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

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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