.25). When a cost-benefit
analysis has been prepared in conjunction with an action which also
requires a NEPA analysis, the cost-benefit analysis shall be integrated
into the environmental documentation.
(b) CEQ regulations encourage the use of tiering whenever
appropriate to eliminate repetitive discussions of the same issues and
to focus on the actual issues ripe for discussion at each level of
environmental review (40 CFR 1502.20). Tiering is accomplished through
the preparation of a broad programmatic environmental impact statement
discussing the impacts of a wide ranging or long term stepped program
followed by narrower statements or environmental assessments
concentrating solely on issues specific to the analysis subsequently
prepared (40 CFR 1508.28).
(1) Appropriate use of tiering: Tiering is appropriate when it helps
the lead agency to focus on issues which are
[[Page 503]]
ripe for decision and exclude from consideration issues already decided
or not yet ripe. (40 CFR 1508.28(b).) The sequence of statements or
analyses is:
(i) From a broad program, plan, or policy environmental impact
statement (not necessarily site specific) to a subordinate/smaller scope
program, plan, or policy statement or analysis (usually site specific)
(40 CFR 1508.28 (a)).
(ii) From an environmental impact statement on a specific action at
an early stage (such as need and site selection) to a supplement (which
is preferred) or a subsequent statement or analysis at a later stage
(such as environmental mitigation) (40 CFR 1508.28(b)).
(iii) In addition to the discussion required by these regulations
for inclusion in environmental impact statements, the programmatic
environmental impact statement shall also discuss:
(A) A description of the subsequent stages or sites that may
ultimately be proposed in as much detail as presently possible;
(B) All of the implementing factors of the program that can be
ascertained at the time of impact statement preparation;
(C) All of the environmental impacts that will result from
establishment of the overall program itself that will be similar for
subsequent stages or sites as further implementation plans are proposed;
and
(D) All of the appropriate mitigation measures that will be
similarly proposed for subsequent stages or sites.
(iv) The analytical document used for stage or site specific
analysis subsequent to the programmatic environmental impact statement
shall also be an environmental impact statement when the subsequent tier
itself may have a significant impact on the quality of the human
environment or when an impact statement is otherwise required.
Otherwise, it is appropriate to document the tiered analysis with an
environmental assessment to fully assess the need for further
documentation or whether a FONSI would be appropriate.
(2) [Reserved]
Sec. 775.10 Relations with state, local and regional agencies.
Close and harmonious planning relations with local and regional
agencies and planning commissions of adjacent cities, counties, and
states, for cooperation and resolution of mutual land use and
environment-related problems should be established. Additional
coordination may be obtained from state and area-wide planning and
development ``clearinghouses''. These are agencies which have been
established pursuant to Executive Order 12372 of July 14, 1982 (3 CFR,
1982 Comp., p. 197). The clearinghouses serve a review and coordination
function for Federal activities and the proponent may gain insights on
other agencies' approaches to environmental assessments, surveys, and
studies in relation to any current proposal. The clearinghouses would
also be able to assist in identifying possible participants in scoping
procedures for projects requiring an EIS.
Sec. 775.11 Public participation.
The importance of public participation (40 CFR 1501.4(b)) in
preparing environmental assessments is clearly recognized and it is
recommended that commands proposing an action develop a plan to ensure
appropriate communication with affected and interested parties. The
command Public Affairs Office can provide assistance with developing and
implementing this plan. In determining the extent to which public
participation is practicable, the following are among the factors to be
weighed by the command:
(a) The magnitude of the environmental considerations associated
with the proposed action;
(b) The extent of anticipated public interest; and
(c) Any relevant questions of national security and classification.
Sec. 775.12 Action.
The Chief of Naval Operations and the Commandant of the Marine Corps
shall, each, as appropriate:
(a) Provide guidelines and procedures for administrative direction
and implementation of this part and CEQ regulations; and
[[Page 504]]
(b) Maintain a focal point for the coordination of the preparation
of environmental assessments and impact statements.
PART 776--PROFESSIONAL CONDUCT OF ATTORNEYS PRACTICING UNDER THE COGNIZANCE AND SUPERVISION OF THE JUDGE ADVOCATE GENERAL--Table of Contents
Subpart A--General
Sec.
776.1 Purpose.
776.2 Applicability.
776.3 Policy.
776.4 Attorney-client relationships.
776.5 Judicial conduct.
776.6 Conflict.
776.7 Reporting requirements.
776.8 Professional Responsibility Committee.
776.9 Rules Counsel.
776.10 Informal ethics advice.
776.11 Outside part-time practice of law.
776.12 Maintenance of files.
776.13-776.17 [Reserved]
Subpart B--Rules of Professional Conduct
776.18 Preamble.
776.19 Principles.
776.20 Competence.
776.21 Establishment and scope of representation.
776.22 Diligence.
776.23 Communication.
776.24 Fees.
776.25 Confidentiality of information.
776.26 Conflict of interest: General rule.
776.27 Conflict of interests: Prohibited transactions.
776.28 Conflict of interest: Former client.
776.29 Imputed disqualification: General rule.
776.30 Successive Government and private employment.
776.31 Former judge or arbitrator.
776.32 Department of Navy as client.
776.33 Client under a disability.
776.34 Safekeeping property.
776.35 Declining or terminating representation.
776.36 Prohibited sexual relations.
776.37 Advisor.
776.38 Mediation.
776.39 Evaluation for use by third persons.
776.40 Meritorious claims and contentions.
776.41 Expediting litigation.
776.42 Candor and obligations toward the tribunal.
776.43 Fairness to opposing party and counsel.
776.44 Impartiality and decorum of the tribunal.
776.45 Extra-tribunal statements.
776.46 Attorney as witness.
776.47 Special responsibilities of a trial counsel.
776.48 Advocate in nonadjudicative proceedings.
776.49 Truthfulness in statements to others.
776.50 Communication with person represented by counsel.
776.51 Dealing with an unrepresented person.
776.52 Respect for rights of third persons.
776.53 Responsibilities of the Judge Advocate General and supervisory
attorneys.
776.54 Responsibilities of a subordinate attorney.
776.55 Responsibilities regarding non-attorney assistants.
776.56 Professional independence of a covered USG attorney.
776.57 Unauthorized practice of law.
776.58-776.65 [Reserved]
776.66 Bar admission and disciplinary matters.
776.67 Judicial and legal officers.
776.68 Reporting professional misconduct.
776.69 Misconduct.
776.70 Jurisdiction.
776.71 Requirement to remain in good standing with licensing
authorities.
776.72-776.75 [Reserved]
Subpart C--Complaint Processing Procedures
776.76 Policy.
776.77 Related investigations and actions.
776.78 Informal complaints.
776.79 The complaint.
776.80 Initial screening and Rules Counsel.
776.81 Charges.
776.82 Interim suspension.
776.83 Preliminary inquiry.
776.84 Ethics investigation.
776.85 Effect of separate proceeding.
776.86 Action by JAG.
776.87 Finality.
776.88 Report to licensing authorities.
Subpart D [Reserved]
Authority: 10 U.S.C. 806, 806a, 826, 827; Manual for Courts-Martial,
United States, 1998; U.S. Navy Regulations, 1990; Secretary of the Navy
Instruction 5430.27 (series), Responsibility of the Judge Advocate
General for Supervision of Certain Legal Services.
Source: 65 FR 15060, Mar. 21, 2000, unless otherwise noted.
[[Page 505]]
Subpart A--General
Sec. 776.1 Purpose.
In furtherance of the authority citations (which, if not found in
local libraries, are available from the Office of the Judge Advocate
General, 1322 Patterson Avenue, SE., Suite 3000, Washington Navy Yard DC
20374-5066), which require the Judge Advocate General of the Navy (JAG)
to supervise the performance of legal services under JAG cognizance
throughout the Department of the Navy (DON), this part is promulgated:
(a) To establish Rules of Professional Conduct (subpart B of this
part) for attorneys subject to this part;
(b) To establish procedures (subpart C of this part) for receiving,
processing, and taking action on complaints of professional misconduct
made against attorneys practicing under the supervision of JAG, whether
arising from professional legal activities in DON proceedings and
matters, or arising from other, non-U.S. Government related professional
legal activities or personal misconduct which suggests the attorney is
ethically, professionally, or morally unqualified to perform legal
services within the DON; and
(c) To ensure quality legal services at all proceedings under the
cognizance and supervision of the JAG.
Sec. 776.2 Applicability.
(a) This part defines the professional ethical obligations of, and
applies to, all ``covered attorneys.''
(b) ``Covered attorneys'' include:
(1) The following U.S. Government (USG) attorneys, referred to,
collectively, as ``covered USG attorneys'' throughout this part:
(i) All active-duty Navy judge advocates (designator 2500 or 2505)
or Marine Corps judge advocates (MOS 4402 or 9914).
(ii) All active-duty judge advocates of other U.S. armed forces who
practice law or provide legal services under the cognizance and
supervision of the JAG.
(iii) All civil service and contracted civilian attorneys who
practice law or perform legal services under the cognizance and
supervision of the JAG.
(iv) All Reserve or Retired judge advocates of the Navy or Marine
Corps (and any other U.S. armed force), who, while performing official
DON duties, practice law or provide legal services under the cognizance
and supervision of the JAG.
(v) All other attorneys appointed by JAG (or the Director, Judge
Advocate (JA) Division, Headquarters Marine Corps (HQMC), in Marine
Corps matters) to serve in billets or to provide legal services normally
provided by Navy or Marine Corps judge advocates. This policy applies to
officer and enlisted reservists, to active-duty personnel, and to any
other personnel who are licensed to practice law by any Federal or state
authorities, but who are not members of the Judge Advocate General's
Corps or who do not hold the 4402 or 9914 designation in the Marine
Corps.
(2) The following non-U.S. Government attorneys, referred to,
collectively, as ``covered non-USG attorneys'' throughout this part: All
civilian attorneys representing individuals in any matter for which JAG
is charged with supervising the provision of legal services. These
matters include, but are not limited to, courts-martial, administrative
separation boards or hearings, and disability evaluation proceedings.
(3) The term ``covered attorney'' does not include those civil
service or civilian attorneys who practice law or perform legal services
under the cognizance and supervision of the General Counsel of the Navy.
(c) Professional or personal misconduct unrelated to a covered
attorney's DON activities, while normally outside the ambit of these
rules, may be reviewed under procedures established in subpart C of this
part and may provide the basis for decisions by the JAG regarding the
covered attorney's continued qualification to provide legal services in
DON matters.
(d) Although the Rules in subpart B of this part do not apply to
non-attorneys, they do define the type of ethical conduct that the
public and the military community have a right to expect from DON legal
personnel. Covered USG attorneys who supervise non-attorney DON
employees are responsible
[[Page 506]]
for their ethical conduct to the extent provided for in Sec. 776.55 of
this part. Accordingly, subpart B of this part shall serve as a model of
ethical conduct for the following personnel when involved with the
delivery of legal services under the supervision of the JAG:
(1) Navy legalmen and Marine Corps legal administrative officers,
legal service specialists, and legal services reporters (stenotype);
(2) Limited duty officers (LAW);
(3) Legal interns; and
(4) Civilian support personnel including paralegals, legal
secretaries, legal technicians, secretaries, court reporters, and others
holding similar positions.
Sec. 776.3 Policy.
(a) Covered attorneys shall maintain the highest standards of
professional ethical conduct. Loyalty and fidelity to the United States,
to the law, to clients both institutional and individual, and to the
rules and principles of professional ethical conduct set forth in
subpart B of this part must come before private gain or personal
interest.
(b) Whether conduct or failure to act constitutes a violation of the
professional duties imposed by this part is a matter within the sole
discretion of JAG or officials authorized to act for JAG. Rules
contained in subpart B of this part are not substitutes for, and do not
take the place of, other rules and standards governing DON personnel
such as the Department of Defense Joint Ethics Regulation, the Code of
Conduct, the Uniform Code of Military Justice (UCMJ), and the general
precepts of ethical conduct to which all DON service members and
employees are expected to adhere. Similarly, action taken per this part
is not supplanted or barred by, and does not, even if the underlying
misconduct is the same, supplant or bar the following action from being
taken by authorized officials:
(1) Punitive or disciplinary action under the UCMJ; or
(2) Administrative action under the Manual for Courts-Martial, U.S.
Navy Regulations, or under other applicable authority.
(c) Inquiries into allegations of professional misconduct will
normally be held in abeyance until any related criminal investigation or
proceeding is complete. However, a pending criminal investigation or
proceeding does not bar the initiation or completion of a professional
misconduct investigation (subpart C of this part) stemming from the same
or related incidents or prevent the JAG from imposing professional
disciplinary sanctions as provided for in this part.
Sec. 776.4 Attorney-client relationships.
(a) The executive agency to which assigned (DON in most cases) is
the client served by each covered USG attorney unless detailed to
represent another client by competent authority. Specific guidelines are
contained in Sec. 776.32 of this part.
(b) Covered USG attorneys will not establish attorney-client
relationships with any individual unless detailed, assigned, or
otherwise authorized to do so by competent authority. Wrongfully
establishing an attorney-client relationship may subject the attorney to
discipline administered per this part. See Sec. 776.21 of this part.
(c) Employment of a non-USG attorney by an individual client does
not alter the professional responsibilities of a covered USG attorney
detailed or otherwise assigned by competent authority to represent that
client.
Sec. 776.5 Judicial conduct.
To the extent that it does not conflict with statutes, regulations,
or this part, the American Bar Association's Code of Judicial Conduct
applies to all military and appellate judges and to all other covered
USG attorneys performing judicial functions under JAG supervision within
the DON.
Sec. 776.6 Conflict.
To the extent that a conflict exists between this part and the rules
of other jurisdictions that regulate the professional conduct of
attorneys, this part will govern the conduct of covered attorneys
engaged in legal functions under JAG cognizance and supervision.
Specific and significant instances of conflict between the rules
contained in subpart B of this part and the rules of other jurisdictions
shall be reported promptly to the Rules Counsel (see
[[Page 507]]
Sec. 776.9 of this part), via the supervisory attorney. See Sec. 776.53
of this part.
Sec. 776.7 Reporting requirements.
Covered USG attorneys shall report promptly to the Rules Counsel any
disciplinary or administrative action, including initiation of
investigation, by any licensing authority or Federal, State, or local
bar, possessing the power to revoke, suspend, or in any way limit the
authority to practice law in that jurisdiction, upon himself, herself,
or another covered attorney. Failure to report such discipline or
administrative action may subject the covered USG attorney to discipline
administered per this part. See Sec. 776.71 of this part.
Sec. 776.8 Professional Responsibility Committee.
(a) Composition. This standing committee will consist of the
Assistant Judge Advocate General (AJAG) for Military Justice; the Vice
Commander, Naval Legal Service Command (NLSC); the Chief Judge, Navy-
Marine Corps Trial Judiciary; and in cases involving Marine Corps judge
advocates, the Deputy Director, JA Division, HQMC; and such other
personnel as JAG from time-to-time may appoint. A majority of the
members constitutes a quorum. The Chairman of the Committee shall be the
AJAG for Military Justice. The Chairman may excuse members disqualified
for cause, illness, or exigencies of military service, and may request
JAG to appoint additional or alternate members on a temporary or
permanent basis.
(b) Purpose. (1) When requested by JAG or by the Rules Counsel, the
Committee will provide formal advisory opinions to JAG regarding
application of rules contained in subpart B of this part to individual
or hypothetical cases.
(2) On its own motion, the Committee may also issue formal advisory
opinions on ethical issues of importance to the DON legal community.
(3) Upon written request, the Committee will also provide formal
advisory opinions to covered attorneys about the propriety of proposed
courses of action. If such requests are predicated upon full disclosure
of all relevant facts, and if the Committee advises that the proposed
course of conduct is not violative of subpart B of this part, then no
adverse action under this part may be taken against a covered attorney
who acts consistent with the Committee's advice.
(4) The Chairman will forward copies of all opinions issued by the
Committee to the Rules Counsel.
(c) Limitation. The Committee will not normally provide ethics
advice or opinions concerning professional responsibility matters (e.g.,
ineffective assistance of counsel, prosecutorial misconduct, etc.) that
are then the subject of litigation.
Sec. 776.9 Rules Counsel.
Appointed by JAG to act as special assistants for the administration
of this part, the Rules Counsel derive authority from JAG and, as
detailed in this part, have ``by direction'' authority. The Rules
Counsel shall cause opinions issued by the Professional Responsibility
Committee of general interest to the DON legal community to be published
in summarized, non-personal form in suitable publications. Unless
another officer is appointed by JAG to act in individual cases, the
following officers shall act as Rules Counsel:
(a) Director, JA Division, HQMC, for cases involving Marine Corps
judge advocates, or civil service and contracted civilian attorneys who
perform legal services under his cognizance; and
(b) AJAG for Civil Law, in all other cases.
Sec. 776.10 Informal ethics advice.
(a) Advisors. Covered attorneys may seek informal ethics advice
either from the officers named below or from supervisory attorneys in
the field. Within the Office of the JAG and HQMC, the following
officials are designated to respond, either orally or in writing, to
informal inquiries concerning this part in the areas of practice
indicated:
(1) Head, Military Affairs/Personnel Law Branch, Administrative Law
Division: administrative boards and related matters;
(2) Deputy Director, Criminal Law Division: military justice
matters;
[[Page 508]]
(3) Director, Legal Assistance Division: legal assistance matters;
(4) Deputy Director, JA Division, HQMC: cases involving Marine Corps
judge advocates, or civil service and contracted civilian attorneys who
perform legal services under the cognizance and supervision of Director,
JA Division, HQMC; and
(5) Head, Standards of Conduct/Government Ethics Branch,
Administrative Law Division: all other matters.
(b) Limitation. Informal ethics advice will not normally be provided
by JAG/HQMC advisors concerning professional responsibility matters
(e.g., ineffective assistance of counsel, prosecutorial misconduct) that
are then the subject of litigation.
(c) Written advice. A request for informal advice does not relieve
the requester of the obligation to comply with subpart B of this part.
Although covered attorneys are encouraged to seek advice when in doubt
as to their responsibilities, they remain personally accountable for
their professional conduct. If, however, an attorney receives written
advice on an ethical matter after full disclosure of all relevant facts
and reasonably relies on such advice, no adverse action under this part
will be taken against the attorney. Written advice may be sought from
either a supervisory attorney or the appropriate advisor in paragraph
(a) of this section. JAG is not bound by unwritten advice or by advice
provided by personnel who are not supervisory attorneys or advisors. See
Sec. 776.54 of this part.
Sec. 776.11 Outside part-time practice of law.
A covered USG attorney's primary professional responsibility is to
the client, as defined by Sec. 776.4 of this part, and he or she is
expected to ensure that representation of such client is free from
conflicts of interest and otherwise conforms to the requirements of
these rules and other regulations concerning the provision of legal
services within the Department of the Navy. The outside practice of law,
therefore, must be carefully monitored. Covered USG attorneys who wish
to engage in the part-time, outside practice of law must first obtain
permission from JAG. Failure to obtain permission before engaging in the
outside practice of law may subject the covered USG attorney to
administrative or disciplinary action, including professional sanctions
administered per subpart C of this part. Covered USG attorneys may
obtain further details in JAGINST 5803.1 (series). This requirement does
not apply to non-USG attorneys, or to Reserve or Retired judge advocates
unless serving on active-duty for more than 30 consecutive days.
Sec. 776.12 Maintenance of files.
Ethics complaint records shall be maintained by the Administrative
Law Division, Office of the Judge Advocate General, and, in the case of
Marine records, by the Judge Advocate Research and Civil Law Branch, JA
Division, HQMC.
(a) Requests for access to such records should be referred to Deputy
Assistant Judge Advocate General (Administrative Law), Office of the
Judge Advocate General (Code 13), 1322 Patterson Avenue, SE., Suite
3000, Washington Navy Yard DC 20374-5066, or to Head, Judge Advocate
Research and Civil Law Branch, JA Division, Headquarters Marine Corps,
Washington Navy Yard DC 20380-0001, as appropriate.
(b) Local command files regarding professional responsibility
complaints will not be maintained. Commanding officers and other
supervisory attorneys may, however, maintain personal files but must not
share their contents with others.
Secs. 776.13-776.17 [Reserved]
Subpart B--Rules of Professional Conduct
Sec. 776.18 Preamble.
(a) A covered USG attorney is a representative of clients, an
officer of the legal system, an officer of the Federal Government, and a
public citizen who has a special responsibility for the quality of
justice and legal services provided to the DON and to individual
clients. The Rules of Professional Conduct contained in this subpart
govern the ethical conduct of covered attorneys practicing under the
Uniform
[[Page 509]]
Code of Military Justice, the Manual for Courts-Martial, 10 U.S.C. 1044
(Legal Assistance), other laws of the United States, and regulations of
the DON.
(b) This subpart not only addresses the professional conduct of
judge advocates, but also applies to all other covered attorneys who
practice under the cognizance and supervision of the JAG. See Sec. 776.2
of this part.
(c) All covered attorneys are subject to professional disciplinary
action imposed by the JAG for violation of the Rules contained in this
subpart. Action by the JAG does not prevent other Federal, State, or
local bar associations or other licensing authorities from taking
professional disciplinary or other administrative action for the same or
similar acts.
Sec. 776.19 Principles.
The Rules of this subpart are based on the following principles.
Interpretation of this subpart should flow from common meaning. To the
extent that any ambiguity or conflict exists, this subpart should be
interpreted consistent with these general principles.
(a) Covered attorneys shall:
(1) Obey the law and military regulations, and counsel clients to do
so.
(2) Follow all applicable ethics rules.
(3) Protect the legal rights and interests of clients,
organizational and individual.
(4) Be honest and truthful in all dealings.
(5) Not derive personal gain, except as authorized, for the
performance of legal services.
(6) Maintain the integrity of the legal profession.
(b) Ethical rules should be consistent with law. If law and ethics
conflict, the law prevails unless an ethical rule is constitutionally
based.
(c) The military criminal justice system is a truth-finding process
consistent with constitutional law.
Sec. 776.20 Competence.
(a) Competence. A covered attorney shall provide competent,
diligent, and prompt representation to a client. Competent
representation requires the legal knowledge, skill, thoroughness and
expeditious preparation reasonably necessary for representation. Initial
determinations as to competence of a covered USG attorney for a
particular assignment shall be made by a supervising attorney before
case or issue assignments; however, assigned attorneys may consult with
supervisors concerning competence in a particular case.
(b) [Reserved]
Sec. 776.21 Establishment and scope of representation.
(a) Establishment and scope of representation: (1) Formation of
attorney-client relationships by covered USG attorneys with, and
representation of, clients is permissible only when the attorney is
authorized to do so by competent authority. Military Rule of Evidence
502, the Manual of the Judge Advocate General (JAG Instruction 5800.7
(series)), and the Naval Legal Service Office and Trial Service Office
Manual, define when an attorney-client relationship is formed between a
covered USG attorney and a client servicemember, dependent, or employee.
(2) Generally, the subject matter scope of a covered attorney's
representation will be consistent with the terms of the assignment to
perform specific representational or advisory duties. A covered attorney
shall inform clients at the earliest opportunity of any limitations on
representation and professional responsibilities of the attorney towards
the client.
(3) A covered attorney shall follow the client's well-informed and
lawful decisions concerning case objectives, choice of counsel, forum,
pleas, whether to testify, and settlements.
(4) A covered attorney's representation of a client does not
constitute an endorsement of the client's political, economic, social,
or moral views or activities.
(5) A covered attorney shall not counsel or assist a client to
engage in conduct that the attorney knows is criminal or fraudulent, but
a covered attorney may discuss the legal and moral consequences of any
proposed course of conduct with a client, and may counsel or assist a
client in making a good faith effort to determine the
[[Page 510]]
validity, scope, meaning, or application of the law.
(b) [Reserved]
Sec. 776.22 Diligence.
(a) Diligence. A covered attorney shall act with reasonable
diligence and promptness in representing a client, and shall consult
with a client as soon as practicable and as often as necessary upon
being assigned to the case or issue.
(b) [Reserved]
Sec. 776.23 Communication.
(a) Communication:
(1) A covered attorney shall keep a client reasonably informed about
the status of a matter and promptly comply with reasonable requests for
information.
(2) A covered attorney shall explain a matter to the extent
reasonably necessary to permit the client to make informed decisions
regarding the representation.
(b) [Reserved]
Sec. 776.24 Fees.
(a) Fees:
(1) A covered USG attorney shall not accept any salary, fee,
compensation, or other payments or benefits, directly or indirectly,
other than Government compensation, for services provided in the course
of the covered USG attorney's official duties or employment.
(2) A covered USG attorney shall not accept any salary or other
payments as compensation for legal services rendered, by that covered
USG attorney in a private capacity, to a client who is eligible for
assistance under the DON Legal Assistance Program, unless so authorized
by the JAG. This rule does not apply to Reserve or Retired judge
advocates not then serving on extended active-duty.
(3) A Reserve or Retired judge advocate, whether or not serving on
extended active-duty, who has initially represented or interviewed a
client or prospective client concerning a matter as part of the
attorney's official Navy or Marine Corps duties, shall not accept any
salary or other payments as compensation for services rendered to that
client in a private capacity concerning the same general matter for
which the client was seen in an official capacity, unless so authorized
by the JAG.
(4) Covered non-USG attorneys may charge fees. Fees shall be
reasonable. Factors considered in determining the reasonableness of a
fee include the following:
(i) The time and labor required, the novelty and difficulty of the
questions involved, and the skill requisite to perform the legal service
properly;
(ii) The likelihood, if apparent to the client, that the acceptance
of the particular employment will preclude other employment by the
attorney;
(iii) The fee customarily charged in the locality for similar legal
services;
(iv) The amount involved and the results obtained;
(v) The time limitations imposed by the client or by the
circumstances;
(vi) The nature and length of the professional relationship with the
client;
(vii) The experience, reputation, and ability of the attorney or
attorneys performing the services; and
(viii) Whether the fee is fixed or contingent.
(5) When the covered non-USG attorney has not regularly represented
the client, the basis or rate of the fee shall be communicated to the
client, preferably in writing, before or within a reasonable time after
commencing the representation.
(6) A fee may be contingent on the outcome of the matter for which
the service is rendered, except in a matter in which a contingent fee is
prohibited by paragraph (a)(7) of this section or other law. A
contingent fee agreement shall be in writing and shall state the method
by which the fee is to be determined, including the percentage or
percentages that shall accrue to the covered non-USG attorney in the
event of settlement, trial or appeal, litigation and other expenses to
be deducted from the recovery, and whether such expenses are to be
deducted before or after the contingent fee is calculated. Upon
conclusion of a contingent fee matter, the covered non-USG attorney
shall provide the client with a written statement stating the outcome of
the matter and, if there is a recovery, showing the remittance to the
client and the method of its determination.
[[Page 511]]
(7) A covered non-USG attorney shall not enter into an arrangement
for, charge, or collect a contingent fee for representing an accused in
a criminal case.
(8) A division of fees between covered non-USG attorneys who are not
in the same firm may be made only if:
(i) The division is in proportion to the services performed by each
attorney or, by written agreement with the client, each attorney assumes
joint responsibility for the representation;
(ii) The client is advised of and does not object to the
participation of all the attorneys involved; and
(iii) The total fee is reasonable.
(b) Paragraphs (a)(4) through (a)(8) of this section apply only to
private civilian attorneys practicing in proceedings conducted under the
cognizance and supervision of the JAG. The primary purposes of
paragraphs (a)(4) through (a)(8) of this section are not to permit the
JAG to regulate fee arrangements between civilian attorneys and their
clients but to provide guidance to covered USG attorneys practicing with
non-USG attorneys and to supervisory attorneys who may be asked to
inquire into alleged fee irregularities. Absent paragraphs (a)(4)
through (a)(8) of this section, such supervisory attorneys have no
readily available standard against which to compare allegedly
questionable conduct of a civilian attorney.
Sec. 776.25 Confidentiality of information.
(a) Confidentiality of Information:
(1) A covered attorney shall not reveal information relating to
representation of a client unless the client consents after
consultation, except for disclosures that are impliedly authorized in
order to carry out the representation, and except as stated in
paragraphs (a)(2) and (a)(3) of this section.
(2) A covered attorney shall reveal such information to the extent
the covered attorney reasonably believes necessary to prevent the client
from committing a criminal act that the covered attorney believes is
likely to result in imminent death or substantial bodily harm, or
significant impairment of national security or the readiness or
capability of a military unit, vessel, aircraft, or weapon system.
(3) A covered attorney may reveal such information to the extent the
covered attorney reasonably believes necessary to establish a claim or
defense on behalf of the covered attorney in a controversy between the
covered attorney and the client, to establish a defense to a criminal
charge or civil claim against the attorney based upon conduct in which
the client was involved, or to respond to allegations in any proceeding
concerning the attorney's representation of the client.
(b) Conduct likely to result in the significant impairment of
national security or the readiness or capability of a military unit,
vessel, aircraft, or weapon system include, but are not limited to:
Divulging the classified location of a special operations unit such that
the lives of members of the unit are placed in immediate danger;
sabotaging a vessel or aircraft to the extent that the vessel or
aircraft could not conduct an assigned mission, or that the vessel or
aircraft and crew could be lost; and compromising the security of a
weapons site such that the weapons are likely to be stolen or detonated.
Paragraph (a)(2) of this section is not intended to and does not mandate
the disclosure of conduct which may have a slight impact on the
readiness or capability of a unit, vessel, aircraft, or weapon system.
Examples of such conduct are: absence without authority from a peacetime
training exercise; intentional damage to an individually assigned
weapon; and intentional minor damage to military property.
Sec. 776.26 Conflict of interest: General rule.
(a) Conflict of interest: General rule:
(1) A covered attorney shall not represent a client if the
representation of that client will be directly adverse to another
client, unless:
(i) The covered attorney reasonably believes the representation will
not adversely affect the relationship with the other client; and
(ii) Each client consents after consultation.
(2) A covered attorney shall not represent a client if the
representation of that client may be materially limited
[[Page 512]]
by the covered attorney's responsibilities to another client or to a
third person, or by the covered attorney's own interests, unless:
(i) The covered attorney reasonably believes the representation will
not be adversely affected; and
(ii) The client consents after consultation.
(3) When representation of multiple clients in a single matter is
undertaken, the consultation shall include explanation of the
implications of the common representation and the advantages and risks
involved.
(b) Reserve judge advocates. These conflict of interest rules only
apply when Reservists are actually drilling or on active-duty for
training, or, as is the case with Retirees, on extended active-duty or
when performing other duties subject to JAG supervision. Therefore,
unless otherwise prohibited by criminal conflict of interest statutes,
Reserve or Retired attorneys providing legal services in their civilian
capacity may represent clients, or work in firms whose attorneys
represent clients, with interests adverse to the United States. Reserve
judge advocates who, in their civilian capacities, represent persons
whose interests are adverse to the DON will provide written notification
to their supervisory attorney and commanding officer, detailing their
involvement in the matter. Reserve judge advocates shall refrain from
undertaking any official action or representation of the DON with
respect to any particular matter in which they are providing
representation or services to other clients.
Sec. 776.27 Conflict of interests: Prohibited transactions.
(a) Conflict of interests: Prohibited transactions.
(1) Covered USG attorneys shall strictly adhere to current
Department of Defense Ethics Regulations and shall not:
(i) Knowingly enter into any business transactions on behalf of, or
adverse to, a client's interest which directly or indirectly relate to
or result from the attorney-client relationship; or
(ii) Provide any financial assistance to a client or otherwise serve
in a financial or proprietorial fiduciary or bailment relationship,
unless otherwise specifically authorized by competent authority.
(2) No covered attorney shall:
(i) Use information relating to representation of a client to the
disadvantage of the client unless the client consents after
consultation, except as permitted or required by Sec. 776.25 or
Sec. 776.42 of this part;
(ii) Prepare an instrument giving the covered attorney or a person
related to the covered attorney as parent, child, sibling, or spouse any
gift from a client, including a testamentary gift, except where the
client is related to the donee;
(iii) In the case of covered non-USG attorneys, accept compensation
for representing a client from one other than the client unless the
client consents after consultation, there is no interference with the
covered attorney's independence of professional judgment or with the
attorney-client relationship, and information relating to representation
of a client is protected as required by Sec. 776.25 of this part;
(iv) Negotiate any settlement on behalf of multiple clients in a
single matter unless each client provides fully informed consent;
(v) Prior to the conclusion of representation of the client, make or
negotiate an agreement giving a covered attorney literary or media
rights for a portrayal or account based in substantial part on
information relating to representation of a client;
(vi) Represent a client in a matter directly adverse to a person
whom the covered attorney knows is represented by another attorney who
is related as parent, child, sibling, or spouse to the covered attorney,
except upon consent by the client after consultation regarding the
relationship; or
(vii) Acquire a proprietary interest in the cause of action or
subject matter of litigation the covered attorney is conducting for a
client.
(b) [Reserved]
Sec. 776.28 Conflict of interest: Former client.
(a) Conflict of interest: Former client. A covered attorney who has
represented a client in a matter shall not thereafter:
[[Page 513]]
(1) Represent another person in the same or a substantially related
matter in which the person's interests are materially adverse to the
interests of the former client, unless the former client consents after
consultation;
(2) Use information relating to the representation to the
disadvantage of the former client or to the covered attorney's own
advantage, except as Sec. 776.25 or Sec. 776.42 of this part would
permit or require with respect to a client or when the information has
become generally known; or
(3) Reveal information relating to the representation except as
Sec. 776.25 or Sec. 776.42 of this part would permit or require with
respect to a client.
(b) [Reserved]
Sec. 776.29 Imputed disqualification: General rule.
(a) Imputed disqualification: General rule. Covered USG attorneys
working in the same military law office are not automatically
disqualified from representing a client because any of them practicing
alone would be prohibited from doing so by Sec. 776.26, Sec. 776.27,
Sec. 776.28, or Sec. 776.38 of this part. Covered non-USG attorneys must
consult their federal, state, and local bar rules governing the
representation of multiple or adverse clients within the same office
before such representation is initiated, as such representation may
expose them to disciplinary action under the rules established by their
licensing authority.
(b)(1) The circumstances of military (or Government) service may
require representation of opposing sides by covered USG attorneys
working in the same law office. Such representation is permissible so
long as conflicts of interests are avoided and independent judgment,
zealous representation, and protection of confidences are not
compromised. Thus, the principle of imputed disqualification is not
automatically controlling for covered USG attorneys. The knowledge,
actions, and conflicts of interests of one covered USG attorney are not
imputed to another simply because they operate from the same office. For
example, the fact that a number of defense attorneys operate from one
office and normally share clerical assistance would not prohibit them
from representing co-accused at trial by court-martial. Imputed
disqualification rules for non-USG attorneys are established by their
individual licensing authorities and may well proscribe all attorneys
from one law office from representing a co-accused, or a party with an
adverse interest to an existing client, if any attorney in the same
office were so prohibited.
(2) Whether a covered USG attorney is disqualified requires a
functional analysis of the facts in a specific situation. The analysis
should include consideration of whether the following will be
compromised: Preserving attorney-client confidentiality; maintaining
independence of judgment; and avoiding positions adverse to a client.
See, e.g., U.S. v. Stubbs, 23 M.J. 188 (CMA 1987).
(3) Preserving confidentiality is a question of access to
information. Access to information, in turn, is essentially a question
of fact in a particular circumstance, aided by inferences, deductions,
or working presumptions that reasonably may be made about the way in
which covered USG attorneys work together. A covered USG attorney may
have general access to files of all clients of a military law office
(e.g., legal assistance attorney) and may regularly participate in
discussions of their affairs; it may be inferred that such a covered USG
attorney in fact is privy to all information about all the office's
clients. In contrast, another covered USG attorney (e.g., military
defense counsel) may have access to the files of only a limited number
of clients and participate in discussion of the affairs of no other
clients; in the absence of information to the contrary, it should be
inferred that such a covered USG attorney in fact is privy to
information about the clients actually served but not to information of
other clients. Additionally, a covered USG attorney changing duty
stations or changing assignments within a military office has a
continuing duty to preserve confidentiality of information about a
client formerly represented. See Sec. 776.25 and Sec. 776.28.7 of this
part.
(4) Maintaining independent judgment allows a covered USG attorney
to consider, recommend, and carry out
[[Page 514]]
any appropriate course of action for a client without regard to the
covered USG attorney's personal interests or the interests of another.
When such independence is lacking or unlikely, representation cannot be
zealous.
(5) Another aspect of loyalty to a client is the general obligation
of any attorney to decline subsequent representations involving
positions adverse to a former client in substantially related matters.
This obligation normally requires abstention from adverse representation
by the individual covered attorney involved, but, in the military legal
office, abstention is not required by other covered USG attorneys
through imputed disqualification.
Sec. 776.30 Successive Government and private employment.
(a) Successive Government and private employment:
(1) Except as the law or regulations may otherwise expressly permit,
a former covered USG attorney shall not represent a private client in
connection with a matter in which the covered USG attorney participated
personally and substantially as a public officer or employee, unless the
appropriate Government agency consents after consultation. If a former
covered USG attorney in a firm, partnership, or association knows that
another attorney within the firm, partnership, or association is
undertaking or continuing representation in such a matter:
(i) The disqualified former covered USG attorney must ensure that he
or she is screened from any participation in the matter and is
apportioned no part of the fee or any other benefit therefrom; and,
(ii) Must provide written notice promptly to the appropriate
Government agency to enable it to ascertain compliance with the
provisions of applicable law and regulations.
(2) Except as the law or regulations may otherwise expressly permit,
a former covered USG attorney, who has information known to be
confidential Government information about a person which was acquired
while a covered USG attorney, may not represent a private client whose
interests are adverse to that person in a matter in which the
information could be used to the material disadvantage of that person.
The former covered USG attorney may continue association with a firm,
partnership, or association representing any such client only if the
disqualified covered USG attorney is screened from any participation in
the matter and is apportioned no part of the fee or any other benefit
therefrom.
(3) Except as the law or regulations may otherwise expressly permit,
a covered USG attorney shall not:
(i) Participate in a matter in which the covered USG attorney
participated personally and substantially while in private practice or
nongovernmental employment, unless under applicable law no one is, or by
lawful delegation may be, authorized to act in the covered USG
attorney's stead in the matter; or,
(ii) Negotiate for private employment with any person who is
involved as a party or as attorney for a party in a matter in which the
covered USG attorney is participating personally and substantially.
(4) As used in this section, the term ``matter'' includes:
(i) Any judicial or other proceeding, application, request for a
ruling or other determination, contract, claim, controversy,
investigation, charge, accusation, arrest, or other particular matter
involving a specific party or parties, and
(ii) Any other matter covered by the conflict of interest rules of
the Department of Defense, DON, or other appropriate Government agency.
(5) As used in this section, the term ``confidential Governmental
information'' means information which has been obtained under
Governmental authority and which, at the time this Rule is applied, the
Government is prohibited by law or regulations from disclosing to the
public or has a legal privilege not to disclose, and which is not
otherwise available to the public.
(b) [Reserved]
Sec. 776.31 Former judge or arbitrator.
(a) Former judge or arbitrator:
(1) Except as stated in paragraph (a)(3) of this section, a covered
USG attorney shall not represent anyone in connection with a matter in
which the
[[Page 515]]
covered USG attorney participated personally and substantially as a
judge or other adjudicative officer, arbitrator, or law clerk to such a
person, unless all parties to the proceeding consent after disclosure.
(2) A covered USG attorney shall not negotiate for employment with
any person who is involved as a party or as attorney for a party in a
matter in which the covered USG attorney is participating personally and
substantially as a judge or other adjudicative officer. A covered USG
attorney serving as law clerk to a judge, other adjudicative officer, or
arbitrator may negotiate for employment with a party or attorney
involved in a matter in which the clerk is participating personally and
substantially, but only after the covered USG attorney has notified the
judge, other adjudicative officer, or arbitrator, and been disqualified
from further involvement in the matter.
(3) An arbitrator selected as a partisan of a party in a multi-
member arbitration panel is not prohibited from subsequently
representing that party.
(b) [Reserved]
Sec. 776.32 Department of the Navy as client.
(a) Department of Navy as client:
(1) Except when representing an individual client pursuant to
paragraph (a)(6) of this section, a covered USG attorney represents the
DON (or the Executive agency to which assigned) acting through its
authorized officials. These officials include the heads of
organizational elements within the Naval service, such as the commanders
of fleets, divisions, ships and other heads of activities. When a
covered USG attorney is assigned to such an organizational element and
designated to provide legal services to the head of the organization, an
attorney-client relationship exists between the covered attorney and the
DON as represented by the head of the organization as to matters within
the scope of the official business of the organization. The head of the
organization may not invoke the attorney-client privilege or the rule of
confidentiality for the head of the organization's own benefit but may
invoke either for the benefit of the DON. In invoking either the
attorney-client privilege or attorney-client confidentiality on behalf
of the DON, the head of the organization is subject to being overruled
by higher authority.
(2) If a covered USG attorney knows that an officer, employee, or
other member associated with the organizational client is engaged in
action, intends to act or refuses to act in a matter related to the
representation that is either adverse to the legal interests or
obligations of the DON or a violation of law which reasonably might be
imputed to the Department, the covered USG attorney shall proceed as is
reasonably necessary in the best interest of the Naval service. In
determining how to proceed, the covered USG attorney shall give due
consideration to the seriousness of the violation and its consequences,
the scope and nature of the covered USG attorney's representation, the
responsibility in the Naval service and the apparent motivation of the
person involved, the policies of the Naval service concerning such
matters, and any other relevant considerations. Any measures taken shall
be designed to minimize prejudice to the interests of the Naval service
and the risk of revealing information relating to the representation to
persons outside the service. Such measures shall include among others:
(i) Asking for reconsideration of the matter by the acting official;
(ii) Advising that a separate legal opinion on the matter be sought
for presentation to appropriate authority in the Naval service;
(iii) Referring the matter to, or seeking guidance from, higher
authority in the chain of command including, if warranted by the
seriousness of the matter, referral to the supervisory attorney assigned
to the staff of the acting official's next superior in the chain of
command; or
(iv) Advising the acting official that his or her personal legal
interests are at risk and that he or she should consult counsel as there
may exist a conflict of interests for the covered USG attorney, and the
covered USG attorney's responsibility is to the organization.
(3) If, despite the covered USG attorney's efforts per paragraph
(a)(2) of this section, the highest authority that can
[[Page 516]]
act concerning the matter insists upon action or refuses to act, in
clear violation of law, the covered USG attorney shall terminate
representation with respect to the matter in question. In no event shall
the attorney participate or assist in the illegal activity. In this
case, a covered USG attorney shall report such termination of
representation to the attorney's supervisory attorney or attorney
representing the next superior in the chain of command.
(4) In dealing with the officers, employees, or members of the Naval
service a covered USG attorney shall explain the identity of the client
when it is apparent that the Naval service's interests are adverse to
those of the officer, employee, or member.
(5) A covered USG attorney representing the Naval service may also
represent any of its officers, employees, or members, subject to the
provisions of Sec. 776.26 of this part and other applicable authority.
If the DON's consent to dual representation is required by Sec. 776.26
of this part, the consent shall be given by an appropriate official of
the DON other than the individual who is to be represented.
(6) A covered USG attorney who has been duly assigned to represent
an individual who is subject to disciplinary action or administrative
proceedings, or to provide legal assistance to an individual, has, for
those purposes, an attorney-client relationship with that individual.
(b) [Reserved]
Sec. 776.33 Client under a disability.
(a) Client under a disability:
(1) When a client's ability to make adequately considered decisions
in connection with the representation is impaired, whether because of
minority, mental disability, or for some other reason, the covered
attorney shall, as far as reasonably possible, maintain a normal
attorney-client relationship with the client.
(2) A covered attorney may seek the appointment of a guardian or
take other protective action with respect to a client only when the
covered attorney reasonably believes that the client cannot adequately
act in the client's own interest.
(b) [Reserved]
Sec. 776.34 Safekeeping property.
(a) Safekeeping property. Covered USG attorneys shall not normally
hold or safeguard property of a client or third persons in connection
with representational duties. See Sec. 776.27 of this part.
(b) [Reserved]
Sec. 776.35 Declining or terminating representation.
(a) Declining or terminating representation:
(1) Except as stated in paragraph (a)(3) of this section, a covered
attorney shall not represent a client or, when representation has
commenced, shall seek to withdraw from the representation of a client
if:
(i) The representation will result in violation of the Rules
contained in this subpart or other law or regulation;
(ii) The covered attorney's physical or mental condition materially
impairs his or her ability to represent the client; or
(iii) The covered attorney is dismissed by the client.
(2) Except as stated in paragraph (a)(3) of this section, a covered
attorney may seek to withdraw from representing a client if withdrawal
can be accomplished without material adverse effect on the interests of
the client, or if:
(i) The client persists in a course of action involving the covered
attorney's services that the covered attorney reasonably believes is
criminal or fraudulent;
(ii) The client has used the covered attorney's services to
perpetrate a crime or fraud;
(iii) The client insists upon pursuing an objective that the covered
attorney considers repugnant or imprudent;
(iv) In the case of covered non-USG attorneys, the representation
will result in an unreasonable financial burden on the attorney or has
been rendered unreasonably difficult by the client; or
(v) Other good cause for withdrawal exists.
(3) When ordered to do so by a tribunal or other competent
authority, a covered attorney shall continue representation
notwithstanding good cause for terminating the representation.
[[Page 517]]
(4) Upon termination of representation, a covered attorney shall
take steps to the extent reasonably practicable to protect a client's
interests, such as giving reasonable notice to the client, allowing time
for assignment or employment of other counsel, and surrendering papers
and property to which the client is entitled and, where a non-USG
attorney provided representation, refunding any advance payment of fee
that has not been earned. The covered attorney may retain papers
relating to the client to the extent permitted by law.
(b) [Reserved]
Sec. 776.36 Prohibited sexual relations.
(a) Prohibited sexual relations:
(1) A covered attorney shall not have sexual relations with a
current client. A covered attorney shall not require, demand, or solicit
sexual relations with a client incident to any professional
representation.
(2) A covered attorney shall not engage in sexual relations with
another attorney currently representing a party whose interests are
adverse to those of a client currently represented by the covered
attorney.
(3) A covered attorney shall not engage in sexual relations with a
judge who is presiding or who is likely to preside over any proceeding
in which the covered attorney will appear in a representative capacity.
(4) A covered attorney shall not engage in sexual relations with
other persons involved in the particular case, judicial or
administrative proceeding, or other matter for which representation has
been established, including but not limited to witnesses, victims, co-
accuseds, and court-martial or board members.
(5) For purposes of this Rule, ``sexual relations'' means:
(i) Sexual intercourse; or
(ii) Any touching of the sexual or other intimate parts of a person
or causing such person to touch the sexual or other intimate parts of
the covered attorney for the purpose of arousing or gratifying the
sexual desire of either party.
(b) [Reserved]
Sec. 776.37 Advisor.
(a) Advisor. In representing a client, a covered attorney shall
exercise independent professional judgment and render candid advice. In
rendering advice, a covered attorney should refer not only to law but to
other considerations such as moral, economic, social, and political
factors that may be relevant to the client's situation.
(b) [Reserved]
Sec. 776.38 Mediation.
(a) Mediation:
(1) A covered attorney may act as a mediator between individuals if:
(i) The covered attorney consults with each individual concerning
the implications of the mediation, including the advantages and risks
involved, and the effect on the attorney-client confidentiality, and
obtains each individual's consent to the mediation;
(ii) The covered attorney reasonably believes that the matter can be
resolved on terms compatible with each individual's best interests, that
each individual will be able to make adequately informed decisions in
the matter, and that there is little risk of material prejudice to the
interests of any of the individuals if the contemplated resolution is
unsuccessful; and,
(iii) The covered attorney reasonably believes that the mediation
can be undertaken impartially and without improper effect on other
responsibilities the covered attorney has to any of the individuals.
(2) While acting as a mediator, the covered attorney shall consult
with each individual concerning the decisions to be made and the
considerations relevant in making them, so that each individual can make
adequately informed decisions.
(3) A covered attorney shall withdraw as a mediator if any of the
individuals so requests, or if any of the conditions stated in paragraph
(a)(1) of this section is no longer satisfied. Upon withdrawal, the
covered attorney shall not represent any of the individuals in the
matter that was the subject of the mediation unless each individual
consents.
(b) [Reserved]
[[Page 518]]
Sec. 776.39 Evaluation for use by third persons.
(a) Evaluation for use by third persons:
(1) A covered attorney may undertake an evaluation of a matter
affecting a client for the use of someone other than the client if:
(i) The covered attorney reasonably believes that making the
evaluation is compatible with other aspects of the covered attorney's
relationship with the client, and,
(ii) The client consents after consultation.
(2) Except as disclosure is required in connection with a report of
an evaluation, information relating to the evaluation is otherwise
protected by Sec. 776.25 of this part.
(b) [Reserved]
Sec. 776.40 Meritorious claims and contentions.
(a) Meritorious claims and contentions. A covered attorney shall not
bring or defend a proceeding, or assert or controvert an issue therein,
unless there is a basis for doing so that is not frivolous, which
includes a good faith argument for an extension, modification, or
reversal of existing law. A covered attorney representing an accused in
a criminal proceeding or the respondent in an administrative proceeding
that could result in incarceration, discharge from the Naval service, or
other adverse personnel action, may nevertheless defend the client at
the proceeding as to require that every element of the case is
established.
(b) [Reserved]
Sec. 776.41 Expediting litigation.
(a) Expediting litigation. A covered attorney shall make reasonable
efforts to expedite litigation or other proceedings consistent with the
interests of the client and the attorney's responsibilities to
tribunals.
(b) [Reserved]
Sec. 776.42 Candor and obligations toward the tribunal.
(a) Candor and obligations toward the tribunal:
(1) A covered attorney shall not knowingly:
(i) Make a false statement of material fact or law to a tribunal;
(ii) Fail to disclose a material fact to a tribunal when disclosure
is necessary to avoid assisting a criminal or fraudulent act by the
client;
(iii) Fail to disclose to the tribunal legal authority in the
controlling jurisdiction known to the covered attorney to be directly
adverse to the position of the client and not disclosed by opposing
counsel;
(iv) Offer evidence that the covered attorney knows to be false. If
a covered attorney has offered material evidence and comes to know of
its falsity, the covered attorney shall take reasonable remedial
measures; or
(v) Disobey an order imposed by a tribunal unless done openly before
the tribunal in a good faith assertion that no valid order should exist.
(2) The duties stated in paragraph (a) of this section continue to
the conclusion of the proceedings, and apply even if compliance requires
disclosure of information otherwise protected by Sec. 776.25 of this
part.
(3) A covered attorney may refuse to offer evidence that the covered
attorney reasonably believes is false.
(4) In an ex parte proceeding, a covered attorney shall inform the
tribunal of all material facts known to the covered attorney which are
necessary to enable the tribunal to make an informed decision, whether
or not the facts are adverse.
(b) [Reserved]
Sec. 776.43 Fairness to opposing party and counsel.
(a) Fairness to opposing party and counsel. A covered attorney shall
not:
(1) Unlawfully obstruct another party's access to evidence or
unlawfully alter, destroy, or conceal a document or other material
having potential evidentiary value. A covered attorney shall not counsel
or assist another person to do any such act;
(2) Falsify evidence, counsel or assist a witness to testify
falsely, or offer an inducement to a witness that is prohibited by law;
(3) In pretrial procedure, make a frivolous discovery request or
fail to make reasonably diligent effort to comply with a legally proper
discovery request by an opposing party;
[[Page 519]]
(4) In trial, allude to any matter that the covered attorney does
not reasonably believe is relevant or that will not be supported by
admissible evidence, assert personal knowledge of facts in issue except
when testifying as a witness, or state a personal opinion as to the
justness of a cause, the credibility of a witness, the culpability of a
civil litigant, or the guilt or innocence of an accused; or
(5) Request a person other than a client to refrain from voluntarily
giving relevant information to another party unless:
(i) The person is a relative, an employee, or other agent of a
client; and
(ii) The covered attorney reasonably believes that the person's
interests will not be adversely affected by refraining from giving such
information.
(b) [Reserved]
Sec. 776.44 Impartiality and decorum of the tribunal.
(a) Impartiality and decorum of the tribunal. A covered attorney
shall not:
(1) Seek to influence a judge, court member, member of a tribunal,
prospective court member or member of a tribunal, or other official by
means prohibited by law or regulation;
(2) Communicate ex parte with such a person except as permitted by
law or regulation; or
(3) Engage in conduct intended to disrupt a tribunal.
(b) [Reserved]
Sec. 776.45 Extra-tribunal statements.
(a) Extra-tribunal statements:
(1) A covered attorney shall not make an extrajudicial statement
about any person or case pending investigation or adverse administrative
or disciplinary proceedings that a reasonable person would expect to be
disseminated by means of public communication if the covered attorney
knows or reasonably should know that it will have a substantial
likelihood of materially prejudicing an adjudicative proceeding or an
official review process thereof.
(2) A statement referred to in paragraph (a)(1) of this section
ordinarily is likely to have such an effect when it refers to a civil
matter triable to a jury, a criminal matter, or any other proceeding
that could result in incarceration, discharge from the Naval service, or
other adverse personnel action, and the statement relates to:
(i) The character, credibility, reputation, or criminal record of a
party, suspect in a criminal investigation, victim, or witness, or the
identity of a victim or witness, or the expected testimony of a party,
suspect, victim, or witness;
(ii) The possibility of a plea of guilty to the offense or the
existence or contents of any confession, admission, or statement given
by an accused or suspect or that person's refusal or failure to make a
statement;
(iii) The performance or results of any forensic examination or test
or the refusal or failure of a person to submit to an examination or
test, or the identity or nature of physical evidence expected to be
presented;
(iv) Any opinion as to the guilt or innocence of an accused or
suspect in a criminal case or other proceeding that could result in
incarceration, discharge from the Naval service, or other adverse
personnel action;
(v) Information the covered attorney knows or reasonably should know
is likely to be inadmissible as evidence before a tribunal and would, if
disclosed, create a substantial risk of materially prejudicing an
impartial proceeding;
(vi) The fact that an accused has been charged with a crime, unless
there is included therein a statement explaining that the charge is
merely an accusation and that the accused is presumed innocent until and
unless proven guilty; or
(vii) The credibility, reputation, motives, or character of civilian
or military officials of the Department of Defense.
(3) Notwithstanding paragraphs (a)(1) and (a)(2)(i) through
(a)(2)(vii) of this section, a covered attorney involved in the
investigation or litigation of a matter may state without elaboration:
(i) The general nature of the claim, offense, or defense;
(ii) The information contained in a public record;
(iii) That an investigation of the matter is in progress, including
the general scope of the investigation, the offense or claim or defense
involved
[[Page 520]]
and, except when prohibited by law or regulation, the identity of the
persons involved;
(iv) The scheduling or result of any step in litigation;
(v) A request for assistance in obtaining evidence and information
necessary thereto;
(vi) A warning of danger concerning the behavior of the person
involved, when there is reason to believe that there exists the
likelihood of substantial harm to an individual or to the public
interest; and
(vii) In a criminal case, in addition to paragraphs (a)(3)(i)
through (a)(3)(vi) of this section:
(A) The identity, duty station, occupation, and family status of the
accused;
(B) If the accused has not been apprehended, information necessary
to aid in apprehension of that person;
(C) The fact, time, and place of apprehension; and (D) The identity
of investigating and apprehending officers or agencies and the length of
the investigation.
(4) Notwithstanding paragraphs (a)(1) and (a)(2)(i) through
(a)(2)(vii) of this section, a covered attorney may make a statement
that a reasonable covered attorney would believe is required to protect
a client from the substantial undue prejudicial effect of recent
publicity not initiated by the covered attorney or the attorney's
client. A statement made pursuant to this paragraph shall be limited to
such information as is necessary to mitigate the recent adverse
publicity.
(5) The protection and release of information in matters pertaining
to the DON is governed by such statutes as the Freedom of Information
Act and the Privacy Act, in addition to those governing protection of
national defense information. In addition, other laws and regulations
may further restrict the information that can be released or the source
from which it is to be released (e.g., the Manual of the Judge Advocate
General).
(b) [Reserved]
Sec. 776.46 Attorney as witness.
(a) Attorney as witness:
(1) A covered attorney shall not act as advocate at a trial in which
the covered attorney is likely to be a necessary witness except when:
(i) The testimony relates to an uncontested issue;
(ii) The testimony relates to the nature and quality of legal
services rendered in the case; or
(iii) Disqualification of the covered attorney would work
substantial hardship on the client.
(2) A covered attorney may act as advocate in a trial in which
another attorney in the covered attorney's office is likely to be called
as a witness, unless precluded from doing so by Sec. 776.26 or
Sec. 776.28 of this part.
(b) [Reserved]
Sec. 776.47 Special responsibilities of a trial counsel.
(a) Special responsibilities of a trial counsel. A trial counsel
shall:
(1) Recommend to the convening authority that any charge or
specification not warranted by the evidence be withdrawn;
(2) Make reasonable efforts to assure that the accused has been
advised of the right to, and the procedure for obtaining, counsel and
has been given reasonable opportunity to obtain counsel;
(3) Not seek to obtain from an unrepresented accused a waiver of
important pretrial rights;
(4) Make timely disclosure to the defense of all evidence or
information known to the trial counsel that tends to negate the guilt of
the accused or mitigates the offense, and, in connection with
sentencing, disclose to the defense all unprivileged mitigating
information known to the trial counsel, except when the trial counsel is
relieved of this responsibility by a protective order or regulation;
(5) Exercise reasonable care to prevent investigators, law
enforcement personnel, employees, or other persons assisting or
associated with the trial counsel from making an extrajudicial statement
that the trial counsel would be prohibited from making under Sec. 776.45
of this part; and
(6) Except for statements that are necessary to inform the public of
the nature and extent of the trial counsel's actions and that serve a
legitimate law enforcement purpose, refrain from
[[Page 521]]
making extrajudicial comments that have a substantial likelihood of
heightening public condemnation of the accused.
(b) Role of the trial counsel. (1) The trial counsel represents the
United States in the prosecution of special and general courts-martial.
See Article 38(a), UCMJ, and R.C.M. 103(16), 405(d)(3)(A), and
502(d)(5), MCM, 1998. Accordingly, a trial counsel has the
responsibility of administering justice and is not simply an advocate.
This responsibility carries with it specific obligations to see that the
accused is accorded procedural justice and that guilt is decided upon
the basis of sufficient evidence. Paragraph (a)(1) of this section
recognizes that the trial counsel does not have all the authority vested
in modern civilian prosecutors. The authority to convene courts-martial,
and to refer and withdraw specific charges, is vested in convening
authorities. Trial counsel may have the duty, in certain circumstances,
to bring to the court's attention any charge that lacks sufficient
evidence to support a conviction. See United States v. Howe, 37 M.J.
1062 (NMCMR 1993). Such action should be undertaken only after
consultation with a supervisory attorney and the convening authority.
See also Sec. 776.42 of this part, governing ex parte proceedings.
Applicable law may require other measures by the trial counsel. Knowing
disregard of those obligations or a systematic abuse of prosecutorial
discretion could constitute a violation of Sec. 776.69 of this part.
(2) The ``ABA Standards for Criminal Justice: The Prosecution
Function,'' (3rd ed. 1993), has been used by appellate courts in
analyzing issues concerning trial counsel conduct. To the extent
consistent with this part, the ABA standards may be used to guide trial
counsel in the prosecution of criminal cases. See United States v. Howe,
37 M.J. 1062 (NMCR 1993); United States v. Dancy, 38 M.J. 1 (CMA 1993);
United States v. Hamilton, 41 M.J. 22 (CMA 1994); United States v. Meek,
44 M.J. 1 (CMA 1996).
Sec. 776.48 Advocate in nonadjudicative proceedings.
(a) Advocate in nonadjudicative proceedings. A covered attorney
representing a client before a legislative or administrative tribunal in
a nonadjudicative proceeding shall disclose that the appearance is in a
representative capacity and shall conform to the provisions of
Sec. 776.42, Sec. 776.43, and Sec. 776.44 of this part.
(b) [Reserved]
Sec. 776.49 Truthfulness in statements to others.
(a) Truthfulness in statements to others. In the course of
representing a client a covered attorney shall not knowingly;
(1) Make a false statement of material fact or law to a third
person; or
(2) Fail to disclose a material fact to a third person when
disclosure is necessary to avoid assisting a criminal or fraudulent act
by a client, unless disclosure is prohibited by Sec. 776.25 of this
part.
(b) [Reserved]
Sec. 776.50 Communication with person represented by counsel.
(a) Communication with person represented by counsel. In
representing a client, a covered attorney shall not communicate about
the subject of the representation with a party the covered attorney
knows to be represented by another attorney in the matter, unless the
covered attorney has the consent of the other attorney or is authorized
by law to do so.
(b) [Reserved]
Sec. 776.51 Dealing with an unrepresented person.
(a) Dealing with an unrepresented person. When dealing on behalf of
a client with a person who is not represented by counsel, a covered
attorney shall not state or imply that the covered attorney is
disinterested. When the covered attorney knows or reasonably should know
that the unrepresented person misunderstands the covered attorney's role
in the matter, the covered attorney shall make reasonable efforts to
correct the misunderstanding.
(b) [Reserved]
[[Page 522]]
Sec. 776.52 Respect for rights of third persons.
(a) Respect for rights of third persons. In representing a client, a
covered attorney shall not use means that have no substantial purpose
other than to embarrass, delay, or burden a third person, or use methods
of obtaining evidence that violate the legal rights of such a person.
(b) [Reserved]
Sec. 776.53 Responsibilities of the Judge Advocate General and supervisory attorneys.
(a) Responsibilities of the Judge Advocate General and supervisory
attorneys. (1) The JAG and supervisory attorneys shall make reasonable
efforts to ensure that all covered attorneys conform to this part.
(2) A covered attorney having direct supervisory authority over
another covered attorney shall make reasonable efforts to ensure that
the other attorney conforms to this part.
(3) A supervisory attorney shall be responsible for another
subordinate covered attorney's violation of this part if:
(i) The supervisory attorney orders or, with knowledge of the
specific conduct, ratifies the conduct involved; or
(ii) The supervisory attorney has direct supervisory authority over
the other attorney and knows of the conduct at a time when its
consequences can be avoided or mitigated but fails to take reasonable
remedial action.
(4) A supervisory attorney is responsible for ensuring that the
subordinate covered attorney is properly trained and is competent to
perform the duties to which the subordinate covered attorney is
assigned.
(b) [Reserved]
Sec. 776.54 Responsibilities of a subordinate attorney.
(a) Responsibilities of a subordinate attorney:
(1) A covered attorney is bound by this part notwithstanding that
the covered attorney acted at the direction of another person.
(2) In recognition of the judge advocate's unique dual role as a
commissioned officer and attorney, subordinate judge advocates shall
obey lawful directives and regulations of supervisory attorneys when not
inconsistent with this part or the duty of a judge advocate to exercise
independent professional judgment as to the best interest of an
individual client.
(3) A subordinate covered attorney does not violate this part if
that covered attorney acts in accordance with a supervisory attorney's
written and reasonable resolution of an arguable question of
professional duty. See Sec. 776.10.
(b) [Reserved]
Sec. 776.55 Responsibilities regarding non-attorney assistants.
(a) Responsibilities regarding non-attorney assistants. With respect
to a non-attorney acting under the authority, supervision, or direction
of a covered attorney:
(1) The senior supervisory attorney in an office shall make
reasonable efforts to ensure that the person's conduct is compatible
with the professional obligations of a covered attorney;
(2) A covered attorney having direct supervisory authority over the
non-attorney shall make reasonable efforts to ensure that the person's
conduct is compatible with the professional obligations of a covered
attorney; and
(3) A covered attorney shall be responsible for conduct of such a
person that would be a violation of this part if engaged in by a covered
attorney if:
(i) The covered attorney orders or, with the knowledge of the
specific conduct, explicitly or impliedly ratifies the conduct involved;
or
(ii) The covered attorney has direct supervisory authority over the
person, and knows of the conduct at a time when its consequences can be
avoided or mitigated but fails to take reasonable remedial action.
(b) [Reserved]
Sec. 776.56 Professional independence of a covered USG attorney.
(a) Professional independence of a covered USG attorney.
(1) Notwithstanding a judge advocate's status as a commissioned
officer subject, generally, to the authority of superiors, a judge
advocate detailed or assigned to represent an individual
[[Page 523]]
member or employee of the DON is expected to exercise unfettered loyalty
and professional independence during the representation consistent with
these Rules and remains ultimately responsible for acting in the best
interest of the individual client.
(2) Notwithstanding a civilian USG attorney's status as a Federal
employee subject, generally, to the authority of superiors, a civilian
USG attorney detailed or assigned to represent an individual member or
employee of the DON is expected to exercise unfettered loyalty and
professional independence during the representation consistent with
these Rules and remains ultimately responsible for acting in the best
interest of the individual client.
(3) The exercise of professional judgment in accordance with
paragraphs (a)(1) and (a)(2) of this section shall not, standing alone,
be a basis for an adverse evaluation or other prejudicial action.
(b)(1) This section recognizes that a judge advocate is a military
officer required by law to obey the lawful orders of superior officers.
It also recognizes the similar status of a civilian USG attorney.
Nevertheless, the practice of law requires the exercise of judgment
solely for the benefit of the client and free of compromising influences
and loyalties. Thus, when a covered USG attorney is assigned to
represent an individual client, neither the attorney's personal
interests, the interests of other clients, nor the interests of third
persons should affect loyalty to the individual client.
(2) Not all direction given to a subordinate covered attorney is an
attempt to influence improperly the covered attorney's professional
judgment. Each situation must be evaluated by the facts and
circumstances, giving due consideration to the subordinate's training,
experience, and skill. A covered attorney subjected to outside pressures
should make full disclosure of them to the client. If the covered
attorney or the client believes the effectiveness of the representation
has been or will be impaired thereby, the covered attorney should take
proper steps to withdraw from representation of the client.
(3) Additionally, a judge advocate has a responsibility to report
any instances of unlawful command influence. See R.C.M. 104, MCM, 1998.
Sec. 776.57 Unauthorized practice of law.
(a) Unauthorized practice of law. A covered USG attorney shall not:
(1) Except as authorized by an appropriate military department,
practice law in a jurisdiction where doing so is prohibited by the
regulations of the legal profession in that jurisdiction; or
(2) Assist a person who is not a member of the bar in the
performance of activity that constitutes the unauthorized practice of
law.
(b) Limiting the practice of law to members of the bar protects the
public against rendition of legal services by unqualified persons. A
covered USG attorney's performance of legal duties pursuant to a
military department's authorization, however, is considered a Federal
function and not subject to regulation by the states. Thus, a covered
USG attorney may perform legal assistance duties even though the covered
attorney is not licensed to practice in the jurisdiction within which
the covered attorney's duty station is located. Paragraph (a)(2) of this
section does not prohibit a covered USG attorney from using the services
of non-attorneys and delegating functions to them, so long as the
covered attorney supervises the delegated work and retains
responsibility for it. See Sec. 776.55 of this part. Likewise, it does
not prohibit covered USG attorneys from providing professional advice
and instruction to non-attorneys whose employment requires knowledge of
law; for example, claims adjusters, social workers, accountants and
persons employed in Government agencies. In addition, a covered USG
attorney may counsel individuals who wish to proceed pro se or non-
attorneys authorized by law or regulation to appear and represent
themselves or others before military proceedings.
Secs. 776.58-776.65 [Reserved]
Sec. 776.66 Bar admission and disciplinary matters.
(a) Bar admission and disciplinary matters. A covered attorney, in
connection
[[Page 524]]
with any application for bar admission, appointment as a judge advocate,
employment as a civilian USG attorney, certification by the JAG or his
designee, or in connection with any disciplinary matter, shall not:
(1) Knowingly make a false statement of fact; or
(2) Fail to disclose a fact necessary to correct a misapprehension
known by the person to have arisen in the matter, or knowingly fail to
respond to a lawful demand for information from an admissions or
disciplinary authority, except that this section does not require
disclosure of information otherwise protected by Sec. 776.25 of this
part.
(b) The duty imposed by this section extends to covered attorneys
and other attorneys seeking admission to a bar, application for
appointment as a covered USG attorney (military or civilian) or
certification by the JAG or his designee. Hence, if a person makes a
false statement in connection with an application for admission or
certification (e.g., misstatement by a civilian attorney before a
military judge regarding qualifications under Rule for Courts-Martial
502), it may be the basis for subsequent disciplinary action if the
person is admitted or certified, and in any event may be relevant in a
subsequent admission application. The duty imposed by this section
applies to a covered attorney's own admission or discipline as well as
that of others. Thus, it is a separate professional offense for a
covered attorney to make a knowing misrepresentation or omission in
connection with a disciplinary investigation of the covered attorney's
own conduct. This section also requires affirmative clarification of any
misunderstanding on the part of the admissions, certification, or
disciplinary authority of which the person involved becomes aware.
Sec. 776.67 Judicial and legal officers.
(a) Judicial and legal officers. A covered attorney shall not make a
statement that the covered attorney knows to be false or with reckless
disregard as to its truth or falsity concerning the qualifications or
integrity of a judge, investigating officer, hearing officer,
adjudicatory officer, or public legal officer, or of a candidate for
election or appointment to judicial or legal office.
(b) [Reserved]
Sec. 776.68 Reporting professional misconduct.
(a) Reporting professional misconduct:
(1) A covered attorney having knowledge that another covered
attorney has committed a violation of this part that raises a
substantial question as to that covered attorney's honesty,
trustworthiness, or fitness as a covered attorney in other respects,
shall report such violation in accordance with the procedures set forth
in subpart C of this part.
(2) A covered attorney having knowledge that a judge has committed a
violation of applicable rules of judicial conduct that raises a
substantial question as to the judge's fitness for office shall report
such violation in accordance with the procedures set forth in subpart C
of this part.
(3) This Rule does not require disclosure of information otherwise
protected by Sec. 776.25 of this part.
(b) [Reserved]
Sec. 776.69 Misconduct.
(a) Misconduct. It is professional misconduct for a covered attorney
to:
(1) Violate or attempt to violate this subpart, knowingly assist or
induce another to do so, or do so through the acts of another;
(2) Commit a criminal act that reflects adversely on the covered
attorney's honesty, trustworthiness, or fitness as an attorney in other
respects;
(3) Engage in conduct involving dishonesty, fraud, deceit, or
misrepresentation;
(4) Engage in conduct that is prejudicial to the administration of
justice;
(5) State or imply an ability to influence improperly a government
agency or official; or
(6) Knowingly assist a judge or judicial officer in conduct that is
a violation of applicable rules of judicial conduct or other law.
(b)(1) Judge advocates hold a commission as an officer in the Navy
or Marine Corps and assume legal responsibilities going beyond those of
other citizens. A judge advocate's abuse of
[[Page 525]]
such commission can suggest an inability to fulfill the professional
role of judge advocate and attorney. This concept has similar
application to civilian USG attorneys.
(2) Covered non-USG attorneys, Reservists, and Retirees (acting in
their civilian capacity), like their active-duty counterparts, are
expected to demonstrate model behavior and exemplary integrity at all
times. JAG may consider any and all derogatory or beneficial information
about a covered attorney, for purposes of determining the attorney's
qualification, professional competence, or fitness to practice law in
DON matters, or to administer discipline under this part. Such
consideration shall be made, except in emergency situations
necessitating immediate action, according to the procedures established
in subpart C of this part.
Sec. 776.70 Jurisdiction.
(a) Jurisdiction. All covered attorneys, as defined in Sec. 776.2 of
this part, shall be governed by this part.
(b)(1) Many covered USG attorneys practice outside the territorial
limits of the jurisdiction in which they are licensed. While covered
attorneys remain subject to the governing authority of the jurisdiction
in which they are licensed to practice, they are also subject to these
Rules.
(2) When covered USG attorneys are engaged in the conduct of Navy or
Marine Corps legal functions, whether serving the Navy or Marine Corps
as a client or serving an individual client as authorized by the Navy or
Marine Corps, the rules contained in this subpart supersede any
conflicting rules applicable in jurisdictions in which the covered
attorney may be licensed. However, covered attorneys practicing in State
or Federal civilian court proceedings will abide by the rules adopted by
that State or Federal civilian court during the proceedings. As for
covered non-USG attorneys practicing under the supervision of the JAG,
violation of the rules contained in this subpart may result in
suspension from practice in DON proceedings.
(3) Covered non-USG attorneys, Reservists, or Retirees (acting in
their civilian capacity) who seek to provide legal services in any DON
matter under JAG cognizance and supervision, may be precluded from such
practice of law if, in the opinion of the JAG (as exercised through this
instruction) the attorney's conduct in any venue renders that attorney
unable or unqualified to practice in DON programs or proceedings.
Sec. 776.71 Requirement to remain in good standing with licensing authorities.
(a) Requirement to remain in good standing with state licensing
authority:
(1) Each officer of the Navy appointed as a member of the Judge
Advocate General's Corps, each officer of the Marine Corps designated a
judge advocate, and each civil service and contracted civilian attorney
who practices law under the cognizance and supervision of the JAG shall
maintain a status considered ``in good standing'' at all times with the
licensing authority admitting the individual to the practice of law
before the highest court of at least one State, Territory, Commonwealth,
or the District of Columbia.
(2) The JAG, the Director, JA Division, HQMC, or any other
supervisory attorney may require any covered USG attorney over whom they
exercise authority to establish that the attorney continues to be in
good standing with his or her licensing authority. Representatives of
the JAG or of the Director, JA Division, HQMC, may also inquire directly
of any such covered USG attorney's licensing authority to establish
whether he or she continues to be in good standing and has no
disciplinary action pending.
(3) Each covered USG attorney shall immediately report to the JAG if
any jurisdiction in which the covered USG attorney is or has been a
member in good standing commences disciplinary investigation or action
against him or her or if the covered USG attorney is disciplined,
suspended, or disbarred from the practice of law in any jurisdiction.
(4) Each covered non-USG attorney representing an accused in any
court-martial or administrative separation proceeding shall be a member
in good standing with, and authorized to practice law by, the bar of a
Federal court
[[Page 526]]
or of the bar of the highest court of a State, or a lawyer otherwise
authorized by a recognized licensing authority to practice law and found
by the military judge to be qualified to represent the accused.
(b)(1) The licensing authority granting the certification or
privilege to practice law within the jurisdiction generally defines the
phrase ``in good standing.'' At a minimum it means that the individual
is subject to the jurisdiction's disciplinary review process; has not
been suspended or disbarred from the practice of law within the
jurisdiction; is up-to-date in the payment of all required fees; has met
applicable continuing legal education requirements which the
jurisdiction has imposed (or the cognizant authority has waived those
requirements in the case of the individual); and has met such other
requirements as the cognizant authority has set to remain eligible to
practice law. So long as these conditions are met, a covered USG
attorney may be considered ``inactive'' as to the practice of law within
a particular jurisdiction and still be considered ``in good standing''
for purposes of this section.
(2) Rule for Courts-Martial 502(d)(3)(A) requires that any civilian
defense counsel representing an accused in a court-martial be a member
of the bar of a Federal court or of the bar of the highest court of a
State. This civilian defense counsel qualification only has meaning if
the attorney is a member ``in good standing,'' see U.S. v. Waggoner, 22
M.J. 692 (AFCMR 1986), and is then authorized to practice law within
that jurisdiction. It is appropriate for the military judge, in each and
every case, to ensure that a civilian defense counsel is qualified to
represent the accused.
(3) Failure of a judge advocate to comply with the requirements of
this Rule may result in professional disciplinary action as provided for
in this instruction, loss of certification under Articles 26 and/or
27(b), UCMJ, adverse entries in military service records, and
administrative separation under Secretary of the Navy Instruction 1920.6
(series) based on the officer's failure to maintain professional
qualifications. In the case of civil service and contracted civilian
attorneys practicing under the JAG's cognizance and supervision, failure
to maintain good standing or otherwise to comply with the requirements
of this Rule may result in adverse administrative action under
applicable personnel regulations, including termination of employment.
(4) A covered USG attorney need only remain in good standing in one
jurisdiction. If admitted to the practice of law in more than one
jurisdiction, however, and any jurisdiction commences disciplinary
action against or disciplines, suspends or disbars the covered USG
attorney from the practice of law, the covered USG attorney must so
advise the JAG.
(5) Certification by the United States Court of Appeals for the
Armed Forces that a covered attorney is in good standing with that court
will not satisfy the requirement of this section, since such status is
normally dependent on Article 27 UCMJ certification alone.
Secs. 776.72-776.75 [Reserved]
Subpart C--Complaint Processing Procedures
Sec. 776.76 Policy.
(a) It is JAG's policy to investigate and resolve, expeditiously and
fairly, all allegations of professional impropriety lodged against
covered attorneys practicing under JAG cognizance and supervision.
(b) Rules Counsel approval will be obtained before conducting any
preliminary inquiry or formal investigation into an alleged violation of
subpart B of this part or the Code of Judicial Conduct. The Rules
Counsel will notify the JAG prior to the commencement of any preliminary
inquiry or investigation. The preliminary inquiry and any subsequent
investigation will be conducted according to the procedures set forth in
this subpart.
Sec. 776.77 Related investigations and actions.
Acts or omissions by covered attorneys may constitute professional
misconduct, criminal misconduct, poor performance of duty, or a
combination of all three. Care must be taken to
[[Page 527]]
characterize appropriately the nature of a covered attorney's conduct to
determine who may and properly should take official action.
(a) Questions of legal ethics and professional misconduct by covered
attorneys are within the exclusive province of JAG. Ethical or
professional misconduct will not be attributed to any covered attorney
in any official record without a final JAG determination, made in
accordance with this part, that such misconduct has occurred.
(b) Criminal misconduct is properly addressed by the covered USG
attorney's commander through the disciplinary process provided under the
UCMJ and implementing regulations, or through referral to appropriate
civil authority.
(c) Poor performance of duty is properly addressed by the covered
USG attorney's reporting senior through a variety of administrative
actions, including documentation in fitness reports or employee
appraisals.
(d) Prior JAG approval is not required to investigate allegations of
criminal conduct or poor performance of duty involving covered
attorneys. When, however, investigations into criminal conduct or poor
performance reveal conduct that constitutes a violation of this part, or
of the Code of Judicial Conduct in the case of judges, such conduct
shall be reported to the Rules Counsel immediately.
(e) Inquiries into allegations of professional misconduct will
normally be held in abeyance until any related criminal investigation or
proceeding is complete. However, a pending criminal investigation or
proceeding does not bar the initiation or completion of a professional
misconduct investigation stemming from the same or related incidents or
prevent the JAG from imposing professional disciplinary sanctions as
provided for in this subpart.
Sec. 776.78 Informal complaints.
Informal, anonymous, or ``hot line'' type complaints alleging
professional misconduct must be referred to appropriate authority (such
as the JAG Inspector General or the concerned supervisory attorney) for
inquiry. Such complaints are not, by themselves, cognizable under this
subpart but may, if reasonably confirmed, be the basis of a formal
complaint described in Sec. 776.79 of this part.
Sec. 776.79 The complaint.
(a) The complaint shall:
(1) Be in writing and be signed by the complainant;
(2) State that the complainant has personal knowledge, or has
otherwise received reliable information indicating, that:
(i) The covered attorney concerned is, or has been, engaged in
misconduct that demonstrates a lack of integrity, that constitutes a
violation of subpart B of this part or a failure to meet the ethical
standards of the profession; or
(ii) The covered attorney concerned is ethically, professionally, or
morally unqualified to perform his or her duties; and
(3) Contain a complete, factual statement of the acts or omissions
constituting the substance of the complaint, as well as a description of
any attempted resolution with the covered attorney concerned. Supporting
statements, if any, should be attached to the complaint.
(b) A complaint may be initiated by any person, including the
Administrative Law Division of the Office of JAG (JAG (13)), or the
Judge Advocate Research and Civil Law Branch, JA Division, HQMC (JAR).
Sec. 776.80 Initial screening and Rules Counsel.
(a) Complaints shall be forwarded to JAG(13) or, in cases involving
Marine Corps judge advocates or civil service and contracted civilian
attorneys who perform legal services under the cognizance and
supervision of Director, JA Division, HQMC, to JAR.
(b) JAG(13) and JAR shall log all complaints received and will
ensure that a copy is provided to the covered attorney who is the
subject of the complaint.
(c) The covered attorney concerned may elect to provide an initial
statement regarding the complaint for the Rules Counsel's consideration.
The covered attorney will promptly inform JAG(13) or JAR if he or she
intends to submit any such statement. At this
[[Page 528]]
screening stage, forwarding of the complaint to the Rules Counsel will
not be unduly delayed to await the covered attorney's submission.
(d) The Rules Counsel shall initially review the complaint, and any
statement submitted by the covered attorney complained of, to determine
whether it complies with the requirements set forth in Sec. 776.79 of
this part.
(1) Complaints that do not comply with the requirements may be
returned to the complainant for correction or completion, and
resubmission to JAG(13) or JAR. If the complaint is not corrected or
completed, and resubmitted within 30 days of the date of its return, the
Rules Counsel may close the file without further action. JAG (13) and
JAR will maintain copies of all correspondence relating to the return
and resubmission of a complaint, and shall notify the covered attorney
concerned if and when the Rules Counsel takes action to close the file.
(2) Complaints that comply with the requirements shall be further
reviewed by the Rules Counsel to determine whether the complaint:
(i) Establishes probable cause to believe that a violation of this
part or of the Judicial Code has occurred; or
(ii) Alleges ineffective assistance of counsel, or other violations
of subpart B of this part, as a matter of defense in a court-martial,
administrative separation, or nonjudicial punishment proceeding. If so,
the Rules Counsel shall forward a copy of the complaint to the proper
appellate authority for appropriate action and comment.
(e) The Rules Counsel shall close the file without further action if
the complaint does not establish probable cause to believe that a
violation has occurred. The Rules Counsel shall notify the complainant
and the covered attorney concerned that the file has been closed.
JAG(13) and JAR will maintain copies of all correspondence related to
the closing of the file.
(f) The Rules Counsel may close the file if there is a determination
that the complaint establishes probable cause but the violation is of a
minor or technical nature appropriately addressed through corrective
counseling. The Rules Counsel shall report any such decision to the JAG.
The Rules Counsel shall ensure the covered attorney concerned receives
appropriate counseling and shall notify the complainant and the covered
attorney concerned that the file has been closed. JAG(13) and JAR will
maintain copies of all correspondence related to the closing of the
file. The covered attorney concerned is responsible, under these
circumstances, to determine if his or her Federal, state, or local
licensing authority requires reporting of such action.
Sec. 776.81 Charges.
(a) If the Rules Counsel determines that there is probable cause to
believe that a violation of this part or of the Code of Judicial Conduct
has occurred, the Rules Counsel shall draft charges alleging violations
of this part or of the Code of Judicial Conduct and forward the charges,
together with the original complaint and any allied papers, as follows:
(1) In cases involving Marine Corps attorneys not serving as defense
counsel or attached to Navy units, to the officer exercising general
court-martial jurisdiction (OEGCMJ) over the charged covered attorney,
and request, on behalf of JAG, that the OEGCMJ appoint a covered
attorney (normally the concerned attorney's supervisor) to conduct a
preliminary inquiry into the matter;
(2) In all other cases, to the supervisory attorney in the charged
attorney's chain of command (or such other officer as JAG may
designate), and direct, on behalf of JAG, the supervisory attorney to
conduct a preliminary inquiry into the matter.
(b) The Rules Counsel shall provide a copy of the charges,
complaint, and any allied papers to the covered attorney against whom
the complaint is made and notify him or her that a preliminary inquiry
will be conducted. Service of complaints, charges, and other materials
shall be made by personal service, or by registered or certified mail
sent to the covered attorney's last known address reflected in official
Navy or Marine Corps records or in the records of the state bar(s) which
licensed the attorney to practice law.
[[Page 529]]
(c) The Rules Counsel shall also provide a copy of the charges to
the commanding officer, or equivalent, of the covered USG attorney
concerned if the complaint involves a covered USG attorney on active
duty or in civilian Federal service.
(d) The Rules Counsel shall also forward a copy of the charges as
follows:
(1) In cases involving Navy or Marine Corps judge advocates serving
in Naval Legal Service Command (NLSC) units, to Vice Commander, NLSC;
(2) In cases involving Navy attorneys serving in Marine Corps units,
or involving Marine Corps attorneys serving in Navy units, to the
Commandant of the Marine Corps (Attn: JA);
(3) In cases involving members of the Navy-Marine Corps Trial
Judiciary, to the Trial Judiciary Chief Judge; and
(4) To the appropriate military service attorney discipline section
if the complaint involves covered attorneys certified by the Judge
Advocates General/Chief Counsel of the other uniformed services.
Sec. 776.82 Interim suspension.
(a) Where the Rules Counsel determines there is probable cause to
believe that a covered attorney has committed misconduct or other
violations of this part, and poses a substantial threat of irreparable
harm to his or her clients or the orderly administration of military
justice, the Rules Counsel shall so advise the JAG. Examples of when a
covered attorney may pose a ``substantial threat of irreparable harm''
include:
(1) When charged with the commission of a crime which involves moral
turpitude or reflects adversely upon the covered attorney's fitness to
practice law, and where substantial evidence exists to support the
charge;
(2) When engaged in the unauthorized practice of law (e.g., failure
to maintain good standing in accordance with Sec. 776.71 of this part);
or
(3) Where unable to represent client interests competently.
(b) Upon receipt of information from the Rules Counsel, JAG may
order the covered attorney to show cause why he or she should not face
interim suspension, pending completion of a professional responsibility
investigation. The covered attorney shall have 10 calendar days in which
to respond.
(c) If an order to show cause has been issued under paragraph (b) of
this section, and the period for response has passed without a response,
or after consideration of any response and finding sufficient evidence
demonstrating probable cause to believe that the covered attorney is
guilty of misconduct and poses a substantial threat of irreparable harm
to his or her client or the orderly administration of military justice,
JAG may direct an interim suspension of the covered attorney's
certification under Articles 26(b) or 27(b), UCMJ, or R.C.M. 502(d)(3),
or the authority to provide legal assistance, pending the results of the
investigation and final action under this instruction.
(d) Within 10 days of JAG's decision to impose an interim
suspension, the covered attorney may request an opportunity to be heard
before an impartial officer designated by JAG. Where so requested, that
opportunity will be scheduled within 10 calendar days of the request.
The designated officer shall receive any information that the covered
attorney chooses to submit on the limited issue of whether to continue
the interim suspension. The designated officer shall submit a
recommendation to JAG within 5 calendar days of conclusion.
(e) A covered attorney may, based upon a claim of changed
circumstances or newly discovered evidence, petition for dissolution or
amendment of JAG's imposition of interim suspension.
(f) Any professional responsibility investigation involving a
covered attorney who has been suspended pursuant to this section shall
proceed and be concluded without appreciable delay. However, JAG may
determine it necessary to await completion of a related criminal
investigation or proceeding, or completion of a professional
responsibility action initiated by other licensing authorities. In such
cases, JAG shall cause the Rules Counsel to so notify the covered
attorney under interim suspension. Where necessary, continuation of the
interim suspension shall be reviewed by JAG every 6 months.
[[Page 530]]
Sec. 776.83 Preliminary inquiry.
(a) The purpose of the preliminary inquiry is to determine whether,
in the opinion of the officer appointed to conduct the preliminary
inquiry (PIO), the questioned conduct occurred and, if so, whether it
constitutes a violation of this part or the Code of Judicial Conduct.
The PIO is to recommend appropriate action in cases of substantiated
violations.
(b) Upon receipt of the complaint and charges, the PIO shall
promptly investigate the charges, generally following the format and
procedures set forth in the Manual of the Judge Advocate General for the
conduct of command investigations. Reports of relevant investigations by
other authorities including, but not limited to, State bar associations
may be used. The PIO should also:
(1) Identify and obtain sworn affidavits or statements from all
relevant and material witnesses to the extent practicable;
(2) Identify, gather, and preserve all other relevant and material
evidence; and
(3) Provide the covered attorney concerned an opportunity to review
all evidence, affidavits, and statements collected and a reasonable
period of time (normally not exceeding 7 days) to submit a written
statement or any other written material that the covered attorney wishes
considered.
(c) The PIO may appoint and use such assistants as may be necessary
to conduct the preliminary inquiry.
(d) The PIO shall personally review the results of the preliminary
inquiry to determine whether, by a preponderance of the evidence, a
violation of this part or of the Judicial Code has occurred.
(1) If the PIO determines that no violation has occurred or that the
violation is minor or technical in nature and warrants only corrective
counseling, then he or she may recommend that the file be closed.
(2) If the PIO determines by a preponderance of the evidence that a
violation did occur, and that corrective action greater than counseling
may be warranted, he or she shall then recommend what further action is
deemed appropriate.
(e) The PIO shall forward (via the OEGCMJ in appropriate Marine
cases) the results of the preliminary inquiry to the Rules Counsel,
providing copies to the covered attorney concerned and all parties to
whom the charges were previously sent.
(f) The Rules Counsel shall review all preliminary inquiries. If the
report is determined by the Rules Counsel to be incomplete, the Rules
Counsel shall return it to the PIO, or to another inquiry officer, for
further or supplemental inquiry. If the report is complete, then:
(1) If the Rules Counsel determines, either consistent with the PIO
recommendation or through the Rules Counsel's own review of the report,
that a violation of this part or Code of Judicial Conduct has not
occurred and that further action is not warranted, the Rules Counsel
shall close the file and notify the complainant, the covered attorney
concerned, and all officials previously provided copies of the
complaint. JAG(13) and/or JAR, as appropriate, will maintain copies of
all correspondence related to the closing of the file.
(2) If the Rules Counsel determines, either consistent with a PIO
recommendation or through the Rules Counsel's own review of the report,
that a violation of this part has occurred but that the violation is of
a minor or technical nature, then the Rules Counsel may determine that
corrective counseling is appropriate and close the file. The Rules
Counsel shall report any such decision to the JAG. The Rules Counsel
shall ensure that the covered attorney concerned receives appropriate
counseling and shall notify the complainant, the covered attorney
concerned, and all officials previously provided copies of the complaint
that the file has been closed. JAG(13) and/or JAR, as appropriate, will
maintain copies of all correspondence related to the closing of the
file. The covered attorney concerned is responsible, under these
circumstances, to determine if his or her Federal, state, or local
licensing authority requires reporting such action.
(3) If the Rules Counsel determines, either consistent with a PIO
recommendation or through the Rules
[[Page 531]]
Counsel's own review of the report, that further professional discipline
or corrective action may be warranted, the Rules Counsel shall:
(i) In cases involving Marine Corps attorneys not serving as defense
counsel or attached to Navy units, request, on behalf of JAG, that the
subject attorney's OEGCMJ appoint a disinterested covered attorney
(normally senior to the covered attorney complained of and not
previously involved in the case) to conduct an ethics investigation into
the matter;
(ii) In all other cases, appoint, on behalf of JAG, a disinterested
covered attorney (normally senior to the covered attorney complained of
and not previously involved in the case) to conduct an ethics
investigation; and
(iii) Notify those supervisory attorneys listed in Sec. 776.81(c)
and Sec. 776.81(d) of this part.
Sec. 776.84 Ethics investigation.
(a) Whenever an ethics investigation is initiated, the covered
attorney concerned will be so notified, in writing, by the Rules
Counsel.
(b) The covered attorney concerned will be provided written notice
of the following rights in connection with the ethics investigation:
(1) To request a hearing before the investigating officer (IO);
(2) To inspect all evidence gathered;
(3) To present written or oral statements or materials for
consideration;
(4) To call witnesses at his or her own expense (local military
witnesses should be made available at no cost);
(5) To be assisted by counsel (see paragraph (c) of this section);
(6) To challenge the IO for cause (such challenges must be made in
writing and sent to the Rules Counsel via the challenged officer); and
(7) To waive any or all of these rights.
(c) The covered attorney may be represented by counsel at the
hearing. Such counsel may be:
(1) A civilian attorney retained at no expense to the Government;
or,
(2) In the case of a covered USG attorney, another USG attorney:
(i) Detailed by the cognizant Naval Legal Service Office (NLSO), Law
Center, or Legal Service Support Section (LSSS); or
(ii) Requested by the covered attorney concerned, if such counsel is
attached to the cognizant NLSO, Law Center, LSSS, or to a Navy or Marine
Corps activity located within 100 miles of the hearing site at the time
of the scheduled hearing, and if such counsel is reasonably available,
as determined by the requested counsel's reporting senior in his or her
sole discretion. There is no right to detailed counsel if requested
counsel is made available.
(d) If a hearing is requested, the IO will conduct the hearing after
reasonable notice to the covered attorney concerned. The hearing will
not be unreasonably delayed. The hearing is not adversarial in nature
and there is no right to subpoena witnesses. Rules of evidence do not
apply. The covered attorney concerned or his or her counsel may question
witnesses that appear. The proceedings shall be recorded but no
transcript of the hearing need be made. Evidence gathered during, or
subsequent to, the preliminary inquiry and such additional evidence as
may be offered by the covered attorney shall be considered.
(e) The IO may appoint and use such assistants as may be necessary
to conduct the ethics investigation.
(f) The IO shall prepare a report which summarizes the evidence, to
include information presented at any hearing.
(1) If the IO believes that no violation has occurred or that the
violation is minor or technical in nature and warrants only corrective
counseling, then he or she may recommend that the file be closed.
(2) If the IO believes that a violation did occur, and that
corrective action greater than counseling is warranted, he or she shall
then recommend what further action is deemed appropriate.
(g) The IO shall forward the ethics investigation, including the
IO's recommendations, to the Rules Counsel, as follows:
(1) In cases involving Navy or Marine Corps attorneys serving with
NLSC units, via Vice Commander, NLSC;
(2) In cases involving Navy attorneys serving with Marine Corps
units, via
[[Page 532]]
the Commandant of the Marine Corps (Attn: JA);
(3) In cases involving Navy or Marine Corps attorneys serving in
subordinate Navy fleet or staff billets, via the fleet or staff judge
advocate attached to the appropriate second-echelon commander;
(4) In cases involving members of the Navy-Marine Corps Trial
Judiciary, via the Trial Judiciary Chief Judge;
(5) In cases involving Marine Corps attorneys serving in defense
billets, via the Chief Defense Counsel of the Marine Corps;
(6) In cases involving Marine Corps attorneys not serving in defense
counsel billets or in Navy units, via the OEGCMJ over the concerned
attorney; and
(7) In cases involving covered attorneys certified by the Judge
Advocates General/Chief Counsel of the other U.S. Armed Forces, via the
appropriate military service attorney discipline section of that U.S.
Armed Force.
(h) The Rules Counsel shall review all ethics investigations. If the
report is determined by the Rules Counsel to be incomplete, the Rules
Counsel shall return it to the IO, or to another inquiry officer, for
further or supplemental inquiry. If the report is complete, then:
(1) If the Rules Counsel determines, either consistent with the IO
recommendation or through the Rules Counsel's own review of the
investigation, that a violation of this part or Code of Judicial Conduct
has not occurred and that further action is not warranted, the Rules
Counsel shall close the file and notify the complainant, the covered
attorney concerned, and all officials previously provided copies of the
complaint. JAG(13) and/or JAR, as appropriate, will maintain copies of
all correspondence related to the closing of the file.
(2) If the Rules Counsel determines, either consistent with the IO
recommendation or through the Rules Counsel's own review of the
investigation, that a violation of this part or Code of Judicial Conduct
has occurred but that the violation is of a minor or technical nature,
then the Rules Counsel may determine that corrective counseling is
appropriate and close the file. The Rules Counsel shall report any such
decision to the JAG. The Rules Counsel shall ensure that the covered
attorney concerned receives appropriate counseling and shall notify the
complainant, the covered attorney concerned, and all officials
previously provided copies of the complaint that the file has been
closed. JAG(13) and/or JAR, as appropriate, will maintain copies of all
correspondence related to the closing of the file. The covered attorney
concerned is responsible, under these circumstances, to determine if his
or her Federal, state, or local licensing authority requires reporting
such action.
(3) If the Rules Counsel believes, either consistent with the IO
recommendation or through the Rules Counsel's own review of the
investigation, that professional disciplinary action greater than
corrective counseling is warranted, the Rules Counsel shall forward the
investigation, with recommendations as to appropriate disposition, to
JAG.
Sec. 776.85 Effect of separate proceeding.
(a) For purposes of this section, the term ``separate proceeding''
includes, but is not limited to, court-martial, non-judicial punishment,
administrative board, or similar civilian or military proceeding.
(b) In cases in which a covered attorney is determined, at a
separate proceeding determined by the Rules Counsel to afford procedural
protection equal to that provided by a preliminary inquiry under this
instruction, to have committed misconduct which forms the basis for
ethics charges under this instruction, the Rules Counsel may dispense
with the preliminary inquiry and proceed directly with an ethics
investigation.
(c) In those cases in which a covered attorney is determined to have
committed misconduct at a separate proceeding which the Rules Counsel
determines has afforded procedural protection equal to that provided by
an ethics investigation under this instruction, the previous
determination regarding the underlying misconduct is res judicata with
respect to that issue during an ethics investigation. A subsequent
ethics investigation based on
[[Page 533]]
such misconduct shall afford the covered attorney a hearing into whether
the underlying misconduct constitutes a violation of this part, whether
the violation affects his or her fitness to practice law, and what
sanctions, if any, are appropriate.
(d) The Rules Counsel may dispense with the preliminary inquiry and
ethics investigation, and if warranted, recommend to JAG that the
covered attorney concerned be disciplined, consistent with this subpart,
after providing the covered attorney concerned written notice and an
opportunity to be heard in writing, in those cases in which a covered
attorney has been:
(1) Decertified or suspended from the practice of law or otherwise
subjected to professional responsibility discipline by the Judge
Advocate General of another Military Department;
(2) Disbarred or suspended from the practice of law or otherwise
subjected to professional responsibility discipline by the Court of
Appeals for the Armed Forces or by any Federal, State, or local bar; or
(3) Convicted of a felony (or any offense punishable by one year or
more of imprisonment) in a civilian or military court which, in the
opinion of the Rules Counsel, renders the attorney unqualified or
incapable of properly or ethically representing the DON or a client when
the Rules Counsel has determined that the attorney was afforded
procedural protection equal to that provided by an ethics investigation
under this instruction.
Sec. 776.86 Action by JAG.
(a) JAG is not bound by the recommendation rendered by the Rules
Counsel, IO, PIO, or any other interested party, but will base any
action on the record as a whole. Nothing in this instruction limits JAG
authority to suspend from the practice of law in DON matters any covered
attorney alleged or found to have committed professional misconduct or
violated this part, either in DON or civilian proceedings.
(b) JAG may, but is not required to, refer any case to the
Professional Responsibility Committee for an advisory opinion on
interpretation of subpart B of this part or its application to the facts
of a particular case.
(c) Upon receipt of the ethics investigation, and any requested
advisory opinion, JAG will take such action as JAG considers appropriate
in JAG's sole discretion. JAG may, for example:
(1) Direct further inquiry into specified areas.
(2) Where determining the allegations to be unfounded, or that no
further action is warranted, direct the Rules Counsel to make
appropriate file entries and to notify the complainant, covered attorney
concerned, and all interested parties of such determination.
(3) Where determining the allegations to be supported by clear and
convincing evidence, take appropriate corrective action including, but
not limited to:
(i) Limiting the covered attorney to practice under direct
supervision of a supervisory attorney;
(ii) Limiting the covered attorney to practice in certain areas or
forbidding him or her from practice in certain areas;
(iii) Suspending or revoking, for a specified or indefinite period,
the covered attorney's authority to provide legal assistance;
(iv) Where finding that the misconduct so adversely affects the
covered attorney's continuing ability to practice law in the naval
service or that the misconduct so prejudices the reputation of the DON
legal community, the administration of military justice, the practice of
law under the cognizance of JAG, or the armed services as a whole, that
certification under Article 27(b), UCMJ (10 U.S.C. 827(b)), or R.C.M.
502(b)(3), MCM, 1998, should be suspended or is no longer appropriate,
directing such certification to be suspended for a prescribed or
indefinite period or to be removed permanently;
(v) In the case of a judge, where finding that the misconduct so
prejudices the reputation of military trial and appellate judges that
certification under Article 26(b), UCMJ (10 U.S.C. 826(b)), should be
suspended or is no longer appropriate, directing such certification to
be suspended for a prescribed or indefinite period or to be removed
permanently; and
[[Page 534]]
(vi) Directing the Rules Counsel to contact appropriate authorities
such as the Chief of Naval Personnel or the Commandant of the Marine
Corps so that pertinent entries in appropriate DON records may be made;
notifying the complainant, covered attorney concerned, and any officials
previously provided copies of the complaint; and notifying appropriate
tribunals and authorities of any action taken to suspend, decertify, or
limit the practice of a covered attorney as counsel before courts-
martial or the U.S. Navy-Marine Corps Court of Appeals, administrative
boards, as a legal assistance attorney, or in any other legal proceeding
or matter conducted under JAG cognizance and supervision.
Sec. 776.87 Finality.
Any action taken by JAG is final, subject to any remedies afforded
by Navy Regulations or any other regulation to the covered attorney
concerned.
Sec. 776.88 Report to licensing authorities.
Upon determination by JAG that a violation of the Rules or the Code
of Judicial Conduct has occurred, JAG may cause the Rules Counsel to
report that fact to the Federal, State, or local bar or other licensing
authority of the covered attorney concerned. If so reported, notice to
the covered attorney shall be provided by the Rules Counsel. The JAG's
decision in no way diminishes a covered attorney's responsibility to
report adverse professional disciplinary action as required by the
attorney's Federal, State, and local bar or other licensing authority.
Subpart D [Reserved]
PARTS 777-799 [RESERVED]