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
Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Rules and Regulations 8167

the Chair, an Acting Chair chosen by the

Executive Director shall act as Chair for

all purposes.

(b) Function. The Board is not an

investigative body. Its function is to

consider applications properly before it

for the purpose of determining the

existence of error or injustice in the

naval records of current and former

members of the Navy and Marine Corps,

to make recommendations to the

Secretary or to take corrective action on

the Secretary’s behalf when authorized.

(c) Jurisdiction. The Board shall have

jurisdiction to review and determine all

matters properly brought before it,

consistent with existing law.

§ 723.3 Application for correction.

(a) General requirements. (1) The

application for correction must be

submitted on DD 149 (Application for

Correction of Military Record) or exact

facsimile thereof, and should be

addressed to: Board for Correction of

Naval Records, Department of the Navy,

2 Navy Annex, Washington, DC 20370–

5100. Forms and other explanatory

matter may be obtained from the Board

upon request.

(2) Except as provided in paragraph

(a)(3) of this section, the application

shall be signed by the person requesting

corrective action with respect to his/her

record and will either be sworn to or

will contain a provision to the effect

that the statements submitted in the

application are made with full

knowledge of the penalty provided by

law for making a false statement or

claim. (18 U.S.C. 287 and 1001)

(3) When the record in question is

that of a person who is incapable of

making application, or whose

whereabouts is unknown, or when such

person is deceased, the application may

be made by a spouse, parent, heir, or

legal representative. Proof of proper

interest shall be submitted with the

application.

(b) Time limit for filing application.

Applications for correction of a record

must be filed within 3 years after

discovery of the alleged error or

injustice. Failure to file within the time

prescribed may be excused by the Board

if it finds it would be in the interest of

justice to do so. If the application is

filed more than 3 years after discovery

of the error or injustice, the application

must set forth the reason why the Board

should find it in the interest of justice

to excuse the failure to file the

application within the time prescribed.

(c) Acceptance of applications. An

application will be accepted for

consideration unless:

(1) The Board lacks jurisdiction.

(2) The Board lacks authority to grant

effective relief.

(3) The applicant has failed to comply

with the filing requirements of

paragraphs (a)(l), (a)(2), or (a)(3) of this

section.

(4) The applicant has failed to exhaust

all available administrative remedies.

(5) The applicant has failed to file an

application within 3 years after

discovery of the alleged error or

injustice and has not provided a reason

or reasons why the Board should find it

in the interest of justice to excuse the

failure to file the application within the

prescribed 3-year period.

(d) Other proceedings not stayed.

Filing an application with the Board

shall not operate as a stay of any other

proceedings being taken with respect to

the person involved.

(e) Consideration of application. (1)

Each application accepted for

consideration and all pertinent evidence

of record will be reviewed by a three

member panel sitting in executive

session, to determine whether to

authorize a hearing, recommend that the

records be corrected without a hearing,

or to deny the application without a

hearing. This determination will be

made by majority vote.

(2) The Board may deny an

application in executive session if it

determines that the evidence of record

fails to demonstrate the existence of

probable material error or injustice. The

Board relies on a presumption of

regularity to support the official actions

of public officers and, in the absence of

substantial evidence to the contrary,

will presume that they have properly

discharged their official duties.

Applicants have the burden of

overcoming this presumption but the

Board will not deny an application

solely because the record was made by

or at the direction of the President or the

Secretary in connection with

proceedings other than proceedings of a

board for the correction of military or

naval records. Denial of an application

on the grounds of insufficient evidence

to demonstrate the existence of probable

material error or injustice is final subject

to the provisions for reconsideration

contained in § 723.9.

(3) When an original application or a

request for further consideration of a

previously denied application is denied

without a hearing, the Board’s

determination shall be made in writing

and include a brief statement of the

grounds for denial.

(4) The brief statement of the grounds

for denial shall include the reasons for

the determination that relief should not

be granted, including the applicant’s

claims of constitutional, statutory and/

or regulatory violations that were

rejected, together with all the essential

facts upon which the denial is based,

including, if applicable, factors required

by regulation to be considered for

determination of the character of and

reason for discharge. Further the Board

shall make a determination as to the

applicability of the provisions of the

Military Whistleblower Protection Act

(10 U.S.C. 1034) if it is invoked by the

applicant or reasonably raised by the

evidence. Attached to the statement

shall be any advisory opinion

considered by the Board which is not

fully set out in the statement. The

applicant will also be advised of

reconsideration procedures.

(5) The statement of the grounds for

denial, together with all attachments,

shall be furnished promptly to the

applicant and counsel, who shall also be

informed that the name and final vote

of each Board member will be furnished

or made available upon request.

Classified or privileged material will not

be incorporated or attached to the Board

statement; rather, unclassified or

nonprivileged summaries of such

material will be so used and written

explanations for the substitution will be

provided to the applicant and counsel.

§ 723.4 Appearance before the board;

notice; counsel; witnesses; access to

records.

(a) General. In each case in which the

Board determines a hearing is

warranted, the applicant will be entitled

to appear before the Board either in

person or by counsel of his/her selection

or in person with counsel. Additional

provisions apply to cases processed

under the Military Whistleblower

Protection Act (10 U.S.C. 1034).

(b) Notice. (1) In each case in which

a hearing is authorized, the Board’s staff

will transmit to the applicant a written

notice stating the time and place of

hearing. The notice will be mailed to the

applicant, at least 30 days prior to the

date of hearing, except that an earlier

date may be set where the applicant

waives his/her right to such notice in

writing.

(2) Upon receipt of the notice of

hearing, the applicant will notify the

Board in writing at least 15 days prior

to the date set for hearing as to whether

he/she will be present at the hearing

and will indicate to the Board the name

of counsel, if represented by counsel,

and the names of such witnesses as

he/she intends to call. Cases in which

the applicant notifies the Board that he/

she does not desire to be present at the

hearing will be considered in

accordance with § 723.5(b)(2).
8168 Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Rules and Regulations

(c) Counsel. As used in this part, the

term ‘‘counsel’’ will be construed to

include members in good standing of

the federal bar or the bar of any state,

accredited representatives of veterans’

organizations recognized by the

Secretary of Veterans Affairs under 38

U.S.C. 3402, or such other persons who,

in the opinion of the Board, are

considered to be competent to present

equitably and comprehensively the

request of the applicant for correction,

unless barred by law. Representation by

counsel will be at no cost to the

government.

(d) Witnesses. The applicant will be

permitted to present witnesses in

his/her behalf at hearings before the

Board. It will be the responsibility of the

applicant to notify his/her witnesses

and to arrange for their appearance at

the time and place set for hearing.

Appearance of witnesses will be at no

cost to the government.

(e) Access to records. (1) It is the

responsibility of the applicant to

procure such evidence not contained in

the official records of the Department of

the Navy as he/she desires to present in

support of his/her case.

(2) Classified or privileged

information may be released to

applicants only by proper authorities in

accordance with applicable regulations.

(3) Nothing in this part authorizes the

furnishing of copies of official records

by the Board. Requests for copies of

these records should be submitted in

accordance with applicable regulations

governing the release of information.

The BCNR can provide a requestor with

information regarding procedures for

requesting copies of these records from

the appropriate retention agency.

§ 723.5 Hearing

(a) Convening of board. The Board

will convene, recess and adjourn at the

call of the Chair or Acting Chair.

(b) Conduct of hearing. (1) The

hearing shall be conducted by the Chair

or Acting Chair, and shall be subject to

his/her rulings so as to ensure a full and

fair hearing. The Board shall not be

limited by legal rules of evidence but

shall maintain reasonable bounds of

competency, relevancy, and materiality.

(2) If the applicant, after being duly

notified, indicates to the Board that

he/she does not desire to be present or

to be represented by counsel at the

hearing, the Board will consider the

case on the basis of all the material

before it, including, but not limited to,

the application for correction filed by

the applicant, any documentary

evidence filed in support of such

application, any brief submitted by or in

behalf of the applicant, and all available

pertinent records.

(3) If the applicant, after being duly

notified, indicates to the Board that he/

she will be present or be represented by

counsel at the hearing, and without

good cause and timely notice to the

Board, the applicant or representative

fails to appear at the time and place set

for the hearing or fails to provide the

notice required by § 723.4(b)(2), the

Board may consider the case in

accordance with the provisions of

paragraph (b)(2) of this section, or make

such other disposition of the case as is

appropriate under the circumstances.

(4) All testimony before the Board

shall be given under oath or affirmation.

The proceedings of the Board and the

testimony given before it will be

recorded verbatim.

(c) Continuance. The Board may

continue a hearing on its own motion.

A request for continuance by or in

behalf of the applicant may be granted

by the Board if a continuance appears

necessary to insure a full and fair

hearing.

§ 723.6 Action by the Board.

(a) Deliberations, findings,

conclusions, and recommendations. (1)

Only members of the Board and its staff

shall be present during the deliberations

of the Board.

(2) Whenever, during the course of its

review of an application, it appears to

the Board’s satisfaction that the facts

have not been fully and fairly disclosed

by the records or by the testimony and

other evidence before it, the Board may

require the applicant or military

authorities to provide such further

information as it may consider essential

to a complete and impartial

determination of the facts and issues.

(3) Following a hearing, or where the

Board determines to recommend that

the record be corrected without a

hearing, the Board will make written

findings, conclusions and

recommendations. If denial of relief is

recommended following a hearing, such

written findings and conclusions will

include a statement of the grounds for

denial as described in § 723.3(e)(4). The

name and final vote of each Board

member will be recorded. A majority

vote of the members present on any

matter before the Board will constitute

the action of the Board and shall be so

recorded.

(4) Where the Board deems it

necessary to submit comments or

recommendations to the Secretary as to

matters arising from but not directly

related to the issues of any case, such

comments and recommendations shall

be the subject of separate

communication. Additionally, in

Military Whistleblower Protection Act

cases, any recommendation by the

Board to the Secretary that disciplinary

or administrative action be taken against

any Navy official based on the Board’s

determination that the official took

reprisal action against the applicant will

not be made part of the Board’s record

of proceedings or furnished the

applicant but will be transmitted to the

Secretary as a separate communication.

(b) Minority report. In case of a

disagreement between members of the

Board a minority report will be

submitted, either as to the findings,

conclusions or recommendation,

including the reasons therefor.

(c) Record of proceedings. Following

a hearing, or where the Board

determines to recommend that the

record be corrected without a hearing, a

record of proceedings will be prepared.

Such record shall indicate whether or

not a quorum was present, and the name

and vote of each member present. The

record shall include the application for

relief, a verbatim transcript of any

testimony, affidavits, papers and

documents considered by the Board,

briefs and written arguments, advisory

opinions, if any, minority reports, if

any, the findings, conclusions and

recommendations of the Board, where

appropriate, and all other papers,

documents, and reports necessary to

reflect a true and complete history of the

proceedings.

(d) Withdrawal. The Board may

permit an applicant to withdraw his/her

application without prejudice at any

time before its record of proceedings is

forwarded to the Secretary.

(e) Delegation of authority to correct

certain naval records. (1) With respect

to all petitions for relief properly before

it, the Board is authorized to take final

corrective action on behalf of the

Secretary, unless:

(i) Comments by proper naval

authority are inconsistent with the

Board’s recommendation;

(ii) The Board’s recommendation is

not unanimous; or

(iii) It is in the category of petitions

reserved for decision by the Secretary of

the Navy.

(2) The following categories of

petitions for relief are reserved for

decision by the Secretary of the Navy:

(i) Petitions involving records

previously reviewed or acted upon by

the Secretary wherein the operative

facts remained substantially the same;

(ii) Petitions by former commissioned

officers or midshipmen to change the

character of, and/or the reason for, their

discharge; or,
Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Rules and Regulations 8169

(iii) Such other petitions as, in the

determination of Office of the Secretary

or the Executive Director, warrant

Secretarial review.

(3) The Executive Director after

ensuring compliance with this section,

will announce final decisions on

applications decided under this section.

§ 723.7 Action by the Secretary.

(a) General. The record of

proceedings, except in cases finalized

by the Board under the authority

delegated in § 723.6(e), and those

denied by the Board without a hearing,

will be forwarded to the Secretary who

will direct such action as he or she

determines to be appropriate, which

may include the return of the record to

the Board for further consideration.

Those cases returned for further

consideration shall be accompanied by

a brief statement setting out the reasons

for such action along with any specific

instructions. If the Secretary’s decision

is to deny relief, such decision shall be

in writing and, unless he or she

expressly adopts in whole or in part the

findings, conclusions and

recommendations of the Board, or a

minority report, shall include a brief

statement of the grounds for denial. See

§ 723.3(e)(4).

(b) Military Whistleblower Protection

Act. The Secretary will ensure that

decisions in cases involving the Military

Whistleblower Protection Act are issued

180 days after receipt of the case and

will, unless the full relief requested is

granted, inform applicants of their right

to request review of the decision by the

Secretary of Defense. Applicants will

also be informed:

(1) Of the name and address of the

official to whom the request for review

must be submitted.

(2) That the request for review must

be submitted within 90 days after

receipt of the decision by the Secretary

of the Navy.

(3) That the request for review must

be in writing and include:

(i) The applicant’s name, address and

telephone number;

(ii) A copy of the application to the

Board and the final decision of the

Secretary of the Navy; and

(iii) A statement of the specific

reasons the applicant is not satisfied

with the decision of the Secretary of the

Navy.

(4) That the request must be based on

the Board record; request for review

based on factual allegations or evidence

not previously presented to the Board

will not be considered under this

paragraph but may be the basis for

reconsideration by the Board under

§ 723.9.

§ 723.8 Staff action.

(a) Transmittal of final decisions

granting relief. (1) If the final decision

of the Secretary is to grant the

applicant’s request for relief the record

of proceedings shall be returned to the

Board for disposition. The Board shall

transmit the finalized record of

proceedings to proper naval authority

for appropriate action. Similarly final

decisions of the Board granting the

applicant’s request for relief under the

authority delegated in § 723.6(e), shall

also be forwarded to the proper naval

authority for appropriate action.

(2) The Board shall transmit a copy of

the record of proceedings to the proper

naval authority for filing in the

applicant’s service record except where

the effect of such action would be to

nullify the relief granted. In such cases

no reference to the Board’s decision

shall be made in the service record or

files of the applicant and all copies of

the record of proceedings and any

related papers shall be forwarded to the

Board and retained in a file maintained

for this purpose.

(3) The addressees of such decisions

shall report compliance therewith to the

Executive Director.

(4) Upon receipt of the record of

proceedings after final action by the

Secretary, or by the Board acting under

the authority contained in § 723.6(e), the

Board shall communicate the decision

to the applicant. The applicant is

entitled, upon request, to receive a copy

of the Board’s findings, conclusions and

recommendations.

(b) Transmittal of final decisions

denying relief. If the final decision of the

Secretary or the Board is to deny relief,

the following materials will be made

available to the applicant:

(1) A statement of the findings,

conclusions, and recommendations

made by the Board and the reasons

therefor;

(2) Any advisory opinions considered

by the Board;

(3) Any minority reports; and

(4) Any material prepared by the

Secretary as required in § 723.7.

Moreover, applicant shall also be

informed that the name and final vote

of each Board member will be furnished

or made available upon request and that

he/she may submit new and material

evidence or other matter for further

consideration.

§ 723.9 Reconsideration.

After final adjudication, further

consideration will be granted only upon

presentation by the applicant of new

and material evidence or other matter

not previously considered by the Board.

New evidence is defined as evidence

not previously considered by the Board

and not reasonably available to the

applicant at the time of the previous

application. Evidence is material if it is

likely to have a substantial effect on the

outcome. All requests for further

consideration will be initially screened

by the Executive Director of the Board

to determine whether new and material

evidence or other matter (including, but

not limited to, any factual allegations or

arguments why the relief should be

granted) has been submitted by the

applicant. If such evidence or other

matter has been submitted, the request

shall be forwarded to the Board for a

decision. If no such evidence or other

matter has been submitted, the

applicant will be informed that his/her

request was not considered by the Board

because it did not contain new and

material evidence or other matter.

§ 723.10 Settlement of claims.

(a) Authority. (1) The Department of

the Navy is authorized under 10 U.S.C.

1552 to pay claims for amounts due to

applicants as a result of corrections to

their naval records.

(2) The Department of the Navy is not

authorized to pay any claim heretofore

compensated by Congress through

enactment of a private law, or to pay

any amount as compensation for any

benefit to which the claimant might

subsequently become entitled under the

laws and regulations administered by

the Secretary of Veterans Affairs.

(b) Application for settlement. (1)

Settlement and payment of claims shall

be made only upon a claim of the

person whose record has been corrected

or legal representative, heirs at law, or

beneficiaries. Such claim for settlement

and payment may be filed as a separate

part of the application for correction of

the record.

(2) When the person whose record has

been corrected is deceased, and where

no demand is presented by a duly

appointed legal representative of the

estate, payments otherwise due shall be

made to the surviving spouse, heir or

beneficiaries, in the order prescribed by

the law applicable to that kind of

payment, or if there is no such law

covering order of payment, in the order

set forth in 10 U.S.C. 2771; or as

otherwise prescribed by the law

applicable to that kind of payment.

(3) Upon request, the applicant or

applicants shall be required to furnish

requisite information to determine their

status as proper parties to the claim for

purposes of payment under applicable

provisions of law.

(c) Settlement. (1) Settlement of

claims shall be upon the basis of the

decision and recommendation of the
8170 Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Rules and Regulations

Board, as approved by the Secretary or

his designee. Computation of the

amounts due shall be made by the

appropriate disbursing activity. In no

case will the amount found due exceed

the amount which would otherwise

have been paid or have become due

under applicable laws had no error or

injustice occurred. Earnings received

from civilian employment, self

employment or any income protection

plan for such employment during any

period for which active duty pay and

allowances are payable will be deducted

from the settlement. To the extent

authorized by law and regulation,

amounts found due may be reduced by

the amount of any existing indebtedness

to the Government arising from military

service.

(2) Prior to or at the time of payment,

the person or persons to whom

payments are to be made shall be

advised by the disbursing activity of the

nature and amount of the various

benefits represented by the total

settlement and shall be advised further

that acceptance of such settlement shall

constitute a complete release by the

claimants involved of any claim against

the United States on account of the

correction of the record.

(d) Report of settlement. In every case

where payment is made, the amount of

such payment and the names of the

payee or payees shall be reported to the

Executive Director.

§ 723.11 Miscellaneous provisions.

(a) Expenses. No expenses of any

nature whatsoever voluntarily incurred

by the applicant, counsel, witnesses, or

by any other person in the applicant’s

behalf, will be paid by the Government.

(b) Indexing of decisions. (1)

Documents sent to each applicant and

counsel in accordance with § 723.3(e)(5)

and § 723.8(a)(4), together with the

record of the votes of Board members

and all other statements of findings,

conclusions and recommendations

made on final determination of an

application by the Board or the

Secretary will be indexed and promptly

made available for public inspection

and copying at the Armed Forces

Discharge Review/Correction Boards

Reading Room located on the Concourse

of the Pentagon Building in Room

2E123, Washington, DC.

(2) All documents made available for

public inspection and copying shall be

indexed in a usable and concise form so

as to enable the public to identify those

cases similar in issue together with the

circumstances under and/or reasons for

which the Board and/or Secretary have

granted or denied relief. The index shall

be published quarterly and shall be

available for public inspection and

distribution by sale at the Reading Room

located on the Concourse of the

Pentagon Building in Room 2E123,

Washington, DC. Inquiries concerning

the index or the Reading Room may be

addressed to the Chief, Micromation

Branch/Armed Forces Discharge

Review/Correction Boards Reading

Room, Crystal Mall 4, 1941 Jefferson

Davis Highway, Arlington, Virginia

22202.

(3) To the extent necessary to prevent

a clearly unwarranted invasion of

personal privacy, identifying details of

the applicant and other persons will be

deleted from the documents made

available for public inspection and

copying. Names, addresses, social

security numbers and military service

numbers must be deleted. Deletions of

other information which is privileged or

classified may be made only if a written

statement of the basis for such deletion

is made available for public inspection.

Dated: January 30, 1997.

D.E. Koenig, Jr.,

LCDR, JAGC, USN, Federal Register Liaison

Officer.

[FR Doc. 97–4390 Filed 2–21–97; 8:45 am]

BILLING CODE 3810–FF–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[OH49–1–6072; FRL–5649–6]

Approval and Promulgation of

Implementation Plans; Ohio Stage II

Vapor Recovery Program

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule; Technical

amendment.

SUMMARY: On October 20, 1994, the EPA

published a direct final rule partially

approving and partially disapproving

the Ohio Stage II gasoline vapor

recovery program. Subsequent to that

publication, EPA approved additional

sections of the Ohio Administrative

Code (OAC) concerning control of

volatile organic compounds, including

Stage II test methods and a schedule for

implementation. This second action

inadvertently omitted mention of the

OAC rules incorporated by reference in

the codification of the October 20, 1994

document. This inadvertent omission of

the incorporation by reference of the

Stage II gasoline vapor recovery material

was unintentional and is being

corrected in this document.

EFFECTIVE DATE: February 24, 1997.

FOR FURTHER INFORMATION CONTACT: John

Paskevicz, Air Programs Branch,

Regulation Development Section (AR–

18J), United States Environmental

Protection, Region 5, Chicago, Illinois

60604, (312) 886–6084.

Background

On June 13, 1996, the Ohio EPA

notified the EPA that a correction was

needed to the Code of Federal

Regulations (CFR) regarding the

codification of the Stage II gasoline

vapor recovery program. The State

noted that a portion of the Federal

approval of the Stage II gasoline vapor

recovery rules, published in the Federal

Register on October 20, 1994 (59 FR

52911), was missing from the CFR. On

October 20, 1994, a direct final rule was

published (59 FR 52915) which partially

approved the Stage II gasoline vapor

recovery program for selected areas in

the State of Ohio. The direct final rule

incorporated by reference Ohio

Administrative Code (OAC) rules 3745–

21–09(DDD) (1)–(4). This reference was

inadvertently omitted from the

subsequent publication of a direct final

rule in the Federal Register on March

23, 1995 (60 FR 15235). This direct final

rule approved OAC Chapter 3745–21,

regarding volatile organic compound

emissions, and included revisions to 40

CFR 52.1870(c)(104). The EPA action

published on March 23, 1995 (60 FR

15240), inadvertently omitted the

incorporation by reference of the

previous partial approval of State rules

requiring Stage II gasoline vapor

recovery controls, codified at OAC rules

3745–21–09(DDD) (1)–(4), from its

revisions to 40 CFR 52.1870(c)(104).

Action

OAC rules 3745–21–09(DDD)(1)-(4)

are hereby incorporated by reference

into 40 CFR as § 52.1870(c)(104)(i)(C).

This action is prompted by a request

from the State of Ohio to correct the

CFR to include the reference of this

codification.

Administrative Requirements

Under Executive Order 12866 (58 FR

51735, October 4, 1993), this action is

not a ‘‘significant regulatory action’’

and, is therefore not subject to review by

the Office of Management and Budget.

In addition, this action does not impose

any enforceable duty or contain any

unfunded mandate as described in the

Unfunded Mandates Reform Act of 1995

(Pub. L. 104–4), or require prior

consultation with State officials as

specified by Executive Order 12875 (58

FR 58093, October 28, 1993), or involve

special consideration of environmental

justice related issues as required by