Federal Register / Vol. 65, No. 82 / Thursday, April 27, 2000 / Rules and Regulations 24635

the Office of the Federal Register, 800 North

Capitol Street, NW., suite 700, Washington,

DC.

(i) This amendment becomes effective on

June 1, 2000.

Issued in Renton, Washington, on April 18,

2000.

Donald L. Riggin,

Acting Manager, Transport Airplane

Directorate, Aircraft Certification Service.

[FR Doc. 00–10161 Filed 4–26–00; 8:45 am]

BILLING CODE 4910–13–U

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.

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. § 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.

§ 701.62 Scope and applicability.

This subpart prescribes actions to be

executed by, or at the direction of, Navy

Department (as defined in § 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 Navywide 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.

24636 Federal Register / Vol. 65, No. 82 / Thursday, April 27, 2000 / Rules and Regulations

§ 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.

§ 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 § 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 § 701.65.

§ 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

Federal Register / Vol. 65, No. 82 / Thursday, April 27, 2000 / Rules and Regulations 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 § 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

§ 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

§ 701.32.

(f) Cost. Fees for copying services, if

any, furnished at locations shown in

§ 701.32 shall be determined in

accordance with subpart D of this part.

(g) Records of the United States NavyMarine 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

§ 701.32(c).

§ 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

24638 Federal Register / Vol. 65, No. 82 / Thursday, April 27, 2000 / Rules and Regulations

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

§ 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

§ 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 § 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 § 701.64(b).

§ 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 § 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]

BILLING CODE 3180–FT–M

DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 117

[CGD01–99–029]

RIN 2115–AE47

Drawbridge Operation Regulations:

Merrimack River, MA

AGENCY: Coast Guard, DOT.

ACTION: Final rule.

SUMMARY: The Coast Guard is changing

the drawbridge operation regulations for

the Newburyport US1 Bridge, mile 3.4,

across the Merrimack River between

Newburyport and Salisbury,

Massachusetts. The bridge owner asked

the Coast Guard to change the

regulations to allow the bridge to open

only on the hour and half hour, from

Memorial Day through Labor Day. This

final rule is expected to help reduce

vehicular traffic delays by scheduling

bridge opening times while still meeting

the reasonable needs of navigation.

DATES: This rule is effective May 30,

2000.

ADDRESSES: Comments and material

received from the public, as well as

documents indicated in this preamble as

being available in the docket, are part of

docket (CGD01–99–029) and are

available for inspection or copying at

the First Coast Guard District, Bridge

Branch Office, 408 Atlantic Avenue,

Boston, Massachusetts, 02110, 7 a.m. to

3 p.m., Monday through Friday, except

Federal holidays.

FOR FURTHER INFORMATION CONTACT: Mr.

John W. McDonald, Project Officer, First

Coast Guard District, (617) 223–8364.

SUPPLEMENTARY INFORMATION:

Regulatory Information

On January 7, 2000, we published a

notice of proposed rulemaking (NPRM)

entitled Drawbridge Operation

Regulations; Merrimack River,

Massachusetts, in the Federal Register

(65 FR 1077). We received one comment

letter in response to the notice of

proposed rulemaking. No public hearing

was requested and none was held.