[Federal Register Volume 83, Number 203 (Friday, October 19, 2018)]
[Proposed Rules]
[Pages 53020-53023]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-22752]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 151

[Docket ID: DOD-2012-OS-0069]
RIN 0790-AI89


Foreign Criminal and Civil Jurisdiction

AGENCY: Department of Defense (DoD).

ACTION: Proposed rule.

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SUMMARY: This rule describes procedures concerning trial by foreign 
criminal courts of, treatment in foreign prisons of, and the payment of 
counsel fees in certain civil cases for individuals referred to 
collectively in this rule as ``dependents of DoD personnel.''

DATES: Comments must be received by December 18, 2018.

ADDRESSES: You may submit comments, identified by docket number and or 
RIN number and title, by any of the following methods:
     Federal Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Department of Defense, Office of the Chief 
Management Officer, Directorate for Oversight and Compliance, 4800 Mark 
Center Drive, Mailbox #24, Suite 08D09, Alexandria, VA 22350-1700.
    Instructions: All submissions received must include the agency name 
and docket number or Regulatory Information Number (RIN). The general 
policy for comments and other submissions from members of the public is 
to make these submissions available at http://www.regulations.gov as 
they are received without change, including any personal identifiers or 
contact information.

FOR FURTHER INFORMATION CONTACT: Bart Wager, 703-571-9355.

SUPPLEMENTARY INFORMATION: 

Authorities

    Taken together, two statutes authorize the Secretary of Defense to 
issue legally binding guidelines on the Department of Defense. Under 10 
U.S.C. 113, the Secretary has ``authority, direction, and control'' 
over the Department of Defense. The Department of Defense is an 
``executive department,'' and the Secretary, as the head of an 
``executive department,'' is empowered under 5 U.S.C. 301 to issue 
departmental regulations. The General Counsel of the Department of 
Defense has been delegated authority under Department of Defense 
Directive 5145.01, ``General Counsel of the Department of Defense'' 
(available at http://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/514501p.pdf), to issue this policy. Title 10 U.S.C. 1037 
authorizes the payment of counsel and other fees in certain cases in 
foreign judicial tribunals and administrative agencies.

Revisions Proposed by This Rule

    This rule will update 32 CFR part 151, ``Status of Forces Policies 
and Information'' which was last updated on March 28, 1980. In 1985, 
Section 681 of Public Law 99-145 amended 10 U.S.C. 1037 to authorize 
the payment of counsel fees for those ``not subject to the Uniform Code 
of Military Justice.'' So this rule proposes to update and describe 
procedures concerning trial by foreign criminal courts of, treatment in 
foreign prisons of, and the payment of counsel fees in certain civil 
cases for command-sponsored and non-command sponsored dependents of 
Armed Forces members, and dependents of nationals and non-nationals of 
the United States who are serving with or accompanying the Military 
Services.

Summary of the Major Provisions

    For dependents of DoD personnel, when those dependents are in a 
foreign country as a result of accompanying DoD personnel who are 
assigned duty in that country--it is Department of Defense policy to 
(a) maximize the exercise of U.S. jurisdiction to the extent 
permissible under applicable status of forces agreements or other forms 
of jurisdiction arrangements; (b) protect, to the maximum extent 
possible, the rights of dependents of DoD personnel who may be subject 
to criminal trial by foreign courts and imprisonment in foreign 
prisons; and (c) secure, where possible, the release of an accused to 
the custody of U.S. authorities pending completion of all foreign 
judicial proceedings.
    A ``designated commanding officer'' (DCO) in each geographical area 
assigned to a Combatant Command is to (1) cooperate with the 
appropriate U.S. Chief of Mission and to the maximum extent possible, 
ensure that dependents of DoD personnel receive the same treatment, 
rights, and support as would be extended to U.S. Armed Forces members 
in comparable situations; (2) report informally and immediately to the 
General Counsel of the Department of Defense, the applicable geographic 
Combatant Commander, and the General Counsel and the Judge Advocate 
General of the respective Military Department, or, in the case of the 
Marine Corps, to the General Counsel of the Navy and the Staff Judge 
Advocate to the Commandant of the Marine

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Corps, or, in the case of the Coast Guard, the Judge Advocate General 
of the Coast Guard, about important new cases or important developments 
in pending cases related to such dependents; and (3) take additional 
steps that may be authorized under relevant international agreement(s) 
with the receiving State to implement the policy of this part.

Expected Impact of the Proposed Rule

    The proposed revisions are expected to cause no change to the 
burden or cost to dependents of DoD personnel. DoD is not changing the 
process for dependents to access these services and therefore does not 
anticipate a change in the population of eligible DoD dependents for 
these services. The Department will continue to provide relevant free 
legal services to the dependents of DoD personnel and acceptance of 
these legal services is entirely voluntary.

Regulatory Procedures

Executive Order 12866, ``Regulatory Planning and Review'' and Executive 
Order 13563, ``Improving Regulation and Regulatory Review''

    Executive Orders 13563 and 12866 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distribute impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This rule has been designated a ``significant regulatory 
action,'' although not economically significant, under section 3(f) of 
Executive Order 12866. Accordingly, the rule has been reviewed by the 
Office of Management and Budget (OMB) under the requirements of these 
Executive Orders.

Executive Order 13771, ``Reducing Regulation and Controlling Regulatory 
Costs''

    This proposed rule is not expected to be subject to the 
requirements of E.O. 13771 (82 FR 9339, February 3, 2017) because this 
proposed rule is expected to be related to agency organization, 
management, or personnel.

Section 202, Public Law 104-4, ``Unfunded Mandates Reform Act'' (2 
U.S.C. Chapter 25)

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 
U.S.C. 1532) requires agencies assess anticipated costs and benefits 
before issuing any rule whose mandates require spending in any 1 year 
of $100 million in 1995 dollars, updated annually for inflation. This 
proposed rule will not mandate any requirements for State, local, or 
tribal governments, nor will it affect private sector costs.

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

    The Department of Defense certifies that this proposed rule is not 
subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it 
would not, if promulgated, have a significant economic impact on a 
substantial number of small entities. Therefore, the Regulatory 
Flexibility Act, as amended, does not require us to prepare a 
regulatory flexibility analysis.

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

    It has been determined that 32 CFR part 151 does not impose 
reporting or recordkeeping requirements under the Paperwork Reduction 
Act of 1995.

Executive Order 13132, ``Federalism''

    Executive Order 13132 establishes certain requirements that an 
agency must meet when it promulgates a proposed rule (and subsequent 
final rule) that imposes substantial direct requirement costs on State 
and local governments, preempts State law, or otherwise has Federalism 
implications. This proposed rule will not have a substantial effect on 
State and local governments.

List of Subjects in 32 CFR Part 151

    Courts, Foreign relations, Military personnel, Prisons.

    Accordingly, 32 CFR part 151 is proposed to be revised to read as 
follows:

PART 151--FOREIGN CRIMINAL AND CIVIL JURISDICTION

Sec.
151.1 Purpose.
151.2 Applicability.
151.3 Definitions.
151.4 Policy.
151.5 Responsibilities.
151.6 Procedures.

    Authority:  10 U.S.C. chapter 47, 10 U.S.C. 1037.


Sec.  151.1   Purpose.

    This rule establishes policy, assigns responsibilities, and 
prescribes procedures, supplemental to those provided in DoD 
Instruction 5525.01 ``Foreign Criminal and Civil Jurisdiction,'' which 
will be made available at http://www.esd.whs.mil/Directives/issuances/dodi/, concerning trial by foreign criminal courts of, treatment in 
foreign prisons of, and the payment of counsel fees in certain civil 
cases for the following individuals, referred to collectively in this 
rule as ``dependents of DoD personnel,'' when those individuals are in 
a foreign country as a result of accompanying DoD personnel who are 
assigned duty in that country:
    (a) Command-sponsored and non-command sponsored dependents of Armed 
Forces members;
    (b) Dependents of nationals and non-nationals of the United States 
who are serving with or accompanying the Military Services (referred to 
in this rule as ``non-military DoD personnel'') in an area outside the 
United States and its territories and possessions, the Commonwealth of 
the Northern Mariana Islands, and the Commonwealth of Puerto Rico 
(referred to collectively in this rule as ``outside the United 
States'');
    (c) Dependents of DoD personnel serving under a U.S. Chief of 
Mission are not considered to be ``dependents of DoD personnel'' for 
the purposes of this rule.


Sec.  151.2   Applicability.

    This part applies to the Office of the Secretary of Defense, the 
Military Departments (including the Coast Guard at all times, including 
when it is a Service in the Department of Homeland Security by 
agreement with that Department), the Office of the Chairman of the 
Joint Chiefs of Staff and the Joint Staff, the Combatant Commands, the 
Office of the Inspector General of the Department of Defense, the 
Defense Agencies, the DoD Field Activities, and all other 
organizational entities within the DoD.


Sec.  151.3   Definitions.

    These terms and their definitions are for the purposes of this 
part.
    Armed Forces. As set forth in 10 U.S.C. 101(a)(4), the Army, Navy, 
Air Force, Marine Corps, and Coast Guard.
    Designated commanding officer (DCO). The military officer who is 
designated by the appropriate geographic Combatant Commander to fulfill 
the duties outlined in this part.
    Non-military DoD personnel. Nationals and non-nationals of the 
United States who are serving with or accompanying the Armed Forces in 
an area outside the United States and its territories and possessions, 
the northern Mariana Islands, and the Commonwealth of Puerto Rico.
    DoD personnel. Armed Forces members and non-military DoD personnel. 
Armed Forces members and non-military DoD personnel serving

[[Page 53022]]

under a U.S. Chief of Mission are not considered to be ``DoD 
personnel'' as defined in this part.


Sec.  151.4   Policy.

    (a) The Department of Defense will, for dependents of DoD personnel 
when those dependents are in a foreign country accompanying DoD 
personnel who are assigned duty to that foreign country:
    (1) Maximize the exercise of U.S. jurisdiction to the extent 
permissible under applicable status of forces agreements or other forms 
of jurisdiction arrangements.
    (2) Protect, to the maximum extent possible, the rights of 
dependents of DoD personnel who may be subject to criminal trial by 
foreign courts and imprisonment in foreign prisons.
    (3) Secure, where possible, the release of an accused to the 
custody of U.S. authorities pending completion of all foreign judicial 
proceedings.
    (b) [Reserved]


Sec.  151.5  Responsibilities.

    (a) The Secretaries of the Military Departments ensure the adequacy 
of regulations in establishing an information and education policy on 
the laws and customs of the host country for dependents of DoD 
personnel assigned to foreign areas.
    (b) For each country in their respective assigned area of 
responsibility (AOR), the geographic Combatant Commanders:
    (1) Oversee Command implementation of the procedures in this part.
    (2) Oversee DCO responsibilities, as described in paragraphs (c)(1) 
through (c)(4) of this section.
    (c) DCO responsibilities. The DCOs:
    (1) Are responsible for formal invocation, where applicable, of the 
Senate resolution procedure in each foreign country where dependents of 
DoD personnel are present, consistent with the U.S. Senate Resolution 
of Ratification, with reservations, to the North Atlantic Treaty 
Organization Status of Forces Agreement, as agreed to by the Senate on 
July 15, 1953.
    (2) In cooperation with the appropriate U.S. Chief of Mission and 
to the maximum extent possible, ensure dependents of DoD personnel 
receive the same treatment, rights, and support as Armed Forces members 
when in the custody of foreign authorities, or when confined (pre-trial 
and post-trial) in foreign penal institutions. DCOs will work with the 
appropriate U.S. Chief of Mission to make appropriate diplomatic 
contacts for dependents of DoD personnel who are not U.S. nationals.
    (3) Report informally and immediately to the General Counsel of the 
Department of Defense, the applicable geographic Combatant Commander, 
and the General Counsel and the Judge Advocate General of the 
respective Military Department or, in the case of the U.S. Marine Corps 
(USMC), to the General Counsel of the Navy and the Staff Judge Advocate 
to the Commandant of the Marine Corps, or, in the case of the Coast 
Guard, the Judge Advocate General of the Coast Guard, about important 
new cases or important developments in pending cases. Important cases 
include, but are not limited to, instances of denial of the procedural 
safeguards under any applicable agreement; deficiency in the treatment 
or conditions of confinement in foreign penal institutions; or 
arbitrary denial of permission to visit dependents of DoD personnel.
    (4) Take additional steps that may be authorized under relevant 
international agreements with the receiving State to implement the 
policy of this part.


Sec.  151.6  Procedures.

    (a) Request to foreign authorities not to exercise their criminal 
and civil jurisdiction over dependents. The procedures in this section 
will be followed when it appears that foreign authorities may exercise 
criminal jurisdiction over dependents of DoD personnel:
    (1) When the DCO determines, after a careful consideration of all 
the circumstances, including consultation with the Department of 
Justice where the matter involves possible prosecution in U.S civilian 
courts, that suitable action can be taken under existing U.S. laws or 
administrative regulations, the DCO may request the local foreign 
authorities to waive the exercise of criminal jurisdiction.
    (2) When it appears possible that the accused may not obtain a fair 
trial, the commander exercising general court-martial jurisdiction over 
the command to which such persons are attached or with which they are 
associated will communicate directly with the DCO, reporting the full 
facts of the case. The DCO will then determine, in the light of legal 
procedures in effect in that country, if there is a risk that the 
accused will not receive a fair trial. If the DCO determines that there 
is a risk that the accused will not receive a fair trial, the DCO will 
decide, after consultation with the U.S. Chief of Mission, whether a 
request should be submitted through diplomatic channels to foreign 
authorities seeking their assurances of a fair trial for the accused 
or, in appropriate circumstances, that they waive the exercise of 
jurisdiction over the accused. If the DCO so decides, a recommendation 
will be submitted through the geographic Combatant Commander and the 
Chairman of the Joint Chiefs of Staff to the Secretary of Defense. 
Copies must be provided to the Secretary concerned and the GC DoD.
    (b) Trial observers and trial observers' reports. (1) U.S. 
observers at trials before courts of the receiving country (referred to 
in this rule as ``trial observers'') must attend and prepare formal 
reports in all cases of trials by foreign courts or tribunals of 
dependents of DoD personnel, except for minor offenses. In cases of 
minor offenses, the observer will attend the trial at the discretion of 
the DCO, but will not be required to make a formal report.
    (i) Unless directed by the DCO, trial observers are not required to 
attend all preliminary proceedings, such as scheduling hearings, but 
will attend the trial on the merits and other pre- and post-trial 
proceedings where significant procedural or substantive matters are 
decided.
    (ii) Trial observer reports regarding dependents of DoD personnel 
will be handled and processed pursuant to DoD Instruction 5525.01(4)(b-
c).
    (2) The DCO, upon receipt of a trial observer report, will be 
responsible for determining whether:
    (i) There was any failure to comply with the procedural safeguards 
secured by the pertinent status of forces agreement.
    (ii) The accused received a fair trial under all the circumstances. 
Due regard should be given to those fair trial rights listed in DoD 
Instruction 5525.01 ``Foreign Criminal and Civil Jurisdiction,'' 
Enclosure 5, ``Fair Trial Guarantees'' that are relevant to the 
particular facts and circumstances of the trial. A trial will not be 
determined to be unfair merely because it is not conducted in a manner 
identical to trials held in the United States.
    (A) If the DCO believes that the procedural safeguards specified in 
pertinent agreements were denied or that the trial was otherwise 
unjust, the DCO will submit a recommendation as to appropriate action 
to rectify the trial deficiencies and otherwise to protect the rights 
or interests of the accused. This recommendation must include a 
statement of efforts taken or to be taken at the local level to protect 
the rights of the accused.
    (B) The DCO will submit the recommendation to the Secretary of 
Defense, through the Under Secretary of Defense for Policy (with an 
advance copy to the General Counsel of the Department of Defense); 
copies must be

[[Page 53023]]

provided to the geographic Combatant Commander concerned, the General 
Counsel and the Judge Advocate General of the Military Department 
concerned or, in the case of the USMC, to the General Counsel of the 
Navy and the Staff Judge Advocate to the Commandant of the Marine 
Corps, or, in the case of the Coast Guard, the Judge Advocate General 
of the Coast Guard, and the Chairman of the Joint Chiefs of Staff.
    (c) Counsel fees and related assistance for U.S. personnel not 
subject to the UCMJ. In cases of exceptional interest to the Military 
Department concerned or the Department of Homeland Security involving 
non-military DoD personnel, the Secretary of that Military Department 
or the Secretary of Homeland Security may approve, pursuant to 10 
U.S.C. 1037, under the following circumstances:
    (1) Criminal cases. Requests for the provision of counsel fees and 
payment of expenses in criminal cases may be approved in pre-trial, 
trial, appellate, and post-trial proceedings in any criminal case 
where:
    (i) The sentence that is normally imposed includes confinement, 
whether or not such sentence is suspended;
    (ii) Capital punishment might be imposed;
    (iii) An appeal is made from any proceeding in which there appears 
to have been a denial of the substantial rights of the accused;
    (iv) The case, although not within the criteria established in 
paragraphs (c)(1)(i) through (c)(1)(iii) of this section, is considered 
to have significant impact on U.S. interests, including upon the 
relations of the Armed Forces with the host country.
    (2) Civil cases. Requests for provision of counsel fees and payment 
of expenses in civil cases may be granted in trial and appellate 
proceedings in civil cases where the case is considered to have a 
significant impact on the relations of the Armed Forces with the host 
country; or in cases brought against eligible non-military DoD 
personnel (and in exceptional cases, by such personnel) if the case is 
considered to involve any other U.S. interest.
    (3) Funding restrictions. (i) No funds will be provided under this 
part in cases where the U.S. Government is--in actuality or in legal 
effect--the plaintiff or the defendant; all such cases shall be 
referred to the Department of Justice, Office of Foreign Litigation. No 
funds will be provided under this part in cases where the non-military 
DoD personnel member is a plaintiff without prior authorization of the 
Secretary of the Military Department concerned or the Secretary of 
Homeland Security. The provisions of this paragraph also are applicable 
to proceedings with civil aspects that are brought by eligible 
personnel as criminal cases in accordance with local law. Funds for the 
posting of bail or bond to secure the release of non-military DoD 
personnel from confinement will be used as provided by applicable Armed 
Force regulations.
    (ii) No funds will be provided under paragraph (c)(2) of this 
section to a plaintiff who, if successful, will receive an award, in 
whole or in part, from the United States.
    (iii) As provided for in 10 U.S.C. 1037, a person on whose behalf a 
payment is made under this provision is not liable to reimburse the 
United States for that payment, unless he or she is responsible for the 
forfeiture of bail provided for him or her under this provision.
    (d) Treatment of dependents confined in foreign penal institutions. 
In cooperation with the appropriate U.S. Chief of Mission and to the 
maximum extent possible, military commanders will ensure that 
dependents of DoD personnel receive the same treatment, rights, and 
support as would be extended to Armed Forces members when in the 
custody of foreign authorities, or when confined (pretrial and post-
trial) in foreign penal institutions. Commanders will work with the 
appropriate U.S. Chief of Mission to make appropriate diplomatic 
contacts for the categories of dependents described in this section who 
are not U.S. nationals.
    (e) Information policy. The general public and the Congress must be 
provided promptly with the maximum information concerning status of 
forces matters that are consistent with the national interest. 
Information will be coordinated and provided to the public and the 
Congress in accordance with established procedures, including those in 
DoD Directive 5122.05, ``Assistant Secretary of Defense for Public 
Affairs (ASD(PA))'' (available at http://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/512205_dodd_2017.pdf?ver=2017-08-07-125832-023), 32 CFR part 286, 32 CFR part 310, and DoD Instruction 5400.04, 
``Provision of Information to Congress'' (available at http://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/540004p.pdf).

    Dated: October 15, 2018.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2018-22752 Filed 10-18-18; 8:45 am]
 BILLING CODE 5001-06-P