[Federal Register Volume 73, Number 234 (Thursday, December 4, 2008)]
[Proposed Rules]
[Pages 73896-73900]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-28706]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
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 

  Federal Register / Vol. 73, No. 234 / Thursday, December 4, 2008 / 
Proposed Rules  

[[Page 73896]]



DEPARTMENT OF DEFENSE

Office of the Secretary

[DoD-2008-OS-0085; RIN 0790-AI34]

32 CFR Part 185


Defense Support of Civil Authorities (DSCA)

AGENCY: Department of Defense.

ACTION: Proposed rule.

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SUMMARY: This proposed rule establishes policy and assigns 
responsibilities for DSCA, supplements regulations regarding military 
support for civilian law enforcement, and sets forth policy guidance 
for the execution and oversight of DSCA when requested by civil 
authorities and approved by the appropriate DoD authority, or as 
directed by the President, within the United States, including the 
District of Columbia, the Commonwealth of Puerto Rico, the U.S. Virgin 
Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana 
Islands, and any territory or possession of the United States or any 
political subdivision thereof. Legislative changes over the years have 
made the existing guidance outdated and inconsistent with current law 
and the current organizational structure of the Department of Defense. 
This proposed rule will allow civil authorities access to the correct 
procedures when they are seeking assistance from the Department by 
establishing updated policy guidance and assigning the correct 
responsibilities within the Department for the Defense for support of 
civil authorities in response to requests for assistance for domestic 
emergencies, designated law enforcement support, special events, and 
other domestic activities. Interested persons are invited to submit 
comments on this proposed rule that will be considered prior to 
promulgation of the final rule.

DATES: Comments must be received by February 2, 2009.

ADDRESSES: You may submit comments, identified by docket number and or 
RIN number and title, by any of the following methods:
     Federal Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Federal Docket Management System Office, 1160 
Defense Pentagon, Washington, DC 20301-1160.
    Instructions: All submissions received must include the agency name 
and docket number or Regulatory Information Number (RIN) for this 
Federal Register document. The general policy for comments and other 
submissions from members of the public is to make these submissions 
available for public viewing on the Internet at http://www.regulations.gov as they are received without change, including any 
personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT: Mr. Richard Chavez, 703-697-5415.

SUPPLEMENTARY INFORMATION:

Executive Order 12866, ``Regulatory Planning and Review''

    It has been certified that 32 CFR part 185 does not:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy; a section of the 
economy; productivity; competition; jobs; the environment; public 
health or safety; or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another Agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs, or the rights and obligations of 
recipients thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
this Executive Order.

Sec. 202, Pub. L. 104-4, ``Unfunded Mandates Reform Act''

    It has been certified that 32 CFR part 185 does not contain a 
Federal mandate that may result in the expenditure by State, local and 
tribal governments, in aggregate, or by the private sector, of $100 
million or more in any 1 year.

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)

    It has been certified that 32 CFR part 185 is not subject to the 
Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if 
promulgated, have a significant economic impact on a substantial number 
of small entities. This rule establishes policy and assigns 
responsibilities within DoD for DSCA, supplements regulations regarding 
military support for civilian law enforcement, and sets forth policy 
guidance for the execution and oversight of DSCA when requested by 
civil authorities and approved by the appropriate DoD authority, or as 
directed by the President. Therefore, it is not expected that small 
entities will be affected because there will be no economically 
significant regulatory requirements placed upon them.

Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)

    It has been certified that 32 CFR part 185 does not impose 
reporting or recordkeeping requirements under the Paperwork Reduction 
Act of 1995.

Executive Order 13132, ``Federalism''

    It has been certified that 32 CFR part 185 does not have federalism 
implications, as set forth in Executive Order 13132. This rule does not 
have substantial direct effects on:
    (1) The States;
    (2) The relationship between the National Government and the 
States; or
    (3) The distribution of power and responsibilities among the 
various levels of Government.

List of Subjects in 32 CFR Part 185

    Armed forces, Civil defense.

    Accordingly, the Department of Defense proposes to revise 32 CFR 
part 185 to read as follows:

PART 185--DEFENSE SUPPORT OF CIVIL AUTHORITIES (DSCA)

Sec.
185.1 Purpose.
185.2 Applicability and scope.
185.3 Definitions.
185.4 Policy.
185.5 Responsibilities.

    Authority: 50 U.S.C. 2251, as amended; E.O. 12148, 3 CFR 1979 
Comp. p. 412.


Sec.  185.1  Purpose.

    This part:

[[Page 73897]]

    (a) Establishes policy and assigns responsibilities for Defense 
Support of Civil Authorities (DSCA) which is also referred to as civil 
support.
    (b) Supplements the regulations required by section 375 of title 
10, United States Code (U.S.C.), regarding military support for 
civilian law enforcement.
    (c) Sets forth policy guidance for the execution and oversight of 
DSCA when requested by civil authorities and approved by the 
appropriate DoD authority, or as directed by the President, within the 
United States, including the District of Columbia, the Commonwealth of 
Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, the 
Commonwealth of the Northern Mariana Islands, and any territory or 
possession of the United States or any political subdivision thereof.


Sec.  185.2  Applicability and scope.

    This part:
    (a) Applies to the Office of the Secretary of Defense, the Military 
Departments, the Office of the Chairman of the Joint Chiefs of Staff, 
the Joint Staff, the Combatant Commands, the Office of the Inspector 
General of the Department of Defense, the Defense Agencies, the DoD 
Field Activities, and all other organizational entities within the 
Department of Defense (hereafter referred to collectively as the ``DoD 
Components'').
    (b) Applies to the Army National Guard (ARNG) and the Air National 
Guard (ANG) in title 32 status.
    (c) Applies to all DSCA (except the specific forms of DSCA listed 
in paragraph (d) of this section), including:
    (1) Military community affairs programs or innovative readiness 
training (formerly called ``civil-military cooperative action 
programs'') (see DoD Directive 1100.20).\1\
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    \1\ Available by downloading at http://www.dtic.mil/whs/directives/corres/html/110020.htm.
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    (2) Mutual or automatic aid (see chapter 15A of title 42 U.S.C.).
    (3) DoD fire and emergency services programs (see DoD Instruction 
6055.06).\2\
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    \2\ Available by downloading at http://www.dtic.mil/whs/directives/corres/html/605506.htm.
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    (4) United States Army Corps of Engineers (USACE) activities as the 
Department of Defense Coordinating and Primary Agency for the National 
Response Framework, Emergency Support Function 3, Public Works 
and Engineering.
    (5) Activities performed by the Civil Air Patrol in support of 
civil authorities when approved by the Air Force as auxiliary missions.
    (6) Support provided by the National Guard, in a federally funded 
title 32 status to local, State, tribal, and/or Federal civil agencies 
when employed by a Governor, or provided under Emergency Management 
Assistance Compacts when that support involves use of personnel 
operating under the provisions of title 32 U.S.C.
    (7) Special Events in accordance with DoD Directive 2000.15 \3\ 
and/or applicable law.
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    \3\ Available by downloading at http://www.dtic.mil/whs/directives/corres/html/200015.htm.
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    (d) Does not apply to the following activities conducted in support 
of civil authorities:
    (1) Support in response to foreign disasters provided in accordance 
with DoD Directive 5100.46.\4\
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    \4\ Available by downloading at http://www.dtic.mil/whs/directives/corres/html/510046.htm.
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    (2) Joint investigations conducted by the Inspector General of the 
Department of Defense, the Defense Criminal Investigative Service, and 
the military criminal investigative organizations with civil law 
enforcement agencies on matters within their respective jurisdictions 
using their own forces and equipment.
    (3) Detail of DoD personnel to duty outside the Department of 
Defense in accordance with DoD Instruction 1000.17.\5\
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    \5\ Available by downloading at http://www.dtic.mil/whs/directives/corres/pdf/100017p.pdf.
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    (4) Support provided by State Defense Forces and National Guard 
activities not covered by paragraph (c)(6) of this section.
    (5) Counternarcotics operations.
    (6) Support provided by the United States Army Corps of Engineers 
when accomplishing missions and responsibilities under Pub. L. 84-99, 
as amended.
    (7) Intelligence assistance provided by DoD intelligence and 
counterintelligence components (see DoD Directive 5240.01,\6\ Executive 
Orders 12333 and 13388, DoD 5240.1-R,\7\ and other applicable laws and 
regulations).
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    \6\ Available by downloading at http://www.dtic.mil/whs/directives/corres/pdf/524001p.pdf.
    \7\ Available by downloading at http://www.dtic.mil/whs/directives/corres/pdf/524001r.pdf.
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    (8) Military community relations programs and activities 
administered by the Assistant Secretary of Defense for Public Affairs 
(see DoD Directive 5410.18 \8\ and DoD Instruction 5410.19 \9\).
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    \8\ Available by downloading at http://www.dtic.mil/whs/directives/corres/pdf/541018p.pdf.
    \9\ Available by downloading at http://www.dtic.mil/whs/directives/corres/pdf/541019p.pdf.
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    (9) Sensitive support in accordance with DoD Directive S-
5210.36.\10\
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    \10\ Document is classified and copies maybe requested by 
contacting USD(I), [email protected].
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Sec.  185.3  Definitions.

    Civil Authorities. See Joint Publication 1-02.\11\
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    \11\ Available by downloading at http://www.dtic.mil/doctrine/jel/new_pubs/jp1_02.pdf.
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    Civil Disturbances. See Joint Publication 1-02.
    Civil Support. See Joint Publication 1-02. Also known as Defense 
Support of Civil Authorities (DSCA).
    Defense Domestic Crisis Manager. The DoD official responsible for 
overseeing, advising, and making recommendations to the Secretary of 
Defense on the use of resources and DoD personnel needed to prevent or 
respond to a potential or actual domestic crisis. The Assistant 
Secretary of Defense for Homeland Defense and Americas' Security 
Affairs (ASD(HD&ASA)) serves as the Defense Domestic Crisis Manager.
    Defense Support of Civil Authorities (DSCA). Support provided by 
U.S. Federal military forces, National Guard forces performing duty 
under title 32, U.S.C., DoD civilians, DoD contract personnel, and DoD 
component assets, in response to requests for assistance from civil 
authorities for special events, domestic emergencies, designated law 
enforcement support, and other domestic activities. Support provided by 
National Guard forces performing duty under title 32, U.S.C., is 
considered DSCA but is conducted as a State-directed action. Also known 
as Civil Support (CS).
    Imminently Serious Conditions. Emergency conditions in which, in 
the judgment of a military commander or responsible DoD civilian 
official, immediate and possibly serious danger threatens the public 
and prompt action is needed to save lives, to safeguard public health 
or safety, or to prevent or mitigate great property or environmental 
damage. Under these conditions, timely prior authority from higher 
headquarters to provide DSCA may not be possible before action is 
necessary for effective response.
    Responsible DoD Civilian. For purposes of DSCA, the head of a DoD 
Component (or designee) or other DoD civilian official or National 
Guard Federal technician who have authority

[[Page 73898]]

over DoD assets that may be used for a DSCA response.
    Special Event. An international or domestic event, contest, 
activity, or meeting, which by its very nature, or by specific 
statutory or regulatory authority, may require security, safety, and/or 
other logistical support or assistance fro the Department of Defense.


Sec.  185.4  Policy.

    It is DoD policy that:
    (a) This part shall be implemented consistent with national 
security objectives and military readiness.
    (b) Unless expressly stated otherwise, the provisions of this part 
should not be construed to rescind any existing authorities of the 
Heads of DoD Components, commanders, and/or responsible DoD civilians 
to provide DSCA in accordance with existing laws, Department of Defense 
issuances, and Secretary of Defense approved orders.
    (c) DSCA is initiated by a request for DoD assistance from a 
civilian agency or is ordered by the President or Secretary of Defense.
    (d) All requests for DSCA shall be written and include a commitment 
to reimburse the Department of Defense. Waivers or exceptions to 
reimbursement must be consistent with the law and/or DoD policies. For 
assistance provided under paragraph (g) of this section, civil 
authorities shall be informed that oral requests for assistance in an 
emergency must be followed by a written request at the earliest 
available opportunity.
    (e) All requests for assistance from civil authorities shall be 
evaluated for legality, lethality, risk, cost (including the source of 
funding and the effect on the DoD budget), appropriateness, and effect 
on readiness.
    (f) DSCA plans shall be compatible with the National Response 
Framework; the National Incident Management System; all contingency 
plans for operations in the locations listed in Sec.  185.1(c) of this 
part; and any other national plans (approved by the President or 
Secretary of Defense) or DoD issuances governing DSCA operations.
    (g) Commanders, (including National Guard Commanders), heads of DoD 
Components and/or responsible DoD civilian officials may provide 
Immediate Response to a request for assistance from a civilian 
authority, under imminently serious conditions. This Immediate Response 
Authority is exercised when time does not permit approval from higher 
headquarters. Responsible DoD civilian officials may employ the 
resources under their control, subject to any supplemental direction 
provided by higher headquarters, and provide those resources to save 
lives, to safeguard public health or safety, or to prevent or mitigate 
great property or environmental damage.
    (1) The DoD official directing a response under Immediate Response 
Authority shall immediately notify the National Military Command Center 
(NMCC), through the chain of command, of the details of the response. 
National Guard officials shall inform the NMCC through the National 
Guard Bureau. The NMCC will inform appropriate DoD components.
    (2) Immediate Response Authority ends when the necessity giving 
rise to the response is no longer present (e.g., when there are 
sufficient resources available from State, local, and other Federal 
agencies to respond adequately), when the initiating DoD or National 
Guard official or a higher authority directs an end to the response, or 
when an appropriate authority approves a request from another Federal 
department or agency based on other authorities. The DoD or National 
Guard official directing a response under Immediate Response Authority 
shall reassess whether there remains a necessity for DoD to respond 
under this authority as soon as practicable but, if immediate response 
activities have not yet ended, not later than 72 hours after resources 
have been employed.
    (3) Support provided under Immediate Response Authority should be 
provided on a cost-reimbursable basis where appropriate or legally 
required but will not be delayed or denied based on the inability or 
unwillingness of the requester to make a commitment to reimburse the 
Department of Defense.
    (h) Federal military forces shall not be used to quell civil 
disturbances or perform civilian law enforcement functions (e.g., 
search, seizure, arrest, and surveillance) unless specifically 
authorized by the President or the Secretary of Defense in accordance 
with applicable law (e.g., chapter 15 of title 10, U.S.C.).
    (i) Only the Secretary of Defense, or a designated representative, 
may approve requests from civil authorities for defense assistance 
during civil disturbances; defense response to chemical, biological, 
radiological, nuclear, and/or high yield explosive events; defense 
assets when there is a potential for lethality (unless otherwise 
authorized in law or DoD policy); and potentially lethal support of 
civilian law enforcement agencies. Lethal support includes: loans of 
arms; vessels, or aircraft; or ammunition. It also includes: all 
requests for assistance under section 382 of title 10 and section 831 
of title 18, U.S.C.; all support to counterterrorism operations; and 
all support to law enforcement when there is a potential for 
confrontation between law enforcement and specifically identified 
civilian individuals or groups.
    (j) Only the Secretary of Defense, or a designated representative, 
may authorize DoD Components to procure and maintain supplies, 
materiel, and/or equipment exclusively for providing DSCA.
    (k) Programming and budgeting for DSCA shall be in accordance with 
existing laws, Department of Defense issuances, and Secretary of 
Defense authorization.
    (l) Federal military forces employed for DSCA activities shall 
remain under Federal military command and control at all times.
    (m) Special event support to non-governmental organizations is a 
DSCA activity.


Sec.  185.5  Responsibilities.

    (a) The Under Secretary of Defense for Policy (USD(P)) shall 
facilitate the coordination of DoD policy governing DSCA with Federal 
Departments and Agencies, State agencies, and the DoD Components, as 
required.
    (b) The Assistant Secretary of Defense for Homeland Defense and 
Americas' Security Affairs (ASD(HD&ASA)), under the authority, 
direction, and control of the USD(P) exercising policy oversight of 
homeland defense activities of the Department of Defense and performing 
other duties as directed by the Secretary of Defense shall:
    (1) Serve as the principal civilian advisor to the Secretary of 
Defense and the USD(P) on DSCA.
    (2) Serve as the Defense Domestic Crisis Manager in accordance with 
DoD Directive 3020.44.\12\
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    \12\ Available by downloading at http://www.dtic.mil/whs/directives/corres/pdf/302044p.pdf.
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    (3) Serve as approval authority for requests for assistance from 
civil authorities sent to the Secretary of Defense, except for those 
items retained in section 185.4(h) and (i) of this part, or delegated 
to other officials. Such matters shall be coordinated with the Chairman 
of the Joint Chiefs of Staff. In the absence of the ASD(HD&ASA), the 
Principal Deputy Assistant Secretary of Defense for Homeland Defense 
and Americas' Security Affairs may exercise the authority of the 
ASD(HD&ASA) to approve such requests. This authority may not be further 
delegated. The

[[Page 73899]]

Secretary of Defense shall be notified immediately of the use of this 
authority.
    (4) Develop, coordinate, and oversee the implementation of DoD 
policy for DSCA and shall:
    (i) Through the Chairman of the Joint Chiefs of Staff as it 
pertains to DSCA matters, monitor the activation, deployment, and 
employment of Federal military forces (including Reserve Component 
forces), the National Guard, DoD civilian personnel, and all 
facilities, equipment, fiscal accounts, supplies, and services owned 
by, controlled by, or under the jurisdiction of a DoD Component in 
response to requests for DSCA and for Department of Defense support to 
special events; and provide oversight of DSCA training, exercises, and 
resources.
    (ii) In coordination with the General Counsel of the Department of 
Defense, develop policies and procedures for DSCA support to civil law 
enforcement authorities; coordinate long-range policies and procedures 
that govern the provision of non-emergency support to civilian law 
enforcement agencies; promote Department of Defense cooperation with 
public safety agencies; and ensure that assistance is in compliance 
with applicable law, Presidential Directives, Executive orders, and 
Department of Defense policy.
    (iii) Ensure that information relating to all aspects of DSCA 
receives the broadest possible dissemination utilizing all approved 
media as appropriate and in accordance with Department of Defense 
Directive 8320.02.\13\
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    \13\ Available by downloading at http://www.dtic.mil/whs/directives/corres/pdf/832002p.pdf.
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    (c) The Assistant Secretary of Defense for Special Operations and 
Low Intensity Conflict and Interdependent Capabilities, under the 
authority, direction, and control of the USD(P), shall support planning 
by the Defense Domestic Crisis Manager during DSCA operations, as 
required.
    (d) The Under Secretary of Defense (Comptroller)/Chief Financial 
Officer shall establish policies and procedures to ensure timely 
reimbursement to the Department of Defense for reimbursable DSCA 
activities.
    (e) The Under Secretary of Defense for Personnel and Readiness 
(USD(P&R)) shall:
    (1) Assist the ASD(HD&ASA) by providing recommendations, guidance, 
and support for all domestic crisis situations or emergencies that may 
require health or medical-related DSCA, including situations involving 
coordination with the components of the National Disaster Medical 
System.
    (2) Assist the ASD(HD&ASA) by providing recommendations, guidance, 
and support on the use of the Reserve Components to perform DSCA 
missions.
    (3) Identify, monitor, and oversee the development of integrated 
DSCA training capabilities and the integration of these training 
capabilities into exercises and training to build and sustain DSCA 
readiness.
    (f) The Assistant Secretary of Defense for Reserve Affairs, under 
the authority, direction, and control of USD(P&R), shall assist the 
ASD(HD&ASA) by providing recommendations, guidance, and support on the 
use of the Reserve Components to perform DSCA missions.
    (g) The Secretaries of the Military Departments shall:
    (1) Support DSCA operations as directed and in accordance with this 
Directive, and shall ensure the readiness of the Military Departments 
to execute plans for DSCA.
    (2) Ensure compliance with financial management guidance related to 
support provided for DSCA operations, including guidance related to 
tracking costs and seeking reimbursement.
    (h) The Chairman of the Joint Chiefs of Staff shall:
    (1) Advise the Secretary of Defense on the effects of requests for 
DSCA on national security and military readiness.
    (2) Identify and coordinate available resources for DSCA requests 
and release related execute and deployment orders when approved by the 
Secretary of Defense.
    (3) Incorporate DSCA into joint training and exercise programs in 
consultation with the Department of Homeland Security, other 
appropriate Federal Departments and Agencies, and the National Guard 
Bureau.
    (i) The Commanders of Combatant Commands with DSCA responsibilities 
in accordance with the Unified Command Plan shall:
    (1) Through the Chairman of the Joint Chiefs of Staff, plan and 
execute DSCA operations in their areas of responsibility in accordance 
with this Directive, and in accordance with their authorities assigned 
by the Unified Command Plan and the Forces for Unified Commands 
Memorandum.
    (2) Incorporate DSCA into joint training and exercise programs in 
consultation with the Department of Homeland Security, other 
appropriate Federal Departments and Agencies, and the National Guard 
Bureau.
    (3) Advocate for validated DSCA requests for domestic operations 
through the Joint Requirements Oversight Council, subject to section 
185.4(j) and (k) of this part, and the Planning, Programming, 
Budgeting, and Execution (PPBE) process.
    (4) Provide the Secretary of Defense an implementation plan for 
ensuring DSCA support is emphasized in command assessments.
    (j) The Chief, National Guard Bureau, under the authority, 
direction, and control of the Secretary of Defense through the 
Secretaries of the Army and the Air, shall:
    (1) Serve as the channel of communication on all matters pertaining 
to National Guard DSCA activities between the Secretary of Defense and 
the Heads of the DoD Components (including the Secretary of the Army 
and the Secretary of the Air Force) and the States. Direct liaison 
between both entities should occur only in an emergency when time does 
not permit compliance with this Directive. In each such instance, the 
Chief, NGB, should be informed of the communication.
    (2) Annually assess the readiness of the National Guard of the 
States to conduct DSCA activities and report on this assessment to the 
Secretary of Defense, the Secretaries of the Army and the Air Force, 
the USD(P&R), the ASD(HD&ASA), the ASD(RA), the Chairman of the Joint 
Chiefs of Staff, and appropriate Combatant Commanders.
    (3) Participate in the Joint Staff capability-based planning and 
assessments, the Joint Capabilities Integration and Development System, 
and the DoD PPBE assessment for all actions pertaining to National 
Guard capabilities required for DSCA.
    (4) Facilitate and deconflict the planning and use of National 
Guard forces among the States to ensure that adequate and balanced 
forces are available and responsive for DSCA missions, consistent with 
national security objectives and priorities.
    (k) The Heads of the DoD Components, in addition to the 
responsibilities in paragraphs (g), (h), (i), and (j) of this section, 
as applicable, shall:
    (1) Ensure that any DSCA-related Department of Defense issuances, 
concept plans, interagency agreements, and memorandums of understanding 
or agreement with external agencies are in full compliance with this 
Directive.
    (2) Ensure compliance with financial management guidance related to 
support provided for DSCA operations, including guidance related to 
tracking costs and seeking reimbursement.


[[Page 73900]]


    Dated: November 26, 2008.
Patricia L. Toppings,
OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. E8-28706 Filed 12-3-08; 8:45 am]
BILLING CODE 5001-06-P