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[Federal Register Volume 76, Number 9 (Thursday, January 13, 2011)]
[Rules and Regulations]
[Pages 2246-2253]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-620]

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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 185

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

Defense Support of Civil Authorities (DSCA)

AGENCY: Department of Defense.

ACTION: Final rule.

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the years have made the existing guidance outdated and inconsistent 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

DATES: Effective Date: This rule is effective February 14, 2011.

FOR FURTHER INFORMATION CONTACT: Colonel Brent Feick, 703-697-5415.

SUPPLEMENTARY INFORMATION: The Department of Defense published a 
proposed rule on December 4, 2008 (73 FR 73896-73900). Eighty-four 
comments were received and are addressed below:
    Comment: Thirty-nine of the 84 public comments question the 
Constitutionality of the Department of Defense supporting civil 
authorities domestically. Example: DOD-2008-0085-006 ``The U.S. 
Constitution outlines the use of military force within our borders. We 
don't need this. We need leaders who have respect for our Constitution 
and our Liberty.''
    Response: The rule has been thoroughly reviewed by attorneys at 
several levels of the Departments of Defense, Justice, and Homeland 
Security and found not to violate any provisions of the Constitution. 
The Department of Defense (DoD) has historically been requested by 
civil authorities to provide support or assistance during various types 
of man-made or natural disasters, support for special events such as 
the National Political Conventions, the

[[Page 2247]]

Group of Eight Summit, the Inauguration, the Olympics, the Special 
Olympics, the United Nations General Assembly, and even support to law 
enforcement to help quell civil disobedience and restore public order, 
such as the Los Angeles Riots in 1992. Each of these support missions 
is conducted consistent with the Constitution, applicable law, and 
National policy. This rule sets forth DoD policy guidance for the 
execution and oversight of Defense Support of Civil Authorities when 
support or assistance is requested by civil authorities. The rule, by 
itself, provides no new, separate, or independent authority to the 
President, the Secretary of Defense, or anyone else in the Department 
of Defense.
    Comment: Sixteen of the 84 public comments asserted that the rule 
was in violation of the Posse Comitatus Act (Title 18, United States 
Code, Section 1385). Example: DOD-2008-0085-010 ``The Defense Support 
of Civil Authorities Plan is a violation of Posse Comitatus and will 
sink this once great country to the level of a third world 
dictatorship. The DOD should be fighting for individual freedom in the 
US, not helping to extinguish it.''
    Response: The rule has been thoroughly reviewed by attorneys at 
several levels of the Departments of Defense, Justice, and Homeland 
Security and found not to violate any current law, including the Posse 
Comitatus Act.
    Comment: Eight of the 84 public comments asserted that the rule was 
inconsistent with the Second Amendment to the Constitution. Example: 
DOD-2008-0085-054 ``This proposed regulation is an unconstitutional 
infringement on Second Amendment rights. It also gives excessive power 
to the U.S. Military to serve as an internal police force.''
    Response: The rule has been thoroughly reviewed by attorneys at 
several levels of the Departments of Defense, Justice, and Homeland 
Security and found not to violate any provisions of the Constitution, 
including the Second Amendment. There is no attempt to usurp civilian 
authority or use the military as an internal police force. The rule 
sets forth policy guidance for the execution and oversight of defense 
support of civilian authorities when requested by civil authorities.
    Comment: Seven of the 84 public comments asserted that National 
Guard forces were sufficient to fill this support or assistance role 
under the direction of respective Governors. Example: DOD-2008-0085-002 
``There is no reason to involve the forces of the United States 
military when each state already has National Guard units which can 
fill this role and are under the direction of the Governor. I'm a big 
supporter of a strong US military for the protection of our country 
from outside threats. This redundancy is not only unwarranted, it runs 
against the principles of our founding fathers.''
    Response: The National Guard, when in Federal service or funded by 
the Department of Defense and in coordination with the Governors, is a 
vital component of Defense Support of Civil Authorities. In the 
Department of Defense's Strategy for Homeland Defense and Civil 
Support, there is a focused reliance on the Reserve Components to 
support and assist civil authorities. Individual state National Guard 
units are more capable and better equipped and resourced than during 
any time in their history. But each state National Guard cannot be 
manned, equipped, trained, and resourced to meet the needs of every 
conceivable contingency operation. Most states are part of Regional or 
National Emergency Management Assistance Compacts, which permit the 
Governor of one state to commit that state's resources to support 
another state. This process works very well during localized 
emergencies or disasters, but mutual aid support between states is not 
as efficient during special events or incidents other than localized 
major disasters and emergencies. In the event of multiple, near 
simultaneous, geographically dispersed terrorist attacks in the United 
States, or the rapid spread of a pandemic, it is unknown if Governors 
would release their National Guard capabilities to support another 
state or a Federal Agency if there is a chance that resources would be 
needed in their home states. Many emergencies, disasters, or events 
affect more than one state. It is not realistic to expect Federal 
Departments or Agencies to coordinate requests for assistance or 
support with multiple States, Commonwealths, and Territories. Finally, 
there are some capabilities that are available only in the Active Duty 
military force or in DoD.
    Comment: Five of the 84 public comments asserted that it was the 
military's role to protect against foreign threats only. Example: DOD-
2008-0085-020 ``This proposal is ridiculous and in violation of the 
Constitution. If this is a need that must be met, use the funding it 
would require and invest it in civil law enforcement and emergency 
services. The military is for defending us from foreign aggressors.''
    Response: The rule has been thoroughly reviewed by attorneys at 
several levels of the Departments of Defense, Justice, and Homeland 
Security and found not to violate any provisions of the Constitution. 
Additionally, a number of statutes provide specific authority for DSCA. 
This rule sets forth DoD policy guidance for the execution and 
oversight of defense support of civil authorities. There are no 
provisions for the DoD components to take over what is inherently a 
civilian responsibility, but rather provisions for providing support or 
assistance when requested.
    Comment: Five of the 84 public comments asserted that the proposed 
rule was too broad and gave the military or the President too much 
power. Example: DOD-2008-OS-0085-0036 ``I am opposed to this government 
regulation `Defense Support of Civil Authorities'. It gives power to 
the military to assume civilian law enforcement at the behest of the 
president with no restriction on this power. This is unconstitutional! 
This document is too broad and clearly states that the military can 
intervene at the request of civil authorities OR by presidential 
executive order. This is a very dangerous rule to individual freedom!''
    Response: This rule sets forth DoD policy guidance for the 
execution and oversight of Defense Support of Civil Authorities when 
support or assistance is requested by civil authorities. The rule, by 
itself, provides no new, separate, or independent authority to the 
President, the Secretary of Defense, or anyone else in the Department 
of Defense.
    Comment: Four of the 84 public comments asserted that the rule 
violated or erodes the 10th Amendment to the Constitution. Example: 
DOD-2008-OS-0085-17 ``There is no Constitutional basis for any portion 
of this proposed regulation. Leaving the deployment of our military 
within our own borders to assist with undefined domestic issues to the 
whims of the President is dangerous, adds undue stress on the office, 
and severely erodes the rights afforded to the states under the 10th 
Amendment.''
    Response: This rule sets forth DoD policy guidance for the 
execution and oversight of Defense Support of Civil Authorities when 
support or assistance is requested by civil authorities. The rule, by 
itself, provides no new, separate, or independent authority, nor does 
it violate, restrict, or erode the rights afforded to the states under 
the 10th Amendment. This rule enables civil authorities (See Joint 
Publication 1-02) \1\ to request and receive support or

[[Page 2248]]

assistance from the Department of Defense.
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    \1\ Available by downloading at http://www.dtic.mil/doctrine/new_pubs/jp1_02.pdf.
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    Comment: Three of the 84 public comments expressed concern over the 
inclusion of ``special events'' in the rule. Example: DOD-2008-OS-0085-
0019 ``The role of the US military is to protect us from foreign 
threats. This regulation is overbroad in that it would allow the use of 
the US military to suppress any kind of gathering. As an example, 
consider the Rainbow gatherings, 50-60,000 people exercising their 
right to gather on public lands. Under this regulation, the military 
could be called in to quash this. This regulation essentially guts the 
constitution. Because of clauses like `special events' and `other 
domestic activities' are broad, they could be interpreted to allow 
military intervention in any special event, such as concerts, parades, 
demonstrations, religious conventions, gun shows, political events, 
etc. This regulation establishes de facto marshal (military) law. 
Narrowing this regulation to state `in response to insurrections only' 
would be constitutional. I am adamantly opposed to this rule.''
    Response: The rule sets forth policy guidance for the execution and 
oversight of defense support of civilian authorities when requested by 
civil authorities. In addition to providing capabilities to assist and 
support civilian authorities during emergencies or in response to major 
disasters, DoD is often asked by civilian authorities to provide 
support and assistance for planned special events. As noted in the 
Glossary, a special event is an international or domestic event, 
contest, activity, or meeting, which by its very nature, or by specific 
statutory or regulatory authority, may require security, safety, and/or 
other logistical support or assistance from the Department of Defense. 
Congress has granted to the Secretary of Defense the authority to 
approve DoD support and assistance for certain specific events such as 
the Presidential inaugural, the Boy Scout Jamboree, and certain 
sporting competitions. Each specific authorization establishes 
necessary oversight and controls. DoD support during other special 
events, such as the Presidential nominating conventions, such as the 
United Nations General Assembly, Super Bowls, and the Group of Eight 
Economic Summit, are in reality, DoD supporting other civil authorities 
like the United States Secret Service, which is authorized under 18 
U.S.C. 3056, when directed by the President, to plan, coordinate, and 
implement security operations at special events. DoD support at such 
events is generally in support of other federal agencies, such as the 
Federal Bureau of Investigation, as well as state and local entities 
such as the Colorado Office of Homeland Security, or the San Diego 
Police Department. DoD has very limited authority to deploy DoD 
resources in support of event organizers.
    In addition to the comments received above, the following has been 
included in the final rule based on internal comments received on the 
corresponding DoD instruction: Provisions regarding the ``emergency 
authority'' of responsible DoD officials and commanders to use military 
forces if necessary to prevent loss of life or wanton destruction of 
property or to restore governmental functions and public order under 
specified conditions. These provisions were included to bring this rule 
into consistency with the authorities in DoD Directives 3025.12 and 
5525.5, as well as 32 CFR part 215.4.

Regulatory Procedures

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

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

Sec. 202, Public Law 104-4, ``Unfunded Mandates Reform Act''

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

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

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

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

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

Executive Order 13132, ``Federalism''

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

List of Subjects in 32 CFR Part 185

    Armed forces, Civil defense.
    Accordingly, the Department of Defense revises 32 CFR part 185 to 
read as follows:

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

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

    Authority:  Legal authority includes, 10 U.S.C. sections 113, 
331-335, 371-382, 2553, 2554, 2555, and 2564; 31 U.S.C. 1535-1536 
(Economy Act); 42 U.S.C. section 5121 et seq. (Robert T. Stafford 
Disaster Relief and Emergency Assistance Act, as amended (Stafford 
Act)); and Public Law 94-524, as amended (Presidential Protection 
Assistance Act of 1976).

Sec.  185.1.  Purpose.

    This part:
    (a) Establishes policy and assigns responsibilities for DSCA, also 
referred to as civil support.
    (b) Supplements the regulations (in DoD Directive 5525.5) \1\ 
required by section 375 of title 10, United States

[[Page 2249]]

Code (U.S.C.), regarding military support for civilian law enforcement.
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    \1\ Available for downloading at http://www.dtic.mil/whs/directives/corres/pdf/552505p.pdf
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    (c) Sets forth policy guidance for the execution and oversight of 
DSCA when requested by civil authorities or by qualifying entities and 
approved by the appropriate DoD official, or as directed by the 
President, within the United States, including the District of 
Columbia, the Commonwealth of Puerto Rico, the U.S. Virgin Islands, 
Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, 
and any territory or possession of the United States or any political 
subdivision thereof.
    (d) Authorizes immediate response authority for providing DSCA, 
when requested.
    (e) Authorizes emergency authority for the use of military force, 
under dire situations, as described in Sec.  185.4(i) of this part.

Sec.  185.2.  Applicability and scope.

    This part:
    (a) Applies to the Office of the Secretary of Defense, the Military 
Departments, the Office of the Chairman of the Joint Chiefs of Staff 
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 Department of Defense (hereafter referred to collectively as the 
``DoD Components'').
    (b) Applies to the Army National Guard and the Air National Guard 
(hereafter referred to collectively as the ``National Guard'') 
personnel when under Federal command and control. Also applies to 
National Guard personnel when the Secretary of Defense determines that 
it is appropriate to employ National Guard personnel in title 32, 
U.S.C., status to fulfill a request for DSCA, the Secretary of Defense 
requests the concurrence of the Governors of the affected States, and 
those Governors concur in the employment of National Guard personnel in 
such a status.
    (c) Applies to all DSCA (except the specific forms of DSCA listed 
in paragraph (d) of this section), including but not limited to:
    (1) Mutual or automatic aid, also known as reciprocal fire 
protection agreements (see chapter 15A of title 42 U.S.C.).
    (2) DoD fire and emergency services programs (see DoD Instruction 
6055.06) \2\.
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    \2\ Available by downloading at http://www.dtic.mil/whs/directives/corres/pdf/605506p.pdf.
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    (3) Support of special events in accordance with applicable laws 
and DoD policy (see DoD Directive 2000.15) \3\.
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    \3\ Available by downloading at http://www.dtic.mil/whs/directives/corres/pdf/200015p.pdf.
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    (4) United States Army Corps of Engineers (USACE) activities as the 
DoD Coordinating and Primary Agency for Emergency Support Function 
3, Public Works and Engineering, of the National Response 
Framework.
    (5) Defense support to civilian law enforcement agencies (see DoDD 
3025.12 \4\ and DoD Directive 5525.5).
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    \4\ Available by downloading at http://www.dtic.mil/whs/directives/corres/pdf/302512p.pdf.
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    (d) Does not apply to the following:
    (1) Support in response to foreign disasters provided in accordance 
with DoD Directive 5100.46 \5\.
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    \5\ Available by downloading at http://www.dtic.mil/whs/directives/corres/pdf/510046p.pdf.
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    (2) Joint investigations conducted by the Inspector General of the 
Department of Defense, the Defense Criminal Investigative Service, and 
the military criminal investigative organizations with civil law 
enforcement agencies on matters within their respective jurisdictions 
using their own forces and equipment.
    (3) Detail of DoD personnel to duty outside the Department of 
Defense in accordance with DoD Instruction 1000.17 \6\.
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    \6\ Available by downloading at http://www.dtic.mil/whs/directives/corres/pdf/100017p.pdf.
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    (4) Counternarcotics operations conducted under the authority of 
section 1004 of Public Law 101-510 (1991).
    (5) Support provided by the USACE when accomplishing missions and 
responsibilities under the authority of section 701n of title 33, 
U.S.C. and Executive Order 12656.
    (6) Assistance provided by DoD intelligence and counterintelligence 
components in accordance with DoD Directive 5240.01 \7\, Executive 
Orders 12333 and 13388, DoD 5240.1-R \8\, and other applicable laws and 
regulations.
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    \7\ Available by downloading at http://www.dtic.mil/whs/directives/corres/pdf/524001p.pdf.
    \8\ Available by downloading at http://www.dtic.mil/whs/directives/corres/pdf/524001r.pdf.
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    (7) Military community relations programs and activities 
administered by the Assistant Secretary of Defense for Public Affairs 
(see DoD Directive 5410.18 \9\ and DoD Instruction 5410.19 \10\).
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    \9\ Available by downloading at http://www.dtic.mil/whs/directives/corres/pdf/541018p.pdf.
    \10\ Available by downloading at http://www.dtic.mil/whs/directives/corres/pdf/541019p.pdf.
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    (8) Sensitive support in accordance with DoD Directive S-5210.36 
\11\.
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    \11\ Document is classified and copies maybe requested by 
contacting USD(I), USDI.pubs@osd.mil
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    (9) Activities performed by the Civil Air Patrol in support of 
civil authorities or qualifying entities when approved by the Air Force 
as auxiliary missions in accordance with section 9442 of title 10, 
U.S.C. and DoD 3025.1-M \12\ except as restricted by Sec.  185.4(j) of 
this part.
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    \12\ Available by downloading at http://www.dtic.mil/whs/directives/corres/pdf/302501m.pdf.
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    (10) Innovative readiness training (formerly called ``civil-
military cooperative action programs'') (see DoD Directive 1100.20) 
\13\.
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    \13\ Available by downloading at http://www.dtic.mil/whs/directives/corres/pdf/110020p.pdf.
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Sec.  185.3.  Definitions.

    Civil Authorities. See Joint Publication 1-02 \14\.
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    \14\ Available by downloading at http://www.dtic.mil/doctrine/new_pubs/jp1_02.pdf.
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    Civil Disturbances. See Joint Publication 1-02.
    Defense Domestic Crisis Manager. The lead DoD official responsible 
for DoD's domestic crisis management response, ensuring the information 
needs and other requirements of the Secretary of Defense are met, and 
developing, coordinating, and overseeing the implementation of DoD 
policy for crisis management to ensure DoD capability to develop and 
execute options to prevent, mitigate, or respond to a potential or 
actual domestic crisis. The Assistant Secretary of Defense for Homeland 
Defense and Americas' Security Affairs (ASD(HD&ASA)) serves as the 
Defense Domestic Crisis Manager.
    Defense Support of Civil Authorities (DSCA). Support provided by 
U.S. Federal military forces, DoD civilians, DoD contract personnel, 
DoD Component assets, and National Guard forces (when the Secretary of 
Defense, in coordination with the Governors of the affected States, 
elects and requests to use those forces in title 32, U.S.C., status) in 
response to requests for assistance from civil authorities for domestic 
emergencies, law enforcement support, and other domestic activities, or 
from qualifying entities for special events. Also known as civil 
support.
    Direct Liaison. An authority for Federal military forces to consult 
with,

[[Page 2250]]

coordinate with, and respond to State authorities (including National 
Guard units and personnel operating in Title 32 status or in State 
Active Duty status) or Federal civilian authorities in the tactical-
level execution of assigned tasks, pursuant to an order by the 
Secretary of Defense or the President to provide support to those 
authorities.
    Emergency Authority. A Federal military commander's authority, in 
extraordinary emergency circumstances where prior authorization by the 
President is impossible and duly constituted local authorities are 
unable to control the situation, to engage temporarily in activities 
that are necessary to quell large-scale, unexpected civil disturbances 
because (1) such activities are necessary to prevent significant loss 
of life or wanton destruction of property and are necessary to restore 
governmental function and public order or (2) duly constituted Federal, 
State, or local authorities are unable or decline to provide adequate 
protection for Federal property or Federal governmental functions.
    Federal Military Forces. Army, Navy, Marine Corps and Air Force 
personnel (including Reserve Component personnel) on Federal active 
duty and National Guard personnel when under Federal command and 
control.
    Immediate Response Authority. A Federal military commander's, DoD 
Component Head's, and/or responsible DoD civilian official's authority 
temporarily to employ resources under their control, subject to any 
supplemental direction provided by higher headquarters, and provide 
those resources to save lives, prevent human suffering, or mitigate 
great property damage in response to a request for assistance from a 
civil authority, under imminently serious conditions when time does not 
permit approval from a higher authority within the United States. 
Immediate response authority does not permit actions that would subject 
civilians to the use of military power that is regulatory, 
prescriptive, proscriptive, or compulsory. State immediate response is 
addressed in Sec.  185.4(h) of this part.
    Qualifying Entity. A non-Governmental organization to which the 
Department of Defense may provide assistance for special events by 
virtue of statute, regulation, policy, or other approval by the 
Secretary of Defense or his or her authorized designee.
    Responsible DoD Civilian. For purposes of DSCA, the Head of a DoD 
Component or other DoD civilian official who has authority over DoD 
assets that may be used for a DSCA response.
    Special Event. An international or domestic event, contest, 
activity, or meeting, which by its very nature, or by specific 
statutory or regulatory authority, may warrant security, safety, and/or 
other logistical support or assistance from the Department of Defense.
    Total Force. See DoD Directive 1200.17 \15\.
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    \15\ Available by downloading at http://www.dtic.mil/whs/directives/corres/pdf/120017p.pdf.
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Sec.  185.4.  Policy.

    It is DoD policy that:
    (a) This part shall be implemented consistent with national 
security objectives and military readiness.
    (b) Unless expressly stated otherwise, the provisions of this part 
should not be construed to rescind any existing authorities of the 
Heads of DoD Components, commanders, and/or responsible DoD civilians 
to provide DSCA in accordance with existing laws, DoD issuances, and 
Secretary of Defense-approved orders.
    (c) DSCA is initiated by a request for DoD assistance from civil 
authorities or qualifying entities or is authorized by the President or 
Secretary of Defense.
    (d) All requests for DSCA shall be written, and shall include a 
commitment to reimburse the Department of Defense in accordance with 
the Stafford Act, Economy Act, or other authorities except requests for 
support for immediate response, and mutual or automatic aid, in 
accordance with Sec.  185.4(g) and (m) of this part. Unless approval 
authority is otherwise delegated by the Secretary of Defense, all DSCA 
requests shall be submitted to the office of the Executive Secretary of 
the Department of Defense. For assistance provided according to Sec.  
185.4(g) of this part, civil authorities shall be informed that oral 
requests for assistance in an emergency must be followed by a written 
request that includes an offer to reimburse the Department of Defense 
at the earliest available opportunity. States also must reimburse the 
United States Treasury in accordance with section 9701 of title 31, 
U.S.C. Support may be provided on a non-reimbursable basis only if 
required by law or if both authorized by law and approved by the 
appropriate DoD official.
    (e) All requests from civil authorities and qualifying entities for 
assistance shall be evaluated for:
    (1) Legality (compliance with laws).
    (2) Lethality (potential use of lethal force by or against DoD 
Forces).
    (3) Risk (safety of DoD Forces).
    (4) Cost (including the source of funding and the effect on the DoD 
budget).
    (5) Appropriateness (whether providing the requested support is in 
the interest of the Department).
    (6) Readiness (impact on the Department of Defense's ability to 
perform its primary mission).
    (f) DSCA plans shall be compatible with the National Response 
Framework; the National Incident Management System; all contingency 
plans for operations in the locations listed in Sec.  185.1(c) of this 
part; and any other national plans (approved by the President or 
Secretary of Defense) or DoD issuances governing DSCA operations. DSCA 
planning will consider command and control options that will emphasize 
unity of effort, and authorize direct liaison if authorized by the 
Secretary of Defense.
    (g) Federal military commanders, Heads of DoD Components, and/or 
responsible DoD civilian officials (hereafter referred to collectively 
as ``DoD officials'') have immediate response authority as described in 
this part. In response to a request for assistance from a civil 
authority, under imminently serious conditions and if time does not 
permit approval from higher authority, DoD officials may provide an 
immediate response by temporarily employing the resources under their 
control, subject to any supplemental direction provided by higher 
headquarters, to save lives, prevent human suffering, or mitigate great 
property damage within the United States. Immediate response authority 
does not permit actions that would subject civilians to the use of 
military power that is regulatory, prescriptive, proscriptive, or 
compulsory.
    (1) The DoD official directing a response under immediate response 
authority shall immediately notify the National Joint Operations and 
Intelligence Center (NJOIC), through the chain of command, of the 
details of the response. The NJOIC will inform appropriate DoD 
Components to including the geographic Combatant Command.
    (2) An immediate response shall end when the necessity giving rise 
to the response is no longer present (e.g., when there are sufficient 
resources available from State, local, and other Federal agencies to 
respond adequately and that agency or department has initiated response 
activities) or when the initiating DoD official or a higher authority 
directs an end to the response. The DoD official directing a response

[[Page 2251]]

under immediate response authority shall reassess whether there remains 
a necessity for the Department of Defense to respond under this 
authority as soon as practicable but, if immediate response activities 
have not yet ended, not later than 72 hours after the request of 
assistance was received.
    (3) Support provided under immediate response authority should be 
provided on a cost-reimbursable basis, where appropriate or legally 
required, but will not be delayed or denied based on the inability or 
unwillingness of the requester to make a commitment to reimburse the 
Department of Defense.
    (h) The authority of State officials is recognized to direct a 
State immediate response using National Guard personnel under State 
command and control (including personnel in a title 32, U.S.C. 
(hereafter referred to as ``Title 32'') status) in accordance with 
State law, but National Guard personnel will not be placed in or 
extended in Title 32 status to conduct State immediate response 
activities.
    (i) Federal military commanders are provided emergency authority 
under this part. Federal military forces shall not be used to quell 
civil disturbances unless specifically authorized by the President in 
accordance with applicable law (e.g., chapter 15 of title 10, U.S.C.) 
or permitted under emergency authority, as described below (See DoD 
Directive 3025.12 \16\ and DoD Directive 5525.5 \17\.) In these 
circumstances, those Federal military commanders have the authority, in 
extraordinary emergency circumstances where prior authorization by the 
President is impossible and duly constituted local authorities are 
unable to control the situation, to engage temporarily in activities 
that are necessary to quell large-scale, unexpected civil disturbances 
because:
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    \16\ Available by downloading at http://www.dtic.mil/whs/directives/corres/pdf/302512p.pdf.
    \17\ Available by downloading at http://www.dtic.mil/whs/directives/corres/pdf/552505p.pdf.
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    (1) Such activities are necessary to prevent significant loss of 
life or wanton destruction of property and are necessary to restore 
governmental function and public order, or,
    (2) When duly constituted Federal, State, or local authorities are 
unable or decline to provide adequate protection for Federal property 
or Federal governmental functions. Federal action, including the use of 
Federal military forces, is authorized when necessary to protect the 
Federal property or functions.
    (j) Except for immediate response and emergency authority as 
described in Sec.  185.4(g) and Sec.  185.4(i) of this part, only the 
Secretary of Defense may approve requests from civil authorities or 
qualifying entities for Federal military support for:
    (1) Defense assistance in responding to civil disturbances 
(requires Presidential authorization) in accordance with DoD Directive 
3025.12.
    (2) Defense response to CBRNE events (see DoD Instruction 2000.18) 
\18\.
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    \18\ Available by downloading at http://www.dtic.mil/whs/directives/corres/pdf/200018p.pdf.
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    (3) Defense assistance to civilian law enforcement organizations, 
except as authorized in DoD Directive 5525.5.
    (4) Assistance in responding with assets with potential for 
lethality. This support includes loans of arms; vessels or aircraft; or 
ammunition. It also includes assistance under section 382 of title 10, 
U.S.C., and section 831 of title 18, U.S.C.; all support to 
counterterrorism operations; and all support to civilian law 
enforcement authorities in situations where a confrontation between 
civilian law enforcement and civilian individuals or groups is 
reasonably anticipated.
    (k) Federal military forces employed for DSCA activities shall 
remain under Federal military command and control at all times.
    (l) Special event support to a qualifying entity shall be treated 
as DSCA.
    (m) All requests for DSCA mutual and automatic aid via the DoD Fire 
& Emergency Services programs shall be in accordance with DoD 
Instruction 6055.06.
    (n) DSCA is a total force mission (see DoD Directive 1200.17).
    (o) No DoD unmanned aircraft systems (UAS) will be used for DSCA 
operations, including support to Federal, State, local, and tribal 
government organizations, unless expressly approved by the Secretary of 
Defense. Use of armed UAS for DSCA operations is not authorized. (See 
DoD Directive 5240.01, Executive Orders 12333 and 13388, and DoD 
5240.1-R.)
    (p) Direct liaison between DoD Components and the States should 
occur only when time does not permit compliance with Sec.  185.5(m)(1) 
of this part. In each such instance, the Chief, National Guard Bureau, 
will be informed of the direct liaison.

Sec.  185.5  Responsibilities.

    (a) The Under Secretary of Defense for Policy (USD(P)) shall:
    (1) Coordinate DSCA policy with other Federal departments and 
agencies, State agencies, and the DoD Components, as appropriate.
    (2) Establish DoD policy governing DSCA.
    (b) The Assistant Secretary of Defense for Homeland Defense and 
Americas' Security Affairs (ASD(HD&ASA)), under the authority, 
direction, and control of the USD(P) shall:
    (1) Serve as the principal civilian advisor to the Secretary of 
Defense and the USD(P) for DSCA.
    (2) Serve as the Defense Domestic Crisis Manager.
    (3) As delegated by the Secretary of Defense in accordance with DoD 
Directive 5111.13 \19\, serve as approval authority for requests for 
assistance from civil authorities or qualifying entities sent to the 
Secretary of Defense, except for those items retained in Sec.  185.4(j) 
and (o) of this part, or delegated to other officials. This authority 
may not be delegated further than the Principal Deputy Assistant 
Secretary of Defense for Homeland Defense and Americas' Security 
Affairs. When carrying out this authority, the ASD(HD&ASA) shall:
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    \19\ Available by downloading at http://www.dtic.mil/whs/directives/corres/pdf/511113p.pdf.
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    (i) Coordinate requests with the Chairman of the Joint Chiefs of 
Staff, the Commanders of the Combatant Commands with DSCA 
responsibilities in the matter, and Military Department Secretaries and 
other DoD officials as appropriate.
    (ii) Immediately notify the Secretary of Defense of the use of this 
authority.
    (4) Develop, coordinate, and oversee the implementation of DoD 
policy for DSCA plans and activities, including:
    (i) Requests for assistance during domestic crises, emergencies, or 
civil disturbances.
    (ii) Domestic consequence management.
    (iii) Coordination or consultation, as appropriate, with the 
Department of Homeland Security and other Federal agencies on the 
development and validation of DSCA requirements.
    (iv) DoD support for national special security events.
    (v) DoD support for national and international sporting events, in 
accordance with section 2564 of title 10, U.S.C.
    (vi) Direct the fullest appropriate dissemination of information 
relating to all aspects of DSCA, using all approved media and in 
accordance with DoD Directive 8320.02 \20\.
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    \20\ Available by downloading at http://www.dtic.mil/whs/directives/corres/pdf/832002p.pdf.
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    (5) Exercise staff cognizance over DoD Directive 5525.5.
    (c) The Assistant Secretary of Defense for Special Operations and 
Low

[[Page 2252]]

Intensity Conflict and Interdependent Capabilities, under the 
authority, direction, and control of the USD(P), shall support planning 
by the Defense Domestic Crisis Manager during DSCA operations, as 
required.
    (d) The Under Secretary of Defense (Comptroller)/Chief Financial 
Officer shall:
    (1) Establish policies and procedures to ensure timely 
reimbursement to the Department of Defense for reimbursable DSCA 
activities.
    (2) Assist in management of statutory resources for DSCA in support 
of appropriate international and domestic sporting events.
    (e) The Under Secretary of Defense for Personnel and Readiness 
(USD(P&R)) shall identify, monitor, and oversee the development of 
integrated DSCA training capabilities and the integration of these 
training capabilities into exercises and training to build, sustain, 
and assess DSCA readiness in accordance with DoD Directive 1322.18 
\21\.
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    \21\ Available by downloading at http://www.dtic.mil/whs/directives/corres/pdf/132218p.pdf.
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    (f) The Assistant Secretary of Defense for Health Affairs 
(ASD(HA)), under the authority, direction, and control of the USD(P&R), 
as the principal advisor to the Secretary of Defense for all DoD health 
policy shall:
    (1) Provide guidance and support for all domestic crisis situations 
or emergencies that require health or medical-related DSCA to 
ASD(HD&ASA).
    (2) Exercise authority in accordance with section 300hh-11 of title 
42, U.S.C., and according to DoD Directive 6010.22 \22\, for 
participation in the National Disaster Medical System.
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    \22\ Available by downloading at http://www.dtic.mil/whs/directives/corres/pdf/601022p.pdf.
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    (g) The Assistant Secretary of Defense for Reserve Affairs, under 
the authority, direction, and control of USD(P&R), shall provide 
recommendations, guidance, and support on the use of the Reserve 
Components to perform DSCA missions to ASD(HD&ASA).
    (h) The Under Secretary of Defense for Acquisition, Technology, and 
Logistics (USD(AT&L)) shall establish policies and procedures, in 
coordination with ASD(HD&ASA), to implement DSCA requirements for DoD 
Fire and Emergency Services programs and mutual or automatic aid that 
may be part of that program.
    (i) The Heads of the DoD Components shall:
    (1) Direct that any DSCA-related DoD issuances, concept plans, 
interagency agreements, and memorandums of understanding or agreement 
with external agencies are in full compliance with this part.
    (2) Direct Component compliance with financial management guidance 
related to support provided for DSCA operations, including guidance 
related to tracking costs and seeking reimbursement.
    (3) When approved by the Secretary of Defense, plan, program, and 
budget for DSCA capabilities in accordance with law, policy, and 
assigned missions.
    (j) The Secretaries of the Military Departments in addition to the 
responsibilities in Sec.  185.5(i) of this part, shall:
    (1) Establish the necessary policies and procedures to ensure the 
appropriate personnel are trained to execute DSCA plans as directed by 
the Secretary of Defense.
    (2) Direct that requests for reimbursement of actual DSCA 
expenditures (performance of work or services, payments to contractors, 
or delivery from inventory) begin within 30 calendar days after the 
month in which performance occurred. Final billing invoices shall be 
submitted to supported departments and agencies within 90 calendar days 
of the termination of the supported event.
    (k) The Chairman of the Joint Chiefs of Staff in addition to the 
responsibilities in Sec.  185.5(i) of this part, shall:
    (1) Advise the Secretary of Defense on the effects of requests for 
DSCA on national security and military readiness.
    (2) Identify available resources for support in response to DSCA 
requests and release related orders when approved by the Secretary of 
Defense.
    (3) Incorporate DSCA into joint training and exercise programs in 
consultation with the USD(P&R), the Chief, National Guard Bureau (NGB), 
and appropriate officials from the Department of Homeland Security and 
other appropriate Federal departments and agencies.
    (4) Advocate for needed DSCA capabilities.
    (l) The Commanders of Combatant Commands with DSCA 
responsibilities, in addition to the responsibilities in Sec.  185.5(i) 
of this part and in accordance with the Unified Command Plan shall:
    (1) In coordination with the Chairman of the Joint Chiefs of Staff, 
plan and execute DSCA operations in their areas of responsibility in 
accordance with this part, the Unified Command Plan and the Global 
Force Management Implementation Guidance.
    (2) In coordination with the Chairman of the Joint Chiefs of Staff, 
incorporate DSCA into joint training and exercise programs in 
consultation with the Department of Homeland Security, other 
appropriate Federal departments and agencies, and the NGB.
    (3) Advocate for needed DSCA capabilities and requirements through 
the Joint Requirements Oversight Council, subject to Sec.  185.5(i) of 
this part, and the planning, programming, budgeting, and execution 
process.
    (4) Work closely with subordinate commands to ensure that they are 
appropriately reimbursed for DSCA in accordance with Sec.  185.5(j) of 
this part.
    (5) Exercise Training Readiness Oversight (TRO) over assigned 
Reserve Component forces when not on active duty or when on active duty 
for training in accordance with DoD Instruction 1215.06 \23\.
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    \23\ Available by downloading at http://www.dtic.mil/whs/directives/corres/pdf/121506p.pdf.
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    (m) The Chief, NGB, under the authority, direction, and control of 
the Secretary of Defense, normally through the Secretary of the Army 
and the Secretary of the Air Force, shall:
    (1) Serve as the channel of communications for all matters 
pertaining to the National Guard between DoD Components and the States 
in accordance with DoD Directive 5105.77 \24\.
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    \24\ Available by downloading at http://www.dtic.mil/whs/directives/corres/pdf/510577p.pdf.
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    (2) Annually assess the readiness of the National Guard of the 
States to conduct DSCA activities and report on this assessment to the 
Secretaries of the Army and the Air Force; the USD(P&R), ASD(HD&ASA), 
and ASD(RA); and, through the Chairman of the Joint Chiefs of Staff, to 
the Secretary of Defense and appropriate Combatant Commanders.
    (3) Report National Guard support of civil authorities or 
qualifying entities when using Federal resources, equipment, and/or 
funding to the NJOIC.
    (4) Serve as an advisor to the Combatant Commanders on National 
Guard matters pertaining to the combatant command missions, and support 
planning and coordination for DSCA activities as requested by the 
Chairman of the Joint Chiefs of Staff or the Combatant Commanders.
    (5) Ensure that National Guard appropriations are appropriately 
reimbursed for DSCA activities.
    (6) Advocate for needed DSCA capabilities.
    (7) Develop and promulgate, in accordance with DoD Directive 
5105.77 and in coordination with the Secretaries of the Army and Air 
Force and the

[[Page 2253]]

ASD(HD&ASA), guidance regarding this part as it relates to National 
Guard matters.

    Dated: December 22, 2010.
Patricia L. Toppings,
OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2011-620 Filed 1-12-11; 8:45 am]
BILLING CODE 5001-06-P
```