Federal Register / Vol. 66, No. 109 / Wednesday, June 6, 2001 / Notices 30431

11. The plastic locking mechanism

will melt and deform when subject to

temperatures over 230°F. When the

plastic deforms it allows the grill to

collapse and fall to the ground.

12. Each Red Devil gas grill is

packaged with an instruction booklet.

Said booklet calls for the grill to be lit

at the burner.

13. The instruction booklet, referred

to in paragraph 12, does not contain an

illustration that shows the consumer

where to properly light the grill. Said

booklet also does not warn consumers of

the danger in lighting the grill at the

venturi opening. It is also foreseeable

that this booklet will not remain with

the grill.

14. The features of the Red Devil gas

grill, as set forth in paragraphs 9

through 11 above, constitute design

defects under 15 U.S.C. 2064.

15. The failure to provide adequate

instructions on how to light the Red

Devil gas grill, or to warn consumers

about the danger in lighting the grill at

the venturi opening, as set forth in

paragraph 12 and 13 above, constitutes

a defect under 15 U.S.C. 2064.

2. Substantial Risk of Injury

16. All of the approximately 155,544

Red Devil gas grills have the same

venturi tube and plastic locking

mechanism design. It is foreseeable that

consumers will light the grill at the

venturi openings. Each grill has the

potential to cause a severe burn injury.

17. If the Red Devil gas grill tips over,

following the melting of the plastic

locking mechanism, flames from the

burner may ignite surrounding

combustibles. This could cause severe

burns or death to nearby consumers. It

is also reasonably foreseeable that a

consumer who is present would attempt

to catch the falling grill, and receive

severe burns to his or her hands or other

body parts.

18. The defects in the Red Devil gas

grill create a substantial risk of injury to

consumers, within the meaning of

section 15(a)(2) of the CPSA, 15 U.S.C.

2064(a)(2).

19. The Red Devil gas grill presents a

substantial product hazard, as described

in sections 15(a)(2), (c) and (d) of the

CPSA, 15 U.S.C. 2064(a)(2), (c) and (d).

Relief Sought

Wherefore, in the public interest,

Complaint Counsel requests that the

Commission:

A. Determine that Respondents’

Quantum and e4L Red Devil gas grill

presents a ‘‘substantial product hazard’’

within the meaning of section 15(a)(2) of

the CPSA, 15 U.S.C. 2064(a)(2).

B. Determine that public notification

under section 15(c) of the CPSA, 15

U.S.C. 2064(c), is required to protect the

public adequately from the substantial

product hazard presented by the Red

Devil gas grill which has been

distributed and order that the

Respondents:

(1) Give prompt public notice that the

Red Devil gas grill presents an injury

and fire hazard to consumers and of the

remedies available to remove the risk of

injury;

(2) Mail such notice to each person

who is or has been a distributor or

retailer of the Red Devil gas grill;

(3) Mail such notice to every person

to whom Respondents know the Red

Devil gas grill were delivered or sold;

and

(4) Include in the notice required by

(1), (2) and (3) above a complete

description of the hazard presented, a

warning to stop using the Red Devil gas

grill immediately; and clear instructions

to inform consumers how to avail

themselves of any remedy ordered by

the Commission.

C. Determine that action under

section 15(d) of the CPSA, 15 U.S.C.

2064(d), is in the public interest and

order Respondents:

(1) To elect to repair all the Red Devil

gas grills so they will not create an

injury and fire hazard; to replace all the

Red Devil gas grills with a like or

equivalent product which will not

create an injury or fire hazard; or to

refund to consumers the purchase price

of the Red Devil gas grill;

(2) To make no charge to consumers

and to reimburse them for any

foreseeable expenses incurred in

availing themselves of any remedy

provided under any order issued in this

matter;

(3) To reimburse distributors and

dealers for expenses in connection with

carrying out any Commission Order

issued in this matter;

(4) To submit a plan satisfactory to the

Commission, within ten (10) days of

service of the final Order, directing that

actions specified in paragraph C(1)

through C(3) above be taken in a timely

manner;

(5) To submit monthly reports

documenting progress of the corrective

action program;

(6) For a period of five (5) years after

entry of a Final Order in this matter, to

keep records of its actions taken to

comply with paragraphs C(1) through

C(3) above, and to supply these records

upon request to the Commission for the

purpose of monitoring compliance with

the Final Order;

(7) To notify the Commission at least

60 days prior to any change in their

business (such as incorporation,

dissolution, assignment, sale or petition

for bankruptcy) that results in, or is

intended to result in, the emergence of

successor ownership, the creation or

dissolution of subsidiaries, going out of

business, or any other change that might

affect compliance obligations under a

Final Order issued by the Commission;

and

(8) To take such other and further

actions as the Commission deems

necessary to protect the public health

and safety and to comply with the

CPSA.

Issued by order of the Commission.

Dated this 29th day of May, 2001.

Alan H. Schoem,

Assistant Executive Director, Office of

Compliance, U.S. Consumer Product Safety

Commission, (301) 504–0621.

Eric L. Stone,

Director, Legal Division, Office of

Compliance.

Jimmie L. Williams, Jr.,

Complaint Counsel, Office of Compliance,

4330 East West Highway, Bethesda,

Maryland 20814–4408, (301) 504–0626, ext.

1376.

[FR Doc. 01–14137 Filed 6–5–01; 8:45 am]

BILLING CODE 6350–01–M

DEPARTMENT OF DEFENSE

Office of the Secretary

Manual for Courts-Martial

AGENCY: Joint Service Committee on

Military Justice (JSC), DOT.

ACTION: Notice of Proposed

Amendments to the Manual for CourtsMartial, United States, (2000 ed.) and

Notice of Public Meeting.

SUMMARY: The Department of Defense is

considering recommending changes to

the Manual for Courts-Martial, United

States, (2000 ed.) (MCM). The proposed

changes are the 2001 draft annual

review required by the MCM and DoD

Directive 5500.17, ‘‘Role and

Responsibilities of the Joint Service

Committee (JSC) on Military Justice,’’

May 8, 1996. The proposed changes

concern the rules of procedure and

evidence and the punitive articles

applicable in trials by courts-martial.

The proposed changes have not been

coordinated within the Department of

Defense under DoD Directive 5500.1,

‘‘Preparation and Processing of

Legislation, Executive Orders,

Proclamations, and Reports and

Comments Thereon,’’ May 21, 1964, and

do not constitute the official position of

the Department of Defense, the Military

30432 Federal Register / Vol. 66, No. 109 / Wednesday, June 6, 2001 / Notices

Departments, or any other government

agency.

This notice also sets forth the date,

time and location for the public meeting

of the JSC to discuss the proposed

changes.

This notice is provided in accordance

with DoD Directive 5500.17, ‘‘Role and

Responsibilities of the Joint Service

Committee (JSC) on Military Justice,’’

May 8, 1996. This notice is intended

only to improve the internal

management of the Federal Government.

It is not intended to create any right or

benefit, substantive or procedural,

enforceable at law by any party against

the United States, its agencies, its

officers, or any person.

In accordance with paragraph III B 4

of the Internal Organization and

Operating Procedures of the JSC, the

committee also invites members of the

public to suggest changes to the Manual

for Courts-Martial in accordance with

the herein-described format.

DATES: Comments on the proposed

changes must be received no later than

August 20, 2001 for consideration by the

JSC. A public meeting will be held on

Thursday, July 19, 2001 at 2:00 p.m. It

will be held at Room 808, 1501 Wilson

Blvd., Arlington, VA 22209–2403.

ADDRESSES: Comments on the proposed

changes should be sent to Captain

Richard M. Burke, U.S. Marine Corps,

Military Law Branch, Judge Advocate

Division, HQMC, Room 5E618,

Washington, DC 20380–1775.

FOR FURTHER INFORMATION CONTACT:

Captain Richard M. Burke, U.S. Marine

Corps, Military Law Branch, Judge

Advocate Division, HQMC, Room

5E618, Washington, DC 20380–1775,

(703) 614–3699/4250; FAX (703) 695–

8350.

SUPPLEMENTARY INFORMATION: The

proposed amendments to the Manual for

Courts-Martial are as follows:

Amend paragraph 4 of the Preamble

by adding a new third subparagraph to

read as follows:

The Department of Defense Joint Service

Committee (JSC) on Military Justice reviews

the Manual for Courts-Martial and proposes

amendments to the Department of Defense

for consideration by the President on an

annual basis. In conducting its annual

review, the JSC is guided by DoD Directive

5500.17, ‘‘The Roles and Responsibilities of

the Joint Service Committee (JSC) on Military

Justice,’’ a copy of which is included in this

Manual as Appendix 26. DoD Directive

5500.17 includes provisions allowing public

participation in the annual review process.

Amend R.C.M. 307(c)(3) to read as

follows:

Specification. A specification is a plain,

concise, and definite statement of the

essential facts constituting the offense

charged. A specification is sufficient if it

alleges every element of the charged offense

expressly or by necessary implication. Except

for aggravating factors under R.C.M. 1003(d)

and R.C.M. 1004, facts that increase the

maximum authorized punishment must be

alleged in order to permit the possible

increased punishment. No particular format

is required.

Amend subparagraph (ix) of the

Discussion accompanying R.C.M. 307(c)

to read as follows:

(ix) Matters in aggravation. Matters in

aggravation that do not increase the

maximum authorized punishment ordinarily

should not be alleged in the specification.

Prior convictions need not be alleged in the

specification to permit increased

punishment. Aggravating factors in capital

cases should not be alleged in the

specification. Notice of such factors is

normally provided in accordance with

R.C.M. 1004(b)(1).

Amended the analysis accompanying

R.C.M. 307(c)(3) by inserting the

following at the end thereof:

200 Amendment: The Rule was amended

by modifying language in the Discussion at

(H)(ix), and pulling it into the text of the

Rule, to emphasize that facts that increase

maximum authorized punishments must be

alleged and proven beyond a reasonable

doubt. Jones v. United States, 526 U.S. 227

(1999) See also Apprendi v. New Jersey, 530

U.S. 466 (2000). R.C.M. 1003(d) prior

convictions and R.C.M. 1004 capital

aggravating factors were excluded because

the rule in Apprendi exempts prior

convictions and distinguishes capital

sentencing schemes. R.C.M. 1004 capital

aggravation factors were also excluded to

avoid complicating Part IV of the Manual and

because R.C.M. 1004 already establishes a

separate scheme for satisfying an accused’s

Constitutional rights in this area. See Walton

v. Arizona, 497 U.S. 639 (1990) (capital

aggravation factors as ‘‘standards’’ to guide

the making a choice between death and

lessor punishment).

Insert the following Discussion to

accompany R.C.M. 405(g)(1)(A):

A witness located beyond the 100 mile

limit is not per se unavailable. To determine

if a witness beyond 100 miles is reasonably

available, the significance of the witness’s

live testimony must be balanced against the

relative difficulty and expense of obtaining

the witness’s presence at the hearing.

Amend the analysis accompanying

R.C.M. 405(g)(1) by inserting the

following before the discussion of

subsection (2):

200 Amendment: The Discussion to

subsection (g)(1)(A) is new. It was added in

light of the decision in United States v.

Marie, 43 M.J. 35 (1995) that a witness

beyond 100 miles from the site of the

investigation is not per se unavailable.

Amend the second paragraph of the

Discussion accompanying R.C.M. 406(b)

to read as follows:

The advice need not set forth the

underlying analysis or rationale for its

conclusions. Ordinarily, the charge sheet,

forwarding letter, and endorsements, and

report of investigation are forwarded with the

pretrial advice. In addition the pretrial advice

should include when appropriate: a brief

summary of the evidence; discussion of

significant aggravating, extenuating, or

mitigating factors; any recommendations for

disposition of the case by commanders or

others who have forwarded the charges; and

the recommendation of the Article 32

investigating officer. However, there is no

legal requirement to include such

information, and failure to do so is not error.

Amend the analysis accompanying

R.C.M. 406(b) by inserting the following

at the end thereof:

200 Amendment: The Discussion to R.C.M.

406(b) was amended to add as additional,

non-binding guidance that the SJA should

include the recommendation of the Article 32

investigating officer.

Amend R.C.M. 707(b)(3)(D) to read as

follows:

Rehearings. If a rehearing is ordered or

authorized by an appellate court, a new 120-

day time period under this rule shall begin

on the date that the responsible convening

authority receives the record of trial and the

opinion authorizing or directing a rehearing.

An accused is brought to trial within the

meaning of this rule at the time of

arraignment under R.C.M. 904 or, if

arraignment is not required (such as in the

case of a sentence-only rehearing), at the time

of the first session under R.C.M. 803.

Amend the analysis accompanying

R.C.M. 707(b) by inserting the following

before the discussion of subsection (c):

200 Amendment: Subsection (3)(D) was

amended in light of United States v. Becker,

53 M.J. 229 (2000), to clarify that the 120-day

time period applies to sentence-only

rehearings. The amendment also designates

the first session under R.C.M. 803 as the

point where an accused is brought to trial in

a sentence-only rehearing.

Amend R.C.M. 707(c) to read as

follows:

(c) Excludable delay. All periods of time

during which appellate courts have issued

stays in the proceedings, or the accused is

absent without authority, or the accused is

hospitalized due to incompetence, or is

otherwise in the custody of the Attorney

General, shall be excluded when determining

whether the period in subsection (a) of this

rule has run. All other pretrial delays

approved by a military judge or the

convening authority shall be similarly

excluded.

Delete the Discussion accompanying

R.C.M. 707(c).

Amend the analysis accompanying

R.C.M. 707(c) by inserting the following

before the discussion of subsection (d):

Federal Register / Vol. 66, No. 109 / Wednesday, June 6, 2001 / Notices 30433

200 Amendment: Subsection (c) was

amended to treat periods of the accused’s

unauthorized absence as excludable delay for

purposes of speedy trial. See United States v.

Dies, 45 M.J. 376 (1996). The discussion was

deleted as superfluous.

Amend R.C.M. 707(d) to read as

follows:

(d) Remedy. A failure to comply with this

rule will result in dismissal of the affected

charges, or, in a sentence-only rehearing,

sentence relief as appropriate.

(1) Dismissal. Dismissal will be with or

without prejudice to the government’s right

to reinstitute court-martial proceedings

against the accused for the same offense at a

later date. The charges must be dismissed

with prejudice where the accused has been

deprived of his or her constitutional right to

a speedy trial. In determining whether to

dismiss charges with or without prejudice,

the court shall consider, among others, each

of the following factors: the seriousness of

the offense; the facts and circumstances of

the case that lead to dismissal; the impact of

a reprosecution on the administration of

justice; and any prejudice to the accused

resulting from the denial of a speedy trial.

(2) Sentence relief. In determining whether

or how much sentence relief is appropriate,

the military judge shall consider, among

others, each of the following factors: the

length of the delay, the reasons for the delay,

the accused’s demand for speedy trial, and

any prejudice to the accused from the delay.

Any sentence relief granted will be applied

against the sentence approved by the

convening authority.

Insert the following Discussion

accompanying R.C.M. 707(d):

See subsection (c)(1) and the

accompanying Discussion concerning

reasons for delay and procedures for parties

to request delay.

Amend the analysis accompanying R.C.M.

707(d) by inserting the following before the

discussion of subsection (e):

200 Amendment: Subsection (d) was

amended in light of United States v. Becker,

53 M.J. 229 (2000), to provide for sentence

relief as a sanction for violation of the 120-

day rule in sentence-only rehearings. The

amendment sets forth factors for the court to

consider to determine whether or to what

extent sentence relief is appropriate and

provides for the sentence credit to be applied

to the sentence approved by the convening

authority.

Amend R.C.M. 806(b) to read as

follows:

(b) Control of spectators and closure.

(1) Control of spectators. In order to

maintain the dignity and decorum of the

proceedings or for other good cause, the

military judge may reasonably limit the

number of spectators in, and the means of

access to, the courtroom, and exclude

specific persons from the courtroom. When

excluding specific persons, the military judge

must make findings on the record

establishing the reason for the exclusion, the

basis for the military judge’s belief that

exclusion is necessary, and that the exclusion

is as narrowly tailored as possible.

(2) Closure. Courts-martial shall be open to

the public unless (1) there is a substantial

probability that an overriding interest will be

prejudiced if the proceedings remain open;

(2) closure is no broader than necessary to

protect the overriding interest; (3) reasonable

alternatives to closure were considered and

found inadequate; and (4) the military judge

makes case-specific findings on the record

justifying closure.

The following discussion is added to

R.C.M. 806(b)(1):

The military judge must ensure that the

dignity and decorum of the proceedings are

maintained and that the rights and interests

of the parties and society are protected.

Public access to a session may be limited,

specific persons excluded from the

courtroom, and, under unusual

circumstances, a session may be closed.

Exclusion of specific persons, if

unreasonable under the circumstances, may

violate the accused’s right to a public trial,

even though other spectators remain.

Whenever specific persons or some members

of the public are excluded, exclusion must be

limited in time and scope to the minimum

extent necessary to achieve the purpose for

which it is ordered. Prevention of

overcrowding or noise may justify limiting

access to the courtroom. Disruptive or

distracting appearance or conduct may justify

excluding specific persons. Specific persons

may be excluded when necessary to protect

witnesses from harm or intimidation. Access

may be reduced when no other means is

available to relieve a witness’ inability to

testify due to embarrassment or extreme

nervousness. Witnesses will ordinarily be

excluded from the courtroom so that they

cannot hear the testimony of other witnesses.

See Mil. R. Evid. 615.

The following discussion is added to

R.C.M. 806(b)(2):

The military judge is responsible for

protecting both the accused’s right to, and the

public’s interest in, a public trial. A courtmartial session is ‘‘closed’’ when no member

of the public is permitted to attend. A courtmartial is not ‘‘closed’’ merely because the

exclusion of certain individuals results in

there being no spectators present, so long as

the exclusion is not so broad as to effectively

bar everyone who might attend the sessions

and is for a proper purpose.

A session may be closed over the objection

of the accused or the public upon meeting

the constitutional standard set forth in this

Rule. See also Mil. R. Evid. 412(c), 505(i) and

(j), 506(i), and 513(e)(2).

The accused may waive his right to a

public trial. The fact that the prosecution and

defense jointly seek to have a session closed

does not, however, automatically justify

closure, for the public has a right to attend

courts-martial. Opening trials to public

scrutiny reduces the chance of arbitrary and

capricious decisions and enhances public

confidence in the court-martial process.

The most likely reason for a defense

request to close court-martial proceedings is

to minimize the potentially adverse effect of

publicity on the trial. For example, a pretrial

Article 39(a) hearing at which the

admissibility of a confession will be litigated

may, under some circumstances, be closed,

in accordance with this Rule, in order to

prevent disclosure to the public (and hence

to potential members) of the very evidence

that may be excluded. When such publicity

may be a problem, a session should be closed

only as a last resort.

There are alternative means of protecting

the proceedings from harmful effects of

publicity, including a thorough voir dire (see

R.C.M. 912), and if necessary, a continuance

to allow the harmful effects of publicity to

dissipate (see R.C.M. 906(b)(1)). Alternatives

that may occasionally be appropriate and are

usually preferable to closing a session

include: directing members not to read, listen

to, or watch any accounts concerning the

case; issuing a protective order (see R.C.M.

806(d)); selecting members from recent

arrivals in the command, or from outside the

immediate area (see R.C.M. 503(a)(3));

changing the place of trial (see R.C.M.

906(b)(11)); or sequestering the members.

Amend the analysis accompanying

R.C.M. 806(b) by inserting the following

before the discussion of subsection(c):

200 Amendment: Subsection (b) was

divided to separate the provisions addressing

control of spectators and closure and to

clarify that exclusion of specific individuals

is not a closure. The rules for control of

spectators now in subsection (b)(1) were

amended to require the military judge to

articulate certain findings on the record prior

to excluding specific spectators. See United

States v. Short, 41 M.J. 42 (1994). The rules

on closure now in subsection (b)(2) and the

Discussion were amended in light of military

case law that has applied the Supreme

Court’s Constitutional test for closure to

courts-martial. See ABC Inc. v. Powell, 47

M.J. 363 (1997); United States v. Hershey, 20

M.J. 433 (C.M.A. 1985); United States v.

Grunden, 2 M.J. 116 (C.M.A. 1977).

Amend the Discussion accompanying

R.C.M. 916(k)(1) to read as follows:

See R.C.M. 706 concerning sanity

inquiries; R.C.M. 909 concerning the capacity

of the accused to stand trial; and R.C.M.

1102A concerning any post-trial hearing for

an accused found not guilty only by reason

of lack of mental responsibility.

Amend the analysis accompanying

R.C.M. 916(k)(1) by inserting the

following before the discussion of

subsection (2):

200 Amendment: The Discussion to R.C.M.

916(k)(1) was amended to add a crossreference to R.C.M. 1102A.

Amend R.C.M. 916(k)(1) to read as

follows:

(2) Partial mental responsibility. A mental

condition not amounting to a lack of mental

responsibility under subsection (k)(1) of this

rule is not an affirmative defense.

Insert the following Discussion to

accompany R.C.M. 916(k)(2):

30434 Federal Register / Vol. 66, No. 109 / Wednesday, June 6, 2001 / Notices

Discussion. Evidence of a mental condition

not amounting to a lack of mental

responsibility may be admissible as to

whether the accused entertained a state of

mind necessary to be proven as an element

of the offense. The defense must notify the

trial counsel before the beginning of trial on

the merits if the defense intends to introduce

expert testimony as to the accused’s mental

condition. See R.C.M. 701(b)(2).

Amend the analysis accompanying

R.C.M. 916(k)(2) by inserting the

following before the discussion of

subsection (3):

200 Amendment: Subsection (k)(2) was

modified to clarify that evidence of an

accused’s impaired mental state may be

admissible. See United States v. Schap, 49

M.J. 317,322 (1998); United States v. Berri, 33

M.J. 337 (C.M.A. 1991); Ellis v. Jacob, 26 M.J.

90 (C.M.A. 1988).

Amend R.C.M. 1103(f)(2) to read as

follows:

(2) Direct a rehearing as to any offense of

which the accused was found guilty if the

finding is supported by the summary of the

evidence contained in the record, provided

that the convening authority may not

approve any sentence imposed at such a

rehearing more severe than or in excess of

that adjudged by the earlier court-martial.

Amend the analysis accompanying

R.C.M. 1103(f) by inserting the following

before the discussion of subsection (g):

200 Amendment: Subsection (f)(2) was

amended to reflect amendments to Article 63,

UCMJ, in the National Defense Authorization

Act for Fiscal Year 1993, Pub. L. No. 102–

484, 106 Stat. 2315,2506 (1992). The

revisions provide that subsection (f)(2)

sentencing limitations are properly

applicable only to the sentence that may be

approved by the convening authority

following a rehearing. Subsection (f)(2) as

revised does not limit the maximum sentence

that may be adjudged at the rehearing. See

United States v. Gibson, 43 M.J. 343, 346 n.3

(1995); United States v. Lawson, 34 M.J. 38

(C.M.A. 1992) (Cox, J., concurring); United

States v. Greaves, 48 M.J. 885

(A.F.Ct.Crim.App. 1998), rev. denied, 51 M.J.

365 (1999).

Insert the following new subsection

(iv) after R.C.M. 1107(e)(1)(B)(iii) to read

as follows:

(iv) Sentence reassessment. If a superior

authority has approved some of the findings

of guilty and has authorized a rehearing as

to other offenses and the sentence, the

convening authority may, unless otherwise

directed, reassess the sentence based on the

approved findings of guilty and dismiss the

remaining charges. Reassessment is

appropriate only where the convening

authority determines that the accused’s

sentence would have been at least of a certain

magnitude had the prejudicial error not been

committed and the reassessed sentence is

appropriate in relation to the affirmed

findings of guilty.

Amend the Discussion to R.C.M.

1107(e)(1)(B)(iii) to read as follows:

A sentence rehearing, rather than a

reassessment, may be more appropriate in

cases where a significant part of the

government’s case has been dismissed. The

convening authority may not take any action

inconsistent with directives of superior

competent authority. Where that directive is

unclear, appropriate clarification should be

sought from the authority issuing the original

directive.

Amend the analysis accompanying

R.C.M. 1107(e)(1) by inserting the

following before the discussion of

subsection (2):

200 Amendment: The Discussion to R.C.M.

1107(e)(1)(B)(iii) was moved to new

subsection (1)(B)(iv) to expressly recognize

that, in cases where a superior authority has

approved some findings of guilty and has

authorized a rehearing as to other offenses,

the convening authority may, unless

otherwise directed, reassess a sentence based

on approved findings of guilty under the

criteria established by United States v. Sales,

22 M.J. 305 (C.M.A. 1986), and dismiss the

remaining charges. See United States v.

Harris, 53 M.J. 86 (2000). The power of

convening authorities to reassess had been

expressly authorized in paragraph 92a of

MCM, 1969. The authorizing language was

moved to the Discussion following R.C.M.

1107(e)(1)(B)(iii) in MCM, 1984. The

Discussion was amended to advise

practitioners to apply the criteria for sentence

reassessment established by United States v.

Sales, 22 M.J. 305 (C.M.A. 1986). See also

United States v. Harris, 53 M.J. 86 (2000);

United States v. Eversole, 53 M.J. 132 (2000).

The Discussion was further amended to

encourage practitioners to seek clarification

from superior authority where the directive

to the convening authority is unclear.

Amend R.C.M. 1108(b) to read as

follows:

(b) Who may suspend and remit. The

convening authority may, after approving the

sentence, suspend the execution of all or any

part of the sentence of court-martial, except

for a sentence of death. The general courtmartial convening authority over the accused

at the time of the court-martial may, when

taking the action under R.C.M. 1112(f),

suspend or remit any part of the sentence.

The Secretary concerned and, when

designated by the Secretary concerned, any

Under Secretary, Assistant Secretary, Judge

Advocate General, or commanding officer

may suspend or remit any part or amount of

the unexecuted part of any sentence other

than a sentence approved by the President or

a sentence of confinement for life without

eligibility for parole that has been ordered

executed. The Secretary concerned may,

however, suspend or remit the unexecuted

part of a sentence of confinement for life

without eligibility for parole only after the

service of a period of confinement of not less

than 20 years. The commander of the accused

who has the authority to convene a courtmartial of the kind which adjudged the

sentence may suspend or remit any part of

amount of the unexecuted part of any

sentence by summary court-martial or of any

sentence by special court-martial which does

not include a bad-conduct discharge

regardless of whether the person acting has

previously approved the sentence. The

‘‘unexecuted part of any sentence’’ includes

that part which has been approved and

ordered executed but which has not actually

been carried out.

Amend the analysis accompanying

R.C.M. 1108 by inserting the following

at the end thereof:

200 Amendment: Subsection (b) was

amended to conform to the limitations on

Secretarial authority to grant clemency for

military prisoners serving a sentence of

confinement for life without eligibility for

parole contained in section 553 of the Floyd

D. Spence National Defense Authorization

Act for Fiscal Year 2001, Pub. L. No. 106–

398,1 14 Stat. 1654, Oct 30, 2000.

Amend R.C.M. 1305(c) to read as

follows:

(c) Authentication. The summary courtmartial shall authenticate the record by

signing the original record trail.

Amend the analysis accompanying

R.C.M. 1305(c) by inserting the following

prior to the discussion of subsection (d):

200 Amendment: This subsection was

amended to require that summary courtsmartial authenticate the original record of

trial, as is currently the procedure for special

and general courts-martial.

Amend R.C.M. 1306(b)(1) to read as

follows:

(1) Who shall act. Except as provided

herein, the convening authority shall take

action in accordance with R.C.M. 1107. The

Convening authority shall not take action

before the period prescribed in R.C.M.

1105(c)(2) has expired, unless the right to

submit matters has been waived under

R.C.M. 1105(d).

Amend the analysis accompanying

R.C.M. 1306(b) by inserting the following

prior to the discussion of subsection (c):

200 Amendment: The cross-reference to

subsection R.C.M. 1105(c)(3) is amended to

R.C.M. 1105(c)(2) to conform to the 1987

Change 3 amendment that re-designated

R.C.M. 1105(c)(3) as R.C.M. 1105(c)(2).

Amend Mil. R. Evid. 103(a)(2) to read

as follows:

(2) Offer of proof. In case the ruling is one

excluding evidence, the substance of the

evidence was made known to the military

judge by offer or was apparent from the

context within which questions were asked.

Once the military judge makes a definitive

ruling on the record admitting or excluding

evidence, either at or before trail, a party

need not renew an objection or offer of proof

to preserve a claim of error for appeal. The

standard provided in this subdivision does

not apply to errors involving requirements

imposed by the Constitution of the Untied

States as applied to members of the armed

forces except insofar as the error arises under

these rules and this subdivision provides a

standard that is more advantageous to the

accused than the constitutional standard.

Federal Register / Vol. 66, No. 109 / Wednesday, June 6, 2001 / Notices 30435

Amend the analysis accompany Mil.

R. Evid. 103(a) by inserting the following

prior to the discussion of subsection (b):

200 Amendment: Subdivision 9a)(2) was

modified based on the amendment to Fed. R.

Evid 103(a)(2), effective 1 December 2000,

and is virtually identical to its Federal Rule

counterpart. It is intended to provide that

where an advance ruling is definitive, a party

need not renew an objection or offer of proof

at trial. Otherwise, renewal is required.

Amend Mil. R. Evid. 404(a) to read as

follows:

(a) Character evidence generally. Evidence

of a person’s character or a trait of character

is not admissible for the purpose of proving

action in conformity therewith on a

particular occasion, except:

(1) Character of accused. Evidence of a

pertinent trait of character offered by an

accused, or by the prosecution to rebut the

same, or if evidence of a pertinent trait of

character of the alleged victim of the crime

is offered by an accused and admitted under

Mil. R. Evid. 404(a)(2), evidence of the same

trait of character, if relevant, of the accused

offered by the prosecution;

(2) Character of alleged victim. Evidence of

a pertinent trait of character of the alleged

victim of the crime offered by an accused, or

by the prosecution to rebut the same, or

evidence of a character trait of peacefulness

of the alleged victim offered by the

prosecution in a homicide or assault case to

rebut evidence that the alleged victim was an

aggressor;

(3) Character of witness. Evidence of the

character of a witness, as provided in Mil. R.

Evid. 607, 608, and 609.

Amend the analysis accompanying

Mil R. Evid 404(a) by inserting the

following prior to the discussion of

subsection (b):

200 Amendment: Subdivision (a) was

modified based on the amendment to Fed. R.

Evid. 404(a), effective 1 December 2000, and

is virtually identical to its Federal Rule

counterpart. It is intended to provide a more

balanced presentation of character evidence

when an accused attacks the victim’s

character. The accused opens the door to an

attack on the same trait of his own character

when he attacks an alleged victim’s

character, giving the members an opportunity

to consider relevant evidence about the

accused’s propensity to act in a certain

manner. The words ‘‘if relevant’’ are added

to subdivision (a)(1) to clarify that evidence

of an accused’s character under this rule

must meet the requirements of Rules 401 and

403. The drafters believe this addition

addresses the unique use of character

evidence in courts-martial. The amendment

does not permit proof of the accused’s

character when the accused attacks the

alleged victim’s character as a witness under

Rule 608 or 609, nor does it affect the

standards for proof of character by evidence

of other sexual behavior or sexual offenses

under Rules 412-415.

Amend Mil. R. Evid. 701 to read as

follows:

If the witness is not testifying as an expert,

the witness’ testimony in the form of

opinions or inferences is limited to those

opinions or inferences which are (a)

rationally based on the perception of the

witness, (b) helpful to a clear understanding

of the witness’ testimony or the

determination of a fact in issue, and (c) not

based in scientific, technical, or other

specialized knowledge within the scope of

Mil. R. Evid. 702.

Amend the analysis accompanying

Mil. R. Evid. 701 by inserting the

following at the end thereof:

200 Amendment: Rule 701 was modified

based on the amendment to Fed. R. Evid.

701, effective 1 December 2000, and is taken

from the Federal Rule without change. It

prevents parties from proffering an expert as

a lay witness in an attempt to evade the

gatekeeper and reliability requirements of

Rule 702 by providing that testimony cannot

qualify under Rule 701 if it is based on

‘‘scientific, technical or other special

knowledge within the scope of Rule 702.

Amend Mil. R. Evid. 702 to read as

follows:

If scientific, technical, or other specialized

knowledge will assist the trier of fact to

understand the evidence or to determine a

fact in issue, a witness qualified as an expert

by knowledge, skill, experience, training, or

education, may testify thereto in the form of

an opinion or otherwise, if (1) the testimony

is based upon sufficient facts or data, (2) the

testimony is the product of reliable

principles and methods, and (3) the witness

has applied the principles and methods

reliably to the facts of the case.

Amend the analysis accompanying

Mil. R. Evid. 702 by inserting the

following at the end thereof:

200 Amendment: Rule 702 was modified

based on the amendment to Fed. R. Evid.

702, effective 1 December 2000, and is taken

from the Federal Rule without change. It

provides guidance for courts and parties as

to the factors to consider in determining

whether an expert’s testimony is reliable in

light of Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993)

and Kumho Tire Co. v. Carmichael, 526 U.S.

137 (1999) (holding that gatekeeper function

applies to all expert testimony, not just

testimony based on science).

Amend Mil. R. Evid. 703 to read as

follows:

The facts or data in the particular case

upon which an expert bases an opinioin or

inference may be those perceived by or made

known to the expert, at or before the hearing.

If of a type reasonably relied upon by experts

in the particular field in forming opinions or

inferences upon the subject, the facts or data

need not be admissible in evidence in order

for the opinion or inference to be admitted.

Facts or data that are otherwise inadmissible

shall not be disclosed to the members by the

proponent of the opinion or inference unless

the military judge determines that their

probative value in assisting the members to

evaluate the expert’s opinion substantially

outweighs their prejudicial effect.

Amend the analysis accompanying

Mil. R. Evid. 703 by inserting the

following at the end thereof:

200 Amendment: Rule 703 was modified

based on the amendment to Fed. R. Evid.

703, effective 1 December 2000, and is

virtually identical to its Federal Rule

counterpart. It limits the disclosure to the

members of inadmissible information that is

used as the basis of an expert’s opinion.

Compare Mil. R. Evid. 705.

Amend Mil. R. Evid. 803(6) to read as

follows:

Records of regularly conducted activity. A

memorandum, report, record, or data

compilation, in any form, of act, events,

conditions, opinions, or diagnoses, made at

or near the time by, or from information

transmitted by, a person with knowledge, if

kept in the course of a regularly conducted

business activity, and if it was the regular

practice of that business activity to make the

memorandum, report, record, or data

compilation, all as shown by the testimony

of the custodian or other qualified witness,

or by certification that complies with Mil. R.

Evid. 902(11) or any other statute permitting

certification in a criminal proceeding in a

court of the United States, unless the source

of the information or the method or

circumstances of preparation indicate a lack

of trustworthiness. The term ‘‘business’’ as

used in this paragraph includes the armed

forces, a business, institution, association,

profession, occupation, and calling of every

kind, whether or not conducted for profit.

Among those memoranda, reports, records, or

data compilation normally admissible

pursuant to this paragraph area enlistment

papers, physical examination papers, outlinefigure and fingerprint cards, forensic

laboratory reports, chain of custody

documents, morning reports and other

personnel accountability documents, service

records, officer and enlisted qualification

records, logs, unit personnel diaries,

individual equipment records, daily strength

records of prisoners, and rosters of prisoners.

Amend the analysis accompanying

Mil. R. Evid. 803(6) by inserting the

following prior to the discussion of

subsection (7):

200 Amendment: Rule 803(6) was modified

based on the amendment to Fed. R. Evid.

803(6), effective 1 December 2000. It permits

a foundation for business records to be made

through certification to save the parties the

expense and inconvenience of producing live

witnesses for what is often perfunctory

testimony. The Rule incorporates federal

statutes which allow certification in a

criminal proceeding in a court of the United

States (See e.g. 18 U.S.C. section 3505,

Foreign records of regularly conducted

activity). The Rule does not include foreign

records of regularly conducted business

activity in civil cases as provided in its

Federal Rule counterpart. This Rule works

together with Rule 902(11).

Insert Mil. R. Evid. 902(11) to read as

follows:

30436 Federal Register / Vol. 66, No. 109 / Wednesday, June 6, 2001 / Notices

(11) Certified domestic records of regularly

conducted activity. The original or a

duplicate of a domestic record of regularly

conducted activity that would be admissible

under Mil. R. Evid. 803(6) if accompanied by

a written declaration of its custodian or other

qualified person, in a manner complying

with any Act of Congress or rule prescribed

by the Supreme Court pursuant to statutory

authority, certifying that the record:

(A) was made at or near the time of the

occurrence of the matters set forth by, or from

information transmitted by, a person with

knowledge of those matters;

(B) was kept in the course of the regularly

conducted activity; and

(C) was made by the regularly conducted

activity as a regular practice.

A party intending to offer a record into

evidence under this paragraph must provide

written notice of that intention to all adverse

parties, and must make the record and

declaration available for inspection

sufficiently in advance of their offer into

evidence to provide an adverse party with a

fair opportunity to challenge them.

Insert the following new analysis

accompanying Mil. R. Evid. 901(11)

after the discussion of subsection (10):

200 Amendment: Rule 902(11) was

modified based on the amendment to Fed. R.

Evid. 902(11), effective 1 December 2000, and

is taken from the Federal Rule without

change. It provides for self-authentication of

domestic business records and sets forth

procedures for preparing a declaration of a

custodian and other qualified witness that

will establish a sufficient foundation for the

admission of domestic business records. This

Rule works together with Mil. R. Evid.

803(6).

The amendment to the Federal Rules

of Evidence, effective in United States

District Courts, December 1, 2000,

creating Rule 901(12) is not adopted.

Amend the analysis accompanying

Mil. R. Evid. 1102 by inserting the

following at the end thereof:

200 Amendment: The amendment to the

Federal Rules of Evidence, effective in

United States District Courts, December 1,

2000, creating Rule 902(12) is not adopted.

Federal Rules 301, 302, and 415, were not

adopted because they are applicable only to

civil proceedings.

Amend Part IV, para 45(b)(2) by

deleting para 45(b)(2)(c) and inserting

the following after para 45(b)(2)(b):

(Note: Add one of the following elements)

(c) That at the time of the sexual

intercourse the person was under the age of

12.

(d) That at the time of the sexual

intercourse the person had attained the age

of 12 but was under the age of 16.

Amend the analysis accompanying

Part IV, para 45(b) by inserting the

following prior to the discussion of

subsection (c):

b. Elements.

200 Amendment: Paragraph 45(b)(2) was

amended to add two distinct elements of age

based upon the 1994 amendment to

paragraph 45(e). See also concurrent change

to R.C.M. 307(c)(3) and accompanying

analysis.

Amend Part IV, para 45(f) to read as

follows:

f. Sample specifications.

(1) Rape.

In that llllllll(personal

jurisdiction data), (at/on board—

location)(subject-matter jurisdiction data, if

required), on or aboutllll20ll,

rapellllll, (a person under the age of

12)(a person who had attained the age of 12

but was under the age of 16).

(2) Carnal Knowledge.

In thatllllllll(personal

jurisdiction data), did, (at/on board—

location)(subject-matter jurisdiction data, if

required), on or aboutllll20 , commit

the offense of carnal knowledge with

llllll, (a person under the age of 12)(a

person who attained the age of 12 but was

under the age of 16).

Amend the analysis accompanying

Part IV, para 45(f) by inserting the

following at the end of subsection (e):

200 Amendment: Paragraph 45(f)(2) was

amended to aid practitioners in charging the

two distinct categories of carnal knowledge

created in 1994. For the same reason

paragraph 45(f)(1) was amended to allow for

contingencies of proof because carnal

knowledge is a lesser-included offense of

rape if properly pleaded. See also concurrent

change to R.C.M. 307(c)(3) and

accompanying analysis.

Amend Part IV, para 51(b) to read as

follows:

(1) That the accused engaged in unnatural

carnal copulation with a certain other person

or with an animal.

(Note: Add any of the following as

applicable)

(2) That the act was done with a child

under the age of 12.

(3) That the act was done with a child who

had attained the age of 12 but was under the

age of 16.

(4) That the act was done by force and

without the consent of the other person.

Amend the analysis accompanying

Part IV, para 51(b) by inserting the

following prior to the discussion of

subsection (c):

b. Elements.

200 Amendment: Paragraph 51(b) was

amended by adding two factors pertaining to

age based upon the 1994 amendment to

paragraph 51(e) that created two distinct

categories of sodomy involving a child. See

also concurrent change to R.C.M. 307(c)(3)

and accompanying analysis.

Amend Part IV, para 51(f) to read as

follows:

f. Sample specification.

In thatllllllll(personal

jurisdiction data), did, (at/on board—

location)(subject-matter jurisdiction data, if

required), on or aboutllll20ll,

commit sodomy withllllll, (a child

under the age of 12)(a child who had attained

the age of 12 but was under the age of 16)(by

force and without the consent of the

saidllllll).

Amend the analysis accompanying

Part IV, para 45(f) by inserting the

following at the end of subsection (e):

200 Amendment: Paragraph 51(f) was

amended to aid practitioners in charging the

two distinct categories of sodomy involving

a child created in 1994. See also concurrent

change to R.C.M. 307(c)(3) and

accompanying analysis.

Amend Part IV, para 57(c)(2)(B) to

read as follows:

(b) Material matter. The false testimony

must be with respect to a material matter, but

that matter need not be the main issue in the

case. Thus, perjury may be committed by

giving false testimony with respect to the

credibility of a material witness or in an

affidavit in support of a request for a

continuance, as well as by giving false

testimony with respect to a fact from which

a legitimate inference may be drawn as to the

existence or nonexistence of a fact in issue.

Amend the analysis accompanying

Part IV, para 57(c)(2)(B) by inserting the

following before the discussion of

subsection (d):

200 Amendment: Subsection (2)(b) was

amended to comply with United States v.

Gaudin, 515 U.S. 506 (1995), which held that

when materiality is a statutory element of an

offense, it must be submitted to the jury for

decision. Materiality cannot be removed from

members’ consideration by an interlocutory

ruling that a statement is material. See also,

Gaudin at 521, (‘‘It is commonplace for the

same mixed question of law and fact to be

assigned to the court for one purpose, and to

the jury for another.’’); and at 517, (‘‘The

prosecution’s failure to provide minimal

evidence of materiality, like its failure to

provide minimal evidence of any other

element, of course raises a question of ‘law’

that warrants dismissal.’’).

Amend Part IV, para 100a(c)(1) to

read as follows:

(1) In general. This offense is intended to

prohibit and therefore deter reckless or

wanton conduct that wrongfully creates a

substantial risk of death or grevious bodily

harm to others.

Amend Part IV, para 100a(f) to read

as follows:

f. Sample specification.

In that llllllll (personal

jurisdiction data), did, (at/on board-location)

(subject-matter jurisdiction data, if required),

on or about llll 20ll, wrongfully and

(recklessly)(wantonly) engage in conduct, to

wit: (describe conduct), conduct likely to

cause death or grievous bodily harm to

llllll.

Federal Register / Vol. 66, No. 109 / Wednesday, June 6, 2001 / Notices 30437

Amend the analysis accompanying

Part IV, para 100a by inserting the

following at the end thereof:

200 Amendment: The sample specification

was amended to add the word ‘‘wantonly’’ to

make the sample specification consistent

with the elements. The phrase ‘‘serious

bodily harm’’ has been changed to read

‘‘grievous bodily harm’’ in the sample

specification to parallel the language in the

elements. Similarly, in the Explanation, the

phrase ‘‘serious injury’’ was modified to read

‘‘grievous bodily harm.’’ The format of the

sample specification was also modified to

follow the format of other sample

specifications in the MCM.

Insert DoD Directive 5500.17, ‘‘The

Roles and Responsibilities of the Joint

Service Committee (JSC) on Military

Justice’’ as Appendix 26.

Members of the public are hereby

invited to submit proposals for changes

to the Manual for Courts-Martial for

consideration by the JSC. All

submissions should be rceived by the

close of the public comment period in

order to be considered in the next

annual review cycle. Proposals should

include reference to the specific

provision you wish changed, a rational

for the proposed change, and specific

and detailed proposed language to

replace the current language.

Incomplete submissions may not be

considered. The individual or agency

submitting each proposal will be

notified in writing whether the JSC

voted to decline the proposal as not

within the JSC’s cognizance, reject it,

table, or accept it.

Dated: May 31, 2001.

L.M. Bynum,

Alternate OSD Federal Register Liaison

Officer, Department of Defense.

[FR Doc. 01–14152 Filed 6–5–01; 8:45 am]

BILLING CODE 5001–08–M

DEPARTMENT OF DEFENSE

Department of the Navy

Meeting of the U.S. Naval Academy

Board of Visitors

AGENCY: Department of the Navy, DOD.

ACTION: Notice of partially closed

meeting.

SUMMARY: The U.S. Naval Academy

Board of Visitors will meet to make such

inquiry as the Board shall deem

necessary into the state of morale and

discipline, the curriculum, instruction,

physical equipment, fiscal affairs, and

academic methods of the Naval

Academy. During this meeting inquiries

will relate to the internal personnel

rules and practices of the Academy, may

involve on-going criminal

investigations, and include discussions

of personal information the disclosure

of which would constitute a clearly

unwarranted invasion of personal

privacy. The executive session of this

meeting will be closed to the public.

DATES: The meeting will be held on

Monday, June 11, 2001, from 8:30 a.m.

to 11:45 a.m. The closed Executive

Session will be from 10:50 a.m. to 11:45

a.m.

ADDRESSES: The meeting will be held in

the Bo Coppedge Dining Room of

Alumni Hall at the U.S. Naval Academy.

FOR FURTHER INFORMATION CONTACT:

Lieutenant Commander Thomas E.

Osborn, Executive Secretary to the

Board of Visitors, Office of the

Superintendent, U.S. Naval Academy,

Annapolis, MD 21402–5000, telephone

number (410) 293–1503.

SUPPLEMENTARY INFORMATION: This

notice of a partially closed meeting is

provided per the Federal Advisory

Committee Act (5 U.S.C. App. 2). The

executive session of the meeting will

consist of discussions of information

which pertain to the conduct of various

midshipmen at the Naval Academy and

internal Board of Visitors matters.

Discussion of such information cannot

be adequately segregated from other

topics, which precludes opening the

executive session of this meeting to the

public. In accordance with 5 U.S.C.

App. 2, section 10(d), the Secretary of

the Navy has determined in writing that

the special committee meeting shall be

partially closed to the public because

they will be concerned with matters as

outlined in section 552(b)(2), (5), (6),

and (7) of title 5, U.S.C. Due to

unavoidable delay in administrative

processing, the normal 15 days notice

could not be provided.

Dated: May 31, 2001.

J.L. Roth,

Lieutenant Commander, Judge Advocate

General’s Corps, U.S. Navy, Federal Register

Liaison Officer.

[FR Doc. 01–14290 Filed 6–5–01; 8:45 am]

BILLING CODE 3810–FF–U

DEPARTMENT OF EDUCATION

Notice of Proposed Information

Collection Requests

AGENCY: Department of Education.

SUMMARY: The Leader, Regulatory

Information Management Group, Office

of the Chief Information Officer, invites

comments on the proposed information

collection requests as required by the

Paperwork Reduction Act of 1995.

DATES: Interested persons are invited to

submit comments on or before August 6,

2001.

SUPPLEMENTARY INFORMATION: Section

3506 of the Paperwork Reduction Act of

1995 (44 U.S.C. chapter 35) requires that

the Office of Management and Budget

(OMB) provide interested Federal

agencies and the public an early

opportunity to comment on information

collection requests. OMB may amend or

waive the requirement for public

consultation to the extent that public

participation in the approval process

would defeat the purpose of the

information collection, violate State or

Federal law, or substantially interfere

with any agency’s ability to perform its

statutory obligations. The Leader,

Regulatory Information Management

Group, Office of the Chief Information

Officer, publishes that notice containing

proposed information collection

requests prior to submission of these

requests to OMB. Each proposed

information collection, grouped by

office, contains the following: (1) Type

of review requested, e.g. new, revision,

extension, existing or reinstatement; (2)

Title; (3) Summary of the collection; (4)

Description of the need for, and

proposed use of, the information; (5)

Respondents and frequency of

collection; and (6) Reporting and/or

Recordkeeping burden. OMB invites

public comment.

The Department of Education is

especially interested in public comment

addressing the following issues: (1) is

this collection necessary to the proper

functions of the Department; (2) will

this information be processed and used

in a timely manner; (3) is the estimate

of burden accurate; (4) how might the

Department enhance the quality, utility,

and clarity of the information to be

collected; and (5) how might the

Department minimize the burden of this

collection on the respondents, including

through the use of information

technology.

Dated: May 31, 2001.

John Tressler,

Leader, Regulatory Information Management,

Office of the Chief Information Officer.

Office of Student Financial Assistance

Programs

Type of Review: Revision.

Title: Federal PLUS Loan Program

Application Documents.

Frequency: On Occasion.

Affected Public: Businesses or other

for-profit; Individuals or household;

Not-for-profit institutions.

Reporting and Recordkeeping Hour

Burden: