[Federal Register Volume 59, Number 175 (Monday, September 12, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-21716]


[[Page Unknown]]

[Federal Register: September 12, 1994]


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DEPARTMENT OF DEFENSE

Department of the Navy

32 CFR Part 701

 

Availability of Department of the Navy Records and Publication of 
Department of the Navy Documents Affecting the Public

AGENCY: Department of the Navy, DOD.

ACTION: Final rule.

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SUMMARY: This rule sets forth amended regulations pertaining to the 
Department of the Navy's Freedom of Information Act Program. The rule 
reflects changes in the Secretary of the Navy Instruction 5720.45 from 
which it is derived, and also incorporates changes from governing 
Department of Defense regulations. The sections contained in this rule 
have been renumbered to avoid confusion with 32 CFR Part 701 subpart D.

EFFECTIVE DATE: September 12, 1994.

FOR FURTHER INFORMATION CONTACT: Lieutenant Sulik, Office of the Judge 
Advocate General (Administrative Law Division), 200 Stovall Street, 
Alexandria, VA 22332-2400, (703) 614-1781.

SUPPLEMENTARY INFORMATION: Pursuant to the authority cited below, the 
Department of the Navy amends 32 CFR Part 701, subpart E, derived from 
the Secretary of the Navy Instruction 5720.45, which implements within 
the Department of the Navy the provisions of Department of Defense 
Directives 5400.7 and 5400.7-R series, Department of Defense Freedom of 
Information Act Program (32 CFR Part 286), and Department of Defense 
Directive 5400.9, Publications of Proposed and Adopted Regulations 
Affecting the Public (32 CFR Part 336). This rule is being published by 
the Department of the Navy for guidance and interest of the public in 
accordance with 5 U.S.C. 552(a)(1). It has been determined that 
invitation of public comment on these changes to the Department of the 
Navy's implementing instruction prior to adoption would be 
impracticable and unnecessary, and it is therefore not required under 
the public rulemaking provisions of 32 CFR Parts 336 and 701, subpart 
E. Interested persons, however, are invited to comment in writing on 
this amendment. All written comments received will be considered in 
making subsequent amendments or revisions to 32 CFR Part 701, subpart 
E, or the instruction upon which it is based. Changes may be initiated 
on the basis of comments received. Written comments should be addressed 
to Lieutenant Sulik, Office of the Judge Advocate General 
(Administrative Law Division), 200 Stovall Street, Alexandria, VA 
22332-2400. It has been determined that this final rule is not a 
``major rule'' within the criteria specified in section 1(b) of 
Executive Order 12291 and does not have substantial impact on the 
public.

List of Subjects in 32 CFR Part 701

    Administrative practice and procedure, Freedom of Information, 
Privacy.
    Accordingly, 32 CFR Part 701 is amended as follows:

PART 701--AVAILABILITY OF DEPARTMENT OF THE NAVY RECORDS AND 
PUBLICATION OF DEPARTMENT OF THE NAVY DOCUMENTS AFFECTING THE 
PUBLIC

    1. The authority citation for Part 701 continues to read as 
follows:

    Authority: 5 U.S.C. Sec. 552.

    2. Part 701 is amended by revising subpart E to read as follows:
    Subpart E--Indexing, Public Inspection, and Federal Register 
Publication of Department of the Navy Directives and Other Documents 
Affecting the Public.

Sec.
701.61  Purpose.
701.62  Scope and applicability.
701.63  Policy.
701.64  Publication of adopted regulatory documents for the guidance 
of the public.
701.65  Availability, public inspection, and indexing of other 
documents affecting the public.
701.66  Publication of proposed regulations for public comment.
701.67  Petitions for issuance, revision, or cancellation of 
regulations affecting the public.


Sec. 701.61   Purpose.

    This subpart implements 5 U.S.C. 552(a)(1) and (2) and provisions 
of Department of Defense Directive 5400.7, May 13, 1988 (32 CFR part 
286, 55 FR 53104); Department of Defense Directive 5400.9, December 23, 
1974 (32 CFR part 336, 40 FR 4911); and the Regulations of the 
Administrative Committee of the Federal Register (1 CFR chaps. I and 
II) by delineating responsibilities and prescribing requirements, 
policies, criteria, and procedures applicable to:
    (a) Publishing the following Department of the Navy documents in 
the Federal Register:
    (1) Certain classes of regulatory, organizational, policy, 
substantive, and procedural documents required to be published for the 
guidance of the public;
    (2) Certain classes of proposed regulatory documents required to be 
published for public comment prior to issuance; and
    (3) Certain public notices required by law or regulation to be 
published;
    (b) Making available, for public inspection and copying, certain 
classes of documents having precedential effect on decisions concerning 
members of the public;
    (c) Maintaining current indexes of documents having precedential 
effect on decisions concerning members of the public, and publishing 
such indexes or making them available by other means;
    (d) Receiving and considering petitions of members of the public 
for the issuance, revision, or cancellation of regulatory documents of 
some classes; and
    (e) Distributing the Federal Register for official use within the 
Department of the Navy.


Sec. 701.62  Scope and applicability.

    This subpart prescribes actions to be executed by, or at the 
direction of, Navy Department [as defined in Sec. 700.104(c) of this 
chapter] components and specified headquarters activities for apprising 
members of the public of Department of the Navy regulations, policies, 
substantive and procedural rules, and decisions which may affect them, 
and for enabling members of the public to participate in Department of 
the Navy rulemaking processes in matters of substantial and direct 
concern to the public. This subpart complements subpart A, which 
implements Navy-wide requirements for furnishing documents to members 
of the public upon request. That a document may be published or indexed 
and made available for public inspection and copying under this 
instruction does not affect the possible requirement under subpart A 
for producing it for examination, or furnishing a copy, in response to 
a request made under that subpart.


Sec. 701.63  Policy.

    In accordance with the spirit and intent of 5 U.S.C. 552, the 
public has the right to the maximum information concerning the 
organization and functions of the Department of the Navy. This includes 
information on the policies and the substantive and procedural rules 
used by the Department of the Navy in its dealings with the public. In 
accordance with Department of Defense policy described in 32 CFR part 
336, 40 FR 4911, moreover, the public is encouraged to participate in 
Department of the Navy rulemaking when the proposed rule would 
substantially and directly affect the public.


Sec. 701.64  Publication of adopted regulatory documents for the 
guidance of the public.

    (a) Classes of documents to be published. Subject to the provisions 
of 5 U.S.C. 552(b) which exempt specified matters from requirements for 
release to the public [see subpart B of this part], the classes of 
Department of the Navy documents required to be published on a current 
basis in the Federal Register are listed below.
    (1) Naval organization and points of contact--descriptions of the 
central and field organization of the Department of the Navy and the 
locations at which, the members or employees from whom, and the methods 
whereby, the public may obtain information, make submittals or 
requests, or obtain decisions;
    (2) Methods and procedures for business with the public--statements 
of the general course and methods by which Department of the Navy 
functions affecting members of the public are channeled and determined, 
including the nature and requirements of all formal and informal 
procedures available;
    (3) Procedural rules and forms--rules of procedure for functions 
affecting members of the public, descriptions of forms available or the 
places at which forms may be obtained, and instructions as to the scope 
and contents of all papers, reports, or examinations required to be 
submitted under such rules of procedures; and
    (4) Substantive rules and policies--substantive rules of general 
applicability adopted as authorized by law, and statements of general 
policy or interpretations of general applicability formulated and 
adopted by the Department of the Navy. Such rules are commonly 
contained in directives, manuals, and memorandums.
    (i) ``General applicability'' defined. The definition prescribed in 
1 CFR 1.1 pertains to the classes of documents contemplated in 
Sec. 701.64(b)(4).
    (ii) Internal personnel rules and internal practices. In addition 
to the other exemptions listed in 5 U.S.C. 552(b) and subpart B of this 
part, particular attention is directed to the exemption pertaining to 
internal personnel rules and internal practices.
    (iii) Local regulations. It is unnecessary to publish in the 
Federal Register a regulation which is essentially local in scope or 
application, such as a directive issued by a base commander in the 
implementation of his responsiblity and authority under subpart G of 
part 700 of this title for guarding the security of the installation or 
controlling the access and conduct of visitors or tradesmen. However, 
such publication may be authorized under extraordinary circumstances, 
as determined by the Chief of Naval Operations or the Commandant of the 
Marine Corps, as appropriate, with the concurrence of the Judge 
Advocate General.
    (iv) Incorporation by reference. With the approval of the Director 
of the Federal Register given in the limited instances authorized in 1 
CFR Part 51 and 32 CFR 336.5(c), the requirement for publication in the 
Federal Register may be satisfied by reference in the Federal Register 
to other publications containing the information which must otherwise 
be published in the Federal Register. In general, matters eligible for 
incorporation by reference are restricted to materials in the nature of 
published data, criteria, standards, specifications, techniques, 
illustrations, or other published information which are reasonably 
available to members of the class affected.
    (b) Public inspection. When feasible, Department of the Navy and 
Department of Defense documents published in the Federal Register 
should be made available for inspection and copying, along with 
available indexes of such documents, in the same locations used for 
public inspection and copying of the documents contemplated in 
Sec. 701.65.


Sec. 701.65  Availability, public inspection, and indexing of other 
documents affecting the public.

    (a) Discussion. Section 552(a) of title 5, United States Code, 
requires the Department of the Navy to make available for public 
inspection and copying documents which have precedential significance 
on those Department of the Navy decisions which affect the public. 
These documents must be kept readily available for public inspection 
and copying at designated locations, unless they are promptly published 
and copies are offered for sale. Additionally, documents issued after 
July 4, 1967, are required to be indexed on a current basis. These 
indexes, or supplements thereto, must be published at least quarterly 
in accordance with the provisions of this paragraph. In determining 
whether a particular document is subject to the requirements of this 
paragraph, consideration should be given to the statutory purposes and 
legal effect of the provisions.
    (1) Statutory purposes. In general, the purpose of the requirement 
to provide members of the public with essential information is to 
enable them to deal effectively and knowledgeably with Federal 
agencies; to apprise members of the public of the existence and 
contents of documents which have potential legal consequences as 
precedents in administrative determinations which may affect them; and 
to permit public examination of the basis for administrative actions 
which affect the public.
    (2) Legal effect. If a document is required to be indexed and made 
available under this paragraph, it may not be used or asserted as a 
precedent against a member of the public unless it was so indexed and 
made available, or unless the person against whom it is asserted had 
actual and timely notice of its contents.
    (b) Classes of documents affected. (1) Subject to the provisions of 
5 U.S.C. 552(b) which exempt specified matters from the requirements of 
public disclosure, the following classes of Department of the Navy 
documents are included in the requirements of this paragraph:
    (i) Final adjudicative opinions and orders--opinions (including 
concurring and dissenting opinions) and orders which are issued as part 
of the final disposition of adjudication proceedings (as defined in 5 
U.S.C. 551) and which may have precedential effect in the disposition 
of other cases affecting members of the public;
    (ii) Policy statements and interpretations--statements of policy 
and interpretations of less than general applicability (i. e., 
applicable only to specific cases; organizations, or persons), which 
are not required to be published in the Federal Register, but which may 
have precedential effect in the disposition of other cases affecting 
members of the public;
    (iii) Manuals and instructions--administrative staff manuals, 
directives, and instructions to staff, or portions thereof, which 
establish Department of the Navy policy or interpretations of policy 
that serve as a basis for determining the rights of members of the 
public with regard to Department of the Navy functions. In general, 
manuals and instructions relating only to internal management aspects 
of property or fiscal accounting, personnel administration, and most 
other ``proprietary'' functions of the department are not within the 
scope of this provision. This provision also does not apply to 
instructions for employees on methods, techniques, and tactics to be 
used in performing their duties; for example:
    (A) Instructions or manuals issued for audit, investigation, and 
inspection purposes;
    (B) Those which prescribe operational tactics; standards of 
performance; criteria for defense, prosecution, or settlement of cases; 
or negotiating or bargaining techniques, limitations, or positions; and
    (C) Operations and maintenance manuals and technical information 
concerning munitions, equipment, and systems, and foreign intelligence 
operations.
    (2) In determining whether a document has precedential effect, the 
primary test is whether it is intended as guidance to be followed 
either in decisions or evaluations by the issuing authority's 
subordinates, or by the issuing authority itself in the adjudication or 
determination of future cases involving similar facts or issues. The 
kinds of orders or opinions which clearly would have precedential 
effect are those that are intended to operate both as final 
dispositions of the questions involved in the individual cases 
presented, and as rules of decision to be followed by the issuing 
authority or its subordinates in future cases involving similar 
questions. By contrast, many adjudicative orders and opinions issued 
within the Department of the Navy operate only as case-by-case 
applications of policies or interpretations established in provisions 
of manuals or directives and are not themselves used, cited, or relied 
on as rules of decision in future cases. In these instances, the 
underlying manual or directive provisions obviously would have 
precedential effect, but the orders and opinions themselves would not 
have. A recommendation by an official who is not authorized to 
adjudicate, or to issue a binding statement of policy or interpretation 
in a particular matter would not have precedential effect, though an 
order, opinion, statement of policy, or interpretation issued by an 
authorized official pursuant to such recommendation might have that 
effect.
    (c) Deletion of identifying details. (1) Although the exemptions 
from public disclosure described in 5 U.S.C. 552 and subpart B of this 
part are applicable to documents which are required to be indexed and 
made available for public inspection and copying under this paragraph, 
there is no general requirement that any segregable portions of 
partially exempt documents be so indexed and made available for public 
inspection and copying. As a general rule, a record may therefore be 
held exempt in its entirety from the requirements of this paragraph if 
it is determined that it contains exempt matter and that it is 
reasonably foreseeable that disclosure would be harmful to an interest 
protected by that exemption. An exception to this general rule does 
exist with regard to a record which would be exempt only because it 
contains information which, if disclosed, would result in a clearly 
unwarranted invasion of privacy.
    (2) Where necessary to prevent a clearly unwarranted invasion of a 
person's privacy, identifying details should be deleted from a record 
which is required to be indexed and made available for public 
inspection and copying under this paragraph. In every such case, the 
justification for the deletion must be fully stated in writing in a 
manner which avoids creating inferences that could be injurious to the 
person whose privacy is involved. Usual reasons for deletion of 
identifying details include protection of privacy in a person's 
business affairs, medical matters, or private family matters; 
humanitarian considerations; and avoidance of embarrassment to a 
person.
    (d) Publication of indexes--(1) Form of indexes. Each index should 
be arranged topically or by descriptive words, so that members of the 
public may be able to locate the pertinent documents by subject, rather 
than by case name or by a numbering system.
    (2) Time of publication. Each component having cognizance of 
records required under this paragraph to be indexed shall compile and 
maintain an index of such records on a continually current basis. Each 
such index was required to initially be published by July 1, 1975. An 
updated version of each such index, or a current supplement thereto, 
shall be published by an authorized method at least annually 
thereafter.
    (3) Methods of publication. The methods authorized for publication 
of the indexes contemplated in this paragraph are:
    (i) Publication in the Federal Register;
    (ii) Commercial publication, provided that such commercial 
publication is readily available to members of the public, or will be 
made available upon request and payment of costs (if this method is 
utilized, information on the cost of copies and the address from which 
they may be obtained shall be published in the Federal Register); or
    (iii) Furnishing internally reproduced copies upon request, at cost 
not to exceed the direct cost of duplication in accordance with subpart 
D of this part, provided that it is determined, by an order published 
in the Federal Register, that the publication of the index by methods 
Sec. 701.65(d)(3) (i) or (ii) would be unnecessary or impracticable. 
Such order shall state the cost of copies and the address from which 
they may be obtained. The Chief of Naval Operations (N09B30) is 
authorized to issue such an order in a proper case.
    (4) Public inspection of indexes. In addition to publication by one 
of the foregoing methods, each index will be made available for public 
inspection and copying in accordance with Sec. 701.65(e) at the 
locations where Department of the Navy records are available for public 
inspection.
    e. Where records may be inspected. Locations and times at which 
Department of the Navy records, and indexes thereof, are available for 
public inspection and copying are shown in Sec. 701.32.
    (f) Cost. Fees for copying services, if any, furnished at locations 
shown in Sec. 701.32 shall be determined in accordance with subpart D 
of this part.
    (g) Records of the United States Navy-Marine Corps Court of 
Military Review. The United States Navy-Marine Corps Court of Military 
Review is deemed to be a ``court of the United States'' within the 
meaning of 5 U.S.C. 551 and is therefore excluded from the requirements 
of 5 U.S.C. 552. Nevertheless, unpublished decisions of the United 
States Navy-Marine Corps Court of Military Review, although not 
indexed, are available for public inspection at the location shown in 
Sec. 701.32(c).

Sec. 701.66  Publication of proposed regulations for public comment

    (a) Discussion. The requirements of this section are not imposed by 
statute, but are the implementation of policies and procedures created 
administratively in 32 CFR part 336. In effect, the pertinent 
provisions of 32 CFR part 336 establish, within the Department of 
Defense and its components, procedures that are analogous to the public 
rulemaking procedures applicable to some functions of other Federal 
agencies under 5 U.S.C. 553. While the administrative policy of 
encouraging the maximum practicable public participation in the 
Department of the Navy rulemaking shall be diligently followed, 
determinations by the Department of the Navy as to whether a proposed 
regulatory requirement originated by it comes within the purview of 
this paragraph and the corresponding provisions of 32 CFR part 336, and 
as to whether inviting public comment is warranted, shall be conclusive 
and final.
    (b) Classes of documents affected. Each proposed regulation or 
other document of a class described in Sec. 701.64(a) (or a proposed 
revision of an adopted document of any of those classes) which would 
``originate'' within the Department of the Navy a requirement of 
general applicability and future effect for implementing, interpreting, 
or prescribing law or policy, or practice and procedure requirements 
constituting authority for prospective actions having substantial and 
direct impact on the public, or a significant portion of the public, 
must be evaluated to determine whether inviting public comment prior to 
issuance is warranted. Documents that merely implement regulations 
previously issued by higher naval authorities or by the Department of 
Defense will not be deemed to ``originate'' requirements within the 
purview of this section. If a proposed document is within the purview 
of this section, publication to invite public comment will be warranted 
unless, upon evaluation, it is affirmatively determined both that a 
significant and legitimate interest of the Department of the Navy or 
the public will be served by omitting such publication for public 
comment, and that the document is subject to one or more of the 
following exceptions:
    (1) It pertains to a military or foreign affairs function of the 
United States which has been determined under the criteria of an 
Executive Order or statute to require a security classification in the 
interests of national defense or foreign policy;
    (2) It relates to naval management, naval military or civilian 
personnel, or public contracts (e.g., Navy Procurement Directives), 
including nonappropriated fund contracts;
    (3) It involves interpretative rules, general statements of policy, 
or rules of agency organization, procedure, or practice; or
    (4) It is determined with regard to the document, for good cause, 
that inviting public comment is impracticable, unnecessary, or contrary 
to the public interest.
    (c) Procedures--(1) Normal case. Unless the official having 
cognizance of a proposed regulatory document determines under the 
criteria of Sec. 701.66(b) that inviting public comment is not 
warranted, he or she shall cause it to be published in the Federal 
Register with an invitation for the public to submit comments in the 
form of written data, views, or arguments during a specified period of 
not less than 30 days following the date of publication. An opportunity 
for oral presentation normally will not be provided, but may be 
provided at the sole discretion of the official having cognizance of 
the proposed directive if he or she deems it to be in the best interest 
of the Department of the Navy or the public to do so. After careful 
consideration of all relevant matters presented within the period 
specified for public comment, the proposed document may be issued in 
final form. After issuance, the adopted document, and a preamble 
explaining the relationship of the adopted document to the proposed 
document and the nature and effect of public comments, shall be 
published in the Federal Register for the guidance of the public.
    (2) Where public comment is not warranted. The official having 
cognizance of a proposed document within the purview of this paragraph 
shall, if he or she determines that inviting public comment concerning 
the document is not warranted under the criteria of Sec. 701.66(b), 
incorporate that determination, and the basis therefor, in the document 
when it is issued or submitted to a higher authority for issuance. 
After issuance, such document shall be published in the Federal 
Register for the guidance of the public, if required under 
Sec. 701.64(b).

Sec. 701.67  Petitions for issuance, revision, or cancellation of 
regulations affecting the public

    In accordance with the provisions of 32 CFR part 336, the 
Department of the Navy shall accord any interested person the right to 
petition, in writing, for the issuance, revision, or cancellation of 
regulatory document that originates, or would originate, for the 
Department of the Navy, a policy, requirement, or procedure which is, 
or would be, within the purview of Sec. 701.66. The official having 
cognizance of the particular regulatory document involved, or having 
cognizance of the subject matter of a proposed document, shall give 
full and prompt consideration to any such petition. Such official may, 
at his or her absolute discretion, grant the petitioner an opportunity 
to appear, at his or her own expense, for the purpose of supporting the 
petition, if this is deemed to be compatible with orderly conduct of 
public business. The petitioner shall be advised in writing of the 
disposition, and the reasons for the disposition, of any petition 
within the purview of this section.

    Dated: August 19, 1994.
Lewis T. Booker,
LCDR, JAGC, USN, Federal Register Liaison Officer.
[FR Doc. 94-21716 Filed 9-9-94; 8:45 am]
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