Header:
CODE OF FEDERAL REGULATIONS
TITLE 32 -- NATIONAL DEFENSE
SUBTITLE A -- DEPARTMENT OF DEFENSE
CHAPTER I -- OFFICE OF THE SECRETARY OF DEFENSE
SUBCHAPTER I -- CIVIL DEFENSE
PART 185--DEFENSE SUPPORT OF CIVIL AUTHORITIES (DSCA)
Date:
02/28/2013
Document:
§ 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 § 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 § 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 § 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 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 n16 and DoD Directive 5525.5 n17 .) 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:
n16 Available by downloading at http://www.dtic.mil/whs/directives/corres/pdf/302512p.pdf.
n17 Available by downloading at http://www.dtic.mil/whs/directives/corres/pdf/552505p.pdf.
(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 § 185.4(g) and § 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) n18 .
n18 Available by downloading at http://www.dtic.mil/whs/directives/corres/pdf/200018p.pdf.
(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 § 185.5(m)(1) of this part. In each such instance, the Chief, National Guard Bureau, will be informed of the direct liaison.
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