05-23853. Law Enforcement Reporting

AGENCY:

Department of the Army, DoD.

ACTION:

Proposed rule.

SUMMARY:

The Department of the Army proposes to amend its regulation concerning law enforcement reporting, to implement portions of section 577(b)(5) of the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005, October 28, 2004, Pub. L. 108-375, pertaining to reporting of sexual assaults. This revision also implements Department of Defense policy concerning sexual assault.

DATES:

Comments submitted to the address below on or before January 9, 2006 will be considered.

ADDRESSES:

You may submit comments, identified by “32 CFR Part 635 and RIN 0702-AA52-U in the subject line, by any of the following methods:

• Federal Rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
• E-Mail: [e-mail]. Include 32 CFR Part 635 and RIN 0702-AA52-U in the subject line of the message.
• Mail: Headquarters, Department of the Army, Office of the Provost Marshal General, ATTN: DAPM-MPD-LE, 2800 Army Pentagon, Washington, DC 20310-2800.

FOR FURTHER INFORMATION CONTACT:

Nathan Evans, Policy Analyst, Arlington, VA at [phone].

SUPPLEMENTARY INFORMATION:

A. Background

This rule has previously been published. The Department of Defense and the Department of the Army have implemented policies concerning sexual assault that affect law enforcement reporting. The Administrative Procedure Act, as amended by the Freedom of Information Act, requires that certain policies and procedures and other information concerning the Department of the Army be published in the Federal Register. The policies and procedures covered by this part fall into that category.

B. Regulatory Flexibility Act

The Department of the Army has determined that the Regulatory Flexibility Act does not apply because the proposed rule does not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601-612.

C. Unfunded Mandates Reform Act

The Department of the Army has determined that the Unfunded Mandates Reform Act does not apply because the proposed rule does not include a mandate that may result in estimated costs to State, local or tribal governments in the aggregate, or the private sector, of $100 million or more.

D. National Environmental Policy Act

The Department of the Army has determined that the National Environmental Policy Act does not apply because the proposed rule does not have an adverse impact on the environment.

E. Paperwork Reduction Act

The Department of the Army has determined that the Paperwork Reduction Act does not apply because the proposed rule does not involve collection of information from the public.

F. Executive Order 12630 (Government Actions and Interference With Constitutionally Protected Property Rights)

The Department of the Army has determined that Executive Order 12630 does not apply because the proposed rule does not impair private property rights.

G. Executive Order 12866 (Regulatory Planning and Review)

The Department of the Army has determined that according to the criteria defined in Executive Order 12866 this proposed rule is not a significant regulatory action. As such, the proposed rule is not subject to Office of Management and Budget review under section 6(a)(3) of the Executive Order.

H. Executive Order 13045 (Protection of Children From Environmental Health Risks and Safety Risks)

The Department of the Army has determined that according to the criteria defined in Executive Order 13045 this proposed rule does not apply.

I. Executive Order 13132 (Federalism)

The Department of the Army has determined that according to the criteria defined in Executive Order 13132 this proposed rule does not apply because it will not have a substantial effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

Jeffery B. Porter

Chief, Law Enforcement Policy and Oversight Section.

List of Subjects in 32 CFR Part 635

• Crime
• Law
• Law enforcement
• Law enforcement officers
• Military law

For reasons stated in the preamble the Department of the Army proposes to amend 32 CFR Part 635 to read as follows:

PART 635—LAW ENFORCEMENT REPORTING

1. The authority citation for part 635 continues to read as follows:

Authority: 28 U.S.C. 534 note, 42 U.S.C. 10601, 18 U.S.C. 922, 42 U.S.C. 14071, 10 U.S.C. 1562, 10 U.S.C. Chap. 47, Pub. L. 108-375.

§§ 635.31 and 635.32

[Redesignated as §§ 635.32 and 635.33]

2. Redesignate §§ 635.31 and 635.32 as §§ 635.32 and 635.33, respectively.

§§ 635.33 through 653.36

[Redesignated as §§ 635.34 through 635.37]

3. Redesignate §§ 635.33 through 635.36 as §§ 635.34 through 635.37, respectively.

4. A new § 635.31 is added to Subpart D to read as follows:

§ 635.31

Procedures for Restricted/Unrestricted Reporting in Sexual Assault Cases.

Active duty Soldiers, and Army National Guard and U.S. Army Reserve Soldiers who are subject to military jurisdiction under the UCMJ, can elect either restricted or unrestricted reporting if they are the victim of a sexual assault.

(a) Unrestricted Reporting. Unrestricted reporting requires normal law enforcement reporting and investigative procedures.

(b) Restricted reporting requires that law enforcement and criminal investigative organizations not be informed of a victim's identity and not initiate investigative procedures. The victim may allow Sexual Assault Response Coordinators (SARC), medical treatment facility personnel, or chaplains to collect specific items (clothing, bedding, etc.) that may be later used as evidence, should they decide to later report the incident to law enforcement. In sexual assault cases additional forensic evidence may be collected using the “Sexual Assault Evidence Collection Kit,” NSN 6640-01-423-9132, or a suitable substitute (hereafter, “evidence kit”). The evidence kit, other items such as clothing or bedding sheets, and any other articles provided by the Medical Treatment Facility, SARC, or chaplain will be stored in the installation provost marshal's evidence room separate from other evidence and property. Procedures for handling evidence specified in AR 195-5, Evidence Procedures, will be strictly followed.

(c) Installation Provost Marshals will complete an information report in COPS for restricted reporting. Reports will be completed utilizing the offense code from the 6Z series. An entry will be made in the journal when the sexual assault evidence kit or property (clothing, bedding, etc.) is received. An entry will not be made in the blotter. Restricted reporting incidents are not reportable as Serious Incident Reports. Property will be stored for one year and then scheduled/suspensed for destruction, unless earlier released to investigative authorities. Thirty days prior to destruction of the property, a letter will be sent to the SARC by the Provost Marshal, advising the SARC that the property will be destroyed in thirty days, unless law enforcement personnel are notified by the SARC that the victim has elected unrestricted reporting. Clothing or other personal effects may be released to the SARC for return to the victim. The information report will be updated when the evidence is destroyed, or released to investigative authorities.

(d) In the event that information about a sexual assault that was made under restricted reporting is disclosed to the commander from a source independent of the restricted reporting avenues, or to law enforcement from other sources, the commander may report the matter to law enforcement and law enforcement remains authorized to initiate its own independent investigation of the matter presented. Additionally, a victim's disclosure of his/her sexual assault to persons outside the protective sphere of the persons covered by the restricted reporting policy may result in an investigation of the allegations.