Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Rules and Regulations 8163

substantial number of small entities

under the criteria of the Regulatory

Flexibility Act.

List of Subjects in 14 CFR Part 71

Airspace, Incorporation by reference,

Navigation (air).

Adoption of the Amendment

In consideration of the foregoing, the

Federal Aviation Administration

amends 14 CFR Part 71 as follows:

PART 71—[AMENDED]

1. The authority citation for Part 71

continues to read as follows:

Authority: 49 U.S.C. 106(g); 40103, 40113,

40120; E.O. 10854; 24 FR 9565, 3 CFR, 1959–

1963 Comp., p. 389; 14 CFR 11.69.

§ 71.1 [Amended]

2. The incorporation by reference in

14 CFR 71.1 of the Federal Aviation

Administration Order 7400.9D, Airspace

Designations and Reporting Points,

dated September 4, 1996, and effective

September 16, 1996, is amended as

follows:

Paragraph 5000 Class D Airspace

* * * * *

ACE KS D Olathe, KS [Amend]

Olathe, New Century Aircenter, KS

(Lat. 38°49′54′′ N., long. 94°53′24′′ W.)

* * * * *

Paragraph 6005 Class E airspace areas

extending from 700 feet or more above the

surface of the earth.

* * * * *

ACE KS E5 Olathe, KS [Amend]

Olathe, New Century Aircenter, KS

(Lat. 38°49′54′′ N., long. 94°53′24′′ W.)

* * * * *

Issued in Kansas City, MO, on February 6,

1997.

Herman J. Lyons, Jr.,

Manager, Air Traffic Division, Central Region.

[FR Doc. 97–4501 Filed 2–21–97; 8:45 am]

BILLING CODE 4910–13–M

DEPARTMENT OF HEALTH AND

HUMAN SERVICES

Food and Drug Administration

21 CFR Parts 131 and 133

[Docket Nos. 95P–0125, 95P–0250, 95P–

0261, and 95P–0293]

Lowfat and Skim Milk Products, Lowfat

Cottage Cheese: Revocation of

Standards of Identity

AGENCY: Food and Drug Administration,

HHS.

ACTION: Final rule; response to objection

and denial of the request for a hearing;

confirmation of effective date.

SUMMARY: The Food and Drug

Administration (FDA) is responding to

objections and is denying the requests

that it received for a hearing on the final

rule removing the standards of identity

for lowfat milk and skim milk as well

as those for other lower-fat dairy

products. After reviewing the objections

to the final rule, the agency has

concluded that the objections do not

raise issues of material fact that justify

granting a hearing. Therefore, FDA is

confirming the effective date for the

final rule. The final rule was based, in

part, on petitions filed jointly by the

Milk Industry Foundation and the

Center for Science in the Public Interest

and on a petition filed by the American

Dairy Products Institute. This action is

also part of the agency’s ongoing review

of existing regulations under President

Clinton’s Regulatory Reinvention

Initiative.

DATES: Effective date confirmed: January

1, 1998. This rule is applicable to all

products initially introduced or initially

delivered for introduction into interstate

commerce on or after this date.

Compliance may begin on November 20,

1996. Any labels or labeling that require

revision as a result of this revocation

shall comply no later than January 1,

1998.

FOR FURTHER INFORMATION CONTACT:

Michelle A. Smith, Center for Food

Safety and Applied Nutrition (HFS–

158), Food and Drug Administration,

200 C St. SW., Washington, DC 20204,

202–205–5099.

SUPPLEMENTARY INFORMATION:

I. Background—The Final Regulation

In the Federal Register of November

20, 1996 (61 FR 58991), FDA issued a

final rule entitled ‘‘Lowfat and Skim

Milk Products, Lowfat and Nonfat

Yogurt Products, Lowfat Cottage Cheese:

Revocation of Standards of Identity;

Food Labeling, Nutrient Content Claims

For Fat, Fatty Acids and Cholesterol

Content of Food’’ which removed the

standards of identity for the following

lower-fat dairy products: Sweetened

condensed skimmed milk (21 CFR

131.122), lowfat dry milk (21 CFR

131.123), evaporated skimmed milk (21

CFR 131.132), lowfat milk (21 CFR

131.135), acidified lowfat milk (21 CFR

131.136), cultured lowfat milk (21 CFR

131.138), skim milk (21 CFR 131.143),

acidified skim milk (21 CFR 131.144),

cultured skim milk (21 CFR 131.146),

sour half-and-half (21 CFR 131.185),

acidified sour half-and-half (21 CFR

131.187), and lowfat cottage cheese (21

CFR 133.131) (the November 1996 final

rule). The final regulation also amended

the standard of identity for dry cream in

21 CFR 131.149 by removing the

reference to 21 CFR 131.135 (the lowfat

milk standard). FDA announced that it

was deferring action, for 120 days, on its

proposal to remove the standards of

identity for lowfat and nonfat yogurt (21

CFR 131.203 and 131.206). Further, the

final rule amended the nutrient content

claims regulations for fat, fatty acids,

and cholesterol content to provide for

‘‘skim’’ as a synonym for ‘‘nonfat’’ when

used in labeling milk products.

Interested persons had until

December 20, 1996, to file written

objections to the revisions in parts 131

and 133 (21 CFR parts 131 and 133) or

to request a hearing on the specific

provisions to which there were

objections. FDA received one letter,

from Mid-America Dairymen, Inc.,

Associated Milk Producers, Inc., and

Swiss Valley Farms (hereinafter referred

to as ‘‘Mid-America’’ or ‘‘the objector’’)

containing objections to portions of the

November 1996 final rule and requests

for a hearing on those objections. Under

section 701(e) of the Federal Food, Drug,

and Cosmetic Act (the act) (21 U.S.C.

371(e)), FDA has carefully considered

the objections and requests for a

hearing, and other responses. The

specific objections and the agency’s

conclusions follow.

II. Standards for Granting a Hearing

Section 701(e) of the act provides that,

within 30 days after publication of an

order relating to standards of identity

for dairy products, any person adversely

affected by such an order may file

objections, specifying with particularity

the provisions of the order ‘‘deemed

objectionable, stating the grounds

therefor,’’ and requesting a public

hearing based upon such objections.

FDA may deny a hearing request if the

objections to the regulation do not raise

genuine and substantial issues of fact

that can be resolved at a hearing

(Community Nutrition Institute v.

Young, 773 F.2d 1356, 1364 (D.C. Cir.

1985), cert. denied, 475 U.S. 1123

(1986)). Specific criteria for determining

whether a request for a hearing is

justified are set forth in 21 CFR 12.24(b).

A party seeking a hearing is required

to meet a ‘‘threshold burden of

tendering evidence suggesting the need

for a hearing.’’ (See Costle v. Pacific

Legal Foundation, 445 U.S. 198, 214–

215 (1980) reh. den., 445 U.S. 947

(1980), citing Weinberger v. Hynson,

Westcott & Dunning, Inc., 412 U.S. 609,

620–621 (1973).) If a hearing request

fails to identify any factual evidence
8164 Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Rules and Regulations

that would be the subject of a hearing,

there is no point in holding one.

A hearing request must not only

contain evidence, but that evidence

should raise a material issue of fact

concerning which a meaningful hearing

might be held (Pineapple Growers v.

FDA, 673 F.2d 1083, 1085 (9th Cir.

1982)). Where the issues raised in the

objection are, even if true, legally

insufficient to alter the decision, the

agency need not grant a hearing

(Dyestuffs and Chemicals, Inc., v.

Flemming, 271 F.2d 281 (8th Cir. 1959)

cert. denied, 362 U.S. 911 (1960)). A

hearing is justified only if the objections

are made in good faith, and if they

‘‘draw into question in a material way

the underpinnings of the regulation at

issue’’ (Pactra Industries v. CPSC, 555

F.2d 677 (9th Cir. 1977)). Finally, courts

have uniformly recognized that a

hearing need not be held to resolve

questions of law or policy. (See Citizens

for Allegan County, Inc., v. FPC, 414

F.2d 1125 (D.C. Cir. 1969); Sun Oil Co.

v. FPC, 256 F.2d 233, 240 (5th Cir.) cert.

denied, 358 U.S. 872 (1958).)

In sum, a hearing request should

present sufficient credible evidence to

raise a material issue of fact, and the

evidence must be adequate to resolve

the issue as requested and to justify the

action requested.

III. Objections and Requests for a

Hearing

1. The first objection was about the

removal of the standards of identity for

lowfat milk (21 CFR 131.135) and skim

milk (21 CFR 131.143). In the November

1996 final rule, FDA removed the

standards of identity for lower-fat dairy

products, including the standards for

lowfat milk and skim milk, so that these

products would be subject to the

requirements in 21 CFR 130.10 (the

general standard). FDA concluded that

the final regulation will provide for

consistency in the nomenclature and

labeling of most nutritionally modified

dairy products and other foods bearing

‘‘lowfat’’ and ‘‘nonfat’’ claims; promote

honesty and fair dealing in the interest

of consumers; increase flexibility for

manufacturers of lower-fat dairy

products; and increase product choices

available to consumers.

Mid-America objected to the removal

of the standards for lowfat and skim

milk stating that those standards were

issued because the Commissioner of

Food and Drugs (the Commissioner)

found that they would promote honesty

and fair dealing in the interest of

consumers. In support of this objection,

Mid-America cited section 401 of the act

(21 U.S.C. 341) which provides:

Whenever in the judgment of the Secretary

such action will promote honesty and fair

dealing in the interest of consumers, he shall

promulgate regulations fixing and

establishing for any food, under its common

or usual name so far as practicable, a

reasonable definition and standard of

identity.

Mid-America also included by reference

‘‘all of the factual findings made by the

Commissioner when the lowfat and

skim milk standards were

promulgated.’’

In further support of the objection,

Mid-America maintained that new

nutrition and other labeling

requirements do not obviate the need for

standards of identity for lowfat milk and

skim milk. Mid-America acknowledged

that some of the rationale in the

preamble to the November 1996 final

rule may be sound for products other

than lowfat milk and skim milk, because

of the new labeling requirements.

However, according to Mid-America,

these new requirements cannot be

interpreted to mean that removing the

standards for lowfat milk and skim milk

will be in the interest of consumers

because the standards were issued to

promote honesty and fair dealing in the

interest of consumers.

Mid-America did not specify to which

new labeling requirements it was

referring. FDA assumes the reference is

to the January 6, 1993, final rules

implementing the Nutrition Labeling

and Education Act of 1990 (the 1990

amendments). These final rules

included new requirements for nutrition

labeling, uniform definitions for

nutrient content claims and health

claims, and more complete ingredient

declaration, particularly for

standardized foods. Further, the

objection did not identify the foods to

which it was referring in saying that the

new nutrition labeling regulations may

justify removal of the standards of

identity in part 131 or 133, nor did it

offer any reason for treating lowfat milk

and skim milk differently from other

lower-fat dairy products with respect to

the new nutrition labeling requirements.

Thus, this part of the objection does not

present any substantive evidence in

support of the objection.

In addition, Mid-America included by

reference all the ‘‘factual findings’’

made by the Commissioner in

establishing the standards for lowfat and

skim milk. The objection’s premise

appears to be that if those findings

justified issuance of the standards of

identity, they must now preclude

removal of the standards. However, an

evidentiary hearing was not held when

the standards were originally issued,

and, therefore, there were no formal

findings of fact.

FDA assumes that by referring to

‘‘factual findings,’’ without any more

specific references, Mid-America may

have intended to include by reference

all conclusions reached by the agency

during the course of the rulemaking that

resulted in the standards for lowfat milk

and skim milk. This rulemaking

spanned 14 years, however, and MidAmerica has provided no specific

information to help the agency focus its

attention on any factual evidence or

legal arguments that Mid-America might

present at a hearing. Consequently, it is

difficult for the agency to determine the

specific issues to which the objection

refers. Nonetheless, FDA has carefully

reviewed the record of the rulemaking

that resulted in the standards for lowfat

milk and skim milk to see whether there

were any findings or conclusions that

were in conflict with the agency’s

determination in the November 1996

final rule to revoke these standards and

to replace them with the general

standard.

Most of the objections to the original

final rule issuing standards for lowfat

and skim milk (38 FR 27924, October

10, 1973) (the 1973 final rule), as

discussed in a notice in the Federal

Register of December 5, 1974 (39 FR

42351), have no bearing here. For

example, FDA received objections to the

requirement in the 1973 final rule that

milk be pasteurized. Other objections

concerned the failure of the standards

for fluid milks to provide for

fortification with minerals and vitamins

other than vitamins A and D.

The only issue that the agency found

that could be even partially related to

Mid-America’s objection was one over

whether FDA should have provided for

the use of stabilizers and emulsifiers,

and the basis for limiting the permitted

amounts of these substances, in lowfat

milk and skim milk. The 1973 final rule

establishing standards of identity for

lowfat milk and skim milk provided for

limited use of stabilizers and emulsifiers

in these foods. FDA received a number

of objections and requests for a hearing

based on its failure to provide for

unrestricted use of stabilizers. These

objections maintained that stabilizers

could improve the palatability of lowerfat milks and would be more

economical than nonfat milk-derived

solids.

On December 5, 1974, FDA published

a notice staying the provision that

would have limited the use of stabilizers

and emulsifiers in lower-fat milks (39

FR 42351). In an attempt to avoid a

hearing, FDA proposed to amend the

standards for lowfat milk and skim milk

to expand the uses of stabilizers and

emulsifiers (41 FR 46873, October 26,
Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Rules and Regulations 8165

1976) (the 1976 proposal).

Subsequently, based on comments to

the 1976 proposal, FDA published a

final rule in the Federal Register of

December 12, 1980 (45 FR 81734),

terminating the 1976 rulemaking and

continuing the stay on the provisions in

the 1973 standard that would have

restricted the use of stabilizers and

emulsifiers in lowfat and skim milks. In

1983, FDA published a notice

announcing a public hearing on stayed

provisions of the 1973 final rule. Based

on a motion by FDA for summary

judgment, and a lack of opposition by

the original objectors, an administrative

law judge issued an order, dated

December 12, 1983, finding that the

provisions in the original standards that

limited the use of stabilizers and

emulsifiers would promote honesty and

fair dealing in the interest of consumers

(51 FR 40313, November 6, 1986).

After carefully reviewing the record

on this issue, FDA concludes that

nothing in the record of the 1973 final

rule raises an issue of fact about the

agency’s decision with respect to the

use of stabilizers and emulsifiers that is

embodied in the November 1996 final

rule. The controversy in 1973 concerned

a comparison between lower-fat milks

containing stabilizers and emulsifiers

and lower-fat milks to which milk solids

not fat (msnf) are added so that the

finished product contains 10 percent

msnf. In that context, FDA concluded

(45 FR 81734 at 81736) that lower-fat

milks thickened with stabilizers and

emulsifiers would be nutritionally

inferior to the same products containing

not less than 10 percent msnf, and that,

therefore, use of stabilizers and

emulsifiers to thicken lower-fat milk

products would not promote honesty

and fair dealing in the interest of

consumers. No conclusions were

reached in that rulemaking on the

broader issue of adding ingredients,

including stabilizers and emulsifiers, to

a nutritionally modified food (that is,

foods to which vitamins have been

added to avoid nutritional inferiority) to

restore functional properties that are

reduced or lost when fat is removed

compared to the same food without

added ingredients, which is the issue

that FDA decided in replacing the

standards in 21 CFR 131.135 and

131.143 with the general standard in the

November 1996 final rule.

Furthermore, and more importantly,

the finding of an administrative law

judge in 1983 that a standard of identity

will promote honesty and fair dealing in

the interest of consumers does not mean

that that standard cannot be changed.

FDA’s administrative regulations in 21

CFR 10.30 provide that interested

persons may petition the agency to

amend standards to reflect changes in

consumer needs and perceptions, along

with advances in technology, whenever

such changes will promote honesty and

fair dealing in the interest of consumers.

Further, FDA can propose on its own

initiative to amend a standard when the

agency considers the amendment to be

appropriate. To raise an issue of fact

that would justify a hearing, an objector

must do more than point out that a

standard has changed, yet that is all the

objector has done here.

In addition, Mid-America appears to

misunderstand the impact of the

November 1996 final rule in at least one

important regard. Removing the

standards of identity for lowfat milk and

skim milk in 21 CFR 131.135 and

131.143 does not mean that these foods

are not covered by a standard of

identity. Rather, these foods will

continue to be regulated as standardized

foods under the requirements in the

general standard (21 CFR 130.10).

Mid-America failed to identify any

specific evidence in support of its

objection. FDA has carefully reviewed

the record associated with issuing the

original standards of identity for lowfat

and skim milk. The agency has been

unable to find anything in that record

that conflicts with the agency’s

determination that creating new

standards for lower-fat milk products

under the general standard will promote

honesty and fair dealing in the interest

of consumers, in a way that raises a

material issue of fact.

FDA concludes that the objection did

not raise a genuine and substantial issue

of fact that might be readily resolved by

the evidence identified in the objection.

Therefore, Mid-America’s first objection

fails, under 21 CFR 12.24(b)(1), to justify

a hearing, and thus its request for a

hearing on this objection is denied.

2. Mid-America objected to the

removal of the standards for lowfat milk

and skim milk on the basis that relying

on other sections of the regulations to

protect consumers is factually unsound.

In support of its second objection, MidAmerica maintained that a number of

factual issues remain unresolved. This

assertion was followed by a series of

questions, including, for example: ‘‘(1)

What ingredients may be added to

lowfat milk and skim milk [under 21

CFR 130.10]?’’ and ‘‘(2) In what amount

may those ingredients be added?’’ These

questions were not accompanied by any

additional information that could have

clarified the position of Mid-America or

that indicated why resolution of the

question in any particular way might be

in conflict with the agency’s action in

the November 1996 final rule.

First, FDA notes that most of the

questions asked by Mid-America have

already been addressed by the agency,

either in the preamble of the November

1996 final rule or in the preambles to

the proposal (56 FR 60512, November

27, 1991) and final rule (58 FR 2431,

January 6, 1993) establishing the general

standard, and Mid-America has not

provided any basis for finding that a

factual issue persists with respect to

these questions. For example, both the

November 20, 1996, and the January 6,

1993, final rules contain extensive

discussions about the extent to which a

nutritionally modified food named

using a nutrient content claim and a

standardized term may deviate from the

food for which it substitutes and the

types of labeling necessary to inform

consumers about such deviations (61 FR

58991 at 58994 and 58 FR 2431 at 2433).

In addition, requirements limiting such

deviations are codified in 21 CFR

130.10. The objector’s questions raised

no new issues that have not previously

been considered by the agency.

Secondly, to the extent that any of the

questions posed by Mid-America are not

fully answered, Mid-America did not

provide any basis to find that there is a

factual issue with respect to any of those

questions. Thus, the questions represent

nothing more than mere allegations.

Under 21 CFR 12.24(b)(2), a hearing will

not be granted on the basis of mere

allegations. Thus, the questions posed

in support of the objection do not justify

the granting of a hearing.

Furthermore, as noted in the agency’s

response to the first objection, it is not

clear whether the objection takes into

consideration that, although FDA

removed the standards of identity in 21

CFR 131.135 and 131.143, there are new

standards for lower-fat milk products

under 21 CFR 131.10. Mid-America did

not provide any evidence that would

provide a basis for questioning the

agency’s finding that the new standards

for lower-fat milk products under 21

CFR 130.10 are in the interest of

consumers and promote fair dealing.

FDA concludes that Mid-America’s

second objection did not raise any

genuine and substantial issue of fact

that would justify a hearing. Rather, the

questions posed in support of the

second objection amount to little more

than ‘‘mere allegations or denials or

general description and contentions’’

that the agency has said in 21 CFR

12.24(b)(2) will not justify a hearing.

Consistent with this regulation, the

relevant case law provides that where a

party requesting a hearing only offers

allegations without an adequate proffer

to support them, the agency may

properly disregard those allegations
8166 Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Rules and Regulations

(General Motors Corp. v. FERC, 656 F.2d

791, 798 n.20 (D.C. Cir. 1981)). MidAmerica failed to submit any evidence

that creating new standards for lowfat

milk and skim milk under the general

standard will not promote honesty and

fair dealing in the interest of consumers.

Because it did not proffer support for its

allegations, Mid-America did not justify

a hearing on this issue. Therefore, FDA

denies the request for a hearing on the

second objection.

3. Mid-America cited the agency’s

desire to reduce the burden of

regulation and a need for increased

flexibility in at least some standards of

identity. At the same time, Mid-America

said that none of these facts justify

removing the standards for lowfat milk

and skim milk that promote honesty and

fair dealing in the interest of consumers.

As with its second objection, MidAmerica maintained that this objection

raised several ‘‘factual issues’’ and

proceeded to list a series of questions.

The questions included: ‘‘What do

consumers expect when they purchase

‘lowfat milk’ or ‘skim milk’?’’ ‘‘Would

honesty and fair dealing in the interest

of consumers be promoted if products

labeled as ‘lowfat milk’ and ‘skim milk’

are permitted to contain any ‘safe and

suitable ingredients’?’’

Mid-America’s third objection did not

raise any genuine and substantial issue

of fact that might be readily resolved by

any evidence identified in the objection.

Again, the questions posed in support of

the objection amount to little more than

mere allegations or denials or general

description and contentions that, under

21 CFR 12.24(b)(2), will not justify a

hearing. Therefore, FDA denies the

request for a hearing on this objection.

FDA notes that the letter containing

objections and a request for a hearing

was filed within the time specified in 21

CFR 12.22(e). However, as noted in

section III.1. and III.2. of this document,

the objections to the final rule removing

the standards for lowfat and skim milk

and placing these foods under new

standards in 21 CFR 130.10 do not raise

genuine and substantial issues of fact for

resolution through a public hearing or

other procedure as provided for under

21 CFR 12.24, nor did the objections

provide any evidence that the November

1996 final rule would not promote

honesty and fair dealing in the interest

of consumers. Therefore, in accordance

with 21 CFR 12.28, FDA is denying

Mid-America’s requests for a hearing.

There were no objections to the

November 1996 final rule other than

those addressed above.

List of Subjects

21 CFR Part 131

Cream, Food grades and standards,

Milk, Yogurt.

21 CFR Part 133

Cheese, Food grades and standards,

Food labeling.

Therefore, under the Federal Food,

Drug, and Cosmetic Act (secs. 201, 401,

403, 409, 701, 721 (21 U.S.C. 321, 341,

343, 348, 371, 379e)) and under

authority delegated to the Commissioner

of Food and Drugs (21 CFR 5.10), notice

is hereby given that the objections

received did not justify a hearing, and

that the final regulation to amend parts

131 and 133 by removing the standards

of identity for various lower-fat milk,

sour half-and-half, and cottage cheese

products and amending the standard of

identity for dry cream, as issued in the

Federal Register of November 20, 1996

(61 FR 58991), will become effective on

January 1, 1998. Any labels or labeling

that require revision as a result of the

final regulation must comply no later

than January 1, 1998.

Dated: February 14, 1997.

William B. Schultz,

Deputy Commissioner for Policy.

[FR Doc. 97–4365 Filed 2–18–97; 4:10 pm]

BILLING CODE 4160–01–F

DEPARTMENT OF DEFENSE

Department of the Navy

32 CFR Part 723

Board for Correction of Naval Records

AGENCY: Department of the Navy, DoD.

ACTION: Final rule.

SUMMARY: The Department of the Navy

is amending the Procedures for the

Board for Correction of Naval Records.

This revision incorporates format

changes and clarifies various minor

provisions of the part.

DATES: Effective date: February 24, 1997.

FOR FURTHER INFORMATION CONTACT: W.

Dean Pfeiffer, Executive Director, Board

for Correction of Naval Records, 2 Navy

Annex, Washington, DC 20370–5100,

(703) 614–1402.

SUPPLEMENTARY INFORMATION: The

Department of the Navy has determined

that this rule is not a major rule because

it will not have an annual effect on the

economy of $100 million or more. The

Assistant Secretary of the Navy

(Manpower and Reserve Affairs)

certifies that this rule is exempt from

the requirements of the Regulatory

Flexibility Act, 5 U.S.C. 601–611, and

does not have a significant economic

impact on small entities as defined by

the Act. This rule imposes no obligatory

information requirements beyond

internal Navy use. The proposed rule

was published for comment on October

12, 1995, at 60 FR 53153. No comments

or objections to the proposed rule were

received. The final rule contains no

substantive changes from the proposed

rule.

List of Subjects in 32 CFR Part 723

Administrative practice and

procedure, Claims, Military personnel.

Accordingly, part 723 of chapter VI of

title 32 of the Code of Federal

Regulations is revised as follows:

PART 723—BOARD FOR

CORRECTION OF NAVAL RECORDS

Sec.

723.1 General provisions.

723.2 Establishment, function and

jurisdiction of the Board.

723.3 Application for correction.

723.4 Appearance before the board; notice;

counsel; witnesses; access to records.

723.5 Hearing.

723.6 Action by the Board.

723.7 Action by the Secretary.

723.8 Staff action.

723.9 Reconsideration.

723.10 Settlement of claims.

723.11 Miscellaneous provisions.

Authority: 10 U.S.C. 1034, 1552.

§ 723.1 General Provisions.

This part sets up procedures for

correction of naval and marine records

by the Secretary of the Navy acting

through the Board for Correction of

Naval Records (BCNR or the Board) to

remedy error or injustice. It describes

how to apply for correction of naval and

marine records and how the BCNR

considers applications. It defines the

Board’s authority to act on applications.

It directs collecting and maintaining

information subject to the Privacy Act of

1974 authorized by 10 U.S.C. 1034 and

1552.

§ 723.2 Establishment, function and

jurisdiction of the Board.

(a) Establishment and composition.

Under 10 U.S.C. 1034 and 1552, the

Board for Correction of Naval Records is

established by the Secretary of the Navy.

The Board consists of civilians of the

executive part of the Department of the

Navy in such number, not less than

three, as may be appointed by the

Secretary and who shall serve at the

pleasure of the Secretary. Three

members present shall constitute a

quorum of the Board. The Secretary of

the Navy will designate one member as

Chair. In the absence or incapacity of