[Federal Register Volume 65, Number 82 (Thursday, April 27, 2000)]
[Rules and Regulations]
[Pages 24635-24638]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-10476]


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DEPARTMENT OF DEFENSE

Department of the Navy

32 CFR Part 701

RIN 0703-AA58


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 regulations pertaining to the Department 
of the Navy's Freedom of Information Act Program. This rule adds 
regulations regarding indexing, public inspection, and publication of 
documents affecting the public.

DATES: Effective April 27, 2000.

ADDRESSES: Office of the Judge Advocate General (Code 13), 1322 
Patterson Avenue, Suite 3000, Washington Navy Yard, DC 20374-5066.

FOR FURTHER INFORMATION CONTACT: Lieutenant Commander James L. Roth, 
JAGC, USN, Head, Regulations & Legislation, FOIA/PA Branch, 
Administrative Law Division, Office of the Judge Advocate General (Code 
13), 1322 Patterson Avenue SE, Suite 3000, Washington Navy Yard, DC 
20374-5066, Telephone: (703) 604-8200.

SUPPLEMENTARY INFORMATION: Due to incorrect amendatory instructions, 
subpart E was inadvertently deleted from Part 701 when subparts A 
through D were revised on September 14, 1999 (64 FR 49850). Subpart E 
is being added back to Part 701 in its entirety. 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 this amendment would be 
impracticable and unnecessary, and it is therefore not required under 
the public rulemaking provisions of 32 CFR part 336 or Secretary of the 
Navy Instruction 5720.45, on which subpart E is derived. 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 on which it is based. Changes may be initiated on the basis 
of comments received. Written comments should be addressed to 
Lieutenant Commander James L. Roth, JAGC, USN, Head, Regulations and 
Legislation, FOIA/PA Branch, Administrative Law Division, Office of the 
Judge Advocate General (Code 13), 1322 Patterson Avenue SE, Suite 3000, 
Washington Navy Yard, DC 20374-5066. It has been determined that this 
final rule is not a ``significant regulatory action'' as defined in 
Executive Order 12866.

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 adding subpart E 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.


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 49111); 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. 700.104c 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 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.

[[Page 24636]]

Sec. 701.63  Policy.

    In accordance with the spirit and intent of 5 U.S.C. 552, the 
public has the right to 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--description 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 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 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 responsibility 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 
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 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) 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

[[Page 24637]]

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 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 the 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

[[Page 24638]]

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 the pubic 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 and 
the nature and effect of public comments, shall be published in the 
Federal Register for 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: April 12, 2000.
J.L. Roth,
Lieutenant Commander, Judge Advocate General's Corps, U.S. Navy, 
Federal Register Liaison Officer.
[FR Doc. 00-10476 Filed 4-26-00; 8:45 am]
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