04-8628. Regulations Supplementing the Manual for Courts-Martial

AGENCY:

Department of the Navy, DOD.

ACTION:

Final rule.

SUMMARY:

The Department of the Navy is amending its regulations concerning the closure of pre-trial hearings from the public to reflect recent changes to Chapter I of the Manual of the Judge Advocate General (JAGMAN).

DATES:

Effective April 16, 2004.

FOR FURTHER INFORMATION CONTACT:

LCDR Jason Baltimore, Personnel Law Branch, Administrative Law Division (Code 13), Office of the Judge Advocate General, 1322 Patterson Avenue SE., Suite 3000, Washington Navy Yard, DC 20374-5066, [phone].

SUPPLEMENTARY INFORMATION:

Pursuant to the authority cited below, the Department of the Navy amends 32 CFR part 719. This amendment provides notice that the Judge Advocate General of the Navy has made administrative corrections to the Courts-Martial regulations found in Chapter I of the JAGMAN. It has been determined that invitation of public comment on this amendment would be impractical and unnecessary, and is therefore not required under the public rule-making provisions of 32 CFR parts 336 and 701. However, interested persons are invited to comment in writing on this amendment. All written comments received will be considered in making subsequent amendments or revisions of 32 CFR part 719, or the instructions on which they are based. It has been determined that this final rule is not a major rule within the criteria specified in Executive Order 12866, as amended by Executive Order 13258, and does not have substantial impact on the public. This submission is a statement of policy and as such can be effective upon publication in the Federal Register.

Matters of Regulatory Procedure

Executive Order 12866, Regulatory Planning and Review

This rule does not meet the definition of “significant regulatory action” for purposes of Executive Order 12866, as amended by Executive Order 13258.

Regulatory Flexibility Act

This rule will not have a significant economic impact on a substantial number of small entities for purposes of the Regulatory Flexibility Act (5 U.S.C. Chapter 6).

Paperwork Reduction Act

This rule does not impose collection of information requirements for purposes of the Paperwork Reduction Act (44 U.S.C. Chapter 35, 5 CFR part 1320).

List of Subjects in 32 CFR Part 719

• Trial Matters

For the reasons set forth in the preamble, 32 CFR Part 719 is amended to read as follows:

1. Section 719.115 is amended by revising paragraph (b)(2) to read as follows:

§ 719.115

Release of information pertaining to accused persons; spectators at judicial sessions.

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(b) * * *

(2) At pretrial investigations. Consistent with Rules for Courts-Martial 405(h)(3), Manual for Courts-Martial, the Convening Authority or investigating officer may direct that all or part of an Article 32 investigation under 10 U.S.C. 832 be held in closed session and that all persons not connected with the hearing be excluded therefrom. The decision to exclude spectators may be based on the need to protect classified information, to prevent disclosure of matters that will be inadmissible in evidence at a subsequent trial by Courts-Martial and are of such a nature as to interfere with a fair trial by an impartial tribunal, or consistent with appellate case law, for a reason deemed appropriate by the commander ordering the investigation or the investigating officer. The reasons for closing an Article 32 investigation, and any objections thereto, shall be memorialized and included as an attachment to the report of investigation. Ordinarily, the proceedings of a pretrial investigation should be open to spectators. In cases dealing with classified information, the investigating officer will ensure that any part of a pretrial investigation (e.g., rights advisement) that does not involve classified information will remain open to spectators.

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Dated: April 5, 2004.

J.T. Baltimore,

Lieutenant Commander, Judge Advocate General's Corps, U.S. Navy, Alternate Federal Register Liaison Officer.