tive 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 of a local directive may be authorized where extraordinary justification exists, 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 32 CFR 296.6 and 1 CFR Part 51, 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.

(b) Public inspection. When feasible, Department of the Navy and Department of Defense documents which are published in the FEDERAL REGISTER for guidance of the public should be made available for inspection and copying, along with any available indexes of such documents, in the same facilities provided for public inspection and copying of the documents contemplated in § 701.59.

[ (1 CFR 18.14, and Part 21, Subpart B)

[40 FR 36325, Aug. 20, 1975, as amended at 43 FR 17355, Apr. 24, 1978; 45 FR 8599, Feb. 8, 1980]

§ 701.57 Prepublication of proposed regulations for public comment.

(a) Discussion. The requirements of this section are not imposed by statute, but are the implementation of the policies and procedures which were created administratively in 32 CFR Part 296. In effect, the pertinent provisions of 32 CFR 296.1 and 296.5 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 Department of the Navy rulemak

ing 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 section and the corresponding provisions of 32 CFR 296.5, 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 § 701.56(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 for inviting public comment will be deemed to 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

§ 701.57(b) that inviting public comment is not warranted, he 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 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 section shall, if he determines that inviting public comment concerning the document is not warranted

under the criteria of

§ 701.57(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 § 701.56(a).

(1 CFR 18.14, and Part 21, Subpart B)

[40 FR 12777, Mar. 21, 1975, as amended at 45 FR 8599, Feb. 8, 1980]

§ 701.58 Petitions for issuance, revision, or cancellation of regulations affecting the public.

In accordance with the provisions of 32 CFR 296.7, the Department of the Navy shall accord any interested person the right to petition, in writing, for the issuance, revision, or cancellation of a 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 § 701.57. 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 absolute discretion, grant the petitioner an opportunity to appear, at his own expense, for the purpose of supporting his 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.

§ 701.59 Availability, publication, and indexing of other documents affecting the public.

(a) Discussion. In addition to the requirements of 5 U.S.C. 552(a)(1) for publishing some classes of regulatory documents in the FEDERAL REGISTER for the guidance of the public, there are requirements in 5 U.S.C. 552(a)(2) for facilitating public identification and inspection of other classes of documents which have precedential effect with regard to Department of the Navy decisions affecting members of the public. The documents that are subject to these requirements must be kept readily available for public inspection and copying at designated places, unless they are promptly published and copies are offered for sale. Additionally, such documents of these classes as have been, or will be issued after July 4, 1967, are required to be indexed on a current basis, and these indexes, or supplements thereto, must be published at least quarterly in accordance with the provisions of this section. In determining whether a par

ticular document is subject to the requirements of this section, consideration should be given to the statutory purposes and legal effect of the provisions.

(1) Statutory purposes. In general, the purposes of the requirements are to provide members of the public with essential information for enabling them to deal effectively and knowledgeably with Federal agencies in matters affecting them; to apprise members of the public of the existence and contents of documents which have potential legal consequences as precedents in administrative determinations affecting them; and to permit public examination of the basis of administrative actions affecting the public.

(2) Legal effect. If a document is required to be indexed and made available under this section, 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 requirements for release or disclosure to the public [see § 701.5(b)(4) and Subpart Bl, the following classes of Department of the Navy documents are included in the requirements of this section:

(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), 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 the methods, techniques, or tactics to be used in performing their duties; for example:

(A) Instructions or manuals issued for audit 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.

(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 decisions 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 recom

mendation by an official who is not himself 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 described in § 701.5(b)(4) and Subpart B are applicable to documents which are required to be indexed and made available for public inspection and copying under this section, 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 section if it is determined that it contains any exempt matter and that a significant and legitimate governmental purpose will be served by withholding such exempt matter. However, an exception to this general rule does exist, in effect, 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 section. 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 persons 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 in a matter not involving possible misconduct or improper, erroneous, or inefficient performance of duties on his part.

(d) Publication of indexes-(1) Form of indexes. Each index should be ar

ranged 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 section to be indexed shall compile and maintain an index of such records on a continually current basis. Each such index shall initially be published, by one of the methods authorized in § 701.59(d)(3) not later than 1 May 1975. An updated version of each such index, or a current supplement thereto, shall be published by an authorized method at least quarterly thereafter.

(3) Methods of publication. The methods authorized for publication of the indexes contemplated in this section are:

(i) Publication in the FEDERAL REGIS

TER;

(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 provided that it is determined, by an order published in the FEDERAL REGISTER, that the publication of the index by methods § 701.59(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 (Op-09B1) 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 § 701.59(e), at the location(s) at which Department of the Navy records are available for public inspection.

(e) Where records may be inspected. Locations and times at which Depart

ment of the Navy records, and indexes thereof, are available for public inspection and copying are shown in § 701.32.

(f) Cost. Fees for copying services, if any, furnished at locations which Department of the Navy records are available for public inspection shall be determined in accordance with Subpart D.

(g) Records of Navy Court of Military Review. The Navy 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 Navy Court of Military Review, although not indexed, are available for public inspection at the location at which Department of the Navy records are available for public inspection.

Subpart F-Personal Privacy and Rights of Individuals Regarding Their Personal Records

AUTHORITY: Pub. L. 93-579, 5 U.S.C. 552a. SOURCE: 41 FR 50662, Nov. 17, 1976, unless otherwise noted.

§ 701.100 Purpose.

This subpart implements the Privacy Act of 1974 (5 U.S.C. 552a) and Department of Defense Directive 5400.11, Personal Privacy and Rights of Individuals Regarding Their Personal Records (DOD Dir. 5400.11) by delineating and prescribing policies, conditions, and procedures for:

(a) Notifying an individual in response to his request if a Department of the Navy system of records named by the individual contains a record pertaining to him.

(b) Verifying the identity of an individual who requests his record, or information pertaining to him, before the record or information is made available.

(c) Granting access to an individual upon that individual's request for his record or for information pertaining to him.

(d) Reviewing a request from an individual concerning the amendment of any record or information pertaining

to the individual, for making a determination on the request, and for an appeal of an initial adverse determination.

(e) Collection, safeguarding, maintenance, public notice, use, and dissemination of personal information.

(f) Disclosing personal information, and for exempting systems of records from the requirements of 5 U.S.C. 552a.

(g) Establishing rules of conduct for the guidance of Department of the Navy personnel, who will be subject to criminal penalties for non-compliance with the act.

§ 701.101 Scope and effect.

(a) Applicability. This subpart applies throughout the Department of the Navy, and to any contractor maintaining a system of records to accomplish a Department of the Navy purpose. Its provisions govern the collection, maintenance, use, and dissemination of personal information, and all requests from individuals who seek information on, access to, copies of, or amendment of records pertaining to themselves under the provisions of 5 U.S.C. 552a. Additionally, all requests received from individuals for copies or examination of records pertaining to themselves, and which are located in a system of records, as defined in § 701.105, will be processed in accordance with this subpart, even though the individuals specify that the requests are made under 5 U.S.C. 552 (Freedom of Information Act), SECNAVINST 5720.42B (32 CFR Part 701, Subparts A-D), or other authority. This subpart does not apply to:

(1) Requests from individuals for access to records pertaining to themselves, but which are not included in a system of records, as defined in § 701.105. these requests will be processed in accordance with 32 CFR Part 701, Subparts A-D. Subsequent requests for amendment of such records, however, will normally be processed in accordance with this subpart.

(2) Requests for records pertaining to other individuals, where such individuals' consent is not provided. Such third party requests are governed by 32 CFR Part 701, Subparts A-D.