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21826 Federal Register / Vol. 78, No. 71 / Friday, April 12, 2013 / Rules and Regulations

DEPARTMENT OF THE INTERIOR

National Indian Gaming Commission

25 CFR Part 558

RIN 3141AA15

Tribal Background Investigations andLicensing

AGENCY: National Indian GamingCommission, Interior.

ACTION: Technical amendment.

SUMMARY: The National Indian GamingCommission (NIGC or Commission) isrevising its gaming license regulationsto correct a section reference in one ofits rules.

DATES: Effective: April 29, 2013.

FOR FURTHER INFORMATION CONTACT:JohnHay, National Indian GamingCommission, 1441 L Street NW., Suite9100, Washington, DC 20005. Email:

john_

[email protected];telephone: 2026327009.

SUPPLEMENTARY INFORMATION:

I. Background

The Indian Gaming Regulatory Act(IGRA or the Act), Public Law 100497,25 U.S.C. 2701, et seq., was signed intolaw on October 17, 1988. The Actestablished the NIGC and sets out acomprehensive framework for theregulation of gaming on Indian lands.The Act provides a statutory basis forthe operation of gaming by Indian tribesas a means of promoting tribal economic

development, self-sufficiency, andstrong tribal governments. To ensurethat Indian tribes are the primary

beneficiaries of their gaming operationsand to protect such gaming as a meansof generating tribal revenue, IGRArequires that tribes conduct backgroundinvestigations on their gamingoperations primary managementofficials and key employees and submitthose results to the Commission beforeissuing gaming licenses. 25 U.S.C.2710(b)(2)(F)(ii)(III). The Act alsorequires tribes to notify the Commissionafter they have issued such gaming

licenses to their primary managementofficials or key employees. 25 U.S.C.2710(b)(2)(F)(ii)(I).

On January 25, 2013, the Commissionpublished a final rule amending parts556 and 558: to streamline thesubmission of documents to theCommission; to ensure that twonotifications are submitted to theCommission in compliance with IGRA;and to clarify the rules regarding theissuance of temporary and permanentgaming licenses. 78 FR 5276, Jan. 25,2013. The final rules published on

January 25, 2013 incorrectly referenceda specific section in one of its rules.This amendment is intended to correctthe section reference in one of its rules.

Regulatory Matters

Regulatory Flexibility Act

The rule will not have a significantimpact on a substantial number of smallentities as defined under the RegulatoryFlexibility Act, 5 U.S.C. 601, et seq.Moreover, Indian Tribes are notconsidered to be small entities for thepurposes of the Regulatory FlexibilityAct.

Small Business Regulatory EnforcementFairness Act

The rule is not a major rule under 5U.S.C. 804(2), the Small BusinessRegulatory Enforcement Fairness Act.The rule does not have an effect on theeconomy of $100 million or more. Therule will not cause a major increase in

costs or prices for consumers,individual industries, Federal, State,local government agencies or geographicregions. Nor will the rule have asignificant adverse effect oncompetition, employment, investment,productivity, innovation, or the abilityof the enterprises, to compete withforeign based enterprises.

Unfunded Mandate Reform Act

The Commission, as an independentregulatory agency, is exempt fromcompliance with the UnfundedMandates Reform Act, 2 U.S.C. 1502(1);

2 U.S.C. 658(1).Takings

In accordance with Executive Order12630, the Commission has determinedthat the rule does not have significanttakings implications. A takingsimplication assessment is not required.

Civil Justice Reform

In accordance with Executive Order12988, the Commission has determinedthat the rule does not unduly burden thejudicial system and meets therequirements of sections 3(a) and 3(b)(2)of the Order.

National Environmental Policy Act

The Commission has determined thatthe rule does not constitute a majorfederal action significantly affecting thequality of the human environment andthat no detailed statement is requiredpursuant to the National EnvironmentalPolicy Act of 1969, 42 U.S.C. 4321, etseq.

Paperwork Reduction Act

The information collectionrequirements contained in this rule

were previously approved by the Officeof Management and Budget as required

by the Paperwork Reduction Act, 44U.S.C. 3501, et seq., and assigned OMBControl Number 31410003. The OMBcontrol number expires on October 31,2013.

List of Subjects in 25 CFR Part 558

Gaming, Indian lands.Text of the Rule

For the reason discussed in thePreamble, the Commission amends itsregulations at 25 CFR part 558 asfollows:

PART 558GAMING LICENSES FORKEY EMPLOYEES AND PRIMARYMANAGEMENT OFFICIALS

s 1. The authority citation for part 558continues to read as follows:

Authority: 25 U.S.C. 2706, 2710, 2712.

558.2 [Amended]

s 2. Amend 558.2 by revising thereference in paragraph (c) to 558.3(a) to read paragraph (a) ofthis section.

Dated: April 8, 2013.

Tracie L. Stevens,

Chairwoman.

Daniel J. Little,

Associate Commissioner.

[FR Doc. 201308538 Filed 41113; 8:45 am]

BILLING CODE 756501P

DEPARTMENT OF DEFENSE

Office of the Secretary

[DOD2009OS0038; RIN 0790AI54]

32 CFR Part 182

Defense Support of Civilian LawEnforcement Agencies

AGENCY: Department of Defense.

ACTION: Final rule.

SUMMARY: This rule implements DoDregulations and legislation concerning

restriction on direct participation byDoD personnel. It provides specificpolicy direction and assignsresponsibilities with respect to DoDsupport provided to Federal, State, andlocal civilian law enforcement agencies,including responses to civildisturbances.

DATES: This rule is effective May 13,2013.

FOR FURTHER INFORMATION CONTACT: Mr.Tom LaCrosse, 5712568353.

SUPPLEMENTARY INFORMATION:

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mailto:[email protected]:[email protected]:[email protected]:[email protected]


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21827Federal Register / Vol. 78, No. 71 / Friday, April 12, 2013 / Rules and Regulations

Executive Summary

I. Purpose of the Regulatory Action

a. The purpose of this rule is toimplement the statutory requirementsfor the Department of Defense supportof civilian law enforcement agencies.This rule provides specific policydirection and assigns responsibilities to

Department of Defense key individualsproviding support to Federal, State,Tribal, and local law enforcementagencies, including response to civildisturbances within the United States,including the District of Columbia, theCommonwealth of Puerto Rico, the U.S.Virgin Islands, Guam, American Samoa,the Commonwealth of the NorthernMariana Islands, and any territory orpossession of the United States or anyother political subdivision thereof.

b. The legal authority for this rule is10 U.S.C. 375, Restriction onparticipation by Military Personnel.

II. Summary of the Major Provisions ofthe Rule

a. Support in Accordance With thePosse Comitatus Act

The primary restriction on DoDparticipation in civilian lawenforcement activities is the PosseComitatus Act. It provides that whoeverwillfully uses any part of the Army orthe Air Force as a posse comitatus orotherwise to execute U.S. laws, exceptin cases and under circumstancesexpressly authorized by the Constitutionor Act of Congress, shall be fined under

title 18, U.S.C., or imprisoned not morethan two years, or both. Section 182.6(a) describes in detail the assistance thatthe Department of Defense may and maynot provide civilian law enforcementagencies.

b. Support During Civil Disturbances

The President is authorized by theConstitution and laws of the UnitedStates to employ the Armed Forces ofthe United States to suppressinsurrections, rebellions, and domesticviolence under various conditions andcircumstances. Planning and

preparedness by the FederalGovernment, including the Departmentof Defense, for civil disturbances isimportant due to the potential severityof the consequences of such events forthe Nation and the population. Theemployment of Federal military forcesto control civil disturbances shall onlyoccur in a specified civil jurisdictionunder specific circumstances asauthorized by the President, normallythrough issuance of an Executive orderor other Presidential directiveauthorizing and directing the Secretary

of Defense to provide for the restorationof law and order in a specific State orlocality.

III. Costs and Benefits

This rule does not have a significanteffect on the economy. However, theDepartment of Defense may providesupport to civilian law enforcement

entities on either a reimbursable or non-reimbursable basis depending on theauthority under which the support isprovided. The benefit to the elements ofthe Department of Defense providingsuch support may include a benefit thatis substantially equivalent to thatderived from military operations ortraining. Additionally, the recipientcivilian law enforcement agencies

benefit from the Department ofDefenses substantial capabilities whenthose capabilities are not needed forDepartment of Defense missions.

Public Comments

On Tuesday, December 28, 2010, theDepartment of Defense published aproposed rule (75 FR 81547) requestingpublic comment. Two comments werereceived. Below are the comments andresponses.

Comment #1. Comment on ProposedRule: 32 CFR Part 182 DOD2009OS0038. The definition given in 182.3 ofcivil disturbance is overly broad andencompasses any number of situationsthat the Legislature and DOD entitiesmight not have in mind at the time ofdrafting this rule. It is myrecommendation that specific reference

be made to DOD Directive 3025.12within 182.3 to allay any possiblemisreading of 32 CFR part 182. If PosseComitatus is going to be suspended intimes other than those specificallyauthorized by the Constitution,Congress must act to make the languageclear and unambiguous. In addition, thedefinition of Emergency Authority in 182.3 and DOD 3025.12 is unclear. Inwhat sort of a civil emergency can priorPresidential authorization beimpossible to obtain. These twodefinitions read together give anextraordinary degree of latitude to DOD

entities within the borders of the UnitedStates. Finally, I question whether a ruleis the appropriate venue for anexpansion of this nature. Perhaps this isa task best left to congress for full publicscrutiny and debate. Should this really

be a task left to the DOD to make a ruleessentially gutting 10 U.S.C.A. 3314?Despite the fact that this rule hasreceived certification by the Office ofInformation and Regulatory Affairs(OIRA), I seriously question whetherthere are not significant implications forits enactment under Executive Order

13132 (Federalism). If it is left to theDOD to determine when force isnecessary, absent a Presidential orderand absent the cooperation of localauthorities, Posse Comitatus is for allintents and purposes at an end.

DoD Response:No action required.This instruction cancels DoD Directive3025.12. Civil disturbance is an

approved definition in the DoDDictionary and makes no reference tothe Posse Comitatus Act beingsuspended. Also this rule does notmake reference to the suspension ofPosse Comitatus Act. It lists thoseactions that are permissible andrestricted under the Act. The author alsorecommends that Congress, rather thanDoD, make the language clear andunambiguous.

Comment #2. The Posse ComitatusAct, 18 U.S.C. 1385, clearly applies toNational Guard troops which have beenfederalized and are deployed under

Title 10 authority within the UnitedStates. However, the courts have notdefinitively ruled on whether the Actapplies to troops deployed under Title32, and generally it is assumed that theact does not apply under thosecircumstances. If 182.4(b) of this ruleis meant to clearly state that theNational Guard is, in fact, to act incompliance with the restrictions of thePosse Comitatus Act while in support ofcivilian law enforcement officials whiledeployed under Title 32 authority aswell as Title 10, then this is a welcomeclarification of DoD policy.

DoD Response:No action required.National Guard forces operating underTitle 32 are under State control, and thePosse Comitatus Act would not apply.State law governs what actions Stateofficials and State National Guard forcesmay take.

Regulatory Procedures

Executive Order 12866, RegulatoryPlanning and Review, and ExecutiveOrder 13563, Improving Regulationand Regulatory Review

It has been certified that 32 CFR part182 does not:

(1) Have an annual effect on theeconomy of $100 million or more oradversely affect in a material way theeconomy; a section of the economy;productivity; competition; jobs; theenvironment; public health or safety; orState, local, or Tribal governments orcommunities;

(2) Create a serious inconsistency orotherwise interfere with an action takenor planned by another agency;

(3) Materially alter the budgetaryimpact of entitlements, grants, user fees,



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1Available at http://www.dtic.mil/whs/directives/corres/pdf/524001r.pdf.

2Authorized users may obtain a copy atwww.dtic.smil.mil/whs/directives.Others may senda written request by email to [email protected].

or loan programs, or the rights andobligations of recipients thereof; or

(4) Raise novel legal or policy issuesarising out of legal mandates, thePresidents priorities, or the principlesset forth in these Executive Orders.

Sec. 202, Pub. L. 1044, UnfundedMandates Reform Act

It has been certified that 32 CFR part182 does not contain a Federal mandatethat may result in the expenditure byState, local, and Tribal governments, inaggregate, or by the private sector, of$100 million or more in any 1 year.

Public Law 96354, RegulatoryFlexibility Act (5 U.S.C. 601)

It has been certified that 32 CFR part182 is not subject to the RegulatoryFlexibility Act (5 U.S.C. 601) because itwould not, if promulgated, have asignificant economic impact on asubstantial number of small entities.

This rule establishes procedures andassigns responsibilities within DoD forassisting civilian law enforcementagencies, therefore, it is not expectedthat small entities will be affected

because there will be no economicallysignificant regulatory requirementsplaced upon them.

Public Law 96511, PaperworkReduction Act (44 U.S.C. Chapter 35)

It has been certified that 32 CFR part182 does not impose reporting orrecordkeeping requirements under thePaperwork Reduction Act of 1995.

Executive Order 13132, FederalismIt has been certified that 32 CFR part

182 does not have federalismimplications, as set forth in ExecutiveOrder 13132. This rule does not havesubstantial 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 variouslevels of Government.

List of Subjects in 32 CFR Part 182

Armed forces, Law enforcement.

Accordingly, 32 CFR part 182 isadded to read as follows:

PART 182DEFENSE SUPPORT OFCIVILIAN LAW ENFORCEMENTAGENCIES

Sec.182.1 Purpose.182.2 Applicability and scope.182.3 Definitions.182.4 Policy.182.5 Responsibilities.182.6 Procedures.

Authority: 10 U.S.C. 113, 331334, 371382, 2576, and 2667; 14 U.S.C. 141; 16 U.S.C.23, 78, 593, and 1861; 18 U.S.C. 112, 351,831, 1116, 1385, and 1751; 22 U.S.C. 408,461462; 25 U.S.C.180; 31 U.S.C. 1535; 42U.S.C. 97, 1989, and 51215207; 50 U.S.C.16211622; and Public Law 94524.

182.1 Purpose.

This part:

(a) Establishes DoD policy, assignsresponsibilities, and providesprocedures for DoD support to Federal,State, Tribal, and local civilian lawenforcement agencies, includingresponses to civil disturbances withinthe United States, including the Districtof Columbia, the Commonwealth ofPuerto Rico, the U.S. Virgin Islands,Guam, American Samoa, theCommonwealth of the Northern MarianaIslands, and any territory or possessionof the United States or any otherpolitical subdivision thereof inaccordance with 32 CFR part 185.

(b) Prescribes the regulations requiredby 10 U.S.C. 375.

182.2 Applicability and scope.

This part:(a) Applies to the Office of the

Secretary of Defense (OSD), the MilitaryDepartments, the Office of the Chairmanof the Joint Chiefs of Staff and the JointStaff, the Combatant Commands, theDefense Agencies, the DoD FieldActivities, and all other organizationalentities within the Department ofDefense (hereafter referred tocollectively as the DoD Components).

(b) Applies to the Office of the

Inspector General of the Department ofDefense (IG, DoD) only to the extent thatthis part does not conflict with any ofthe duties and responsibilities assignedto the IG, DoD pursuant to section 8(g)of Appendix, title 5, U.S.C. (also knownas The Inspector General Act of 1978,as amended).

(c) Governs all DoD Componentplanning for and participation inDefense support of civilian lawenforcement activities, includingdomestic emergencies and civildisturbance operations (CDO) (formerlyreferred to as military assistance for

civil disturbances).(d) Applies to National Guard (NG)personnel only in title 10, U.S.C., statusonly.

(e) Applies to civilian employees ofthe DoD Components and the activitiesof DoD contractors performed in supportof the DoD Components.

(f) Does not apply to:(1) Counternarcotics activities.(2) Assistance to foreign law

enforcement officials.(3) The Defense Intelligence and

Counterintelligence Components, except

when providing assistance to civilianlaw enforcement activities inaccordance with paragraph 2.6. ofExecutive Order 12333 and Procedure12 of DoD 5240.1R.1

(4) Requests for sensitive support,which are governed by DoD Directive S5210.36.2

(5) NG personnel in State active duty

or title 32, U.S.C., status.(6) Maritime Homeland Security

Operations, defined as time-criticalrequests by the United States CoastGuard for short duration (less than 48hours) DoD support in countering animmediate maritime security threat, thatare governed by the DoD-Department ofHomeland Security Memorandum ofAgreement for Department of DefenseSupport to the United States CoastGuard for Maritime Homeland Security.

(7) Aircraft piracy operationsconducted pursuant to title 10, U.S.C.

182.3 Definitions.

The following definitions apply tothis part:

Civil authorities. Those elected andappointed officers and employees whoconstitute the government of the UnitedStates, the governments of the 50 States,the District of Columbia, theCommonwealth of Puerto Rico, U.S.possessions and territories, and politicalsubdivisions thereof.

Civil disturbance. Group acts ofviolence and disorder prejudicial topublic law and order.

Civilian law enforcement official. Anofficer or employee of a civilian Federal,State, local, and tribal law enforcementagency with responsibility forenforcement of the laws within thejurisdiction of that agency.

DoD personnel. Federal militaryofficers and enlisted personnel andcivilian employees of the Department ofDefense.

Domestic emergencies. Emergenciesaffecting the public welfare andoccurring within the 50 states, Districtof Columbia, Commonwealth of PuertoRico, U.S. possessions and territories, orany political subdivision thereof, as aresult of enemy attack, insurrection,

civil disturbance, earthquake, fire, flood,or other public disasters or equivalentemergencies that endanger life andproperty or disrupt the usual process ofgovernment. Domestic emergenciesinclude civil defense emergencies, civildisturbances, major disasters, andnatural disasters.

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Emergency authority. A Federalmilitary commanders authority, inextraordinary emergency circumstanceswhere prior authorization by thePresident is impossible and dulyconstituted local authorities are unableto control the situation, to engagetemporarily in activities that arenecessary to quell large-scale,

unexpected civil disturbances because:(1) Such activities are necessary to

prevent significant loss of life or wantondestruction of property and arenecessary to restore governmentalfunction and public order; or

(2) Duly constituted Federal, State, orlocal authorities are unable or decline toprovide adequate protection for Federalproperty or Federal governmentalfunctions.

Explosives or munitions emergency. Asituation involving the suspected ordetected presence of unexplodedordnance (UXO), damaged or

deteriorated explosives or munitions, animprovised explosive device (IED),other potentially explosive material ordevice, or other potentially harmfulmilitary chemical munitions or device,that creates an actual or potentialimminent threat to human health,including safety, or the environment,including property, as determined by anexplosives or munitions emergencyresponse specialist. Such situations mayrequire immediate and expeditiousaction by an explosives or munitionsemergency response specialist tocontrol, mitigate, or eliminate the threat.

Law enforcement agency. Any of a

number of agencies (outside theDepartment of Defense) chartered andempowered to enforce U.S. laws in thefollowing jurisdictions: the UnitedStates, a State (or political subdivision)of the United States, a territory (orpolitical subdivision) of the UnitedStates, a federally recognized NativeAmerican tribe or Alaskan NativeVillage, or within the borders of a hostnation.

182.4 Policy.

It is DoD policy that:(a) The Department of Defense shall

be prepared to support civilian lawenforcement agencies consistent withthe needs of military preparedness ofthe United States, while recognizing andconforming to the legal limitations ondirect DoD involvement in civilian lawenforcement activities.

(b) Support of civilian lawenforcement agencies by DoD personnelshall be provided in accordance with 18U.S.C. 112, 351, 831, 1116, 1751, and1385 (also known and hereinafterreferred to as The Posse Comitatus Act,as amended); 10 U.S.C. chapter 18; 2

U.S.C. 1970 (for support to the U.S.Capitol Police); and other Federal laws,including those protecting the civilrights and civil liberties of individuals,as applicable.

(c) The restrictions in 182.6(a)(1)(iii)shall apply to all actions of DoDpersonnel worldwide.

(d) Exceptions, based on compellingand extraordinary circumstances, may

be granted to the restrictions in 182.6(a)(1)(iii) for assistance to beprovided outside the United States; onlythe Secretary of Defense or DeputySecretary of Defense may grant suchexceptions.

(e) Requests for law enforcementsupport shall be evaluated using thecriteria in 32 CFR part 185.

182.5 Responsibilities.

(a) The Under Secretary of Defense forPolicy (USD(P)) shall establish DoDpolicy governing defense support of

civilian law enforcement agencies andfacilitate the coordination of that policywith Federal departments and agencies;State, local, and tribal agencies; and theDoD Components, as appropriate.

(b) The Assistant Secretary of Defensefor Homeland Defense and AmericasSecurity Affairs (ASD(HD&ASA)), underthe authority, direction, and control ofthe USD(P) and in accordance with DoDDirective 5111.13,3 Assistant Secretaryof Defense for Homeland Defense andAmericas Security Affairs(ASD(HD&ASA)), shall develop,coordinate, recommend, and supervise

the implementation of policy fordefense support of civilian lawenforcement agencies and defensesupport of civil authorities (DSCA),including law enforcement supportactivities. In executing thisresponsibility for DoD law enforcementsupport activities, the ASD(HD&ASA)shall:

(1) Develop procedures and issueappropriate direction as necessary fordefense support of civilian lawenforcement agencies in coordinationwith the General Counsel of theDepartment of Defense, and in

consultation with the Attorney Generalof the United States (Attorney General),as appropriate, and in accordance withresponsibilities assigned in 32 CFR part185 and DoD Directive 5111.13. Thisincludes tasking the DoD Componentsto plan for and to commit DoD resourcesin response to requests from civilauthorities for CDO (such a commitmentof DoD resources for CDO must beauthorized by the President of the

United States and directed by theSecretary of Defense).

(2) Serve as the principal point ofcontact between the Department ofDefense and the Department of Justicefor planning and executing CDO.

(3) Coordinate with civilian lawenforcement agencies on policies tofurther DoD cooperation with civilian

law enforcement agencies.(4) Provide guidance for the use of

Reserve Component personnel insupport of civilian law enforcementagencies, in coordination with theSecretaries of the Military Departmentsand the Assistant Secretary of Defensefor Reserve Affairs (ASD(RA)), and withthe Chief, National Guard Bureau(NGB), as appropriate. This will includeguidance for use by approvingauthorities in evaluating the effect onmilitary preparedness of requests forcivilian law enforcement assistance thatmay involve use of the Reserve

Components.(5) Assist in the development ofpolicy regulating plans, procedures, andrequirements of the DoD Componentswith authority over defense resourcesthat may be employed to provide lawenforcement support.

(6) Inform the ASD(RA) of all requestsfor assistance by civilian lawenforcement agencies that may be metusing Reserve Component personneland resources.

(i) Inform the Chief, NGB, of allrequests for assistance by civilian lawenforcement agencies that may be metusing NG personnel.

(ii) Coordinate with the ASD(RA) andothers as appropriate regarding dutystatus policies (e.g., performance of dutypursuant to 10 U.S.C. 331334 and 371382).

(7) Coordinate with the Chairman ofthe Joint Chiefs of Staff (CJCS) inadvance of the commitment of anyFederal military forces.

(8) Coordinate with the UnderSecretary of Defense (Comptroller)/ChiefFinancial Officer, Department ofDefense, when providing assistance tocivilian law enforcement agencies toensure an appropriate funding approach

in accordance with 182.6(g).(9) In coordination with the UnderSecretary of Defense for Intelligence(USD(I)), the CJCS, the Commanders ofthe Combatant Commands with DSCAresponsibilities, and the Secretaries ofthe Military Departments, establishprotocols and guidance for ensuring thatthe needs of civilian law enforcementofficials for information are taken intoaccount in the planning and executionof military training and operations.

(10) Ensure, in coordination with theAssistant Secretary of Defense for

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Special Operations and Low-IntensityConflict (ASD(SO/LIC)), the proper useof electronic counter-measures (ECM) byor in support of DoD explosive ordnancedisposal (EOD) personnel whensupporting civil authorities is addressedin interagency agreements andcontingency plans.

(c) The USD(I) shall:

(1) Establish DoD processes andprocedures to provide support tocivilian law enforcement officials withDefense Intelligence Componentresources in accordance withappropriate statutory authorities andDoD and Intelligence Communitypolicy.

(2) Facilitate consultation on DoDpolicy regarding intelligence support oflaw enforcement officials, withappropriate Federal departments andagencies; State, local, and tribalagencies; and the DoD Components.

(d) The IG, DoD, shall issue guidance

on cooperation with civilian lawenforcement officials with respect toaudits and investigations conducted,supervised, monitored, or initiatedpursuant to DoD Directive 5106.01,4Inspector General of the Department ofDefense (IG DoD).

(e) The Under Secretary of Defense forPersonnel and Readiness (USD(P&R))shall monitor and oversee thedevelopment of integrated trainingcapabilities related to defense support tocivilian law enforcement officials andthe integration of these trainingcapabilities into exercises and trainingto build, sustain, and assess readiness inaccordance with DoD Directive1322.18,5 Military Training.

(f) The ASD(RA), under the authority,direction, and control of the USD(P&R),shall assist the ASD(HD&ASA) in thedevelopment of guidance for use byapproving authorities in evaluating theeffect on military preparedness ofrequests for civilian law enforcementassistance that may involve use of theReserve Components.

(g) The Heads of the DoD Componentsshall:

(1) Strictly comply with anddisseminate throughout their

Components the guidance issued by theASD(HD&ASA) pursuant to paragraph(b) of this section.

(2) Identify appropriate resources forcivilian law enforcement support thatare consistent with law and DoD policyto carry out the intent of this part.

(3) Review training and operationalprograms to determine how and where

assistance can best be provided tocivilian law enforcement officials,consistent with the responsibilitiesestablished in this section. This reviewshould include recommendationsregarding activities for whichreimbursement could be waived inaccordance with 182.6(g)(2).

(4) Issue implementing guidance, in

coordination with the ASD(HD&ASA),incorporating the procedures in thispart, including:

(i) Procedures for prompt transfer ofrelevant information to law enforcementagencies.

(ii) Procedures for establishing localcontact points in subordinatecommands for purposes of coordinationwith Federal, State, tribal, and localcivilian law enforcement officials.

(iii) Guidelines for evaluating requestsfor assistance in terms of effect onmilitary readiness of the United States.

(5) Inform the CJCS of all requests

requiring approval of theASD(HD&ASA) or the Secretary ofDefense, in accordance with this part.

(h) The Secretaries of the MilitaryDepartments, in addition to theresponsibilities in paragraph (g) of thissection, shall:

(1) Provide resources to theDoDComponents, consistent with DoDpolicies, goals, and objectives, to carryout the purpose of this part.

(2) Coordinate with the Commandersof the Combatant Commands withDSCA responsibilities to ensure that theneeds of civilian law enforcement

officials for information are taken intoaccount in the planning and executionof military training and operations.

(i) The CJCS, in addition to theresponsibilities in paragraph (g) of thissection, shall:

(1) Assist the ASD(HD&ASA) indeveloping recommendations forresponding to requests for CDO anddeveloping interagency policies onCDO.

(2) Develop processes to evaluate theeffect of requests for civilian lawenforcement assistance on militarypreparedness of the United States.

(3) Advise the Secretary of Defense,ASD(HD&ASA), or Heads of theDoDComponents, upon request, on theeffect on military preparedness of theUnited States of any request for defenseassistance with respect to CDO.

(j) The Commanders of the CombatantCommands with DSCA responsibilities,through the CJCS, shall, in addition tothe responsibilities in paragraph (g) ofthis section:

(1) Provide support of civilian lawenforcement authorities as directed bythe Secretary of Defense.

(2) Implement the provisions of thispart in appropriate training andexercises.

(3) When designated as a supportedcommander, coordinate with supportingDoDComponents all reimbursement forassistance provided under theprovisions of this part.

(4) When designated as a supportedcommander, coordinate with the CJCS,the ASD(HD&ASA), and the ASD(SO/LIC) (for the employment of specialoperations forces) for all militarypreparations and operations, includingthe employment of Federal militaryforces as requested by the AttorneyGeneral and approved by the Secretaryof Defense, as a result of any domesticemergency, including a terroristincident, civil disturbance, or a naturaldisaster. Commanders shall observe allsuch law enforcement policies as theAttorney General may determineappropriate.

(5) For a terrorist incident having thepotential for a request for militaryassistance by mutual agreement of DoDand the Federal Bureau of Investigation(FBI), designated CombatantCommanders may dispatch observers tothe incident site to evaluate thesituation. Any dispatch of DoDcounterterrorism forces must bespecifically authorized by the Secretaryof Defense through the CJCS.

(6) Coordinate with the Secretaries ofthe Military Departments to ensure thatthe needs of civilian law enforcementofficials for information are taken into

account in the planning and executionof military training and operations.

(k) The Commanders of U.S. NorthernCommand (USNORTHCOM), U.S.Pacific Command (USPACOM), andU.S. Special Operations Command(USSOCOM), through the CJCS and inaddition to the responsibilities inparagraphs (g) and (j) of this section,shall:

(1) Serve as the DoD planning agentsfor support of civilian law enforcementactivities, including CDO, following theguidance of the ASD(HD&ASA) and incoordination with the CJCS.

(2) Lead planning activities forsupport of civilian law enforcementactivities, including CDO, of theDoDComponents in accordance with 182.6(b)(3). Serve as the DoD financialmanagers for their respective CDOoperations in accordance with 182.6(g)(2).

(l) The Chief, NGB, shall:(1) Implement the procedures in this

part.(2) Assist the ASD(HD&ASA) in

accordance with DoD Directive

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5105.77,6 National Guard Bureau(NGB), in developing policy guidanceregarding the use of NG personnel forDoD support of civilian lawenforcement agencies.

(3) Assist the ASD(HD&ASA) in thedevelopment of policy guidance for use

by approving authorities in evaluatingthe effect on military preparedness if

NG personnel are used to fulfill requestsfor civilian law enforcement assistance.

(4) Serve as an advisor to theCommanders of the CombatantCommands on NG matters pertaining toCombatant Command responsibilitiesunder this part, and support planningand coordination for such activities asrequested by the CJCS or theCommanders of other CombatantCommands.

(5) On all matters pertaining to theNG, serve as the channel ofcommunications between: the Secretaryof Defense, the CJCS, and the DoD

Components (other than the Departmentof the Army and the Department of theAir Force); and the States. The Chief,NGB, shall keep the Secretaries of theArmy and the Air Force informed of allcommunications unless otherwisedirected by the Secretary of Defense.

(6) Coordinate the sharing of Statecontingency plans for the use of non-federalized NG forces in CDO roles

between the responsible State AdjutantsGeneral and the responsible CombatantCommander.

182.6 Procedures.

(a) Participation of DoD Personnel in

Civilian Law Enforcement Activities(1) Guiding Statutory Requirements andSupporting Policies(i) StatutoryRestrictions. (A) The primary restrictionon DoD participation in civilian lawenforcement activities is the PosseComitatus Act. It provides that whoeverwillfully uses any part of the Army orthe Air Force as a posse comitatus orotherwise to execute U.S. laws, exceptin cases and under circumstancesexpressly authorized by the Constitutionor Act of Congress, shall be fined undertitle 18, U.S.C., or imprisoned not morethan 2 years, or both.

(B) 10 U.S.C. 375 provides that theSecretary of Defense shall prescribesuch regulations as may be necessary toensure that any activity (including theprovision of any equipment or facility orthe assignment or detail of anypersonnel) under 10 U.S.C. chapter 18does not include or permit directparticipation by a member of the Army,Navy, Air Force, or Marine Corps in asearch, seizure, arrest, or other similar

activity unless participation in suchactivity by such member is otherwiseauthorized by law.

(ii) Permissible Direct Assistance.Categories of active participation indirect law-enforcement-type activities(e.g., search, seizure, and arrest) that arenot restricted by law or DoD policy are:(A) Actions taken for the primary

purpose of furthering a DoD or foreignaffairs function of the United States,regardless of incidental benefits tocivilian authorities. This does notinclude actions taken for the primarypurpose of aiding civilian lawenforcement officials or otherwiseserving as a subterfuge to avoid therestrictions of the Posse Comitatus Act.Actions under this provision mayinclude (depending on the nature of theDoD interest and the authoritygoverning the specific action inquestion):

(1) Investigations and other actions

related to enforcement of the UniformCode of Military Justice (10 U.S.C.chapter 47).

(2) Investigations and other actionsthat are likely to result in administrativeproceedings by the Department ofDefense, regardless of whether there isa related civil or criminal proceeding.(See DoD Instruction 5525.07 7 and theMemorandum of Agreement Betweenthe Attorney General and the Secretaryof Defense with respect to matters inwhich the Department of Defense andthe Department of Justice both have aninterest.)

(3) Investigations and other actionsrelated to a commanders inherentauthority to maintain law and order ona DoD installation or facility.

(4) Protection of classified defenseinformation or equipment or controlledunclassified information (e.g., tradesecrets and other proprietaryinformation), the unauthorizeddisclosure of which is prohibited bylaw.

(5) Protection of DoD personnel,equipment, and official guests.

(6) Such other actions that areundertaken primarily for a military orforeign affairs purpose.

(B) Audits and investigationsconducted by, under the direction of, orat the request of the IG, DoD, pursuantto the Inspector General Act of 1978, asamended.

(C) When permitted under emergencyauthority in accordance with 32 CFRpart 185, Federal military commandershave the authority, in extraordinaryemergency circumstances where priorauthorization by the President is

impossible and duly constituted localauthorities are unable to control thesituation, to engage temporarily inactivities that are necessary to quelllarge-scale, unexpected civildisturbances because:

(1) Such activities are necessary toprevent significant loss of life or wantondestruction of property and are

necessary to restore governmentalfunction and public order; or

(2) When duly constituted Federal,State, or local authorities are unable ordecline to provide adequate protectionfor Federal property or Federalgovernmental functions. Federal action,including the use of Federal militaryforces, is authorized when necessary toprotect Federal property or functions.

(D) DoD actions taken pursuant to 10U.S.C. 331334, relating to the use ofFederal military forces in specifiedcircumstances with respect toinsurrection, domestic violence, or

conspiracy that hinders the execution ofState or Federal law.

(E) Actions taken under expressstatutory authority to assist officials inexecuting the laws, subject to applicablelimitations. The laws that permit directDoD participation in civilian lawenforcement include:

(1) Protection of national parks andcertain other Federal lands consistentwith 16 U.S.C. 23, 78, and 593.

(2) Enforcement of the FisheryConservation and Management Act of1976, as amended, pursuant to 16 U.S.C.1861(a).

(3) Assistance in the case of crimesagainst foreign officials, official guestsof the United States, and otherinternationally protected personspursuant to 18 U.S.C. 112 and 1116.

(4) Assistance in the case of crimesagainst Members of Congress, Members-of-Congress-elect, Justices of theSupreme Court and nominees, andcertain senior Executive Branch officialsand nominees in accordance with 18U.S.C. 351.

(5) Assistance in the case of crimesinvolving nuclear materials inaccordance with 18 U.S.C. 831.

(6) Protection of the President, VicePresident, and other designateddignitaries in accordance with 18 U.S.C.1751 and Public Law 94524.

(7) Actions taken in support of theneutrality laws in accordance with 22U.S.C. 408 and 461462.

(8) Removal of persons unlawfullypresent on Indian lands in accordancewith 25 U.S.C. 180.

(9) Execution of quarantine andcertain health laws in accordance with42 U.S.C. 97 and DoD Instruction

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6200.03,8 Public Health EmergencyManagement Within the Department ofDefense.

(10) Removal of unlawful enclosuresfrom public lands in accordance with 43U.S.C. 1065.

(11) Protection of the rights of adiscoverer of an island covered by 48U.S.C. 1418.

(12) Support of territorial governors ifa civil disorder occurs, in accordancewith 48 U.S.C. 1422 and 1591.

(13) Actions in support of certaincustoms laws in accordance with 50U.S.C. 220.

(F) Actions taken to provide searchand rescue support domestically underthe authorities provided in the NationalSearch and Rescue Plan and DoDInstruction 3003.01.9

(iii) Restrictions on Direct Assistance.(A) Except as authorized in this part(e.g., in paragraphs (a) and (b) of thissection), DoD personnel are prohibited

from providing the following forms ofdirect civilian law enforcementassistance:

(1) Interdiction of a vehicle, vessel,aircraft, or other similar activity.

(2) A search or seizure.(3) An arrest; apprehension; stop and

frisk; engaging in interviews,interrogations, canvassing, orquestioning of potential witnesses orsuspects; or similar activity.

(4) Using force or physical violence,brandishing a weapon, discharging orusing a weapon, or threatening todischarge or use a weapon except inself-defense, in defense of other DoDpersons in the vicinity, or in defense ofnon-DoD persons, including civilian lawenforcement personnel, in the vicinitywhen directly related to an assignedactivity or mission.

(5) Evidence collection; securityfunctions; crowd and traffic control; andoperating, manning, or staffingcheckpoints.

(6) Surveillance or pursuit ofindividuals, vehicles, items,transactions, or physical locations, oracting as undercover agents, informants,investigators, or interrogators.

(7) Forensic investigations or other

testing of evidence obtained from asuspect for use in a civilian lawenforcement investigation in the UnitedStates unless there is a DoD nexus (e.g.,the victim is a member of the MilitaryServices or the crime occurred on aninstallation under exclusive DoDjurisdiction) or the responsible civilianlaw enforcement official requesting such

testing declares in writing that theevidence to be examined was obtained

by consent. Requests for exceptions tothis restriction must be made throughchannels to the ASD(HD&ASA), whowill evaluate, in coordination with theGeneral Counsel of the Department ofDefense, whether to seek Secretary ofDefense authorization for an exception

to policy.(B) The use of deputized State or local

law enforcement powers by DoDuniformed law enforcement personnelshall be in accordance with DoDInstruction 5525.13,10 Limitation ofAuthority to Deputize DoD UniformedLaw Enforcement Personnel by Stateand Local Governments.

(C) Except as otherwise directed bythe Secretary of Defense, the rules forthe use of force and authority for thecarrying of firearms by DoD personnelproviding authorized support under thispart shall be in accordance with DoD

Directive 5210.56,11

Carrying ofFirearms and the Use of Force by DoDPersonnel Engaged in Security, Law andOrder, or CounterintelligenceActivities, and any additionalSecretary of Defense-approved rules forthe use of force contained in CJCSInstruction 3121.01B, Standing Rulesof Engagement Standing Rules for theUse of Force for U.S. Forces.

(D) Exceptions to these restrictions forassistance may be granted when theassistance is to be provided outside theUnited States. Only the Secretary ofDefense or the Deputy Secretary ofDefense may grant such exceptions,

based on compelling and extraordinarycircumstances.

(iv) Use of DoD Personnel to Operateor Maintain Equipment. The use of DoDpersonnel to operate or maintain, or toassist in operating or maintaining,equipment shall be limited to situationswhen the use of non-DoD personnel foroperation or maintenance of suchequipment would be unfeasible orimpractical from a cost or timeperspective and would not otherwisecompromise military preparedness ofthe United States. In general, the headof the civilian law enforcement agency

may request a DoD Component toprovide personnel to operate ormaintain, or to assist in operating ormaintaining, equipment for the civilianagency. This assistance shall be subjectto this guidance:

(A) Such assistance may not involveDoD personnel directly participating ina law enforcement operation (as

described in paragraph (a)(1)(iii) of thissection).

(B) The performance of suchassistance by DoD personnel shall be ata location where there is not areasonable likelihood of a confrontation

between law enforcement personnel andcivilians.

(C) The use of DoD aircraft to provide

transportation for civilian lawenforcement agencies may be providedonly in accordance with DoD 4515.13R.12

(D) A request for DoD personnel tooperate or maintain, or to assist inoperating or maintaining, equipmentmust be made pursuant to 10 U.S.C. 374or other applicable law that permitsDoD personnel to provide suchassistance to civilian law enforcementofficials. A request that is madepursuant to 10 U.S.C. 374 must be made

by the head of a civilian agencyempowered to enforce any of these laws:

(1) 21 U.S.C. 801904 and 951971.(2) 8 U.S.C. 13241328.(3) A law relating to the arrival or

departure of merchandise, as defined in19 U.S.C. 1401, into or out of thecustoms territory of the United States, asdefined in 19 U.S.C. 1401, or any otherterritory or possession of the UnitedStates.

(4) 46 U.S.C. chapter 705.(5) Any law, foreign or domestic,

prohibiting terrorist activities.(E) In addition to the assistance

authorized under paragraph (a)(1)(ii)(A)of this section:

(1) DoD personnel may be made

available to a Federal law enforcementagency to operate or assist in operatingequipment, to the extent the equipmentis used in a supporting role, withrespect to:

(i) A criminal violation of the lawsspecified in paragraph (a)(1)(iv)(D) ofthis section.

(ii) Assistance that the Federal lawenforcement agency is authorized tofurnish to a State, local, or foreigngovernment that is involved in theenforcement of laws similar to those inparagraph (a)(1)(iv)(D) of this section.

(iii) A foreign or domestic counter-terrorism operation, including support

of FBI Joint Terrorism Task Forces.(iv) Transportation of a suspected

terrorist from a foreign country to theUnited States to stand trial.

(2) DoD personnel made available toa civilian law enforcement agencypursuant to 10 U.S.C. 374 may operateequipment for:

(i) Detection, monitoring, andcommunication of the movement of airand sea traffic.

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13Available from OASD(HD&ASA)/Room 3D247,2600 Defense Pentagon, Washington, DC 20301.

14Available from OASD(HD&ASA)/Room 3D247,2600 Defense Pentagon, Washington, DC 20301.

(ii) Detection, monitoring, andcommunication of the movement ofsurface traffic outside of the geographic

boundary of the United States and, if theinitial detection occurred outside of the

boundary, within the United States, notto exceed 25 miles of the boundary.

(iii) Aerial reconnaissance (does notinclude satellite reconnaissance).

(iv) Interception of vessels or aircraftdetected outside the land area of theUnited States for the purposes ofcommunicating with such vessels andaircraft to direct such vessels andaircraft to go to a location designated byappropriate civilian officials.

(v) Operation of equipment tofacilitate communications in connectionwith the law enforcement programsspecified in paragraph (a)(1)(iv)(D) ofthis section.

(vi) The following activities that aresubject to joint approval by theSecretary of Defense and the Attorney

General (and the Secretary of State inthe case of a law enforcement operationoutside of the land area of the UnitedStates): the transportation of civilianlaw enforcement personnel along withany other civilian or military personnelwho are supporting, or conducting, ajoint operation with civilian lawenforcement personnel; the operation ofa base of operations for civilian lawenforcement and supporting personnel;and the transportation of suspectedterrorists from foreign countries to theUnited States for trial (so long as therequesting Federal law enforcement

agency provides all security for suchtransportation and maintains custodyover the suspect through the duration ofthe transportation).

(vii) The detection, monitoring, andtracking of the movement of weapons ofmass destruction under thecircumstances described above whenoutside the United States.

(F) DoD personnel made available tooperate equipment for the purposes inparagraphs (a)(1)(iv)(E)(2)(i) and(a)(1)(iv)(E)(2)(iv) of this section maycontinue to operate such equipment incases involving the pursuit of vessels oraircraft into the land area of the UnitedStates where the detection beganoutside such land area.

(G) With the approval of the Secretaryof Defense, DoD personnel may be madeavailable to any Federal, State, or localcivilian law enforcement agency tooperate equipment for purposes otherthan described in paragraph (a)(2) ofthis section, only to the extent that suchsupport does not involve directassistance by such personnel in acivilian law enforcement operationunless such direct participation is

otherwise authorized by law and isauthorized by the Secretary of Defense.

(H) Nothing in this part restricts theauthority of Federal militarycommanders to take emergency actionto prevent loss of life or wantondestruction of property as provided inparagraph (a)(1)(ii)(C) of this section.

(I) When DoD personnel are otherwise

assigned to provide assistance withrespect to the laws specified inparagraph (a)(1)(ii)(E) of this section, theparticipation of such personnel shall beconsistent with the limitations in suchlaws, if any, and such restrictions asmay be established by policy or the DoDComponents concerned.

(v) Expert Advice. DoD Componentsmay provide, subject to paragraph (a)(5)of this section, expert advice to Federal,State, or local law enforcement officialsin accordance with 10 U.S.C. 373. Thisdoes not permit direct assistance byDoD personnel in activities that are

fundamentally civilian law enforcementoperations, except as otherwiseauthorized in this section.

(vi) Training. (A) The DoDComponents may provide, subject toparagraph (a)(5) of this section, trainingto Federal, State, and local civilian lawenforcement officials. This does notpermit large-scale or elaborate DoDtraining, and does not permit regular ordirect involvement of DoD personnel inactivities that are fundamentally civilianlaw enforcement operations, except asotherwise authorized in this section.

(B) Training of Federal, State, andlocal civilian law enforcement officials

shall be provided according to thisguidance:

(1) Assistance shall be limited tosituations when the use of non-DoDpersonnel would be unfeasible orimpractical from a cost or timeperspective and would not otherwisecompromise military preparedness ofthe United States.

(2) Assistance may not involve DoDpersonnel participating in a lawenforcement operation, except asotherwise authorized by law.

(3) Assistance of DoD personnel shallbe provided at a location where there is

not a reasonable likelihood of aconfrontation between law enforcementpersonnel and civilians, except asotherwise authorized by this part.

(C) This paragraph does not apply toadvanced military training, which isaddressed in Deputy Secretary ofDefense Memorandum, DoD TrainingSupport to U.S. Civilian LawEnforcement Agencies, June 29,1996,13 and Deputy Secretary of Defense

Memorandum, Request for Exceptionto Policy, November 12, 1996.14Additional exceptions to the policy inDeputy Secretary of DefenseMemorandum, DoD Training Supportto U.S. Civilian Law EnforcementAgencies, may be requested on a case-

by-case basis. Requests for suchexceptions shall be forwarded through

the ASD(HD&ASA). Advanced militarytraining:

(1) Includes advanced marksmanshiptraining, including sniper training,military operations in urban terrain(MOUT), advanced MOUT, closequarters battle/close quarters combat,and similar training.

(2) Does not include basic militaryskills such as basic marksmanship,patrolling, mission planning, medical,and survival.

(vii) Other Permissible Assistance.These forms of indirect assistance arenot prohibited by law or DoD policy:

(A) Transfer to Federal, State, or locallaw enforcement officials of informationacquired in the normal course of DoDoperations that may be relevant to aviolation of any Federal or State laws.

(B) Information obtained throughprocedures, means, or devicesauthorized by Federal law exclusivelyfor use in gathering, obtaining, oracquiring national intelligence ormilitary intelligence may be transferredunless specifically prohibited by law.Information shall not be transferred if itmeets any of the following criteria:

(1) The acquisition of that informationviolates applicable law protecting the

privacy or constitutional rights of anyperson, including rights protected by 5U.S.C. 552a (also known as ThePrivacy Act of 1974, as amended).

(2) It would have been illegal for thosecivilian law enforcement officials tohave obtained the information oremploy the procedures, means, ordevices used by the DoD Component toobtain the information.

(C) Such other actions, approved inaccordance with procedures established

by the DoD Components concerned, thatdo not subject civilians to the use ofDoD power that is regulatory,prescriptive, proscriptive, or

compulsory.(2) Exceptions Based on Status. The

restrictions in paragraph (a) of thissection do not apply to:

(i) A member of a Reserve Componentwhen not on active duty, active duty fortraining, or inactive duty for training.

(ii) A member of the NG when not inFederal service.

(iii) A civilian employee. If thecivilian employee is under the direct



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control of a military officer, assistancewill not be provided unless it ispermitted by paragraph (a)(3) of thissection.

(iv) A member of a Military Servicewhen off duty and in a private capacity.A Service member is acting in a privatecapacity when he or she responds on hisor her own volition to assist law

enforcement officials instead of actingunder the direction or control of DoDauthorities.

(v) A member of the Civil Air Patrol,except when performing missionspursuant to 10 U.S.C. 9442(b).

(3) Exceptions Based on MilitaryService. By policy, Posse Comitatus Actrestrictions (as well as other restrictionsin this part) are applicable to theDepartment of the Navy (including theMarine Corps) with such exceptions asthe Secretary of Defense may authorizein advance on a case-by-case basis.

(i) Such exceptions shall include

requests from the Attorney General forassistance pursuant to 21 U.S.C. 873(b).

(ii) Requests for approval of otherexceptions should be made by a seniorofficial of the civilian law enforcementagency concerned, who verifies that:

(A) The size or scope of the suspectedcriminal activity poses a serious threatto the interests of the United States andenforcement of a law within thejurisdiction of the civilian agency would

be seriously impaired if the assistancewere not provided because civilianassets are not available to perform themission; or

(B) Civilian law enforcement assetsare not available to perform the mission,and temporary assistance is required onan emergency basis to prevent loss oflife or wanton destruction of property.

(4) Military Readiness. Assistancemay not be provided if such assistancecould adversely affect militarypreparedness. Implementing documentsissued by the Heads of the DoDComponents shall ensure that approvalfor the disposition of equipment isvested in officials who can assess theeffect of such disposition on militarypreparedness.

(5) Approval Authority. Requests bycivilian law enforcement officials foruse of DoD personnel to provideassistance to civilian law enforcementagencies shall be forwarded to theappropriate approval authority.

(i) The Secretary of Defense is theapproval authority for requests for directassistance in support of civilian lawenforcement agencies, including thoseresponding with assets with thepotential for lethality, except for the useof emergency authority as provided inparagraph (a)(1)(ii)(C) of this section and

in 32 CFR part 185, and except asotherwise provided below.

(ii) Requests that involve the DefenseIntelligence and Counterintelligenceentities are subject to approval by theSecretary of Defense and the guidancein DoD Directive 5240.01 15 and DoD5240.1R.

(iii) The Secretaries of the Military

Departments and the Directors of theDefense Agencies may, in coordinationwith the ASD(HD&ASA), approve theuse of DoD personnel:

(A) To provide training or expertadvice in accordance with paragraphs(a)(1)(v) and (a)(1)(vi) of this section.

(B) For equipment maintenance inaccordance with paragraph (a)(1)(iv) ofthis section.

(C) To monitor and communicate themovement of air and sea traffic inaccordance with paragraphs(a)(1)(iv)(E)(2)(i) and (a)(1)(iv)(E)(2)(iv)of this section.

(iv) All other requests, includingthose in which subordinate authoritiesrecommend disapproval, shall besubmitted promptly to theASD(HD&ASA) for consideration by theSecretary of Defense, as appropriate.

(v) The views of the CJCS of shall beobtained on all requests that areconsidered by the Secretary of Defenseor the ASD(HD&ASA), that otherwiseinvolve personnel assigned to a unifiedor specified command, or that mayaffect military preparedness.

(vi) All requests that are to beconsidered by the Secretary of Defenseor the ASD(HD&ASA) that may involve

the use of Reserve Componentpersonnel or equipment shall becoordinated with the ASD(RA). Allrequests that are to be considered by theSecretary of Defense or theASD(HD&ASA) that may involve the useof NG personnel also shall becoordinated with the Chief, NGB. Allrequests that are to be considered by theSecretary of Defense or theASD(HD&ASA) that may involve the useof NG equipment also shall becoordinated with the Secretary of theMilitary Department concerned and theChief, NGB.

(b) DoD Support of CDO. (1) GuidingStatutory Requirements and SupportingPolicies. (i) The President is authorized

by the Constitution and laws of theUnited States to employ the ArmedForces of the United States to suppressinsurrections, rebellions, and domesticviolence under various conditions andcircumstances. Planning andpreparedness by the FederalGovernment, including DoD, for civil

disturbances is important due to thepotential severity of the consequences ofsuch events for the Nation and thepopulation.

(ii) The primary responsibility forprotecting life and property andmaintaining law and order in thecivilian community is vested in Stateand local governments. Supplementary

responsibility is vested by statute inspecific agencies of the FederalGovernment other than DoD. ThePresident has additional powers andresponsibilities under the Constitutionof the United States to ensure that lawand order are maintained.

(iii) Any employment of Federalmilitary forces in support of lawenforcement operations shall maintainthe primacy of civilian authority, and,unless otherwise directed by thePresident, responsibility for themanagement of the Federal response tocivil disturbances rests with theAttorney General. The Attorney Generalis responsible for receiving Staterequests for Federal military assistance,coordinating such requests with theSecretary of Defense and otherappropriate Federal officials, andpresenting such requests to thePresident who will determine whatFederal action will be taken.

(iv) The employment of Federalmilitary forces to control civildisturbances shall only occur in aspecified civil jurisdiction underspecific circumstances as authorized bythe President, normally throughissuance of an Executive order or other

Presidential directive authorizing anddirecting the Secretary of Defense toprovide for the restoration of law andorder in a specific State or locality inaccordance with 10 U.S.C. 331334.

(v) Planning by the DoD Componentsfor CDO shall be compatible withcontingency plans for national securityemergencies, and with planning forDSCA pursuant to 32 CFR part 185. Forexample:

(A) Guidelines concerning the use ofdeputized State or local lawenforcement powers by DoD uniformedlaw enforcement personnel are outlined

in DoD Instruction 5525.13.(B) Guidelines concerning the use ofdeadly force and/or the carrying offirearms by DoD personnel whileengaged in duties related to security orlaw and order, criminal investigations,or counterintelligence investigations;protecting personnel; protecting vitalGovernment assets; or guardingGovernment installations and sites,property, and persons (includingprisoners) are outlined in DoD Directive5210.56 and any additional Secretary ofDefense-approved rules for the use of

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force contained in CJCS Instruction3121.01B, Standing Rules ofEngagement/Standing Rules for the Useof Force for U.S. Forces, June 13, 2005.

(2) DoD Requirements. (i) Federalmilitary forces shall not be used forCDO unless specifically authorized bythe President, except under emergencyauthority as provided in 32 CFR part

185 and paragraph (a)(1)(ii)(C) of thissection.

(ii) Federal military forces shall bemade available for CDO as directed bythe President. The Secretary of Defenseor other authorized DoD official may,where authorized and consistent withthe direction of the President, establishthe source and composition of thoseforces to achieve appropriate balancewith other national security or DoDpriorities.

(iii) Federal military forces employedin CDO shall remain under Secretary ofDefense command and control at all

times.(iv) The pre-positioning of Federal

military forces for CDO shall not exceeda battalion-sized unit in a singlelocation unless a larger force isauthorized by the President.

(v) DoD Components shall not takecharge of any function of civilgovernment unless absolutely necessaryunder conditions of extreme emergency(e.g., when using emergency authorityas described in 32 CFR part 185 andparagraph (a)(1)(ii)(C) of this section).Any commander who is directed, orundertakes, to control such functions

shall strictly limit DoD actions toemergency needs and shall facilitate thereestablishment of civil responsibility atthe earliest time possible.

(3) CDO Planning. (i) To ensureessential control and soundmanagement of all Federal militaryforces employed in CDO, centralizeddirection from the Secretary of Defense,through the ASD(HD&ASA), shall guideplanning by the DoD Components,whether alone or with civil authorities.Execution of CDO missions shall bedecentralized through the Commandersof USNORTHCOM, USPACOM, orUSSOCOM, or through joint task forcecommanders, and only whenspecifically directed by the Secretary ofDefense or as described in paragraph(a)(1)(ii)(C) of this section.

(ii) The Commanders ofUSNORTHCOM, USPACOM, andUSSOCOM, as the DoD planning agentsfor CDO in accordance with 182.5(k) ofthis part, shall lead the CDO planningactivities of the DoD Components inthese areas:

(A) USNORTHCOM. The 48contiguous States, Alaska, the District of

Columbia, the Commonwealth of PuertoRico, and the U.S. Virgin Islands.

(B) USPACOM. Hawaii and the U.S.possessions and territories in the Pacificarea.

(C) USSOCOM. CDO activitiesinvolving special operations forces.

(iii) CDO plans and readinessmeasures shall foster efficient

employment of Federal equipmentcontrolled by NG forces, whetheremployed under State or Federalauthority, as well as other resources ofthe DoD Components.

(4) Role of the National Guard. (i) NGforces in a State active duty status haveprimary responsibility to support Stateand local Government agencies fordisaster responses and in domesticemergencies, including in response tocivil disturbances; such activities would

be directed by, and under the commandand control of, the Governor, inaccordance with State or territorial law

and in accordance with Federal law.(ii) NG forces may be ordered orcalled into Federal service to ensureunified command and control of allFederal military forces for CDO whenthe President determines that action to

be necessary in extreme circumstances.(iii) Federal military forces shall

conduct CDO in support of the AttorneyGeneral or designee (unless otherwisedirected by the President) to assist Statelaw enforcement authorities. Federalmilitary forces will always remainunder the command and control of thePresident and Secretary of Defense.Federal military forces also could

conduct CDO in concert with State NGforces under the command of a dual-status commander, if determined to beappropriate by the Secretary of Defenseand the Governor(s) concerned, or inclose coordination with State NG forcesusing direct liaison.

(iv) Chief, NGB, will coordinate thesharing of State contingency plans forthe use of non-federalized NG forces inCDO roles between the responsible StateAdjutants General and the responsibleCombatant Commander.

(5) Cooperation with Civil Authorities.(i) The Attorney General shall receive

and coordinate preliminary requests forCDO from civil authorities pursuant to10 U.S.C. 331334.

(A) Formal requests for CDO shall beaddressed to the President.

(B) The Attorney General may assigna component law enforcement agency ofthe Department of Justice, such as theFBI or Bureau of Alcohol, Tobacco,Firearms, and Explosives, to lead theoperational response to a civildisturbance incident.

(C) The President may provide,through the Attorney General or other

Federal official, a personalrepresentative to communicate thePresidents policy guidance to themilitary commander conducting CDO.That representative may augment, butshall not replace, the military chain ofcommand. In addition, an individualmay be designated by the AttorneyGeneral as the Senior Civilian

Representative of the Attorney General.(ii) The ASD(HD&ASA) shall

represent DoD in coordinating CDOplanning and execution with theDepartment of Justice, and other Federaland State law enforcement agencies, asappropriate.

(6) Approval Authority. (i) ThePresident is the approval authority forrequests for assistance for CDO, exceptfor emergency authority as provided inparagraph (a)(1)(ii)(C) of this section andin 32 CFR part 185.

(ii) If the President directs the use ofFederal military forces for CDO, the

ASD(HD&ASA) and the CJCS shallprovide advice to the Secretary ofDefense regarding the employment ofDoD personnel and resources toimplement the direction of thePresident. Secretary of Defense approvalof such employment shall becommunicated to the CombatantCommanders through the CJCS.

(iii) The ASD(HD&ASA) shall provideany request, contingency plan, directive,or order affecting the employment ofspecial operations forces to theASD(SO/LIC), who supervises theactivities of those forces on behalf of theSecretary of Defense in accordance withDoD Directive 5111.10,16 AssistantSecretary of Defense for SpecialOperations and Low-Intensity Conflict(ASD(SO/LIC)).

(iv) Additionally, the ASD(HD&ASA),in coordination with the ASD(SO/LIC)for the employment of specialoperations forces, shall provide overallpolicy oversight of the employment ofDoD personnel and resources for CDOresponding to terrorist incidents andother similar events in coordinationwith the CJCS.

(c) Domestic EOD Support of CivilianLaw Enforcement Agencies.

(1) Guiding Statutory Requirementsand Supporting Policies. DoD EODpersonnel may provide immediateresponse for EOD support in support ofcivil authorities, when requested, inaccordance with 32 CFR part 185 andmay provide for disposition of militarymunitions in accordance with 40 CFRparts 260270.

(2) DoD Requirements. (i) DoDpersonnel will not participate in search

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17Available at http://www.dtic.mil/whs/directives/corres/pdf/605509m/605509-M-V7.pdf.


19Available at http://www.dtic.mil/whs/directives/corres/pdf/510076m.pdf.

or seizure of ordnance as part of acivilian law enforcement investigation.DoD personnel may, as described inparagraph (c) of this section, render safemilitary munitions and take possessionof military munitions for appropriatedisposition at the request of civilian lawenforcement officials when suchmilitary munitions have already been

discovered and seized by civilian lawenforcement personnel.

(ii) DoD officials, including localmilitary commanders, may provide EODand explosive detection dog support tolocal civil authorities to save lives,prevent human suffering, and mitigategreat property damage underimminently serious conditions inaccordance with 32 CFR part 185.Guidance for planning and executionrequirements for CombatantCommanders and the MilitaryDepartments in responding to DoDmilitary munitions is found in DoD

Manual 6055.09, Volume 7,17

DoDAmmunition And Explosives SafetyStandards: Munitions, and MaterialPotentially Presenting an ExplosiveHazard.

(iii) Such an immediate response mayinclude actions to provide advice andassistance to civil authorities, whenrequested, in the mitigation, renderingsafe, and disposition of suspected ordetected presence of unexplodedordnance (UXO), damaged ordeteriorated explosives or munitions, animprovised explosive device (IED),other potentially explosive material ordevice, or other potentially harmfulmilitary chemical munitions or device,that creates an actual or potentialimminent threat.

(iv) Military munitions, discardedmilitary munitions, and UXO in anunauthorized location under thejurisdiction of public officialspotentially present an imminent andsubstantial danger to public safety andhealth and to the environment, and mayrequire an immediate EOD response.

(A) These conditions include:(1) Items that were illegally removed

from military installations.(2) Military munitions that land off

range.(3) Munitions located on property

formerly leased or owned by DoD(including manufacturing areas, pads,pits, basins, ponds, streams, burial sites,and other locations incident to suchoperations).

(4) Transportation accidents involvingmilitary munitions.

(5) Unauthorized public possession ofmilitary munitions.

(B) Military munitions found in theconditions in paragraph (c)(2)(iv) of thissection should be considered extremelyhazardous and should not be disturbedor moved until technically qualifiedEOD personnel assess and determine thehazard.

(C) DoD officials, including localmilitary commanders:

(1) Will provide EOD support formilitary munitions, discarded militarymunitions, and UXO that have (orappear to have) DoD origins.

(2) May, in accordance with 32 CFRpart 185, provide EOD support formilitary munitions or foreign ordnancethat do not appear to have DoD originsfound in the United States under theconditions in paragraph (c)(2)(iv) of thissection.

(v) Rendering safe and disposing ofimprovised devices, non-militarycommercial explosives, or similardangerous articles reported or

discovered outside of DoD installationsare primarily the responsibility of civilauthorities. However, due to thepotential lethality and danger to publicsafety, DoD EOD personnel may provideassistance upon request in accordancewith 32 CFR part 185.

(vi) When responding to requests forassistance from civil authorities underimmediate response authority pursuantto 32 CFR part 185, the closest capableEOD unit regardless of Military Servicewill provide support.

(vii) Requests from civil authoritiesfor non-immediate DoD EOD support

are subject to approval by the Secretaryof Defense. Examples of non-immediateDoD EOD support include, but are notlimited to, post-blast analysis, use ofDoD material and equipment, andsupport of pre-planned events.Exceptions include those activities insupport of the U.S. Secret Service that,in accordance with DoD Directive3025.13,18 Employment of DoDCapabilities in Support of the U.S.Secret Service (USSS), Department ofHomeland Security (DHS), do notrequire Secretary of Defense approvaland those activities undertaken in

response to requests for technicalassistance or assessment of militarymunitions that are performed solely forsafety purposes.

(viii) DoD EOD forces providingsupport under immediate responseauthority under 32 CFR part 185 willalso comply with 40 CFR parts 260270,Hazardous Waste Management System:General, and other applicable local,State, and Federal laws and regulations,

including environmental laws andregulations.

(ix) The National Joint Operations andIntelligence Center (NJOIC) and theFBIs Strategic Information OperationsCenter shall be advised immediately ofthe recovery and disposition of militarymunitions, as well as responses to non-military munitions and explosives. DoD

Components also shall ensure thatreports are submitted within 72 hours,in accordance with 18 U.S.C. 846 andDoD Manual 5100.76,19 PhysicalSecurity of Sensitive ConventionalArms, Ammunitions, and Explosives(AA&E), to: Bureau of Alcohol,Tobacco, Firearms, and Explosives, U.S.Bomb Data Center, 99 New York Ave.NE., 8S 295, Washington, DC 20226.

(3) Planning and Execution. (i)Combatant Commanders will:

(A) Maintain situational awareness ofall EOD elements in support of civilauthorities, consolidate Service EOD

incident reports, and provide to theASD(HD&ASA) and the ASD(SO/LIC) amonthly consolidated reporthighlighting:

(1) DoD EOD support of civilauthorities, resources, and work-hoursexpended.

(2) Final determination of the item, aswell as the agency supported.

(3) Final disposition of the hazard, aswell as a cost estimate of the supportprovided.

(4) A status of reimbursement by thesupported entity. Reimbursement willnot be sought for EOD response tomilitary munitions that have (or appear

to have) DoD origins.(B) Coordinate with the DoD

Explosives Safety Board and theExecutive Manager for EOD Trainingand Technology to ensure informationsharing.

(ii) In situations where DoD EODpersonnel are asked to provide supportto DOJ/FBI in conducting electroniccountermeasures (ECM), such personnelmay only employ ECM in the UnitedStates if approved by the Secretary ofDefense and in accordance with the DOJprogram for applying ECM in the UnitedStates in response to threats of radio-

controlled improvised explosive devices(DOJ Federal ECM Program) approvedby the National Telecommunicationsand Information Administration (NTIA)(see Section 7.25 of the NTIA Manual ofRegulations and Procedures for FederalRadio Frequency Management). NTIAhas approved the use of DoD militaryECM assets in support of the DOJFederal ECM Program, however, onlythose DoD military ECM assets/systems

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that have been approved by NTIA foremployment in the United States underthe DOJ Federal ECM Program may beused by DoD EOD personnel inproviding the requested support to DOJ/FBI.

(A) DoD officials may provide ECMequipment, and expert advice regardingthe FBIs use of the equipment, in

accordance with paragraph (c)(2) of thissection when the FBI has approved useof ECM and when there is insufficienttime to obtain Secretary of Defenseapproval.

(B) All use of ECM equipment ordevices while conducting EODoperations supporting civil authoritieswill be coordinated with and followprocedures established by the FBIsStrategic Information Operations Centerand reported to the NJOIC.

(iii) In consideration of the MilitaryDepartments and the CombatantCommanders planning requirements

and in consultation with appropriatelocal civilian agencies, installationcommanders will identify off-installation critical infrastructure andkey resources, such as nuclear powerstations, power plants, communicationshubs, and water treatment plants.Combatant Commanders and otherresponsible DoD officials will assist indeveloping priorities for EOD support ofcivil authorities. Installations withoutresident EOD forces will develop plansto seek support from the nearest DoDEOD organization.

(iv) Combatant Commanders, as

appropriate, will maintain situationalawareness of all EOD elements insupport of civil authorities, coordinateand de-conflict Military Services EODdomestic areas of response, and developconsolidated reporting procedures topermit accurate and timely collection ofdata from the supporting Services.

(v) Service EOD reports shall be usedto indicate that DoD is reclaimingaccountability of DoD militarymunitions that were found outside thecustody of DoD. The MilitaryDepartments will forward reports ofreclaimed military munitions to

installations for ammunitions logisticsmanagement and submission to the DoDExplosives Safety Board in accordancewith DoD Manual 6055.09, Volume 7,DoD Manual 5100.76, and DoDInstruction 5160.68,20 Single Managerfor Conventional Ammunition (SMCA):Responsibilities of the SMCA, theMilitary Services, and the United StatesSpecial Operations Command(USSOCOM).

(vi) Reimbursement is not required forEOD support involving militarymunitions, discarded militarymunitions, and UXO that have DoDorigins or appear to have DoD origins.Combatant Commanders will coordinatewith the DoD Explosives Safety Boardand the Executive Manager for EODTraining and Technology to ensure

information sharing.(vii) In accordance with DoD

Instruction 6055.17,21 DoD InstallationEmergency Management (IEM)Program, and applicable MilitaryDepartment issuances, commanders ofEOD organizations will:

(A) Coordinate with installationemergency managers to:

(1) Establish local processes andprocedures to respond to and reportmilitary and non-military munitionssupport requests from civil lawenforcement agencies.

(2) Determine priorities of EOD

support for protecting criticalinfrastructure and key resources whenrequested.

(B) Participate in installationemergency response exercises.

(C) Determine training requirementsfor conducting DSCA responsemissions.

(4) Cooperation with Civil Authorities.(i) DoD EOD forces will maintainrelationships with local, State, tribal,and other Federal bomb disposal andother law enforcement agency assetsnear their geographical locations. Suchrelationships may include conferencesand training exercises to increase the

interoperability and integration withlocal bomb squad agencies, to improvethe response capabilities to civilauthorities when requested, and toenhance the consolidated responsecapabilities.

(ii) DoD EOD personnel may conductUXO and explosive ordnance awarenessand education programs that inform andpromote public safety of the hazardsassociated with military munitions andexplosive items.

(d) Domestic terrorist incidentsupport. (1) DoD guidance. Only theSecretary of Defense may authorize the

use of DoD personnel in support ofcivilian law enforcement officialsduring a domestic terrorism incident,except as described in paragraph(d)(1)(ii) of this section. TheCommanders of USNORTHCOM,USPACOM, and USSOCOM, incoordination with the CJCS,ASD(HD&ASA), and ASD(SO/LIC), haveprimary responsibility for all militarypreparations andwhen authorized by

the Secretary of Defenseoperations,including the employment of armedFederal military forces at the scene ofany domestic terrorist incident.

(i) In discharging those functions, theCommanders of USNORTHCOM,USPACOM, and USSOCOM shalloperate in a manner consistent with lawenforcement policies established by theAttorney General.

(ii) When a terrorist incident developsthat has a potential for militaryinvolvement, the Commanders of

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